Ellis v Harvey
[2004] TASSC 83
•19 August 2004
[2004] TASSC 83
CITATION: Ellis v Harvey [2004] TASSC 83
PARTIES: ELLIS, Timothy James (SC)
v
HARVEY, Michael Andrew
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 37/2004
DELIVERED ON: 19 August 2004
DELIVERED AT: Hobart
HEARING DATES: 15 June, 13 August 2004
JUDGMENT OF: Evans J
CATCHWORDS:
Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Miscellaneous matters – Other matters – Adequacy of suspended sentence in light of all considerations.
Sentencing Act 1997 (Tas).
Harper v Gauden [2003] TASSC 66; Dinsdale v R (2000) 202 CLR 321; House v R (1936) 55 CLR 499, referred to.
Aust Dig Criminal Law [851]
REPRESENTATION:
Counsel:
Applicant: F C Neasey
Respondent: M Daly and G T Stevens
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Henry Wherrett & Benjamin
Judgment Number: [2004] TASSC 83
Number of Paragraphs: 15
Serial No 83/2004
File No LCA 37/2004
TIMOTHY JAMES ELLIS SC v MICHAEL ANDREW HARVEY
REASONS FOR JUDGMENT EVANS J
19 August 2004
The Director of Public Prosecutions appeals against the sentence imposed on the respondent for a number of offences against the Misuse of Drugs Act 2001 ("the Act").
On 6 May 2004, the respondent pleaded guilty to one charge of selling a controlled drug, in breach of the Act, s26 in that between 1 June 2002 and 20 May 2003, he sold 3, 4- methylenedioxy-N (otherwise known as MDMA or Ecstasy) in the amounts detailed below to the persons there identified by their initials:
(i) to SJ 10 tablets
(ii) to LF 1 tablet
(iii) to MW up to 12 tablets
(iv) to AK up to 40 tablets
(v) to RH up to 50 tablets
(vi) to YA 400 tablets
The respondent also pleaded guilty to three charges of having in his possession a controlled drug in that on 20 May 2003 he was found in possession of:
· 94 Ecstasy tablets;
· Methylamphetamine;
· Ketamine
At the time of the respondent's commission of these offences he was a serving police officer. The prosecutor informed the learned magistrate that the possession charges related to drugs found when the police searched the respondent's residence and that at the time the police were in possession of statements from witnesses about the respondent's drug activities. The statements included the following details of how the respondent received orders and distributed drugs. SJ, who had been working as a doorman at a nightclub in Hobart, sent an SMS text message to the respondent asking whether he could supply Ecstasy and received from the respondent ten tablets of Ecstasy at a cost of $40 per tablet for which he paid in cash. LF sent a text message to the respondent requesting the name of someone who could supply Ecstasy and was met later in the day by the respondent who sold him 1 Ecstasy tablet at a cost of $35. MW sent the respondent text messages on several occasions ordering Ecstasy, usually singly, and the respondent sold her up to 12 tablets at between $40 and $50 per tablet. The respondent's telephone records indicated that he sent 959 SMS text messages during the latter half of the period during which he offended. When the police executed the search warrant on the respondent, his mobile phone was seized. Whilst the phone was in the possession of the police, four SMS text messages ordering drugs were sent to the phone.
Counsel for the respondent, Mr Daly, provided the learned magistrate with a comprehensive and informative plea in mitigation. Matters not mentioned elsewhere in these reasons include that: the respondent was 34 years of age; for the bulk of his working life he had served as a police officer and in the course of that service he had received a number of commendations; on being charged, the respondent had not sought to delay his discharge from the police force and as a consequence of being charged he had also lost part-time employment as a fitness instructor; and since being charged he had faced up to, and overcome, his addiction to Ecstasy and regained permanent employment.
In the course of the learned magistrate's comments when passing sentence, the matters he canvassed included:
·That the most significant offence was that of selling a controlled drug, which involved very serious criminal conduct and substantial profits were likely.
·That the respondent's employment as a police officer was not irrelevant. Many people who were aware of the respondent's activities must have come to know that he was a police officer and many more would now know of his corruption. The reputation of the police force would suffer significantly from his conduct. For a police officer to conduct himself as the respondent had, could lend legitimacy to the drug culture.
·That the experiences suffered by the respondent in the course of his employment as a police officer and other difficulties in relation to that employment had contributed to his addiction to Ecstasy and that he became involved in selling Ecstasy in order to fund that addiction.
·That the respondent had pleaded guilty, was remorseful, had co-operated with the police and had rehabilitated himself.
The learned magistrate closed his comments on passing sentence with the following:
"I have concluded that on a global basis a head sentence of 12 months' imprisonment should be imposed in order to deter the defendant and others from engaging in this kind of behaviour, and as to general deterrence I think that it is informative to read what Mr Chapman said in paragraph 7 of his March report.
However, it is important to note that the use of his drug of choice is widely accepted in the social group he was part of and in many other sections of our society. This provided in him, as it provides in many people, an important barrier against the operation of normal social conscience leading to the common experience in our culture of a rationalised gap between an official and a personal morality.
Now what clearer statement needs be made in order to justify a sentence of general deterrence than that.
I now turn to the issue of the question of suspending that sentence. I might say that this is clearly, at least in my opinion, the most difficult part of this exercise, and, as I foreshadowed to Mr Daly that it might, I have ultimately come to the position that whereas I would normally impose a sentence to be served longer than the period that the defendant has been in custody, I personally [sic] little value in sending him back for a few more weeks. I think the period that he has had in custody will operate as effectively as any period would to deter him.
Accordingly to order that the sentence be backdated to the date upon which I remanded in custody and the balance suspended on condition that the defendant is of good behaviour for the comparatively long period of four years. I could justify the long period by giving a number of reasons, but primary amongst them is persons who have been addicted to drugs often experience in rehabilitation and I think that this case demonstrates clearly why the community demands that that bond should be as lengthy as that."
The respondent was entitled to the benefit of a number of significant mitigatory matters including the manner in which he had acknowledged and faced up to his wrongdoing and the high likelihood that he had rehabilitated himself. Notwithstanding these matters, the learned magistrate quite properly imposed a term of imprisonment. The Director of Public Prosecutions has, in my view, correctly not challenged the length of the term of imprisonment imposed. Whilst a sentence of 12 months' imprisonment is lenient, it is not so lenient to be manifestly inadequate. However, Mr Neasey, counsel for the Director of Public Prosecutions, submits that the suspension of the prospective portion of the term of imprisonment strips the sentence of any real force and to this extent the sentence is manifestly inadequate.
There is nothing irregular about confining the appeal to a challenge to the exercise of the discretion to suspend the sentence. Although the Sentencing Act 1997, s25, provides that a partly suspended sentence is taken to be a sentence of imprisonment for the whole of the term, and a wholly suspended sentence is taken to be a sentence of imprisonment for most purposes, this does not mean that the fact of suspension is irrelevant for appeal purposes, Visser v Smart 151/1998, Crawford J at 3. The review by an appeal court of a sentencing discretion to suspend a sentence involves the same principles as a review of the discretion to impose a sentence, R v Prindable (1979) 23 ALR 665 at 669 and R v Shueard [1972] 4 SASR 36 at 43.
Mr Neasey submits that in suspending the prospective period of the term of imprisonment the learned magistrate erred by giving too little weight to considerations other than rehabilitation and personal deterrence. When dealing with a similar submission in Harper v Gauden [2003] TASSC 66, at par11, Cox CJ said:
"It was put to me by counsel for the appellant that the learned magistrate erred in imposing a suspended sentence by reason only of his prospects of rehabilitation. He relied on a dictum of Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 348, where his Honour said:
'In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. There is nothing in the grant of the power, as expressed in the applicable legislation, to justify confining its availability in such a way. Had the legislature intended to limit the discretion to suspend by reference to such a consideration, it could have done so. This consideration is particularly relevant to the Western Australian legislation, which amounts to a recent endeavour to collect all the main principles of sentencing in a statute of general application.
Moreover, the scheme of the legislation, and the two steps which s76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term, Thomas, Principles of Sentencing, 2nd ed (1979), pp244-245; R v P (1992) 39 FCR 276 at 285. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy, cf R v Shueard [1972] 4 SASR 36 at 43; R v Prindable (1979) 23 ALR 665 at 669; R v Davey [1980] 2 A Crim R 254 at 259-260. On the contrary, the structure and language of s76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of "all the circumstances". This necessitates the attribution of "double weight" to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment, R v Liddington (1997) 18 WAR 394 at 402, per Ipp J.
Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the "complete discretion", R v Davey [1980] 2 A Crim R 254 at 262, which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss, cf R v Wacyk (1996) 66 SASR 530 at 534; Police v Cadd (1997) 69 SASR 150 at 169.'
The High Court was there dealing with a West Australian statute which specifically required a court not to impose a sentence of imprisonment unless satisfied that it is not appropriate to use any of the other sentencing options given by that statute, including the suspension of the execution of a sentence of imprisonment. The intermediate court had concluded that Dinsdale's offences were rightly found to be of sufficient seriousness to require actual imprisonment, but had further concluded that because there was no rehabilitative process going on which merited the support of a suspended sentence, there was no reason shown which dictated a merciful disposition of the case. This, Gleeson CJ and Hayne J, in a joint judgment, said 'inverts the order in which the statute requires a sentencing judge to consider matters' (at 327). No such mandatory order of consideration of penalty is laid down in the Sentencing Act, but that Act does state in s3 that its purpose is to (among other things):
'(e) help prevent crime and promote respect for the law by allowing courts to ¾
(i)impose sentences aimed at deterring offenders and other persons from committing offences; and
(ii)impose sentences aimed at the rehabilitation of offenders; and
(iii)impose sentences that denounce the conduct of offenders;'
It would be an error, therefore, to suspend the sentence of imprisonment solely to achieve the aim of rehabilitating an offender without having regard to the need to deter others and to denounce the conduct in question."
I agree with and adopt the last sentence in the above passage.
In reviewing the sentence, I am conscious that this is an appeal by the Director of Public Prosecutions. As I observed in Attorney-General (Tas) v McDonald (2002) 11 Tas R 221, pars33 - 35:
"Whilst the same principles apply to the determination of Crown appeals against sentence as apply to appeals by a defendant; it must not be forgotten that a Crown appeal raises considerations which are not present on a defendant's appeal; R v Dowie [1989] Tas R 167 and R v Harland-White Serial No 23/1997. As to these special considerations, in R v Anderson (1987) 32 A Crim R 146, Kirby P at 151, said:
'In approaching its task, the appellate court should keep in mind the reasons for restraint which have marked the approach to Crown appeals of appellate courts in Australia, New Zealand, Canada and elsewhere. Above all, it should not ignore the legitimate scope of mercy where the sentencing judge's sympathies have been reasonably attracted by the particular circumstances involving the prisoner and his offence. The particular advantages which the trial judge has in this connection must not be overlooked.'
In R v Osenkowski (1982) 30 SASR 212, King CJ at 212-213 said:
'It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.'
An aspect of the Court's circumspection when considering a Crown appeal is the axiom that a defendant should receive the benefit of any doubt. In R v West [1979] Tas R 1, Crisp J, at 9-10, said of Crown appeals:
'Appeals of this description are rare and properly so, but happily there is no doubt as to the principles which should be applied. Subject perhaps to some difference in emphasis, whether the appeal be by the Crown or by the person convicted against severity the principles are the same. They were stated by the High Court in House v The King (1936) 55 CLR 499, at p 505, and repeated in Cranssen v The King (1936) 55 CLR 509, at p 519, and in Harris v The Queen (1954) 90 CLR 654. [After citing a passage from Harris, his Honour continued.]
Where, however, the Court is asked to review an exercise of clemency while the principles remain unchanged there is likely to be some reluctance in their application in accordance with the general principle of resolving doubts in favour of one whose liberty is at stake'."
Mr Daly submits that in this case the prosecution was on notice that the learned magistrate might suspend the sentence and did not express opposition to that course and accordingly, consistent with the general rule enunciated in Everett v R (1994) 181 CLR 295, the appeal challenging the suspension of the sentence should be dismissed. I reject this submission. Everett v R relates to a sentencing regime that required the Attorney-General to obtain the leave of the Court to appeal against a sentence. The decision is authority that where the prosecution is on notice that there is a real possibility that a sentence might be suspended, but does not submit that a suspension would be inappropriate and not within a proper exercise of the sentencing discretion, leave to appeal against a suspended sentence should generally not be granted. Since that decision, the requirement that the Attorney-General obtain leave to appeal against a sentence had been removed from the Criminal Code, s401(2)(c), and no such requirement exists in relation to a notice to review a sentence under the Justices Act 1959. Where, as here, the prosecution does not require leave to appeal against the sentence, the decision in Everett v R provides support for the proposition that in the circumstances there envisaged, an appellate court should be reluctant to allow an appeal. That proposition may be defeated by the Sentencing Act 1997, s80. The provisions of that section are to the effect that the failure of a prosecutor to exercise the right to address a sentencing court "is not to be taken into account by a court in determining any appeal against the sentence or in determining any motion to review the sentence". This may cover a prosecutor's failure to directly comment on the appropriateness of the suspension of a sentence. I will not take this any further as on the view I take of the facts in this case it is not necessary for me to determine the scope of s80. At the conclusion of the sentencing hearing on 6 May 2004, the learned magistrate remanded the respondent in custody to be sentenced on 25 May 2004. In the course of doing so, the learned magistrate said:
"It might just be that I could conclude, on the twenty-fifth of May, that the sentence, or the period in custody between now and then, would be sufficient to satisfy certain deterrent elements. I do not want to be misunderstood, I am not saying that that I would regard that period as sufficient but it is possible."
Accepting, with some hesitation, that this was an indication of a real possibility that the sentence might be suspended; this is of no consequence as the prosecutor had made it plain that the prosecution considered that an immediately effective sentence of imprisonment was the appropriate penalty. The prosecutor had put to the learned magistrate that the scale of selling involved in the respondent's offence put it in the category of the most serious examples of breaches of the Act, s26, and as to penalty referred the learned magistrate to the comments on passing sentence of Slicer J in relation to David Ling, a police officer sentenced to a total of 21 months' imprisonment, with 12 months of that sentence suspended. His convictions were for supplying a prohibited plant and for a related offence of perverting the course of justice.
I turn to the adequacy of the sentence. The respondent's criminal conduct involved numerous transactions over a period of just short of a year. Throughout this period the respondent was a police officer. The learned magistrate was told that the respondent's sales were to people acquainted with him, both inside and outside the club scene. It is inevitable that most, if not all, of those to whom the respondent made sales were aware he was a police officer. It is also inevitable that others became aware of the respondent's activities. That this is so is demonstrated by the four SMS text messages requesting drugs sent to the respondent's telephone when the search warrant was being executed. In order to sell Ecstasy, the respondent had to acquire it. In the course of these activities, the respondent inevitably involved others in his criminal conduct and thereby manifested to them his contempt for a law which, as a police officer, he was obliged to uphold. For a serving police officer to involve others in criminal conduct is a matter of grave significance; it brings the police force into disrepute and undermines trust in the police force. Efficient and effective law enforcement is, to a significant degree, dependent upon the confidence of the public in the police force. Conduct that jeopardises that confidence must be deterred and when the Court deals with it, considerations personal to the offender, such as reform, give way to the need to impose a penalty that denounces the conduct and deters other offenders. The suspension of the prospective period of the respondent's sentence denuded it of the capacity to serve these ends. If the respondent does not breach the term of that suspension, his only substantive coercive penalty will be 19 days' imprisonment. That penalty is not a sufficient discouragement to others and does not adequately censure the respondent's outrageous behaviour. These deficiencies in the penalty cause me to infer error in the exercise of the sentencing discretion, House v R (1936) 55 CLR 499 at 505.
The appeal is allowed and the sentence is quashed. I propose re-sentencing the respondent, but before doing so I will hear the parties.
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