R v Craciun - [2006] SASC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CRACIUN
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice Anderson)
24 February 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
The appellant pleaded guilty in the District Court to nine offences – six counts of selling heroin contrary to s 32(1)(c) of the Controlled Substances Act 1984 – two counts of possessing heroin for sale contrary to s 31(1)(e) of the Controlled Substances Act 1984 – one count of unlawful possession of money contrary to s 41 of the Summary Offences Act 1953 – convictions were entered on the basis of those pleas – single sentence of imprisonment imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 – head sentence of eight years – non-parole period of six years – on appeal the appellant claims that the sentence imposed was manifestly excessive – discussion of “manifestly excessive” – appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Mangelsdorf (1995) 66 SASR 60, applied.
R v Gjoka (Unreported, 1 July 1997, No. S6211), discussed.

R v CRACIUN
[2006] SASC 57
Court of Criminal Appeal: Doyle CJ, Besanko and Anderson JJ

DOYLE CJ: This is an appeal against sentence.
The appellant pleaded guilty to nine offences.
First, six counts of selling heroin. The maximum punishment for each of these offences is a sentence of imprisonment for 25 years or a fine of $200,000 or both.
Second, two counts of possessing heroin for sale. The maximum punishment for the first count is imprisonment for 25 years or a fine of $200,000 or both. The maximum punishment for the second count is imprisonment for life or a fine of $500,000 or both.
Third, one count of unlawful possession of money, namely $15,770 in cash. The maximum punishment for this offence is imprisonment for two years or a fine of $10,000 or both.
The Judge exercised the power under s 18A of the Criminal Law (Sentencing) Act 1988, and imposed a single sentence of imprisonment for eight years. But for the plea of guilty he would have imposed a sentence of nine years’ imprisonment. He fixed a non-parole period of six years. The head sentence and non-parole period were backdated to the date when Mr Craciun was taken into custody.
The appeal is on the ground that the sentence is manifestly excessive.
The first six counts involved sales of a relatively small amount of heroin to undercover police officers. On no occasion did the value of the sale exceed $200. The sales took place between 3 September 2004 and 20 September 2004.
When the police apprehended Mr Craciun on 20 September they searched him. They found in his possession two plastic bags containing 52 “deals” of heroin. The heroin weighed 12.05 grams and contained 3.12 grams of pure heroin. The street value of the heroin was about $5,200. This was the subject of the first possession for sale count.
The police then went to Mr Craciun’s home. There they found powder weighing 374.81 grams, containing 93.46 grams of pure heroin. Some of the heroin had been made up into deals, numbering 250. On my calculations the heroin could have been made into about 450 deals in all. The estimated value of the heroin, sold in small deals, was about $193,000. This was the subject of the second possession for sale count.
The final count related to cash that was found at Mr Craciun’s home. It is clear that this money was either the proceeds of sales, or was to be used to purchase further heroin for sale.
Before the sentencing Judge Mr Craciun claimed that he was selling the heroin on behalf of another person, earning only a fee of $50 per gram. He claimed that from the heroin at his home he would earn only $20,000.
The Judge rejected this submission based on the evidence before him. The Judge found that Mr Craciun was a major player and was acting to make a profit. He sentenced on the basis that Mr Craciun had been selling heroin for some time, although he could not say for how long. Mr Craciun himself admitted that he had been selling since at least June 2004. The Judge sentenced on the basis that this was “a serious ongoing commercial enterprise for profit”.
The Judge said, and I agree, that this was not merely simple street dealing. These were very serious offences. The Judge obviously meant that this was not a case of an addict making occasional sales to other addicts. This was a substantial and business-like operation.
These findings are not now challenged.
There is no dispute as to Mr Craciun’s personal circumstances, and the Judge sentenced on the basis of them. He was 53 years of age. He had come to Australia as a refugee from Romania. He had no relevant prior convictions. He had four children, one of whom committed suicide in 1996. This had had a serious impact on Mr Craciun, and after this he lost his will to work. He had never really recovered from his son’s suicide. Mr Craciun was himself a user of heroin.
Mr Craciun pleaded guilty at an early stage.
The Judge emphasised the evil of the heroin trade, and the need for the court to emphasise deterrence in arriving at a sentence. The Judge said that it was difficult to be lenient in relation to selling on the scale, and I agree with that observation.
Mr Edwardson, counsel for Mr Craciun, accepted that offences of selling heroin, or of possessing heroin for sale, against a background of involvement in dealing in heroin of a commercial nature, were likely to attract a head sentence in the range of five to seven years. That was what I said on behalf of this Court in R v Mangelsdorf (1995) 66 SASR 60. He also accepted that offences involving dealing on a commercial basis called for emphasis to be given to general deterrence.
However, he emphasised Mr Craciun’s personal circumstances, and the plea of guilty. He said that the Judge’s starting point of nine years’ imprisonment was too high.
I disagree.
It is convenient to repeat a point that I made in R v Gjoka (unreported, Court of Criminal Appeal, 1 July 1997, judgment no. S6211):
In Mangelsdorf (1995) 66 SASR 60 this Court considered the appropriate sentencing standard for certain drug offences. In my judgment I reviewed a number of decisions of this Court. In relation to trading in heroin in particular, I adhere to what I said there. I referred to a number of decisions which indicated that sentences in the range of 5 years’ to 7 years’ imprisonment could be expected for selling heroin or possessing heroin for sale, when those offences were committed against a background of involvement in commercial trading or dealing in heroin. I went on to say that like any standard, this standard was not to be applied inflexibly. While appropriate weight had to be given to the standard set by the court, it was for the sentencing judge to take into account all material matters. The standard was not, and was not intended to be, precise.
As I emphasised there, the range that I indicated in Mangelsdorf is not a precise standard.
It was open to the Judge to take the view that a heavier sentence was called for. The circumstances warranted this conclusion. Mr Craciun was selling in a very substantial way, and for a substantial profit. This was a serious case. It called for a heavy sentence.
In my opinion it cannot be said that a starting point of nine years was too high.
The reduction for the plea of guilty was relatively low but it was justified despite the early plea of guilty. The case against Mr Craciun was overwhelming. The fact that before the sentencing Judge he maintained a claim, that the Judge rejected, that he was a small player in the selling of heroin, casts doubt upon the extent of contrition and remorse on his part. He remained entitled to a reduction reflecting the fact that a trial was not necessary. However, in all of those circumstances the Judge was entitled to make a lesser reduction in the head sentence than is usual.
In any event, in the circumstances of the case a sentence of imprisonment for eight years is not manifestly excessive.
The non-parole period is a substantial one. It is a relatively high proportion of the head sentence. But in fixing a non-parole period considerations of deterrence still play a part, even though the non-parole period can be allowed to reflect the offender’s personal circumstances to a greater extent than is the case with the head sentence. There is no fixed relationship, and no benchmark. Consideration latitude must be allowed to a sentencing judge.
It was open to the Judge to take the view that a substantial non-parole period was called for, because there was a need to emphasise deterrence.
Over the ten years or so since the decision of this Court in Mangelsdorf this Court and sentencing Judges have said, time and again, that those who promote the trade in drugs and dealing in drugs can expect heavy penalties. Those who do so on a substantial scale can expect particularly heavy penalties. Mr Craciun falls into the latter category. Mr Craciun, and others like him, must face the fact that when they come before the Court the importance of deterrence will result in heavy sentences. For those reasons I would dismiss the appeal.
BESANKO J: I agree.
ANDERSON J: I agree.