Supreme Court of SA|1995-11-10|Before: Doyle CJ

R v. DEAN MANGELSDORF; R v. DAVID PERRY; R v. SHANE RICHARDS Nos. SCCRM 95/229, SCCRM 95/246 and SCCRM 95/335 Judgment No. 5328 Number of pages - 18 Criminal law (1995) 66 SASR 60 [1995] SASC 5328 (10 November 1995)

COURT IN THE FULL COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA DOYLE CJ(1), PRIOR(2) AND WILLIAMS(3) JJ

Criminal law - jurisdiction, practice and procedure - judgment and punishment - Application for leave to appeal against sentence by Director of Public Prosecutions - three unrelated cases involving drug offences - leave to be granted only in the rare or exceptional case - examination of standard set in previous cases - scope for trial judge's assessment must be allowed, but standards must be given appropriate weight - appropriate to grant leave in two cases, to reiterate standards because reason to think sentencing judges not observing the relevant standards - appropriate to grant leave also on grounds related to each individual case. Everett v R ; ; R v Osenkowski ; R v Pearce , applied.

Criminal law - jurisdiction, practice and procedure - sentence - Heroin dealer - public interest in deterrence to be uppermost in judge's mind - impact on family only to be taken into account in exceptional cases - suspension inappropriate - sentence increased and suspension revoked. R v Adam; [1989] SASC 1640; (1989) 51 SASR 229, applied.

Criminal law - jurisdiction, practice and procedure - sentence - Conspiracy to trade in LSD - no trading occurred - sort of offence would ordinarily attract a sentence of imprisonment - suspension inappropriate - sentence increased but suspension not revoked.

Criminal law - jurisdiction, practice and procedure - sentence - Cannabis dealer - clear commercial overtones - sizeable quantity - previous suspended sentences - suspension inappropriate - sentence increased and suspension revoked.R v Walker (1981) 27 SASR 315, applied.

HRNG ADELAIDE, 17-18 October 1995 #DATE 10:11:1995 #ADD 15:1:1996

Counsel for appellant: Mr P Rofe QC with Mr P Muscat

Counsel for respondents Mangelsdorf and Richards: Mr C Caldicott

Solicitors for respondents Mangelsdorf and Richards:
Caldicott and Co.

Solicitors for respondent Perry: Carter and Prendergast

JUDGE1 DOYLE CJ The Court has before it three applications by the Director of Public Prosecutions for leave to appeal against sentences imposed by Judges of the District Court.

It is convenient to deal with the three applications together.

Two of the applications relate to sentences for offences against s32 of the Controlled Substances Act (SA). The other application relates to a sentence for the offence of conspiring to trade in a prohibited substance for the purposes of the Controlled Substances Act. In the first application the prohibited substance involved was heroin. In the second application the prohibited substance involved was Lysergic Acid Diethylamide, commonly known as, and hereinafter referred to as, "LSD". In the third application the prohibited substance involved was cannabis and cannabis resin. It can be seen that each application relates to offences involving drugs, the unlawful use of which Parliament has made the subject of heavy penalties, reflecting widespread community concern about the harm done to users of such drugs.

Each application was made by the Director of Public Prosecutions on the ground that the sentence imposed failed to maintain an adequate standard of punishment for the crime involved. In submissions in support of each application it was also argued that each sentence was so disproportionate to the seriousness of the crime involved as to require intervention by the Court of Criminal Appeal. The Director also argued that sentences imposed in the District Court for like offences indicated a general erosion of appropriate standards set or indicated by this Court, and that for that reason also this Court should intervene.

It can be seen from this that similar issues are raised by each application.

LEAVE TO APPEAL - PRINCIPLES 6. The High Court has held that the jurisdiction to grant leave to the Director of Public Prosecutions to appeal against sentence "should be exercised only in the rare and exceptional case": Everett v R [1994] HCA 49; (1994) 181 CLR 295 at 299. The Court went on to explain why that is the case, and when leave might be granted, in the following passage (at 299-300): "An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed (citations omitted). That being so, a 'court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified': Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 at 234-235. In determining whether that question should be answered in the affirmative, a Court of Criminal Appeal should be guided by the following comment of Barwick CJ in Griffiths v R (1977) 137 CLR 293 at 310: 'an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay

down principles for the governance and guidance of courts having the duty of sentencing convicted persons'.

The reference to 'matters of principle' in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting 'error in principle' (Ibid at p310)." Remarks to a like effect are to be found in Malvaso v R (1989) 168 CLR at 233-235, Deane and McHugh JJ.

In this Court the same approach has been taken. The role of prosecution appeals was described by King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-213 in terms which have often been repeated but which warrant further repetition: "It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.... The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience." This approach was reaffirmed in R v Drewett (1983) 35 SASR 344. It has remained the approach of this Court.

STANDARDS 8. This Court has established standards for the punishment of crimes of the type dealt with by the Judges in the cases the subject of the present application. The Court has referred time and again to the severe penalties imposed by s32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs. The Court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s32.

This has occurred against a background of a number of increases by Parliament in the penalties attaching to offences created by s32. It is unnecessary to refer to these legislative changes in detail.

I do not propose to refer to all of the many cases in which the Court has referred to the need to impose sentences which will mark the gravity of the crimes created by s32 and which will operate as a deterrent to those who are tempted to engage in trading in the drugs dealt with by s32. But it is appropriate to refer to a few of them, and in particular some which deal with the drugs in question in this present case.

In R v Belcher (1981) 27 SASR 46 the Court referred to past warnings that the then recent increases in maximum penalties (imposed by earlier legislation) must lead to more severe sentences. The judgment makes it clear that a sentence of seven years' imprisonment for possessing heroin for sale, imposed on a person with no prior conviction and of apparent good character, was not outside the normal sentencing range.

In R v Rocco (1985) 37 SASR 515 the Court again reviewed sentences for trading in heroin under the earlier legislation. The Court referred to sentences for "street traders" in heroin ranging from four years' to seven years' imprisonment. Some of these were imposed on persons with no prior conviction. The Court said (at 516) that substantial penalties had been imposed even though the amounts of heroin discovered in the hands of street traders had been quite small. The reasons for this, which are well known to those who have to deal with these cases, are set out in the judgment of White J (at 517). The point is made (at 517) that: "The penalty for heroin street traders does not normally fluctuate with the quantity."

In this review of cases I do not propose to refer to the weight of heroin involved, for that reason. That is not to say that the quantity of heroin is of no relevance. It is of limited relevance in the case of a street trader. But my purpose is to indicate the general standards of punishment set by this Court, and in doing so there is no need to descend to the detail of individual cases.

In R v Wilson (1990) 158 LSJS 134 the Court considered a sentence of six years' imprisonment for possession of heroin for sale. The appeal was against the severity of the sentence. Counsel for the appellant apparently referred the Court to certain sentences for the same offences which were substantially less than that imposed. As to that, King CJ said, with the concurrence of the other members of the Court (at 136): "I do not know what might be the explanation for the low sentences which have been brought to our attention. It may well be that the particular cases in which those sentences have been imposed are atypical and that there have been features of those cases which make the ordinary standards of punishment for this offence inapplicable to them.

I would wish to make it clear, however, that this court could not condone the types of sentences to be found in the lists applied to us as being in accord with the recognised standards of punishment approved in this Court. This Court should adhere, in my opinion, to the standards laid down in such cases as R v Eyres, Eastway, Clarke and Osenkowski (1977) 16 SASR 226, R v Belcher (1981) 27 SASR 46 and Murton v Bates (1988) 50 SASR 92, and the sentence which was imposed by the learned sentencing judge in this case is well within the standard which has been recognised and approved in those cases."

The judgment of King CJ makes a further pertinent point. The appellant was a heroin addict who was making real efforts to overcome his addiction. A reduction was sought to the non-parole period to reduce it to a point at which the appellant would be offered encouragement to overcome his addiction. The judgment of King CJ makes it plain that addiction provides little or no basis for leniency in cases involving trading in drugs contrary to s32. In rejecting the argument referred to, he said (at 135): "Unfortunately, however, there is a limit to the extent to which this Court can give effect to considerations of that kind. The drug trade flourishes because suppliers of drugs are able to find people like the appellant who are prepared to engage in the trade at the lower levels and in that way to entice other people into the same type of drug dependence and misery which has been experienced by the appellant himself. It is the duty of the court, which has been made perfectly plain by the penalties prescribed by Parliament, to impose sentences which will, one hopes, deter other

In R v Harris; R v Simmonds [1992] SASC 3624; (1992) 59 SASR 300 each appellant was convicted of possessing heroin for sale. Of the two offenders, Harris was described as the main offender. He had some prior convictions, although none of them were drug related. The sentence of six years six months imprisonment imposed upon him was described (at 301) as "quite a moderate sentence" by the standards applicable under the previous legislation (that legislation imposed lower penalties than the Controlled Substances Act).

The Court was referred in argument to a number of unreported decisions which reflect the approach taken in the cases to which I have referred. I do not propose to refer to them, but a reference to one is appropriate. In R v Milan Santalab (Court of Criminal Appeal, 20 July 1993 Judg No 4055, (unreported, available on SCALE)) the Director of Public Prosecutions appealed against a sentence of seven years' imprisonment imposed on each of five counts of selling heroin and one year's imprisonment on one count of possessing heroin for sale, each sentence to be served concurrently. The offences were committed in the course of a business of selling heroin which had extended over at least nine months. Santalab was dealt with, on appeal, "as a drug dealer who was involved in a substantial commercial enterprise", going beyond street trading. He had a poor record, including drug offences. The Court said that but for his plea of guilty his offences would have merited a sentence of 15 years' imprisonment. The sentence was increased on appeal from the seven years imposed to twelve years. This is a reminder of the fact that very heavy sentences can be expected by those whose offending goes beyond street trading. In the course of his judgment King CJ again made the point (at p.6) that: "Street offences in relation to heroin prior to the passing of Section 302 of the Criminal Law Consolidation Act, which became Section 12 of the Criminal Law (Sentencing) Act, attracted penalties in a range between five years and seven years. When the statutory provisions relating to good conduct remissions are taken into account, as now required by Section 12 of the Criminal Law (Sentencing) Act, it is evident that that range would be significantly increased." He went on to remind sentencing Judges of the approach which must be taken in such cases, and of the duty of this Court on appeal. He said (at p7): "Parliament has prescribed severe maximum penalties for heroin dealing, and it is the duty of this court to impose penalties which give effect to the legislative policy reflected by those maximum penalties. Clearly it is the intention of the legislature that severe penalties should be imposed as a means of deterring those who are tempted by the big profits to be made out of heroin dealing from engaging in that enterprise. The courts would be failing in their duty if they should fail to impose sentences which properly implement the legislative policy. It is the duty

of this appellate court to intervene at the instance of the Director of Public Prosecutions when it appears that a failure on the part of a sentencing judge to implement the policy of the legislature by applying the standards which have been developed by the courts, is of such a nature that it might result in an erosion of the standard of penalties which is required to give effect to the legislative policy. It seems to me therefore that it is the duty of this court, sitting as a Court of Criminal Appeal, to intervene, when it sees, as I think it must see in the present case, that the sentences imposed are manifestly inadequate and fail to maintain the appropriate sentencing standards."

I consider that these judgments adequately indicate the standard which has been set by this Court for offences involving heroin which can be described as street trading, a description which is not precise, but has often been employed by the Court.

It has often been said, and needs no repeating, that it is for the sentencing Judge to take into account all material matters in deciding upon the appropriate sentence to be imposed. Scope must be allowed for the sentencing Judge's assessment of those matters, and for the understanding of the offence and of the offender which the sentencing Judge obtains. The latter, in particular, may be influenced by aspects of the sentencing process in respect of which the sentencing Judge is better placed than is a Court of Criminal Appeal to make an appropriate assessment of what should be done. As King CJ said in R v Osenkowski (supra) at 212-213: "It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that

leniency at that particular stage of the offender's life might lead to reform."

But in the end the standards which this Court determines must be given appropriate weight. Departure from them must be justified by some aspect of the particular case. The standards are not, and are not intended to be, precise. But they do provide clear guidance.

The Court was provided with information that indicates that a significant number of sentences have been imposed in the last two years which are substantially less than the standard established by the cases referred to. As in the case of R v Wilson (supra), the Court does not have information about all of those cases, and there may be particular circumstances justifying the sentences imposed.

But I would wish to make it clear that, in my opinion, there is reason to think, from the number of such cases, that the standards established by this Court are not being observed as they should be.

In my opinion, a lesser sentence than the standards of punishment established by the cases referred to will be justified only by circumstances which are out of the ordinary. In the case of street trading offences, it is clear that matters such as previous good character, addiction and detection with relatively small quantities of the drug are not matters out of the ordinary. It is also necessary to bear in mind that the importance of deterrence in such cases will often lead to less weight being given to circumstances personal to the offender than otherwise might be given.

In the matters heard by us the Director of Public Prosecutions did not ask the Court to review the standards which it has established, with a view to increasing them. The frequency with which offences involving trading in heroin, and indeed in other drugs, come before the Courts make me think that it may be necessary to do so in the future. The punishment imposed by the Courts for offences is, of course, only one aspect of the attempt by Parliament and the Government of this State to eliminate or, more realistically, substantially limit the trade in prohibited drugs. Nor do I suggest that increased penalties will necessarily result in a proportionate decrease in the number of offences. In a sense, punishment by imprisonment is the last resort in the attempt to protect members of our society from the harm inflicted by these drugs and by those who trade in them. But our system of criminal justice proceeds on the premise that sentences do have a deterrent effect, and Parliament enacts punishment for crimes on that basis. Recognising that, the courts must be prepared to perform their duty. If the sentences being imposed are proving to be ineffectual, then it may be appropriate to increase them. For my part I can find no justification for reducing the standard of punishment which the Court has established. Judges must be careful not to do that by failing to observe those standards.

In the second application the prohibited substance was, as already noted, LSD. In R v Pearce (1980) 91 LSJS 443 this drug was described as a middle range drug in terms of seriousness - less dangerous than heroin but more dangerous than cannabis and its derivatives. That approach has, as far as I am aware, been maintained since then. In that case a sentence of seven years' imprisonment for selling a drug similar to, but less potent than, LSD, was reduced to five years' imprisonment. The maximum sentence at that time was 25 years' imprisonment. Today, for a quantity in excess of the prescribed quantity of LSD (0.4 gram) the maximum penalty is both a fine not exceeding $500,000 and imprisonment for life. For a lesser quantity the maximum penalty is $200,000 or imprisonment for 25 years or both. The appellant in R v Pearce (1980) 91 LSJS 443 had pleaded guilty, was a young man with no prior drug offences, and was said to be involved in the drug trade "only on a small scale" (at 445). The sentence of five years imposed on appeal reflects the seriousness with which the Court viewed the offence.

In reaching its decision, the Court was clearly influenced by the fact that the drug in question was less harmful than heroin. The Court made some further observations (at 445-456) which, in the context of these applications, warrant repetition. It goes without saying that I agree with what follows: "But it is not to be thought for a moment that a sentence of seven years' imprisonment is necessarily a sufficient sentence for a dealer in heroin, nor that a sentence of five years' imprisonment is necessarily a sufficient sentence for a dealer in LSD or a drug of the nature involved in the present case. Much depends on the circumstances, and particularly upon the extent of the dealings in the drug and the quantity of the drug in question ... It is not to be thought that because sentences in the past for heroin have been in the order of seven years that those who engage in

heroin dealing in the future can expect sentences which are no longer than seven years. On the contrary in cases where it is established that there is a business of dealing in heroin to a serious extent, it is to be expected that the sentences imposed will approach the maximum provided by law to a much greater extent than in the past.

The same remark applies, observing a proper proportion, to the drug LSD, the present drug and to other drugs in what the learned judge has described as a middle range of drugs."

In my opinion, these remarks indicate an approach which should be taken, or continue to be taken, in this State.

The Court was provided with information relating to sentences imposed during 1995 for offences involving LSD and other drugs which are regarded as being about as dangerous as LSD. The sentences imposed are generally well below the level indicated by the decision in R v Pearce (1980) 91 LSJS 443, giving rise to a concern that adequate standards are not being observed for such offences. In the majority of cases the sentence imposed was two years' imprisonment or less, and in a clear majority of cases in which sentence of imprisonment was imposed, the sentence was suspended.

Once again, it is necessary to say that the Court does not have all of the information relevant to each case. And, I should add, the "sample" provided to the Court is based on a period of no more than five months. But the information is cause for concern if it does indicate the standard being observed in the District Court.

In my opinion sentencing Judges should be guided by what this Court said in R v Pearce (1980) LSJS 443, and should sentence offenders with due regard to the sentences appropriate for dealing in heroin when sentencing for offences which involve drugs which are only a little less dangerous or harmful than that drug.

In the third application the substance involved was cannabis and cannabis resin.

Decisions in this Court have proceeded on the basis that cannabis is a drug less dangerous and harmful than heroin and LSD and other middle range drugs. A simple cannabis offence (defined by s45A of the Controlled Substances Act) may not be dealt with by prosecution until the alleged offender has been given, and has declined, the opportunity to deal with the offence by paying an expiation fee specified in an expiation notice. Cultivation of 100 plants or less, if the Court is satisfied that the person cultivated the plants solely for his or her own smoking or consumption, attracts a maximum penalty of $500: s32(6). Nevertheless, the penalties for commercial dealings in cannabis and cannabis resin are severe. They range from a maximum penalty of a fine not exceeding $2,000 and imprisonment for two years or both to a maximum penalty of both a fine not exceeding $500,000 and imprisonment for a term not exceeding 25 years: s31(5).

This Court has consistently stressed the need to recognise the severe penalties which Parliament has specified for such offences involving cannabis. The Court has emphasised that Parliament clearly expects the Courts to impose sentences which are likely to deter people from engaging in commercial activity with respect to this drug. The seriousness of the offence, its prevalence, and the importance to be given to deterrence all combine to lead to the conclusion that ordinarily a sentence of imprisonment for such offences is to be expected, the duration of the sentence reflecting the quantity involved and hence the applicable statutory maximum.

The Court was not provided with information relating to penalties for offences involving cannabis. Nor was it argued that in relation to cannabis there had been a failure by Judges of the District Court to observe an appropriate standard of punishment. The argument in the third case was that the sentence imposed was so far below the appropriate standard as to warrant the Court's intervention.

In my opinion it follows, from what I have said, that the Director of Public Prosecutions has discharged the onus of establishing that it is appropriate to grant leave to appeal in the first two cases, for the purpose of maintaining, by way of reiteration, adequate standards of punishment for offences involving trading in heroin and in what I have called middle range drugs. It is appropriate to grant leave because there is reason to think that sentencing Judges may not be observing the standards established by this Court and as a result may be imposing sentences which are manifestly inadequate. There is also reason to think that the departure from the established standards is not confined to isolated and exceptional cases.

In dealing with each case, I will indicate whether it is appropriate to grant leave as well on some other basis.

The grant of leave to appeal on this basis does not, of course, mean that the appeal must be allowed. There are two aspects to the function of the Court of Criminal Appeal in this respect. The first is the setting and maintaining of adequate standards of punishment. On occasions that may be achieved by a pronouncement of this Court without interfering with the sentence under review. The Court has done that on occasions. The second is the correction of a particular sentence which displays manifest inadequacy in its departure from appropriate sentencing standards. That requires separate consideration and, of course, close consideration of the circumstances of the particular case.

R v MANGELSDORF 38. This is the case which I have referred to as the first case.

Mr Mangelsdorf was convicted on one count of possessing heroin for sale. The quantity of heroin found in his possession was such as to put the offence into the category which attracts a maximum penalty not exceeding $200,000 or imprisonment for five years or both. Mr Mangelsdorf was found in possession of a press sealed plastic bag and 15 alfoil packets, each containing a "taste" of heroin. He admitted that he had been selling about 10 to 12 "tastes" per day for about two months. The sentencing Judge dealt with him, as was appropriate, on the basis that the offence formed part of a course of conduct consisting of a series of criminal offences of a similar character.

Clearly this was a typical example of street trading. There was a commercial aspect to the offence; it was an offence committed in, and as part of, commercial trading in heroin. To say this is not to suggest that Mr Mangelsdorf fell to be sentenced for anything other than the offence for which he was convicted. It is simply to make the point that the offence had a commercial flavour to it, and that he could not be sentenced on the basis that his offence was an isolated event.

Mr Mangelsdorf pleaded guilty. He made full and frank admissions to the police.

His circumstances are sad, and perhaps tragic, but unfortunately they are not unique. He was 32 years of age and had no previous convictions of any kind. He appears to have been a person of unblemished character until he became involved with drugs not long before his detection. Some four years ago he suffered a back injury which caused very severe pain. A medical report tendered to the Judge indicated that this pain was quite debilitating. In an attempt to secure relief from that pain Mr Mangelsdorf used, and became addicted to, heroin. The expense which resulted from that addiction consumed his savings and led to him selling many of his possessions to provide the necessary funds. He began selling heroin to others in order to provide himself with the heroin upon which he was dependent.

Since the time of his arrest Mr Mangelsdorf had attempted to overcome his addiction and the prospects of him doing so were reasonably good. A report from a psychologist expressed the view that Mr Mangelsdorf could re-establish the lifestyle which he had enjoyed before he began taking heroin.

In passing sentence His Honour referred to these matters. He referred, in particular, to the fact that the rehabilitation program which Mr Mangelsdorf had undertaken might be jeopardised by imprisonment. He referred to the need for a deterrent sentence. He imposed a sentence of 18 months' imprisonment with a non-parole period of 12 months. He recognised that it must be extremely rare for such a sentence to be suspended. However, in the light of the circumstances, and in particular Mr Mangelsdorf's previous good character, the reasons for his involvement with heroin and the relatively short time during which that involvement had continued, and the fact that the rehabilitation seemed well under way, he decided to suspend the sentence.

The decisions to which I have referred show, in my opinion, that the sentence imposed was manifestly inadequate. The inadequacy itself is such as to warrant the grant of leave to appeal and to call for intervention by this Court because, in my opinion, it constitutes "error in point of principle": Everett v R [1994] HCA 49; (1994) 181 CLR 295 at 300. In my opinion this is a case in which the Court should interfere. The maintenance of appropriate standards, and the error which has occurred, call for the correction of the sentence imposed.

After making allowance for the plea of guilty and other mitigating circumstances, I do not consider that a sentence of less than 4 years' imprisonment could be justified. This was an offence which was characteristic of its type. Against the mitigating circumstances, and the sympathy which one feels for Mr Mangelsdorf, must be set the seriousness of the offence and the fact that the trade in heroin continues because of the participation of street traders like Mr Mangelsdorf, many of whose personal circumstances equally excite sympathy. The sad fact of addiction is a recurring theme in these cases, as is, although less commonly, its origin in some injury or personal tragedy. The impact of the sentence on Mr Mangelsdorf's family is a cause for concern, but it is only in exceptional cases that that can be taken into account: R v Adami [1989] SASC 1640; (1989) 51 SASR 229 at 233.

It has to be said yet again that in dealing with offences such as this, individual and general deterrence must be given great weight. The public interest in deterring those who would trade in heroin must be uppermost in the Judge's mind.

In my opinion, the non-parole period was also manifestly inadequate. There is, however, more scope here for consideration of Mr Mangelsdorf's particular circumstances. The prospects of him rehabilitating himself are quite good, and his previous good character encourages me to think that he will do so. I would regard a non-parole period of 18 months as appropriate.

That leaves the question of suspension. Suspension was opposed by counsel for the Director of Public Prosecutions in submissions to the sentencing Judge. In my opinion it was wrong to suspend the sentence. For offences of such seriousness, suspension must be rare indeed. In my opinion the circumstances of this case, cogent as they are, do not justify the decision which the Judge made. To allow suspension of the sentence in such a case would, in my opinion, tend to erode the standard of punishment which this Court has set as appropriate for this offence. As King CJ said in R v Taddeo (Court of Criminal Appeal, [1993] SASC 4059; (1993) 67 A Crim R 338, also available on SCALE) in words equally applicable to the heroin trade: "It would send an entirely wrong signal to people who are tempted to engage in cannabis trading and could only tend to weaken the defences which the community expects to be erected and maintained against the drug trade".

Having decided that leave to appeal should be given, and that the sentence was manifestly inadequate, and warranted intervention on an appeal by the Director of Public Prosecutions, it falls to this Court to impose an appropriate sentence.

I have indicated that, in my opinion, a sentence of four years' imprisonment, and a non-parole period of 18 months, is appropriate. Suspension of the sentence is not appropriate.

A decision by this Court that suspension of a sentence was erroneous does not necessarily lead to revocation of the order for suspension. In cases such as R v Drewett (1983) 35 SASR 344, the Court has identified the error without interfering with the sentence imposed. In that case the Court was influenced not to interfere by the fact that the sentence, although unduly lenient, was "not really out of line with sentences which have been imposed in the District Criminal Court in similar types of cases" (at 346).

There is an understandable reluctance on appeal to impose an immediate sentence of imprisonment when the sentence imposed was suspended. It is particularly hard on an offender who has been told that he or she will not have to serve a sentence of imprisonment to find later that that is not so.

I have considered this aspect of the matter carefully. In my opinion, despite those factors, the sentence should not be suspended. It is important that there be as much consistency in sentencing as is achievable. In similar cases sentences have not been suspended. This is not a case in which the sentence can be seen as part of a general pattern, although there is reason to think that other unduly low sentences have been imposed. More importantly, in a number of cases involving drug offences this Court has revoked orders for the suspension of sentence, and consistency and the public interest suggest that it should do so here.

In my opinion, leave to appeal should be granted, the appeal should be allowed, the sentence imposed by the District Court Judge on 2 June 1995 should be set aside, and for that sentence there should be substituted a sentence of four years' imprisonment and an order fixing a non-parole period of one year six months, the sentence and the non-parole period to commence on the day on which the defendant is taken into custody pursuant to the warrant of commitment issued in respect of the sentence.

R v PERRY 56. This is what I have referred to as the second case, involving the drug LSD. I have already indicated that, in my opinion, leave to appeal should be granted.

Mr Perry was convicted of having conspired with one Wolstencroft to trade in a prohibited substance. The evidence against Mr Perry was based on transcripts of ten telephone conversations between him and Wolstencroft. It was accepted that of the two involved, Mr Perry was the less significant participant. Wolstencroft hoped to purchase from Mr Perry large quantities of LSD. In the telephone conversations he indicated his willingness to supply what was wanted. No doubt he considered that he had the ability to do so. There is no reason to think this was a mere dream or delusion on his part. There is no reason to treat it as a charade on his part which he never intended to carry out. Mr Perry admitted his intention to supply. Fortunately for him he was detected before he did so.

He pleaded guilty and made full admissions. He was 20 years of age at the time. He had no previous convictions and was of good character. He had the support of his parents who were prepared to assist him financially in the purchase of a business and so to establish himself in gainful employment.

His Honour imposed a sentence of six months' imprisonment, reduced from nine months on account of the plea of guilty. He suspended the sentence upon Mr Perry entering into a recognisance for the amount of $100 to be of good behaviour for twelve months, during which period he was ordered to perform 80 hours of community service.

In my opinion, this sentence was manifestly inadequate. I refer to my earlier remarks about the relationship between sentences for trading in heroin and sentences for trading in drugs of middle range seriousness such as LSD. In my opinion, the sentence is so inadequate as to warrant the grant of leave to appeal and to call for intervention by this Court. The sentence reflects an "error in point of principle" by reason of its inadequacy. Once again, in my opinion, the maintenance of appropriate standards, and the error which has occurred, call for the intervention of the Court to correct the sentence imposed.

This sort of offence, in my opinion, would ordinarily attract a sentence of about 4-5 years' imprisonment. In saying that, I am allowing for the fact that no trading in fact occurred. In my opinion, sentencing Judges should have regard to what was said in R v Pearce (1980) 91 LSJS 443 in relation to such cases. I have already set out the relevant passages from the judgment.

Making allowance for the plea of guilty, for Mr Perry's youth and previous good record, I consider that a sentence of 2 years 6 months' imprisonment was the lowest sentence that could properly be imposed in this case. In my opinion, a non-parole period of one year would be appropriate, reflecting Mr Perry's good prospects of rehabilitation in particular.

The sentence imposed by the sentencing Judge was so low, as I have already said, compared with this that the Court must intervene.

In my opinion, the decision to suspend the sentence was wrong. I refer to my earlier remarks on this general topic. The offence was a serious one and was clearly motivated by the prospect of gain. Notwithstanding the circumstances personal to Mr Perry, suspension in such a case would not adequately reflect the gravity of the offence.

Notwithstanding the fact that, in my opinion, it was wrong to suspend the sentence, and although this Court must now impose an appropriate sentence, it is my opinion that in the exceptional circumstances of this particular case, it is appropriate to order that the sentence be suspended. The information put before the Court does, as I have already remarked, suggest that there has been a pattern in the District Court of imposing unduly low sentences for drugs such as LSD which are in the middle range of seriousness. This case has aspects of a test case, intended to establish an appropriate standard or re-establish a standard which has been overlooked. In that respect it bears similarities to R v Drewett (1983) 35 SASR 344. It seems to be that hitherto the standard established by R v Pearce (1980) 91 LSJS 443 has not been observed. Another matter of some significance is, as appears from information provided to the Court, that two other persons who conspired with Wolstencroft received suspended sentences. When I consider these circumstances, in addition to the circumstances adverted to in R v Drewett (supra) in which the Court decided against imposing a sentence of imprisonment when the original sentence was suspended, I come to the conclusion that although the sentencing Judge was wrong to suspend the sentence, it is appropriate on this case not to depart from that aspect of the Judge's approach. I would suspend the sentence on Mr Perry entering into a recognisance for the amount of $100 to be of good behaviour for two years (rather than one year as ordered by His Honour) and during the period of 18 months from entry into the bond Mr Perry must perform 160 hours of community service (rather than the 80 hours ordered by His Honour).

Accordingly, I would order that leave to appeal be granted, that the appeal be allowed, that the sentence imposed in the District Court on 11 May 1995 be set aside, and that for that sentence there be substituted a sentence of 2 years 6 months' imprisonment and an order fixing a non-parole period of 1 year, and I would order that that sentence be suspended upon Mr Perry entering into a recognisance for the amount of $100 to be of good behaviour for two years, and during the period of 18 months from entry into the bond Mr Perry is to perform 160 hours of community service (less such number of hours as he has performed pursuant to the order of the District Court).

R v RICHARDS 67. This is the case referred to as the third case. This case was argued by the Director of Public Prosecutions not on the basis of a need to establish or affirm an appropriate standard of punishment, but on the basis that the sentence was so low as to call for the Court's intervention and that the inadequacy constituted error in principle. That is the basis upon which leave to appeal is sought.

Mr Richards was convicted upon the verdict of a jury of two counts of possession of cannabis for sale and two counts of possession of cannabis resin for sale. One count related to cannabis weighing 6897 gms. The maximum penalty for that offence is 10 years' imprisonment and a fine of $50,000 or both. The other count involving cannabis involved cannabis weighing 1375 gms. In relation to the two counts of cannabis resin, the weight was 24 gms and 57 gms respectively. The maximum penalty on each of those three counts is imprisonment for two years and a fine of $2,000 or both. The Court was informed that the overall value of the drugs was in the range $50,000-$60,000.

The drugs were detected at a storage place by police dogs. When Mr Richards' home was searched, more drugs were found. The quantity of cannabis and his possession of smoking paraphernalia pointed to the fact that the possession was for the purpose of sale.

Having been found guilty upon the verdict of a jury, Mr Richards was entitled to no credit for a plea.

He came before the Court with a relatively poor record, with a history of offences from between 1983 and 1989. A number of them were unrelated to drugs and were relatively minor. But between 1985 and 1989 Mr Richards was convicted of 13 offences in all related to drugs. Judging by the penalties, some of them were relatively minor. But that cannot be said of all of them. In 1989 he was convicted of four offences relating to drugs, these being included in the total of 13 already referred to. On one occasion he received a sentence of six months' imprisonment, which sentence was suspended upon him entering into a bond. On another occasion in 1989 he received a sentence of 18 months' imprisonment, again suspended upon him entering into a bond. In 1988 he received suspended sentences of imprisonment for offences unrelated to drugs.

Against this poor history has to be put the fact that between 1989 and the middle of 1994, when the present offences were committed, he had not committed any other offences.

Mr Richards was 30 years of age. He was living in a stable domestic relationship with a woman and had been doing so for about 12 years. They had three children. The sentencing Judge was told that Mr Richards' partner would face difficulty managing alone, if he were in prison, because of a condition affecting her hands. Relevant to that is the fact that Mr Richards owns a property in the country on which he was in the process of developing a yabbie farm. The Judge seems to have proceeded on the basis that there were good prospects of this business venture going forward. The isolated location of the farm meant that, in Mr Richards' absence, his partner would need assistance from neighbours to care for the property and for the three children.

The Judge imposed a single sentence of two years' imprisonment. He fixed a non-parole period of sixteen months. Although counsel for the Director of Public Prosecutions opposed an order suspending the sentence, the Judge made such an order. He referred to the fact that Mr Richards had responded to supervision when that had been provided under bonds into which he had entered, to the fact that Mr Richards had gone for some six years without offending, to the fact that because he was a heavy consumer of cannabis, not all of the cannabis would have been sold, to the catastrophic effect of imprisonment upon the business venture which Mr Richards was establishing and finally, and most importantly, from the sentencing Judge's point of view, to the impact upon his partner and children of a sentence of imprisonment. It should also be noted that Mr Richards had spent five weeks in custody.

In my opinion, the sentence which the Judge imposed was clearly inadequate. There were clear commercial overtones in this case. The quantity and value of cannabis involved was substantial. In my opinion, the offence called for a sentence of four years' imprisonment. The fixation of an appropriate non-parole period is more difficult. There were encouraging signs that Mr Richards was minded to mend his ways, despite his poor history. But against the fact that he went for some six years without offending, has to be set the fact that his possession of the cannabis for the purpose of sale clearly indicated that he was about to embark upon a substantial criminal enterprise. In my opinion, a non-parole period of two years would have been appropriate.

It is also my opinion that the decision to suspend the sentence was inappropriate and wrong. In my opinion, it was wrong in point of principle. As I have already said in the course of these reasons, it is a sad fact that a term of imprisonment will often cause harm and result in considerable suffering for the dependants of the person imprisoned. There is nothing out of the ordinary in that, and that is not something which will usually justify the suspension of what would otherwise be an appropriate sentence of imprisonment. As I have already remarked in the course of these reasons, that view has been taken consistently in this Court and was recently restated in R v Adami [1989] SASC 1640; (1989) 51 SASR 229 at 233.

Quite apart from that, in my opinion, the fact that Mr Richards had on four previous occasions been given suspended sentences, and that on two of those occasions the offences were drug offences, argued compellingly against a suspended sentence, notwithstanding the period of time since his last offence. There is hardly any need to cite authority for the proposition that a person who has received the benefit of a suspended sentence on more than one occasion is unlikely to be given the same benefit yet again, but if authority is needed for that proposition I refer to R v Walker (1981) 27 SASR 315 at 319. Of course, one must consider the period of time which has elapsed since the last suspended sentence and the nature and circumstances of the offence which brings the person before the Courts again. In the present case the period during which Mr Richards has gone without offending is not insignificant, but I am influenced by the fact of four previous suspended sentences and by the seriousness of the present offence.

In relation to the decision to suspend, one also needs to bear in mind the seriousness of the present offence. As I have already remarked in these reasons, this Court has consistently said that suspension of a sentence of imprisonment is inappropriate in the case of the possession of cannabis for sale when that takes place against a background of substantial involvement in cannabis trading. In my opinion, that is the case here, in the sense that the quantity of cannabis indicated an intention to engage in substantial trading. The Court has, on a number of occasions, revoked orders for suspension made in such cases, despite the considerations which tell against doing so on an appeal by the Director of Public Prosecutions against sentence.

It follows that, in my opinion, the head sentence and non-parole period were manifestly inadequate. The decision to suspend was erroneous. In my opinion, the errors of the sentencing Judge are of sufficient significance to call for intervention by this Court. This is a case of manifest inadequacy, and to allow the sentence to stand would also result in manifest inconsistency between this sentence and other sentences reflecting an appropriate standard of punishment. In my opinion, leave to appeal may be granted consistently with what was said by the High Court in Everett v R (supra) at 300. In my opinion, intervention is appropriate also because the sentence is "so disproportionate to the seriousness of the crime as to shock the public conscience": R v Osenkowski (supra) at 213. Or, as I would put it, such a sentence for such an offence cannot, even when one considers the circumstances personal to the offender, be reconciled with the seriousness with which Parliament has indicated such offences are to be treated. In short, the Director of Public Prosecutions has discharged the onus of showing that this is a case in which leave should be granted. He has demonstrated inadequacy which constitutes error in principle.

It is now for this Court to fix an appropriate sentence. As I have already indicated, I would impose a sentence of four years' imprisonment and fix a non-parole period of two years. I would not make an order suspending the sentence. I have considered carefully whether it is appropriate to impose an immediate sentence of imprisonment upon this appeal by the Director of Public Prosecutions, but in my opinion principle and consistency with the previous decisions in which this Court has revoked orders for suspension, lead to the conclusion that an order for immediate imprisonment must be made.

Accordingly, I would grant leave to appeal against sentence; order that the appeal be allowed, set aside the sentence imposed in the District Court on 23 June 1995 and substitute for that sentence a sentence of four years' imprisonment, and fix a non-parole period of two years. That sentence and the non-parole period are to commence on the day on which the defendant is taken into custody pursuant to the warrant of commitment issued in respect of the sentence.

ROLE OF PROSECUTING COUNSEL 82. It is appropriate in the present case to refer to the fact that it is the function, and indeed the duty, of prosecuting counsel to bring to the attention of the sentencing Court any principles of sentencing which might reasonably be thought relevant to the case. The duty of the prosecutor to assist the Court to avoid error means, as well, that when this Court has determined a particular standard of punishment for an offence, prosecuting counsel should bring that fact to the attention of the sentencing Judge. I refer to R v Tait and Bartley (1979) 24 ALR 473 at 476-477, R v Wilton (1981) 28 SASR 362 at 363-364, R v Economedes (1990) 58 ACrimR 466 and R v Malvaso [1989] SASC 1363; (1989) 50 SASR 503 at 509.

In saying this I do not mean to imply that prosecuting counsel in the cases under appeal did not discharge that duty. I simply remind counsel of the desirability of doing this.

related to each individual case. Everett v R

At a glance

Court

Decision date

Before

Source

Judgment (101 paragraphs)

R v. DEAN MANGELSDORF; R v. DAVID PERRY; R v. SHANE RICHARDS Nos. SCCRM 95/229, SCCRM 95/246 and SCCRM 95/335 Judgment No. 5328 Number of pages - 18 Criminal law (1995) 66 SASR 60 [1995] SASC 5328 (10 November 1995)

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Cases Cited (17)