Cardile v The Queen
[2003] WASCA 72
•3 APRIL 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: CARDILE -v- THE QUEEN [2003] WASCA 72
CORAM: MALCOLM CJ
MURRAY J
WHEELER J
HEARD: 7 MARCH 2003
DELIVERED : 3 APRIL 2003
FILE NO/S: CCA 168 of 2002
BETWEEN: GUISEPPE CARDILE
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal procedure - Appeal against sentence - Attempt to possess heroin with intent to sell or supply - Whether sentence of 7 years' imprisonment and $40,000 fine manifestly excessive - Whether disparity between sentence and sentence of co-offender - Whether insufficient discount given for plea of guilty
Legislation:
Criminal Property Confiscation Act 2002 (WA), s 12, s 17
Misuse of Drugs Act 1981 (WA), s 33(1)(b), s 33(2), s 34(1)(b)
Sentencing Act 1995 (WA), s 8(2), s 8(5), s 37A
Result:
Application for leave to appeal granted
Appeal allowed in part
Category: B
Representation:
Counsel:
Applicant: Mr J P Dickinson
Respondent: Mr K P Bates & Mr S F Rafferty
Solicitors:
Applicant: Zygmunt Zayler
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cameron v The Queen [2002] HCA 6; (2002) 76 ALJR 382
Collins v The Queen [2002] WASCA 142
Grimwood v The Queen [2002] WASCA 135
Ma v The Queen [2001] WASCA 325
Mada v The Queen [2003] WASCA 1
Miles v The Queen (1997) 17 WAR 518
Prince v The Queen (1998) 144 CLR 610
R v Hafner [2002] WASCA 211
R v Ma (2001) 125 A Crim R 349
R v Radebe (2001) 122 A Crim R 559
Radebe v The Queen [2001] WASCA 254
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Case(s) also cited:
Krakouer v The Queen (1991) 107 A Crim R 408
Postiglione v The Queen (1997) 189 CLR 295
S v The Queen [2000] WASCA 34
Stol v The Queen (1989) 44 A Crim R 137
MALCOLM CJ: In my opinion, this application for leave to appeal should be granted and the appeal allowed but only to the extent of quashing the fine imposed upon the application. I have reached this conclusion for the reasons to be published by Wheeler J with which I agree.
MURRAY J: I have had the considerable advantage in this case of being able to read in draft the reasons for decision now published by Wheeler J. I am in general agreement with them and wish only to add a few observations by way of additional explanation of the fact that I have come to the same conclusion as her Honour.
As to the alleged disparity when the sentence imposed on the applicant is compared with that imposed on the co‑offender Hafner, I have something to add to what Wheeler J has written. I am attracted to the proposition that although the applicant and Hafner committed different offences and in the case of Hafner the offence of conspiracy was punishable by the greater penalties to which her Honour has referred, it remained necessary to have regard to their respective culpability at opposite ends of the proposed transaction. I agree that in that regard it was open to the sentencing Judge to form the view, as did this Court, that Hafner was dealt with leniently: R v Hafner [2002] WASCA 211.
It is undoubtedly the case that it was proper to regard Hafner as being at a high level in the proposed transaction, having regard to his contact with the ultimate supplier and his involvement at every point in the process of arranging for the applicant to receive a sample, arranging the sale and collecting the money. It was Hafner who had contact with Milenkovski. It was Hafner who arranged for the money courier, Hickey and the drug courier, Kiraly. I do not need to detail the events which took place which amply demonstrated the sophisticated and professional nature of the proposed transaction.
On the other hand, the applicant was to be the ultimate purchaser, for about $100,000, of a significant quantity of heroin which he was proposing to resell in WA. His was an involvement entirely for profit and he did everything he could to ensure that the sale took place. That it did not do so was, as Wheeler J says, entirely due to the effective surveillance operation carried out by the investigating police. The applicant was a recidivist offender, a man of mature years who had accumulated substantial wealth. He was found to have shown no remorse and, apart from the plea of guilty, he did not cooperate in the police investigation and the processes of justice.
In my view, within the context of an offence of attempt punishable by 12‑1/2 years imprisonment and/or a fine of $50,000, the sentence of 7 years imprisonment was in no way excessive and parity arguments do not, in my opinion, avail the applicant to achieve any reduction of that term.
As to the discount provided for the plea of guilty, this was a plea made at an early stage of the proceedings involving the applicant. Under the Sentencing Act1995 (WA) s 8(2), the plea of guilty was therefore not only a mitigating factor, but it was to be remembered that because it was made early in the proceedings the mitigation was greater than if the plea had been later. It was right that it receive a substantial discount and it seems that it caused the sentencing Judge to impose a sentence which was 2 years shorter than his Honour would otherwise have imposed absent the plea. I respectfully agree with Wheeler J that in the circumstances of this case that is a substantial allowance in mitigation of sentence. The sentencing Judge explained clearly the reasons why his Honour chose to exercise his discretion so as to make the discount he did. I can detect no error in his Honour's approach.
I feel obliged, however, to comment on the approach to this matter which appears to lie behind the way in which ground 4 of the application, the ground which complains that the discount for the plea of guilty was insufficient, is worded. It appears to assume that it will always be appropropriate to make a discount by way of percentage reduction of a sentence which would otherwise have been imposed. In support of the ground it was submitted that a 2 year reduction of a 9 year sentence represented a discount of just over 22 per cent.
In R v Radebe (2001) 122 A Crim R 559, McKechnie J, with whom Malcolm CJ and Anderson J agreed, at the conclusion of a discussion of the considerations which may guide the exercise of the discretion as to the mitigatory force of a plea of guilty, said that, "it is likely to be an unusual case where a sentence for a fast-track plea of guilty will not be reduced by at least 25 per cent following the plea of guilty." (564[28]). Radebe, among other cases, was relied upon by Roberts-Smith J, with whom Steytler J agreed, in R v Ma (2001) 125 A Crim R 349 at 361[101], for the proposition that a plea of guilty should ordinarily attract a substantial discount on sentence, ranging between 25 and 35 per cent.
For myself, with respect, I would see no reason to dissent from the way the matter was put by Malcolm CJ, with whom Pidgeon and White JJ agreed, in Miles v The Queen (1997) 17 WAR 518 at 521 when his Honour said, "It is the fact that the discount for a plea of guilty under the fast‑track system has ranged between 20-25 per cent up to 30‑35 per cent, depending upon the circumstances."
Of course, the magnitude of the discount is part of the exercise of sentencing discretion and the discount for a plea of guilty will fall to be considered in many cases with other mitigatory circumstances which may form part of a complex mix of facts bearing on the sentence finally arrived at, proportionate to the criminality involved in the offence in the circumstances of its commission and having regard to all relevant circumstances personal to the offender. The task of the sentencing court is, subject to the approach dictated by the Sentencing Act, s 8(2), to make a proper evaluation of the worth of the plea for sentencing purposes. That task will be guided by the considerations to which the High Court adverted in Cameron v The Queen (2002) 76 ALJR 382. For present purposes I need not discuss them.
Having reached a conclusion, the task of the sentencing court is to explain in remarks upon sentence the reasons which have moved the court in the exercise of its discretion. There is no obligation in performing that task to quantify different elements of the sentencing process, subject to what must be done in respect of an allowance for an undertaking to assist law enforcement authorities, having regard to the terms of the Sentencing Act s 8(5) and s 37A. Since the decision of the High Court in Wong v The Queen (2001) 207 CLR 584 and other recent decisions it seems to me that a sentencing court should not be beguiled into the fruitless search for mathematical certainty by endeavouring to quantify the various elements of the sentence imposed.
This Court has frequently analysed the sufficiency of the discount given for a plea of guilty by noting that the discount appears to represent a certain percentage reduction of the sentence which would otherwise be imposed, but the Court has never held that it is necessary, in imposing sentence, to take that course. For myself, I find it unhelpful that the argument put in this case is simply that the percentage reduction was 22 per cent when it ought to have been somewhere between 25 and 35 per cent and upon that ground the sentencing process is said to have miscarried.
Such an argument is unhelpful because it distracts from the question whether, in all the circumstances of the case, the sentencing Judge has made a proper evaluation of the worth of the plea: cf the judgment of this Court, Wallwork, Murray and Miller JJ, in Collins v The Queen [2002] WASCA 142 at par [35]. When the task of making a proper evaluation of
the worth of this plea is undertaken, I agree with Wheeler J that it cannot be said that in all the circumstances of the case the sentencing Judge undervalued the plea to the extent necessary to warrant interference with the sentence by this Court upon that ground.
As to the question of the fine, it seems to me that in the circumstances of this case it is unnecessary to consider the processes currently being undertaken under the provisions of the Criminal Property Confiscation Act 2002 (WA) or the effect of the forfeiture of the applicant's property in relation to the sentence to be imposed: cfMada v The Queen [2003] WASCA 1. It is not yet clear, as I understand the position, that the processes currently being undertaken will result in any substantial loss of the applicant's property.
However, for the reasons given by Wheeler J it does seem to me that the fine of $40,000 should not have been imposed in addition to the sentence of imprisonment. I have nothing to add to what Wheeler J has written in that regard. I too would grant leave to appeal and allow the appeal to the extent necessary to set aside the fine.
WHEELER J:
The application
This is an application for leave to appeal against sentence. The applicant was convicted on his plea of guilty of attempting to possess heroin with intent to sell or supply to another contrary to s 33(1) of the Misuse of Drugs Act 1981 (WA). He was sentenced to 7 years' imprisonment with an order for eligibility for parole and was fined $40,000 to be paid within six months of the date of sentence. The circumstances out of which this matter arose are as follows.
In February 2001 one Hafner contacted an associate of his named Milenkovski. Hafner was at the time resident in Melbourne and Milenkovski in Perth. Hafner asked Milenkovski to take a small quantity of a drug to the applicant as a sample. Milenkovski was given instructions about going to the applicant's coffee shop in Northbridge. Hafner then telephoned the applicant and confirmed that Milenkovski would visit the coffee shop and discussed with him certain codes relating to the identification of Milenkovski and relating to drugs.
In March 2001 the applicant rang Hafner, who said that he could obtain 12‑1/2 ounces of heroin at $9,000 an ounce for the applicant. The
applicant told Hafner not to be concerned about the price and asked him to send another offender, one Hickey, to pick up the money.
The following day, 1 April, Hickey was observed arriving in Perth on a flight from Melbourne. Hickey went to the applicant's coffee shop and the applicant conveyed Hickey to a motel in Dianella. A telephone conversation between Hickey and Hafner at that stage was to the effect that the applicant had by then paid $50,000 of the $100,000 which it had been agreed would be the total price of the heroin. Hickey returned to Melbourne.
The next day Hafner rang the applicant and discussed with him the fact that more money was required on top of the $50,000 already paid for the heroin. Hafner suggested giving the applicant some account numbers to put the money into but the applicant said that he was too scared to do that himself and asked for Milenkovski to pick the money up. After a number of calls between various offenders, the applicant and Hafner arranged for Milenkovski to meet the applicant at Dog Swamp. It appears that the money was in due course put into a number of accounts in amounts small enough to avoid reporting under the Austrac system.
On 3 April the applicant again telephoned Hafner, and discussed with him the time the drug courier would leave Melbourne. They also discussed the fact that the first "gear" that Hafner saw was not good quality. Hafner asked if the courier could go for a coffee, meaning to meet at the applicant's coffee shop, but the applicant said he had already told the courier where to go. Hafner then arranged for Milenkovski to pick up the courier, one Kirale. Hafner later telephoned the applicant and advised him that not all the money had been paid and there was still a further $7,500 plus $750 for the airfare owing.
Mr Kirale did bring a quantity of heroin to Western Australia from Melbourne. He was intercepted by police at Perth Airport. The heroin was 244 grams of 13 per cent purity.
The applicant attended at the motel at which he was to meet Kirale, but Kirale, of course, did not meet him. Numerous telephone calls between Hafner and the applicant were intercepted and demonstrated their speculation about what might have happened to Kirale and Milenkovski.
The applicant did not make any admissions when interviewed by police, nor did he co‑operate with police in any way in the investigation of these offences. However, in due course he did enter a plea of guilty, which the Crown accepted to be the equivalent of a "fast track" plea.
The other offenders, Hickey, Hafner, and Kirale, were all charged with conspiring with each other to supply a prohibited drug, namely heroin, to another contrary to s 33(2) of the Misuse of Drugs Act. All but Kirale entered pleas of guilty and Kirale was convicted after trial. At one time the applicant too had been charged with conspiracy, but, it being accepted by the Crown that a purchaser and seller could not be charged with the same conspiracy to supply to the purchaser, he was ultimately charged with attempt to possess heroin with intent to sell or supply. It was to that indictment that he pleaded guilty.
The maximum penalty applicable to the charge of conspiracy under s 34(1)(b) of the Act was one of 20 years' imprisonment and/or a fine of $75,000, while the maximum penalty applicable to the offence of which the applicant was convicted was 12‑1/2 years' imprisonment and/or a fine of $50,000. The sentences imposed on the other offenders in relation to the conspiracy to supply heroin were as follows:
Hafner - 7 years, with eligibility for parole.
Hickey - 5 years, with eligibility for parole.
Kirale - 5‑1/2 years, with eligibility for parole.
Hafner's sentence was the subject of a Crown appeal which was dismissed on the basis that the sentence, although lenient, was not so manifestly inadequate as to attract the intervention of the Court of Criminal Appeal: R v Hafner [2002] WASCA 211.
The applicant raises essentially four issues in this application. First, he submits that the sentence of 7 years' imprisonment with eligibility for parole is manifestly excessive, when regard is had to the quantity and purity of heroin involved; secondly he submits that there is an inappropriate disparity between the sentence imposed on him and on Hafner; thirdly he submits that the learned sentencing Judge was in error, having commenced at a "starting point" of 9 years' imprisonment, in applying a discount of less than 25 per cent (being 22.2 per cent) for the plea of guilty; and, finally, he submits that his Honour erred in imposing a fine in addition to a term of 7 years' imprisonment.
The fine
It is my view that leave to appeal should be granted, and the appeal allowed, in relation to the fine. The sentence of imprisonment imposed by his Honour, while in my view justified for reasons which I canvas shortly, was nevertheless a substantial one which fully reflected the gravity of the offence, having regard to the circumstances of the applicant. If the sentence of imprisonment of that magnitude was proportionate to the offence, it follows that the imposition of any further punishment would be excessive.
It does not appear from his Honour's reasons that any particular circumstances of the applicant led him to impose the fine; rather, it resulted from a view about such offences generally that "those who are involved in the drug trade purely for money ... should receive significant fines in addition to terms of imprisonment ... ". In relation to a profitable trade such as the drug trade, it may often be the case that the imposition of a fine is appropriate, since a financial penalty may be assumed, if of sufficient magnitude, to deter those whose motivation for offending is financial gain. However, the overall sentence must be one which is proportionate to the gravity of the offending, and it is not appropriate to impose a fine as a matter of policy in every case, in addition to what would otherwise be an appropriate sentence of imprisonment.
In any event, in this case his Honour did not raise with the applicant's counsel the possibility of the imposition of a fine, before he imposed that sentence. Whilst an applicant who is represented by counsel must be taken to be aware of the penalties available under statute, there are particular considerations relevant to the imposition of a fine which make it desirable for a sentencing Judge to canvas the question of a fine prior to its imposition.
In this case, the applicant's assets had been frozen pursuant to the Criminal Property Confiscation Act 2002 (WA). His Honour allowed time to pay and gave the applicant liberty to apply for an extension of that time. However, the problem with imposing such a penalty in a situation where it was not known whether all of the applicant's assets will ultimately be confiscated, is that, should those assets be ultimately forfeited by the applicant, the effect of the imposition of the fine would inevitably be a significant increase in the length of the term of imprisonment which he had to serve.
In my view, the well‑established principle that a fine should not be imposed where there is no capacity to pay it necessarily carries with it the further proposition that a fine should not be imposed when it is not known, for reasons beyond the offender's control, whether the offender will be in a position to pay it. I consider that his Honour was in error in not adverting to this consideration.
Further information about the state of the applicant's assets, received on the appeal, establishes that the Crown has made application for an unexplained wealth declaration, and an acquisition of criminal benefit declaration, pursuant to s 12 and s 17 of the Criminal Property Confiscation Act 2002 (WA). Those matters have not been determined. However, since a foreseeable result is the loss of all the applicant's assets, the same considerations would apply in respect of those applications.
Whether sentence manifestly excessive
The applicant was almost 58 years of age at the time of sentence. He left school at an early age, but unlike the majority of offenders, had worked hard and continuously since then. He commenced work in his family's market garden, later purchased land for a market garden of his own, and in his later years had been deriving income from the rents of a variety of properties which he had purchased over the years with the proceeds of market gardening. His assets were in excess of $2 million. He had been married for a long time and had four adult children, three of whom had never been in trouble of any kind.
He was not however a person who could be described as being of good character, since he had a conviction in 1982 for possession of cannabis with intent to sell or supply, for which he was fined $4,000 and sentenced to 5 months' imprisonment, and a conviction in 1987 for possession of heroin with intent to sell or supply for which he was fined $15,000 and sentenced to a term of 3 years' imprisonment with a minimum of 18 months. There were other less significant offences relating to driving and possession of firearms.
As I have noted, he made no expression of remorse and did not co‑operate with police.
It was said by his counsel that since his arrest, during a period spent in prison when he was unable to obtain bail, he had developed a deep interest in Buddhism, had commenced a regular course of meditation, and had been assisted by that philosophy to accept responsibility for his actions.
It is plain from the personal circumstances of the applicant that he was, as his Honour noted, motivated by greed. When asked by his Honour about the applicant's motivation, his counsel referred to it as a decision to "make an investment" and that is plainly the situation. With very many offenders who are convicted of offences relating to the supply of drugs there is an explanation, in part, which stems from the offender's own use of drugs. That drug use often means that offenders are in financial need, either because they are in debt to drug dealers or because they have a perceived need to obtain money to feed their own addictions. Such offenders often suffer from disordered thinking and perception caused by their drug use and often do not have a very clear idea of the harm involved in supplying to others drugs which they find rewarding to use in their own lives. While these factors do not excuse such offences, and while offenders who are themselves addicts can nevertheless expect to be dealt with severely, these factors often do provide some mitigation. No such mitigation was available to this applicant, who made a hard‑headed commercial decision with a very clear understanding of the risks involved.
The submissions of the applicant in relation to the alleged excessiveness of the sentence revolved primarily around the "starting point" of 9 years nominated by his Honour, and the amount of pure heroin involved in the offence.
It was also submitted by the applicant that it was relevant that if the offence had been a completed offence, the Crown conceded that it would not have been the worst offence of its kind, in part because of the quantity and in part because of the range of circumstances in which a person can be found in possession of drugs with intent to sell or supply. However, in relation to this last point, it was conceded that one could not arrive at an appropriate sentence for an attempt by some mathematical exercise which involved evaluating what sentence would have been imposed for a completed offence and performing a calculation which resulted in the sentence for the attempt bearing the same relationship to that sentence as the maximum sentence available for an attempt bore to the maximum available for the completed offence.
The main difficulties with the applicant's submissions in relation to "manifest excess" appear to me to be difficulties of principle. When the court considers the question whether there has been error, it looks to the sentence actually imposed. Whether the "starting point" is excessive or inadequate, that is not a "sentence" which this Court reviews: Grimwood v The Queen [2002] WASCA 135.
Further, although it is accepted that the quantity and purity of the drug involved in any drug offence will always be relevant considerations, they are not decisive: Wong v The Queen [2001] HCA 64 at [69] (Gaudron, Gummow and Hayne JJ). The scale and nature of the enterprise, the role played in it by the offender, and the reward which the offender hopes to obtain are all, where they can be ascertained, of great importance: Wong v The Queen at [64].
In this case, as is apparent from the facts to which I have referred, the enterprise was a significant one, to the applicant's knowledge. It involved an effort over a period of time to bring drugs from Victoria to Western Australia for distribution here. The applicant was, as his Honour the learned sentencing Judge found, one of the principal offenders in the enterprise. His role included the approval of the sample which was supplied to him, the provision of significant funds for the purchase of the drug (with, one may infer, an expectation of a very significant profit) and the use of others such as Milenkovski to distance himself from certain of the steps in the transaction so as to lessen the possibility of detection. The successful completion of the attempt was prevented only as a result of careful surveillance over a period of time, which resulted in the interception of Kirale at the airport. Having regard to those circumstances, it appears to me that his Honour the learned sentencing Judge was correct in regarding the offence as one in the upper range of offences of its kind and I would not therefore regard a sentence of seven years as excessive.
The guilty plea
A plea of guilty attracts a reduction in the sentence otherwise imposed for a number of reasons. It may demonstrate remorse and acceptance of responsibility, and it facilitates the course of justice: Cameron v The Queen [2002] HCA 6 at [11] per Gaudron, Gummow and Callinan JJ. Even where a plea is made late (which this was not) and even where an offender has been apprehended in circumstances which suggest that a finding of guilt is almost inevitable, there should be a substantial discount for the reasons recently discussed by McKechnie J (with whom Malcolm CJ and Anderson agreed) in Radebe v The Queen [2001] WASCA 254.
In McKechnie J's discussion of the course of authority in this Court, he referred to a number of cases suggesting that the range of appropriate discounts would be from 20 to 35 per cent. More recent authorities suggest, as his Honour noted, that the discount would ordinarily be in the range of 25 to 35 per cent, and that it would be an unusual case in which the discount was not at least 25 per cent: see also Ma v The Queen [2001] WASCA 325 at [101] - [103].
In my view, the authorities to which reference have been made do not require that a precise mathematical computation be performed in all cases so that there is a discount of exactly 25 per cent or upwards. As McHugh, Hayne and Callinan JJ noted in Prince v The Queen (1998) 144 CLR 610 at 624 [46]:
"Sentencing is not a process that leads to a swift correct answer arrived at by some process admitting of mathematical precision."
In the present case the discount was, counsel informed us, one of 22.2 per cent and the difference between that and a discount of 25 per cent would be reflected by a period of three months.
What is important is that the discount should be seen to be a substantial one, and in my view the reduction of 2 years from a 9 year term must be regarded as substantial. There was extensive surveillance and telephone intercept evidence and his Honour was justified in arriving at the view that, in the circumstances, a conviction was almost inevitable. There were, as his Honour noted, no indications of remorse or co‑operation with the authorities other than the bare plea of guilty. I would not regard a failure to give a discount of precisely 25 per cent or upwards in such a case as an error which should attract the intervention of this Court.
I should add that counsel for the applicant also suggested that his Honour erred in giving only a relatively low discount, in that his Honour took into account matters personal to the applicant which were irrelevant to the calculation of the appropriate percentage discount. The passage of his Honour's sentencing remarks, to which the applicant's counsel referred, is not happily phrased, as is often the case with reasons delivered orally. However, in my view a fair reading of it suggests that his Honour was concerned to explain why he proposed to give the applicant only the minimum discount applicable to a plea of guilty, and no other reduction in sentence such as one might expect for other matters personal to the applicant. In my view his Honour was correct in his suggestion that the factors personal to the applicant effectively "balanced out", so that the only matter which should reduce his sentence from the "starting point" was the need to reflect his plea of guilty.
Parity with Hafner
The argument relating to Hafner's sentence is not strictly a parity one. Hafner was a participant with the applicant in the same enterprise, and at a high level. Each of Hafner and the applicant received a sentence of 7 years' imprisonment.
The argument as I understood it arose from the fact that Hafner and the applicant were convicted of different offences, and that the offence of which Hafner was convicted carried a higher maximum term. It was argued on behalf of the applicant that, since the participation of Hafner and the applicant was in each case at a relatively high level in the enterprise, and that their antecedents were in many respects similar, giving appropriate weight to the relevant maximum penalty available in each case would have resulted in a lesser term being imposed upon the applicant. It was submitted that where a person in those circumstances receives an identical sentence for an offence which the legislature considers to be of lesser seriousness, a justifiable sense of grievance must be engendered.
It was suggested that the learned sentencing Judge erred in disregarding the sentence imposed on Hafner, having found that it was inadequate. It is true that his Honour regarded the sentence imposed on Hafner as lenient, as did the Court of Criminal Appeal: R v Hafner [2002] WASCA 211. It is also correct that his Honour regarded the applicant and Hafner as being the principal offenders.
However, I do not think it can be said that merely because of the lesser maximum applicable to the offence committed by the applicant, he should have received a sentence lower than that of Hafner. That factor is an important one, but it is nevertheless only one of a number of factors relevant to fixing an appropriate sentence.
Although Hafner was a mature man (of 34 years of age), he was significantly younger than the applicant. Like the applicant, he had a stable marriage and children and, like the applicant, he had prior drug related convictions, although his were somewhat more recent. However, unlike the applicant, Hafner was a long‑standing drug user, having started using cannabis at the age of 17 and heroin at 25. He had participated in many programmes over the years in an attempt to overcome his heroin addiction and was accepted by the sentencing Judge as being genuine in wanting to give up his dependence. Although he had provided no positive assistance to the prosecution, he had admitted his involvement at an early stage. It is clear from the reasons of the Court of Criminal Appeal, in relation to the Crown appeal against Hafner's sentence, that the fact that he was an addict and needed money in order to feed his addiction, which addiction he genuinely hoped to overcome, was regarded as a very significant factor (R v Hafner at [24]).
Although the applicant and Hafner had much in common, in their antecedents and in the roles which they played, there were two things which principally distinguished them. One was, as the applicant has pointed out, the lesser maximum applicable to the offence of which he was convicted; that would be a factor in the applicant's favour. The other, however, was Hafner's long‑standing addiction and genuine efforts to overcome it, which factor was one operating in favour of Hafner rather than the applicant. In those circumstances, it cannot in my view be said that considerations of parity, or the need to have regard to the statutory maximum, dictated any particular relationship between the sentence imposed upon Hafner and that imposed upon the applicant.
Conclusion
It is my view that the application for leave to appeal should be allowed, but that the appeal should be allowed only to the extent of quashing the fine imposed upon the applicant.
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