Bell v Lowe
[1988] TASSC 73
•2 March 1988
Serial No B5/1988
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: Bell v Lowe [1988] TASSC 73; B5/1988
PARTIES: BELL, Christopher David
v
LOWE, Robert James
FILE NO/S: LCA 143/1987
DELIVERED ON: 2 March 1988
JUDGMENT OF: Nettlefold J
Judgment Number: B5/1988
Number of paragraphs: 41
Serial No B 5/1988[i]
List "B"
File No LCA 143/1987
CHRISTOPHER DAVID BELL v ROBERT JAMES LOWE
REASONS FOR JUDGMENT NETTLEFOLD J
2 March 1988
Motion to Review orders of a magistrate made on 24 November 1987 in the Court of Petty Sessions at Hobart upon the hearing of complaints laid by the respondent against the applicant on the 6 October 1987 which were as follows (omitting formal parts):
"(a)That Christopher David Bell did on or about the 15th day February 1987 at Thirlstane in the State of Tasmania steal six thousand Papaver Somniferum Capsules to the value of $1,500.00, the property of Rex Richardson contrary to Section 234 of the Criminal Code Act 1924.
(b)Christopher David Bell did on or about the said date at Thirlstane aforesaid have in his possession part of a prohibited plant namely Papaver Somniferum contrary to Section 49(1)(b) of the Poisons Act 1971.
(c)That Christopher David Bell on or about the said date at Thirlstane aforesaid did prepare a narcotic substance, namely morphine, codeine and thebaine contrary to Section 46 of the Poisons Act 1971."
The orders complained of were the following:
"(a) On the first of the said charges the Applicant be sentenced to a term of imprisonment for a period of six months for the last three months of which were suspended on condition that the Applicant be
of good behaviour for a period of three years, under the supervision of a Probation Officer subject to conditions
(b) On the charge of possession aforesaid, be sentenced to a period of three months imprisonment concurrently with the above term."
The Notice to Review relies on the following grounds:
"(a)The penalties imposed by the learned Magistrate were manifestly excessive in all the circumstances.
(b)the learned Magistrate placed an unreasonable emphasis upon the involvement of the Applicant in the commission of the said offences.
(c)The learned Magistrate erred in law in concluding that the conduct of the Applicant in all the circumstances demanded the imposition of an actual period of imprisonment."
I shall now set out the important points from the material which was before the learned magistrate.
The applicant was interviewed by police officers on 5 October 1987. He told the police that he had returned to Tasmania a few days before the of fences were committed in company with two women and two men. He had a motor vehicle which he was driving with the other people as passengers when they happened to travel passed the field of poppies. The two male passengers noticed the poppies and appeared happy with their discovery. The applicant told the police that it was the first time he had ever seen poppies. They seemed dead to him. They did not have any leaves on them. The two male passengers mentioned that they wanted to get some poppies and they wanted the use of the applicant's vehicle to get them. The applicant was not prepared to let them have his vehicle as he thought that, if he let them have it, he would not see it again. It is useful to note the exact words he used when making this point. They are "I wasn't prepared to let them have my vehicle as I thought I never see it again, so I agreed to go along with them when they went to get them". Later in the interview he said, "I didn't want them to have my vehicle, I wanted to be with it."
The applicant proceeded to tell the interviewing officers that these people wanted him to drive them to the field, drop them off and then return after 15 minutes when they would load the poppies into the vehicle. On the way to the poppy field these travelling companions of the applicant bought some green garbage bags from a shop.
The five of them went to the poppy field. The two male passengers entered the poppy field. A female referred to as "Julia" remained on the road outside the poppy field and the applicant and a female referred to as "Kate", drove off in the applicant's van. The applicant, after the lapse of a short time, returned to a position on the road outside the poppy field. There the two men were passing bundles of poppies over the fence to Julia. Julia was putting the poppies into the van and Kate was in the van stacking the poppies. In all they got about three big bundles which had the green garbage bags wrapped around them and were tied with straps.
They then drove into the bush. The applicant said that he helped light a fire. They took two items from the van which were the property of the applicant, namely a wok and a 44 gallon drum.
After the unloading process was completed the applicant drove away from the scene and did not return until "the next morning before midday". The wok was on the fire full of black liquid. The other four people previously mentioned were there. The other four were eating the "black sticky stuff" from a spoon. It was affecting them in that they were mentally slow and lethargic.
The others had thrown his wok and drum away. They packed up and went to George Town and later travelled down the East Coast.
The applicant said that he did not try any of this stuff. He said that at the time, he was not in a healthy state as he was suffering from blood poisoning, including tropical ulcers.
Asked whether there was anything else he wished to say about the matter, the applicant replied, "I would like to say that I did not realise the seriousness of participating in what the rest of the group wanted to do. At the same time I didn't take any of the opium that was produced. I would like to say that I was sick from blood poisoning and that I was also in shock from my brother's death in Sydney."
He signed the record of interview and agreed to show the police the locality where the poppies were boiled up and the locality where some of the material, the wok and the 44 gallon drum could be found.
The applicant pleaded guilty. The statement of facts by the prosecutor was based on his record of interview which was tendered. At an adjourned hearing the magistrate had a most helpful pre–sentence report, the substance of which should now be related.
The report stated that the applicant was born at Hobart on the 24 July 1963, the youngest of four children to the marriage of Charles David Bell and Violet Bell. The applicant's father worked for many years for a reputable city real estate firm. In 1975 the applicant's father and mother moved to Queensland, taking with them their third child and the applicant. In Queensland until recent times, the applicant's parents operated successfully, a souvenir gift shop. But at the time of the report, Mr Bell senior was in receipt of sickness benefits which were being received in consequence of a back injury. The applicant's mother was employed as a medical social worker.
The eldest child of the family was described in the report as a highly qualified medical practitioner until his untimely death on 21 September 1986. This death was said to be a subject before the Fitzgerald Inquiry.
The second eldest child of the family was said to be employed on a contract basis with the National Parks & Wildlife Service as a Biological Consultant. The third child was employed in Queensland as a furniture maker.
The report said that the applicant received his formal schooling in Hobart until he moved with his parents to Queensland. In Queensland he attained Schools Board standard. Returning to Hobart at the beginning of 1981, he enrolled at the Hobart Matriculation College. He took up residence with his second eldest brother and for some time he lived in a hostel situation. Towards the latter part of April 1981 the applicant contracted glandular fever. This virus plagued the applicant for approximately the next three months and, as a consequence, his studies suffered to the extent where he was forced to abandon further schooling.
The report stated that the applicant came to the notice of the Probation Service on 21 December 1981 following his appearance in the Hobart Court of Petty Sessions charged with drug related offences. On 22 December 1981 the applicant returned to Queensland to be reunited with his family.
For approximately the next 13 months the applicant worked at his parents' souvenir business. Following that he spent two months in New South Wales. In March 1983 he returned to Hobart and for about three years undertook employment in various capacities.
In April 1986 the applicant suffered a broken leg, the result of a Karate training accident. He was incapacitated and in receipt of sickness benefits until November 1986. Following the death of his brother the applicant was in New South Wales for a few weeks for the coronial inquiry. A later visit to the mainland concluded in February 1987 shortly before the commission of these offences. Since the time of the offences he had travelled to the mainland again, returning to Tasmania in July 1987.
The report stated that, for about the past five months, the applicant had shared with a male companion, the rent of a small farmlet at Middleton. They were growing strawberries but the applicant had to rely on unemployment benefits as his main source of income. Out of a weekly sum of $112.00 the applicant contributed $50.00 per week towards rent. The balance of the unemployment benefit was spent on ordinary living expenses. The applicant lacked savings or assets of notable worth. His major commitment was $500 owed to the Taxation Department.
The report related that the applicant still maintained an interest in Karate. Other activities included squash, bush–walking and aquatic sports. It was said that he rarely drank alcohol.
The Probation Officer reported that the applicant presented as a person with a pleasant disposition. The applicant stated to the officer that, failing the procurement of permanent employment, he intended to study in the field of Botany at University level. His attitude towards the present offences was described[ii] as one of remorse.
Finally, the applicant was assessed as being a suitable candidate for a Community Service Order and the Probation Officer expressed his belief that the applicant would benefit from a period of supervision.
The applicant has prior convictions, and a record of them was placed before the magistrate. The relevant ones were the following:–
"71281 Dishonestly Obtaining Fined $50
a Financial Advantage211281 Possess cannabis Discharged
Possess hashish upon entering
Use hashish into a
Sell cannabis probation order
Possess hashish requiring the
Use hashish defendant to
Supply hashish appear for
Sell hashish conviction and
Possess cannabis sentence if
Sell cannabis called upon
Possess hashish during next 12
Use hashish months and to
Possess cannabis be under the
Use cannabis supervision of
a Probation
Officer for
entire period.19985 Deception Fined $150
Restitution
Ordered"
Counsel for the applicant informed this court that the first conviction involved getting an airline ticket at a concession rate using a student concession card which did not belong to him. In respect of the conviction for drug offences in 1981, counsel for the applicant drew this court's attention to the nature of the penalty imposed, the age of the applicant at that time and the lapse of time between the commission of those offences and the present offences. In relation to the conviction in 1985, counsel informed the court that it involved changing a price tag in a shop, removing a tag showing a price of $16 and substituting one showing a price of $8.
In support of the Notice to Review, Mr Chopping emphasised the following points:
(a) the material before the magistrate did not show that the applicant had used any of the gel.
(b)that material showed that the applicant was frank and co–operative with the police and disclosed some facts not known to them.
(c) the applicant did not receive any of the gel.
(d) the applicant did not derive any financial benefit from the offences.
(e) the offences arise out of a single incident in which the applicant played a subordinate role.
(f)the applicant's age, his co–operation, plea of guilty shortly after arrest and favourable probation report, signs of remorse.
(g) there is a substantial lapse of time since the applicant was last convicted of a drug offence.
(h)the applicant had not previously suffered a sentence involving an immediate sentence of imprisonment or a suspended sentence.
Counsel for the applicant submitted that it was not a case calling for the imposition of an immediate custodial sentence and the learned magistrate was in error in saying that the case demanded such a sentence. He also submitted that the part played by the applicant was over emphasised.
Mr Melick for the respondent, submitted that it was a very serious case of stealing. It was a crime which was easy to commit and hard to detect. This kind of offence involved a very real risk to the poppy industry if proper measures were not taken. The final purpose of the crime was the production of a narcotic drug. On the evidence, the conclusion could not be reached that a considerable quantity of morphine was in fact extracted. What was extracted would depend on the method of distillation. But, because of the act of stealing this large number of poppies, there was the potential to extract a large amount. Without the applicant's co–operation the crime in fact committed could not have been committed in the way it was. Because of his convictions for drug offences in 1981 the applicant must have been aware of the serious nature of the enterprise. Apart from the aspect of personal deterrence there was a clear need for a strong general deterrence. The applicant is no longer young. The pre–sentence report was not a bad one, and there were good prospects of rehabilitation. But the learned magistrate has taken that aspect of the matter into account by suspending the execution of part of the sentence. Mr Melick contended that six months imprisonment was not inappropriate and such sentences have been imposed in the past.
This court was informed by counsel for the applicant that the applicant was in custody over night on 5 October 1987 following his arrest on these charges. He was also in custody from 24 November 1987 to 4 December 1987, serving the sentence under appeal until he was bailed to appear at this hearing.
I uphold ground (a) of the Notice to Review. Although I regard the error alluded to in ground (c) as one of failure to follow sound sentencing practice rather than an error of strict law, I also uphold ground (c).
I refer to the following extract from the reasons for decision of the learned magistrate:–
"I believe in light of the delicate position in which this industry is poised in Tasmania there is a need for these courts to give deterrent penalties to ALL who take these poppy capsules for their own purposes. And after all that becomes an illicit purpose ............. I very carefully read the pre–sentence material that's been prepared. I am aware of the fact that you would be a suitable candidate for Community Service Orders, but I believe that this is a matter that is far more serious than that. It is one that demands a prison sentence. And accordingly I believe that I have no alternative but to give such a sentence both as a deterrent to you and anybody else who thinks they can break into fields of opium poppies."
With very great respect, this passage contains clear evidence that the sentencing discretion was not exercised properly. The learned magistrate was not in a position to conclude that this industry was in a delicate position. This proposition appears to be the foundation stone of his decision. But he did not give counsel for the applicant an opportunity to deal with the point. From that point, which was not tested by argument, the learned magistrate proceeds to the proposition that there is a "need" to give deterrent penalties to all who take these poppy capsules for their own purposes. This "need" is seen by the learned magistrate as so compelling that it leaves no alternative to a prison sentence notwithstanding that there may be convincing material to suggest that the particular defendant before the court will not offend again.
With great respect, such an approach is altogether out of line with modern sentencing practices. In R v O'Connor [1987] v R 496, the Full Court consisting of Young CJ, Murphy and Fullager JJ said at page 499:–
"In recent years the sentencing policies of the courts have certainly been opposed to the imposition of prison sentences wherever a reasonable alternative was open particularly in the case of young offenders: See Duncan v R. (1983) 47 A.L.R. 746 where the Supreme Court of Western Australia, sitting as a Court of Criminal Appeal said at page 749: 'It is well settled that custodial punishment should not be imposed upon a young man until all avenues of non custodial punishment have been explored.'"
That statement also expresses the sentencing policies of the Supreme Court of Tasmania. In similar spirit is Crimes Act 1914 (Clth) s17A and Penalties and Sentences Act 1958 s11 (Victoria). That the English courts have a similar policy to that which prevails in Victoria, Tasmania and other Australian States is made clear by two recent interesting cases, namely Clarke (1982) 4 CrAppR(S) p 197 and Livingstone Stewart and Other Appeals and Applications (1987) 85 CrAppR p66. The latter case demands study by those who would seek to deal with Social Security Fraud cases in a restrained and responsible way, not because it is binding but because it is right. The case shows, among other things, that for Social Security Act offences, in magistrates' courts in England and Wales in 1985 the total of those found guilty was 6,368 of whom 17 were committed for sentence. The remaining 6,351 were disposed of as follows:–
(a) Absolutely Discharged 0.2 percent
(b) Conditionally Discharged 13 percent
(c) Probation Order 7 percent
(d) Fined 59 percent
(e) Community Service Orders 10 percent
(f) Fully Suspended Sentences 6.5 percent
of Imprisonment
(g) Unsuspended Terms of 2.5percent
Imprisonment
(h) The remainder were the subject
of a variety of disposals.
The judges pointed out that a very large number of such cases were not prosecuted by the departments at all. Cases involving small amounts, except where there are special features such as repeated fraud or the necessity to provide a deterrent to a particular type of fraud prevalent in a particularly locality. Cases which were not prosecuted were dealt with by warning andor deduction from future benefits. The judges in this case were dealing with appeals and applications from decisions in Crown Courts. It will be seen that, therefore, they were dealing with exceptionally serious cases. The judges pointed out that the cases in this group involve the dishonest abstraction of honest taxpayers' money and not to be treated lightly. They are easy to commit and difficult and expensive to track down. However, their Honours said that it must be remembered that they are non–violent, non–sexual, and non–frightening crimes. But for some cases at the top of the range immediate unsuspended imprisonment (or youth custody) was unavoidable as these cases involved carefully organised frauds on a large scale in which considerable sums of money are obtained. The offenders are in effect professional fraudsmen. But they pointed out that these cases bear little relation to the average offender in this area. As to the remainder of the cases in the Crown Court, the judges said at page 70:–
"As to the remainder, who form the great majority of those appearing in the Crown Court, the sentence will depend on an almost infinite variety of factors, only some of which it is possible to forecast. It may well be advisable as a first precaution for the Court to enquire what steps the department proposes to take to recover their loss from the offender. Counsel for the Crown should be equipped to assist the Court on this aspect of the matter. There are other aspects on which his help will often be required, as will emerge later.
Other considerations which may affect the decision of the Court are:
(i) a guilty plea;
(ii)the amount involved and the length of time over which the defalcations were persisted in (bearing in–mind that a large total may in fact represent a very small amount weekly);
(iii)the circumstances in which the offence began (e.g. there is a plain difference between a legitimate claim which becomes false owing to a change of situation and on the other hand a claim which is false from the very beginning);
(iv)the use to which the money is put (the provision of household necessities is more venial than spending the money on unnecessary luxury);
(v) previous character;
(vi)matters special to the offender, such as illness, disability, family difficulties, etc.;
(vii) any voluntary repayment of the amounts overpaid.
Before sentencing the offender the court should consider the following questions which were set out in Clarke (1982) 4 Cr.App.R.(S) 197, 200. (i) Is a custodial sentence really necessary? The fraud cases dealt with in the Crown Court (as already indicated) are likely to be relatively serious and a non–custodial sentence may often be inappropriate. (ii) If a custodial sentence is necessary, can the court make a community service order as an equivalent to imprisonment, or can it suspend the whole sentence? It seems to us that a suspended sentence or (especially) a community service order may be an ideal form of punishment in many of these cases. (iii) If not, what is the shortest sentence the court can properly impose?
If immediate imprisonment is necessary, a short term of up to about nine or twelve months will usually be sufficient in a contested case where the overpayment is less than, say, £10,000. As was stated in Clarke, a partly suspended sentence may well be appropriate where a short immediate sentence is insufficient."
For present purposes, I emphasise the question the judges took from Clarke's case "Is a custodial sentence really necessary?" That question and the other questions they took from Clarke's case show that their sentencing practice is in line with the practice in this court and the practice in Victoria and Western Australia as evidenced by the cases cited above. It is also, generally speaking, in line with the policy behind the Commonwealth and Victorian statutes cited above.
On the facts of this case, a non–violent, non–sexual and non–frightening offence, an immediate custodial sentence was not necessary there being other reasonable alternatives open. On the facts of this case, the prospects for rehabilitation are good. The applicant's role in the crime was a subordinate one. There was convincing evidence of remorse. The applicant is still a relatively young man whose social and family situation has involved problems since 1981. But it should be said that he comes from a very good family. He has not previously suffered a sentence of imprisonment.
The appeal is allowed. The penalties imposed by the learned magistrate on each complaint are set aside. In lieu thereof there are the following orders. (I keep in mind that the applicant has spent some time in prison in respect of these matters).
Complaint 1459687 – Stealing – a Community Service Order for 70 hours the formal order to follow the wording of s11(1) of The Probation of Offenders Act 1973. Also an order that he place himself under the supervision of a probation officer for a period of 12 months and obey all the reasonable directions of that officer.
Complaint 1459887. On the first charge on that complaint a conviction is recorded. On the second charge a Community Service Order for 14 hours, the formal order to follow the wording of the above sub–section.
Notes of Cases Reference: [1988] Tas R (NC) 2; see [1988] Tas R 160.
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