R v Becker
[2005] SASC 186
•26 May 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BECKER
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Layton)
26 May 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY
Appeal against sentence - appellant, pleaded guilty to possessing 4-hydroxybutanoic acid (fantasy) for sale; unlawful possession of $950; two counts of possessing methylamphetamine for sale and breach of bail - sentenced to total of seven years’ imprisonment, non parole period of four years fixed.
Appeal on grounds that sentencing Judge erred in failing to assess the appellant’s drug addiction as a possible mitigating factor; erred in failing to give adequate weight to the appellant’s prospects for rehabilitation; erred by not reflecting the appellant’s ineligibilty for the court-sanctioned drug rehabilitation programme; and that the sentence was manifestly excessive in all the circumstances.
Consideration of sentencing judge's obligation to provide oral sentencing remarks - consideration of appellant's personal and criminal antecedents - dicussion of drug addition as a possible mitigating factor in sentencing - consideration of appellant's rehabilitation prospects - discussion of Drug Court program and appellant's eligiblity for such program - consideration of totality principle as contained in section 18A of the Criminal Law (Sentencing) Act 1988 (SA) - consideraiton of whether sentence imposed manifestly excessive.
Held: drug addition may have possible mitigatory affect on sentence - appellant's plea to major indictable offences render him ineligible for Drug Court program -ineligiblity for Drug Court program not a relevant matter to consider when sentencing - sentencing judge erred in final step of application of totality principle but error in the circumstances of no consequence - sentencing judge did not fail to have regard to relevant considerations, or give consideration to irrelevant material - no error of sentencing principle identified - sentence imposed within the range - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Mill v The Queen (1998) 166 CLR 59; R v Rossi unreported CCA SA 20 April 1988; Postiglione v The Queen (1996) 189 CLR 295 at 304 and 308; Shrubsole v Rodriuez (1978) 18 SASR 233; R v Leach (2003) 226 LSJS 393; R v Huggett (2001) 212 LSJS 102; R v Proom (2003) 85 SASR 120; R v Tran (2000) 211 LSJS 479; R v McMillan (2002) 81 SASR 540; H, T v Police [2005] SASC 143; Johnson v The Queen (2004) 205 ALR 346; R v Place (2002) 81 SASR 395; R v Mangelsdorf (1995) 66 SASR 60; R v Plaister and Graham (2001) SASC 391, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"drug addiction"
R v BECKER
[2005] SASC 186Court of Criminal Appeal Gray, Sulan and Layton JJ
THE COURT
This is an appeal against sentence.
On 20 May 2004, the appellant, Matthew Paul Becker, pleaded guilty to the offences of possessing 4-hydroxybutanoic acid (fantasy) for sale and of unlawful possession of $950. On 29 September 2004, he pleaded guilty to two counts of possessing methylamphetamine for sale and to breaching his bail agreement.
The pleas of guilty in respect of possessing fantasy for sale and unlawful possession were entered following a voir dire hearing. The pleas in respect of all other charges were entered some months later.
The appellant was sentenced to a total term of imprisonment of seven and a half years.
The Facts
At 5.20am on 5 October 2002 the appellant was stopped at a random breath testing station. The police discovered 74 grams of fantasy in a bottle in the lower shelf of the driver’s door. On searching the appellant police found in addition to $65 and small change in his jacket, a discrete package containing $950 in cash.
The street value of fantasy was said by the police to be between $3 and $6 for one millilitre and $1000 to $2000 for a litre. There was no “street valuation” evidence based on weight, but counsel agreed that 74 grams of fantasy was the equivalent of a volume of 150 millilitres. So the value of the 74 grams was between $450 and $900.
On 31 January 2004 the appellant was under police surveillance. That afternoon, police raided a motel room in Adelaide. This room was occupied by the appellant and another person. Police discovered three vacuum-sealed bags of powder, each respectively containing 1.14, 1.21 and 1.15 grams of methylamphetamine. When police searched the appellant, they discovered a bag containing 1.31 grams of methylamphetamine.
The appellant by his plea accepted that two of the bags discovered in the room, as opposed to on his person, contained amphetamines that were for sale. The January 2004 offending involved a weight of approximately 2.5 grams of methylamphetamine.
At about 12.59am on 20 March 2004, police officers observed a motor vehicle with only one headlight operating. The appellant was the driver of that vehicle. The police stopped the vehicle and, in the course of an ensuing inspection, discovered drug paraphernalia. Upon searching the appellant, the police discovered two small bags of methylamphetamine paste containing 1.91 grams and 0.62 grams of methylamphetamine respectively. The March 2004 offending involved a weight of 2.53 grams of methylamphetamine.
The street price of one gram of pure amphetamine was said by the police to be $200 and 0.1 of a gram known as a point would sell for $50.
On 2 April 2004, the appellant was granted home detention bail. The bail agreement included a condition that the appellant would not consume alcohol or non-prescribed drugs. On 27 June 2004, the appellant tested positive for methylamphetamine and codeine. The appellant admitted the breach of the conditions of the bail agreement.
The Sentence
In respect of the offences of possessing fantasy for sale and of unlawful possession, the learned sentencing Judge imposed the one sentence of imprisonment of four and a half years. Had it not been for the plea of guilty, the sentence would have been five years.
In respect of the two counts of possessing methylamphetamine for sale, the Judge imposed the one sentence of imprisonment of four and a half years. Had it not been for the pleas of guilty, the sentence would have been six years.
The Judge summarised the sentence orally to the appellant. He then delivered written reasons. In his written reasons he observed:
Methylamphetamine and Fantasy (ie 4-hydroxybutanoic acid) are regarded as middle of the road drugs of dependence. The information about the harmful effects of these drugs is now such that I consider it inappropriate to characterise them so benignly. However, that is for another case and another court.
An immediate custodial penalty is required to address the gravity of this offending. The starting place is within a range of 5 to 7 years imprisonment (see R v Le (2001) 212 LSJS 208 per Doyle CJ at para 13; R v Mangelsdorf (supra); R v C (1998) 72 SASR 391). It is an aggravating feature of the January and March 2004 offences that they were committed whilst the defendant was on bail for the October 2002 offences.
I will fix one penalty for the October 2002 drug offence and the offence of unlawful possession pursuant to s18A of the Criminal Law (Sentencing) Act 1988 (SA). They are part of the one criminal enterprise. In respect of the January and March 2004 drug offences I will also impose a separate single penalty pursuant to s18A of the said Act. I will deal with the bail offence separately.
Sentence
For the October 2002 offence of possessing 74 grams of Fantasy for sale and the offence of unlawful possession of $950.00 there will be a sentence of 4½ years imprisonment. If it were not for the plea of guilty after the voir dire, the sentence would have been 5 years.
For the two January and March 2004 offences of possessing methylamphetamine for sale there will also be a single sentence of 4½ years imprisonment. Again if it were not for the plea of guilty the sentence would have been 6 years. I have given here a full discount for the early pleas of guilty. However, I started at 6 years because there are two offences and they are aggravated by having been committed whilst on bail for the October 2002 offences but then ameliorated by the early plea.
On the offence of breaching bail, a conviction was recorded but no further penalty imposed.
The Judge ordered that the two terms of imprisonment of four and a half years be served cumulatively. However, he reduced the total resulting head sentence of nine years to a sentence of seven and half years’ imprisonment, having regard to the principle of totality. The application of this principle by the Judge was to ensure that the aggregation of the sentences appropriate for the offences was a just and appropriate measure of the total criminality involved.[1]
[1] Mill v The Queen (1998) 166 CLR 59 at 63; R v Rossi unreported CCA SA 20 April 1988; Postiglione v The Queen (1996) 189 CLR 295 at 304 and 308.
The Judge fixed a non-parole period of four years and backdated the sentence to 7 August 2004 to allow for the time the appellant had already spent in custody. The Judge in his reasons wrote:
I turn to the non-parole period. As emphasised above the defendant is on course to rehabilitate himself. He is also regretful of his conduct. I propose setting a lower than normal non-parole period with a view to facilitating him continuing in the community what he has begun and hopefully will continue in gaol. I therefore fix a non-parole period of 4 years.
The head sentence of 7½ years and the non-parole period of 4 years are both backdated to commence on the 7th August 2004 to take into account the time spent in custody. I decline to further discount on the basis that the defendant was subject to home detention from the 2nd April 2004 to the 7th August 2004. Indeed he failed to comply with the conditions of that bail.
The Appeal
A Preliminary Matter
The judge, when imposing sentence, said:
I will hand down my reasons for penalty, Mr Becker, so I propose merely to give the summary of my conclusions and then publish reasons.
The Judge then proceeded to announce the sentence and non-parole period. He did not address any remarks to the appellant. The Judge did not orally outline the matters to which he had regard. There were no sentencing remarks. The reasons were published as a judge would publish a considered judgment and were written in the third person. To the appellant, they would appear impersonal.
A primary purpose of sentencing remarks is to address a defendant in person and to explain to the defendant the reasons and basis upon which the sentence is being imposed. A sentencing judge orally addresses remarks to a defendant in public. It is important that all interested persons and members of the public can be present to hear the remarks and observe the pronouncement of sentence. Often, victims and their families are assisted by hearing the judge sentencing an offender, and by knowing the basis upon which the judge has determined the sentence.
In Shrubsole v Rodriuez[2], Wells J dealt with the topic of remarks on sentence. Although in that case he was addressing his remarks to the failure by justices to give adequate remarks for the sentence imposed, the statement is relevant and apposite to the general topic of sentencing remarks and their purpose. Wells J observed:[3]
There is a tendency on the part of some counsel who appear regularly in appeals against sentence in Justices Appeals and in the Court of Criminal Appeal, by imperceptible adjustment of their submissions, to reach a stage where they invite the Court to treat remarks on sentencing as if they were reasons for judgment. They are, of course, nothing of the kind. A judgment, stricto sensu, is a compact piece of reasoning directed to the resolution of defined issues both factual and legal. Remarks on sentencing are primarily spoken to and for the benefit of the prisoner, and only secondarily to and for the benefit of the world at large. They follow the exercise by the court of a wide judicial discretion by means of which numerous factors are to be brought into a delicate balance, but the results of that exercise are not, except in the rarest of cases, susceptible to being presented as the inexorable outcome of a process of inductive or deductive reasoning. They appear at their most helpful and illuminating when they make plain to the prisoner the disrupting effect of his or her offence upon the community, or some segment of the community; explain to him or her the necessity for the sentence imposed or the order made, and where appropriate, how a particular order will operate for his betterment; and offer to him or her some sensible, practical advice, some serious, pertinent, admonition, or some encouragement, for the future. It would be wrong to force such remarks into an artificial mould whose shape and volume is dictated by the demands of a judicial process fundamentally different from that of sentencing.
[2] (1978) 18 SASR 233 – see also R v Leach (2003) 226 LSJS 393.
[3] (1978) 18 SASR 233 at 235.
Some sentencing judges have expressed concerns that their remarks may be too long and complicated to deliver orally.[4] There is also a view by some judges that they must mention in detail every factor to which they have had regard, and the weight given to it. A sentencing judge is not required to deal with every matter which may be relevant to the final determination. It is not necessary to mention every topic referred to in section 10 of the Criminal Law (Sentencing) Act1988 (SA). It is sufficient if the remarks enable an appellate court to identify and understand the reasoning of the judge so that it may properly perform its appellate duties.
[4] R v Huggett (2001) 212 LSJS 102.
Furthermore, sentencing judges may at times consider that they should refer to authority in the course of their remarks. Reference to authority may assist on occasions to explain why a sentencing judge has arrived at a particular conclusion. However, where possible, a judge should express sentencing remarks in plain language. Sentencing remarks are not to be regarded by appellate courts as if they were a reasoned judgment.
The obligation of the sentencing judge is to deliver sentencing remarks orally to the defendant. That did not happen in the present case. The practice of delivering written reasons with a public oral announcement of a sentence is not an appropriate practice. It is a practice that should not be followed.
Grounds of Appeal
The appellant advanced four grounds:
-The learned sentencing Judge erred in failing to assess the appellant’s drug addiction as a possible mitigating factor.
-The learned sentencing Judge erred in failing to give adequate weight to the appellant’s rehabilitation as a mitigating factor.
-The learned sentencing Judge erred by not reflecting in the sentence that, by virtue of the classification of the offences (as major indictable), the appellant was unable to be assessed for, or take part in, a supervised, court-sanctioned, drug rehabilitation programme.
-The sentence was manifestly excessive in all the circumstances.
Antecedents
It is helpful to summarise the appellant’s antecedents before coming to discuss the grounds of appeal.
Criminal Antecedents
The appellant’s criminal antecedent report discloses prior offending from 1990 until 2002. The appellant has committed numerous drug-related offences as a young offender and as an adult, including possession of cannabis, possession and administration of dangerous drugs, possession of methylamphetamine and possession of a prescription drug. However, as the Judge noted, there were no prior offences in respect of possessing drugs for sale. The appellant’s other offending included acts of dishonesty and offences relating to the unlawful possession of a firearm and of a prohibited weapon. In the past, he has been sentenced to terms of imprisonment, on each occasion the term being suspended. The suspended imprisonment terms were imposed in October 1992, May 1994, December 1994 and April 1999.
Personal Antecedents
At the time of sentencing, the appellant was 31 years of age. When aged about 15 years, his parents separated. At about this time, he was expelled from secondary school for growing marijuana.
The appellant’s mother remarried. The appellant had contact with a step-family who the appellant asserted included hardened criminals. It was at this time that the appellant came to the attention of the police. Counsel for the appellant submitted that the appellant’s step-siblings were a bad influence on him.
The appellant attended but did not complete Year 12. He left school and commenced work at an electoral office. He then worked in Alice Springs. He later returned to Adelaide and became involved in what were described as entrepreneurial ventures.
Counsel for the appellant said that by this time his alcohol and other drug abuse had set in. The appellant became a chronic and heavy user of amphetamines. To finance his addiction, he became involved in the manufacture and sale of amphetamine. At times, he used other illicit drugs, including ecstasy, fantasy and cocaine. His last relationship was with a drug-using prostitute. The Judge observed that “[the appellant] has come to this offending as a heavy drug addict and dealer”.
Dr Raeside, a psychiatrist, reported that he could not detect evidence of any psychiatric disorder. In the course of his reports, he expressed the following conclusion:
... I was unable to find any evidence of a current psychiatric disorder. However, undoubtedly, he has experience both drug (amphetamine) induced psychotic episodes in the past and probably also experienced poor mental health due to long term heavy amphetamine use. I thought that some of the features on interview of his mental state were consistent with his long term amphetamine use, although not to the point of formally being a psychiatric disorder.
Despite the previous offending and adolescent difficulties I did not believe there was sufficient evidence to warrant a diagnosis of a personality disorder.
Lesley Work, a psychologist employed with the Drug and Alcohol Assessment and Counselling Service, provided two reports: one before the appellant was in custody and the other after. At the time of Ms Work’s first consultation in June 2004, she described the appellant as in a parlous state. By the time of her second report in September 2004, Ms Work was of the opinion that the appellant was presenting as a different person:
Mr Becker’s general appearances showed a man that although he had gained a significant amount of weight, looked fit and healthy. While his speech was still somewhat rapid, he was not thought disordered and showed no clinical sign of drug use. He was focussed, showed insight into his current situation and stated he was willing to accept the consequences of his past actions. Mr Becker indicated that he had spent some time thinking about his future and some of the challenges ahead of him before he could fully embrace a drug and crime free lifestyle.
Consideration of Issues Arising
Drug Addiction – Mitigatory
Counsel for the appellant submitted that the Judge failed to assess the appellant’s drug addiction as a possible mitigating factor. Counsel drew attention to the decision of this Court in R v Proom[5]. That case concerned a 20-year-old heroin addict who had engaged in extensive dishonesty offending. The proceeds of the offending were used to maintain her habit. Doyle CJ observed:[6]
Addiction to drugs, when it leads to crime, is not an excuse for the purposes of sentencing. Nor is addiction of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate. Nevertheless, addiction may be a relevant circumstance. It might explain that the offender is not a professional criminal, or did not make a calculated decision to offend. Addiction will often be relevant to prospects of rehabilitation, but might indicate that those prospects are not good. In the end, if addiction is of any significance, it is to be considered in the context of all of the circumstances of the case. The seriousness of the offending, or the need for a deterrent sentence, may outweigh any mitigatory effect that addiction would have. One cannot say that addiction is always simply irrelevant, nor can one say that addiction can never be a mitigating circumstance.
This is the approach that has been taken in this State. When individual cases are examined it will sometimes be found that the nature and circumstances of the offence are such that the court has taken the view that even though addiction is a factor, other considerations mean that it cannot have any mitigating effect. Other cases will be found in which it appears that the sentence must have been reduced to reflect the fact that the offending was not the result of a calculated commercial decision, or to encourage what seemed to be strong prospects of rehabilitation linked to real progress in breaking addiction.
The approach in this State is well settled. It is consistent with the approach taken in other Australian jurisdictions. That is a solid reason not to depart from it. This is not simply a stubborn adherence to precedent. There is no reason of principle to do so, nor is this approach inconsistent with the provisions of the Criminal Law (Sentencing) Act1988 (SA).
[5] (2003) 85 SASR 120.
[6] (2003) 85 SASR 120 at [43].
Counsel for the appellant submitted that there were three factors which suggested that the appellant’s drug addiction should be treated as mitigatory: First, the appellant had been introduced to serious drugs by his step-siblings at an early age. This, it was contended, distinguished him from having become addicted as the result of the willed act of a mature adult.
Secondly, it was said that the appellant was involved in poly-substance drug abuse. He was a serious addict. He undertook the sale of drugs with a view to maintaining his own habit.
Thirdly, it was claimed that the appellant’s offending did not form part of a commercial enterprise but was rather as a desperate attempt to meet his own addiction needs.
The Judge paid close attention to these three matters. He referred expressly to the manner in which the appellant came into contact with drugs and to the reports and submissions directed to those matters. The further remarks of Doyle CJ in Proom are apposite:[7]
The unlawful trade in drugs, and drug addiction, with all their adverse consequences for individuals, their families and for society, are major problems in our society. To treat drug addiction as a routine mitigating circumstance when sentencing an offender, would conflict with attempts made through the criminal law and by other means to deal with unlawful trading in drugs and with drug addiction. To say that is not to deny that addiction may be a form of illness. But Parliament has made it clear that the courts must treat unlawful dealing in drugs severely. It would seem curious in that context to treat as a mitigating factor, the fact that a crime was committed to obtain money with which to purchase drugs in breach of the law.
I accept that in some cases addiction might diminish individual moral culpability. But addicts do not lose the ability to make choices, and addicts remain legally responsible for their conduct. Moral culpability is not the only relevant consideration. Deterrence through punishment may be a blunt remedy, but courts must do what they can to deter addicts from using crime to sustain their addiction. Society is entitled to be protected from persons who commit crime to fund their addiction.
The proposition that addiction will always or generally be a mitigating factor confronts an obvious question. For how long does addiction operate as a mitigating factor? Is it a mitigating factor for the first offence, for the first few offences, or always? Can an addicted offender continue to expect a lesser sentence? Surely not. To the contrary, an addict who is a repeat offender may be entitled to a lesser degree of leniency simply because of the repeated offending, and because the pattern of conduct gives the court no choice but to emphasise deterrence, recognising the bluntness of that response.
[7] (2003) 85 SASR 120 at [47]-[49].
A distinction may be drawn between a person who sold drugs for the purpose of maintaining his own habit and the person who sold drugs to make a commercial profit out of those addicted. The Judge sentenced the appellant on the former basis. There is no substance to this complaint.
Rehabilitation Prospects
Counsel for the appellant contended that the Judge failed to have proper regard to the appellant’s prospects for rehabilitation. In this respect the Judge had before him the relevant material. He observed in the course of his reasons:
I accept, based on Ms Work’s assessment, that the defendant has refrained from using illicit drugs since his incarceration on 7th August 2004. He is intent on maintaining his abstinence and presently is determined to undergo long term rehabilitation to prevent relapses. A family friend, Mr Dean Woods, who runs a conveyancing business will give him full-time work and undertake job training to facilitate it.
There is other support for the defendant arising from the rebuilding of his relationship with his father and as I have mentioned with a former partner who visits him regularly in gaol.
So, I am prepared to proceed on the basis that the defendant is positively enroute to achieving some measure of rehabilitation.
As Doyle CJ observed in Proom:[8]
Addiction to drugs may indicate that assurances by an offender of a desire to be rehabilitated are unreliable, or must at least be treated with caution, and sadly may mean that even a genuine wish to rehabilitate may have to be treated with caution. In the worst case, if there is no reason to think that the addiction will be broken, there will be no basis for leniency by reference to the prospect of rehabilitation.
In Proom, the sentencing Judge had made only passing reference to Miss Proom’s prospects for rehabilitation. In the present case, the Judge paid close regard to the evidence and circumstances relevant to the appellant’s rehabilitation prospects.
[8] (2003) 85 SASR 120 at [50].
The appellant, as earlier observed, was aged 31 years at the time of sentencing. He has used drugs for more than 15 years. He has been an addict for many years. The appellant has had many opportunities in the past to address his drug addiction problems but does not appear to have taken any specific steps to address his problems. Only since he has been in custody has improvement been noted.
It is to be accepted that, when fixing a proper sentence, due regard must be had to the prospects of rehabilitation. It is one factor to be taken into account to be balanced with other factors. In the case of drug trafficking, the use of general deterrence is of a particular relevance.
In the present case, the Judge took account of the appellant’s prospects of rehabilitation. He made a specific reduction when fixing both the head sentence and the non-parole period. No error in his approach has been identified. The reports of Dr Raeside and Ms Work both spoke of programs available to the appellant while in custody. As earlier observed, it is since he has been in custody that he has been able to start rehabilitation. There is no substance to this complaint.
Diversionary Program
Counsel for the appellant submitted that the Judge should have taken into account the appellant’s inability to be referred to a relevant diversionary program with the accompanying benefits that such a program provides.
The diversionary Drug Court program does not accept persons charged with major indictable offences. As a matter of policy those offences are to be dealt with through the conventional court system. The purpose of the Drug Court program is to divert less serious offenders away from the court and to address their problems with treatment. Those committing major indictable offences are in a different category.
In R v Tran[9], this Court discussed the relevance of Drug Court initiatives with respect to sentencing. Olsson J observed:[10]
It is beyond question that the principles to be applied to the sentencing of drug offenders are well settled. (R v Mangelsdorf (1995) 66 SASR 60 at 63-69.) What was there emphasised was that, having regard to the legislative policy clearly evidenced by the provisions of the Controlled Substances Act 1984, predominant factors in the sentencing process must be those of general and personal deterrence. Moreover, in that case, the Court of Criminal Appeal re-emphasised that drug addiction “provides little or no basis for leniency in cases involving trading in drugs contrary to s 32” of the statute. (See per Doyle CJ at 64-65.)
It follows that, whatever may be the policy of the executive government in encouraging the establishment of the Drug Court regime, this cannot deflect the Court from giving effect to the clear policy of the legislature, as exemplified by the reasoning in Mangelsdorf, absent some new legislative mandate giving an imprimatur to a change in sentencing principle related to the weight to be given to the rehabilitation of offenders. This problem may need to be addressed in a definitive fashion in the future, when the pattern of selection of participants in the new programme becomes clearer and those who have participated in the programme seek sentencing recognition of successful efforts on their part.
Debelle J observed:[11]
The introduction this year of the trial operation of the Drug Court and its programmes to assist rehabilitation of drug offenders does not give rise to any ground on which this Court should interfere with the sentence. The establishment of the Drug Court is a well-intentioned scheme to assist the rehabilitation of certain drug offenders. But the court has been established without any statutory authority. It is a pilot scheme and is aimed to assist the rehabilitation of selected offenders only. The information supplied to this Court does not state the criteria by which persons are selected for participation in the programme. It is not, therefore, possible to determine whether the appellant would qualify for the scheme. Furthermore, Parliament has not amended the provisions of the Controlled Substances Act 1984 and, in particular, the provisions of s 32(5) which clearly express the intention of Parliament that the penalties should be severe for certain kinds of drug offences, which include the offence for which the appellant pleaded guilty: R v Santalab cited in R v Mangelsdorf (supra) at 65. As this Court has held, deterrence, both general and personal, is a predominant factor, although due regard will be had to rehabilitation: see R v Mangelsdorf (supra) at 70 – 71. The appellant has not been included in the Drug Court programme. He therefore is not entitled to be sentenced under it. Unless and until Parliament alters the sentencing principles relating to drug offences, those who are not included in the Drug Court programme will be liable to the penalties prescribed under the existing statutory régime. The establishment of the Drug Court was not, therefore, a factor which in any respect is relevant to the sentencing of the appellant. There is, therefore, no error in the sentencing process. The appeal should therefore be dismissed.
[9] (2000) 211 LSJS 479.
[10] (2000) 211 LSJS 479 at [29].
[11] (2000) 211 LSJS 479 at [40].
The Drug Court diversionary program has developed since Tran. It is now a well-established and recognised process. It has public recognition. In R v McMillan[12], the following observations were made about the diversionary processes generally and the drug diversionary program in particular:[13]
The concept of diversion involves a realisation that traditional criminal sanctions are not effectively reducing the criminal activities of certain persons within the community. The aim is to divert or channel those persons out of the court process into programs with a rehabilitative treatment focus. This is with a view to their long term rehabilitation and the prevention of further offending. The conventional criminal process will usually be stayed on the condition that the person enter an appropriate, approved treatment program. If satisfactory progress is made then the ‘criminal proceedings’ may be discontinued or alternatively a lesser penalty may be imposed than would otherwise have been after the period of treatment has been effectively undertaken.
The co-ordination of diversionary programs requires a range of expertise. The programs are undertaken in conjunction with government agencies and non-government professionals. Ideally all involved work together towards a common purpose - to address the specific needs of the individual and achieve a result which benefits not only them but provides protection for the community from further offending.
Specialist ‘courts’ and assessment panels have been developed to facilitate this restorative and rehabilitative philosophy. Such courts are not ‘courts’ in the traditional sense but rather the forum through which treatment services and rehabilitation programs are co-ordinated, implemented and individual outcomes monitored.
…
Anecdotally, it has been reported that South Australia’s diversionary programs have been successful. It is said that the efforts to effect rehabilitation have assisted many individual offenders while also affording a significant element of community protection. However independent studies are yet to be undertaken to establish empirically whether these programs produce tangible benefits to both individuals and the community. It is hoped that such studies can be effected promptly. Independent professional assessment would greatly assist the courts, the police and other agencies to assess the effectiveness of diversionary processes.
[12] (2002) 81 SASR 540; see also H, T v Police [2005] SASC 143 at [22]-[34].
[13] (2002) 81 SASR 540 at [60]-[62], [65].
The Drug Court program has now been the subject of evaluation studies.[14] The anecdotal reports referred to in McMillan are now supported by those evaluation studies. Reports of comparable interstate schemes are also favourable.[15] The government continues to support the Drug Court diversionary program. The diversionary scheme has now become a recognized, accepted and evaluated process. However the scheme is still only available to those committing minor offences. Those committing major indictable offences are not eligible to participate. The reasoning in Tran remains valid. The appellant could not have participated in a diversionary process. His offending was too serious.
[14] E Corlett, G Skrzypiec and N Hunter, ‘Offending Profiles of SA Drug Court Pilot Program ‘completers’’, Office of Crime Statistics and Research, Government of South Australia.
[15] K Freeman, ‘NSW Drug Court Evaluation: Interim Report on Wealth and Wellbeing of Participants’, NSW Bureau of Crime Statistics and Research (2001) 53 Crime and Justice Bulletin, Contemporary Issues in Crime and Justice; T Makkai and K Veraar (2003), ‘Final Report on the South East Queensland Drug Court’, Technical and Background Paper Series, no. 6, Australian Institute of Criminology, Canberra.
The appellant’s pleas to the major indictable offences rendered him ineligible for the program. Even if eligible, it is unknown whether he would be accepted into, and whether he could have completed, an appropriate program. It was at best a hypothetical consideration. The inability of the appellant to participate in the Drug Court program in the circumstances of this case is an irrelevant consideration to the sentencing process.
Section 18A
During the course of submissions the Court raised the appropriateness of the Judge’s use of section 18A of the Sentencing Act. That section provides:
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
As is evident from the reasons of the Judge, section 18A was utilised separately in respect to two groups of offending. The Judge ordered that the two sentences imposed be served cumulatively. The Judge then applied the totality principle and reduced the total of the cumulative sentences to the one head sentence. He considered the cumulative sentences as a total to be crushing.
The appellant in a subsequent written submission to the court submitted that the Judge was in error to use section 18A in this way. It was submitted that section 18A could and should have only been used once. This submission is misconceived. It was open to the Judge to utilise section 18A separately when dealing with the two groups of offences. It was open to the Judge then to order that the sentences be served cumulatively. It was also appropriate for the Judge to consider the effect of the overall sentences when considering the application of the totality principle.
Recently the High Court has considered this question in Johnson v The Queen[16], where Gummow, Callinan and Heydon JJ referred to the comments of Malcolm CJ in the Western Australian Court of Criminal Appeal:[17]
It may be accepted that the approach, which ought to have been adopted by the sentencing judge in the present case, was to fix appropriate penalties for both offences, then consider the application of the totality principle and, in particular, whether any adjustment needed to be made to either of the sentences imposed to achieve the total effective sentence which was consistent with the application of the principle.
[16] (2004) 205 ALR 346.
[17] (2004) 205 ALR 346 at [12].
Gummow, Callinan and Heydon JJ then continued:[18]
The appellant's submission that the Court of Criminal Appeal failed to appreciate that the sentencing judge, in structuring the sentences in the way in which he did, acted contrary to the principles stated in the joint judgment in Pearce, and again adopted a peculiarly Western Australian sentencing approach, requires further consideration of Mill and Pearce.
The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected. The trial judge here did not offend any of the principles stated in Mill or Pearce. His only error may have been to fail to state starting and ending dates, but this was neither to apply a uniquely Western Australian principle, nor otherwise to make an appealable error. What his Honour intended was obvious enough and did not fail in substance to give effect to the Act.
[18] (2004) 205 ALR 346 at [24]-[25].
Gleeson CJ agreed with these observations in the following terms:[19]
I agree with Gummow, Callinan and Heydon JJ that the errors identified in the reasoning of the Court of Criminal Appeal do not necessarily require the conclusion that there was error on the part of the sentencing judge. I also agree that the appellant failed to make good a number of arguments suggesting that the Supreme Court of Western Australia has systematically adopted an erroneous approach to the sentencing of federal offenders for multiple offences, or to the application of what is sometimes called the principle of totality. In particular, the submission that there is inconsistency between the principles stated in Mill v The Queen and Pearce v The Queen, and that Pearce effectively eliminated one of the two alternative courses said in Mill to be available to sentencing judges, should be rejected.
[19] (2004) 205 ALR 346 at [2].
Kirby J commented:[20]
The dicta in Pearce, mentioned in the Court of Criminal Appeal and extracted in the joint reasons, imply that it is possible to tame the judicial mind in a way that takes the applicable stages of reasoning in a strictly logical order. In a sense, this analysis tends to support the structured approach that I favour. However, I must acknowledge that, in an appellate response to sentences at first instance, there is much to be said for the fact that an "instinctive" reaction to a sentence at the threshold, based on judicial experience when all the facts are known, plays a part in outcomes (as it may also do in appeals against other qualitative assessments committed to judges, such as the determination of monetary damages for personal injury).
Whether the instinctive reaction to all of the facts drives the ultimate result or whether it is based on relevant considerations weighed and evaluated in a strictly logical order, I do not stay to examine. Perhaps this merely demonstrates that logical analysis and instinctive synthesis each plays a part in the ultimate orders that judges make. However, I agree that, to the fullest extent possible, the stages described in Pearce should, where applicable, be followed by sentencing judges in arriving at their sentencing dispositions, so far as the issues of cumulation or concurrence or of totality are concerned.
[20] (2004) 78 ALJR 616 at [43]-[44] – see also Markarian v The Queen [2005] HCA 25 per Gleeson CJ, Gummow, Hayne and Callinan JJ at [27]
These observations of the High Court confirm the correctness of the general approach taken by the sentencing Judge. To consider the total effect of the two sentences, when determining whether the cumulative effect of the sentences was crushing, is an appropriate course to be followed.
In Place[21], the court considered the application of the principle of totality to the one sentence being imposed in respect of an ongoing course of conduct involving a number of offences. In that circumstance the court suggested that the last step in the sentencing process was the application of the totality principle.
[21] R v Place (2002) 81 SASR 395.
However, as the Judge had decided to separately sentence the appellant in respect of the two groups of offences, the application of the totality principle should have been reflected in a reduction to one or both of the separate sentences imposed.
In the final step of this process, the Judge erred. However, this may not have led to any excessive sentence. In making the total reduction of one and a half years, it was open to the Judge, for example, to have made a reduction of nine months in respect of each of the two separate sentences. In this way he could give proper effect to the principle of totality.
Although the Judge could have used section 18A to impose the one sentence for all offending, it is to be borne in mind that there was a considerable effluxion of time between the two groups of offending. In that circumstance, the course followed by the Judge of dealing separately with the two groups of offending was open to him.
While the approach adopted by the Judge did not accord with his statutory powers, it does not follow that there has been a miscarriage of justice. A reduction made on account of totality of 18 months was a merciful reduction. The error lay in the manner in which the Judge effected the reduction.
Manifestly Excessive
The final submission advanced by counsel for the appellant was that the sentence was manifestly excessive.
The appellant’s offending involved three separate occasions of commercial drug offending over a period of almost 12 months. Each was a separate incursion into crime. The Judge’s approach to sentencing was appropriate and the ordering that the two sentences of imprisonment imposed be cumulative was appropriate. The Judge properly characterised the drugs, methylamphetamine and fantasy, as drugs in the middle range of seriousness in accordance with decisions of this court in Mangelsdorf[22] and Plaister and Graham.[23] In these circumstances, it was appropriate for the Judge to consider a notional starting sentence for the two periods of offending - that which occurred in October 2002, and that which occurred in January and March 2004 - within a range of five to seven years.
[22] R v Mangelsdorf (1995) 66 SASR 60.
[23] R v Plaister and Graham (2001) SASC 391.
Since the decision in Mangelsdorf, there have been considerable advances in knowledge of the effect of various drugs upon human behaviour. There is some evidence about the effect of marijuana upon the human brain. Some research suggests that there is a relationship between heavy use of marijuana and schizophrenia in young people. There has been the introduction of so-called “designer drugs”. Their use as recreational drugs has become more common. The long and short-term effect of these drugs on human behaviour has been the subject of a number of studies. It may be that it is time to reconsider the classification of drugs referred to in Mangelsdorf. The time may have come, in the appropriate case, for the Director to consider whether expert evidence should be called to inform the sentencing court of recent research as to the effect of various popular drugs upon users.
The appellant had, as earlier observed, a lengthy record of offending and had received four suspended terms of imprisonment in the past. On those occasions he had the benefit of supervision. Notwithstanding this support he continued to offend. The appellant’s criminal antecedents preclude a more lenient approach being taken on this occasion to the sentences to be imposed.
It was also a relevant matter that the appellant had worked as the manufacturer of methylamphetamine for drug dealers for many years. At times, he produced methylamphetamine a number of times a week. This history of involvement in drug trafficking tended to negate leniency when sentencing. An aggravating aspect of the methylamphetamine offences was that they were committed in breach of the appellant’s bail agreement.
It is to the credit of the appellant that he has now taken the opportunity to involve himself in rehabilitation programs whilst in gaol. It is hoped that for the sake of himself, his family and the community that he continues to engage in programs to enhance his skills and his ability to cope when released. Nonetheless, when all factors are taken into account, it cannot be said that the Judge imposed a sentence that was manifestly excessive.
Conclusion
In the present case, it has not been demonstrated that the Judge failed to have regard to relevant considerations, or that he gave consideration to irrelevant material. No error of sentencing principle has been identified. The sentence imposed was within the range of sentences that might be expected for the offending.
This appeal is dismissed.
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