R v Campanella
[2004] SASC 99
•20 April 2004
R v CAMPANELLA
[2004] SASC 99
Court of Criminal Appeal: Doyle CJ, Perry and Mullighan JJ
DOYLE CJ: I would allow the appeal, set aside the sentence imposed by the District Court, and substitute a sentence of imprisonment for three years and nine months. I would fix a non-parole period of two years six months in relation to that head sentence. I would direct that the head sentence and non-parole period take effect from 8 April 2003.
I have had the benefit of reading the reasons of Perry J and those of Mullighan J.
I agree with each of them that, on the material before the District Court, it was appropriate to proceed on the basis that the intermediary “Charlie” was encouraged by the police, and further on the basis that the offence would not have occurred but for the part played by Charlie, acting at the instigation of or with the encouragement of the police. There is no suggestion in the present case of police dishonesty, but nevertheless it was appropriate to sentence on the basis that Mr Campanella came to the attention of the police not because of previous involvement in the drug trade, but because of information given to them by Charlie. That was how the appellant came to commit an offence that he would not otherwise have committed.
These matters reduce the culpability of the offending.
However, it is also the case that Mr Campanella had the opportunity to reconsider his position, but nevertheless chose to continue with the transaction. The offence was a serious one.
I agree with Perry J and Mullighan J that the reasons of the sentencing Judge suggests that inadequate allowance was made for the matter to which I have referred. The Judge’s starting point of seven years may be too high, but it is not necessary to express a definite view on that point.
Taking everything into account, I agree with Perry J and with Mullighan J that the sentence is excessive, and that this Court should re-sentence the appellant. In the end result, I agree with the sentence proposed by Perry J. I consider that the sentence proposed by Mullighan J is a lesser sentence than is appropriate, in all the circumstances.
For those reasons I join in the order proposed by Perry J.
PERRY J: The circumstances surrounding the commission of the offence in question are set out in the reasons of Mullighan J.
The words “police entrapment” are emotive and tend to conceal the fact that police involvement in the circumstances leading to the commission of an offence may occur in a wide range of situations.
In some circumstances, no allowance on that account is called for. For example, in cases involving dealing with a defendant shown to be an established drug trader, the fact that the particular dealing in question was with a police officer may be of no consequence in determining the appropriate penalty.
In other circumstances, the relevant evidence may be excluded in its entirety.
In some cases, it is said that the offending conduct would not have occurred were it not for the activities of an informer or undercover police officer.
But to put the matter in that way tends to obscure the fact that when a relevant drug dealing takes place, that very fact proves that, given the right combination of circumstances, the defendant is prepared to offend.
In all cases of this kind one needs to look to see if any inducement was offered or pressure brought to bear and to determine whether any such circumstances should be regarded as mitigatory, and if so, what allowance should be made for it in the sentencing process.
That inducements or pressure may have emanated from a police officer does not mean that any more weight should be given to that fact than would be the case if the inducement or pressure had come from some other source.
Given the nature of the drug trade, it is not uncommon for pressures of one kind or another, threats of violence, standover tactics and the like to play a part in the circumstances leading to the commission of an offence. In all such cases appropriate weight must be given to such considerations, irrespective of whether a police officer was involved.
The fact that a member of the police force is involved should not mean that the allowance to be given for any such circumstances should be any greater than would otherwise be the case.
Police officers put themselves at considerable risk of personal injury, or even death, in taking part in clandestine operations designed to expose drug dealers and bring them to justice. Convictions secured in such circumstances should not be devalued simply by reference to the fact that there was police involvement.
Having regard to the circumstances of this case, it must be accepted, as Mullighan J indicates in his reasons, that there was some sort of undisclosed relationship between the appellant’s friend Charlie and the police. I would accept also that it is unlikely that this particular offence would have been committed had it not been for inducements, coupled with a degree of encouragement, if not pressure, from Charlie.
But I do not see that the allowance for such factors should be any more or less than would be the case if such inducements and pressure had come from a drug dealer, with no connections with the police.
While I accept the authority of the cases referred to by Mullighan J in which the courts have emphasised that an allowance should be made in appropriate cases where an offence has been committed, at least in part, by reason of the actions of an agent provocateur, it is the fact of the pressure and inducements which have been brought to bear, rather than their source, which is important.
In this case an appropriate allowance should be made for the fact that the appellant was induced to commit the offence by reason of his straitened financial circumstances and the pressure brought to bear by Charlie.
However, the consummation of the offence occurred by reason of dealings between the appellant and the police officer, who assumed the name Steve.
In the submissions which he made to the sentencing judge, counsel for the appellant did not suggest that Steve, as opposed to the appellant’s friend Charlie, had brought any pressure to bear in proceeding with the transaction. With Charlie’s encouragement, the appellant met with the police officer Steve, and about a week later supplied Steve with a sample of tablets.
Later again, there must have been some contact between the appellant and Steve, as a result of which Steve must have indicated his willingness to proceed with the transaction. The appellant must then have obtained the tablets, agreed to meet with Steve, and subsequently did so, when the “sale” took place.
These events unfolded over a period of weeks, during the course of which the appellant had ample opportunity to consider his position and resile from the transaction if he was so minded.
The question is whether, given those circumstances, the sentencing judge failed to give sufficient allowance in fixing the sentence to the so-called police “entrapment”.
During the course of his sentencing remarks, the sentencing judge said:
“As you are by now probably aware, the law places general deterrence very highly in the matters for me to consider. In other words, others need to be deterred from committing drug offences. Your counsel, Mr Dadds, has submitted that the aspect of entrapment should cause me to lessen the sentence. I propose to have only limited regard to that. True it is that you became involved because your friend was being encouraged by the police into this offending, but you had plenty of time to reconsider your involvement and withdraw. In any event there doesn’t seem to have been undue pressure put on you.”
In my view, standing alone, those remarks of the sentencing judge are not indicative of error. The proven circumstances fall short of indicating that “undue pressure” was put on the appellant. He did have plenty of time to withdraw.
At the time of sentencing the appellant was aged 33 years. He was not a young man, shown to be under the influence of an older person. His decision to become involved was not a product of duress or coercion.
That one of the factors which induced him to become involved in the transaction was his straitened financial circumstances is an element common to very many drug offences, and is not a substantial mitigating circumstance.
While I accept that he would not have become involved in this particular offence were it not for approaches made initially by his friend Charlie, followed up by contact made by the police officer, as I said earlier in these reasons, all that these circumstances prove is that the appellant was prepared to offend, given the right combination of circumstances and a sufficient financial inducement.
The remaining question is whether, notwithstanding the view which I have expressed, the sentence in fact imposed has been shown to be manifestly excessive.
The sentencing judge commenced with a starting point of 7 years, which, on account of the appellant’s plea of guilty, he reduced to 5 years and 3 months. Against that head sentence he fixed a non-parole period of 3 years.
It must be accepted that given the amount of the drug which was involved and the fact that the tablets had a value of about $50,000 if sold in nightclubs or discos, the offending was in a serious category. Furthermore, in such cases the sentence must reflect a substantial allowance for general deterrence.
But while I agree with the sentencing judge that given the circumstances, “limited regard” should be paid to the so called “entrapment”, the sentence in fact imposed suggests that no significant allowance was made on that account.
Seven years would have been an appropriate starting point, absent the “entrapment”.
Taking 7 years as the starting point, I would allow a reduction of 2 years by reference to the element of entrapment, and a further 1 year and 3 months for the plea of guilty.
This would result in a head sentence of 3 years and 9 months.
I would fix a non-parole period of 2 years and 6 months, the head sentence and non-parole period to date from the date upon which the appellant was taken into custody, namely 8 April 2003.
Given the seriousness of the offending, it would not have been appropriate to suspend the sentence.
I would allow the appeal and substitute an order in the terms which I have indicated.
MULLIGHAN J: The appellant pleaded guilty in the District Court to selling 3, 4-Methylenedioxymethamphetamine (known as ecstasy), a prohibited substance contrary to s 32(1)(c) of the Controlled Substances Act 1984 and was sentenced to imprisonment for five years and three months with a non-parole period of three years. Both the head sentence and the non-parole period commenced on 8 April 2003 when the appellant was taken into custody. He appeals against the sentence.
The offence was committed on 6 September 2002 at Torrensville when the appellant sold 989 ecstasy tablets to an undercover police officer for $25,500. The grounds of appeal are that the learned Sentencing Judge failed to take into account that the appellant was apprehended as a result of entrapment by the police and that the sentence is manifestly excessive. There was a paucity of information before the learned Sentencing Judge as to the activities of the police prior to the commission of the offence and the reason for the approach to the appellant by a man referred to as “Charlie”, who was an acquaintance of the appellant, and to whom I refer later.
The relevant information which was before the learned Sentencing Judge was contained in the declarations taken from police officers, character testimonials from the appellant’s wife and sister, a medical report concerning the appellant from his general medical practitioner and the appellant’s version of the reason for his criminal offending which was conveyed to the Court through submissions of his counsel. No oral evidence was lead and there was no contest as to the factual basis of the offence advanced by the appellant. It is necessary to summarise the factual matters placed before the learned Sentencing Judge.
The appellant is now aged 34 years. He has a relatively minor record of past offending of no significance for the purpose of fixing an appropriate sentence with the exception of the last two offences which he committed. On 18 May 1998 he was convicted of supplying a commercial quantity of cannabis and was sentenced to undertake 300 hours of community service. On 6 September 2002 he produced cannabis and on 14 January 2003 he was fined $400.
He had the benefit of a stable and supportive family. He suffered injuries in a motor vehicle accident in 1998 when his neck was fractured. He suffered pain and depression over the ensuing years and sought relief in alcohol and cannabis. In the main he has been in constant employment since leaving school. He committed the offence of supplying a commercial quantity of cannabis when in New South Wales. His plea was accepted on the basis that, despite his possession of a commercial quantity of the drug, he was not involved in any commercial activity.
In 1999 he met his wife, and they married on 7 July 2001. They have two young children who, at the time of sentencing, were aged 16 months and 2 months. Prior to the marriage the appellant consumed some drugs for recreational purposes, the amount of which reduced upon his marriage. Towards the end of 2001 he was unable to continue employment because of another injury, and he suffered consequential financial difficulties, anxiety and depression. He was treated by Dr Buttery who reported that the appellant had suffered symptoms suggestive of anxiety and depression since 2001. Dr Buttery also reported that the appellant had suffered financial difficulties which affected his anxiety and depression and, according to Dr Buttery, led to lapses of judgment leading to him committing the offence.
For some months before committing the offence the appellant was unemployed. His wife worked but also ceased employment. The appellant was attempting to improve himself. After this offending he commenced a diploma in a conveyancing course at TAFE and had completed a significant part of the course.
The appellant submitted to the learned Sentencing Judge that he had known Charlie for about 20 years. He had seen him on a regular basis when involved in the party scene before his marriage.
In about July 2002 Charlie spoke to the appellant and told him that he had someone who was interested in buying 1000 ecstasy tablets and that the appellant would make some money if he was involved. The appellant was reluctant to be involved but he was in financial difficulty. Neither he nor his wife were working. He made enquiries as to the availability of the drug but nothing more.
He was contacted again by Charlie about two or three weeks later. Charlie told him that he was concerned at the inaction of the appellant and said that he did not want to appear to the proposed purchaser like an idiot. He encouraged the appellant to participate and become more actively involved. He asked him to meet the buyer during the following weekend and told him that the meeting was necessary so that the buyer would think that he, Charlie, was genuine. The appellant reluctantly agreed to do so and met with the buyer who was an undercover police officer using the name Steve. They met again about a week later and a small number of tablets were supplied as a sample by the appellant to that police officer. The learned Sentencing Judge inferred that after the first meeting between the appellant and Steve, the appellant had no further involvement with Charlie.
The appellant submitted that he would not have become involved but for Charlie’s insistence. When he did become involved he anticipated a personal profit of $2,500. He obtained the tablets on credit for $23,000 and sold them for $25,500. He has a debt of $23,000 which he will have to pay.
I now take up the story as revealed in the declarations of police officers. Approval was given on 17 July 2002 by a senior police officer for an undercover operation by police to gather evidence of serious criminal behaviour of the appellant pursuant to s 3 of the Criminal Law (Undercover Operations) Act 1995. That approval could not be given unless the senior officer suspected on reasonable grounds that the appellant was engaging, or was about to engage, in such behaviour. It may be seen that this approval was sought and given at about the same time as Charlie approached the appellant. On 29 July 2002 a police officer assumed the role of “controller” of the operation. The information before the learned Sentencing Judge was that the appellant was not involved in “serious criminal behaviour” at this time. It appears that the police may have taken that view because of the activities of Charlie.
It is stated in the declaration of one of the police officers that from the commencement of the undercover operation up to and including 5 September 2002, police and others were involved in “covert infiltrations relative to this investigation” and that divulging the convert infiltration may lead to persons and police methodology being exposed. For that reason information about those infiltrations was not included in police statements.
The consequence is that the learned Sentencing Judge had no information from the prosecution about the conduct and activities of the police prior to the commission of the offence. Such information would have assisted in assessing whether claims of entrapment were true. However, as will be seen, the prosecution did not contest the assertions made on behalf of the appellant as a basis for sentencing.
On 6 September 2002 a senior police officer signed an “Addendum” to the approval to conduct the undercover operation, presumably because the initial approval was due to expire. During the morning of this day the police held briefings and the undercover police were informed of the duties they were to undertake. A police officer, who assumed the name Peter Venn, was to undertake the purchase of drugs from the appellant. $25,500 in cash was provided to him and surveillance of the operation was organised.
The appellant was observed by police driving his motor vehicle near the pre-arranged location for the sale and purchase of the drugs at about 11.45 am. Obviously he had been informed by someone of where the transaction was to take place. The transaction occurred between Mr Venn and the appellant in a motor vehicle at about 12:00 noon. The appellant handed the tablets to Mr Venn who handed the money to him. The appellant then drove his vehicle away with the money and was promptly apprehended by other police. The money and the tablets were confiscated and the tablets have been lost to the appellant.
Later the police conducted a search of the appellant’s house. They did not find any drugs or paraphernalia of drug dealing. They seized a length of clear film (glad wrap) which was taken from the kitchen. There is no sinister implication of the item being at the house.
Evidence was placed before the learned Sentencing Judge, in the form of a statement, that ecstasy prices in September 2002 were between $20 to $35 per unit for sales of 100 to 1000 capsules and higher prices for smaller quantities. If this quantity of tablets had been sold in a discothèque, the total selling price could have been $49,500.
The appellant’s counsel put to the learned Sentencing Judge that the appellant would not have committed the offence if he had not been persuaded to do so by Charlie who was acting on instructions from the police. He submitted that the appellant had no knowledge of Charlie’s involvement, but it could be that Charlie was acting upon instructions from the police, or that Charlie, for his own purposes, needed to refer the police to someone and so he selected the appellant.
The prosecutor informed the learned Sentencing Judge that the prosecution was not in a position to challenge the circumstances of the offence and the reason for the appellant’s involvement because the police were reluctant to reveal any of the circumstances of an undercover operation. She said that there was “nothing to put this accused’s involvement as being any higher” than as put by the appellant. Further, the prosecution accepted that the offence was an isolated incident of drug dealing by the appellant.
The learned Sentencing Judge discounted the sentence of seven years, which he would otherwise have imposed, by 25 per cent on account of the appellant’s plea of guilty, which was entered at the first available opportunity in the Magistrates Court at the preliminary hearing, in consequence of which the appellant was committed for sentence. It was accepted that the appellant obtained the tablets on credit and because the money and the drugs were seized by the police, the appellant has an unpaid debt. With respect to the reason for the appellant’s offending, the learned Sentencing Judge said:
“Your counsel, Mr Dadds, has submitted that the aspect of entrapment should cause me to lessen the sentence. I propose to have only limited regard to that. True it is that you became involved because your friend was being encouraged by the police into this offending, but you had plenty of time to reconsider your involvement and withdraw. In any event, there doesn’t seem to have been undue pressure on you.”
It may be seen that the learned Sentencing Judge accepted, for the purpose of sentencing, that Charlie had been encouraged by the police. The true relationship between Charlie and the police was not disclosed by the police because of their deliberate choice. They declined to disclose the nature and extent of the infiltration. In those circumstances and in view of the submissions made to him by the appellant’s counsel, which were not contested by the prosecution, I think the learned Sentencing Judge was required to conclude that the offence would not have occurred but for the conduct of the police. In The Queen v Mandica, Spakianos & Spakianos (1980) 24 SASR 394 King CJ considered the significance of police conduct of this nature in the sentencing process. He said at 404:
“There was more than a hint in this case of criticism of the police methods. It would be totally wrong, of course, for police officers to incite or encourage susceptible persons to crime in order to arrest and prosecute them for offences which they might not have otherwise committed. Indeed, in such a case the police officer would himself be guilty of a crime. The situation is entirely different where police have reliable information that a person is engaged in criminal activity. In such circumstances a police trap is a legitimate device for obtaining the evidence necessary for a prosecution. Sometimes it is the only way in which those carrying on criminal businesses and activities can be brought to justice. The authorities must have in mind, however, that if informers or undercover agents are involved in the trap, they may become material witnesses. If that occurs, Crown privilege will not apply to protect the existence or identity of such persons from disclosure. Any background information which might justify the setting of the trap will generally not be available to a sentencing Court. The Court must do the best it can with the facts proved before it by admissible evidence. In deciding whether to extend leniency by reason of entrapment, the sentencing judge should take a common sense 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.”
King CJ had referred to observations in Reg v Birtles (1969) 53 CrAppR 469 and Reg v Sang [1980] AC 402 with approval. In Birtles Parker CJ said that where the police encouraged the commission of a crime, some reduction in sentence is required. In Sang Lord Salmon said at 443:
“I would now refer to what is, I believe, and hope, the unusual case, in which a dishonest policeman, anxious to improve his detection record, tries very hard with the help of an agent provocateur to induce a young man with no criminal tendencies to commit a serious crime; and ultimately the young man reluctantly succumbs to the inducement. In such a case, the judge has no discretion to exclude the evidence which proves that the young man has committed the offence. He may, however, according to the circumstances of the case, impose a mild punishment on him or even give him an absolute or conditional discharge and refuse to make any order for costs against him.”
It is unnecessary for present purposes to make any comment about the admissibility of evidence of the commission of an offence in an entrapment situation. Of course, there is no suggestion in the present case of police dishonesty, but nonetheless the evidence justifies the conclusion that the police became interested in the appellant not because he was involved in the drug trade but because of information given to them by Charlie. They may have thought that he was a drug dealer but that was not so and he was entrapped into committing an offence which he would not otherwise have committed.
It is well established that a sentence may be significantly reduced in circumstances where the offence would not have been committed but for the activities of the agent provocateur: see also R v Jurkovic (1981) 6 ACrimR 215, R v C (1998-1999) 72 SASR 391. Although the offender in R v Romeo (1987) 45 SASR 212 could not be so described, his sentence was reduced because of “faint hallmarks of entrapment and incitement”: 224. White J expressed much the same view in R v Lianas (1988-1989) 50 SASR 461 at 464.
There was a substantial review of relevant authorities in R v Hani Taouk (1992-1993) 65 ACrimR 387 by Badgery-Parker J at 396. It may be seen from aspects of this review that it is well established that in cases of incitement or encouragement by police to commit a crime which would not otherwise have been committed by the offender, the sentence is significantly reduced for that reason alone. In Romeo White J acknowledged that the Court may express its disapproval of conduct of the prosecution when an entrapped offender is sentenced by reduction of the sentence: see also Johnston J at 239. In Taouk, Badgery-Parker J expressed the reason for the discount in the sentence as follows at 403:
“In several of these cases, there are hints that impropriety on the part of the police is the factor which leads to mitigation of sentence; but in my view that is not the substance of what the courts were saying. As it seems to me, the real thrust of the decisions is that even where the conduct of the police was regarded by the court as within the bounds of acceptable police procedures, nevertheless if there was a possibility that the offence might not have been committed had the police not in some way facilitated it, that might be regarded as a matter which diminished the culpability of the offender. In my view, the point at which, if at all, the court will intervene to mark its disapproval of conduct by police which goes beyond that which the community regards as acceptable is the point where an application is made to exclude evidence obtained by improper means. Such considerations have, in my view, little to do with sentencing where the fundamental task of the court is always to evaluate the criminality involved. The sentencing process is concerned with the level of culpability of the offender who, whether as a result of police incitement, inducement or encouragement or otherwise embarks upon criminal conduct. See also Dugan [1984] 2 NSWLR 554 where this Court rejected the submission that in a case where conduct by police facilitated but did not incite the commission of a crime, the sentence should be reduced to mark the court’s disapproval of the police conduct.”
I think these cases establish that where the police create the offence and incite or encourage a susceptible person who would not otherwise commit the offence, a significant reduction in sentence is required. Entrapment with those features does not require pressure to be applied by the police. Pressure to commit an offence will often be a factor in the sentencing process even when there is no involvement of the police. However, if the police entrap an offender in the sense I have mentioned and also apply pressure to him to commit the offence, further reduction in the sentence may be justified. The three factors of entrapment which I have mentioned were all present. The police created the offence and, through Charlie, incited or encouraged the appellant to become involved. He was susceptible to the incitement or encouragement and would not have committed the offence but for the conduct of the police.
Whilst the extent of reduction of sentence on the basis of entrapment by the police in individual cases does not establish a tariff or a precise sentencing standard, consideration of the cases indicates that in the absence of some contrary factor, significant reduction is not uncommon. In Romeo the sentence was reduced by 30 per cent. In R v McCann (1972) 56 CrAppR 359, the sentence was reduced by 50 per cent.
In my view, the learned Sentencing Judge erred in having only “limited regard” to the entrapment of the appellant by the police. Indeed, it may be seen that upon reducing a starting point of seven years to five years and three months because of the early plea of guilty and then fixing upon that sentence, there was no reduction on account of entrapment. I do not think this matter could have been considered when fixing the starting point of seven years. It may be said that the starting point for a “one off” sale of the drug known as ecstasy of seven years is high.
The entrapment of the appellant, in the circumstances, is of considerable importance as it diminishes the appellant’s culpability. In the sentencing process the learned Sentencing Judge was correct in regarding the offence as a serious breach of the criminal law, and that general deterrence was a significant factor in the sentencing process. Also, he correctly acknowledged that the appellant had time to reconsider offending. However, these matters cannot prevail entirely over the entrapment. All matters must be balanced against the circumstances in which the offence was committed.
In my view, the learned Sentencing Judge did not give due consideration to the entrapment by the police and, in the circumstances, the sentence is manifestly excessive.
The grounds of appeal are established and the sentence should be set aside. It is necessary to re-sentence the appellant. He had put his relatively minor offending behind him. He was living a law-abiding life. His wife and sister speak of his good character and the responsible manner in which he was living his life. The incitement or encouragement to commit the offence has had a most serious consequence for him. He has been in prison since 8 April 2003 which is a period of about 12 months. He has incurred a substantial debt of $23,000 with the supplier. Although that debt could not be enforced in law, he runs the risk of illegal enforcement by the supplier. Whilst I do not regard that matter as of great significance, it is a matter to which the learned Sentencing Judge had regard and we should also have regard.
I think a starting point of seven years is a little too high given the personal circumstances of the appellant and his conduct being a one-off offence.
The starting point in fixing the sentence should be six years. There should be a reduction of 25 per cent on account of the plea of guilty. I would further substantially reduce the sentence by eighteen months on account of the entrapment. Also, it may be accepted that the appellant has learned an important lesson from his offending. The testimonials from his wife and sister and his family circumstances suggest that he is unlikely to offend again. The head sentence should be two years and six months. The non-parole period should be 18 months.
I have given anxious consideration to suspending the sentence as the appellant has been in prison for about 12 months and he has good prospects of rehabilitation. Also, his imprisonment has a significant effect upon his family. Nevertheless the offence is a serious breach of the criminal law and there must be due consideration to general deterrence.
I would allow the appeal and set aside the sentence. I would sentence the appellant to imprisonment for two years and six months and fix a non-parole period of 18 months. The sentence and the non-parole period should commence from 8 April 2003.