Palumbo v R No. Scgrg-99-175 Judgment No. S416

PALUMBO v R
[1999] SASC 416

Court of Criminal Appeal: Doyle CJ, Debelle and Wicks JJ (ex tempore)

DOYLE CJ: This is an appeal against a sentence imposed by a judge of the District Court. The appellant pleaded guilty to a charge of taking part in the sale of cannabis, contrary to s 32(1) of the Controlled Substances Act 1984.
The amount of cannabis seized was 3.418 kg. The maximum penalty for the offence is a penalty not exceeding $50,000 or imprisonment for 10 years or both. The judge sentenced the appellant to imprisonment for four years. He fixed a non-parole period of 12 calendar months. He declined to suspend the sentence. It is complained that the head sentence is manifestly excessive and that the judge erred in failing to suspend the sentence.
The circumstances of the offence are uncomplicated. The appellant was asked by a friend to meet a man at Adelaide Airport. He did so. That man asked him to take him to somebody who could supply him with cannabis. The judge found that the appellant knew that this was the purpose of the man's trip to Adelaide. The man purchased cannabis. The appellant arranged for the cannabis to be stored overnight at the home of his niece. The judge appears to have sentenced the appellant on the basis that he was not to receive any of the cannabis, but played a significant part in arranging the sale.
When detected the appellant told police that the cannabis was his. He did so to protect his niece at whose house the cannabis had been stored. The appellant pleaded not guilty. He sought to have his admissions to the police excluded. When that was unsuccessful he pleaded guilty. As the judge remarked, a conviction was inevitable and the appellant could not expect much of a discount for a plea at that stage.
The offence is a serious one. The maximum penalty is a sufficient indication of the seriousness with which Parliament treats the offence. The quantity of cannabis was substantial.
The appellant is now 67 years of age. He was 66 years of age when sentenced. He migrated to Australia in 1950. He has committed quite a number of offences over the years but most of them are for gaming. None of them are particularly serious, but the offences do indicate a poor attitude to the law, as the judge remarked.
The evidence led before the District Court judge satisfied the judge that the appellant is in poor health. He suffers from a number of conditions. Some of them require the regular taking of medication, others give rise to the possibility of an accident that could worsen the appellant's health. Generally the appellant is in poor health. The appellant's condition clearly requires careful management, but there is no suggestion that he needs to be hospitalised. What is required is that the appellant take proper care of himself and that he take his medication regularly and watch his diet. Other evidence before the judge satisfied him that appropriate medical care was available to the appellant were he to be imprisoned. There is no reason to think that the appellant could not be cared for properly were he to be imprisoned. No doubt the appellant would be able to receive better care were he not in prison, but there is no reason to think that a sentence of imprisonment will of itself threaten his health. Of course the stress of imprisonment may have some adverse affects upon the appellant, but that is a not uncommon circumstance.
The judge found that imprisonment would not be a significantly greater burden for the appellant by reason of the state of his health and found that there was no serious risk of imprisonment having a gravely adverse affect on his health. That finding appears to me to be justified.
In imposing punishment for an offence the courts do take into account the effect of imprisonment upon the health of an offender. However, for obvious reasons, the courts have been cautious about allowing the effect upon an offender's health to be used to reduce the sentence that should otherwise be imposed. As has often been said, poor health cannot be allowed to become a licence to commit crime. Generally, an offender cannot expect to escape the appropriate punishment because of poor health. It is only when imprisonment is likely to have a direct and significant adverse affect upon an offender's health that the otherwise appropriate punishment will be reduced on that score.
My view is that the appellant's age and poor health mean that imprisonment will be difficult for him, but I am not satisfied that imprisonment is likely to have a significant adverse affect upon his health and I am not satisfied, putting that aside, that imprisonment will be more difficult for him than one would expect for anyone of his age.
I turn to the question of whether the sentence imposed is excessive. There are a number of matters in the appellant's favour. There is no evidence that the appellant has had an ongoing involvement in the sale of cannabis. He is entitled to have the offence regarded as an isolated offence. There is no suggestion that the appellant was going to benefit from the offence. The appellant played a significant part in the sale but he was not the actual purchaser. His age and poor state of health are matters to be considered.
Taking everything into account and having regard to sentences imposed in other cases, I consider that the sentence is excessive. In my opinion, a head sentence of three years imprisonment is an appropriate sentence. I am prepared to show the same leniency as did the District Court judge in relation to the non-parole period and to fix a non-parole period of nine months. I recognise that such a low non-parole period is unusual but, as I said, I am prepared to show the same leniency in that respect as the sentencing judge did.
I would not suspend the sentence, as a good reason to do so does not exist. The offence is serious. There is nothing out of the ordinary in the circumstances of the offence. The appellant's record indicates a certain disregard for the law that suggests that leniency may not be warranted. The offence is both serious and prevalent. For those reasons I would not suspend the sentence.
In short, I would allow the appeal, set aside the sentence imposed by the District Court, substitute a head sentence of imprisonment for three years and fix a non-parole period of nine months. The head sentence and non-parole period should operate from 27 August 1999.
DEBELLE J: Parliament has indicated the gravity with which this kind of offending must be viewed. This man played a not insignificant part in the sale of cannabis. Because of the nature of the crime it is often difficult to ascertain the true nature and the extent of the involvement. Those who choose to engage in dealing with drugs must realise that, if detected, they are at risk of severe penalties.
This was a serious offence of its type. The appellant played an important role in introducing the parties to the drug transaction. Not only did he introduce the parties but he arranged for its storage as well. It is an aggravating feature of the offence that the appellant was prepared to involve his niece in it.
The sentence was well within the range of penalties for this kind of offending. The arguments in this case did not demonstrate any flaw in the approach of the sentencing judge. We are, in effect, being asked to exercise the sentencing discretion afresh. That is not a basis for interfering with the head sentence. The sentence is heavy but nothing has been shown to demonstrate that it is manifestly excessive. There is, therefore, no warrant, in my view, for interfering with the head sentence.
I also agree with the reasons of the sentencing judge that there is neither anything in the appellant's age nor his health which warrant a lesser sentence. The sentence will not adversely affect his health.
In my view, there is also no reason for interfering with the non-parole period. On any view that was a generously short non-parole period. With respect to those who take a different view, to reduce the non-parole period removes any element of personal or general deterrence from this sentence. I would not, therefore, reduce the non-parole period.
I agree with the Chief Justice that the sentence should not be suspended. I would dismiss the appeal.
WICKS J: I agree with the orders proposed by the Chief Justice for the reasons he gives and I have nothing to add.
DOYLE CJ: In accordance with the opinion of the majority the orders are as follows:
Appeal allowed.
Set aside the sentence imposed by the District Court.
Substitute a head sentence of imprisonment for three years.
Fix a non-parole period of 9 months.
Direct that the head sentence and non-parole period operate from 27 August 1999.

[1999] SASC 416

22 September 1999