Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Trafficking in a controlled substance - Guarding and concealing methylamphetamine and morphine in the belief that another intended to sell the drugs - Appellant addicted to methylamphetamine - Benefit from conduct limited to cheaper drug and ready access - Sentence of three years' imprisonment with one year suspended manifestly excessive.

Judgment Number: [2018] TASCCA 4

1. Sentence of three years' imprisonment with one year thereof suspended, and non-parole period of two years, set aside.

1. Appellant sentenced to 15 months' imprisonment with effect from 9 January 2018, the execution of nine months of which is suspended on condition that he commit no offence punishable by imprisonment for a period of two years.

1. This is an appeal against sentence. The appellant pleaded guilty before Slicer AJ to one count of trafficking in a controlled substance, namely methylamphetamine and morphine. On 10 November 2017, the appellant was sentenced to three years' imprisonment to commence on 23 October 2017, the execution of 12 months of which was suspended on condition that for a period of three years following his release from prison he was to commit no crime or offence involving:
   • violence to the person;
   • any commercial act or dealing in a controlled substance as defined by the Misuse of Drugs Act 2001;
   • the possession or use of any firearm as defined by the Firearms Act 1996.
2. It was ordered that the appellant not be eligible for parole until he had served two years. It can at once be seen that his eligibility for parole arose on the same day on which he was entitled to be released after the expiration of the operative part of the sentence.
3. The sole ground of appeal is that the sentence was manifestly excessive in all of the circumstances. In short, that requires the appellant to demonstrate that the sentence was unreasonable or plainly unjust; the essential question being whether the sentence was outside the range of sentences reasonably available in the exercise of a sound discretionary judgment: Director of Public Prosecutions v Pearce [2015] TASCCA 1 at [8]- [9]; TGW v Tasmania [2017] TASCCA 10 at [31].

1. The following is the Crown statement of facts as put to the sentencing judge:

"On 21 August 2013 at about 11:00 am police officers from Northern Drug Investigation Services went to the accused's home at 26 Renfern Street, Waverley with a warrant to search for drugs.

The accused was home, shown the search warrant and asked if there was anything he would like to produce. The accused said there may be a bong and mix located in the spare room, police then searched the home. Police found the following:

A camouflage coloured backpack hanging on the inside of the main bedroom door. In the backpack were a knife with sheath, a set of nunchucks, boxes of ammunition, a handwritten tick sheet, empty firearm magazines, a Commonwealth Bank card in the name of Matthew Upston, a replica revolver and a Master portable safe and a Nike bumbag. The portable safe was opened and found to contain 14.2 grams of morphine. Inside the Nike bumbag were two quantities of small snaplock bags and three quantities of methylamphetamine with a total weight of 19.6 grams. They were made up of 13.6 grams, 2 grams and 4 grams. Also in the main bedroom was two thousand five hundred dollars in cash, made up of fifty and one hundred dollar notes in a white rubbish bin beside the bed. In a spare room were two glass smoking devices, one plastic smoking device and a Norinoc [sic Norinco] 7.62 millimetre semi-automatic rifle in a gun bag.

In a spare bedroom were a handwritten tick list in a Boags box on a wardrobe shelf, two quantities of methylamphetamine in a wooden box on the floor with a total weight of 5 grams. They're made up of a 1.5 gram lot and a 3.5 gram lot, and a set of green digital scales.

Police also found a number of CCTV cameras in the house and on the floor of a shed at the rear of the home. There was a total of twelve cameras. A number of the cameras related to offence reports made to police of cameras being stolen.

At the end of the search police returned to Launceston Police Station with the accused. Once back at the station the accused participated in a video recorded interview. In the interview he told police his current address is 26 Renfern Street, Waverley. The two glass smoking pipes on the coffee table in the spare bedroom were his although he had possibly not used them. He had no idea who the two quantities of methylamphetamine in the wooden box in the spare bedroom belonged to, it had been left at his house. The tick list from the Boags box found in the spare bedroom looked like a tick list, although he had no idea what it related to. The set of green scales in the spare bedroom were not his and he does not know who they belong to. The cash in the bin in his bedroom was his, he got it from his mum. The plastic bong in the spare bedroom was possibly his. The camo backpack that was hanging on the door handle in the main bedroom belonged to him, the last time he used it was a long time ago. He does not know whose the safe was that was found in his backpack, nor the combination for it, nor what was inside it. The ammunition in his backpack was not his and he doesn't know who it belongs to. The list from the backpack is obviously a tick list. He did not write any of it, it is not his handwriting. The Commonwealth Bank card in the backpack is his, he last used it over twelve months ago. The revolver in the backpack is not his and he has not seen it before. He has no idea where it came from nor how it came to be in his bag. The bumbag is not his but he has possibly seen it before. The three quantities of powder in the bumbag are ice. They were not his and he had no idea how they came to be in his bag. The empty snaplock bags are not his and he has no idea who they might belong to. He could not give an explanation why he had the drugs in his house. The drugs were not to sell and he had purchased the majority of the cameras from Jaycar and in relation to the rest would like to think they were not stolen."

1. The trafficking charge related to a total of 24.6 grams of methylamphetamine and 14.2 grams of morphine. The Crown did not dispute that the appellant was not the owner. Par (d) of the definition of "traffic" in s 3(1) of the Misuse of Drugs Act provides that "traffic" includes to "guard or conceal the substance with the intention of selling it or in the belief that another person intends to sell it". It was common ground that the appellant's crime of trafficking was committed by guarding or concealing the controlled substances at his home with the belief that another person intended to sell them.
2. In s 3(1), the definition of "conceal" extends to (among other things) concealing or disguising the location of something or the identity of its owner. On that basis, counsel for the respondent asserted to this Court that the appellant's criminal conduct extended to the police interview during which he failed to reveal the true owner of the substances. The Crown did not make this assertion or raise the issue before the sentencing judge. In my view it is far too late to now assert an additional act of trafficking, particularly the one suggested. A number of difficulties arise, not the least of which is notice. Counsel for the respondent further submitted, apparently as an alternative, that it was an aggravating factor that the appellant had impeded the police investigation about who was responsible for the movement of the drugs. However, such conduct, even extending to lying to police, does not amount to an aggravating factor: Neill Fraser v Tasmania [2012] TASCCA 2 at [213].

1. The appellant was nearly 28 years old at the time of the offence. His recorded history of offending commenced in October 2003. Much of it consists of traffic offences. The only thing of any real significance before 2015 is a conviction for three related firearms offences in August 2005. On 22 October 2015, in the Magistrates Court, for a number of offences relating to driving, firearms, dishonesty and drugs committed in the period 14 August 2013 to 22 October 2015, the appellant was sentenced to 12 months' imprisonment the execution of which was wholly suspended on conditions for a period of two years. As can be seen, the conduct both pre-dated and post-dated the crime of trafficking, but it mostly pre-dated it. Included in that range of offences were ones charged after a police search of the appellant's home on 14 August 2013. One of the offences was selling a controlled drug on that day.
2. Further, on 22 January 2016 the appellant was sentenced by a magistrate to six months' imprisonment to commence on 12 January 2016, the execution of three months of which was suspended on conditions for 18 months. The offences that were the subject of those proceedings included a number of drug and firearm matters, the former being possessing a controlled drug, possessing a controlled plant, and two charges of possessing a thing used for the administration of a controlled drug. All of the offences were committed on 2 September 2015. The sentence was quashed on a motion to review: Upston v Moore [2016] TASSC 32. In lieu, on 27 June 2016, Blow CJ sentenced the appellant to five months' imprisonment, the execution of which was suspended on conditions that he commit no offence punishable by imprisonment for a period of 12 months, and perform 140 hours of community service.
3. In the present proceedings, the sentencing judge was told in submissions in mitigation that there were no matters pending before any court for offending during the periods of suspension, and that there was no complaint that the appellant had not completed the community service. The sentencing judge observed that there accordingly was "a good cut-off date showing that [the appellant] has responded to the terms of the suspended sentence." The sentencing judge was reminded that the offence dated back to 2013, and it was submitted that the appellant had demonstrated his ability to comply with significant periods of suspended sentences.
4. Other essential points of the plea in mitigation are as follows. The appellant had a drug addiction that was "rampant" throughout 2013 to 2015. Methylamphetamine very quickly took hold of him. He quickly went from somebody who, while having some history of offending, was not committing significant offences, to someone who was. Through the process of people coming to house to sell to him, he became an "easy target" for drugs and associated items to be left there. The benefit he gained was access to the drug at a reduced cost to him. His drug addiction led to him losing full-time employment, a relationship, and a house which he was paying off: "So, in every way he's seen a deterioration of his, to that point, his successful life because of addiction." He has successfully managed his addiction through his own efforts. He has distanced himself from his drug taking lifestyle and those involved in it. He was before the court as someone who had demonstrated his ability to rehabilitate himself and was drug-free with no pending charges against him.
5. The situation in relation to the appellant's offending was summarised by the sentencing judge as follows:

"The defence position, not contested by the prosecution, was that although Mr Upston conceded that some of the drugs were used as a commercial enterprise, his home was used as a repository for others engaged in a wider distribution network. Mr Upston also claimed that the firearm belonged to another member of that network and that it was not kept personally as a means of defence or offence as is often the case in drug related distribution. Mr Upston was a user of methylamphetamine and a portion of the drugs were for personal use. To offset the cost of personal use he had agreed to keep a quantity of drugs which other dealers could retrieve and for that service he would receive the benefit of a lower cost for personal use, and in the words of his counsel, receive 'other favours'. The defence position, again not challenged, was that he was not a member of an organised network involving distribution and supply, but a holder of illegal material for distribution by others. Nevertheless he was a party, albeit minor, in those operations. He claimed that the firearm belonged to another. He ought to have known, because of his previous convictions, the consequences of keeping a weapon on his premises, even if the weapon was one owned or controlled by another."

1. His Honour said that the loss of the appellant's previous employment and lifestyle as a consequence of his addiction would be "taken into account as part of self-inflicted punishment, as a consequence of his conduct". Later his Honour said:

"In a recently imposed sentence of Farhat, Pearce J, on 12 June 2017, dealt with a similar drug related matter involving the presence of a firearm and a firearm directly involved in an organised drug distribution network and imposed a six year sentence of imprisonment. The Court of Criminal Appeal in Roland v Tasmania [2016] TASCCA 20 dealt with the adequacy of sentences imposed by courts and referred to cases discussed including DPP v Williamson [2013] TASSC 6 and Stebbins v Tasmania [2016] TASSC 6. In the Stebbins case the Court dealt with the imposition of a sentence of 12 years and six months' imprisonment. In Roland the Court considered a range of penalties of between three and four and a half years' imprisonment.

Nevertheless [sic] the presence of a firearm, even if kept only as a form of storage, is a factor in dealing with the seriousness of Mr Upston's role.

Mr Upston has prior convictions for firearm offences and ought to know of the legal constraints of their possession and storage of firearms especially those which are semi-automatic. Storage of proscribed material forms part of the chain of trafficking. The claim that this offender was not part of an organised 'ring' does not counter the fact that the holding of material for others does not preclude a form of involvement.

Given the constraints already referred to the appropriate sentence is that of three years' imprisonment.

The Court accepts as a mitigating matter the fact that Mr Upston has never committed an offence whilst a suspension order was in place. Part of the sentence will be suspended as an attempt to provide some opportunity for him to restart his life. The conditions of that suspension will be precise."

1. The respondent accepts that the sentence was a heavy one, but argues it is not manifestly excessive as it is within a range appropriate to the offending. Counsel stressed the need to reflect general deterrence and denunciation, with personal considerations being subservient. There is no doubt, as counsel for the respondent emphasised, that the crime of trafficking in a controlled substance is one that, ordinarily at least, should attract harsh punishment. Factors of general deterrence and denunciation are the predominant sentencing considerations. See Sweetman v Tasmania [2016] TASCCA 5 per Wood J at [20], Pearce J at [54]; Stebbins v Tasmania [2016] TASCCA 6 per Pearce J at [102]; Director of Public Prosecutions v Swan [2016] TASCCA 9 per Pearce J at [21]; Deakin v Tasmania [2016] TASCCA 19 per Wood J at [34]. As this Court has recognised, these considerations may become more acute where the controlled substance involved is methylamphetamine, particularly in its crystalline form colloquially known as 'ice'. This is primarily because of its pernicious nature, the prevalence of its use, and the great harm - direct and indirect - that it causes in the community: Stebbins per Estcourt J at [66]; Deakin per Wood J at [34]; Le v Tasmania [2017] TASCCA 21, per Estcourt J at [24].
2. As has also been discussed by this Court, because of the wide range of conduct that may be involved in the crime of trafficking, and the wide variation in criminality, there is no meaningful discernible sentencing range for the crime: Stebbins per Pearce J at [99]; Le per Marshall AJ at [33]. It is well settled that even if a sentencing range for comparable offending can be established, its use is limited. The existence of a range does not mean that every sentence must fall within it. An appeal court must make its own evaluation of the gravity of the offence in light of all the circumstances. Where a sentence is outside the range of comparable offending, it is not determinative of the issue; but merely serves to increase the level of scrutiny. See Director of Public Prosecutions (Acting) v Poole [2015] TASCCA 5 at [15]; Connolly v Tasmania [2015] TASCCA 15 at [5]; Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [24], [26]; TGW (above) at [36].
3. The proper approach to the use of previous sentences is set out by Wood J in Le at [4]. Such cases stand as a "yardstick" by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles. Such cases may inform a broad understanding of the appropriate range of sentences, but they do not fix the boundaries. See Kilic [2016] HCA 48, 259 CLR 256 at [22].
4. As is revealed by the sentencing judge's comments set out above, his Honour referred to the case of Farhat, 12 June 2017, which involved a sentence of six years' imprisonment. His Honour referred to this case as "a similar drug related matter involving the presence of a firearm and a firearm directly involved in an organised drug distribution network". His Honour also referred to Roland v Tasmania [2016] TASCCA 20 in which a number of cases were discussed which involved a range of sentences between 3 and 4½ years' imprisonment, with Stebbins (above) involving a sentence of 12½ years' imprisonment. After the plea hearing and before sentence, Crown counsel referred the sentencing judge to Roland and Stebbins (along with Sweetman) by way of an email to the associate. This was after his Honour had sought assistance as to any change in sentencing patterns since the statistical information set out in Professor Warner's Sentencing in Tasmania, 2nd ed, 2002, and more particularly in the last three or four years. Crown counsel advised his Honour that the cases considered the relevant principles and considerations, adding that the State did "not assert that [the appellant's] trafficking was anywhere near that of the persons in the cases listed."
5. It is unclear what use the sentencing judge made of Farhat or the cases to which he was referred. Farhat was sentenced for trafficking in a controlled substance, unlawful trafficking in firearms, and dealing with the proceeds of crime. His criminal conduct was engaging in the business of the sale of crystalline methylamphetamine during a six month period, in a continuous, commercial and systematic way. One man sourced the drug in New South Wales, and with Mr Farhat, transported it to Tasmania where it was sold to another man for further sale. The sentencing judge described Mr Farhat as to an extent being subject to the direction and authority of the first man, but expressed satisfaction that Mr Farhat played a positive and independent role in the trafficking business. "Mr Farhat was not only the main go-between, but actively pressed supply and was directly involved in transfer of large amounts of money and drugs and organisation of the business."
6. In Roland, the sentence was one of three years' imprisonment. In the judgment on appeal, by the means of setting out the respondent's submissions, Estcourt J (with whom Blow CJ and Brett J agreed) referred to Director of Public Prosecutions v Williamson [2013] TASCCA 6 in which five sentences involving commercial trafficking of amphetamines were set out. They varied from 3 years and 4 months' imprisonment with 1 year suspended, to 4½ years' imprisonment. In the Roland submissions referred to, Stebbins was noted for its tabulation of eight sentences for commercial trafficking in amphetamine, the range being from 3 years' imprisonment to 4½ years' imprisonment. None of the cases referred to in Williamson and Stebbins involved guilt of trafficking by guarding or concealing a controlled substance in the belief that another person intended to sell it. In general terms, they all involved much more direct and immediate involvement in trafficking as that word is used in its ordinary sense, significantly more substantial quantities were involved than in this case, and the criminal activity charged, or established in the sentencing process, took place over periods of time.
7. For what it is worth, and without claiming that my search is definitive, I have been able to find eight sentences passed since 2003 which involve the same factual basis for trafficking as in the appellant's case, that is, guarding or concealing a controlled substance 'owned' by another, in the belief that another person intended to sell it. In four of the cases, the accused was suffering from an addiction to the relevant drug. Motives varied from getting the drug cheaply, to accommodating partners or friends, to fear, monetary reward or an undefined benefit. Five cases involved methylamphetamine. The quantities varied. The lightest sentence of the eight was 2 months' imprisonment the execution of which was wholly suspended on conditions (70 ounces of cannabis) - White, 8 December 2010. The heaviest sentence was 18 months' imprisonment (89.3 grams of 'Ice', with the accused having a prior conviction for trafficking in Victoria that attracted a 6½ year sentence) - Ratcliffe, 9 December 2016.
8. Bearing in mind what I have already said about the use of this type of information, I should say something in general about recent sentences for trafficking. A review of all sentences in the last few years for that crime, particularly involving amphetamine and methylamphetamine, reveals an increase in the upper end of the range. That can be accounted for by escalations in the level of criminal activity in particular cases, thus requiring proportionate responses. It is also explained by the Court's response to the increased prevalence in the trade in, and use of those drugs. Courts are entitled in such circumstances to give factors of general deterrence and denunciation greater weight than they might have been afforded in the past: R v Downie and Dandy [1998] 2 VR 517 at 520-522; Braslin and Cowen v Tasmania [2010] TASCCA 1 at [23].
9. I also need to say something about the sentencing judge's reference to the appellant's possession of the firearm. The Crown did not dispute that the firearm belonged to a member of the distribution network. It is a fair inference that the same person was the owner of the drugs. The sentencing judge said that the firearm, even if kept only as a form of storage (sic), was a factor in dealing with the seriousness of the appellant's role. That approach is correct to the extent that the presence of the firearm is a factor to be considered when assessing the nature of the criminal enterprise in which the appellant had involved himself in the way he had. Although the sentencing judge does not appear to have been told this, the appellant's counsel informed this Court that the appellant faces unresolved charges relating to the possession of the firearm and the replica pistol. On that basis, the possession of the semi-automatic rifle could not be taken as a matter that, as such, aggravated the appellant's conduct: R v De Simoni (1981) 147 CLR 383.

1. In all cases of trafficking in a controlled substance, relevant considerations are the type and quantity of the substance, the conduct that constitutes the trafficking, related to which is the role the particular person plays in any organisation. It is not necessarily the case that a person trafficking on the same basis as founded the appellant's guilt will be treated much more leniently than a person trafficking by actual or intended sales. A person who is guarding or concealing a considerable quantity of a controlled substance in the belief that another person intends to sell it may be a very important part of a distribution network. That person may perform the role for money or similar benefit.
2. It is trite that in considering the appellant's sentence, the whole of the circumstances need to be taken into account, and the reasonable range of a proportionate response needs to be assessed. I recognise that the substances involved are harmful ones, with methylamphetamine being particularly destructive, its use and trade having become increasingly prevalent. But relatively speaking, while not at all trivial, the amounts involved are not markedly substantial. I take into account the drug paraphernalia and the firearm as indicative of the nature of the enterprise with which the appellant was associated. No doubt his involvement facilitated the enterprise in which the owner of the substances was engaged. However, the appellant had no proprietary interest in the substances or the associated items, and his only role was to guard or conceal the substances for another person. His belief that another person intended to sell the substances made his conduct that of trafficking.
3. His reward was a reduced priced for methylamphetamine to feed his addiction, and ready access to the drug. The sentencing judge referred to the benefit of a lower cost and the benefit of "other favours", attributing those words to the appellant's counsel. However, with respect, counsel did not use those words. What counsel actually said was that in addition to the a lower price, the benefit to the appellant "was that he continued to have access to the drug; ... it was ready and easy for him", adding that he "no doubt received benefits in terms of delayed payment and the like, and quite possibly the lower end of the point of purchase price." In strict terms, the appellant was better off financially than he might otherwise have been, but to any significant extent is unlikely and his motivation was not commercial gain as such.
4. Generally speaking, except where there is serious adversity in a person's background that provides an explanation for drug abuse, an addiction is not usually of itself a mitigating factor: DPP v Poole (above) at [32]-[33]. An addiction often provides an understanding of an offender's motive. In the case of drug trafficking, the criminality of a person who offends merely to feed an addiction, is ordinarily regarded as less than that of the person who offends purely for commercial gain: Stebbins (above) per Pearce J (Tennent J agreeing) at [102], [110]; R v Lacey [2007] VSCA 196 at [12]- [15]; R v Koumis [2008] VSCA 84, 18 VR 434 at [50]- [51] and the cases cited. The fact that an addiction has led to offending may indicate that the offender is "less deserving of condemnation than the primary facts, without more, might suggest": R v Hammond [1996] QCA 508; [1997] 2 Qd R 195 at 199-200.
5. As noted in Koumis at [50], the motivation of the drug addict who traffics solely to feed a habit may be viewed as either the absence of an aggravating circumstance or as a mitigatory circumstance: see respectively Lacey at [12] and R v Henry [1999] NSWCCA 111, 46 NSWLR 346 per Wood CJ at CL at [225], [273]. However that debate is resolved, ordinarily there will be differentiation between the sentences imposed on the two types of offender, noting of course that each case turns on its own facts and circumstances. The sentencing judge was provided with little information about what led to the appellant's use of drugs and resultant addiction, but on the unchallenged assertions about his involvement, the seriousness of the offence can properly be regarded as less than it would be, had simple enrichment been the motive. An addiction can also be relevant to rehabilitation, and it was so in this case. The appellant apparently had, through self-motivation, completely overcome the problem by the time he was dealt with.
6. I also do not lose sight of the fact that the appellant's home was searched by police a week earlier. That search led to a number of drug and firearms charges. There is some suggestion that the appellant was on bail at the time of the search on 21 August 2013, but at the least, the search on 14 August ought to have been a sufficient warning to him to put an end to his criminal behaviour. Plainly enough, the answer to why he did not is provided by his addiction, although that does not amount to an excuse. In this context, his relatively innocuous record of offending before 2013 needs to be borne in mind, as does his subsequent self-motivated rehabilitation.
7. The appellant was sentenced to an immediately effective two year term of imprisonment with no effective parole eligibility, and with a further 12 months' imprisonment suspended on conditions. All things considered, I take the view that the sentence is manifestly excessive. I would allow the appeal and set aside the sentence.

1. The appellant's sentence dated from 23 October 2017. On 18 December 2017 he was granted bail pending this appeal, and accordingly has spent 57 days in custody. At the conclusion of the hearing of the appeal on 7 March 2018, the Court revoked the appellant's bail. It did so because it took the view that immediate imprisonment was justified in all of the circumstances. Implicit in that step was a rejection of the submission of the appellant's counsel, that a wholly suspended term was appropriate. The total period spent in custody will have to be taken into account. The appellant's rehabilitation remains a weighty consideration. I would sentence the appellant to 15 months' imprisonment to commence on 9 January 2018, the execution of nine months of which is suspended on condition he commit no offence punishable by imprisonment for a period two years.