Johns v R No. SCCRM 95/128 Judgment No. 5171 Number of Pages 6 Criminal Law and Procedure

[1995] SASC 5171

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(1), DUGGAN(2) AND NYLAND(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure judgment and punishment - Sentence - parity - c~offenders - disparity unjustified - sentence set aside.

HRNG ADELAIDE, 23 June 1995 #DATE 19:7:1995 #ADD 8:9:1995

Counsel for appellant:     Mr C Kourakus with Ms L Keller

Solicitors for appellant:    Lucy E Keller

Counsel for respondent:     Ms W Abraham

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 DOYLE CJ In this matter the appellant appeals against a sentence imposed by a Judge of the District Court on 16 March 1995.

2. Mr Johns was convicted on his plea of guilty of an offence of sale of cannabis on 25 August 1993. Mr Johns was also convicted on his own plea of guilty of an offence of taking part in the sale of cannabis on 15 September 1993. A single sentence was imposed for the two offences.

3. The former offence is created by s32(1)(c) of the Controlled SubstancesAct 1984. The latter offence is created by s32(1)(d) of the ControlledSubstances Act 1984.

4. In brief, the circumstances of the offences were as follows.

5. Acting on information received undercover police approached Mr Johns in August 1993. They had information that Mr Johns was willing to sell small quantities of cannabis. On 25 August 1993 an undercover police officer called at Mr Johns' home and purchased from him nine small bags of cannabis for $25.00 a bag. Upon analysis it was found that the weight of cannabis was 19 grams. I interpolate here that Mr Johns was described by the Judge as a small-scale dealer. It seems that these sales were the first, or among the first that Mr Johns had made. The relevance of this is that in sentencing Mr Johns it was appropriate to approach the matter on the basis that he was prepared to make sales if the opportunity arose, and the instant sale could not be regarded as an event unlikely to be repeated. However, it is not a case of a sale which is part of an established course of commercial dealing.

6. In response to an inquiry, Mr Johns told the police officer that he could get larger amounts of cannabis. The police officer indicated his interest in obtaining larger amounts. Ultimately it was agreed that Mr Johns would sell about ten pounds of cannabis to the police officer for $30,000. I do not think it is necessary to go into the details of how this came about. Mr Johns contacted another person named Bell, who is not a dealer at all but was willing to make some money in this way if he could. Bell in turn contacted another person Wood. Wood knew Ruffino. Ruffino had previously told Wood that Ruffino had or had access to a quantity of cannabis. In this way the deal was done. The police arrested all four, that is Johns, Bell, Wood and Ruffino, when they were in the course of consummating this illegal transaction. They were caught redhanded.

7. They all pleaded guilty at an early stage.

8. The quantity of cannabis involved in this transaction was substantial, about ten pounds or about four and one half kilograms in all. The story which I have outlined in brief is, regrettably, a common sort of story. All of the participants were clearly in it for the money which could be made. They must have known the seriousness of what they were doing.

9. The maximum penalty for the offence of sale to which Mr Johns alone pleaded guilty was imprisonment for 2 years and a fine of $2,000. The maximum penalty for the offence of taking part in the sale which occurred on 15 September 1993, was, for this quantity, 10 years' imprisonment and a fine of $50,000.

10. The District Court Judge who dealt with the appellant dealt also with Ruffino, Bell and Wood. He gave Bell and Wood a discount of 25 per cent for their early plea. He gave Ruffino a discount of 15 per cent, the lower discount reflecting Ruffino's prevarication about the source of the cannabis during the course of the sentencing process.

11. The sentences which he imposed were as follows: Bell, 1 year 6 months with a non-parole period of 9 months. Wood, 2 years' imprisonment with a non-parole period of 10 months. He suspended each of those sentences. Ruffino, imprisonment for 2 years 6 months with a non-parole period of 10 months. He declined to suspend that sentence.

12. The Judge imposed a single sentence of imprisonment on Mr Johns, for both offences, of 3 years 3 months, which sentence he declined to suspend. The Judge gave Mr Johns a discount of 25 per cent for his plea. For reasons which will become apparent, I will refer later to the non-parole period.

13. I have set out the sentences imposed in the same ascending order of seriousness with which the District Court Judge regarded the matter. It follows that the sentences which the Judge had in mind before the discount were, on my calculations, as follows: Bell 2 years, Wood 2 years 8 months, Ruffino 2 years 11 months (approximately) and Johns 4 years 4 months.

14. However, the comparison is complicated by the fact that in the case of Johns a single sentence was imposed for the two offences referred to.

15. I think it likely that the judge would have had in mind a sentence of about 8 months' imprisonment (before discounting) for the smaller sale. That means 3 years 8 months, before discounting, for the larger sale. Reduced by 25 per cent one arrives at 6 months for the smaller sale and 2 years 9 months for the larger sale and together this amounts to 3 years 3 months, the sentence imposed.

16. It will be necessary later to refer to certain other sentences which were imposed on Johns. But I leave them aside for the moment as they are unrelated to the drug offences.

17. Counsel for the appellant made three main criticisms of the sentence imposed on Mr Johns. First, counsel submitted that the Judge's view of the relative seriousness of offending as between the four offenders was wrong. It was argued that Mr Johns should be equated with Bell and Wood. Secondly, it was argued that the sentence imposed on Mr Johns in respect of the larger sale was, as compared with the other sentences, disproportionate. Thirdly, it was argued that the sentence was in any event manifestly excessive. In support of this ground counsel stressed in particular the fact that the larger sale took place only as a result of the interest expressed by the undercover police officer in obtaining larger quantities. It was pointed out that Mr Johns was not a regular dealer in such quantities.

18. As to the ranking as between the four offenders I agree with the Judge. In this transaction Bell and Wood were intermediaries. In my opinion Ruffino and Mr Johns were the main players. Of course, all played their part, and it can be said that each link in the chain was essential. But it seems to me that the person who is the source of the drug and the person who provides the outlet to the market can legitimately be regarded as the most significant offenders. In my opinion the Judge was entitled to regard the offending of Ruffino and Mr Johns as more serious than that of Bell and Wood.

19. I agree with the Judge's remark that there is not much to chose as between Ruffino and Mr Johns, and I am not prepared to say that the learned judge was wrong in treating Mr Johns' offending as slightly more serious than that of Ruffino. It follows that in my opinion the attack made upon this ground should be rejected.

20. I turn now to the question of proportionality as between the offenders.

21. The mathematical exercise in which I have already engaged indicates that the sentence imposed on Mr Johns for the larger sale appears to have been about 3 years 8 months. There is necessarily an element of imprecision in this mathematical exercise, but however one looks at it, it seems clear that the Judge imposed a significantly heavier sentence on Mr Johns. On my calculation the difference between Ruffino and Mr Johns is about 9 months.

22. Such a difference is difficult to explain. The difference between Wood and Ruffino was only 3 months. The Judge himself remarked that there was not much to chose between Ruffino and Mr Johns. I consider that in some manner which does not emerge from the sentencing remarks the Judge has made an unintentional error here, and that that has resulted in an unjustified disparity as between the sentence imposed on Ruffino and that imposed on Mr Johns. To my mind it would be consistent with the Judge's own approach to the matter to impose a sentence on Johns for the larger sale of 3 years' imprisonment. I think that an appropriate sentence for the smaller sale is a sentence of 6 months' imprisonment.

23. In relation to that, it is my opinion that once the single sentence is found to be erroneous, as I have found it to be, it is appropriate for the Court to reconsider both elements of it.

24. That would result in a single sentence of imprisonment, which I consider to be appropriate, of 3 years 6 months. Reduced by 25 per cent for the guilty plea one arrives at a sentence which, rounded up, is 2 years 6 months. That is what I consider to be an appropriate sentence for the two sales.

25. At first sight there is an apparent anomaly, because this is the same as the sentence imposed on Ruffino. However, it has to be remembered that Ruffino's sentence is one which attracted the benefit of a discount of only 15 per cent.

26. In the light of that it is not necessary to deal in any detail with the complaint that the sentence was in any event manifestly excessive. However, in my opinion it is my no means obvious that a sentence of 3 years 8 months for the larger sale would be manifestly excessive. I consider it appropriate to interfere to maintain proportionality as between the four offenders. Were it not for that, in my opinion it is questionable whether it would have been appropriate for the Court to interfere.

27. The offence was a serious one. The quantity of cannabis involved was substantial. So was the amount of money. Each of the accused was obviously in it for the money, and I can see nothing in the circumstances of the offence which could be advanced by way of mitigation.

28. In particular, in my opinion the role played by the police officer is of marginal relevance. True it is that Mr Johns was not, on the evidence, a regular dealer in such quantities. It is equally true that he agreed to obtain such a large quantity only at the request of the undercover police officer. There was no indication that Mr Johns was actively looking for buyers in such quantities.

29. But, on the other hand, Mr Johns was clearly a very willing participant in this transaction. There was no reluctance displayed by him, and he was able to make the necessary arrangements relatively quickly. There was no importuning on the part of the undercover police officer. In my opinion the most that can be said in favour of Mr Johns is what I have already said - that he was not looking for buyers in such quantities and did no more than respond to an opportunity presented to him.

30. I would also reject any suggestion that sentences of this order are to be imposed only upon persons who are closer to the top of the distribution chain or persons who are shown to be regular offenders. Parliament has indicated the seriousness with which such offences are to be regarded by the substantial nature of the maximum penalty which it has imposed. Parliament expects the Courts to respond accordingly. This Court is aware of the fact that a considerable number of people in the community are engaging in unlawful sales of drugs. The Courts are also aware of community concerns about drug sales and the effects of the consumption of unlawful drugs. It is clear from cases which come before this Court that consumption of drugs often plays a part in the commission of other crimes. And it is equally clear that many property offences are committed by persons wanting to obtain money with which to purchase drugs.

31. For all these reasons it is appropriate for the Courts to deal severely with those who are engaged in the distribution of unlawful drugs within the community. That is why, if it were only a question of whether the overall sentence was manifestly excessive, I doubt whether I would have been inclined to intervene. I say that notwithstanding the fact that the information available to the Court indicates that a sentence of this level is relatively rare, and notwithstanding the fact that the sentence which the Judge imposed will not attract remissions.

32. My conclusion is, therefore, that the sentence for the drug offences should be set aside and a sentence of 2 years 6 months' imprisonment should be substituted.

33. The sentence for the drug offences was ordered by the Judge to be served cumulatively upon a number of sentences which he imposed on Mr Johns on the same day for a series of property offences. These were 13 offences which involved, in varying forms, breaking into premises and stealing property. They occurred between 9 June 1994 and 3 September 1994. The property taken amounted in all to about $33,000.

34. There were three different Informations alleging these offences. On these Informations the Judge imposed sentences of 18 months, 12 months and 3 years. He ordered that those sentences be served concurrently but that they be served cumulatively upon the sentence for the drug offences. No attack was launched upon the sentence which His Honour imposed for these offences or the decision to make the sentences for the drug offences cumulative upon the sentences for the property offences. I consider that His Honour's approach was in all respects appropriate.

35. Taking that same approach Mr Johns faces a total sentence of 5 years 6 months' imprisonment. In respect of that term of imprisonment I would fix a non-parole period which bears the same proportion to the head sentence as that borne by the non-parole period fixed by the sentencing judge. That results in a non-parole period of 2 years 11 months.

36. In my opinion there can be no question of suspending this sentence. Nor was that argued on appeal. The Judge had before him a pre-sentence report and a report from a forensic psychologist. There is no indication of any intellectual disorder affecting Mr Johns. Nor is there anything of particular in his personal circumstances which would go in mitigation of his offences, other than his youth and evident immaturity. I see no reason to doubt that the Judge took all these matters into account, and gave appropriate consideration to the prospects of Mr Johns' rehabilitation.

37. I would allow the appeal, to the extent of setting aside the sentence for the drug offences and substituting a sentence of 2 years 6 months' imprisonment. In relation to the total sentence of 5 years 6 months' imprisonment I would fix a non-parole period of 2 years 11 months. Otherwise, I would confirm the sentences and orders made by His Honour.

JUDGE2 DUGGAN J I agree that the appeal should be allowed for the reasons given by the Chief Justice. I also agree with the orders which the Chief Justice proposes.

JUDGE3 NYLAND J I agree that the appeal should be allowed for the reasons expressed by the Chief Justice and I agree with the orders he proposes.