Brooks v Tasmania
[2009] TASSC 121
•23 December 2009
[2009] TASSC 121
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Brooks v Tasmania [2009] TASSC 121
PARTIES: BROOKS, Loretta Ann
v
TASMANIA (STATE OF)
FILE NO/S: 383/2009
DELIVERED ON: 23 December 2009
DELIVERED AT: Hobart
HEARING DATE: 10 November 2009
JUDGMENT OF: Tennent, Porter and Wood JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Whether head sentence of 18 months' imprisonment for trafficking in methylamphetamine manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: G A Richardson
Respondent: A Hensley
Solicitors:
Appellant: G A Richardson
Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 121
Number of paragraphs: 25
Serial No 121/2009
File No 383/2009
LORETTA ANN BROOKS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
PORTER J
WOOD J
23 December 2009
Order of the Court
Appeal dismissed.
Serial No 121/2009
File No 383/2009
LORETTA ANN BROOKS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
23 December 2009
I have had the opportunity to read the reasons of Wood J and agree with those reasons. I would also dismiss the appeal.
File No 383/2009
LORETTA ANN BROOKS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
23 December 2009
I agree with the reasons for judgment of Wood J and would also dismiss the appeal.
File No 383/2009
LORETTA ANN BROOKS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
23 December 2009
Appeal against sentence
The appellant was found guilty by a jury of trafficking in a controlled substance, namely, methylamphetamine, contrary to the Misuse of Drugs Act 2001, s12(1), and sentenced to a period of 18 months' imprisonment with 8 months suspended on conditions. The appellant appeals the sentence as manifestly excessive.
Circumstances of offending
The circumstances of the offending were set out by the learned sentencing judge in terms that were not challenged and, in essence, are as follows. For a period of three years the appellant had trafficked in methylamphetamine. The offending period was from February 2004 to February 2007. On 2 February 2007, police searched the appellant's home and found a total of 44 grams of methylamphetamine. The police also found $2,560 in her purse. This money represented the proceeds of about three weeks' sales and was typical of the amount she would receive for sale transactions over such a time. The appellant's account that she had sold the drug at a price of $150 for half a gram was accepted by the learned sentencing judge. On the basis of this information it was inferred that the appellant had sold at least $120,000 worth of the drug over the preceding three years.
Circumstances of the offender
The appellant has convictions for less serious drug offences, some of which fall within the period of trafficking. These convictions were duly noted by the learned sentencing judge:
"You have not been to prison before, but you have convictions for less serious drug offences committed in January and February 1997, 1999, 2000, August and September 2004, and 2005. In May 2006, a magistrate dealt with some of those offences and imposed a suspended sentence of one month's imprisonment. It was suspended on condition that you be of good behaviour and commit no offence against the Misuse of Drugs Act 2001 for two years. Your trafficking in methylamphetamine continued for about nine months after that suspended sentence was imposed, and that counts against you today."
It is worth expanding upon the prior offending. Mostly, the prior convictions relate to use or possession of a prohibited or controlled substance or a narcotic. In addition, the appellant committed two offences of selling a prohibited substance in 1997, and for these offences she received a probation order. She also has a prior conviction of supplying a controlled plant from September 2004 to February 2005. For this offence and other related drug offences the appellant received a suspended sentence of imprisonment of one month imposed in May 2006. As shown above, the learned sentencing judge made specific reference to this sentence and the fact that it had been breached by the trafficking conduct. An offence of possession of a controlled plant committed in August 2004 was dealt with by the Magistrates Court in May 2007 after the trafficking conduct.
The appellant had a history of offending for matters that are not drug related, and these include a small number of prior offences for possession of stolen property and assault, and a number of offences for driving whilst her licence was suspended and driving whilst disqualified. The most recent prior conviction for driving whilst disqualified was dealt with by the same court which had imposed the sentence of one month's imprisonment for the drug offences in May 2006, and the appellant received a suspended sentence of imprisonment of three months. That sentence was suspended on condition she be of good behaviour and that she commit no offence of driving whilst disqualified for three years. As noted by the learned sentencing judge, the appellant had not received a term of actual imprisonment before the sentence under consideration.
The learned sentencing judge noted the appellant's age of 33, and went on to note the following matters in mitigation:
"I accept your evidence to the effect that you have been a drug user for all your adult life, but that you cut back your drug use dramatically when you became pregnant with your daughter, who is now 4 years old, and have continued to use drugs at a relatively moderate level ever since. I accept that you regret having got into the situation that you are in today, and that you want to make a new life for yourself."
The sentence
The learned sentencing judge commented on the sentence to be imposed in the following terms:
"Because you sold so much methylamphetamine over so long a period, I think imprisonment is the only appropriate penalty. But because of your changing attitude to drugs, and because this is your first trip to prison, I am going to suspend a large part of your sentence. If you re-offend, you can expect to serve the suspended part of this sentence, in addition to any other penalty you might get as a result of re-offending."
The appellant was sentenced on 8 May 2009, backdated to 5 May 2009. The suspended portion of the sentence (eight months) was subject to the condition that the appellant commit no crime involving illegal drugs for three years after her release from prison. A probation order for a period of 12 months after release was also imposed with some special conditions - that the appellant attend educational and other programs as directed by a probation officer, that she undergo assessment and treatment for drug dependency as directed by a probation officer, and that she submit to testing for drug use as directed by a probation officer. There was also an order for forfeiture made in relation to the money seized by police from the appellant's purse.
Submissions for the appellant
Counsel for the appellant submitted that the sentence was manifestly excessive in the circumstances of the case and that an examination of all the sentences imposed for this crime over the past four years demonstrates that the sentence was harsher than any sentence previously imposed on analogous facts. There was no specific complaint in relation to the length of the portion of the sentence that was suspended, and no argument that it gave inappropriate weight to the appellant's personal circumstances and prospects of rehabilitation. The submissions on behalf of the appellant focused on the head sentence of 18 months, arguing that the sentence was too long relative to other sentences imposed by this Court. Counsel for the appellant did not rely on statistical data as revealing the sentencing range (indeed data in relation to trafficking sentences referred to by Professor Warner in Sentencing in Tasmania, 2nd ed, Federation Press, 2002, while relevant, predates the Misuse of Drugs Act and relates to only a relatively small number of sentences) but rather reference was made to individual cases of trafficking and comments on passing sentence. Consideration was given to cases where the offenders were sentenced for trafficking in amphetamine or other similar drugs over the last four years, with particular consideration given to cases where the total value of drugs sold during the course of trafficking was worth between $50,000 - $150,000.
Submissions for the respondent
Counsel for the respondent made submissions emphasising some of the facts of this case, noting there was persistent offending over a period of three years in relation to drugs of considerable value. It was pointed out that the average amount received from sales transactions was $800 per week involving a minimum total of 800 transactions over three years. It was submitted that a consideration of other sentences showed that it is difficult to locate comparable facts and that there exists a wide sentencing range reflecting the range of cases. Submissions for the respondent referred to various sentences that had some features in common with this case, submitting that they showed that heavier sentences have been imposed in cases that are similar to the sentence under consideration.
General sentencing considerations relating to trafficking
Professor Warner in Sentencing in Tasmania at 13.103, noted general considerations in sentencing for drug offences including the nature of the drug, quantity and value of it, and the role of the offender. In cases of trafficking, sale and supply, the consumer of the drug is relevant. In relation to the consumers of the drug in this case, counsel for the appellant drew attention to the fact that the appellant did not introduce the drug to non-users but sold to an existing market, and transactions took place when she was approached by people seeking to purchase methylamphetamine. Counsel for the respondent did not dispute that the appellant sold to an existing market of drug users but submitted that by being involved in the distribution of drugs to users, there was always a risk of introducing it to non-users.
It is an obvious fact that once drugs are sold to a purchaser, the seller has no control as to the exposure of others to the drugs. Indeed, in some cases the purchaser will not be the ultimate consumer but a sub-dealer, who then sells all or some of the purchase, making his/her own profit from the distribution of drugs.
It is accepted that it is valid to draw a distinction between traffickers whose distribution base is people who are already drug users, actively seeking the purchase of drugs, and those traffickers who deliberately expose drugs to non-users or engage in the indiscriminate supply of drugs. However, accepting this distinction is not to minimise the harm caused by selling drugs exclusively to drug users, thereby supporting their use or addiction. Without the ready availability of drugs, people who are drug users or addicted to drugs have a greater chance of reducing their intake or ridding themselves of their addiction. The damage caused to individuals by their drug use and addiction covers a spectrum of tragedy and misery, including lives that are cut short, involvement in criminal behaviour to fund drug use, poor health and debilitating sickness, and the lives of young people remaining unfulfilled. This Court has often emphasised that drug trafficking is a serious crime, requiring a deterrent penalty reflecting the damaging impact of drug use and addiction on the lives of individuals and their families, and the widespread implications of that damage for the community.
Comparable sentences?
As noted, to support the contention that the sentence imposed in this case of 18 months was excessive, counsel for the appellant provided the Court with examples of sentences for the purpose of comparison. Sentences involving trafficking in "middle range" drugs (covering drugs such as methlyamphetamine: R v Cronn and Bladon (1983) 34 SASR 555) from the last four years were selected, highlighting instances where the total value of drugs sold fell within the range of $50,000 - $150,000. It is noted that the total value of drugs in this case falls at the upper end of that range. It is also noted that the total value of drugs referred to by the learned sentencing judge was the amount the appellant actually received by selling as she did in half gram lots, and not information about the potential value of the drugs on the street if the same quantity of drugs was to be sold in smaller quantities. It may be expected that the potential street value of the drug sold by the appellant would have been more than she received.
It is noted that a review of the comments on passing sentence shows that a comparison of information on the value of drugs cannot be done with any precision. Information provided to the sentencing judge on this issue varies from case to case. In some cases a value is not known; in other cases the value provided is a total of the amount the trafficker expected to receive for the drugs at each transaction, whether it be bulk sales or in smaller quantities such as "deals". Sometimes the potential street value of the drug, if the drug was to be "cut" and/or packaged into smaller quantities, is provided.
The process of comparing comments on passing sentence in order to define the sentencing range can be problematic. This proved to be so in this case for a number of reasons. To begin with, not all the relevant sentences were referred to the Court. Further, this is a case where a broader perspective of sentences imposed for the crime of trafficking, other than the category of sentences referred to by Counsel for the appellant, assists in ascertaining the sentencing range.
Another difficulty with relying on comments on passing sentence to define the sentencing range in this case was that the sentences referred to by Counsel for the appellant (middle range of drugs of a certain range of value that were imposed over the last four years) involved a relatively small number of cases which vary greatly in terms of the scope of criminal activity and aggravating and mitigating factors. Not surprisingly, many of the cases are not similar with respect to key considerations such as the total quantity of the drug distributed, role of offender, period of offending, and other considerations, such as whether there was a discount for a plea of guilty and whether the offender had any prior convictions or was subject to a court order requiring good behaviour.
Comparing the comments on passing sentence in those cases with this case invited a process of repetitive evaluation of aggravating and mitigating features of one case against another which is a task that has been described as unproductive, if not impossible: Kinniburgh v R 73/1995 per Wright J at 2. I consider that the comments on passing sentence in the cases relied upon do not provide an accurate basis for defining the sentencing range for this case. They do, however, provide a useful reference to sentences imposed in cases that are broadly similar to this case.
Discussion
Having reviewed the comments on passing sentence in the category of cases for trafficking in middle range drugs, it is apparent that, contrary to the submission made on behalf of the appellant, the sentence in this case is not higher than all other sentences imposed for this kind of offending. Admittedly, it seems that the sentence imposed in this case is higher than some other sentences imposed for more serious trafficking. However, it is also apparent that this sentence is in the same approximate range as sentences imposed in other cases (for example, Parker, 5 August 2009, 15 months' imprisonment for trafficking in $72,000 worth of drugs) and it is the same as the head sentence in another case (Bell, 3 August 2007, 18 months' imprisonment with a non-parole period of 12 months). Another matter to note is that the sentence in this case is significantly lower than a sentence imposed for trafficking in a case involving a much smaller value of drugs (see Pregnall, 3 December 2007, involving a street dealer trafficking in a total value of $36,000 worth of methylamphetamine, in which case a sentence of 3 years' imprisonment was imposed).
In assessing whether the sentence is harsher than other sentences that have some similar factual circumstances, it is noted that the sentence here is substantially lower than other sentences imposed for trafficking in similar drugs of approximately the same value. Sentences of two and half years, three years and four years have been imposed. While these cases have involved more serious trafficking and substantial aggravating factors not present in this case (Wisniewski v Tasmania [2007] TASSC 25, Oxford, 23 November 2005, Hodgetts, 9 May 2007) they provide a general perspective of the sentencing range and demonstrate that a sentence of 18 months in this case is not outside that range. Whilst this case is not in the same category, there are, nonetheless, serious features which include:
· Offending over 3 years with average sales of $800 per week.
· The appellant had prior convictions for drug offences, but more particularly trafficked for a period of nine months when subject to a suspended sentence for drug and other offences.
Conclusion
Having regard to sentences imposed by this Court for trafficking in drugs of a similar kind to methylamphetamine, it is concluded that the head sentence imposed of 18 months was well within an appropriate exercise of the sentencing discretion.
Moreover, in this case the learned sentencing judge showed leniency to the offender by suspending a substantial portion of the sentence. The terms of suspension and the probation order show that careful attention was given to the circumstances of the appellant and her prospects of rehabilitation. It is to be noted that it is not common for sentences of imprisonment imposed for trafficking in drugs such as methylamphetamine to have any portion suspended.
In all the circumstances, I am not persuaded that the sentence is manifestly excessive. The appeal ought be dismissed.
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