Jane Margaret Spiers v R John Stanley Harold Matthews v R No. 4235 Judgment No. SCCRM 93/335, SCCRM 93/338 Number of Pages 6 Criminal Law and Procedure Sentence

[1993] SASC 4235

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MILLHOUSE(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - Sentence - taking part in sale of heroin, possession of heroin for sale, selling heroin - principal in considerable business at street level - persistent offending despite arrests and release on bail - woman aged 27 with prior record - plea of guilty - sentence 12 years' imprisonment cumulative upon activated sentence of 3 months - non-parole period 9 years upheld on appeal.
Sentence - taking part in sale of heroin, possessing heroin for sale, selling heroin - secondary part in considerable business at street level - persistent offending despite arrest and release on bail - man aged 3l years with prior record - plea of guilty - sentence 8 years cumulative on activated sentence of 1O months, with non-parole period of 6 years upheld on appeal.

HRNG ADELAIDE, 21 October 1993 #DATE 21:10:1993
Counsel for appellant Spiers:         Mr D F Stokes
Solicitors for appellant Spiers:     David Stokes and
  Associates
Counsel for appellant Matthews:     Mr D Y N Sprod
Solicitors for appellant Matthews:    Scammell and Co
Counsel for respondent:             Mr W J Abraham
Solicitors for respondent:            Director of Public
  Prosecutions (SA)

ORDER
Both appeals dismissed.

JUDGE1 KING CJ The court has before it two appeals with respect to sentences imposed in the District Court in relation to the same business of selling heroin. 2. I deal, first, with the appellant Spiers. Ms Spiers was convicted on her plea of guilty of one crime of taking part in the sale of heroin, five crimes of possessing heroin for sale and five crimes of selling heroin. The crimes constituted a breach of a bond on condition of which a previous sentence of imprisonment for 3 months had been suspended. 3. The learned sentencing judge revoked the suspension of that sentence and she commenced to serve that 3 months sentence as from the date on which she was taken into custody, namely 20 January 1993. 4. His Honour with respect to the subject offences imposed one sentence pursuant to s.18a of the Criminal Law (Sentencing) Act of imprisonment for 12 years, that sentence to commence at the expiration of the 3 month sentence. With respect to the total period of imprisonment of 12 years and 3 months he fixed a non-parole period of 9 years. 5. The facts upon which His Honour passed sentence are set out in his remarks. He said:
    "Between 15 July 1992 and 3 September 1992, following the
    obtaining of a warrant with respect to the telephone at a house
    which you occupied at Taperoo, the police intercepted more than
    four thousand calls from persons wishing to obtain drugs. The
    first count is representative of that conduct." And that first count is the count for taking part in the sale of heroin.
"On 29 June 1992 the police searched the house at Taperoo
    under warrant and seized two plastic press seal bags, six pieces
    of glossy paper folded into envelopes, and a quantity of cash.
    The packages contained 0.39 grams of white powder inclusive of
    0.09 grams of heroin. Count 2 relates to that offence." I interpolate that the amount of money seized on that occasion was $3,000, and that the appellant following that arrest was granted bail. His Honour continued:
"On 10 July 1992 at Semaphore the police stopped a Datsun
    motor vehicle being driven by you and seized four packages
    containing heroin. You were arrested and later released on
    bail. Count 3 relates to that offence. On 3 September 1992 the
    police searched the house at Taperoo under warrant and seized
    bags and packages and a quantity of cash. The bags and packages
    contained 5.01 grams of powered inclusive of 1.22 grams of
    heroin. You were arrested and later released on bail. Count 5
    relates to that offence. On 2 January 1993 the police searched
    the house at Taperoo under warrant and seized a number of small
    plastic bags of heroin and a quantity of cash. You were
    arrested and later released on bail. Count 8 relates to that
    offence." I interpolate that the drug-related cash seized on that occasion amounted to $8,000. The next offence occurred while the appellant was still on bail. His Honour continued:
"On 20 January 1993 the police entered under warrant a motel
    room which you were occupying at the time, and seized bags and
    packages which contained 16.18 grams of powder inclusive of 5.08
    grams of heroin. The police also seized a quantity of cash.
    You told the police that you had made about six sales of heroin
    per day from the motel between 16 and 20 January 1993. During
    the time that the police were in the motel room numerous calls
    were received on a mobile phone. Counts 9 to 14 relate to that
    conduct." I interpolate that the amount of cash seized on that occasion was $10,860.25. His Honour commented:
"It is apparent from the police investigations of these
    offences that you were engaged over a period of about six and a
    half months in the systematic purchase, packaging and sale of
    heroin on a significant scale. In the end, the cash seized by
    the police from time to time totalled $34,011.35. The police
    also seized a mobile phone, a pager and a scanner unit capable
    of receiving police radio frequencies." 6. His Honour characterised the appellant's offending as follows:
    "It is true, as your counsel has submitted, that your
    offending took place at the bottom of the line of supply.
    Nevertheless, it is obvious that those higher up the line would
    not prosper without the participation of the end supplier to the
    user. All who are involved in the drug trade are making a
    significant contribution to the high and disturbing level of
    drug-related crime in the community. It should be said that you
    were not in any sense a street dealer. You were the principal
    of a significant enterprise which doubtless required extensive
planning and organisation." 7. Mr Stokes has made strong and clear submissions in his written argument, supplemented by his oral submissions, to the effect that His Honour's finding is an exaggeration of the level and extent of the business in which the appellant was involved. 8. It seems to me, however, that the period over which this business was carried on, the quantity of drugs which were actually found by the police, the amount of money which was found and the extent of business activity indicated by the number of telephone calls, amply justified His Honour's characterisation of the extent of the appellant's offending. 9. The appellant is aged 27 years and she has a 4 year old son. She is a heroin addict and has been so for some considerable time. 10. She has prior convictions. They were summarised by the learned sentencing judge in the course of his sentencing remarks, as follows: "You have a criminal record which began with three drink driving offences between 1985 and 1988, and which, since then, has included an attempted housebreak, a number of driving offences and four minor drug offences." 11. The appellant has pleaded guilty. His Honour indicated specifically the extent of the allowance which he made for that plea. He stated that if it had not been for that plea he would have imposed a sentence of imprisonment for 15 years and that he reduced it to 12 years by reason of the plea. 12. Mr Stokes has submitted in his written submission and also orally that the sentence is manifestly excessive having regard to the level of penalties imposed for that type of offence in these courts. 13. As I indicated to counsel during argument, only limited value can attach to references to other cases involving other offences committed in other circumstances. This court does look at statistics which indicate the level or tariff of sentencing which applies in the courts for particular types of offences, but it sets its face strongly against attempts to cite particular sentences imposed in other cases or attempts to compare the facts of any other particular case with the subject case. 14. Sentencing is a matter for the discretion of the sentencing judge paying due regard to the maximum penalty prescribed by law, the circumstances of the particular case and the level of sentence commonly regarded by the judges as being appropriate to particular types of offences. 15. The maximum sentence for each one of these offences was imprisonment for 25 years. Parliament has made it clear by the legislation which it has passed that it views this type of offence with extreme seriousness. The courts have a responsibility to pass sentences which reflect the legislative attitude. Parliament reflects the sense of the community that heroin offending is a serious menace to the wellbeing of society. 16. It is an unfortunate fact that the present appellant is a drug addict. No doubt that was the motivation for her offending and her continued offending despite apprehension for earlier offences. The courts, however, cannot treat as an excuse for heroin dealing the fact that the motivation is the desire of the dealer to obtain the means of gratifying the dealer's own appetite for drugs. Many crimes are motivated by human weakness in one form or another. It is the responsibility of the courts to see that penalties which deter those who attempt to engage in crime of this kind from doing so to the detriment of the community, are imposed. 17. This was a serious course of conduct involving dealing in this dangerous drug over a prolonged period of time. It was rendered the more serious by its continuation despite a number of arrests and releases on bail. 18. This case is more serious than the common case in which there has been a business conducted without interruption over a period of time. The conduct in this case was punctuated by repeated arrests and repeated releases on bail. Each of those arrests should have been a warning to the appellant of the seriousness of the conduct in which she was engaging, but those 6 arrests did not deter her. It seems to me that offending on the scale of the appellant's offending, in those circumstances, can only be viewed with the utmost seriousness. Her addiction no doubt explains her conduct but it cannot extenuate it. 19. In my opinion, the sentence imposed by the learned sentencing judge was well within the scope of his sentencing discretion and it would be wrong for this court to interfere with it. I would dismiss Ms Spiers' appeal. 20. I turn to the appeal by the appellant Matthews. Matthews was sentenced by the same judge in the District Court on the same occasion with respect to one crime of taking part in the sale of heroin, two crimes of possessing heroin for sale and one crime of selling heroin. He had pleaded guilty to each of those charges. 21. The crimes constituted a breach of a bond on the condition of which a previous 10 months sentence of imprisonment had been suspended. 22. The learned sentencing judge revoked the suspension of that sentence and ordered that it commence from the date on which the appellant was taken into custody, namely 6 November 1992. For the subject offences he imposed a single sentence, pursuant to s.18a of the Criminal Law (Sentencing) Act, of imprisonment for 8 years to commence at the expiration of the 10 month sentence. He fixed a non-parole period in respect of the total period of imprisonment of 6 years. 23. The facts relating to Matthews's offending are set out in His Honour's remarks as follows:
    "Count 1 of the information is representative of a course,
    of offending by you and Jane Margaret Spiers between 13 July
    1992 and 4 September 1992 in a house at Taperoo. Following the
    issue of a warrant with respect to the telephone at those
    premises, the police intercepted more than four thousand calls
    from people wishing to purchase drugs. It appears that 547 of
    these calls were received and handled by you. Count 4 of the
    information relates to an offence committed at Taperoo on 25
    July 1992. Police stopped a Datsun motor vehicle being driven
    by you, and seized packages of white powder which included 0.27
    grams of heroin. Counts 6 and 7 relate to offences committed in
    a unit at Pennington on 6 November 1992 whilst you were on bail
    with respect to the earlier offences. A person who was observed
    by police to visit the unit was later found in possession of
    0.06 grams of powder inclusive of 0.01 grams of heroin. The
    police then entered the unit and seized from you two plastic
    bags, six paper wrappers and $670 in cash. The bags and
    wrappers contained 0.8 grams of powder inclusive of 0.02 grams
    of heroin." 24. His Honour characterised Matthews' offending as follows:
"The Crown also accepts that your role, in relation to
    counts 1 and 4, was secondary to the role of Jane Margaret
    Spiers. Nevertheless, the fact remains that you were an active
    participant in a significant commercial enterprise." 25. Notwithstanding the submissions made to us by Mr Sprod on behalf of Matthews, I am satisfied that that was a fair and accurate assessment of the degree and nature of Matthews offending. 26. The appellant Matthews is aged 33 years. He is a single man and he, like Spiers, is a heroin addict but as I remarked in relation to Spiers, although his heroin addiction may explain his conduct, it does little to extenuate it. He has prior convictions. The learned sentencing judge summarised them as follows:
    "You have a criminal record dating back to 1977. The list
    contains three drink-driving offences to 1984, the factory break
    and larceny offence which led to the bond and suspended sentence
    in December 1991, and four minor possess drug or equipment
    offences in 1992 and 1993." 27. Matthews was entitled to a discount for his plea of guilty and His Honour indicated that, were it not for that plea of guilty, the sentence would have been 10 years. Mr Sprod, like Mr Stokes, strenuously urged upon us that this sentence is unduly severe having regard to the accepted level of sentencing for this type of offence. I do not repeat the general remarks which I made in relation to Spiers. 28. Matthews' involvement in this criminal business was secondary to that of Spiers but it was by no means insignificant. Any form of participation in a business of selling heroin can only be regarded most seriously by the courts, for the reasons which I gave in the reasons with respect to the appeal by Spiers. This was a serious course of conduct engaged in by Matthews and rendered more serious again by the fact that some of the offending, in fact a great deal of the offending, occurred after he had had the warning of being arrested and released on bail. 29. I see no reason to think that the sentence which has been imposed upon Matthews is other than a reasonable sentence for the crimes which he has committed, and I would disallow the appeal.

JUDGE2 MILLHOUSE J I agree that each appeal be dismissed.

JUDGE3 DEBELLE J The description by the sentencing judge of this business as a significant enterprise, which, doubtless, required extensive planning and organisation, is, in my view, accurate. It might also be said that there was a reasonably sophisticated degree and manner in which the business was conducted. Nothing has been put to us which justifies this court in departing from the manner in which His Honour characterised the business. 2. In the course of his sentencing remarks His Honour also said:
    "My clear duty, in all the circumstances, is to impose a
    penalty which will reflect the severe maximum penalties which
    Parliament has prescribed for heroin dealing. Deterrence must
    be the dominant consideration. A clear message must be
    delivered to those who seek to gain from the sale of heroin,
    even those whose motive is the funding of an addiction." 3. The remarks which the Chief Justice has just made only serve to emphasise, and perhaps elaborate upon, what His Honour the sentencing judge has said. For all the reasons which have been expressed by the Chief Justice, I agree with the manner in which the sentencing judge has discharged his duty and exercised his discretion. Nothing has been put to us which, in any way, justifies this court in interfering with the sentences which were imposed, either in the case of Spiers or in the case of Matthews.