24 Mr Priest submitted that the severity of the sentence of 18 months' imprisonment that was imposed on count 1 demonstrated that although the judge had not treated steroids as falling within the category of hard drugs such as heroin, cocaine and methamphetamine, he must have regarded it as a drug of equivalent seriousness to that of cannabis. Such a conclusion, Mr Priest submitted, was not open to be drawn, in the absence of evidence. In their written submission counsel for the applicant submitted that it was the experience of the courts that steroids do not appear to be attended by the same social evils as cannabis.
25 In R. v. Pidoto & O'Dea,[10] two appeals which were heard together with the present appeal, the Court held that the trafficking offences under s.71, 71AA and 71AC all had the common element that the drug in question was a drug of dependence, and that in structuring the offence provisions Parliament adopted a hierarchy which was not based on the relative harmfulness of different drugs of dependence but on the quantity of the drug trafficked. The Court concluded that in sentencing an offender for an offence under s.71AA (and it would be equally so with respect to an offence under s.71AC) there was no scope for the sentencing judge to consider the harmfulness of the drug which is the subject of the charge, that being an irrelevant consideration.[11]
26 In light of the conclusion of the Court in Pidoto & O'Dea it is apparent that in his sentencing remarks, the learned sentencing judge fell into error by having regard to the harmfulness of steroids. The complaint made under appeal ground 2 in the present case, however, was not that the judge had regard, at all, to the relative harmfulness of steroids but that in doing so he treated the drug as more harmful than it was, or, at least, had acted without evidence as to the social, physical and psychological harmfulness of the drug.
27 Although counsel presented the appeal under ground 2 on what has now been shown by the decision in Pidoto & O'Dea to be an incorrect assumption - namely, that a comparison of harmfulness of different drugs was an appropriate sentencing approach - the ground could not have succeeded even if the assumption had been correct. In my view, although his Honour inappropriately had regard to what he considered to be the harmfulness of steroids, he did not rank the seriousness of steroid trafficking by reference to the relative seriousness of cannabis trafficking, which was the contention advanced in argument under this ground. That argument was founded on a general proposition that a sentence of 18 month's imprisonment was of the order that courts might be expected to impose for trafficking in a commercial quantity of cannabis. However, in my opinion, such an offence, especially for a person with prior convictions - including a drug conviction (as was the case here) - would generally result in a more substantial head sentence than 18 months' imprisonment. In any event, even if there have been instances where sentences in that order had been imposed for commercial level cannabis trafficking, it does not follow that a similar sentence was inappropriate or outside the range for the offence on count 1. A similar observation may be made with respect to the sentence of six month's imprisonment for trafficking, simpliciter, under count 2, had the drug been cannabis.
28 In the result, although his Honour did make an assessment of the harmfulness of steroids that assessment could only have been to the benefit of the applicant. As the Court has made clear in Pidoto & O'Dea,[12] it is the act of trafficking for profit that attracts the penalty under both s.71AA and s.71AC, and it is the amount of profit which the trafficker stood to make, not the degree of harm which the trafficking was likely to cause, that determined the seriousness of any offence under the sections. All things being equal, the applicant's offences under counts 1 and 2 were no less serious because they involved trafficking in steroids, than they would have been had the drug of dependence been cannabis. On a fair reading of his sentencing remarks, the judge responded favourably to the contentions of defence counsel as to the seriousness with which he would view the trafficking in steroids and, as earlier discussed, the fact that the drugs were steroids, and not "harder" drugs caused a reduction in his sentences, not an increase.
29 Thus, although the approach to sentencing adopted by the judge was not consistent with the principles discussed in Pidoto & O'Dea his erroneous approach did not disadvantage the applicant, and the complaint made in the terms of ground 2, predicated as it is on an erroneous understanding of the appropriate sentencing approach which ought to have been adopted, was without merit.
Grounds 3 and 4
30 These grounds may be taken together, although ground 3 focussed attention on the sentence on count 5, the attempted bribery count.
31 The applicant was aged 40 years when sentenced, and had five young children, the eldest 10 years of age. He had been involved in body building since the mid-eighties and had competed in body building competitions for many years. He commenced use of steroids in that context. He told police that he helped out a few friends who asked him to get steroids for them. The judge accepted that he was genuinely remorseful, came from a good family and had worked hard, regularly and successfully in family businesses since leaving school at the age of 13 years. A number of character witnesses gave impressive evidence on his behalf.
32 The judge viewed the applicant's prospects of rehabilitation as "reasonable", but noted that the applicant admitted ten prior convictions, or findings of guilt, between 1984 and 2000, from seven court appearances. His convictions included three counts of assault. The last appearance, in 2000, was for possession of a drug of dependence, a steroid, which charge was adjourned without conviction.
33 The learned sentencing judge accepted that the drugs to which counts 3 and 4 related were for personal use only, and were not related to trafficking. On counts 1 and 2, however, the applicant admitted that he was a drug trafficker: on count 1, admitting that he was a trafficker in a commercial quantity of a drug of dependence.
34 As to the complaint that the sentence of 18 months' imprisonment on count 1 was manifestly excessive it is to be noted that defence counsel had himself acknowledged that a sentence of 12 months' imprisonment would be within range, albeit, that he submitted it should be served by way of an intensive correction order. Having regard to the fact (subject to what I later say as to maximum penalties) that the maximum penalty for the offence was 25 years' imprisonment, it is difficult to see how a sentence of 18 months' imprisonment for an offence that involved trafficking in one and a half times the commercial quantity of a drug of dependence could constitute the sentence manifestly excessive, and, in my opinion, it was not.
35 It was accepted below, and again before us, that the most serious of the offences was that on count 5. Defence counsel acknowledged that imprisonment was inevitable, but submitted that it was appropriate that the sentence be wholly suspended.
36 His Honour rightly said that the offence of attempting to pervert the course of justice struck at the very heart of the system of justice. The maximum penalty for the offence is 25 years' imprisonment but, as Callaway, J.A. held in DPP v. Aydin and Kirsch,[13] that must be kept in perspective, it being the penalty reserved for the worst cases. As Callaway, J.A. observed, whilst a sentencing judge should steer by the maximum penalty, he or she should not aim at the maximum penalty.
37 The circumstances of offences of attempting to pervert the course of justice may vary greatly and, whilst acknowledging the seriousness of the offence generally, each case must be assessed on its own facts. His Honour accepted that it was only upon learning that his property was at risk of forfeiture under the Confiscation Act that the applicant resolved to offer a bribe to police. Whilst alarm as to that prospect might explain his foolish decision, the attempt to bribe the police officers was calculated, repeated (indeed, the size of the proffered bribe escalated), and seriously intended. In my opinion, the sentence imposed by his Honour was well within range, and the decision to make the sentences on counts 2, 3 and 4 wholly concurrent, was merciful, especially so in the case of count 2.
38 Complaint was made as to the sentences being manifestly excessive on each count, and also by virtue of the total effective sentence and the non-parole period, but I reject the contention that any of the sentences or the non-parole period was manifestly excessive. I did not uphold grounds 3 and 4.
39 I concluded, however, that specific sentencing error tainted the sentence on count 1 and since that was the opinion of the other members of the Court the sentencing discretion was re-opened and the Court was required to determine for itself the appropriate sentences to impose.
40 Save for disregarding the potential impact of the Confiscation Act and wrongly taking into account the harmfulness of steroids, the learned sentencing judge had regard to all relevant mitigating and aggravating factors in this case. Insofar as he had regard to the harmfulness of steroid trafficking that consideration was to the benefit of the applicant, and in putting to one side the question of comparative harmfulness of the drug in question, for the purpose of re-sentencing, I do not consider that the trafficking in this case was any less serious than the judge apparently thought it to be.
41 Upon weighing those factors for myself, and then taking into account the additional factor of the potential forfeiture of assets, I would still not have imposed different sentences to those imposed below, on any of the counts. Furthermore, I would not have made any different order as to cumulation to that made by his Honour. The order as to cumulation was moderate and balanced, and the non-parole period, too, was appropriate.
42 In the result, therefore, in the exercise of my own discretion upon re-sentencing I concluded that I would not vary any of the sentencing orders made by the judge. In the result, I agreed that the appropriate orders were that the application for leave to appeal be granted but the appeal be dismissed.