Lawrence v The Queen
[2007] ACTCA 10
•17 May 2007
MICHAEL IAN LAWRENCE v THE QUEEN
[2007] ACTCA 10 (17 May 2007)
CRIMINAL LAW – sentencing – appeal – change in legislation – whether penalty range reduced.
Criminal Code 2002, s 603(7)
Drugs of Dependence Act 1989
Criminal Code Regulations 2005
Drugs of Dependence Regulations 1993
Weininger v The Queen [2003] HCA 14, (2003) 212 CLR 629
Markarian v R [2005] HCA 25, (2005) 215 ALR 213
Oliver (1982) 7 A Crim R 174
Debates of the Legislative Assembly for the Australian Capital Territory, February 2004
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 46 - 2006
No. SCC 192 of 2006
Judges: Higgins CJ, Connolly and Cowdroy JJ
Court of Appeal of the Australian Capital Territory
Date: 17 May 2007
IN THE SUPREME COURT OF THE ) No. ACTCA 46 – 2006
) No. SCC 192 of 2006
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MICHAEL IAN LAWRENCE
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Higgins CJ, Connolly and Cowdroy JJ
Date of order: 4 May 2007
Date of judgment: 17 May 2007
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 46 – 2006
) No. SCC 192 of 2006
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MICHAEL IAN LAWRENCE
Appellant
AND:THE QUEEN
Respondent
Judges: Higgins CJ, Connolly and Cowdroy JJ
Date of order: 4 May 2007
Date of judgment: 17 May 2007
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from a sentence of Crispin J who, on 4 December 2006, sentenced the appellant in respect of two pleas of guilty to the counts of trafficking methylamphetamine and trafficking MDMA, both substances being controlled drugs. Pursuant to s 603(7) of the Criminal Code 2002 (the Criminal Code), each of these offences carried a maximum penalty of 10 years imprisonment or 1000 penalty units or both. His Honour sentenced the appellant to five years imprisonment in respect of the count of trafficking in methylamphetamine, and three years imprisonment in respect of the count of trafficking in MDMA, and ordered that both periods be served concurrently and backdated to reflect time spent in custody. He imposed a non-parole period of two years.
On the hearing of the appeal on 4 May 2007 we dismissed the appeal and indicated that we would provide our reasons. We now publish our reasons.
The Offences
His Honour described the circumstances of the offences as they emerged from the agreed statement of facts tendered before him. He said:
... following a warrant obtained pursuant to section 46A of the Telecommunications (Interception) Act of 1979 police intercepted and recorded numerous telephone calls to and from a mobile telephone number and the landline number, each of which were used by the offender. Many of those calls related to the sale of and trafficking in drugs of the kind to which I have referred.
On 29 July 2005 after some covert surveillance the defendant’s vehicle was stopped and he was arrested. Various items were found by the police in his vehicle, and subsequently in his home and office following the execution of search warrants. He was found in all to have in his possession methylamphetamine with a total weight, total pure weight of 39.322 grams, and MDMA with a total weight of 0.66 grams.
The records of the telephone calls that had been in section intercepted revealed that quantities of drugs had been sold in some cases in quite small amounts with tablets being sold in ranges from 1 to 10, but there were also transactions in methylamphetamine in powder form with at least 1 ounce offered for sale for the sum of $3,700, and upon the searches being carried out, three packages of methylamphetamine powder were found wrapped up in roughly 1 ounce lots.
Mr Archer, for the appellant, argued that his Honour fell into error in sentencing the appellant on the basis, not of the two counts to which he had pleaded guilty, but for uncharged acts, in making references to the telephone intercepts that showed a pattern of drug-related activity. We do not consider that his Honour did any more than is appropriate in having regard to the agreed statement of facts which makes it clear that these charges arose from a relatively well organised drug distribution exercise, involving what may be described as both “retail” sales of individual tablets of ecstasy, and “wholesale” sales of one ounce packages of methylamphetamine powder. In Weininger v The Queen [2003] HCA 14 at [32], (2003) 212 CLR 629 at 640, Gleeson CJ, McHugh, Gummow and Hayne JJ noted that, while it would be an error to sentence an offender for a crime with which he had not been charged:
A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender’s known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.
In this case, the material before his Honour showed that the appellant had no prior record for drug offences. He was in fact a businessman who had successfully established and operated a private security business in Canberra for some years. There was evidence that the business had got into difficulties and that the appellant believed that he needed substantial sums of money to maintain the company and his lifestyle. There was evidence from the pre-sentence report that he turned to the sale of illicit drugs to raise these funds.
In sentencing the appellant, his Honour had to have regard to this material. His Honour would have been lead into error had it been suggested that the two offences charged were isolated incidents. In having regard to the fact that these offences were motivated solely for financial gain, and by a person who was not himself addicted or otherwise affected by personal use of drugs, his Honour was obviously drawn to his conclusion that:
drug dealing is a blight upon the Australian community and it seems to me that the considerations of general deterrence require that a custodial sentence, a full-time custodial sentence, be imposed.
His Honour had full and proper regard to all that could be said about the appellant’s otherwise good character, and he specifically found that there would be little chance of him re-offending. He had regard to his pleas of guilty. All of this, it seems to us, is appropriately reflected in the non-parole period, which is set at some 40 percent of the head sentence.
The principal submission in this appeal was that his Honour had erred in determining the head sentences at five years and three years. Mr Archer conceded that sentences in this range for offenders with these quantities of controlled drugs were to be found in previous sentences of this Court, but he noted that the Parliament had recently restructured the legislation dealing with drug trafficking offences. The consequence of this was that, for an offender charged with some 40 grams of methylamphetamine, the maximum penalty was now 10 years gaol, whereas under the pervious offences in the Drugs of Dependence Act 1989 (the Drugs of Dependence Act), the maximum penalty would have been 25 years gaol. While Mr Archer acknowledged that his Honour had correctly noted the maximum penalty for these offences was 10 years, he submitted that his Honour had fallen into error by adopting a sentencing range based on the previous regime.
It is certainly the case that any sentencing court must pay careful regard to the maximum penalty set by the Parliament. In Markarian v R [2005] HCA 25, (2005) 215 ALR 213, the High Court (Gleeson CJ, Gummow, Hayne and Callinan JJ) said (at [31], at 222):
... careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
In acknowledging that the maximum penalty set by the Parliament provides a yardstick for the exercise of the instant sentencing discretion, it would follow that, where Parliament increases or decreases maximum penalty, a sentencing court should be mindful of the increase or decrease in considering the range of appropriate sentence. In Oliver (1982) 7 A Crim R 174 the NSW Court of Criminal Appeal said (per Street CJ at 177):
The legislature manifests its policy in the enactment of the maximum penalty which may be imposed. The courts are, of course absolutely bound by the statutory limit itself as well as by the legislative policy disclosed by the statutory limit.
In his submissions, the Director of Public Prosecutions noted that the amendments contained in the Criminal Code (Serious Drug Offences) Amendment Bill 2004 which are now s 603 of the Criminal Code were part of a law reform initiative based on a national model from the Model Criminal Code established in 1991 by the Standing Committee of Attorneys-General. In the Explanatory Statement circulated with the Bill, the Attorney-General, Mr Stanhope, said:
The Drugs of Dependence Act (DDA) currently governs ACT drug laws, however, in common with most other Australian jurisdictions, the ACT’s offences for dealing with the illicit drug trade were essentially grafted onto the DDA, which was originally designed for regulating the legal distribution and use of poisons, pharmaceutical drugs and other dangerous substances used in medicine, industry and agriculture. Consequently the offences are not well designed to deal effectively with the illegal trade. The DDA will continue to be the primary legislative tool for regulating the legitimate manufacture, supply, use and misuse of pharmaceuticals and controlled drugs in the ACT. The offences in the Bill have a greater organised crime focus and cover a much broader range of criminal activity than the DDA.
The Attorney also noted that the amendments would focus on so-called precursor substances used in the manufacture of illicit drugs.
There is certainly nothing in the explanatory memorandum or in the Legislative Assembly debates that suggest that in restructuring the drug laws, the legislature was evincing an intention to reduce the range of penalties appropriate for trafficking in illegal drugs such as methamphetamines. On the contrary, the debate indicates a concern on both sides of the Chamber at the impact of methamphetamines on the community: (Hansard 2004, at 2738 (Mr Stanhope), at 3682 (Mr Stefaniak)).
It is clear from a comparison between the old laws and the present regime that what the Parliament has done is to restructure the law so as to provide three ranges of penalty for three separate offences in place of a two-range regime. Under the Drugs of Dependence Act there was an offence of trafficking in a “traffickable quantity of a controlled drug with a maximum penalty of 25 years imprisonment, and an offence of trafficking in a commercial quantity of a controlled drug with a maximum penalty of life imprisonment. Under the Criminal Code, s 603 establishes three offences in place of the previous two – trafficking a large commercial quantity of a controlled drug, with a maximum penalty of life imprisonment, trafficking in a commercial quantity of a controlled drug, with a maximum penalty of 25 years imprisonment, and trafficking in a controlled drug other than cannabis, with a maximum penalty of 10 years imprisonment.
The Criminal Code Regulations 2005 set out the relevant quantities of controlled drugs which trigger these penalty ranges. For methylamphetamine, the traffickable quantity is 2 grams, the commercial quantity is 1 kilogram, and the large commercial quantity is 2 kilograms. This means that, for trafficking in methylamphetamine, the Criminal Code provides a maximum penalty of life imprisonment for a quantity greater than 2 kilograms, a maximum of 25 years imprisonment for a quantity between 1 and 2 kilograms, and a maximum of 10 years imprisonment for a quantity between 2 grams and 1 kilogram.
Under the Drugs of Dependence Act, the Drugs of Dependence Regulations 1993 provided that the equivalent offences were life imprisonment for a quantity of greater than 2 kilograms, and a maximum penalty of 25 years imprisonment for a quantity between 2 grams and 2 kilograms. The effect of the new regime is that, while the maximum penalty for trafficking in over 2 kilograms remains life imprisonment, the former single offence with a maximum penalty of 25 years for trafficking a quantity between 2 grams and 2 kilograms has been replaced by two offences, with a maximum penalty of 25 years for a quantity between 1 kilogram and 2 kilograms, and a maximum penalty of 10 years for a quantity between 2 grams and 1 kilogram.
It seems to us that this does not amount to a “reduction” in the appropriate range of penalties for trafficking in controlled drugs. Rather, the legislature has refined the process by introducing two ranges of penalties. A person found with about 40 grams of methamphetamine would, under the previous law, have been charged with the offence with a potential maximum penalty of 25 years imprisonment, but they would now be charged with an offence with a maximum penalty of 10 years imprisonment.
It does not seem to us that it follows that the appropriate range of sentence for this quantity of substance must be lowered from what may be seen to have been the prevailing range of a head sentence of between three and six years. There is, of course, no linear relationship between quantity of drug and percentage of maximum penalty. While sentencing judges and magistrates will of course need to be mindful of the new sentencing regime, as his Honour here clearly was, it seems to us that the re-enactment of drug trafficking offences as part of the Criminal Code does not amount to a general reduction in the appropriate penalty range for drug trafficking offences. A person found in possession of 40 grams of methamphetamine, in the course of trafficking the drug, must be seen as committing a very serious offence, and the penalty must reflect this.
His Honour correctly noted the objective seriousness of these offences, and Mr Archer did not demur from the proposition that these were serious drug offences. A head sentence of five years imprisonment in all of the circumstances seemed to us to be well within range, and the period of non-parole was also within range. Mr Archer referred us to several authorities, which he submitted demonstrated that a shorter period would have been more appropriate. A consideration of them however shows that each matter must be determined upon its unique facts, and we see no error in his Honour’s assessment. Accordingly we dismissed the appeal.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 17 May 2007
Counsel for the Appellant: Mr K Archer
Solicitor for the Appellant: Hill & Rummery
Counsel for the Respondent: Mr R Refshauge SC
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 4 May 2007
Date of order: 4 May 2007
Date of judgment: 17 May 2007
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