25 The statement in the last sentence appears, with respect, to misapprehend how the question of delay and rehabilitation had to be approached. There was no suggestion that the delay was solely or even partly the fault of the accused. Of course, if the delay had been the result of their obstruction or lack of co-operation, the position would likely have been different. Likewise if, as was suggested in Cockerell, the conduct of the matter by the prosecution had been "leisurely". Neither characterisation is appropriate here.
26 It was common ground at the Bar table that this Court did not need to investigate whether the delay was justifiable or not. Suffice it to say that the explanation given by the Crown - that pleas of guilty to the lesser charge could not be accepted until the evidence as to quantity had been carefully reviewed - seems perfectly acceptable. As the decision in this case indicates, however, where such an investigation results in such a lengthy delay it will inevitably have consequences. If the delay reflects a lack of resources, then there is an obvious public interest in sufficient resourcing for the Crown to ensure that such an investigation can be completed expeditiously.
27 His Honour appears to have regarded himself as compelled to treat general deterrence as the overriding consideration, even though - as he noted - sending back to gaol a person who had rehabilitated himself was not in that person's interests nor in the interests of the public. In my respectful opinion, his Honour was right to give prominence to general deterrence. I endorse, with respect, what his Honour said about the message which needs to be sent, by sentencing, about drug trafficking of a commercial kind, which this plainly was. That is, the sentence imposed must be such as will send a message to those who might contemplate getting into that illegal trade that they will be severely punished if they do.
28 But according appropriate significance to general deterrence did not preclude giving appropriate weight to the lengthy delay in this case and the very significant efforts made by the applicants in the meantime. Mrs Quin argues that his Honour was clearly alive to the delay issue, as the transcript reveals, and we should not doubt that the matter was properly factored in. In my opinion, the sentences imposed show that delay and rehabilitation were not treated as a "powerful mitigating factor", as they should have been. The misapprehension about delay, to which I have referred, appears to have resulted in the Cockerell principles effectively being ignored.[9]
29 A separate ground advanced on behalf of the applicants was that his Honour had insufficiently taken account of the significance of police involvement through covert operatives. The argument was put, both below and in this Court, that the ordinary course of this trafficking business was to deal in small amounts of drugs and that the increase - from amounts of three, seven and 10 tablets up to 1000 tablets - was the result of police operatives expressing interest in buying such a large quantity. As his Honour rightly said, the fact that that offer was not rejected out of hand demonstrated that there was a preparedness on the part of Mr Tiburcy to respond to an extraordinary order of that kind.
30 Because of the view I have reached in relation to the Cockerell point, it is unnecessary to decide this question. Suffice it to say that I respectfully agree with the approach enunciated by Buchanan, J.A. in the course of argument, namely, that the nature and extent of police involvement in provoking trafficking activity is simply a factor relevant to the characterisation of the conduct in question. The one very large transaction is said here to have been atypical. In my opinion, that is how a sentencing judge should approach the issue, not as aggravating or mitigating the conduct but simply as bearing on the true scope and nature of the activity in respect of which the charges were laid.
31 In relation to parity, there have to be appropriate differentials between Tiburcy on the one hand and Zeuschner and Gardner on the other. His Honour made a clear differentiation in that respect. Because we have to re-sentence, we must likewise ensure an appropriate differential. The position of Mr Tiburcy is markedly different, in three significant respects. First, he was the principal in an operation in which the other two were subordinates. Second, he had prior convictions which included a prior conviction for trafficking in drugs of dependence. Thirdly, he had been fortunate to receive a suspended sentence on that charge of trafficking. The trafficking now under consideration was carried on, in a sustained way, while he was on that suspended sentence. Such conduct is as inexplicable as it is inexcusable.
32 At the same time, as Mr Priest pointed out, while Mr Tiburcy appears to have been triumphant when the suspended sentence was imposed, his first taste of gaol was a very sobering experience. It is to be hoped that the lesson was well and truly learned. Accordingly, I disregard for present purposes the cocky attitude revealed by the transcript to which we were referred. I take into account what was said about his change of demeanour and his much more serious approach to life after he had experienced gaol.
33 Attention was drawn to the fact that the head sentences imposed in each case were much lower for cannabis than for methylamphetamine and ecstasy. In the case of Zeuschner and Gardner, the difference was three years as against one; in the case of Tiburcy, the difference was five years as against two. Mr Priest submitted that it was difficult to see any basis in the material for that kind of differential, save possibly that there was a lower frequency of dealings in cannabis than in the other two drugs. He rightly drew attention to the possibility that the differential was to be explained by an implicit assumption on the part of the Judge that cannabis was less harmful than the other drugs.
34 It has been the conventional approach of sentencing courts to differentiate where appropriate between drugs of dependence by reference to their respective harmfulness. As this Court said recently in Pidoto[10], however, that is not how the statute is to be construed. Parliament did not intend judges to attempt what is, for a sentencing judge, an impossible task.
35 It follows that, for the purposes of re-sentencing, we must treat methylamphetamine, cannabis and ecstasy uniformly. In each case the count is of trafficking simpliciter. The maximum penalty is set on a quantitative basis. There is no evidence on which we could properly differentiate between the respective counts by reference to the quantity of the drug trafficked.
36 As to cumulation, Mr. Priest submitted that there was no justification for cumulation given that each applicant was charged with three counts, each count representing one of the drugs which formed part of the trafficking business. I am not persuaded by that submission. In my opinion, there is a difference between someone who trafficks in only one drug and someone who sells a range of drugs. Each is an offence in itself, and in my opinion a degree of cumulation is not only correct but, in the ordinary case of this type, will be necessary.
37 Before re-sentencing, I wish to acknowledge the assistance received from the work Mr Hutton (for Gardner) had done in researching sentences passed for offences of this kind. In the event, it has not been necessary for us to decide the "manifest excess" ground, but the research effort was much appreciated. If this Court is to make an informed assessment of what is within and without the relevant range, we need assistance of that kind. I accept to some extent Mr Priest's argument that earlier decisions on trafficking may be rendered less relevant because of the decision in Pidoto, but I do not accept that they are wholly irrelevant.
38 Taking into account the various matters in mitigation to which I have referred, the age of the offenders and, in the cases of Gardner and Zeuschner, the fact that they are first offenders, I would propose that they be re-sentenced as follows.
39 Each applicant should have leave to appeal against sentence. I would order that the appeal be heard instanter and allowed, the sentences below set aside and the appellants re-sentenced as follows:
In the case of Tiburcy -
on count 4 - four-and-a-half years' imprisonment;