Centofanti v Tasmania

[2011] TASCCA 10

[2011] TASCCA 10

COURT:       SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:              Centofanti v Tasmania [2011] TASCCA 10

PARTIES:  CENTOFANTI, Jamie
  v
  TASMANIA (STATE OF)

FILE NO/S:  S726/2010
DELIVERED ON:  10 August 2011
DELIVERED AT:  Hobart
HEARING DATE:  25 May 2011
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 - Trafficking in a controlled substance – Importation of cocaine with the intention of selling part – Rehabilitation from addiction to drug after charged – Prior conviction – Whether immediate imprisonment manifestly excessive.

Australian Digest Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  A J Hall
           Respondent:  J P Ransom
Solicitors:
           Appellant:  Grant Tucker
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2011] TASCCA 10
Number of paragraphs:  24

Serial No 2011/10

File No S726/2010

JAMIE CENTOFANTI v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  TENNENT J

PORTER J
WOOD J
10 August 2011

Order of the Court

1. Appeal dismissed.

Serial No 10/2011
File No S726/2010

JAMIE CENTOFANTI v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J
10 August 2011

1. The appellant was found guilty of trafficking in a controlled substance following a plea of not guilty to that crime before a jury. The controlled substance was cocaine.

1. The appellant was intercepted at Launceston Airport. He was found to be carrying 17.7 grams of cocaine in 23 small plastic bags. The estimated street value of the cocaine was $6,000. The appellant was interviewed by police and told them he was a long-term user of cocaine and that the cocaine found on him was for his personal use. While the jury may have accepted that the appellant was a long-term user and that some of the cocaine was for personal use, it clearly did not accept that all of it was for personal use. The appellant was a lighting designer and director. When intercepted, he was entering Tasmania for the purpose of working at a music festival. He was to be in the State for only a short period of time.

1. The cocaine found on the appellant at the airport was confiscated by police and of course no part of it was ever actually sold by him.

1. At the time of sentence, Blow J noted that the appellant was 36 years old and had a partner and a young child. He was a lighting designer and director and highly regarded in his industry, both for his competence and as an educator and mentor. His Honour was provided with a number of excellent character references. He also noted that the appellant had worked on a pro bono basis for charities. He noted that the appellant had a prior drug-related conviction in 1998, imposed in New South Wales. The appellant was convicted of supplying a prohibited drug and sentenced to 18 months of periodic detention. On the same date, he was convicted of driving under the influence of a drug. The drug the appellant was convicted of supplying was cocaine, although counsel indicated the amount involved was less than 10 grams. No further information was available to the Court as to the precise nature of the charge of which the appellant was convicted.

1. His Honour also noted that, after his interception at Launceston Airport, the appellant stopped the use of cocaine, sought medical help for his addiction, and that since then had worked hard at rehabilitation. A report by a specialist in addiction medicine indicated that the appellant was well on the way to complete rehabilitation. His Honour was clearly mindful of the potential harm which might be caused to the community by the distribution of cocaine. He was also mindful of the potential for loss of income for the appellant and his family should he be imprisoned.

1. Counsel for the appellant did not contend that there was any specific error in the sentencing process. He submitted however that in all the circumstances of the case, the sentence was manifestly excessive and that error could therefore be inferred. He highlighted all the matters which I have already identified. Further, he indicated that the appellant had ongoing lucrative employment and had already spent three nights in custody, losing income as a consequence. Counsel submitted that the sentence imposed of five months imprisonment was substantially in excess of the range of sentences imposed in comparable matters. He submitted that there was nothing to indicate that one controlled substance should be treated as being any more serious than another, and, as a consequence, matters concerning the importation and trafficking in cannabis were comparable matters.

1. Counsel for the appellant referred to a number of sentences imposed in this Court for the offence of trafficking in a controlled substance, usually cannabis, many of which were lower than that imposed on the appellant. However, it should be noted that any attempt at direct comparison of sentences is often a somewhat dangerous exercise because all relevant factors may not be apparent, and there may be very good reasons for differences.

1. Counsel for the respondent appeared to concede that the sentence imposed in this matter might be at the high range for the particular offence in the circumstances of this appellant, but that the Court needed to be persuaded that there was error by the sentencing judge and not simply that individual members might feel they would have exercised their discretion differently.

1. The learned sentencing judge has clearly taken the view that, in effect, the appellant has already had a warning in the form of the 1998 conviction for supplying the same drug and, as a consequence, was not entitled to as much leniency as might otherwise be extended given the mitigating factors in this matter. While it is accepted that an offender should not be punished more harshly because of a prior offence, the Court is entitled to take into account the effective failure of the appellant to learn from his previous conviction and sentence.

1. Counsel for the appellant submitted that the Court should give significant weight to the steps taken by the appellant to rehabilitate himself. In the context of the increasing emphasis being placed upon the use of rehabilitation programmes, particularly in relation to drug-related crime, the fact that the appellant had, of his own volition and at considerable financial cost to himself, undertaken extensive counseling to address his addictive behaviours, should have been given significant weight. The nature of the sentence imposed was such that it could not have addressed these factors adequately. This asserted error was not the subject of any specific ground of appeal. However, counsel for the respondent did not take objection to the submissions in relation to it.

1. While counsel for the appellant did not raise it, it may have been argued for the appellant that his addiction was the cause of his offending. Since he had addressed his addiction by extensive medical intervention, it was unlikely he would re-offend. This would no doubt reduce the need for a sentence of personal deterrence. However it would not address the need for a sentence of general deterrence. It would also not address the need to deter people from bringing addictive drugs into this State, particularly for potential use and distribution at the type of event at which the appellant was to work.

1. While members of this Court might consider that the sentence imposed upon the appellant was at the higher end of the range for the offence in the particular circumstances of the appellant, that is not sufficient to demonstrate that the learned sentencing judge erred. His Honour clearly took the view that a deterrent sentence was warranted, and that any term of imprisonment which was wholly or partially suspended did not meet that need for deterrence.

1. I am not satisfied in all the circumstances that the appellant has demonstrated an error on the part of the learned sentencing judge such as to warrant interference by this Court. I would dismiss the appeal.

File No S726/2010

JAMIE CENTOFANTI v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J
10 August 2011

1. I have had the advantage of reading the reasons for judgment of Tennent J.  I agree with those reasons and would also dismiss the appeal.  I am conscious that the appellant's offending seems to have been connected to his addiction to the drug involved, and that he has taken successful steps to rehabilitate himself.  However, in the application of the proper principles, I am not persuaded that the sentence was outside a proper range available to the sentencing judge, and was one which was plainly unreasonable or unjust.  It is to be borne in mind that the physical act of trafficking relied on was the importation of cocaine into this State.  The appellant was not able to persuade a jury that it was more likely than not that he did not intend to sell any part of what he had. 

File No S726/2010

JAMIE CENTOFANTI v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
10 August 2011

1. I agree with the reasons for judgment of Tennent J and would also dismiss the appeal. I wish to add some comments regarding the argument that the sentence was manifestly excessive, and also as to the approach taken by Blow J in imposing an actual sentence of imprisonment rather than a sentence that was suspended wholly or in part.

1. It was submitted that the sentence of five months' imprisonment was substantially in excess of the range of sentences imposed in comparable matters.  In support of this submission there was reference to a sample of comments on passing sentence by sentencing judges in this jurisdiction with respect to the crime of trafficking in a controlled substance.  A number of the sentences related to trafficking in cannabis, and a few of them involved cocaine in conjunction with another drug or drugs.   In fact, it was evident that trafficking in cocaine is less common than trafficking in other controlled substances such as cannabis, methylamphetamine or MDMA.  An argument was advanced for the appellant that, as trafficking in cocaine was not as prevalent in Tasmania as trafficking in other drugs, there was less need to impose a deterrent sentence.  This argument is rejected.  Sentencing courts are entitled to send a strong message to deter drug traffickers who might be minded to introduce harmful drugs into our community.

1. Most of the sentences referred to involved factual circumstances that were not similar to the facts in this case.   Points of difference included whether the defendants had prior convictions and whether they had pleaded guilty.  The nature of offending, revealed in the comments, covered a wide range of conduct.  Some of the offenders were more culpable and some of the offences involved significantly greater quantities of drugs than is the case here.  It is not useful to examine the sample of sentences in any further detail.  The sentences failed to support the appellant's argument that the sentence imposed in this case exceeded the sentences imposed for comparable matters. 

1. With respect to the submission that the sentence was manifestly excessive in light of the mitigating circumstances, it is acknowledged that undoubtedly there were strong factors in mitigation.  The appellant had made substantial and genuine efforts towards his drug rehabilitation.  A report provided by the appellant's treating medical practitioner, Dr Seidler, a specialist in addiction medicine, noted the appellant's past regular use of cocaine, and that since being charged, the appellant had been seeing him twice-weekly.  He was described as being "completely abstinent" since then and it is noted that urinalysis tests for illicit drug use had been normal.  Dr Seidler  described the appellant as "well on the way to complete rehabilitation from his cocaine dependence". These efforts towards rehabilitation were a powerful consideration.   The progress he had made would have justified the sentencing judge taking the view that personal deterrence did not loom large in the sentencing process.  The prior conviction for supplying a prohibited drug in 1998 would ordinarily indicate the need for a sentence which would operate as a personal deterrent.  However, the efforts the appellant had made, and the success he had achieved in terms of his rehabilitation, were such that it would have been open to the sentencing judge to take the view that there were minimal concerns about his re-offending.   It was evident from the comments made by the learned sentencing judge that he was mindful of these, and other mitigating factors, such as his successful career and the high esteem in which he was held by work colleagues and associates in the music industry with respect to his work and his character generally.

1. The question that is raised by this appeal is whether the efforts made by the appellant towards his rehabilitation and the matters in mitigation, required the imposition of a wholly or partially suspended sentence.  While these circumstances weigh in favour of a suspended sentence, they were not the only matters the learned sentencing judge was required to consider.

1. The sentencing court must have regard to the need to deter others from trafficking. This Court has emphasised the harm and misery caused by drug traffickers:  Oxford v Tasmania [2006] TASSC 41 at 28, Wisniewski v Tasmania [2007] TASSC 25 at 23, and Brooks v Tasmania [2009] TASSC 121 at 15. The lives of many individuals and their families are damaged by drug use and addiction. Some individuals do not achieve the fortunate outcome of successfully addressing their addiction. General deterrence is a weighty factor in most trafficking cases.

1. The task of allocating weight to the objects of general deterrence, deterrence of the offender and reform, is an aspect of the sentencing judge's wide discretion.  It has been noted that, as guideposts to the appropriate sentence, the purposes of punishment such as deterrence and reform sometimes point in different directions: Veen v R(No 2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ at 476. This is such a case.

1. Resolving the competing considerations of rehabilitation and general deterrence will often turn on the nature of the case and whether it is the kind of offending that requires a sentence of general deterrence despite the offender's prospects (see R v Robinson [1975] VR 816 per the judgment of the court at 829).

1. There were features of this case that warranted a sentence that would operate as a general deterrent.  It was not a small amount of cocaine.   It was brought into the State by a mature aged offender without any suggestion of influence or pressure from others.  That the appellant imported the drug when he was highly successful in his career, and with a great deal to lose if detected, reveals the insidious and corrupting effects of the trade in drugs. The prospect that some of the cocaine might have been taken by the appellant to the music event, and the potential that it may have been exposed to people attending the event, was another concerning feature of this case. 

1. The sentencing judge was entitled in the exercise of his discretion to give prominence to the consideration of general deterrence.  It was permissible for his Honour to take the view that a wholly or partially suspended sentence would send the wrong message to others who might be minded to act as the appellant did, and not be effective as a general deterrent.  This does not mean that the sentencing judge overlooked the strong and powerful factors in mitigation.  The sentence does not reveal error or suggest that the sentencing judge failed to allocate appropriate weight to the mitigating factors in this case.