R v Batrachenko, Lutze and Siciliano No. Sccrm-99-78, Sccrm-99-79, Sccrm-99-80, Sccrm-99-81, Sccrm-99-88 Judgment No. S422

R v BATRACHENKO, LUTZE AND SICILIANO
[1999] SASC 422

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

DOYLE CJ: I agree with the reasons given by Debelle J, for the orders already made dismissing the appeals against conviction. I also agree that the appeals against sentence should be dismissed, for the reasons given by Debelle J.
DEBELLE J: These three appeals arise out of convictions for drug offences which were detected as a result of interceptions by police of telephone conversations made by all three appellants.
The appellants Batrachenko and Lutze were convicted after trial by jury. They appeal against both their respective convictions and sentences of imprisonment. The appellant Siciliano pleaded guilty. He appeals only against the sentence.

Batrachenko and Lutze

I deal first with the appeals by the appellants Batrachenko and Lutze.
These appellants were convicted of four counts of jointly taking part in the sale of amphetamines and methylamphetamines in June 1997. The court has already ordered that the appeals against conviction be dismissed. These are the reasons for that decision. There are two grounds which are common to both appeals against conviction. It is convenient to deal with them first.
As mentioned, the investigation of these offences had involved extensive interception of telephone calls between the appellants and other persons. Those interceptions have been made by police officers in the South Australian Police Force pursuant to a warrant issued by a judge of the Federal Court of Australia. That warrant had been issued pursuant to the Telecommunications (Interceptions) Act 1979 (Cth). The appellants contend that the evidence of the telephone conversations should be excluded on the ground that the warrant issued by the Federal Court was not authorised by the Telecommunications (Interceptions) Act. The trial judge ruled that the warrant had been lawfully obtained and admitted the evidence. The appellants appeal against that ruling.
Section 34 of the Telecommunications (Interceptions) Act provides:
“Subject to s.35, the Minister may, at the request of the Premier of the State, declare an eligible authority of that State to be an agency for the purposes of this Act.”

Section 35 has no relevant operation. Section 5 of the Act defines “an agency” as either a Commonwealth agency or an eligible authority of the State, in relation to which a declaration under s 34 is enforced. The expression “eligible authority of the State” is also defined in s 5 of the Act and means, among other things, the police force of that State. A declaration has been made, pursuant to s 34, that the Police Force of South Australia is an agency for the purpose of s 34. The declaration was made by the Attorney-General of the Commonwealth.

The appellants contend that the word “Minister” in s 34 means a Minister for the Crown of the State so that the declaration is invalid. The argument is entirely misconceived. It is clear that the Minister referred to in s 34 is a Minister for the Crown of the Commonwealth. The Act is an enactment of the Parliament of the Commonwealth. It prohibits interceptions of telecommunications except as authorised by the Act. When regard is had, both to the overall structure of the Act as well as to the particular context in which s 34 appears, it is apparent that it is the Minister of the Commonwealth who declares an eligible authority of a State to be an agency and he acts at the request of the Premier of that State. The Minister is authorised to act whenever a request is received from the Premier of any one State. The request is made by the Premier of the State to a Commonwealth Minister, because the Telecommunications (Interceptions) Act is an Act of the Commonwealth Parliament and there is no relevant State legislation which covers the same field. For these reasons s 34 refers to the Minister who, for the time being, is administering the Act. To suggest that s 34 authorises a Minister of each State to act at the request of the Premier of that State stands the meaning of s 34 on its head. There is no reason why a Premier of the State should have to make a request of a Minister of that same State if the Premier intends to perform an executive function.
This conclusion is reinforced by the provisions of s 35 which prescribes the pre-requisites for a declaration under s 34. The Minister referred to in ss 34 and 35 is the same person. When read together, it is plain that these provisions refer to a Minister of the Commonwealth. The conclusion is also reinforced by s 17 of the Acts Interpretation Act, (1901) (Cth), a section which defines terms used in the Act. It provides, among other things, “Minister of State or Ministers shall mean one of the King's Ministers of State for the Commonwealth”. Thus, the reference to “Minister” in s 34 is to a Minister in the Commonwealth Government.
The Attorney-General is a Minister for the Crown of the Commonwealth. It is common ground that at all relevant times the Attorney-General was the Minister administering this Act. He, therefore, had the capacity to make the declaration under s 34. For these reasons the trial judge was correct in upholding the validity of this warrant.
The appellants’ other contention was that amphetamines and methylamphetamines are not drugs of dependence, as defined by the Controlled Substances Act, 1984. Section 4 of that Act defines a drug of dependence to mean “a poison declared by the regulations to be a drug of dependence”. The regulations are made pursuant to s 12 of the Act. Regulations made under s 12(1) declare what substances are poisons. Regulations under s 12(2) declare what poisons are prescription drugs. Regulations under s 12(3) declare what poisons are drugs of dependence. Separate sets of regulations have been made from time to time concerning each of those three matters.
It is convenient to begin with the Controlled Substances (Declared Drugs of Dependence) Regulations, 1993, which I shall call “the 1993 regulations”. Regulation 5 of those regulations declares certain poisons to be drugs of dependence. They include:
“(a).. a poison listed in schedule 8 of the Standard for the Uniform Scheduling of Drugs and Poisons as modified and adopted by the Controlled Substances (Poisons) Regulations 1991.”

The Controlled Substances (Poisons) Regulations 1991, which I will call “the 1991 regulations”, had declared certain substances to be poisons. It did so by reference to the Standard for Uniform Scheduling of Drugs and Poisons, which it called the “Uniform Poisons Standard”. Regulation 4 incorporated into the 1991 regulations the Uniform Poisons Standard as modified by the schedules to the regulations. The modifications did not remove either amphetamines or methylamphetamines from the Uniform Poisons Standard. Thus, the combined effect of the 1991 and 1993 regulations was that amphetamines and methylamphetamines were drugs of dependence.

On 4 January 1996, the 1991 regulations were revoked and replaced by the Controlled Substances (Poisons) Regulations 1996, which I will call “the 1996 regulations”. Those regulations declared certain substances to be poisons and other substances to be declared prescription drugs, pursuant to ss 12(1) and 12(2) respectively of the Controlled Substances Act. Regulation 5 of the 1996 regulations modifies the Uniform Poisons Standard and incorporates the standard as modified into the regulations. The modifications of the Uniform Poisons Standard do not remove either amphetamines or methylamphetamines from the standard.
The appellant contends that, as the 1996 regulations had revoked the 1991 regulations, the reference in regulation 5(a) of the 1993 regulations to the 1991 regulations no longer had any operation. The argument overlooks the provisions of s 24 of the Acts Interpretation Act 1915, which provides:
“24. For the purposes of this Act and of any other Act, a later Act will be taken to be substituted for an earlier Act, or a provision of a later Act will be taken to be substituted for a provision of an earlier Act, when the earlier Act or provision is repealed or superseded and the later Act deals with the same matter as the Act or provision so repealed or superseded, whether it deals with the matter in the same or some other manner, and whether it deals only with the matter or with other matters also.”

By reason of s 14A of that Act, s 24 applies to both Acts and statutory instruments.

The 1996 regulations deal with the same subject matter as the 1991 regulations. Indeed, the poisons as defined by the 1996 regulations are almost identical with those defined in the 1991 regulations. However, it is not necessary for the two sets of regulations to be in identical terms. Section 24 of the Acts Interpretation Act allows for the fact that the later legislation may deal with the matters in slightly different terms from the earlier legislation. All that is required is that the subject matter be the same. When applied to the 1993 regulations, the effect of s 24 is that the 1996 regulations are substituted for the 1991 regulations. Thus, regulation 5(a) of the 1993 regulations continues to have meaning. The poisons in the Uniform Poisons Standard as modified and adopted by the 1996 regulations will therefore be drugs of dependence. Amphetamines and methylamphetamines continue to be listed in the Uniform Poisons Standard. They are, therefore, drugs of dependence as defined by the Controlled Substances Act. The appellants therefore fail on this ground also.
In addition to the above grounds of appeal, Ms Lutze had a third ground, which complained of part of the trial judge's direction to the jury. After they had been arrested she and Batrachenko were separately interviewed. Before evidence was given of these interviews, the trial judge said that he intended to give the usual direction that each interview was relevant only against the person being interviewed.
In the course of the interview, Batrachenko said that he and Ms Lutze were buying the amphetamines for their own use. When questioned about telephone conversations with Siciliano, in which reference had been made to selling to others, he said that had been made up to conceal from Siciliano the nature of the use that he and Ms Lutze were making of the drugs. Mr Tremaine, who appeared at the trial for both Batrachenko and Ms Lutze, asked the trial judge not to make any comments about the use which the jury could make of the interview. He added that his clients wanted to be able to rely on what each had said in the interview. The trial judge refused to accede to the request, pointing out that it was open to each of the appellants to give evidence and, in the course of that evidence, to confirm what had been said to the police in the interview. He then gave the usual direction. Neither Batrachenko nor Ms Lutze gave evidence. In the course of his summing up to the jury, the trial judge gave another direction to the court as to the use which was to be made of the interview. Ms Lutze now contends that directions should have been given that the explanation of innocence given by Batrachenko could be used by the jury in her favour.
The flaw in this submission is that it assumes the jury would accept the so-called innocent explanation. The effect of these statements in Batrachenko's interview was that he had told Siciliano that they were selling the drugs in order to conceal from him the fact that they were using the drugs for their own use. The verdict of guilty indicates the jury had rejected this explanation. This ground of appeal must therefore fail.
For these reasons, all of the grounds against conviction fail. I turn to the separate appeals against sentence.
The judge sentenced Ms Lutze and Batrachenko on the footing that they were regularly buying amphetamines and methylamphetamines from Siciliano for the purpose of a continuing trading operation of selling the drugs in street trading operations to a number of end users. Although they were convicted on four counts only, the interceptions of the telephone calls shows that the four counts were representative of a not insignificant trading operation. The judge accepted that some of the drugs they purchased were for their own use. This is a case of persons engaged in the trade for reasons including a desire or a need to fund their own addiction.
The judge took the view that there was no basis upon which to discriminate between the degree of involvement of each appellant in the sentence. He ordered that they each serve a head sentence of three years imprisonment. He ordered Batrachenko to serve a non-parole period of 18 months.
Ms Lutze had committed these offences while on a bond to be of good behaviour which had been imposed by the District Court as a term of a suspended sentence of 18 months imprisonment for three counts of selling amphetamines. The judge revoked the suspended sentence and ordered that the sentence of three years imprisonment for these offences be served cumulatively upon the sentence of 18 months ordered in the District Court. There was thus a head sentence totalling four and a half years imprisonment. He fixed a non-parole period of two years.
Both appellants appeal on the ground that the sentence was manifestly excessive and that a term of imprisonment should have been suspended. Each appellant had other individual grounds of appeal. I deal first with the ground common to both.
Neither appellant suggested the trial judge had erred in sentencing upon the footing that they were equally involved in the commission of these offences. The evidence of the telephone intercepts confirmed the judge's view that they were equal partners. A submission made by both appellants was that the sentence was higher than the norm for this kind of offending. This submission must fail. These were not isolated offences but were representative of a not insignificant trading operation. While it has been said that amphetamines are towards the lower rather than the higher end of the scale of drugs for which severe penalties are prescribed by s 32(5) of the Controlled Substances Act, nevertheless, the supply of the drug is a serious offence. Those who commit it must expect severe punishment. The head sentence was well within the range of a proper exercise of the sentencing discretion.
In the case of Ms Lutze, it was suggested that the sentence should have been suspended in view of the fact that she had to care for young children and was pregnant with a baby expected in late October. There will be cases where the court will take into account the impact which imprisonment will have on children, born or unborn, and the need for the proper care of those children. The remarks made by the judge show that he had regard to those facts. He took into account that this offence will have serious consequences for two of Ms Lutze's three children who are presently in her care. Notwithstanding what he called his deep concern for the welfare of the children, the judge took the view that there was no ground for suspension of the sentence. In reaching this conclusion, he also had regard to the fact that Ms Lutze was pregnant. No reason has been demonstrated for interfering with this exercise of discretion. As far as the pregnancy is concerned, arrangements can be made for Ms Lutze to have her child with her in prison.
When reaching this conclusion, the judge took the view that the fact that these offences were committed while Ms Lutze was on a bond relating to similar offences was an aggravating factor, which militated against suspending the sentence. The judge was correct to do so. It was submitted that this offending had occurred in the last month of what was a 30 month bond and that Ms Lutze had performed some 200 hours of community service. It was submitted that the revocation of the suspended sentence was tantamount to punishing Ms Lutze twice for her earlier offending.
That submission betrays a misunderstanding of the terms of a bond. Community service is not a substitute for imprisonment. Instead, it is a condition of the bond to which she agreed in consideration for being given the opportunity to avoid serving a proper sentence. If compliance with the conditions is only partial and the offender fails to comply with the conditions of the bond, he exposes himself to the obligation to serve the sentence which is the proper sentence for the crime or crimes which he committed: Bowden (unreported, Court of Criminal Appeal, 22 June 1994, judgment no. S4638) This is not to say that there are no circumstances in which it might not be a relevant consideration in fixing a new non-parole period to cover both the sentence for the breaching offences and for the offence, suspension of which was being revoked. The judge was entitled to take a serious view of the repeated nature of the offending.
Finally, it was submitted on behalf of Ms Lutze that there was a disparity between the sentence she had to serve and that which had to be served by Siciliano. This submission must fail. Siciliano had a different scale of offending, a different level of dealing, he had pleaded guilty, and his antecedents were not as serious as those in the case of Ms Lutze.
On behalf of Batrachenko, Mr Tremaine submitted that the sentence ought to have been suspended so that he could care for his own child and the children of Ms Lutze. The trial judge had regard to this factor. For the same reasons that exist in the case of Ms Lutze, there is no reason to interfere with the decision of the trial judge not to suspend the sentence.
It was further submitted on behalf of Batrachenko that there was a disparity between the non-parole period imposed on him and that imposed on Ms Lutze. The submission failed to have regard to the fact that, when fixing the non-parole period, the sentencing judge had to have regard to the seriousness of the total offending in the two sets of offences. There is no reason for interfering with the judge's conclusions in this regard. It was also submitted that there was a disparity between the head sentence imposed on Batrachenko and that imposed on Siciliano. That must fail, for the reasons similar to those which apply in the case of Ms Lutze, in particular, the different scale of offending and the different level of dealing.
For all of these reasons, I would dismiss the appeals by both Ms Lutze and Ms Batrachenko against sentence.

Siciliano

I turn to the appeal against sentence by Siciliano. This appellant pleaded guilty on one information to eight counts of selling amphetamines or methylamphetamines, one count of possessing methylamphetamines for sale, one count of possession of amphetamines, and one count of taking part in the sale of cannabis. On a separate information he pleaded guilty to one count of possession of cocaine, one count of possessing cannabis for sale, and one count of possession of speed.
The judge imposed one penalty on each of the informations. On the first information he sentenced the appellant to a term of imprisonment for five years. On the second information he sentenced the appellant to a period of 18 months imprisonment. He ordered that the sentences be served cumulatively. He fixed a non-parole period of four years.
These offences had been detected as the result of the interception of some 1,000 calls to and from the appellant's mobile telephone. The calls disclose a substantial course of dealing by the appellant in amphetamines and other drugs. The appellant had pleaded guilty after the Crown had opened its case. The plea was entered on the basis of the Crown opening. That was fairly summarised by the trial judge as a continuing trading operation of not insubstantial proportion. The trading was not only at street level to end users, but also included trading to other intermediaries, who in turn would sell to end users. The latter was a large part of the appellants' trading activities. As the sentencing judge correctly observed, the appellant's operations were at a level which required a heavier penalty than would ordinarily be imposed in the case of a mere street trader.

There were essentially three grounds upon which the appellant alleged that the sentencing discretion had miscarried. The first was the judge had given an inadequate discount for the appellant's plea of guilty. The plea had come at a very late stage after the Crown opening. There had been some negotiations as to the charges which would be prosecuted and as to their nature. The judge's sentencing remarks disclose that he was aware of that fact. He nevertheless believed that the plea had come at such a late stage that Siciliano could not receive a substantial discount. Nothing has been put to us which would suggest that his conclusion is wrong. A further reason why the judge did not allow a substantial discount was the strength of the prosecution case. It is well established that the discount would not be high in such circumstances. There is, therefore, no reason to interfere with the amount of the discount which was allowed by the sentencing judge.
Furthermore, it cannot be overlooked that these offences were serious. There were a number of aggravating factors. They include the types of drugs which were involved, the variety of the drugs involved, the continuing nature of the commercial enterprise, as well as the level at which the appellant was trading. In addition, the appellant had prior convictions for possessing cannabis.
The next ground of appeal was that the judge should have ordered that the sentences should be served cumulatively. A related submission was that the sentences were disproportionate to the totality of the offending. On occasions, it is a nice question whether sentences should be ordered to be served cumulatively or concurrently. It is unnecessary to repeat what was said by Wells J in the Attorney-General v Tichy (1982) 30 SASR 84 at 92 - 93. I do not think that the sentencing judge erred in deciding to order that these sentences be served cumulatively. The appellant had a wide variety of drugs in his possession in addition to amphetamines and methylamphetamines. The charge of possessing cannabis for sale, coupled with the other charge of taking part in the sale of cannabis, indicates that the appellant was selling more than just amphetamines and methylamphetamines. It adds a degree of seriousness to this offending. I refer also to the aggravating features I have already mentioned.
I do not think that a period of six and a half years for the totality of this offending is manifestly excessive. When one stands back and considers the whole of the criminality of the offending, it is a sentence which is well within the exercise of the sentencing discretion.
The third ground upon which the appellant relied was that the non-parole period was manifestly excessive. Given the head sentence, the non-parole period was not manifestly excessive. It was well within the usual relationship between a head sentence and a non-parole period. In addition, there were the earlier offences of possessing cannabis, which indicate that this was not the first occasion of this appellant's offending in relation to drug offences.
In my view, the sentencing judge took into account all of the factors which could properly be put in mitigation. There is no reason for interfering with the sentence.
I would therefore dismiss the appeal.
WICKS J: I agree.
DOYLE CJ: Accordingly, the orders of the court are, in relation to each of the three appeals against sentence, that the appeals against sentence be dismissed.

[1999] SASC 422

24 September 1999