Director of Public Prosecutions v Kobelke - [2020] TASCCA 10

[2020] TASCCA 10

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

CITATION: Director of Public Prosecutions v Kobelke [2020] TASCCA 10

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  KOBELKE, Alexandra Rose

FILE NO:  3143/2019
DELIVERED ON:  2 July 2020
DELIVERED AT:  Hobart
HEARING DATE/S:  11 March 2020
JUDGMENT OF:  Wood J, Brett J, Martin AJ

CATCHWORDS:

Criminal Law – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in methylamphetamine and cocaine – On 13 occasions offender brought large quantities of drugs from Sydney to Hobart and distributed them to a number of addresses and returned with proceeds of sale involving large amounts of cash – A 'worker' rather than an 'entrepreneur' but as a trusted operative in large scale drug enterprise – Sentence of 2 years and 8 months' imprisonment with non-parole period of 16 months manifestly inadequate.

R v Olbrich [1999] HCA 54, 199 CLR 270; Le v Tasmania [2017] TASCCA 21; Billinghurst v Tasmania [2018] TASCCA 16, 29 Tas R 329, considered.
Roland v Tasmania [2016] TASCCA 20, 26 Tas R 288; Upston v State of Tasmania [2018] TASCCA 4, referred to.

Aust Dig Criminal Law [3521]
Criminal Law – Appeal and new trial – Appeal against sentence – Appeals by Crown – Exercise of discretion – Generally – Respondent's non-parole period due to expire – Purpose of appeal served by identification of error and indication of appropriate sentence – Discretion exercised in respondent's favour.

Cumberland v The Queen [2020] HCA 21; Munda v Western Australia [2013] HCA 38, 249 CLR 600; Green v The Queen [2011] HCA 49, 244 CLR 462, considered.
Aust Digest Criminal Law [3528]

REPRESENTATION:

Counsel:
             Appellant:  J Hartnett SC
             Respondent:  G A Richardson
Solicitors:
             Appellant:  Director of Public Prosecutions

Judgment Number: [2020] TASCCA 10
Number of paragraphs: 47

Serial No 10/2020
File No 3143/2019

DIRECTOR OF PUBLIC PROSECUTIONS
v ALEXANDRA ROSE KOBELKE

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
BRETT J
MARTIN AJ
2 July2020

Order of the Court:

Appeal dismissed.

Serial No 10/2020
File No 3143/2019

DIRECTOR OF PUBLIC PROSECUTIONS
v ALEXANDRA ROSE KOBELKE

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J

2 July 2020

I have had the advantage of reading the reasons of Martin AJ. I agree with his Honour's reasons that the sentence under appeal of two years and eight months' imprisonment, with a non-parole period of 16 months was manifestly inadequate and there are just a few remarks I would wish to add.
In assessing the adequacy of a sentence and whether it is unreasonable and plainly unjust, a useful measure is consistency with other past sentences imposed by the Supreme Court for like cases. Of course, no two cases are the same in terms of offending and an offender's circumstances, but the Court may look to sentences involving broadly similar offending. However, in Tasmania there have been very few similar cases involving offenders repeatedly importing large quantities of drugs as part of a significant commercial criminal enterprise. The sentence imposed on Christopher Leaman considered by this Court in Billinghurst v Tasmania [2018] TASCCA 16, 29 Tas R 329 is an example that is broadly similar. The sentence considered in Farhat v Tasmania [2017] TASCCA 20, 29 Tas R 28 has relevance too but is distinguishable in significant respects. As yet, there are not enough cases to amount to a sentencing pattern and of course, even if there were, they would not define a sentencing range: R v Kilic [2016] HCA 48, 259 CLR 256 at [22]. Furthermore, caution is needed in using sentences in like cases as a measure as it must be borne in mind, as pointed out by Martin AJ in referring to Upston v State of Tasmania [2018] TASCCA 4 at [22] per Porter AJ, that sentences for serious cases of trafficking have been increasing as a proportionate response to an escalation in the level of criminal activity and as a response to the increased prevalence in trafficking. Such circumstances are resulting in the giving of greater weight to general deterrence and denunciation.
Having regard to the guidance to be gleaned from the small number of broadly similar cases and the sentencing principles that have been applied by the Supreme Court generally in cases of trafficking, particularly the primary importance of general deterrence, a much heavier sentence was required. As Martin AJ has stated, the criminal conduct was grave and the respondent's criminal culpability was high.
I agree with Martin AJ as to his indication of the appropriate sentence. The crime warranted a sentence in the order of five years' imprisonment. His Honour Martin AJ described that as a starting point to allow for the approach of the learned sentencing judge, not impugned on appeal, in providing for a sentence and nominating a discount for the plea of guilty. I see no need in this case to express a view about the learned sentencing judge's approach in that regard.
I agree also that despite appealable error, the residual discretion should be exercised and the appeal should be dismissed. Recently, in Director of Public Prosecutions v JSP [2020] TASCCA 3, I had reason to survey the authorities on the discretion to dismiss Crown appeals, as did Geason J in Director of Public Prosecutions v Johnson [2020] TASCCA 4. The primary purpose of a Crown appeal against sentence is to provide guidance to sentencing judges. The residual discretion is to be exercised with reference to whether allowing the appeal will occasion injustice which includes consideration of the respondent's subjective circumstances. It is well recognised that the prospect of imminent release unconditionally or on parole is an important consideration: Cumberland v The Queen [2020] HCA 21 at [6]; Green v The Queen [2011] HCA 49, 244 CLR 462 at [2] and [43]; Munda v Western Australia [2013] HCA 38, 249 CLR 600 at [77]. In this case, I would add that, given the respondent's age and because she has been subjected to substantial punishment as a first offender who has never been to prison before, enough has been achieved by this appeal by indicating the sentence that would have been imposed, if not for the exercise of the Court's residual discretion. Given the respondent's subjective circumstances, the respondent is not a suitable vehicle for resentencing.

File No 3143/2019

DIRECTOR OF PUBLIC PROSECUTIONS
v ALEXANDRA ROSE KOBELKE

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BRETT J
2 July 2020

I have had the benefit of reading the reasons in draft of Martin AJ.
I agree with his Honour's conclusion that the sentence imposed by the learned sentencing judge was manifestly inadequate. I agree also that a sentence in the order of five years was appropriate in this case. My assessment of sentence takes into account all relevant matters affecting the sentencing discretion, including the respondent's plea of guilty. I would not express a view in this case as to whether it was appropriate to apply a specific discount to acknowledge that plea.
Martin AJ has, with respect, thoroughly and accurately discussed the factors which inform the assessment of the objective seriousness of the respondent's conduct, and her moral culpability arising from that conduct. I agree with his Honour that describing the respondent's role in the trafficking operation as that of a "worker" does not correctly reflect her culpability. It is necessary to focus on the extent of the enterprise and her actual role in it. In R v Olbrich [1999] HCA 54, 199 CLR 270, the High Court cautioned against placing too much emphasis on the characterisation of the offender's place in the drug trafficking scheme, at the expense of identification and focus on the offender's actual conduct. The comment was specifically in the context of drawing a distinction between "couriers" and "principals" in respect of drug importation contrary to federal legislation. At 279, [19] and [21], the plurality said:
"In that context, a distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did.
…
Whether others stood to gain from the respondent's conduct does not, it seems to us, affect what sentence should have been passed on him. That depended on what he had done and who he was, not on what others may have hoped to gain from his activity."
See also R v Lee [2007] NSWCCA 234 at [25].
A serious and concerning aspect of the appellant's conduct was her direct and repeated involvement in the ongoing large scale importation of methylamphetamine into Tasmania. Tasmania's geographic identity as an island exacerbates the adverse effect on the community of the importation of illicit drugs. The reasons which compel an emphasis on general deterrence in sentencing for offences relating to the importation of drugs into Australia, are also relevant to trafficking which involves importation on a commercial basis into Tasmania. The availability of the illegal drug for distribution throughout the community is directly influenced by the success of trafficking conduct such as that committed by the respondent. Such activity sustains the widespread distribution of the drug throughout the State. It was a particularly serious aspect of the respondent's crime, and deserved appropriate denunciation and emphasis on general deterrence in the sentence.
However, notwithstanding the objective seriousness of the respondent's crime and the manifest inadequacy of the sentence imposed on her, I agree with Martin AJ that this is an appropriate case in which to exercise the residual discretion of this Court to dismiss the appeal. The discretion is an aspect of the Court's consideration of whether "some other sentence … is warranted in law", which is a precondition of the Court's power to quash the sentence under appeal, in accordance with s 402(4). Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26, at [51], Director of Public Prosecutions v Swan [2016] TASCCA 9, 26 Tas R 32, per Pearce J at [24]–[28]. See also CMB v Attorney-General (NSW) [2015] HCA 9, 243 A Crim R 282, per French CJ and Gageler J at [33]–[35]. In my view, the critical factor relevant to the exercise of the discretion in this case is the imminent release of the respondent on parole: Munda v Western Australia [2013] HCA 38, 249 CLR 600; Cumberland v The Queen [2020] HCA 21 at [6]. Her age and lack of prior convictions are also relevant. I would prefer not to express a view on whether there is an identifiable range of sentencing in respect of trafficking cases nor as to the relationship between any such perceived range and this case. I would not, in any event, in the circumstances of this case, see that consideration as relevant to the exercise of the residual discretion. The dismissal of a prosecution appeal under the discretion afforded by s 402(4) does not detract from the finding of manifest inadequacy of the sentence under appeal. Further, as far as the question of range is concerned, it seems to me that the crime of trafficking encompasses a wide variety of conduct and circumstances and is not susceptible to standardisation. There is no doubt that as has been observed by this Court in a number of recent cases, sentences for serious cases of trafficking would seem to be increasing, and this is an appropriate incremental response to the prevalence of the crime and the developing perception and acknowledgement of the harm which drugs are causing to the community. However, in the circumstances of this case, this Court has fulfilled the purpose of the prosecution appeal by identification of the manifest inadequacy of the sentence, and by providing an indication of what sentence would have been imposed, but for the exercise of the residual discretion.
I would dismiss the appeal.

File No 3143/2019

DIRECTOR OF PUBLIC PROSECUTIONS
v ALEXANDRA ROSE KOBELKE

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARTIN AJ

2 July 2020

Introduction

The respondent pleaded guilty to trafficking in methylamphetamine and cocaine. Blow CJ imposed a sentence of 2 years and 8 months' imprisonment, and ordered that the respondent not be eligible for parole until she had served 16 months of that sentence.
The Director of Public Prosecutions (the Director) appeals on the sole ground that the sentence was "manifestly inadequate in all the circumstances of the case".
For the reasons that follow, in my opinion the appeal should be dismissed.

Facts

Broadly speaking, the criminal conduct of the respondent was described by the learned sentencing judge as "bringing large quantities of [methylamphetamine and cocaine] from Sydney to Hobart, delivering them in wholesale quantities to others, collecting large sums of money, and transporting the money from Hobart to Sydney". The criminal conduct involved 13 flights from Sydney to Hobart and return, and the respondent was arrested in Sydney as she was about to commence her fourteenth trip.
The sentencing judge found it was not possible to make a finding as to the specific quantities of drugs transported by the respondent, or the amount of money collected by the respondent in the course of the criminal enterprise. His Honour summarised a number of features of the criminal conduct which he was satisfied gave "some indication of the scale of the operation":
"·   On her second trip, in September 2018, she travelled to four different addresses in Hobart.
·   During her fourth trip, an accomplice returned to Sydney with large quantities of cash in his carry-on luggage. Some hours later, she used her phone to make a video recording that showed large quantities of $50 and $100 notes sitting on a bench. When she returned to Sydney, an x-ray of her carry-on bag showed bundles of cash.
·   On her fifth trip, on 25 and 26 September, surveillance operatives saw her travel to several places in the suburbs of Hobart for the purpose of drug deals. When she flew home, her carry-on luggage contained four large bundles of cash.
·   On her seventh trip, in December 2018, she returned to Sydney with a large amount of cash.
·   On her eighth trip, on 22 December, when she and an accomplice were under surveillance, they made a sale of 10 ounces of methylamphetamine. That drug sells for at least $8,000 for an ounce. If sold by the point (0.1g), 10 ounces would fetch $28,000. She flew back to Sydney the next night with about $100,000 in cash.
·   On 3 January 2019 she was arrested at Sydney airport when she was about to fly to Hobart. She was carrying about 5 ounces of methylamphetamine and 54.87 grams of cocaine, as well as some ecstasy. If the methylamphetamine had been sold by the ounce, it would have fetched at least $40,000. If the cocaine had been sold by the gram, it would have fetched over $16,000.
·   Following her arrest, she consented to police searching her apartment, and $4,000 in cash was found there.
·   There were occasions when accomplices travelled to Hobart without Ms Kobelke. The home of one Sydney accomplice was searched in March 2019. The police found over $43,000 in cash, replica firearms, multiple phones, and a taser at that residence.
·   It is not disputed that Ms Kobelke and others transported proceeds from the sale of drugs amounting to hundreds of thousands of dollars from Hobart to Sydney."
In the sixth bullet point of this summary, the sentencing judge found that if the methylamphetamine had been sold by the ounce, it would have fetched at least $40,000. The Crown facts, which were not disputed by the respondent, stated that if the methylamphetamine had been sold in "point deals", a total of $138,000 would have been involved. Similarly, in the fifth bullet point, the potential return should be $280,000, rather than $28,000.
The respondent's conduct included nine occasions when she purchased airline tickets in false names for the purposes of the trips to Hobart and return. In respect of that conduct, the respondent pleaded guilty to nine counts of using false identification information to obtain air passenger tickets. The sentencing judge convicted the respondent of those nine offences, but did not impose any additional penalty for that offending. There is no challenge to that part of the sentencing decision.
The sentencing judge observed that the respondent was "not in control" of the trafficking enterprise and did not receive a share of the profits. His Honour accepted that the respondent was a regular user of cocaine and was promised money and/or drugs for making each trip. Counsel for the respondent informed the sentencing judge that the respondent was paid much less than the total amount she had been promised, but his Honour did not regard that failure as a mitigating factor. His Honour observed that the respondent was involved "not just in transporting drugs, dealing with purchases, and bringing money back to Sydney", but she also engaged in packaging the drugs and using cryovac to cover their odour.
As to matters personal to the respondent, at the time of sentencing she was 26 years. Despite being a drug user since the age of about 13 years, the respondent had no significant convictions.
The sentencing judge summarised the relevant matters personal to the respondent:
"She has led an unfortunate life. During her primary school years she lived with her mother, but her mother died from the long-term effects of drug abuse when she was 12. She then lived with her father in another State for a few years, but left his home when she was 15 because of problems with her stepmother. She has looked after herself ever since then, with no support from anyone else. She has worked in the hospitality industry, in bars, and as a stripper. She started using cannabis when she was 13, and later used ecstasy. For a time she had an alcohol problem. It is not surprising that she became a user of hard drugs, and agreed to make money transporting them when she was offered the opportunity."
The sentencing judge correctly regarded the respondent's conduct, albeit as a "worker" rather than an "entrepreneur", as a serious case of trafficking involving methylamphetamine which is a dangerous drug that causes great harm to those who are addicted, the people around them and the wider community. As his Honour observed, the use and trade in methylamphetamine "results in a lot of criminal activity, especially serious crimes of dishonesty and violence".
The respondent entered an early plea of guilty. His Honour allowed a reduction in the range of 20 to 25% by reason of the plea of guilty, noting that if the respondent had not pleaded guilty, he would have imposed a sentence of 3½ years' imprisonment "or thereabouts".

Crown appeals – principles

The principles governing Crown appeals against sentence are not in doubt. They were helpfully summarised by Pearce J, with whom Tennent and Wood JJ agreed, in Director of Public Prosecutions v Harington [2017] TASCCA 4, 27 Tas R 128 at [94]-[96]:
"[94]    In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, I summarised the principles to be applied by this Court in appeals on the ground of manifest excess or manifest inadequacy in the following terms:
'As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is "unreasonable or plainly unjust". It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be "accorded a wide measure of latitude": Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539.'
[95]     This is a Crown appeal. The principles to be applied were reviewed in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [24] and following. Those principles derive from the underlying principle that a primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 [1]-[2]. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen (1994) 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]-[116]. In Everett v The Queen, McHugh J said at 306:
'Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.'
[96]      The appellant's right of appeal derives from the Code, s 401(2)(c). The appellant must persuade this Court that a more severe sentence is warranted in law and should have been passed in substitution for the original sentence. In any other case, the Court must dismiss the appeal. Thus, the appellant must not only establish appellable error in the exercise of the sentencing judge's sentencing discretion, but also negate any reason why this Court's residual discretion not to interfere should be exercised: R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at [12]; CMB v Attorney-General (NSW) [2015] HCA 9, 317 ALR 308, 89 ALJR 407; 243 A Crim R 282, per French CJ and Gageler J at [34], and Kiefel J (as she then was), Bell and Keane JJ at [66]."

Discussion

In support of the contention that the sentence was inadequate to the point of error in principle, the Director highlighted the seriousness of the respondent's total criminal conduct. Correctly, the Director submitted that the trafficking in which the respondent engaged was a serious example of the crime, given the:
"(a)     scale involved (quantities of cash and illicit drugs involved);
(b)       planned and systematic course of conduct;
(c)       significant and active role she played; and
(d)       length of time over which the offending occurred."
The Director accepted that the respondent's conduct was not aggravated by an involvement as an "entrepreneur" or through the sharing of profits. However, the Director correctly contended that the respondent was "an integral link in the chain of distribution in a significant commercial operation" and was "knowingly involved in an operation aimed at the generation of large profits". Referring to R v Olbrich [1999] HCA 54, 199 CLR 270, and Le v Tasmania [2017] TASCCA 21, the Director correctly submitted that the respondent's criminal culpability is to be assessed by "focussing on the nature and level" of her involvement in the criminal enterprise.
The Director accepted that there is no discernible range of sentence for the crime of trafficking, and referred to Roland v Tasmania [2016] TASCCA 20, 26 Tas R 288, in which a number of sentences were discussed. In this context the Director submitted that there has been "an increase in the upper end of the range that can be accounted for by the escalations in the level of criminal activity in particular cases, thus requiring a proportionate response". Counsel contended that the Criminal Court is entitled to give greater weight to factors of general deterrence and denunciation than the court might have afforded those factors in the past.
In Roland the offender was convicted by a jury of trafficking in methylamphetamine, cannabis and alprazolam. For the purpose of imposing sentence, the learned sentencing judge described the essence of the offending in the following terms:
"However, consistently with the verdicts, I would sentence the defendant on the basis of my satisfaction beyond reasonable doubt that, for the period between 2010 and early 2013, the defendant systematically sold amphetamine and methylamphetamine, including in its crystalline form, and cannabis, on a commercial basis from his property at Ronald Street. For six months in 2012 he trafficked in alprazolam. During the period to which I have referred, the Ronald Street premises was a place where people routinely went to buy drugs, mostly speed and Ice, but also cannabis, and, in 2012, alprazolam. I am satisfied that Mr Roland sold drugs as the final point of distribution, that is, to users of drugs. ... It is impossible to determine, in any precise way, the total scale of the business or the quantities involved, or how much money was made from it. However the defendant must, over a period of about three years, have sold drugs on at least hundreds of occasions. Sales of speed and Ice were most likely in quantities for use, between a point and an eighth of an ounce.
...
The defendant's criminal conduct was over a long period, is likely to have affected the lives of very many of people and, I am satisfied, was motivated only by profit. It continued despite the obvious suspicion of the police thereby indicating contempt for the law and for authority. The nature, scale and extent of the defendant's trade demands a substantial sentence of imprisonment. He is not entitled to the mitigation a plea of guilty may have attracted. He has displayed no remorse and no sign of caring about the consequences of his crimes."
The sentencing judge imposed a single sentence of imprisonment for 3 years, and ordered that the offender not be eligible for parole until he had served 18 months of that sentence. After dismissing the offender's appeal against conviction, the Court of Criminal Appeal also dismissed an appeal by the Director of Public Prosecutions against the adequacy of the sentence. Estcourt J, with whose judgment Blow CJ and Brett J agreed, quoted the Director's submissions which contained reference to a number of previous sentences imposed for commercial trafficking of amphetamines, and then made the following observations:
"[39]    As can be seen, recent sentences imposed by judges of this Court in respect of the crime of trafficking in a controlled substance in a variety of different circumstances reflect a pattern of sentencing of substantially between 3 to 4½ years. I do not regard the facts and circumstances of the present case as compelling a sentence of more than 3 years, given the learned trial judge's very wide sentencing discretion.
[40]     Moreover, I would regard any relatively short increase in the length of his Honour's sentence within that range as 'tinkering', given the nature of the present case. The learned trial judge was faced with a difficult task given that the jury did not need to be satisfied beyond reasonable doubt of each specific instance relied upon by the State, but had to be satisfied of the existence of a business within the period set out in the indictment. It followed from the verdicts that the jury was satisfied beyond reasonable doubt that for a period during the dates particularised in the indictment the appellant conducted a business by engaging in a continuous drug selling activity of a commercial and systematic kind. However, it was left to his Honour to make findings of fact for sentencing purposes. His Honour found as follows:
'Consistently with the verdicts, I would sentence the defendant on the basis of my satisfaction beyond reasonable doubt that, for the period between 2010 and early 2013, the defendant systematically sold amphetamine and methylamphetamine, including in its crystalline form, and cannabis, on a commercial basis from his property at Ronald Street. For six months in 2012 he trafficked in alprazolam.'
[41]     As to the number and value of illicit sales made during that period, his Honour was only able to find that the appellant must, over a period of about three years, have sold drugs on at least hundreds of occasions, and that sales of 'speed' and Ice were most likely in quantities for use, between a point and an eighth of an ounce.
[42]     In the context of those findings I am wholly unable to say that by imposing a sentence of three years' imprisonment with a non-parole period of 18 months, his Honour erred in some way such as to render the sentence unjust or plainly unreasonable by reason of inadequacy. See merely by way of example the very recent decision of this Court in Deakin v State of Tasmania [2016] TASCCA 19, where a sentence of 18 months' imprisonment was upheld in the case of the appellant's 'persistent and brazen' course of conduct in importing 212.5 grams of methylamphetamine into the State and selling 142 grams of that amount for $60,000 over 8 months 'with the potential that others in the community would suffer harm'. In that case, at [34] Wood J, with whom Tennent and Pearce JJ agreed, said:
'As a drug trafficker, he either chose to ignore the prospect of harm, or put his own interests and profiteering ahead of that harm. Such conduct demands denunciation and a heavy penalty to deter others.'
[43]     In the present case the learned trial judge was well aware that general deterrence is the most significant factor in cases involving commercial operations. He said, 'deterrence, both of the defendant and others who may be minded to act in the same way, is a particularly important sentencing factor'.
[44]     I regard the sentence as being reasonably open to his Honour who, as is well known, has a wide measure of latitude in sentencing. And, it is trite to point out that the relevant question is not what sentence I might have imposed had I been the sentencing judge."
The observations of Estcourt J can readily be applied to the circumstances under consideration. In addition, it should not be overlooked that Roland engaged in a commercial drug trafficking enterprise for personal profit over a period of approximately 3 years. Hundreds of sales were conducted. Unlike Roland, the respondent was not the "entrepreneur" and did not receive the profits derived from sales.
Further, Roland pleaded not guilty and his sentence of 3 years was imposed without the benefit of any reduction to reflect a plea of guilty. By way of comparison, the starting point adopted by the sentencing judge, before allowing for the respondent's plea, was a period of 3½ years "or thereabouts".
A reduction of 20 to 25% in recognition of the plea of guilty was appropriate. In order to succeed, therefore, in substance the Director must satisfy this Court that a sentence of approximately 3½ years would be manifestly inadequate. If the Director succeeded in overcoming that hurdle, it would be necessary to persuade this Court that it should not exercise its residual discretion not to interfere.
As Estcourt J observed in Roland, the sentencing judge possessed a wide discretion. It was a discretion to be exercised in the context of recent sentences for the crime of trafficking in controlled substances which, as Estcourt J noted, reflected in a variety of circumstances "a pattern of sentencing of substantially between 3 to 4½ years". However, comparison with other drug trafficking cases, and the existence of a pattern of sentencing, is not the end of the matter. As has frequently been said, sentencing patterns provide yardsticks only, and the appropriate sentence must be determined having regard to the particular circumstances of each case.
A more useful decision by way of comparison with the circumstances of the respondent is Billinghurst v Tasmania [2018] TASCCA 16. Garry Billinghurst, Christopher Leaman and Adam Jones were found guilty by a jury of involvement in a large scale commercial drug trafficking enterprise involving methylamphetamine, amphetamine, oxycodone, morphine and cannabis. Mr Billinghurst and Mr Jones were sentenced to imprisonment for 9 years, with non-parole periods of 6 years, and Mr Leaman to imprisonment for 5 years, with a non-parole period of 2 ½ years. Mr Billinghurst and Mr Leaman appealed against their sentences on grounds including the complaint that the sentences were manifestly excessive.
For present purposes it is sufficient to note that although Mr Leaman obtained a personal supply of cannabis, he engaged in the trafficking primarily for commercial reasons. In a judgment with which Pearce J and Marshall AJ agreed, Blow CJ summarised Mr Leaman's involvement as follows at [47]-[49]:
"[47]    In his sentencing comments, his Honour referred to the following aspects of Mr Leaman's involvement:
His involvement was less than that of Mr Billinghurst and Mr Jones.
He assisted in importing drugs hidden in motor vehicles brought across Bass Strait.
He assisted in transporting drugs and selling them in Tasmania.
He assisted in ferrying drugs from their storage place at Mt Lloyd to the Shed.
To a lesser extent, he was involved in transporting drugs to and from his home at Granton.
Based on his bank records, his lifestyle, and his apparent possessions, he did not appear to have benefited from the business to anywhere near the extent of Mr Billinghurst and Mr Jones.
[48]     The memorandum prepared by counsel as to the factual basis of the sentencing contained the following information relating to Mr Leaman's involvement in the trafficking:
One of the mobile phones used in the trafficking that was the subject of intercepts was in the name of Mr Leaman. The rest were in false names.
One of the first calls intercepted by the police was a call on 13 February 2013 when Mr Billinghurst told Mr Leaman, 'No tick, tell Adam.'
On 24 July 2013 Mr Jones told Mr Billinghurst that he had brought down things for Mr Leaman that morning and that the Shed had been like a 'McDonald's Drive Thru'.
There were calls between Mr Jones and Mr Leaman in which they discussed cannabis.
There were intercepted calls in which Mr Leaman and Mr Jones discussed pills or prescription medication, including one call where they discussed where the pills were concealed at the Shed.
CCTV footage from the Commonwealth Bank at Moonah showed Mr Jones and Mr Leaman attending the branch on separate occasions when deposits were made to the account of a man who had sold prescription medication. The deposits were in sums of between $500 and $1,000. There was evidence that that man brought quantities of oxycontin to Hobart from interstate on 18 June 2013, and that he went to the Shed to sell medication on at least five occasions.
There was evidence at the trial of Mr Leaman making deliveries of drugs to purchasers.
Intercepted telephone calls and other evidence showed that he regularly delivered deals of amphetamine to a woman who was selling them.
On 13 June 2013 that woman phoned Mr Leaman, asking him to 'come over', and saying that she had 'a little bit left'. The police then observed him attending her address. The next day her house was searched, and the police found two bags of amphetamine with a purity of between 3.4% and 3.5%.
On 25 April 2013 a man visited Mr Leaman's address at Granton, and was later intercepted by police officers on the Midland Highway at Perth, where he was found in possession of a package containing just under one ounce of amphetamine, with a purity of between 3.5% and 3.7%. That level of purity was consistent with drugs being sold at street level. That man was charged as a result of that interception.
After that man was intercepted, there were a lot of phone calls between his son, Mr Billinghurst and Mr Jones, but apparently not Mr Leaman.
In April 2013 two couriers collected a white utility from Mr Billinghurst in Melbourne and brought it to Tasmania on the Spirit of Tasmania. Mr Leaman travelled with a red utility on the same voyage. The red and white utilities were swapped at a service station in Perth. Mr Leaman drove the white utility to Hobart. Police officers intercepted a telephone call in which Mr Billinghurst told Mr Leaman that he would need to take the bumper bars and tailgate off the white utility.
There were phone calls in which Mr Billinghurst discussed arrangements for Mr Leaman to bring drugs into Tasmania by air.
In a 6-month period from October 2012 to April 2013, Jetstar records showed that Mr Leaman took 6 flights. Between August 2012 and August 2013, he took 13 trips on the Spirit of Tasmania. The air and sea travel costs totalled over $3,000.
There was evidence that Mr Billinghurst and Mr Leaman regularly attended used car yards in Melbourne.
In July or August 2013 the police observed Mr Jones and Mr Leaman attending an abandoned blue Commodore vehicle in a paddock on Mr Jones' property. The vehicle was later searched and found to contain digital scales with apparent traces of methylamphetamine on the weighing plate. In an intercepted phone call on 8 July 2013, Mr Jones and Mr Leaman discussed getting 'little things' from that vehicle. Mr Leaman was also observed to walk towards an area where drugs were later found concealed in the bushland on Mr Jones' property.
On 4 September 2013 police officers found a refrigerator/freezer in that bushland, containing 381 grams of amphetamine of 3.3% purity, 74.6 grams of methylamphetamine of 70.4% purity, a quantity of a damp crystalline solid that was negative for common drugs, and a set of digital scales.
On the same day at Mr Leaman's home, searching police officers found 28.3 grams of cannabis, a box of new snap lock bags, and $2,900 in cash.
Mr Leaman was interviewed by police officers twice. He made admissions as to travelling organised by Mr Billinghurst, running errands for Mr Billinghurst and Mr Jones, knowing how to stash things in tyres, the probable presence of drugs in cars that he drove, and knowledge of the location where drugs were located at Mt Lloyd.
Bank records showed that $15,000 was deposited into Mr Leaman's bank account in Tasmania on one occasion, that $20,000 was deposited on another occasion, and that both sums were withdrawn shortly afterwards in Melbourne.
[49]     Counsel for Mr Leaman argued that it was not appropriate for the learned trial judge to characterise him as a "junior partner", and that his role was more like that of a valued employee. She argued to the effect that he had received a manifestly excessive sentence as a result of his Honour ascribing too major a role in the trafficking operation to him. On the material before this Court, there is no reason to think that his role in the trafficking operation was that of an entrepreneur or mastermind. However his involvement was greater than anyone other than Mr Billinghurst and Mr Jones. I accept a submission made by Ms Shand, for the Crown, to the effect that it is likely that he brought larger quantities of drugs into Tasmania on each of his trips on the Spirit of Tasmania than on his trips by air. He appears to have been heavily involved in every aspect of the trafficking enterprise."
At the time of sentencing Mr Leaman was aged 38. Although younger than the co-offenders, the Chief Justice expressed the view that the age was a "neutral factor". Mr Leaman had no significant prior convictions and, although he did not plead guilty, facilitated the administration of justice during the trial by agreeing to facts asserted by the Crown. Imprisonment was likely to be "unusually burdensome" for him because of health issues which resulted from a shooting in 2005.
The Chief Justice regarded the sentence of imprisonment for 5 years as "substantial", but observed that it was "appropriate for the learned trial judge to impose a substantial sentence for the purpose of general deterrence". Having regard to all the circumstances, and "particularly the scale and duration of the trafficking enterprise" and the apparent extent of Mr Leaman's involvement, the Chief Justice was not satisfied that the sentence was manifestly excessive.
The drug trafficking enterprise in which the respondent became involved was a significant commercial operation which was carried out successfully across State borders over a lengthy period. Very large quantities of particularly dangerous drugs were brought into Tasmania and distributed. Large amounts of money were involved.
In assessing the gravity of the respondent's total criminal conduct, and her individual culpability, it is essential to avoid glossing over her conduct with expressions such as "she was a worker only". It is of critical importance to examine the particular role undertaken by the respondent within the commercial criminal enterprise. It is obvious that, generally speaking, trafficking by those in control of an operation who benefit through profits is at the higher end of the scale of seriousness of the crime of trafficking, attracting more severe penalties than those imposed on "workers". However, it does not follow that every "worker" is to be treated leniently or that the role of every "worker" is not a serious crime warranting condign punishment.
At the lower end of the scale of seriousness is the one-off drug addicted courier whose role is restricted to a single occasion of transportation of drugs in the hope of receiving money to finance their addiction. The respondent's criminal conduct was well-removed from that lower end of the scale of seriousness. The following features of the respondent's conduct demonstrate the seriousness of her conduct and her culpability:
·     The criminal enterprise in which the respondent became closely involved was a large scale commercial drug operation involving particularly dangerous drugs.
·     The respondent knew she was involved in such a large scale commercial drug operation.
·     Through her activities, the respondent became an integral and trusted operative within the criminal enterprise. Her role was critical to the success of that enterprise.
·     Over a significant period the respondent was repeatedly trusted with large quantities of dangerous drugs and cash. She repeatedly moved the cash and drugs across State borders into Hobart.
·     The role of the respondent extended beyond transportation of drugs and money. It included packaging drugs in a manner intended to avoid transportation and distribution of large quantities of drugs to different "wholesalers" in Hobart.
·     The respondent did not voluntarily desist from her criminal activities.
·     The quantities of dangerous drugs and cash transported by the respondent over a lengthy period were substantial, and the drugs possessed the potential to cause great harm to the wider community.

It is readily apparent that the respondent's criminal conduct was a particularly serious example of trafficking in dangerous drugs, albeit not as the entrepreneur/profit maker. Her culpability was high and there are no features of mitigation attached to the offending.
Having regard to the respondent's total criminal conduct, and the degree of her culpability, notwithstanding the respondent's relatively young age and absence of criminal offending before becoming involved in this enterprise, in my opinion the sentence imposed was inadequate to the point of being manifestly inadequate. To put it another way, the starting point of 3½ years is manifestly inadequate. A starting point of the order of 5 years was appropriate. In the particular circumstances, general deterrence and denunciation necessarily prevailed over matters personal to the respondent. In this context the remarks of Porter AJ, with whom Blow CJ and Pearce J agreed, in Upston v State of Tasmania [2018] TASCCA 4 at [22] are applicable:
"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]."
Having reached the view that the sentence is manifestly inadequate, it is necessary to address whether this Court should exercise the residual discretion to dismiss the appeal, notwithstanding that the sentence is manifestly inadequate. This issue was discussed by Pearce J, with whom Blow CJ and Wood J agreed, in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [24]–[31]. In the circumstances of that case, his Honour concluded that the sentence was "markedly inadequate" and "did little to give effect to reflect the requirement for denunciation and general deterrence in sentencing drug traffickers": [31]. His Honour was of the view that declining to intervene would have perpetuated a "manifest injustice", and the maintenance of public confidence in the administration of criminal justice pointed "strongly against exercise of the residual discretion to dismiss" the appeal.
The critical factors relevant to this question are finely balanced. Not without hesitation, I have concluded that this is an appropriate case in which to exercise that residual discretion.
While the sentence is manifestly inadequate, it does not represent a gross departure from the appropriate sentencing standard. It is within the range identified in Roland, but fails to reflect adequately the criminality and culpability of the respondent's total criminal conduct.
Bearing in mind that the respondent was a relatively young person without previous criminal offending prior to becoming involved in the trafficking enterprise, to some extent the starting point of 3½ years reflected the need for general deterrence and denunciation of the criminal conduct. In addition, it is significant that the respondent's non-parole period is due to expire shortly. The prospect of imminent release on parole, particularly for a relatively young person without previous criminal offending, is a factor weighing in favour of the exercise of the residual discretion.[1] Having regard to the totality of the circumstances, and having made clear that the particular sentence does not represent the appropriate standard for the particular circumstances of this case, the public confidence in the administration of criminal justice will not be adversely affected if the residual discretion is exercised in the respondent's favour.
[1] Cumberland v The Queen [2020] HCA 21.
For these reasons I would exercise the residual discretion and dismiss the appeal.