Bell v Tasmania

[2021] TASCCA 3

[2021] TASCCA 3

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Bell v Tasmania [2021] TASCCA 3
PARTIES:	BELL, Mark Anthony
v
STATE OF TASMANIA
FILE NO:	CCA 2114/2020
DELIVERED ON:	19 March 2021
DELIVERED AT:	Hobart
HEARING DATE:	3 March 2021
JUDGMENT OF:	Martin AJ, Marshall AJ, Porter AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in crystalline methylamphetamine – Found in possession of 28.8 grams – Proof of three sales in previous 10 days – Prior conviction for trafficking in methylamphetamine – Evidence that appellant not an addict selling purely to fund addiction – Sentence

of 2 years' imprisonment with non-parole period of 16 months not manifestly excessive.

Aust Dig Criminal Law [3521]

Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Other types of order – Drug treatment order – Court required to order an assessment report if considering making a drug treatment order – Sentencing judge declined to order an assessment report – Inappropriate to order an assessment report if not considering making the order – Seriousness of the offending and other considerations may make it obvious an order is inappropriate – No error on the part of the sentencing judge.

Sentencing Act 1997 (Tas), s 27B, 27C, 27D.
Tasmania v Joseph [2017] TASSC 23, considered.

Aust Dig Criminal Law [3409]

REPRESENTATION:

Counsel:

Appellant:	K Baumeler, J Bourke
Respondent:	M Allen, M Figg

Solicitors:

Appellant:	Jessica Bourke
Respondent:	Director of Public Prosecutions

Judgment Number:	[2021] TASCCA 3
Number of paragraphs:	49

Serial No 3/2021

File No CCA 2114/2020

MARK ANTHONY BELL v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL MARTIN AJ MARSHALL AJ PORTER AJ 19 March 2021
Order of the Court
Appeal dismissed.

Serial No 3/2021

File No CCA 2114/2020

MARK ANTHONY BELL v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL MARTIN AJ 19 March 2021
Introduction

1             The appellant was found guilty by a jury of trafficking in a controlled substance, namely, methylamphetamine (Ice). Blow CJ sentenced the appellant to imprisonment for two years and ordered that the appellant not be eligible for parole until he has served 16 months.

2            In addition, the appellant pleaded guilty to two summary charges, namely, using Ice on the day before he was arrested and possessing ecstasy and diazepam on the day of his arrest.

3             The appellant appealed against the sentence on the sole ground that the sentence was manifestly excessive. At the conclusion of oral submissions the appeal was dismissed. I now set out my reasons for agreeing with that order.

Facts
4	On 29 October 2018 the appellant was seen by police officers repairing his motorcycle in a car park of a Bunnings Store at Mornington. The officers decided to check the registration of the motorcycle and found it was not current.
5	A search of the appellant led to the discovery of two snap lock bags inside his trousers containing 28 grams of Ice and 0.8 grams of Ice. In a subsequent interview the appellant asserted that all the Ice was for his personal use, a position maintained at trial but rejected by the jury.
6	The learned trial judge was satisfied beyond reasonable doubt that on three occasions in October 2018 the appellant "sold and delivered quantities of Ice". Those sales occurred several days before the appellant was arrested. However, his Honour was unable to make any finding as to the "scale or duration" of the appellant's trafficking activities.
7	The appellant was a heavy user of Ice. At the time of arrest there was a high concentration of Ice in the appellant's blood. The trial judge found that a "significant proportion" of the 28.8 grams of Ice was intended for personal use, and observed there was no evidence the appellant had become wealthy as a result of his trafficking activities. However, his Honour added that the evidence established the appellant possessed sufficient funds to support gambling on poker machines, during which activities the appellant frequently outlaid hundreds of dollars per session.
8	The appellant is aged 45 years. The trial judge noted that the appellant was employed in a fibreglass business and helped out in his partner's business. His Honour took into account that the trial had been delayed as a result of the COVID-19 pandemic.
9	Of particular relevance to the exercise of the sentencing discretion was the appellant's record of offending against the drug laws. He was sentenced by magistrates on drug charges in 1994, 1997 and 2006. The trial judge summarised the appellant's offending from 2006:

"On the third occasion [2006], he received a wholly suspended sentence of four months' imprisonment. In 2007 he pleaded guilty to a charge of trafficking in methylamphetamine over a three month period and was sentenced to 18 months' imprisonment, with a non- parole period of 12 months. In 2017 he pleaded guilty to possessing and using a controlled drug, and was sentenced to 56 hour's community service. During 2017 he

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was charged with two counts of driving with an illicit drug present in his body, several other drug charges, and a charge of unlawful possession of property. He was on bail on those charges at the time when he was arrested for trafficking in October 2018. In November 2018 a magistrate imposed three wholly suspended sentences of imprisonment in respect of those and other offences."

10           The trial judge accepted that the appellant had not committed any offences since his arrest in October 2018. His Honour noted there was no suggestion the appellant had introduced anyone to Ice, and accepted that the trafficking activities for which the appellant was sentenced in 2007 were "more sophisticated" than the activities of 2018. Further, his Honour observed that there was no suggestion the 2018 activities were as profitable as the previous trafficking.

11 The appellant was sentenced on 19 August 2020. Subsequently the appellant sought a correction of the sentence pursuant to s 94 of the Sentencing Act 1997 on the basis that the appellant's circumstances had not been accurately presented to the Court.

12           On 30 October 2020, counsel for the appellant informed Blow CJ that she had failed to raise with his Honour the appellant's desire to address his addiction, and had failed to make submissions requesting an assessment for the Court Mandated Drug Diversion Program. Counsel submitted that if she had sought that the appellant be assessed for a drug treatment order, the trial judge could have considered such matters in determination of the sentence. If the appellant had been assessed as suitable for a drug treatment order, it would have been in the interests of justice to enable him to rehabilitate himself through such order.

13           The trial judge accepted the explanation of counsel for the failure to request an assessment. However, having regard to the seriousness of the offending, and the appellant's prior record of offending against the drug laws, his Honour found that the only appropriate penalty was a sentence of actual imprisonment and refused the application. Counsel for the appellant submitted that the refusal to order the assessment was an error of sufficient significance to warrant allowing the appeal.

Discussion

14           The essence of the appellant's case that the sentence, including the refusal to order an assessment, was manifestly excessive is found in the written submissions filed in support of the appeal:

"28 The Appellant engaged in trafficking for a short 10-day period, where it was not possible to assert that any profit had been made or was to be made from his criminal conduct.

29 The Appellant was a significant user of Ice as shown by the blood analysis

conducted on his arrest. Any selling was only done to supplement his habit.

30 The Appellant was not introducing people to drug use by his conduct. It is clear from the text messages relied upon that those supplied were already using illicit substances.

31    There was no evidence that the Appellant took part in any other criminal activity to fund his drug use.

32 The trafficking was not sophisticated and not commercial. A significant part of

the drugs seized were for personal use.

33    There was a lack of aggravating factors such as firearms offences.

34 The Appellant was looking to address his offending and wanting to cease drug use. To that end assessment was sought for a Drug Treatment Order. Though it is accepted that even a positive assessment would not have necessarily resulted in the order being made, to refuse the assessment deprived the Appellant of a potential sentencing option.

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35 It is submitted that in the circumstances of the Appellant's matter the trafficking alleged was not so serious as to exclude a Drug Treatment Order. It was a viable sentencing option that should have been explored."

15           In response, the Crown emphasised the importance of general deterrence and denunciation.[1] The Crown submitted the trial judge correctly determined that a drug treatment order was not an appropriate sentence and, therefore, his Honour could not order an assessment.

[1] Sweetman v Tasmania [2016] TASCCA 5, 28 Tas R 325; Stebbins v Tasmania [2016] TASSCCA 6, 25 Tas R 421;

16           A table of sentences imposed since April 2019 in respect of trafficking in Ice involving amounts similar to the amount with which the appellant was found was provided by the Crown. In addition, the Crown relied upon the remarks of Porter AJ, with whose judgment Blow CJ and Pearce J agreed, in Upston v Tasmania [2018] TASCCA 4, 30 Tas R 262 at [22]:

"[22] 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]."

17           It is well recognised that tables of previous sentences and statistics are helpful, but they possess limited value.[2] It is readily apparent that such statistics are of limited use in considering sentences for the crime of trafficking in a controlled substance because of the infinite variety of circumstances and widely different levels of criminality involved in this crime. Of particular relevance are the nature and amount of the drug involved, and the role undertaken by an offender. There is no standard tariff and each case must be determined according to its particular circumstances.[3] To the limited extent it assists, the table of prior sentences demonstrates that the sentence of two years is not outside the range of sentences imposed since April 2019 for similar offending.

[2]   Hili v The Queen [2010] HCA 45, 242 CLR 520 at [54] and [55]; Barbaro v The Queen [2014] HCA 2, 253 CLR 58 at [40] and [41].

[3] Upston v Tasmania (above) at 269 [16].

18          The trial judge observed that Ice is a drug that causes "terrible harm to a lot of people in all sorts of ways". His Honour continued:

"It ruins the lives of users. It causes them to commit crimes to fund their addiction. It
results in users committing crimes of violence."

19 The observations of the trial judge echo repeated observations by sentencing judges and this Court about the harm caused to individuals and the wider community by amphetamines, and methylamphetamine in particular. Ice has been described as an "insidious drug",[4] and "pernicious" in nature.[5] It is also well recognised that this drug causes great harm across the community, both directly and indirectly. I respectfully agree with the following remarks of Porter J when sentencing an offender who had pleaded guilty to trafficking in a number of drugs, including amphetamine:[6]

"It is perhaps well-known, but it needs to be restated that amphetamine use in the community is extremely costly in human or personal terms, and in economic terms.

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The drug causes much disruption in the community. Addiction is a health issue. Addiction leads to the commission of crime for funding. Use of the drug is often responsible for violence, some of which is dealt with by the courts, some of which is unseen and undetected. Police and emergency service resources are often involved in dealing with the consequences of its use and abuse."

[4] Le v Tasmania [2017] TASCCA 21 at [23].

[5] Upston v Tasmania (above) at 269 [15].

[6] As cited on appeal in Stebbins v Tasmania (above), per Estcourt J at [42], and adopted by Wood and Estcourt JJ in

20           As has repeatedly been emphasised by sentencing judges and this Court, general deterrence is of primary importance in the exercise of the sentencing discretion. Offences involving this dangerous and damaging drug are, unfortunately, prevalent throughout the community and persons tempted to commit these types of crimes must understand that their offending will be met with significant terms of imprisonment.

21           The appellant's crime was not accompanied by aggravating factors that would place the offending in the most serious category. However, it was not minor offending. The trial judge found that if the 28.8 grams in the appellant's possession had been sold by the point (one tenth of a gram), the proceeds would have been $28,800. If sold by the ounce, the equivalent of 28 grams, the proceeds would have been $8,000 or more. His Honour noted that the appellant was found in possession of 4.3 grams of a cutting agent which could have been used to dilute the drug and "generate further profits".

22           The appellant's conduct was not an isolated occasion of offending. He was found in possession of items which the trial judge found were "consistent" with the appellant "routinely making sales of Ice". Three specific occasions were proven.

23           Although there was no evidence the appellant had become wealthy as a result of trafficking activities, the trial judge found that sufficient funds were generated to support significant gambling on poker machines. Counsel for the appellant submitted that in making that finding, the trial judge erred because there was no evidence that the proceeds of sales of Ice provided funds to support gambling. To the contrary, there was evidence that the appellant was working at two jobs and, at times, had profited from his gambling.

24           In an interview with police on 30 October 2018, the appellant said he gambled on poker machines once a day, and sometimes twice a day. He said he had "done alright" in the previous few months and thought he would be up "10 grand". In particular, about six weeks prior to the interview, he won a jackpot of almost $8,000. The appellant said he would put about $50 into a machine and, if he lost that amount, he would pull out.

25          During the interview the appellant said he had recently purchased an ounce of Ice for $3,000. He said between $3,000 and $4,000 per ounce was the regular price and, although he could not afford it, buying Ice was "part of life". He said he sacrificed in other places in order to afford the purchases.

26           According to the appellant, an ounce of Ice would last him about one month. Asked how many times he had purchased an ounce, the appellant replied "I don't, maybe ten or a dozen times". He said those purchases were "over like a year or so".

27           If the appellant was truthful with police, he was spending $3,000 or $4,000 per month on the purchase of Ice. In addition, he possessed sufficient funds to engage in significant gambling on poker machines. Importantly from the point of view of the sentencing discretion, over "a year or so", the appellant had purchased an ounce of Ice on about 10 or 12 occasions, outlaying between $3,000 and $4,000 on each occasion.

28           The appellant's admissions demonstrate that his offending was well removed from the impecunious addict who, from time to time, sells a small quantity of a drug solely to fund a drug addiction. The appellant possessed sufficient funds to make 10 or 12 purchases, over a year or so, of an ounce of Ice at a cost of between $3,000 and $4,000 on each occasion. In addition, he possessed sufficient funds to gamble regularly.

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29           Further, it is readily apparent that the three specific occasions of sales proven in evidence were not isolated occasions on which the appellant succumbed to the temptation of selling Ice in order to supplement his finances. Those sales are to be considered in the context of the appellant's admission concerning his purchases on 10 or 12 occasions over a year or so.

30           Coupled with the gravity of the crime committed by the appellant is the appellant's record of prior offending. Personal deterrence was also an important factor in the exercise of the sentencing discretion. A sentence of 18 months' imprisonment imposed in 2007 had not deterred the appellant from again offending in respect of the drug Ice. Being on bail in 2018 did not deter the appellant from the offending under consideration.

Drug treatment order

31           As to the failure of the sentencing judge to order an assessment report for the purposes of considering a drug treatment order, counsel submitted that the offending was directly influenced by the appellant's addiction to Ice. As the sentence contemplated by the trial judge was a period suitable for a drug treatment order, counsel contended it was incumbent upon his Honour to order an assessment as to whether the appellant is a suitable subject for a drug treatment order. Counsel urged that it was an error not to order an assessment, regardless of whether it was likely that a drug treatment order would be appropriate or otherwise. I do not agree with that submission.

32 The regime governing drug treatment orders is found in Part 3A of the Sentencing Act, and was discussed by Brett J in Tasmania v Joseph [2017] TASSC 23. Section 27B provides that a court may make a drug treatment order if it is satisfied that the offender has a "demonstrable history of illicit drug use" and "illicit drug use contributed to the commission of the imprisonable offence". Further, s 27B provides that the order may be made if the Court considers that, but for the order, it would have sentenced the offender to a term of imprisonment[7] and would not have suspended the sentence, either in whole or in part.

[7]   The maximum sentence in respect of which such an order is appropriate is two years: Tasmania v Joseph at [37].

33           If a drug treatment order is made, the scheme provides that the sentence of imprisonment is imposed, as if the order is not to be made, but pursuant to the order the offender is not required to serve all or any of the custodial sentence unless it is subsequently activated by some other order (s 27F). The similarity with suspended sentences is apparent.

34 It is a requirement pursuant to s 27B that the Court receive and consider a drug treatment order assessment report before making a drug treatment order. In addition, s 27D directs a court "that is considering making a drug treatment order" to order an assessment report. The purpose of the report is described in s 27D(2) as "to establish whether the defendant is a suitable subject for a drug treatment order".

35 Further, s 27B(3) provides that a court "must not" make a drug treatment order unless "it is satisfied in all the circumstances that it is appropriate to do so".

36 Finally, for present purposes, of relevance is s 27C which identifies that one of the purposes of a drug treatment order is to "provide an alternative sanction to imprisonment" and, through a treatment regime, facilitate rehabilitation and reintegration into the community. The emphasis on rehabilitation is apparent from s 27C and was explained by Brett J in Tasmania v Joseph [29]:

"A drug treatment order is a sentencing option which places emphasis on the rehabilitation of the offender. It is not without punitive effect because it will require, on the part of the offender, onerous application to the program put in place by the order, and carries with it the potential for activation of the custodial component of the order in the event of default. However, it is still an alternative to imprisonment, where

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imprisonment would otherwise be the outcome. If a drug treatment order is made, the court is making a choice to place emphasis on rehabilitation as the primary sentencing aim in preference to other sentencing objectives such as general deterrence and retribution. It may be argued that general deterrence is given effect by the custodial component of the order, and the onerous requirements of the treatment and supervision part of the order, and, further, that specific deterrence is also achieved by the custodial component of the order. It might also be argued that a person who otherwise meets the criteria for the making of a drug treatment order, with the appropriate commitment and expectation of success of that order, is not an appropriate vehicle for general deterrence. However, the primary focus of the order is rehabilitation, and, as it is a more lenient sentencing order than imprisonment, other punitive aims such as general deterrence are necessarily given less emphasis."

37 In considering whether a drug treatment order is appropriate, as Brett J explained, "it is necessary to consider whether the order, as a sentence, will appropriately respond to the various sentencing considerations relevant in the circumstances of the particular case" [28]. His Honour observed that the "objective seriousness of the crime will affect the relative emphasis placed on competing considerations in the process of determining sentence" [30]. His Honour added that although there is no express statutory restriction as to when a drug treatment order may be made, by reference to the objective seriousness of the crime, nevertheless, "in order to be satisfied that a drug treatment order is appropriate in all of the circumstances, the court will need to be satisfied that the order will properly respond to the various aims of sentencing appropriate to the case". Correctly, his Honour concluded that in some cases, having regard to the seriousness of the crime, the result might be that the court "cannot be satisfied that a drug treatment order is appropriate" [31].

38 In the context of the purposes of the scheme, and in particular the purpose of a drug treatment order, the first step is consideration of whether it is appropriate to order an assessment report which is aimed at establishing whether the offender is a suitable subject for a drug treatment order. Section 27D requires a court to order an assessment report if it is "considering making a drug treatment order". If the court is not considering making such an order, it would be inappropriate to order an assessment. If, by reason of the seriousness of the offending or other considerations, it is obvious to a court that a drug treatment order would be inappropriate, obviously it would be futile and a waste of valuable and scarce resources to order assessment in such circumstances.

39           I am unable to discern any error in the approach of the trial judge to the belated request to order an assessment. No material was advanced to the trial judge which might cause his Honour to consider making a drug treatment order, rather than requiring the appellant to serve a term of imprisonment. His Honour was dealing with serious drug offending by an offender who had, on more than one occasion, previously offended against the drug laws in a serious way and had not been deterred by a previous sentence of imprisonment or conditions of bail.

40           In submissions as to penalty, counsel pointed out that the appellant had not committed any further offences since his arrest and had been able to continue employment. As to rehabilitation, counsel informed the trial judge that since being arrested, the appellant "has been attempting to address his drug addiction and though he still struggles with it, he certainly indicates that he's making progress in terms

of rehabilitation …".

41           In submissions on 30 October 2020, counsel informed the sentencing judge that the appellant had raised with her "his desire to obtain treatment and assistance in relation to his illicit substance abuse". In addition, counsel submitted that if the appellant was able to successfully take part in a drug treatment order, enabling the appellant to rehabilitate himself through the order would be in the interests of justice.

42   In rejecting the application for an assessment, the trial judge delivered the following ex tempore

remarks:

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"… I need to consider is whether this was too serious a case of trafficking for – for a

drug treatment order, and I think it was too serious a case of trafficking.

Mr Bell had a – a prior conviction for trafficking in methylamphetamine in 2007. He

was found in possession of a total of twenty eight point eight grams of the drug. It wasn't possible to determine how much of that was for his personal use, but all I could say was that he was a heavy user and a significant component would have been for personal use. But if everything he had had been sold by the point then it would have yielded twenty eight thousand eight hundred dollars. And if he'd cut it with the cutting agent that was in his possession it would have been over thirty thousand dollars' worth. Now, I don't know whether he had ten thousand dollars' worth for sale, or twenty thousand dollars' worth for sale. But it was his second trafficking conviction, and he was on bail on drug related charges. And if he did want to do something about rehabilitation that desire didn't lead him to plead guilty. Of course it was his right not to, but it's not a case where he pleaded guilty."

43           The trial judge then observed that he had not been advised of any steps taken toward rehabilitation between arrest and trial. After adjourning, however, his Honour reconsidered the position and returned to explain that he had overlooked the submission in the plea in mitigation to which I have referred. His Honour concluded, however, that the submission did not "tip the balance in favour of considering a drug treatment order" and, in confirming that the application was dismissed, said:

"I still regard this as too serious a case for anything other than actual imprisonment."

44           In my view, the sentencing judge was correct in refusing the application for an assessment. His Honour was not considering making a drug treatment order because, in his view, the only appropriate sentence was a period of imprisonment to be served. I agree.

45           The principles governing appeals against sentence on the sole ground of manifest excess are well settled and need no discussion.[8] In essence, absent apparent error by the sentencing judge, the appellant must demonstrate that the sentence is unreasonable or plainly unjust.

[8] Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]-[34]; Director of Public Prosecutions (Acting) v Pearce

46           I am far from persuaded that, in any respect, the sentence was manifestly excessive or that the sentencing discretion miscarried in any way. In my view the trial judge was correct in refusing the application for an assessment related to a drug treatment order. As to the period of imprisonment, his Honour possessed a wide discretion and took into account all relevant matters. In my opinion, the sentence of imprisonment for two years, and the non-parole period of 16 months, were well within the range of the sentencing discretion.

47   For these reasons, I agreed that the appeal should be dismissed.

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File No CCA 2114/2020

MARK ANTHONY BELL v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARSHALL AJ
19 March 2021

48   I agree with the reasons for judgment of Martin AJ.

9   No 3/2021

File No CCA 2114/2020

MARK ANTHONY BELL v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER AJ
19 March 2021

49   I agreed that this appeal should be dismissed, essentially for the reasons given by Martin AJ.

Upston v Tasmania [2018]TASCCA 4, 30 Tas R 262.

Le v Tasmania (above) at [24].

[2015] TASCCA 1; 28 Tas R 1 at [3]; Farhat v Tasmania [2017] TASCCA 3, 29 Tas R 28 at [20]-[22].