Fama v Tasmania - [2015] TASCCA 27

[2015] TASCCA 27

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

CITATION: Fama v Tasmania [2015] TASCCA 27

PARTIES:  FAMA, Benjamin Michael
  v
  STATE OF TASMANIA

FILE NO:  CCA 264/2015
DELIVERED ON:  18 December 2015
DELIVERED AT:  Hobart
HEARING DATES:  18 August, 1 October 2015
JUDGMENT OF:  Blow CJ, Tennent and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Particular grounds of appeal – Conduct of defence counsel – Plea of guilty – Whether counsel failed to take thorough instructions – Whether counsel failed to acquaint sentencing judge with all relevant mitigating circumstances.
Aust Dig Criminal Law [3515]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in cannabis – Continuation of trafficking after arrest and charge – Sentence of 8 months' imprisonment with 3 months suspended.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  Not represented
             Respondent:  J Ansell
Solicitors:
             Appellant:  Not represented
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 27
Number of paragraphs: 42

Serial No 27/2015
File No CCA 264/2015

BENJAMIN MICHAEL FAMA v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
TENNENT J
WOOD J
18 December 2015

Order of the Court (1 October 2015)

Appeal dismissed.

Serial No 27/2015
File No CCA 264/2015

BENJAMIN MICHAEL FAMA v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
18 December 2015

On 13 March 2015 the appellant, Benjamin Fama, pleaded guilty before Porter J to a charge of trafficking in a controlled substance, namely cannabis. On 2 April 2015 his Honour made an order activating suspended sentences totalling 26 weeks' imprisonment, with effect from 13 March 2015, and, on the trafficking charge, sentenced the appellant to a cumulative term of 8 months' imprisonment, of which 3 months was suspended on condition that he was not to commit any offence punishable by imprisonment for a period of two years. This is an appeal in relation to that partly suspended sentence of imprisonment. The order activating the suspended sentences is not the subject of any appeal.
Initially the appellant relied on only one ground of appeal, which asserted that the sentence was manifestly excessive. He did not have legal representation for this appeal. The hearing of the appeal commenced on 18 August 2015. It became apparent that the appellant contended that his counsel at the time of the sentencing proceedings, Mr Stevens, failed to take proper instructions and failed to acquaint the learned sentencing judge with relevant mitigating circumstances. The hearing of the appeal was adjourned so that the grounds of appeal could be amended, and so that affidavits could be prepared in relation to Mr Stevens' conduct of the case. The hearing resumed on 1 October 2015, at which time the appellant pursued two grounds of appeal:
"1 The learned sentencing Judge erred in law in that he imposed a sentence which was manifestly excessive in all the circumstances.
2 Counsel for the appellant failed to take thorough instructions and failed to acquaint the learned sentencing Judge with all relevant mitigating circumstances."
At the conclusion of the hearing on 1 October, this Court unanimously dismissed the appeal. These are my reasons for joining in the order for its dismissal.

Background

The facts of the case appear in the sentencing comments of Porter J, as follows:
"The defendant has pleaded guilty to one count of trafficking in a controlled substance, namely cannabis, between December 2010 and about August 2014. The charge arises out of three police searches of him home. The first was on 4 December 2013. Officers found a sandwich bag containing cannabis, cannabis in a bowl on the kitchen bench, and a small amount of cannabis in a bedroom drawer. There was also a grinder containing traces of cannabis, along with evidence of cannabis use. When interviewed, the defendant said that he regularly smoked cannabis, consuming about half an ounce, or about 14 grams, a week. He said that he buys cannabis for a circle of friends who all contribute money. He bought the cannabis and distributed it to the contributors. He had been doing this for about 3 or 4 years. He would buy in half an ounce or 1 ounce bags, either of which he would buy about twice a week. A mobile phone was seized and text messages examined. From about mid-May 2013 it is clear, and the defendant accepts, that he had expanded his activities from buying and distributing to friends, to buying and selling to other people. I will return to this point. The Crown is not able to estimate the amount which the defendant has bought and distributed in the whole period. However, based on the defendant's admissions, it is estimated that some 312 ounces were purchased at $300 an ounce, making a total of $93,600. Assuming that half of the amount purchased was kept and used, the value of the amount sold or passed on, whether in half ounce or one ounce lots, is $46,800. Following the search and interview on 4 December 2013, the defendant was charged with drug offences.
On 5 June 2014 police again went to the defendant's home and carried out a search. Various quantities of cannabis were found in varying packages in different locations, along with a set of scales. When interviewed, the defendant said that he was selling cannabis about once or twice a week. He said he knew that it was illegal but had not really thought of it 'as a massive, massive issue'. He supplied cannabis to less than 10 people and said that it was not a profit making exercise. Any profit was used for purchasing cannabis for himself. He said he was getting a quarter to one-half an ounce each time every second day, and then selling half of what he would get. On that basis, the Crown puts the value of the amount of cannabis sold in the months December 2013 to June 2014 at $4,200. Police went to the defendant's home yet again on 21 August 2014 and executed a search warrant. The defendant volunteered the presence of about 3.2 grams of cannabis when asked if he had any drugs. Some drug related text messages appeared on his phone which he produced. The defendant's girlfriend was present during the search. She was spoken to and told police that the defendant had been selling about three to four $25 deals a day for the last seven months, although over the last two months there had been less regular selling. The most he was selling is two $25 deals a week. On the basis of the statement, and the text messages, the Crown asserts that the defendant continued to sell cannabis following the previous search in June, and that the value of the cannabis sold was $550, represented by about 22 x $25 deals. The Crown asserts that by his continuing behaviour the defendant's has shown little insight into his offending. It is said that this is further demonstrated by two posts on his Facebook profile. These posts appear on 7 June 2014 and 21 August 2014. They refer to two drug squad officers by their first names. The comments about the officers are abusive, derogatory and demeaning. The last post contained the sentiment that the defendant hoped bad things happened to them and their families."
The appellant was 34 years old when he was sentenced. He had a lot of prior convictions, mainly for driving offences. He committed a series of drug offences in late 2005, one of which involved selling a controlled plant or its products, and was sentenced to 14 hours' community service. He had six drink driving convictions and four convictions for driving whilst disqualified.
In November 2012 a magistrate imposed two prison sentences on the appellant in relation to some driving offences. The first was a sentence of 28 weeks' imprisonment, with 14 weeks thereof suspended on condition that he be of good behaviour for one year. By virtue of s 24(1) of the Sentencing Act 1997, that sentence was subject to a condition that the appellant did not commit another offence punishable by imprisonment during that period. The second was a sentence of 12 weeks' imprisonment, wholly suspended on a number of conditions, one of which was that the appellant was not to commit another offence punishable by imprisonment within a period of 30 months.
The appellant was in custody when those sentences were imposed, and was not released until January 2013. After his release, he trafficked in cannabis, and thereby breached the conditions of both suspended sentences.
The learned sentencing judge decided to activate the 14-week suspended component of the first of those sentences, and to activate the whole 12 weeks of the second. Thus, as I have said, the appellant was required to serve a total of 26 weeks' imprisonment in relation to matters other than the trafficking charge.
As a result, when imposing a sentence of imprisonment on the trafficking charge, the learned trial judge was required to observe the "totality principle" that was discussed by the High Court in Mill v The Queen (1988) 166 CLR 59. To put it simply, his Honour was required to take into account the aggregate of the consecutive sentences that the appellant was going to have to serve, and ensure that the total period of imprisonment was not excessive. The practical effect of applying that principle was that the sentence on the trafficking charge had to be a little more lenient than it would otherwise have been.
Mr Stevens provided the learned sentencing judge with a lot of mitigatory information about the appellant's personal circumstances, which his Honour took into account. In his sentencing comments, his Honour summarised that information as follows:
"The defendant's parents separated when he was about 10. His father's employment involved shift-work and, left to his own devices, the defendant became somewhat uncontrollable. He started using cannabis and drinking alcohol when he was about 14. He developed anxiety and anger management problems. However, he completed a traineeship and has been employed in various labouring and handyman type jobs up until the commencement of the period covered by this indictment. Being unemployed led him to abuse alcohol and cannabis. Clearly, he failed to recognise the seriousness of his conduct in dealing in cannabis. The Facebook posts are put down to bravado, and I am told that he has apologised in writing. I am also told that since August last year he has not used cannabis. Since that time he formed a relationship, for which he had long-term hopes, but regrettably that ended. It is put as a positive that he survived the break-up without resort to illicit drugs. More recently he has found employment on a part-time basis at a licensed club. I have a reference from the bar manager which attests to the defendant's punctual, hardworking, reliable and trustworthy nature. This employment, it is said, offers him significant ongoing motivation. Generally, it is put that the defendant is a man who is capable of being a contributing member of society, and someone with positive personal attributes."

Criticisms of the conduct of counsel

The duration of the trafficking and the value of the drugs trafficked

When the appellant pleaded guilty on 13 March, he did not accept that his activities during the period from December 2010 until May 2013 constituted the crime of trafficking in a controlled substance. He considered himself to be a user, not a trafficker. On his instructions, Mr Stevens disputed the Crown's assertion that the appellant's activities during that period amounted to trafficking. In relation to that period, the Crown relied entirely on admissions made by the appellant during a police interview that was audio-visually recorded. There was no dispute as to what the appellant said to the police, nor as to the truthfulness of what he said to them. A transcript of the interview was in his Honour's papers.
In that interview, the appellant told the police the following things:
·     He probably went through half an ounce of cannabis per week.
·     He had not been selling cannabis. He helped mates out. They all threw in money together to buy cannabis. That made it cheaper.
·     He had been supplying people with cannabis as part of that arrangement.
·     He had been receiving money for the cannabis, not giving it away.
·     He was not always the person who had gone and bought the cannabis.
·     He had been doing this for three or four years.
·     He supposed he got cannabis for the people he supplied a couple of times a week.
It is clear that the activities described by the appellant amounted to trafficking in cannabis. He was acting as an intermediary between users and a seller, collecting money, taking the money to the seller, collecting cannabis, and delivering quantities of it to the buyers.
When sentencing the appellant, Porter J rightly rejected the submission about the period prior to May 2013, saying this:
"The ordinary meaning of the word 'traffic' in the context of drug legislation is well settled. It connotes an activity in a commercial setting. Relevant activity is any movement between source and consumer in such a setting. Purchase from one person and delivery to another is an act of trafficking. See Falconer v Pedersen [1970] [sic] VR 185, Burton v The Queen [1979] Tas R 193 at 197-198, R v Holman [1982] VR 471 at 475-476, R v Hayes [1985] Tas R 213 at 216, and R v Kloufetos (1985) 14 A Crim R 426. Accordingly, the defendant's admitted conduct falls within the scope of the plea of guilty."
The correct reference to Falconer v Pedersen is [1974] VR 185. The authorities cited by his Honour all support the proposition that the activity in question amounted to the crime of trafficking.
When the appellant appeared before this Court on 18 August, he submitted that Mr Stevens should have disputed the Crown's assertion that his activities prior to May 2013 amounted to trafficking. Mr Stevens did dispute that. The appellant also submitted that Mr Stevens did not "argue the point enough". The transcript reveals that he argued the point robustly. Any further or more robust argument would have been futile since, as a matter of law, it was beyond doubt that the activities described by the appellant to the police constituted trafficking. The appellant argued that Mr Stevens said he was "securing payment". Mr Stevens did not suggest that the appellant was profiting from the purchase and supply of cannabis for others during the period before May 2013. The fact that he was trafficking during that period only on a non-profit basis was something relevant to sentence, and that point was clearly not lost on the learned sentencing judge.
During the sentencing proceedings, the Crown prosecutor estimated that the cannabis purchased by the appellant for himself and others during the three years preceding the December 2013 search was worth about $93,600. That figure was arrived at by means of a simple calculation which appeared in the Crown papers as follows:
"3 years x 52 week = 156 weeks
156 weeks x 2 ounces = 312 ounces
312 ounces x $300.00 = $93,600.00".
The appellant contended that he knew nothing of this calculation at the time of the sentencing proceedings; that he had not seen the Crown papers before Mr Stevens completed his plea in mitigation; that Mr Stevens did not give him an opportunity to discuss the figure of $93,600; and that he would not have pleaded guilty to a charge involving such an amount.
Mr Stevens gave evidence to the following effect. He wrote to the appellant on 15 September 2014, sending him a copy of the Crown papers. He wrote to him at the same address on 29 September 2014, giving him an appointment to see him on 6 October 2014 at 2pm. The appellant attended at that appointment and saw Mr Stevens from 1.40pm until 2.50pm. He attended a second appointment on 15 October 2014, when he saw Mr Stevens for 40 minutes. Later that day Mr Stevens sent the prosecutor an email in which he referred to the appellant's "habit, and that of his friends, to sharing the purchasing expense of cannabis".
This Court has a transcript of the sentencing proceedings on 13 March. It is clear that, at the outset, the Crown prosecutor read out to the learned sentencing judge the Crown statement of facts that was contained within the Crown papers. That included the calculation that produced the figure of $93,600, as set out above. Mr Stevens subsequently made the submission in which he argued that the appellant's activities before May 2013 did not amount to trafficking. When he finished that submission, the Court adjourned for lunch until 2.15pm. Mr Stevens' submissions as to mitigation of penalty were delivered after the luncheon adjournment. Mr Stevens gave evidence to this Court that he spoke to the appellant before court on that day and "reminded him of what the process was".
To the extent that the appellant's evidence and contentions are inconsistent with the transcript and Mr Stevens' evidence, I did not accept what he said. I wholly accepted the evidence of Mr Stevens and the contents of the transcript. The appellant appeared to have a very faulty recollection of events in relation to the provision of information to him and the discussion of the Crown's allegations with him. It is clear that he was informed of the Crown's contentions as to the scale of the trafficking long before he pleaded guilty, and that he had had the Crown papers for about six months before the day of his plea. It is clear that he had no shortage of opportunities to discuss the case with Mr Stevens.
The appellant submitted to this Court that the figure of 156 weeks in the Crown prosecutor's calculation was excessive, for the following reasons:
·     He was in prison for 14 weeks as from 14 October 2010. (That was the unsuspended component of the first sentence imposed by a magistrate on 27 November 2012, referred to above.)
·     He goes to Bathurst each year for a week.
·     He stayed at Dodges Ferry for six months caring for a woman with two broken legs.
·     He went to Queensland after the floods in January 2011 to assist his sister who lost two houses.
Mr Stevens gave evidence that he did not have a note about the trips to Dodges Ferry or Queensland, and did not recall being told about them. I was not satisfied that he was told about either trip. No error on Mr Stevens' part has been established in relation to those trips.
The figure of 156 weeks was apparently adopted because the appellant made an admission to the police in December 2013 to the effect that he had been buying cannabis for himself and others for three or four years. The Crown took the lower figure of three years, which equates to about 156 weeks, for the purposes of a rudimentary calculation. If the appellant was not trafficking for 17 of those weeks (14 in prison and 3 in Brisbane), it cannot be said that a more lenient sentence would have been warranted. The appropriate sentence did not depend on precision in the estimation of the value of the drugs that were the subject of the trafficking. It should be noted that, perhaps generously to the appellant, the Crown assumed for the purposes of the calculation that only half of the cannabis acquired by the appellant was passed on by him to other paying users. He was sentenced on the basis that he had trafficked for about three years prior to December 2013, without personal profit, in something like $46,800 worth of cannabis. If he had really trafficked for only 139 weeks, not 156, and the appropriate estimate would therefore have been $41,700, there is no reason to think that he might have received a slightly shorter sentence.

Lack of an opportunity to speak

One criticism made by the appellant was that Mr Stevens did not allow him to speak during the sentencing proceedings. That is a fact. Apart from being given an opportunity to utter the word, "Guilty", he was not offered any opportunity to speak. But that is what invariably happens when an accused person is represented by counsel and pleads guilty. There was no need for the appellant to give oral evidence in the sentencing proceedings. It was the duty of his counsel to say everything that could be said on his behalf.

Documents that Mr Stevens did not tender

During his plea in mitigation, Mr Stevens tendered two references and a resumé that the appellant had provided. There were three other documents that the appellant wanted Mr Stevens to tender, but which he did not tender. One purported to come from the head chef at the club where the appellant had been working in the kitchen. However it was neither signed nor dated. It was appropriate for Mr Stevens not to seek to rely on that document, since an unsigned document was unlikely to carry any weight. It would have added nothing to the reference from the bar manager, which the learned sentencing judge referred to in a passage in his sentencing comments that I have quoted above.
The second reference was signed by a man named Nick Waters, who apparently was a director of a business named Nick Waters Contracting. It was undated. It said that he had engaged the appellant as an independent contractor for his business over the past five years, and had found him to be honest, reliable and a dedicated worker. Nothing was said as to whether the author of the letter was aware of the appellant's drug trafficking activities. That reference would not have made any significant difference to the outcome of the proceedings. The two references that Mr Stevens did hand up were quite impressive, but this one would have added almost nothing.
The third reference was a letter from the appellant's parents. Mr Stevens gave evidence before this Court that he does not tender references from clients' parents, but that he did tell the learned sentencing judge some of the things that were said in the letter. His practice of not tendering references from clients' parents appears to be a reasonable one. There does not appear to be anything significant in the letter that was not mentioned during the plea in mitigation. I think it is clear that, even if all three of the unused references had been handed up to the learned sentencing judge, they would have made no difference to the outcome of the proceedings.

Statutory declaration of Emma Knoop

On 21 August 2014, following the third police search of the appellant's home, his then partner, Emma Knoop, signed a statutory declaration that was prepared by a police officer. It was included in the Crown papers. It contained assertions as to the appellant's cannabis use and his trafficking. The appellant told this Court on 18 August that Ms Knoop made that statement under duress; that the police put words into her mouth; and that she tried to withdraw that statement without success. He submitted that Mr Stevens should have spoken about that statement, and disputed its contents, during the sentencing proceedings.
Mr Stevens arranged for a colleague, Ms Baumeler, to interview Ms Knoop during October 2014. Ms Baumeler reported to him that, according to Ms Knoop, the contents of the statutory declaration were true and, whilst reluctant, she preferred to tell the truth rather than to retract what she had said. There was no reason to doubt Mr Stevens' evidence in relation to Ms Knoop. There was no reason for him to tell the learned sentencing judge anything about Ms Knoop or her statutory declaration.

Rokeby

In his plea in mitigation, Mr Stevens told the learned sentencing judge that, after the appellant's parents separated in 1990 when he was about 9 or 10 years of age, "he ended up with his father and his siblings in Rokeby". That was wrong. He went to Rokeby High School, but his father's household was in Acton. The appellant is aggrieved by that error. He argued to the effect that coming from Rokeby sounds much worse than coming from Acton, and that this mistake was therefore likely to have made a difference to his sentence. That is not so. The prestige or otherwise of localities in which offenders have previously lived is not a factor that has an impact on sentences in this State. The learned sentencing judge did not mention Rokeby in his sentencing comments, and there is absolutely no reason to suspect that Mr Stevens' mistake about the nature of the appellant's association with Rokeby in the 1990s might have made any difference at all to the penalty that he received for trafficking in cannabis that commenced in about December 2010.

Employment history

In one of the documents that he submitted to this Court, the appellant made the following complaint about Mr Stevens:
"He did not put a very good case forward in mitigation by failing to mention that I had worked near nonstop for 20 years putting in some major infrastructure in Tasmania such a the major feed for fibre optic NBN into places such as the University of Tasmania, the Telstra building The Hobart Airport and connecting the eastern short to the west via the Bowen bridge. Also I worked on the Powerco Gas pipeline in all suburbs over 3 years and Downer EDI Works resealing some of our major highways all over the state including the west coast."
In his plea in mitigation, Mr Stevens said this:
"… I'm instructed that at 15 he commenced a traineeship at TAFE and after concluding the traineeship began work with local companies and for the majority of his adult life he instructs me he's been employed either as an employee of another business or self-employed in various labouring and handyman type of jobs …".
In the resumé prepared by the appellant and tendered by Mr Stevens, the appellant wrote this:
"CAREER SUMMARY
An enthusiastic and hard working individual with broad experience in civil construction, fibre optic and gas pipeline installation. Trained and experienced in operating a range of machinery including bob cats, fork lifts and small excavators."
When the appellant cross-examined Mr Stevens before this Court, he did not ask any questions about this aspect of the matter. This Court received no evidence to suggest that Mr Stevens was told anything of significance about the appellant's work history that was not communicated to the learned sentencing judge. Although his Honour referred only to the appellant having "completed a traineeship" and "been employed in various labouring and handyman type jobs", there is no reason to think that the outcome of the sentencing proceedings might have been any different if his Honour had understood that the appellant's past jobs involved a greater contribution to the community.

Conclusions as to the conduct of Mr Stevens

Under s 402(1) of the Criminal Code, this Court must allow an appeal if, in its opinion, an order should be set aside on the ground that there was a miscarriage of justice. There have been a number of cases in which appeal courts have acknowledged that the conduct of defence counsel during a jury trial can be so incompetent or inappropriate as to result in a miscarriage of justice: Re Knowles [1984] VR 751; R v Birks (1990) 19 NSWLR 677; R v Ignjatic (1993) 68 A Crim R 333; Philipott v The Queen [1996] TASSC 57 (A31/1996). The conduct of counsel in sentencing proceedings can result in a miscarriage of justice: R v McLean (2001) 121 A Crim 484; Papastamatis v Police (2003) 85 SASR 241. However, as Gleeson CJ said in R v Birks (above) at 685, "such intervention is a matter about which the courts are extremely cautious".
In this case, the worst that can be said about Mr Stevens' representation of the appellant in the sentencing proceedings is that he made the mistake of thinking that the appellant had lived in Rokeby in the 1990s when he was attending Rokeby High School. That error was inconsequential. No other mistake or error of judgment has been established. There is no reason to think, or even suspect, that the appellant might have received a more lenient sentence if Mr Stevens had somehow done a better job. It is abundantly clear that no miscarriage of justice has resulted from anything that he said, did, or failed to do or say.

A manifestly excessive sentence?

The matters relevant to the sentencing of the appellant are set out above at [4] to [10]. Convictions for trafficking in cannabis usually result in sentences of imprisonment, but many of those sentences are wholly suspended. In my view, a wholly suspended sentence would have been inappropriate in this case because the appellant continued his trafficking activities after the first and second police searches of his home, and after being charged. The fact that his trafficking after his release from prison in January 2013 was in breach of the conditions of two suspended sentences is also very significant. So is his prior conviction for selling a drug in 2005. In my view, having regard to all the relevant circumstances, the sentence of 8 months' imprisonment with 3 months thereof suspended, to be served cumulatively with the activated suspended sentences totalling 26 weeks' imprisonment, was a very appropriate one. It was not out of proportion to the seriousness of the appellant's offending. It was not manifestly excessive.
The appellant provided us with a quantity of information about sentencing in other drug cases, including some information about cases in which offenders received sentences more lenient than his after selling harder drugs. Such information is of little or no assistance because each case depends on its own facts. In this case, the scale and duration of the appellant's trafficking activities, and the continuation of those activities after him being caught by the police, not once but twice, warranted the sentence that was imposed.

Conclusion

For the reasons stated above, I decided that the appeal should be dismissed.
File No CCA 264/2015

BENJAMIN MICHAEL FAMA v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
18 December 2015

I have had the benefit of reading in draft form the reasons for judgment of the Chief Justice. I agree with those reasons. They reflect well the reasons why I joined in the decision to dismiss this appeal on 1 October 2015.
File No CCA 264/2015

BENJAMIN MICHAEL FAMA v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
18 December 2015

I agree with the reasons for judgment of the Chief Justice. They accurately reflect my reasons for joining in the order dismissing this appeal.