REASONS FOR JUDGMENT
MADGWICK J:
15 I have had the advantage of reading the reasons, in draft, of Dowsett J. While there is much in his Honour's reasons with which I agree, there are crucial matters as to which I do not and my own conclusion as to the proper fate of the appeal regrettably differs from that of his Honour.
16 The facts of the offences as we ought to take them to be are as set out by Dowsett J.
17 From causes that are not apparent, the sentencing judge did not give reasons for the course that he adopted in sentencing the respondent. It may be that he acceded, in substance, to some reasoned submission made by counsel for the defence and presumed that his acceptance of the reasons for the submission would be apparent from the result. In any case, where a citizen's liberty is at stake on a Crown appeal and there are no reasons, it behoves us to consider the matter by assuming that the primary judge took the view most favourable to the respondent that would have been reasonably open.
The applicant's background and the prospects of his rehabilitation
18 It is true that the Probation and Parole Officer who assessed the respondent took a somewhat pessimistic view of the applicant's "long term commitment to change" and that such a view appeared amply justified by a consideration of his past. However, there was other material before the primary judge. In the first place, a Treatment Assessment Panel, presumably expert, established under the Drugs of Dependence Act 1989 (ACT), assessed the respondent as being a suitable subject for a treatment order to be issued under s 123 of that Act. The panel considered that a 24 month order, initially involving community counselling and subject to monthly review, would be appropriate. Secondly, a governmental drug counsellor, Ms Knight, wrote:
"Mr Blaskovic has been a client of the Alcohol and Drug Program on a number of different occasions over the past few years. He most recently resumed contact when he was assessed for the Treatment Referral Panel on the 29 March 1999. Since that date he has attended for counselling on two separate occasions.
Mr [Blaskovic] states that he has found counselling helpful in the past and currently needs someone to support him through his mother's terminal illness. He states that his resumption of heroin use was directly related to the grief he experienced when he learnt of his mother's brain tumour last year. He says he feels that his previous problems with drug abuse may have contributed to his mother's illness by causing her a lot of worry. Because he feels he is in some way responsible he is experiencing considerable guilt.
…
Mr Blaskovic has commenced naltrexone treatment.
I feel that Mr Blaskovic is very committed to remaining abstinent from heroin this time and that he will remain in counselling. He wants to be able to assist his mother as much as possible through her illness and also to be a supportive and responsible father and partner.
I would like to see Mr Blaskovic given the opportunity to benefit from the naltrexone treatment which would not be available if he is required to attend a rehabilitation centre."
Thirdly, his de facto wife, whose general attitude was that "a crime can't go unpunished", wrote that the respondent,
"has made some very positive moves towards cleaning up his life (after he was remanded in custody last October). He has stayed away from the drug scene and has [remained] drug free. The naltrexone program has been a new lease on life. Over the past few months I have watched my partner regain his self esteem, his passion for life and in general a [healthier] well being.
…
In the past few months he has started rebuilding a much closer relationship with his kids and I feel that if he is taken away from his family now after months of doing so well that it could have a [devastating] effect on all concerned. [The respondent's] mother has recently been told she only has six months. The [prospects] of Sinish being locked up for the remaining months of her life are causing her stress."
Fourthly, the Probation Officer conceded in cross-examination that the respondent was "capable of making gains in his life" and was "able to work normally". It also appeared from her evidence that fatal consequences can result if a person uses both the therapeutic drug naltrexone and heroin. Fifthly, there was ample evidence that the respondent's mother was dying of cancer and was severely depressed.
19 Finally, from the respondent's own evidence the sentencing judge would have been entitled to accept that:
· The respondent had a broad range of skills and considerable experience in the building trades;
· A job was available to him which he had not taken up only because his remand conditions prevented him from travelling outside the ACT;
· He had a credible work history (and a somewhat better one than is often seen in drug addicts in their early thirties);
· He had not been "in gaol" before. As is well-known, the Belconnen Remand Centre, in which the respondent had been incarcerated for 2 months, provides a more benign environment than, regrettably, do the gaols of NSW, to which the respondent would be sent;
· He committed the offences under some pressure from those higher in the distribution chain, to whom he owed money, to repay it;
· He sold to an already established clientele and did not enlarge the number of heroin users;
· He blamed himself for causing his mother's fatal illness, which he believed to be stress-related, by causing her stress;
· It had been his own initiative to take steps to have himself placed on the naltrexone program;
· He believed that if naltrexone were taken in conjunction with heroin, it would be almost certain to kill him;
· He was more motivated than in the past to quit heroin use because of the circumstances surrounding his mother's imminent death and the needs of his own family.
20 Thus there was material from which the sentencing judge could have concluded that the respondent, despite his unfortunate history of heroin use had both reached a stage in his life when a particular opportunity for therapeutic intervention had presented itself and had a good prospect of being rehabilitated. Apart from his Honour's advantages of seeing and hearing the respondent, such conclusions would appear surprising, but a case demonstrating the "palpable misuse" of such advantages is not, in my opinion, made out. An inference that so senior a judicial officer as the learned sentencing judge gave way to mere credulity is not lightly to be drawn. The respondent is entitled to have us conclude that he had made a powerful impression on his Honour. I infer therefore that his Honour did draw such conclusions.
21 Upon the assumption that his Honour formed some such favourable view about the appellant's rehabilitative prospects, in my view there are two bases for concluding that the appeal should not succeed. The first of these grounds concerns the legitimacy of the sentencing judge's apparent approach to rehabilitation in the context of a drug-addicted drug-dealer. The second relates to the degree of restraint that is appropriate in appellate proceedings.
The relevance of drug addiction in sentencing
22 In their approach to sentencing, the courts attempt to reconcile a number of social values that are sometimes in conflict. There is, for example, virtually universal condemnation of those who profit from the sale of illegal and addictive drugs. There is a general, though perhaps less universal, desire that whatever can reasonably be done to help addicts overcome their addiction should be done. It is not generally recognised however, in my experience that many drug-dealers, especially at the retail end of drug distribution systems, are, as Dowsett J points out, themselves drug addicts and motivated by their addiction to engage in drug dealing.
23 The law recognises the generally, though not universally, accepted view that, unless insane, people are to be treated for legal purposes as if morally responsible for their choices. Thus the development of an addiction is, in most cases, seen as the result of an initial choice to use illegal drugs generally known (and therefore presumed to be known by the addict) to be seriously addictive, and at least as a series of continuing choices not to take the admittedly hard steps necessary to overcome the addiction. There is no social consensus as to whether addiction, as a motivating factor for a crime, should be seen, in principle, as a mitigating factor in sentencing, let alone as to the degree of importance that should be attached to such factor. The courts also have not spoken with one voice on this matter.
24 The better view, in my opinion, and one which appears to be gaining increasing respect, is that attention needs to be paid to all the circumstances of the initial choice to use the drug until addiction developed and the continuing choices not to quit, or to recommence, drug use. Those circumstances will include age, any disadvantage in emotional or intellectual development, any intellectual impairment, any significantly deprived cultural background for which the offender was not responsible and so on; in short the sorts of matters which courts daily regard as directly and appropriately mitigating, to a greater or lesser degree, the severity of a sentence. The importance of "individualised justice" was emphasised by Wood CJ at CL and Simpson J in R v Henry [1999] NSW CCA 111. Simpson J said, at paras 337, 340 and 341, that:
"Drug addicts do not come to their addiction from a social or environmental vacuum. This court should not close its eyes to the multifarious circumstances of disadvantage and deprivation that frequently precede and precipitate a descent into illegal drug use. I do not suggest for a moment that all drug users fall into this category. It is because some do and some do not that I believe rigid rules about the impact on sentencing of drug dependency on sentencing cannot be laid down.
…
Where great social difficulties, poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses upon drug offenders, causing or reinforcing their resort to drugs, then it is appropriate for this court to give … recognition to those antecedent circumstances.
A sentencing judge always has a delicate balancing task to perform, taking into account the demands of the community for retribution, deterrence both general and specific, and the interests of the same community in the rehabilitation of an offender. The exercise may call for an examination of the circumstances that led the offender to drug use, addiction and crime. All the circumstances that precipitate the use of drugs are relevant to the evaluation of moral culpability that is essential to the sentencing process."
25 In my opinion, the proper reconciliation of these competing legal values, and the social values they reflect, can only be partial. It may be formulated as follows:
· The relative seriousness of the generic crime of drug-dealing is to be judged by the maximum penalty. In this, I agree with Dowsett J. However, it is not to be forgotten that the maximum sentence is to be taken as intended only for the worst classes of cases.
· In particular, drug-dealing offences are not especially apt to be regarded as mitigated because drug-dealers, even in the case of the smallest dealers, are also addicts. In this too, I agree with Dowsett J.
· However, drug supply offences are not immune from potential mitigation by reference to the drug addiction of the offender. They are as capable of such mitigation as any other equally serious offence.
· Whether mitigation is appropriate on account of the addiction, and if so to what extent it should operate, ought to be determined having regard to the kind of approach outlined in para 24 above.
The relevance of rehabilitation in sentencing
26 Dealing more specifically with the issue of when rehabilitation may be the principal determinative factor in sentencing, conflicts with other values also arise. While there is no unanimity of social opinion, there is probably a balance in favour of rehabilitation being a preferred option, both as a matter of morality and of likely efficacy. This is increasingly reflected in the decisions of the courts: see for example R v Hebditch [1999] FCA 1087 where the members of a Full Court of the this Court approved a recent observation by Sir Anthony Mason:
"I am not alone in thinking that effort put into rehabilitation, rather than retribution and deterrence, is more likely to be cost effective and lead to a better world."
An offender who is a drug addict is not, on account of the addiction, either especially entitled to have, or disentitled from having, rehabilitation given pre-eminence in the sentencing process. There are other sentencing values than rehabilitation. In relation to drug-selling, these especially include the denunciation of the crime on behalf of the community, and general and individual deterrence. However, in the case of confirmed drug addicts, the influence of deterrence is problematic. One can at least say that in no case should predominance be given to rehabilitation without consideration of other sentencing values. In some cases, the sentencing objective of rehabilitation ought to be given predominance: without that, there may be no rehabilitation of the particular offender, and that potential loss may outweigh the significance of other sentencing objectives.
27 It must be recognised also that, whenever a sentencing judicial officer provides for an opportunity of rehabilitation for a serious offender rather than imprisoning the offender, there is an element of risk involved. Attempts at rehabilitation often fail and sometimes do so with disastrous consequences for other people and the offender. The question is whether it is worth taking that risk. This involves prediction about an offender's future behaviour. Few things are more difficult. Accordingly, it must be conceded that the decision, on behalf of the community, to undertake that risk is, inescapably, a highly subjective one. Such decisions usually depend crucially on the sentencer's own intuition and experience. It must be said also, however, that in reality such decisions cannot fail to be influenced, at least to some degree, by the sentencing judge's own values: as in the community generally, some judges tend more readily than others to place faith in the prospects of a offender's rehabilitative values. The community appears to wish that the composition of the judiciary will more or less reflect its own diversity of values. If there is no legitimate scope for judges to give effect to their own values, there is little point in the desired diversity. Equally, however, mere idiosyncrasy, unrestrained by broad principles, is indefensible. For those to whom this appears as a charter for inconsistent sentencing decisions, it is worth pointing out that the High Court has recently said in Lowndes v R (1999) 163 ALR 483 at para [15]:
"Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice." (Emphasis supplied).
28 Further, alternatives to reposing a considerable discretion in sentencers have problems of their own. Compulsory minimum sentences inevitably throw up cases of unwarranted hardship. "Grid" systems can crush individuals on their crossbars. A consequence is that, where such a decision has been made (or declined), it is particularly appropriate to apply the well-known rules against appellate interference with discretionary judgments.
29 In any case, the risks and subjectivity do not tend only one way. There are risks in not according an offender a chance of rehabilitation where there is some reason to think it might be effective. What might be the particular offender's best chance of rehabilitation may be forever lost. Indeed, incarceration may confirm, aggravate or magnify an offender's criminal tendencies, though this is not a universal phenomenon. In relation to crime substantially motivated by drug addition, the prospects of a lasting cure being effected in gaol are not ordinarily high, as Dowsett J points out.
30 In any case, a decision to structure a sentence so as to favour the provision of rehabilitation over incarceration must be defensible, in the sense that it will at least not "outrage the public conscience". (By that, I mean of course the rational conscience of the reasonable public, and not of a mob, or of the yellow press or, perhaps even more to the point in current times, of those who peddle the values of the yellow press in the electronic media of communication). The public, in that sense, does reasonably expect that, in general, serious crimes will be seriously punished. Too frequent resort to rehabilitation as the determinative element in sentencing for serious crimes will undermine public confidence (again, in the same sense of the public) in the courts and the law. Some judicial restraint, absent legislative elevation of rehabilitation to a position of pre-eminence among sentencing values, is necessary.
31 In relation to drug-dealing, a practical reflection of these considerations would be this:
· Where, making due allowance for the difficulties of prediction, the prospects of rehabilitation are poor, the sentencing judge can more readily give greater weight to denunciation, on behalf of the community, of drug-dealing and, where it is a realistic consideration, individual, as well as general deterrence.
· Where, not forgetting that many claims by and on behalf of drug offenders need a grain of salt for their assessment, the prospects of rehabilitation appear good and particularly where some special opportunity presents itself, it is not necessarily an error of principle to structure a sentence, or the sentencing process, so as to provide an opportunity for rehabilitation.
· Notwithstanding good prospects of rehabilitation, other sentencing objectives are not to be overlooked. There will, of course, be cases, for example, in which the drug-dealing has been on such a scale or at such an organisational level, or perhaps for other reasons, that to give controlling weight to the desirability of rehabilitation is simply inappropriate.
· It is generally possible to provide the opportunity for rehabilitation on pain of a prompt reconsideration of imposition of the sentence that would have been appropriate had the rehabilitative process not been afforded the offender. The provision of the opportunity should, in general, be made conditional upon such reconsideration if there is not an encouraging response to the intended rehabilitation.
· It is to be recognised that rehabilitation out of drug dependency may be a long and a rocky road. To resort to imprisonment too readily, upon such reconsideration, for less than a perfect response to the therapy offered, may destroy what, viewed more broadly, is a considerable achievement and one which justifies the faith placed in the offender by the sentencing judge. It is for that reason that I proposed, as a general rule, the imposition of a condition that would require prompt reconsideration of the need for actual imprisonment rather than automatic imprisonment.
· Where the prospects of rehabilitation are what might be called middling, the case will be determined like such cases in relation to other types of offences, without special regard to the particular question of rehabilitation. General questions of rehabilitation will remain relevant. Thus, for example, the younger and less entrenched in crime the offender, the greater is the scope for rational hope that the "clanging of the prison gates" itself may provoke a determination to change. In such a case, as in the case of a person of any age facing his or her first full-time gaol sentence, and recognising the difficulty of predicting future behaviour, it may be appropriate to build in maximum flexibility, in the event that the offender's rehabilitative efforts and success should exceed presently rational predictions of them. Mathews J and I applied such an approach in Massey v R [1999] FCA 257.
32 I should add that, to the extent that judges do invoke rehabilitative processes, they are entitled to do so in the reasonable expectation that appropriate measures will be taken, and appropriate resources furnished, to enable the courts and/or any other appropriate bodies such as parole boards to deal promptly and effectively, as well as reasonably compassionately, with apparent breaches of conditions set by the sentencer.
The comparative seriousness of this case
33 Before testing what the primary judge did against the foregoing, it is necessary to express my view of the comparative seriousness of the respondent's offences. There are drug dealers at many levels. At the lowest level of distribution there are, for example, established addicts who buy drugs to share the same, without any profit or other benefit to themselves from the re-supply, with other established addicts. Just slightly more serious are the addicts, who supply other addicts or established users with small "deals" but who finance their own addiction from the re-supply transaction. Such people normally do not fall for punishment within the "trafficable quantity" provisions contravened by the respondent and which assume that at least 2 grams of heroin are involved. Nevertheless, within the trafficable quantity range, the least serious class of case sometimes involves such a one-off supply.
34 The respondent's offences stand above, but not greatly above, that level. The satisfaction of his addictive needs, it may be inferred, was one of his objects but it was something less than the entire and immediate object of his dealing, which included to obtain enough money to repay a debt to those who had supplied him with drugs for his personal use. Further, he had not limited his activity to a single occasion and had in mind continuing it for some considerable, though not an indefinite, period. But he had no lengthy history of drug-dealing. Above the level of the respondent, there might be a varying number of levels and qualities of involvement in the trade of heroin. Several of these might fall within the "trafficable quantity" range of charges. It would not be right, in my opinion, to view the respondent as being any higher than towards the lower end of the lower to middle range of offences of the kind in question.
35 Earlier cases, such as Jurkovic v R (1981) 6 ACrimR 215, that have placed emphasis on the quantity of the drug in possession have done so in an effort to gauge the comparative seriousness of the offence. If other information is lacking, the quantity of the drug may be the only indication of this. If the quantity is comparatively large and at odds with a proffered explanation, it may be a more reliable indicator of what was involved than the explanation. But where the quantities are, as here, relatively small within the trafficable quantity category, they may be less useful. A dealer on the approximate scale of the respondent might, for example, be supplied thrice weekly with five grams. A day before re-supply to the dealer, the quantity in the dealer's possession might be barely over the two grams necessary to establish the offence as within the subject sentencing range. But the scale of dealing remains the same. It is the estimate of the comparative degree of seriousness that is important. It is not every case that calls for close attention to be paid to the quantity and, in my opinion, from the facts testified to by the appellant and accepted by the Crown, this case is not one of them.
36 Further, the principal and real matter relevant to mitigation was the appellant's plea of guilty. Notwithstanding the strength of the case against him, it is the policy of the law to encourage the guilty to plead guilty. It is both obvious and well-recognised that unless there is a significant discount in sentence for that factor, that policy will not be vindicated.
No error by the primary judge
37 I have explained what I think must be understood to have been his Honour's reasoning processes. The questions are whether his Honour was justified in regarding this as a case to accord rehabilitation an unusual degree of weight and whether he erred in the way he gave effect to such a view.
38 Despite the respondent's history, his Honour was, in my opinion, entitled to view his prospects for rehabilitation as sufficiently good to give him the chance to undergo it in lieu of immediate imprisonment. Of significance, from the materials before his Honour, were the facts that: the respondent had been off heroin for some months; he was apparently particularly motivated to overcome his addiction by the circumstances of his mother's distressing and terminal illness; and, on the evidence, the naltrexone method both evidenced his degree of motivation and held out real hope. There was material before his Honour which could justify a decision not to invoke the more stringent forms of rehabilitative therapy.
39 Precisely why his Honour did not sentence on two of the counts and adjourned further proceedings was not made clear and cannot be safely inferred. An appeal by leave may possibly lie to this Court against such an adjournment except for good and cogent reason. No application for leave is before us.
40 What is clear, however, is that: (a) the respondent had suffered two months loss of his liberty on account of his crimes, when bail was refused to him. That period must be counted as the equivalent of two months' imprisonment; (b) a suspended sentence of two years' imprisonment is to be treated as itself having some significant degree of deterrent and denunciatory effect. Of failure to recognise this, Bray CJ said in Elliott v Harris (No 2) (1976) 13 SASR 516 at 527, that:
"It reveals an entirely mistaken and wrong-headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment."
41 Accordingly, his Honour's sentence should be judged as one which (i) involved imprisonment for two months, (ii) afforded the respondent an opportunity for rehabilitation, but (iii) accompanied that opportunity with a plain statement to the respondent, would-be drug dealers and the community that, given other than satisfactory progress with the rehabilitation, there would be immediate liability to actual imprisonment for up to two years.
42 In my opinion, it cannot be said that this was beyond the bounds of a sound exercise of the sentencing discretion.
43 Perhaps I need to add that reference to other cases is only of limited use. That is particularly so when there is only, as in the case of the ACT, a small number of instances of the particular type of offence. A permissible range is necessarily a broad one. Facts and their nuances are infinitely variable, as are individual judges' reactions to them. So much was recognised in Chung Thi Le v R [1997] FCA 1286 in which Foster, von Doussa and Madgwick JJ said:
"We do not read the majority judgments [in Suen] as purporting to lay down as discrete principles of sentencing that a large quantity or a high level of purity are determinative of a requirement that very severe sentencing be undertaken, although of course such factors will very often be of importance as aggravating a drug-dealing case.
Nor do we think that the majority [in that case] were essaying the task, historically thankless, of attempting to lay down a tariff of, say, 10 years as a head sentence whenever a large quantity of a drug such as heroin is found in the possession of somebody close to the ultimate organisers of the supply of heroin into the ACT. As will emerge, we think that in the circumstances of the present case 10 years is an appropriate head sentence. But by that judgment we intend to bind no other sentencing judge in any other case. Our decision may or may not be useful in other cases as part of a broad pattern of sentencing to which other sentencers will usually have regard. While it is proper that sentencing judges value consistency highly, sentencing is a discretionary exercise and the available range of a sound discretion will, inescapably, often be wide." (Emphasis in the original)
Appellate restraint necessary
44 The alternative basis for our not interfering with the decision of the sentencing judge is, in my opinion, appellate restraint in Crown appeals against sentence. As Brennan, Deane, Dawson and Gaudron JJ said in Everett & Phillips v R (1994) 181 CLR 295 at 305, "deep-rooted notions of fairness which underlie the common law principle against double jeopardly" require that leave to the Crown to appeal against sentence should only be granted "in the rare and exceptional case". When leave is granted, the influence of those notions is not exhausted: it comes very hard on an offender to have a sentence increased on appeal, particularly when the result would be to substitute imprisonment for a disposition falling short of an immediate liability to loss of liberty. If this be, contrary to my view, a case in which this Court should re-sentence the respondent, I would consider that appropriate sentences at first instance would total three years' imprisonment with a non-parole period of one year (in each of which would be counted the two months' loss of liberty while bail refused). I could not say that head sentences amounting to two years with a non-parole period of six months (again including the two months on remand) were so low as to be outside a permissible range. I would consider a two year head sentence and a two month non-parole period too low, but I would not in such a case interfere on a Crown appeal. Appellate restraint would mean that, re-sentencing an appeal, I would need to give a significant reduction in the sentence of three years with a one year non-parole period that I would think ought to have been awarded at first instance. The difference between the resultant non-parole period and the two months served by the appellant would not be great enough to justify interference. So to do would be not much more than tinkering.
Addendum
45 I should not leave this matter without saying something which, though obvious enough, seems to me to be important and worth saying. In the light of the evidence in this case (and that of Ms Irvine), it is, on the face of things and with unfeigned respect for those involved, somewhat surprising that, as Dowsett J has noted, a wholesale dealer who was supplying both the respondent and Ms Irvine, should be at large pending finalisation of his sentence. Further, Ms Irvine provided information to the police which suggested that the respondent was a well-known drug dealer before he began receiving heroin from her. We have, of course, been required to disregard that information in the consideration of Mr Blaskovic's case, because it was not in evidence before us. Neither, however, was there any apparent exploration of that issue at first instance. Ms Irvine, Mr Blaskovic and their supplier were each dealt with by different judges. It is inescapable that, in a small and busy court such as the Supreme Court, it will not always be possible to ensure that related matters are dealt with by the one judge, although of course that is highly desirable. In such a case it is essential that the Director of Public Prosecutions have sufficient resources to be able to assign a small team in his office to such cases, in order to ensure that there is a unified source of knowledge of the cases at prosecutorial, as well as at the police, level. Without this, there is a risk that the Court will not receive proper assistance in its efforts to achieve the reasonable general consistency in dealing with such matters that it would wish to achieve and which the community desires.
Disposition
46 In my opinion, the appeal ought to be dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick