2. The applicant's conduct in the 2.5 years following his arrest and preceding his plea on 9 February 1996 was undoubtedly meritorious. The learned sentencing judge described it as "relevant" and as "an indication of remorse and a desire to lead a useful life". As such it was a factor which deserved to be given some weight. There is, however, no reason for supposing that his Honour did not give it any weight. On the contrary, the very fact that he said that "no great weight should be given to it" suggests that he gave some weight to it. But he was entitled to take the view that it was not deserving of "great weight" or "great mitigatory weight" and in the circumstances before him of an offender who, although having no prior convictions, had engaged for a substantial period of time in a commercial operation of this magnitude, whereby he had become a major supplier with a reliable market for the regular sale of large quantities of cannabis, his conduct after apprehension represented but a small factor when compared with the need to deter large dealings with major suppliers.

3. There are some cases where the conduct of offenders prior to sentencing is entitled to very considerable weight to such weight in fact that it overtakes the need for a custodial sentence. Thus in Bell (1981) 5 A Crim R 347, a solicitor who pleaded guilty to four counts of fraudulent disposal of trust funds used by him to prevent the collapse of certain investment arrangements, but subsequently replaced by him without loss to anyone, and who, in the lengthy delay before detection and prosecution, had started a new life in another State as a public servant in a position of trust and responsibility taking an active part in community affairs, was made the subject of a non-custodial sentence in lieu of the sentence of imprisonment imposed by the judge hearing his plea. In Smith (1982) 7 A Crim R 437, the offender had, in the five year period between his having committed seven crimes of obtaining a financial advantage by deception, returned to work and conducted himself admirably. The crimes were committed by him while trying to conduct a failing earth moving business and involved the passing of valueless cheques. A sentence of 2_ years' imprisonment, with an eighteen month non-parole period, was quashed and replaced with release on a good behaviour bond. Starke J at 441 - 442 said:

"The question of special deterrence I think is not of any great

weight or any weight at all in this case. The applicant is aged

forty-nine and has lived an entirely commendable life up till now.

I do not imagine that any sentence has to be passed on him with

the object of deterring him from doing the like again. The

question of general deterrence, of course, is always a matter of

consideration in a case of this nature. General deterrence

depends very largely on the nature of the crime. In some cases

the crime committed is so notorious; it is so prevalent and so

serious, a heavy sentence must be imposed from the point of view

of the general deterrence of other people who are minded to commit

similar crimes. Whilst I accept that general deterrence is a

matter for consideration, in all the circumstances of this case I

rather doubt that it will have much effect on other members of the

community who find themselves in these circumstances.

Two matters which the learned judge referred to and which, in my

judgment, are of essential importance are, firstly, the good

character of the applicant. He had reached mature years and

indeed middle age without ever falling foul of the law. He had,

the evidence reveals, lived an industrious life and in recent

years branched out on his own. He had raised a family. In my

opinion, in circumstances of this nature, a convicted person is

entitled to call in aid his good character and is entitled to have

the court give it the greatest weight. What weight it will have

depends, of course, on the character of the offence committed. In

some cases, like armed robberies and so on, the fact of good

character would have very little weight at all. In other cases,

such as this, where a man has lived an honest life and has found

himself in circumstances perhaps through no fault of his own and

fell to temptation, the situation is quite different."

4. In a third case, Duncan (1983) 47 ALR 746, the offender was convicted of fourteen counts of obtaining credit without disclosing his status as a bankrupt. Again, there was a lengthy delay in prosecution during which time his demonstrated rehabilitation, when balanced against the gravity of the wrongdoing, was such as not to require general deterrence to prevail over it.

5. In the circumstances of this case however, the applicant's wrongful conduct was particularly serious and the rehabilitation effected by him could not be said to be of significant weight. I am not persuaded that in imposing a term of four years' imprisonment, the learned sentencing judge failed to give any weight or the weight it deserved. I would refuse the application.

6. The grounds of the application for leave to appeal complain that the sentence of four years imprisonment for trafficking was manifestly excessive and that the learned sentencing judge failed to give due weight to the effect of the plea of guilty. I respectfully agree with what is said by Slicer J concerning those grounds. In particular I regard the sentence of four years imprisonment as not excessive. This case was one of large scale trafficking, involving a considerable amount of cannabis grown and processed by the applicant and then transported by him to his market in another State. He was looking to earn a gross sum totalling about $350,000. His crime extended over two years and if not detected he would have continued to traffic into a third year. In my view the sentence of four years imprisonment for his crime was justly deserved and was not excessive, notwithstanding the matters which were advanced on his behalf in mitigation.

7. There was however one statement made by the learned sentencing judge in the course of his comments on passing sentence, which upon reflection, I consider to have been erroneous. Accepting that the applicant's good conduct since his apprehension was relevant as indicating remorse and a desire to lead a useful life, his Honour expressed the view that no great mitigatory weight should be attached to it for otherwise accused persons generally would be encouraged to delay the final disposition of criminal charges for as long as possible. With the utmost of respect to his Honour I cannot accept such a view for it is contrary to the interest which the public has in criminals achieving rehabilitation. The attainment of genuine rehabilitation ought to be encouraged by courts and not down-graded, notwithstanding an understandable fear that some other criminals will be encouraged to pretend at rehabilitation. Each case falls to be assessed on the basis of its own individual circumstances and qualities.

8. Notwithstanding that erroneous view of the learned judge I nevertheless consider that the sentence of four years imprisonment for the applicant's crime was appropriate. He deserved to be dealt with as a major trafficker. The sentence had to be one which contained substantial general deterrence. An exemplary and severe sentence was demanded and the one imposed was appropriate to the case. I would therefore refuse the application.

9. The applicant seeks leave to appeal against the sentence of four years' imprisonment imposed upon his conviction for the crime of trafficking in a prohibited substance, cannabis, contrary to the Poisons Act 1971, s47(3)(b). The grounds of appeal are that the sentence was manifestly excessive and failed to properly reflect the effect of his plea of guilty.

10. The course of conduct giving rise to the conviction occurred between September 1991 and August 1993, and involved the cultivation, transportation and sale of large quantities of cannabis on a commercial basis. Although the applicant was a heavy user of the substance, the extent of the operation was designed for personal gain. In 1992 the sum of $20,000 was received following sale. In the following year the plantation yielded some 108 pounds which was anticipated to return a gross sum of $324,000. The applicant had received an amount of $69,500 at the time of apprehension during the course of distribution of portion of the crop. The presence of some 1,500 germinated seedlings and 3,500 pots on his premises shows that the commercial venture was, but for detection, to continue. The portion of the crop sold before apprehension was delivered to persons in Sydney. The operation was professional, ongoing and commercial.

11. The learned sentencing judge accepted that the offender had commenced his involvement because of pressing financial circumstances, was in all other respects of good character, and since arrest had been gainfully engaged in employment and voluntary community service.

12. The applicant was charged with the crime on 30 August 1993 and the sentencing hearing commenced on 9 February 1996. He had elected, as was his right, to contest committal proceedings, and indication of his plea of guilty was given only shortly before the sentencing hearing. When first intercepted he had lied to police causing them to set up a large scale surveillance and interception operation which proved futile. Following extensive enquiries the applicant made full admissions although they were in part responsive to matters put to him which the investigating officers had already discovered. Once the substance of the conduct had been admitted, details were freely provided by the offender. The admissions, together with the presence of two pounds of cannabis at the applicant's home and the large quantity of seedlings at a separate property owned by him, constituted a cogent case. The plea of guilty, as such, can be seen as an acceptance of the prosecution case and thus warranted little weight (R v Shannon (1979) 21 SASR 442, Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186). The applicant contended that the admissions had been obtained as a result of improper and coercive conduct on the part of the interviewing officers and that accordingly his plea constituted at least an abandonment of a prospect of acquittal. It is not necessary to consider the evidence which supports that contention since the learned sentencing judge paid regard to this basis of the plea as affording some mitigating effect. Yet it should be observed that the making of allegations by way of cross-examination during the course of committal proceedings ordinarily ought not permit an expectation that allowance be afforded the non-pursuit of the issue. If a person has a proper belief that the operation of law should, based on evidence, ensure acquittal, then the right to require the prosecution to prove its case should be maintained. To do otherwise distorts the process of both trial and sentencing. A sentencing tribunal is not an appropriate place for giving effect to the policy considerations discussed by the High Court in Cleland v R [1982] HCA 67; (1982) 151 CLR 1, nor should untested assertions or inferences of "defences foregone" be regarded as requiring acceptance. That there are constraints to the pragmatic rationale of acceptance of plea has been recognised in cases such as Pereira v R (1991) 57 A Crim R 46, Edwards v R (1993) 67 A Crim R 539 and Doyle v R (1994) 71 A Crim R 360. In the circumstances the learned sentencing judge took into account the entry of plea. He said:

"The accused has pleaded guilty although at a late stage. I

accept that he pleaded guilty notwithstanding some prospects of an

acquittal had he maintained his plea of not guilty and been

successful in having excluded confessional material and evidence

of the results of a search of his property which may have been

tainted by some illegal acts on the part of investigating

officers. However, on the base of what I have been told I do not

consider it likely that a trial judge would have exercised his

discretion to exclude so much of that material as to have given

rise to a reasonable prospect of an acquittal. In those

circumstances, whilst it is not appropriate to categorise the plea

of guilty as an acceptance of the inevitable, it is proper to view

it as being an acceptance of a likely result of a trial. I make

some allowance for the plea of guilty."

13. No specific error has been demonstrated. Allowance was made for the entry of the plea. The argument that the actual sentence imposed demonstrates that inadequate regard was had to the plea, is best considered in relation to the ground of appeal claiming that the sentence was manifestly excessive.

14. The applicant had an impressive record of employment, voluntary community service and had shown significant commitment to rid himself of the problems of substance abuse. He was entitled to be regarded as a person who had effected considerable rehabilitation. The learned sentencing judge had regard to conduct subsequent to arrest as an indication of remorse and a desire to lead a useful life but attached no "great weight" to it because:

"... to give this factor great mitigatory weight would provide an

inducement to accused persons to delay final disposition of a

criminal charge for as long as possible. The present matter has

been long delayed, for reasons which were not explained to me".

15. The view of the learned sentencing judge accords with the concern of Laycroft J of the Alberta Court of Appeal expressed in R v Burchnall (1982) 65 CCC 2d 490 at 505 when, in dealing with a case of post-arrest rehabilitation, he stated:

"There is, of course, one danger in giving this effect to delay in

bringing a case to its conclusion. The Court must be conscious

that delay is a frequent defence tactic for the precise purpose of

enabling that argument to be made in an otherwise unmeritorious

case. It is only where there is no evidence at all of that

manoeuvre that effect can be given to an argument based on delay".

16. I have some difficulty with the approach taken by the learned sentencing judge. If a person exercises a right to contest committal proceedings or to have witnesses examined, it could not be said that delay caused by such exercise ought be regarded as an attempt to delay disposition. If the delay was occasioned by flight or repetitious applications and adjournments sought and obtained by the accused person, then a reasonable inference of prevarication and obstruction could be drawn. In R v Jones (No 2) (1972) 56 Cr App R 413 the English Court of Appeal refused to receive evidence of conduct giving rise to flight since to do so would encourage breaches of bail. Similarly, evidence of post-flight rehabilitation would carry little, if any, weight. But delay caused by the complexity of investigation and preparation or inadequacy of court time would not entitle the offender to the benefit of an early plea, but conversely it ought not be used to his detriment by depriving him of the benefit of subsequent proven good conduct and application. That principle was recognised by the Alberta Court of Appeal in R v Thompson (1989) 50 CCC 3d 126 in which Cote JA said:

"Two legal principles come into play here. Rehabilitation of the

prisoner between the time of the offence and the sentencing is a

mitigating circumstance: see, for example, Ruby, Sentencing, 3rd

ed, pp 157 - 8. Had the accused only been charged in 1989 after

having been legally free, his reformation would doubtless merit a

significant reduction in sentence".

17. The position is less clear in Australia although the headnote of the report of the decision of the Queensland Court of Criminal Appeal in Bell v R (1981) 5 A Crim R 347 states:

"Where, prior to sentence, there has been a lengthy process of

rehabilitation and the evidence does not indicate a need to

protect society from the applicant, the punitive and deterrent

aspects of the sentencing process should not be allowed to prevail

so as to possibly destroy the results of that rehabilitation. ..."

18. It is difficult from a reading of the judgment to accept that the headnote accurately states those propositions as having been advanced by the court. Nevertheless its import was adopted with approval by the Court of Criminal Appeal of Western Australia in Duncan v R (1983) 47 ALR 746 at 749. I would attach greater weight to evidence of post-arrest rehabilitation. But that does not involve the conclusion that the sentence was manifestly excessive. The question is whether the sentence actually imposed is properly reflective of the cogent mitigating matters which include rehabilitation, plea and character. That question can be considered by reference to the penalty appropriate to a person involved in trafficking to an extent comparable to the applicant, but who does not possess the same mitigating characteristics or factors. The applicant was a principal to a large commercial operation. His involvement, although arising out of dependence, was for financial gain. He was not engaged in a single transaction. Cases of this scale and nature are not frequently before the courts in Tasmania. The infrequency of cases of this nature in Tasmania makes it difficult to discern an appropriate range of penalties (Dunford v R A10/1995, R v Michieletto A45/1995. both unreported, available on SCALE).

19. The Poisons Act 1971, s47(6) originally prescribed a maximum penalty of $4,000 and imprisonment for a period of ten years. Warner, Sentencing in Tasmania, at 409, refers to two penalties to which that provision applied, namely three years (Burton 9 May 1976, 16 pounds of cannabis) and four years (Whatley and Whatley 21 August 1980, substantial commercial crop). Since the amendment in 1984 bringing the range of penalties within the general provisions of the Criminal Code 1924, a sentence of imprisonment of three years and six months was imposed on an offender (with no relevant prior convictions) with respect to trafficking in some 45 kilograms of cannabis with an estimated value of between $300,000 and $350,000 (Newman 27 February 1992). In that case the offender, aged 33, possessed no previous convictions whilst the crime involved one transaction. In R v Michieletto (supra) a sentence of imprisonment of three years, heavily discounted because of co-operation, was imposed on a "middle manager" of a large commercial enterprise for which he was to receive a sum of between $50,000 and $60,000. Accepting a difference in the sentencing approach between Victoria and New South Wales (Drug Offences in Australia, Sentencing, vol 1, Rinaldi at 208) and choosing the more lenient approach, sentences of five to six years can be regarded as being "at the top of the range" (Sentencing, State and Federal Law in Victoria, Fox and Frieberg at 565). Despite difficulty in determining the range of penalties, it could not be said that a penalty range of five to seven years would, in the absence of mitigating matters, be inappropriate with respect to large scale commercial transactions involving cannabis. If that be the case it could not be said that a sentence of four years did not reflect the substantial mitigating factors advanced on behalf of the appellant and that by reason thereof was manifestly excessive.

20. During the course of argument counsel for the applicant indicated that if the Court was minded to determine that the approach by the learned sentencing judge to the issue of post-arrest rehabilitation constituted error, he would seek leave to amend the grounds of appeal accordingly. Given my conclusion with respect to this issue, it is not necessary, in my opinion, to amend the grounds. I am satisfied that the learned sentencing judge paid some regard to post-arrest rehabilitation and that the totality of the sentence imposed is not reflective of error.

21. I would grant leave to appeal but dismiss the appeal.