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[1999] FCA 1286
Federal Court of Australia
1989-12-20
Miles JJ, Dowsett JJ
Original judgment source is linked above.
THE COURT 1 This is an appeal by the Crown against sentences passed in the Supreme Court of the Australian Capital Territory. The respondent pleaded guilty to the following charges:- 1. Possession of a trafficable quantity of heroin for the purpose of sale on 24 September 1998. 2. Possession of a trafficable quantity of heroin for the purpose of sale on 27 September 1998. 3. Possession of a trafficable quantity of heroin for the purpose of sale on 29 September 1998. 4. Possession of a quantity of heroin on 8 October 1998. 2 Convictions were recorded in respect of each count and the following sentences imposed:-
· On count one, imprisonment for two years to be suspended upon the respondent entering into a recognizance in the sum of $2,000 to be of good behaviour for a period of three years and a treatment order pursuant to s 123 of the Drugs of Dependence Act 1989 (ACT) (the "Drugs Act"). · On count two, a treatment order. · On count three, the proceedings were adjourned for a period of six months. · On count four no penalty was imposed. 3 In respect of count one, the learned sentencing Judge took into account "the entire episode as outlined in the statement of facts", presumably a reference to the whole course of misconduct to which the respondent pleaded guilty. 4 At the end of the hearing, the Court indicated that it would dismiss the appeal other than in one respect and publish its reasons at a later stage. We now do so. 5 Treatment orders are provided for by s 123 of the Drugs Act. It is sufficient to say that s 123 permits a Judge, in certain circumstances, to make an order for treatment aimed at rehabilitation of an offender who is a drug addict. Such an order may be made only in certain circumstances and in connection with offences involving, or motivated by drug use or addiction. Where such an order is made, there is a limited range of other orders which may also be made, of which a suspended sentence is one. Although it is not clear from the Drugs Act, a treatment order (with or without any other permissible order) probably constitutes a final disposition of proceedings in connection with the offence in question. 6 The order on count three is what is known in the Australian Capital Territory (and perhaps in New South Wales) as a "Griffiths Bond". There is said to be a practice, justified by the decision of the High Court in Griffiths v The Queen (1976-1977) 137 CLR 293, by which a sentencing Judge may adjourn the sentencing process for some period, such as six months or a year, with a view to enabling the offender to use the time to demonstrate his or her rehabilitation. The offender may be required to provide a bond. The notice of appeal, as drawn, would be wide enough to include an appeal against the order of adjournment, but the appellant did not ask us to upset the Griffiths order. Apparently, there is an established view, based on the decision in Griffiths, that such an order may not be the subject of appeal. We would have thought that the statutory provisions establishing appeals to this Court might permit an appeal by leave, but the appellant did not seek such leave. We treat the order in connection with count three as unchallenged for present purposes. In addition, we point out that since Griffiths, various state and territory parliaments have intervened substantially in the sentencing process, sometimes limiting and sometimes expanding the available sentencing options. It may be that such legislation should be regarded as a code for sentencing, in which case there would be little room for a Griffiths order. 7 As to count four, this Court held in Jovanovic v The Queen [1999] FCA 1008 that following conviction for more than one offence, a sentence ought to be passed in respect of each conviction, even if it be only nominal, (eg to the rising of the Court). The Court relied upon the decisions of the Court of Criminal Appeal (England) in R v Webb (1953) 37 CrAppR 82 at 84-5 and R v Fry (1954) 38 CrAppR 157 at 158. The latter decision certainly supports the proposition in Jovanovic. The question had been similarly determined by this Court in R v Kelly (Federal Court, Morling, Pincus & Miles JJ, 20 December 1989, unreported), but a differently constituted Court took the opposite view in R v House (1991) 28 FCR 194 at 198-200, without citing any authority. We consider that the decision in Jovanovic, relying upon the decision in Fry, should be followed. That course offers certainty in the disposition of criminal charges, an objective which is desirable in the administration of the criminal law 8 The focus of this appeal was the overall adequacy of the sentences passed in respect of counts one, two and four. The appellant concedes the very serious hurdles faced by a prosecuting authority in appeals against sentence as evidenced by cases such as Everett v The Queen (1994) 181 CLR 295. Unless there is a demonstrable error in principle, such an appeal will fail. Of course, a manifestly inadequate sentence may demonstrate a miscarriage in the sentencing process. The appellant submits that these sentences are manifestly inadequate. It is appropriate therefore to summarize the facts as they were before the learned sentencing Judge. 9 The respondent was born on 15 June 1964 and was therefore 34 years of age at the time of the relevant offences. She has sole custody of two children, a son and a daughter aged, at the time of sentence, ten and nine years respectively. She is said to be a caring mother who receives some support from her parents. She served in the Australian Army from 1981 to 1988 but has had no other gainful employment. She commenced using heroin about three years prior to the offences as a result of urgings from a person who was either her boyfriend or a former boyfriend. As long ago as 1996, she sought assistance in overcoming her addiction and underwent treatment on numerous occasions between 1996 and 1998. The appellant accepts that she had made serious attempts at rehabilitation prior to her apprehension for the current offences. It is also accepted that in those circumstances, her prospects of rehabilitation should be seen as being reasonably good. She has no prior convictions. 10 As to the offences themselves, police investigations had disclosed persons travelling from Sydney to the Australian Capital Territory and Queanbeyan, two or three times each week, to deliver heroin for the purposes of distribution. On each delivery, a quantity of between 1.5 and 2 ounces of heroin was delivered, yielding about $10,000 per visit. Surveillance of the respondent commenced on 11 September 1998, or some time shortly thereafter, and concluded on 8 October 1998 with a raid. During this time the respondent was regularly in possession of trafficable amounts of heroin (ie over 2 gms). In particular, on 24 September 1998 she received a delivery. On 27 September she again received a delivery, in company with another person, Blaskovic. There was a further supply on 29 September. The same persons also supplied other dealers in the Canberra locality. Each of these dealers, including the respondent, would then supply heroin to other people, holding the proceeds and accounting for it to the suppliers. It is not clear whether the respondent dealt with one or more persons delivering heroin from Sydney. She appears to have had only one source, although heroin may have been delivered to her by different persons at different times. 11 On 8 October a search warrant was executed at the respondent's premises. At the time, one of the Sydney suppliers was seen in a car outside those premises. At some stage the respondent walked to the rear of her yard and threw something over a fence. A package containing 13.577 gms of substance, later analyzed as containing 9.925 gms of heroin, was subsequently found in a neighbour's yard. After apprehension, the respondent told the police that she had allowed her premises to be used as a collection point for heroin and cash proceeds of sale. She also permitted "cutting" and packaging of "weights" of heroin to be carried out there. She had previously been supplying heroin to other persons who came to her house. She understood that they supplied other persons. She said that after 29 September, she had withdrawn from active involvement in selling to others, limiting her activities to supplying close associates. 12 In evidence given before the learned sentencing Judge, she said that she had come into the operation to replace another person who had proved unsatisfactory. She proved herself to be a successful link in the chain. She was given a mobile telephone and a certain number of "halves" and "quarters" (references to amounts of heroin). Customers would telephone, and she would arrange to meet them to provide the heroin and presumably collect the money. She was provided with quantities of heroin for her own use as payment. She said she was given about 2 gms, wrapped up in foil, for two to three days. It is not entirely clear what this means. She had, on average, ten to fifteen customers. The proceeds would be collected from her by the suppliers. She received no part of them. 13 From May 1998 she was not comfortable about her involvement. When she returned to the methadone programme in August or September 1998, she told her suppliers that she wanted to withdraw from the operation. She hoped to be able to do so by Christmas. The suppliers were looking for a replacement for her, and she rationalized her continued involvement upon the basis that she would help until they found one. Eventually, Blaskovic was selected to take over, but he was a known drug dealer, and so he operated from the respondent's home because "my house was thought to be safe". She continued to receive heroin in payment for this involvement. She said that on 8 October, one of the suppliers asked her to look after a package for him. She knew it contained heroin. She assumed that he wished to avoid taking it back to Sydney. She was to hide it for him. 14 After arrest, she indicated her willingness to co-operate with police in connection with other offenders, notwithstanding her fear of repercussions which seems to have been reasonably based. The appellant accepts that her co-operation has led to other persons involved in the distribution chain being charged and pleading guilty. Some proceedings remain outstanding, possibly against a major supplier. His Honour said in the course of making the Griffiths order on count three:- I propose to adjourn the proceedings in relation to the third count for a period of six months and I propose to do that because, if contrary to my - well, two things occur, one is, if contrary to my expectation, Ms Irvine does not co-operate with the police as required, a sentence appropriate to that situation can be imposed in relation to that count. Further, if she does not comply with the provisions of the recognizance which I have referred to, or the provisions of the treatment order, then there will be an additional opportunity to sentence her in relation to that third count. 15 Other factors to be taken into account in sentencing are her timely plea of guilty and absence of commercial gain. 16 Pursuant to s 164(3)(b) of the Drugs Act, the maximum penalty for possession of a trafficable quantity of heroin for sale is a fine of $100,000 or imprisonment for 25 years or both. The appellant refers to the decision of this Court (Fox, Kelly and Ellicott JJ) in Jurkovic (1981) 6 ACrimR 215 at 220, where Fox J said:- Two factors seem uniformly to be regarded as important. One is the amount of the drug, in terms of pure heroin. The other is whether, supply being a purpose, the supply was to be for straight out commercial profit (the more serious case) or for financing the prisoner's own addiction; in the latter case part would doubtless be for his own use. In the last-mentioned type of case, five years' imprisonment is in general at or towards the top of the range, if the amount involved is small. 17 Some of the more recent cases referred to in argument by the appellant seem to support that view. In Phuc Huu Le (Supreme Court ACT, 11 July 1997) an offender charged with possession of 4.3 gms of "substance", 53 per cent of which was "strong heroin", was sentenced to imprisonment for five years with a non-parole period of two years. He was gainfully employed but was a drug-user. He was treated as "more than a street dealer". 18 In Massey (Federal Court, Gallop, Mathews & Madgwick JJ, 5 March 1999) the offender was in possession of 5.68 gms of "substance", 52 per cent of which was heroin. The Court found that it was partly for supply and partly for personal use. The offence was committed whilst he was on bail, and he had an extensive criminal record, although not for drug-related offences. He was sentenced to four years' imprisonment with a non-parole period of eighteen months. 19 In Nycil Le (Supreme Court ACT, 30 September 1998) the offender was found in possession of fourteen balloons containing 7 gms of "substance", 50 per cent of which was heroin. He was convicted by a jury and sentenced as a "user and dealer at so-called street level". He had prior convictions and was a drug user, but he was not "driven to trafficking … to finance an uncontrollable addiction". He was sentenced to imprisonment for a period of four years with a non-parole period of two years.
20 In Van Hieu Truong (Supreme Court ACT, 5 November 1998) the offender was in possession of 37.9 gms of "substance", 72.5 per cent of which was heroin. He had a prior conviction for supplying heroin. He pleaded guilty and offered co-operation. His partner was the mother of a four month old baby. He was sentenced to five years' imprisonment with a non-parole period of two-and-a-half years. It was said that in the absence of co-operation, the sentence would have been seven years with a non-parole period of three-and-a-half to four years. 21 Similarly, in Rickard (Supreme Court ACT, 22 February 1999) the offender was in possession of 5.327 gms of "substance", 50 per cent of which was heroin. He pleaded guilty. He had participated in a "small distribution arrangement", buying for $100 per quarter gram and selling for $120 with up to $400 profit on "a good day". He had prior convictions and was a user. He promised co-operation. He was sentenced to three-and-a-half years' imprisonment with a non-parole period of eighteen months. It was said that in the absence of co-operation, he would have been sentenced to six years' imprisonment with a two-and-a-half year non-parole period. 22 In West (Supreme Court ACT, 25 June 1999) the offender was in possession of 10.939 gms of "substance", of which 78 to 86 per cent was heroin. He was convicted by a jury. The Court found that part was for personal use. He had prior convictions. He was sentenced to five years' imprisonment with a non-parole period of two years. 23 The notes concerning these cases suggest that many of the offenders had prior convictions. It also seems that many of them were charged with only one offence, however, in view of the practice of dealing with multiple offences in different ways, including the use of Griffiths orders, this may not be so. Nonetheless, in general, it seems that the more recent sentences reflect a similar attitude to that adopted in Jurkovic. 24 If the current offences stood by themselves, and without having regard to the personal circumstances of the respondent and other special circumstances of this case, it may well be that a substantial jail sentence would be indicated. However the respondent is without previous convictions and has various other powerful considerations in her favour. Firstly, there is the fact that she is said to be a good candidate for rehabilitation. This view is based partially upon the fact that she had made concerted efforts to effect rehabilitation prior to being apprehended, that she was seeking to withdraw from the drug distribution chain and that she offered substantial co-operation to the police. These things all indicate an appropriate understanding of the seriousness of her previous misconduct and a desire to make amends for it. The willingness to assist the police has a further significance. It is, in our experience, relatively rare for drug offenders to offer such assistance. This is undoubtedly because of fear, such as that enunciated by the respondent in this case, that any such co-operation is likely to be visited with violence at the hands of those who remain in the drug distribution business. Thus the Court should, within limits, encourage those few offenders who are so remorseful as to accept the risk of repercussions. That is the case here. Further, the fact of her assistance means that she is likely to be more at risk of attack in the prison system than might otherwise be the case. 25 She is also a caring mother of two young children. Of course, she ought to have considered that before becoming involved in the drug trade. It should not be assumed that a person having responsibility for young children will generally avoid prison for that reason. However the interests of the children must be kept in mind, as must the interests of the community. Those latter interests will be better served by having the respondent available to care for her children than by separating her from them. 26 In the very special circumstances of this case, it was a proper exercise of the sentencing discretion to make orders which did not involve immediate imprisonment, notwithstanding the seriousness of the offences. The orders made are, themselves, onerous. They involve compliance with a regime of counselling and supervision and the continuing threat of imprisonment. Such rigours will not necessarily always be a substitute for actual imprisonment, but in this case, we consider that intervention would not contribute to the objective of uniformity in sentencing or to that of fostering public confidence in the criminal justice system because we do not consider the sentences to be manifestly inadequate. 27 For these reasons we dismiss the appeal in so far as it concerns counts one and two. As to count three, the Griffiths order, to the extent that any appeal against it was commenced by the notice of appeal, we also dismiss that appeal. As to count four, we have previously indicated that pursuant to the decision in Jovanovic, his Honour, in imposing no penalty, "(left) unfinished the task of sentencing the offender". Count four should be the subject of a
treatment order in terms similar to those imposed in respect of counts one and two.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate: Dated: 15 September 1999 Counsel for the Appellant: Mr R Refshauge
Solicitor for the Appellant: Director of Public Prosecutions
The Queen
Irvine