R v C No. SCCRM-98-227 Judgment No. S6970

[1998] SASC 6970

R v C

[1998] SASC 6970

Court of Criminal Appeal:  Cox, Prior and Olsson JJ

1 COX J.     The appellant is under eighteen years of age.   He appeals against a sentence of six years’ imprisonment, with a non-parole period of two years, imposed in the District Court for selling heroin. 
2 On 24 February 1998, following two or three phone calls from an undercover police officer, the appellant sold the officer eighteen grams of heroin powder for $9,000.  The powder contained fourteen grams of pure heroin.  That was obviously a wholesale transaction.  The powder would have been adulterated before being sold on the street. 
3 The undercover officer approached the appellant because the police suspected that he would be interested.  He was interested and the deal was arranged.  Within a very short time the appellant had got the heroin from a supplier.  He took a small amount of the drug for his own use, and was to retain $500 from the purchase price by way of his own commission. 
4 He then met the undercover officer in Rundle Street, and they went to a coffee shop to complete the deal, and that is when he was arrested. He was charged before the Youth Court, but the judge determined that because of the gravity of the offence, the appellant should be dealt with in the same way as an adult, and he, therefore, committed the appellant to the District Court under s17 of the Young Offenders Act.
5 When he came before the District Court judge in August, he pleaded guilty to the charge of selling heroin under s32(1)(c) of the Controlled Substances Act in accordance with the intimation that he had already given in the Youth Court. The sentencing judge, who of course was not bound by the committal by the Youth Court, decided under s29 of the Young Offenders Act to deal with the appellant as an adult. He made that deliberate choice by reason of the circumstances of the case, rejecting the other options, under s29, of sentencing the appellant as a youth or remanding him to the Youth Court for sentence.
6 The case has a number of remarkable features.  The first, though far from unprecedented, is the seriousness of the offence.  This was not the usual case of a street trader pushing small tastes of adulterated heroin, but of someone further up the line making a wholesale sale, or more realistically, perhaps, selling, on commission, quite a large and valuable quantity of fairly pure heroin, possibly to a street trader.  The appellant assumed, with a sophistication beyond his years, an important role in the chain of movement of the drug from importer to user. 
7 Secondly, there is the appellant's very young age.  He was a couple of days short of his seventeenth birthday when he committed this offence.  He is still only seventeen. 
8 Thirdly, he has managed to build up a record of serious crimes for a young man of his age.  In March 1996 he was given four months’ detention for assault occasioning actual bodily harm.  Two months later, in May 1996, he received eight months’ detention for robbery in company.  He and another person had held up a service station with a replica pistol.  He cannot have been out very long when, in October 1996, he and a number of others attacked a student with a machete.  That led to an unlawful wounding charge and, in February 1997, a further eleven months’ detention, or rather, that was the sentence, for by October 1997 he and others were breaking into a shop.  He came before the senior judge this time, on 10 February 1998, and was given a sentence of three months’ detention, but the sentence was suspended upon the appellant's entering into a bond to be of good behaviour with supervision for one year. 
9 A fortnight later, and, of course, in breach of his bond, the appellant committed this very serious heroin offence.  Despite the appellant's age, the District Court judge obviously thought that enough was enough, hence his treatment of the appellant as an adult and a very substantial head sentence. 
10 Finally, and importantly, I should also say that the appellant has been a heroin user for a considerable time, and at the time of the offence was seriously addicted.  He went on to a methadone program and it was a major part of his counsel's sentencing submissions in the District Court, supported by the report of a psychologist, Mr Sweeney, that nothing should be done to jeopardise the success of that program by returning him to an institution, certainly not with a sentence that might involve his going to prison where the methadone program would not be available. 
11 The learned sentencing judge described, in his sentencing remarks, the appellant's unsettled background.   He fell out with his parents at the age of thirteen, and left home for eight months.  Then he went back home and his relations with his parents improved.  The judge noted the appellant's past offences, but also noted that none of them was directly drug related, although drugs may have provided a motive in some cases. 
12 The appellant began smoking heroin at the age of fourteen, and by the time of his arrest he was injecting heroin daily.  His forgetfulness was evident in the police telephone transcripts.  The judge accepted that the appellant committed this latest offence in order to feed his own drug habit.  His Honour regarded it as a matter of aggravation that the appellant understood that the heroin he was selling was supposed to be destined for prisoners in custody. 
13 The judge spoke of the evils of the drug trade and the importance of imposing deterrent penalties.  He took a sentence of seven or eight years as his starting point, and then made allowance for the early plea of guilty, the appellant's particularly young age, and his participation since July in the methadone program. 
14 The extreme gravity of the offence required a head sentence of six years, he considered, but because of the appellant's extreme youth he set a non-parole period of two years, which was about half the period he would ordinarily have fixed. 
15 He noted that if the appellant could continue his sentence at a detention centre after he turned eighteen, there was a real possibility that he would be able to continue with the methadone program, while serving out the rest of his sentence. 
16 Mr Retalic this morning has argued that the head sentence was too high, that any sentence should have been suspended, and that, at the outset, the learned judge in the District Court should have declined to sentence the appellant as an adult, and should have taken one of the other courses that was open to him. 
17 The appellant's submissions, through his counsel, began with the bare proposition that the case of Mangelsdorf set a tariff of four years for ordinary heroin dealing.  That is not the case.  It still seems to be necessary to point out that Mangelsdorf stands for no such proposition. 
18 Mangelsdorf was a Crown appeal.  The circumstances of the particular offender included his very poor health and his previous good record, and all that the court decided with respect to his sentence was that four years would be a proper sentence to substitute for the sentence that was awarded in the court below. 
19 The standard for routine retail heroin dealing was set in a series of cases preceding and, indeed, by implication, affirmed in Mangelsdorf, at something of the order of six years. The decision in Mangelsdorf itself is entirely consistent with that. See R v Meyer (29 August 1997, CCA), and also the recent Court of Criminal Appeal decision in R v Gjoka, 1 July 1997, where the learned Chief Justice refers to a tariff of five to seven years.
20 It was also put to us that the appellant should not have been sentenced as an adult. The general policy of the Young Offenders Act is that offenders under the age of eighteen should be sentenced in accordance with the special regime which that Act sets out. However, s17 especially provides for the committal of a youth for trial or sentence in the Supreme Court or the District Court in particular circumstances, and they include the case where the Youth Court determines, on the application of the Director of Public Prosecutions or a police prosecutor, that the youth should be dealt with in the same way as an adult because of the gravity of the offence or because the offence is part of a pattern of repeated offending, and it was acting on that power that the learned Youth Court judge committed the appellant to the District Court.
21 That, as I said, was not binding on the District Court judge who had the option on sentencing the appellant of either dealing with him as an adult or making such order with respect to him as a Youth Court may make on sentencing a youth;  or, alternatively,  remanding him to the Youth Court for sentencing.  The learned judge, because it would seem of the gravity of the offence alone, resolved to deal with him as an adult.  I see no reason to question the soundness of the learned judge's discretionary decision.  Indeed, given the gravity of the offence, he hardly had any real choice in the matter.  To that could be added the appellant's record, as a relevant consideration in making that jurisdictional decision, notwithstanding the fact that none of them was a breach of the drug laws, even though they may conceivably have had drugs as their motivation.  The learned judge, in my opinion, was justified in dealing with the appellant as an adult. 
22 The learned judge, in his careful sentencing remarks, dealt with the seriousness of the offence and the appellant's unhappy history, including his persistent previous offending, and he noted, of course, the circumstances of the offence which involved an undercover police operation. 
23 When it came to the actual sentence, he said this:
"You have no relevant offending history in regard to dealing in drugs.  As a starting point, following the authorities which give me guidance, I think that an appropriate sentence that would reflect the seriousness of this matter should be a period of imprisonment of seven or eight years, but there are important factors which I must take into account in mitigating a sentence such as that. 
Firstly, you gave an indication at the very earliest point that you would be entering a plea of guilty to this charge. 
Secondly, you did that at the first appropriate moment when you were brought into court. 

Thirdly, you were of a particularly young age;  and fourthly, you have since 2 July been participating in the methadone program.  I hope it will be of assistance to you.   It is for some people and it is not for others.  But the fact that you are eligible to get into such a program at the age of seventeen is itself a testimony to the size of your physical problem of addiction.  I am told that you have suffered no withdrawals during drug substitution by methadone. 
I accept that your propensity to reoffend, your past habit of reoffending, is linked to your drug addiction - a factor which has been largely overlooked by your own actions to hide your withdrawal symptoms in the rehabilitation you have received up until now.  I also accept that your motivation to rehabilitate yourself has been given additional force because of your arrest of this serious offence and your transfer to superior court.  The death of your brother's girlfriend from an overdose of heroin in March this year has also given you a most unpleasant encouragement to reform.  You were the person who discovered her body. 
I have paid very serious consideration to the submissions of Ms Abbott on your behalf and I have considered your case with a great deal of anxiety. In view of all the factors which I have mentioned and the duty imposed on this court by Parliament, and having due regard to the objects and policies of the Young Offenders Act, I set your head sentence as a term of imprisonment for six years. Because of your extreme youth, I set a non-parole period of two years. That is about half of what I would normally do for a sentence of six years."
24 While the learned judge in that passage stated his intention to take into account the appellant's particularly young age, it is difficult to see much room for any appreciable discount for that factor when the plea of guilty and other matters were also allowed for, having in mind that the learned judge made a reduction of no more than one, possibly two years to his starting point of seven or eight years.
25 The starting point, in my judgment, was accurately chosen.  While the appellant was not shown to have been an habitual dealer in drugs, the magnitude of this particular sale - the quantity and nature of the transaction and the amount of money involved - made his offending equivalent in seriousness, in my judgment, to that of the typical practised street trader. 
26 So I would make no criticism of the learned judge's starting point of a sentence of six or seven years, but I am forced to the conclusion that the learned judge really failed to make sufficient allowance for the appellant's extreme youth.  The fact that he chose, and properly chose, to sentence the appellant as an adult did not mean that the factor of the appellant's age receded into unimportance.   He was still an offender who was not quite seventeen when he committed the offence and only seventeen when he came before the court.  So the argument that the learned judge failed to take sufficient account of the appellant's age should, in my view, succeed. 
27 There is also a question whether the learned judge narrowed the deterrent aspect of punishment in this case sufficiently to accommodate the principles laid down in the Young Offenders Act. Because the appellant was being sentenced as an adult, it was open, and in my view proper, for the judge to have regard to the deterrent effect of the sentence on other youths, but the Young Offenders Act maintains its prohibition of taking deterrence generally into account, whether young people are sentenced as adults or sentenced under the Young Offenders Act in the normal way.
28 It was realistic, and in my view, open to the judge to have regard to the cases that establish the general level of penalties for heroin dealing in adults, but he could not apply them to this case without first qualifying their relevance to meet the requirement for the deterrence only of other youths and not for the deterrence of the public at large. 
29 Now there is no rule of thumb, obviously, by which the conversion of general deterrent sentencing practice to sentencing specifically directed to the deterrence of other youths may be made.  However, there is nothing in his Honour's remarks that indicate that he has taken the restricted aspect of deterrence into account, and certainly nothing in the sentence itself that would suggest that he made the necessary limiting adjustment. 
30 As I have indicated, this was an undercover operation, so we are in the area of police entrapment. It was put to us by Mr Retalic that a discount should have been made to the sentence on that account, and he cited the Full Court decision in the case of Lainas 50 SASR 463.
31 A sentence is not to be discounted merely because it was committed as a result of police entrapment. An offender is, however, entitled to a discount where it appears, as a reasonable possibility, that the offender would not have committed the offence had he not been talked into it by the undercover police officer. The matter is explained in the decision of this court in Mandica 24 SASR 394 where, at p.404, the former Chief Justice, after describing the nature of the entrapment in that case, said this:
"In deciding whether to extend leniency by reason of entrapment, the sentencing judge should take a commonsense view of the evidence for the purpose of deciding whether there is a reasonable possibility that the convicted person would not have committed the offence but for the encouragement involved in the setting of the trap."
32 That gives no support to the general proposition that entrapment will always result in a sentencing discount.  See also Martelli, 20 November 1995, CCA, unreported.  Nor is it correct, in my view, to say, as was put to us, that it is enough that the police officer made the first move - that it was the police officer who asked the appellant to sell him heroin.  That, of course, is an almost inevitable feature of any retail sale, whether legitimate or illegitimate. I suppose there are cases where wholesale heroin dealers expressly offer their wares to potential buyers, but there can be no doubt that the typical case is of someone approaching the vendor and by words or actions making a request.  That is what happened here. 
33 The transcript of the telephone conversations and the eventual meeting and conversation in Rundle Street are in the record and they show that the appellant needed no persuading at all.   The undercover officer pretended that she had made contact with a mutual acquaintance, but the appellant, understandably, said he knew nothing about that.  However, he was quick to say, when the police officer said she wanted to organise something, that if she needed anything, the appellant could help her out.  She explained that she wanted to be helped out with an ounce of heroin for $9,000, and the appellant readily agreed to set up such a deal.  There is not the slightest hint there of any inveigling by the police, of any hesitation or reservation on the appellant’s part, of any need to talk him into something that he would not otherwise have done;  nothing, indeed, to suggest that this was something the appellant had never done before.  I do not mean by that that he was to be sentenced on the footing that he had offended like this previously, but there is no support in the transcript for the view that the appellant was doing this for the first time, much less that he needed to have his arm twisted. 
34 I would reject the submission that there should have been a reduction in the sentence in this case because of the police entrapment.  Nothing happened here that was not practically inseparable from any entrapment situation, and, as Mandica showed, the mere circumstance of entrapment is not a mitigating factor.
35 There remains the appellant's exceptionally young age.  For the reasons I have given, I do not think that the learned judge gave sufficient weight to that aspect in arriving at a head sentence of six years.  He was entitled and, indeed, in my view, practically required to impose a substantial sentence, but it should have been a sentence that fell well short of the tariff, even the tariff adjusted by reason of the plea and other matters that he regarded as mitigating the appellant's offence. 
36 I would substitute for the prison term of six years a prison term of three years. 
37 That leaves the non-parole period which the learned judge fixed at two years.  Here it was particularly important to have regard to the appellant's unhappy record.  While, of course, he was very young, he had managed to run up a substantial record of serious crime, but, just as important, punishment appears to have had no effect on him at all.  The most striking instance of that is his commission of this very serious offence within a fortnight of his being released on a suspended sentence for what was also a serious matter. 
38 I think the public is entitled to some respite from the appellant's criminal behaviour for some time.  It is tragic, of course, that any young person has to spend time in custody, and in this case with some risk of spending part of the sentence in an adult prison.  That remains to be seen.  But there does come a point where - as in the view of the learned District Court judge - enough is enough.  Previous substantial sentences to detention had proved ineffectual in the case of this offender.  I would not interfere with the non-parole period set by the District Court.
39 So for these reasons, I would allow the appeal for the purpose of reducing the head sentence from six years to three.  I would fix a non-parole period of two years.  Both sentence and non-parole period should run from 11 September 1998, the date stipulated by the District Court. 

40 PRIOR J.                I agree. 
41 OLSSON J.    I also agree. 
42 COX J.          So the order of the court will be as I have indicated.