Howlett v Tasmania

[2010] TASCCA 15

[2010] TASCCA 15

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

CITATION:              Howlett v Tasmania [2010] TASCCA 15

PARTIES:  HOWLETT, Wayne William
  v

STATE OF TASMANIA

FILE NO/S:  CCA 219/2010
DELIVERED ON:  12 October 2010
DELIVERED AT:  Hobart
HEARING DATE:  12 August 2010
JUDGMENT OF:  Blow, Tennent and Porter JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Trafficking in a controlled substance – Possession of methylamphetamine for barter or exchange – Intention to exchange for firearms.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  G A Richardson
           Respondent:  D G Coates SC
Solicitors:
           Appellant:  G A Richardson
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2010] TASCCA 15
Number of paragraphs:  33

Serial No 15/2010

File No CCA 219/2010

WAYNE WILLIAM HOWLETT v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APEAL
  BLOW J
  TENNENT J
  PORTER J
  12 October 2010

Orders of the Court

1. Appeal allowed.

1. Sentence of two years' imprisonment quashed.

1. Appellant sentenced to 14 months' imprisonment with effect from 1 March 2010.

Serial No 15/2010

File No CCA 219/2010

WAYNE WILLIAM HOWLETT v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  BLOW J
  12 October 2010

1. This is an appeal against a sentence of two years' imprisonment which was imposed by Evans J on a single charge of trafficking in a controlled substance.  His Honour did not make an order permitting parole.  In the absence of such an order, a prisoner is not eligible for parole:  Sentencing Act 1997, s17(3A).

1. On 5 December 2008, police officers found 27.1 grams of methylamphetamine in the appellant's possession.  That amount is a little less than an ounce.  It is common ground that it was worth about $4000.  The appellant was apprehended as a result of an undercover police operation.  Details of that operation were provided to the learned sentencing judge by his counsel, and not disputed by the Crown.

1. The undercover operation involved police officers and a man named Campbell.  Originally there was a plan for Campbell to offer to sell firearms to a person in Hobart, and to ask for methylamphetamine by way of payment.  The original target of this operation was not the appellant, but a person who had nothing to do with him.  In fact the appellant was in prison, serving a sentence.  Campbell was provided with a photo of the firearms.  The firearms remained in the possession of police officers. 

1. For reasons unknown to this Court, the original undercover operation did not proceed.  On 28 November 2008 Campbell, apparently acting on his own initiative, had a conversation with an acquaintance of the appellant, showed that man the photo of the firearms on a mobile phone, and offered to exchange them for two ounces of methylamphetamine.  The acquaintance spoke to the appellant, who had been paroled by then.  The appellant subsequently took over the discussions with Campbell.  Campbell met him.  It was agreed that the firearms would be "sold" to the appellant for two ounces of methylamphetamine.

1. The appellant spoke to a second acquaintance.  The second acquaintance wanted to acquire some firearms, and was able to provide one ounce of methylamphetamine, but not two.  He made an arrangement with the appellant that (a) he would provide one ounce of methylamphetamine and $4000 to buy a second ounce; (b) the appellant would exchange two ounces of methylamphetamine for the five firearms; (c) the appellant would keep one of the firearms in return for his part in the transaction; and (d) the other four firearms would be provided to this second acquaintance.  By mistake, this man gave the appellant $4100, not $4000.  The appellant tried to buy another ounce of methylamphetamine from a third acquaintance, but was unsuccessful.  He made arrangements with Campbell to provide one ounce of methylamphetamine and $4000 in return for the five firearms.  The appellant and Campbell went to a car park on the Queen's Domain on 5 December 2008 where they met a man who had possession of the five firearms.  That man was an undercover police officer.  The appellant handed over the methylamphetamine and the cash.  A number of police officers then emerged from hiding places and arrested the appellant. 

1. In the Misuse of Drugs Act 2001, s3(1), "traffic" is defined to include "possess the substance with the intention of selling it", and "sell" is defined to include "barter or exchange". Thus the appellant committed the crime of trafficking by having possession of the methylamphetamine with the intention of bartering or exchanging it for the firearms.

1. The appellant's principal contention in this appeal is that a sentence of two years' imprisonment, with no possibility of parole, is manifestly excessive, given that his crime involved a single transaction concerning a little less than an ounce of methylamphetamine.  However the notice of appeal begins with five grounds alleging specific errors by the learned sentencing judge.  I will deal with those grounds first.

Ground 1 – Things the appellant said

1. On the day of the appellant's arrest, two listening devices were used.  One was in the vehicle in which the appellant and Campbell travelled.  The other was worn by the undercover officer who had the firearms.  When the appellant met the undercover officer, he said a number of things about his reliability as a drug supplier.  The conversation was transcribed, and relied upon by the Crown in relation to sentencing.  The assertions made by the appellant to the undercover officer included the following:

•     "Trust me, man, I run Tasmania, mate."

•     "Mate weigh it (the drug ), this is what I do for a living mate."

•     "Mate I can get you pounds (of drugs), I can get you kilos that's what I deal in ... I've got kilos of it."

•     "Mate, believe me, you've just got to ask whoever in Hobart, they know who I am."

•     "Mate, I will fucken look after ya big time." 

1. In his comments on passing sentence, when describing the events leading up to the appellant's arrest, the learned sentencing judge mentioned that the appellant had made a number of assertions in the course of promoting himself as a reliable drug supplier, and set out verbatim the utterances that I have quoted above.  The appellant contends that his Honour took these assertions into account in sentencing him, and that he was wrong to do so. 

1. During the making of sentencing submissions, the learned sentencing judge asked the prosecutor what he should make of the appellant's recorded comments.  She conceded that "to an extent the comments were made as part of the bravado associated in discussing one criminal to another".  Defence counsel submitted that the comments were both bravado and absolute nonsense, particularly in light of the fact that the appellant had been unable to procure a second ounce of the drug.  It was not suggested that the appellant had engaged in any trafficking apart from the transaction that gave rise to the charge.  The sentencing comments give no indication of any mistake as to that.  It may be that his Honour was unnecessarily thorough in quoting the appellant's remarks when narrating the relevant events.  All that the remarks reveal is that the appellant was willing to have others think that he was a large-scale drug trafficker.  In my view the remarks were quite insignificant, but there is no reason to think that the learned sentencing judge gave them more weight than they deserved.

Ground 2 – Uncharged firearms crime

1. Trafficking in firearms without a lawful excuse is an indictable offence, punishable under the Criminal Code: Firearms Act 1996, s110A(1). Since the appellant went so far as to hand over the methylamphetamine and cash that constituted the agreed consideration for the five weapons, it seems clear that he is guilty of attempting to commit that crime: Criminal Code, s299. However he was not charged with any crime or offence relating to firearms, but only with trafficking in methylamphetamine. The appellant contends that the learned sentencing judge gave undue weight to the fact that he had committed an offence involving trafficking in firearms when he had not been charged with any such offence.

1. Counsel for the appellant relied on R v De Simoni (1981) 147 CLR 383. That case concerned a robbery, during which the robber wounded his victim by hitting her on the head. He pleaded guilty to robbery, but was not charged with wounding. Gibbs CJ, with whom Mason and Murphy JJ agreed, stated the relevant principles as follows, at 389:

"... the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted.  ...  The combined effect of the two principles, so far as is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."

1. Counsel for the appellant submitted that it followed that the appellant's intention to exchange the methylamphetamine for firearms was not relevant for sentencing purposes.  I disagree.  For one thing, it was appropriate for the learned sentencing judge to make some assessment of the extent to which the appellant, a parolee, had rehabilitated himself, and of his prospects for future reform.  It was relevant to that assessment that the appellant was willing to receive five firearms, keep one for himself even though he was on parole, and pass four of them to the man who had supplied him with the drug.  The appellant had no way of knowing who might eventually receive possession of the four firearms that he intended to pass on.  There was a realistic chance that they might be used to shoot, threaten or intimidate people.

1. Further, in my view it is clearly relevant for sentencing purposes that the appellant's motive for possessing the methylamphetamine was a desire to acquire the firearms.  The motive for committing a crime, provided it is established or admitted, is frequently relevant to sentencing.  For example, it is relevant if the crime of stealing is motivated by need, or by greed.  Professor Warner, in Sentencing on Tasmania, 2^nd ed, at par3.410, refers to two Tasmanian cases in which sentencing judges took into account the fact that the crime of stealing was committed for the purpose of facilitating another offence.  In Lancaster v R (unreported 13/1972, Court of Criminal Appeal), the applicant was sentenced on a number of charges, including one of stealing gelignite.  Crawford J, with whom Neasey and Nettlefold JJ agreed, said, at 5:

"It is obvious that the gelignite and fuse were stolen for use in one or more criminal enterprises.  Of course the applicant was not to be treated as though he had been convicted of using or attempting to use them for a criminal purpose."

1. In Devine v Lowe (unreported, 58/1976, Green CJ), one of the charges concerned the stealing of a pair of number plates.  Green CJ said, at 2 – 3:

"At first sight a sentence of 12 months imprisonment for the theft of property valued at $3.00 appears clearly excessive.  However, I do not think that in assessing the seriousness of a theft the value of the property stolen should be confined to its monetary value ... in many cases the defendant's motive in committing a crime is a fact relevant to the exercise of the sentencing discretion.  But, having said that, it should also be emphasised that although the fact that a theft might have been committed for the purpose of facilitating the commission of another crime or for the purpose of avoiding apprehension for some other crime is capable of being regarded as an aggravating element, it must not be allowed to lead a sentencing court into the error of punishing the defendant for the commission or attempted commission of a crime other than the one for which he is being sentenced."

1. The same principles apply on the facts of this case.  It was relevant that the appellant's motive in possessing the methylamphetamine for the purpose of barter or exchange, and thereby committing the crime of trafficking, was to facilitate the crime of trafficking in firearms.  It was appropriate for the learned sentencing judge to take into account that motive as an aggravating factor, but not to allow that to lead into the error of punishing the appellant for committing a crime with which he was not charged.  The appellant contends that the learned sentencing judge imposed a sentence so heavy that he must have fallen into error in that way.  The Crown contends that that is not so.  Apart from the possibility that the sentence was manifestly excessive, there is nothing in the learned sentencing judge's comments that gives any indication that he may have attached undue weight to the appellant's attempt to traffic in firearms. 

Ground 3 – Parole dates

1. The appellant was in prison, serving a series of cumulative sentences, from 29 March 2000 until 1 February 2005.  On and after that date, he was paroled three times, but each time his parole was subsequently revoked.  The learned sentencing judge was provided by the Crown with a record of the appellant's prior convictions which contained information as to the dates when he was granted parole, and the dates when his parole was revoked.  That information was not disputed by the appellant's counsel when the matter was before the learned judge, and was relied on by his Honour.  Unfortunately, that information was both inaccurate and internally inconsistent.  The information can be summarised as follows:

01.02.2005	Released on parole
28.02.2005	Parole suspended until 14.03.2006
02.01.2008	Released on parole
08.08.2008	Parole revoked
24.11.2008	Released on parole
19.12.2008	Parole revoked.

1. On the hearing of this appeal, counsel for the appellant provided us with information as to the correct dates, which was conceded by counsel for the respondent to be correct.  That information can be summarised as follows:

01.02.2005	Released on parole
08.12.2006	Parole revoked
02.01.2008	Released on parole
08.08.2008	Parole revoked
31.10.2008	Released on parole
19.12.2008	Parole revoked.

1. The information supplied to the learned judge did not make it clear whether the appellant was in prison or at large between 14 March 2006 and 2 January 2008.  His Honour sentenced on the basis that the appellant had been in custody between 28 February 2005 and 2 January 2008, but that was not so. 

1. As I have said, this crime was committed on 5 December 2008.  That was 35 days after the appellant's release on parole on 31 October 2008.  However the learned judge was provided with false information that the appellant had been released on 24 November 2008, which was only 11 days before the crime.  In his sentencing comments, he made a mistake of his own, said that the appellant was released on parole on 28 November 2008, and said that he committed the crime within seven days of that release. 

1. On the material before the learned judge it appeared that, following the appellant's release on 1 February 2005, he remained at large without offending only until the end of that month when, for some reason that was not stated, his parole was revoked.  In fact he was at large for a little over 22 months before his parole was revoked, and did not re-offend during that period.  The fact that he was at large for so a long period without re-offending was a significant mitigating fact that was not brought to the learned judge's attention.  The information that was not before his Honour was so significant that, in my view, there has been a miscarriage of justice: S v Tasmania (2007) 16 Tas R 292. This ground of appeal must succeed.

Ground 4 – Lack of offending since 2000

1. This ground asserts that "The Sentencing Judge failed to give sufficient weight to the Appellants [sic] lack of offending since the year 2000". 

1. Between March 2000 and December 2004, the appellant was convicted of dozens of crimes and offences.  Some eleven sentences of imprisonment were imposed upon him, eight of them cumulative.  However, with one exception, the sentences all related to offending in 1998, 1999 and 2000.  The exception related to an aggravated assault committed in February 2002 when the appellant was in prison.  The learned sentencing judge apparently did not notice that that sentence related to a crime committed in 2002, and sentenced the appellant on the basis that he had not offended between 2000 and 5 December 2008.

1. In substance, this ground of appeal involves a contention that the learned sentencing judge attached insufficient weight to the fact that the appellant had stayed out of trouble for so long.  There is nothing in the sentencing comments, apart from the sentence itself and the incorrect information as to parole dates that gives any indication of the possibility of such an error. 

Ground 5 – Plea of guilty

1. This ground asserts that the learned sentencing judge failed to give sufficient weight to the appellant's plea of guilty.  The appellant originally pleaded not guilty to the charge on the indictment.  His case was listed for trial.  Before the empanelment of a jury, his counsel sought a determination that critical evidence relating to the undercover police operation was inadmissible because it was improperly or illegally obtained.  A voir dire was about to commence when the appellant, against the advice of his counsel, decided to plead guilty for the sake of bringing the proceedings to an end.  In my view, although the plea of guilty came at a late stage in the proceedings, it avoided the cost and inconvenience of a voir dire, and possibly a jury trial.  I think it is significant that the appellant gave up a chance of acquittal, but I am not in a position to evaluate the strength of that chance. 

1. However, apart from the possibility that the sentence is manifestly excessive, there is nothing in the learned sentencing judge's comments that gives any indication that he may have attached too little weight to the plea of guilty and the circumstances relating to it. 

Ground 6 – Manifestly excessive sentence

1. This crime involved a quantity of methylamphetamine worth about $4000.  The appellant had first hand experience of the impact that drug abuse can have on a person's life.  Most of the crimes and offences that resulted in him spending years of his life in prison were related to his own use of illegal drugs.  However he was prepared to deliver about an ounce of methylamphetamine to a black market firearms dealer, not knowing who might end up consuming it or what harm it might cause. 

1. The appellant was 28 years old when he committed this crime, was 29 when sentenced, and is now 30.  I have already referred to his bad record, the fact that he was on parole when he committed this crime, and the fact that he had only been at large for 35 days.  In the light of those matters, and of the fact that he was attempting to procure a gun for himself and four for another offender, it is clear that the only appropriate penalty was a significant sentence of imprisonment.  It was necessary to impose a sentence that was heavy enough to act as a substantial deterrent to the appellant and to others.  In the circumstances, I think it was appropriate for the learned sentencing judge not to make an order permitting parole. 

1. The mitigating circumstances in this case, some of which were quite substantial, were as follows:

·      The appellant committed this crime only because Campbell, with the concurrence of an undercover police officer, demanded a quantity of methylamphetamine, rather than a sum of money, as the "price" of the firearms.  That is to say, this is a crime that was instigated by a police officer as part of a trap.  But for that instigation, there is no reason to think that the appellant would have trafficked in drugs.

·      Although the appellant did not know it, there was no risk of the drugs doing anyone any harm because the man who was to receive them was an undercover police officer.

·      The appellant pleaded guilty, in circumstances that I have outlined above.

·      The appellant had no convictions for crimes or offences committed after February 2002.

·      Although many of the appellant's prior convictions were drug related, he had no prior convictions for drug offences.

·      The appellant was subjected to violence as a child and had a difficult childhood.

·      The appellant had worthy achievements in the field of weightlifting.

·      He had recently fathered a child, and consequently changed his outlook on life.

·      He had made efforts to turn his life around whilst in prison, particularly in the period before the imposition of his last sentence in December 2004.

1. Having regard to the fact that this trafficking involved a single transaction, and only some 27.1 grams of methylamphetamine worth about $4000, and having regard to the mitigating circumstances that I have referred to, I consider that the sentence of two years' imprisonment, without provision for parole, was out of proportion to the seriousness of the crime, to such an extent that it was manifestly excessive.  However in all the circumstances I think a sentence of at least about 14 months' imprisonment was called for, and that it would be appropriate to make no provision for parole. 

1. I would allow the appeal, quash the sentence of two years' imprisonment, and substitute a sentence of 14 months' imprisonment with effect from 1 March 2010.

   File No CCA 219/2010

WAYNE WILLIAM HOWLETT v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J

12 October 2010

1. I have had the opportunity of reading the draft reasons of Blow J in this matter.  I agree with those reasons and would also allow the appeal.  I also agree with the substituted sentence he proposes.

   File No CCA 219/2010

WAYNE WILLIAM HOWLETT v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  PORTER J
  12 October 2010

1. I agree that for the reasons given by Blow J, the appeal should be allowed.  As to the proposed substituted sentence, I am content to join in the making of the order but would not like to be taken as agreeing to any suggestion that the proposed term is at the lowest end of a range proportionate to the appellant's offending.