R v Cramp
[2010] SASC 51
•5 March 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CRAMP
[2010] SASC 51
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Kourakis)
5 March 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
Appellant pleaded guilty to drug offences charged on two separate informations - judge imposed separate sentence on each information, to be served consecutively - complains that in arriving at sentence, judge did not reduce head sentence on account of principle of totality - also complains of errors apparent on the face of the sentencing remarks and that insufficient credit was given for guilty plea on second information.
Held: no error in failing to reduce sentence on ground of totality - fair reading of the remarks does not suggest error - discount for guilty pleas within sentencing judge's discretion - appeal dismissed.
Observations by Kourakis J as to the classification of amphetamine as a "middle-range" drug.
Controlled Substances Act 1984 s 32(3) (as amended), s 32(1)(a) (repealed), s 32(1)(3) (repealed), s 32(5)B(a)(iii) (repealed), s 32(5)B(b)(ii) (repealed); Criminal Law (Sentencing) Act 1988 s 6(b), s 18A, referred to.
R v Martin [2009] SASC 26; R v Rocco (1984) 37 SASR 515; R v Rossi (1988) 142 LSJS 451; R v White (1981) 28 SASR 9, applied.
R v B, RWK (2005) 91 SASR 200; R v Becker (2005) 91 SASR 498; R v Beresford (1972) 2 SASR 446; R v Bruce & Hollick (1998) 71 SASR 536; R v Cronn (1983) 34 SASR 555; R v E, AD (2005) 93 SASR 20; R v Faulkner (1972) 56 Cr App R 594; R v Ford (2009) 100 SASR 94; R v Holder: R v Johnston [1983] 3 NSWLR 245; Jarvis v The Queen (1993) 20 WAR 201; R v Major (1998) 70 SASR 488; R v Mangelsdorf (1995) 66 SASR 60; R v Olbrich (1999) 199 CLR 270; R v Randall-Smith & Davi (2008) 100 SASR 326; R v Sladic (2005) 92 SASR 36; R v Stevens [2008] SASC 170; R v Symonds [1999] SASC 217, considered.
R v CRAMP
[2010] SASC 51Court of Criminal Appeal: Vanstone, Anderson and Kourakis JJ
VANSTONE J: In my view this appeal should be dismissed.
The facts relating to the sentence and the manner of approach of the learned sentencing judge are comprehensively set out in the reasons of Kourakis J, which I have had the benefit of reading. I find nothing of any substance in any of the complaints made in support of the ground that the sentence was manifestly excessive. In two instances they amount to focussing on a particular word used by the judge in the course of his sentencing remarks and reading it literally and out of context, so as to load it with a particular meaning said to imply error. A fair reading of the remarks does not suggest error. The other two complaints rest on an assertion that, although the judge correctly referred to relevant sentencing principle, he did not apply it in a way more beneficial to the appellant.
As can be seen, the appeal rested on very specific complaints that were argued in a confined and concise manner. The first two complaints raise a matter of interpretation only. The third and fourth suggested errors involve the application of well established principles to the facts giving rise to the exercise of sentencing discretion. For these reasons I prefer to decide this matter on a narrow basis.
The appellant pleaded guilty to offences charged on two separate informations. The first information contained seven counts occurring on the same day in August 2007, namely producing cannabis, possessing cannabis for sale, possessing ecstasy for sale (two counts), possessing methylamphetamine for sale (two counts) and possessing LSD for sale. The latter five offences carried a maximum penalty of a fine of $200,000 or 25 years imprisonment, or both.
The second information charged two offences occurring in September 2008, being trafficking in methylamphetamine and trafficking in LSD. These offences attracted a lower maximum penalty, namely a fine of $50,000 or 10 years imprisonment or both. The difference in the manner of charging reflected changes to the relevant Controlled Substances Act 1984 provisions occurring between the two occasions.
The judge utilised s 18A Criminal Law (Sentencing) Act 1988 to impose one sentence with respect to each information. The sentence imposed on the first group of offences was imprisonment for five years and four months. Eight months, or about 11 per cent, of the head sentence had been deducted for the pleas, which were entered on what was to be the trial date. The sentence on the second information was three years and two months. That was reached after a discount of 10 months, or about 21 per cent, for the pleas, which were entered upon the appellant’s first arraignment on this information. The judge ordered the two sentences to run consecutively and fixed a non-parole period of five years and two months to start from the day the appellant was taken into custody.
The first complaint focused on the judge’s use of the word “replica” in the course of his remarks. Having set out the nature of the offending at the outset of his remarks the judge dealt with matters personal to the appellant. A little later he said:
It has been put to me that in setting the non-parole period I should bear in mind the difficulties associated with your daughter and the part that you can play in being with her during her formative years. While I take that into account as part of the overall personal circumstances, I must also put into the balance the detriment to her welfare and the reduced effectiveness as a parent and role model flowing from your replica crimes only a matter of months ago.
The appellant asserts that the use of the word “replica” discloses a flawed approach to the sentencing. The earlier crimes were both more numerous and mostly attracted a higher maximum penalty. The later offences were said to be committed in circumstances of less seriousness, the appellant claiming to be holding the drugs so that some other person (unnamed) could sell them. It was argued that, having regard to these two factors, the word “replica” was such as to imply a misunderstanding of the true position.
The judge did not refer to the maximum penalties which applied. In my view there is no reason to think that he did not acquaint himself with them. The factual basis put forward by the appellant in relation to the second pair of offences was adverted to by the judge earlier in his remarks. Plainly he did not overlook that submission. The expression “replica crimes” was used in the context of referring to the difficulties which imprisonment of the appellant would cause for his daughter and the limited weight which could be given that circumstance, having regard to the appellant’s defiance in continuing to offend, even while he was awaiting trial in the District Court on the first group of offences. Like the sentencing judge, I see the appellant’s conduct in reoffending in these circumstances as being of greater significance than either the lesser number of subsequent offences or the arguably less serious circumstances in which they occurred. I consider the sentence imposed for the later offences was within the available range.
The next matter relates to the judge’s use of the word “serious” in reference to the appellant’s offending history. He said:
You are 34 and have a number of prior offences, mainly road traffic offences but some of them are serious, involving excessive blood alcohol leading to licence disqualifications. With the exception of a comparatively minor offence in 1995 of possessing equipment to administer cannabis for which you were fined $50, there is nothing similar to the present offending.
I agree with the judge’s assessment. Drink driving offences are serious examples of traffic offences. The judge said no more than that.
The next complaint is that, having considered the totality principle in respect of the total sentence of eight and a half years, no reduction was made to that term.
Whether the sentence could be considered to be “crushing” or, more than just and appropriate for the criminal conduct under consideration, was very much a matter for the sentencing judge. As I said, the judge had used s 18A Sentencing Act for the two sets of offences. The exercise had not been unduly mathematical. The number of offences were not great. In my view the judge was correct in deciding against reducing the sentences on account of totality.
The fourth complaint is that insufficient discount was given for the early pleas to the 2008 offences. As seen, the judge allowed a discount of about 21 per cent for those pleas. There is no norm. An area of discretion is reserved to the sentencing judge. A discount of that magnitude was well within the area of discretion reserved to the judge. The case against the appellant was strong. Again, the fact that the appellant had been on bail for similar offences at the time of the offending was relevant to contrition.
The sentence is not shown to be affected by error and nor is it manifestly excessive.
The appeal should be dismissed.
ANDERSON J. In my view the matters raised on the appeal are without merit. Like Vanstone J I would prefer to decide this matter on a narrow basis. I agree with Her Honour’s reasons and I would dismiss the appeal.
KOURAKIS J: This is an appeal against sentence. The appellant pleaded guilty to nine drug related offences in the District Court. The first seven offences were committed on 23 August 2007. On that day, police attended at the appellant’s home and found the following store of illicit drugs: eight cannabis plants, 1.86 kg of cannabis, 1,260 tablets containing a total of 72 g of ecstasy, 27.7 g of powder containing 16 g of methylamphetamine, 931 paper squares containing 0.0078 g of lysergide (LSD), 103 g of paste containing 18 g of methylamphetamine and 122 tablets containing 7.2 g of ecstasy. The appellant was charged with one count of producing cannabis[1] and a further six counts of possessing those other drugs for sale.[2] On 17 March 2008, the appellant was arraigned in the District Court and entered pleas of not guilty. The trial of those charges was listed to be heard on 8 December 2008. I shall refer to the seven offences committed on 23 August 2007 as the “2007 offences”.
[1] Controlled Substances Act 1984 s 32(1)(a) (repealed by Controlled Substances (Serious Drug Offences) Amendment Act 2005 s 14). Section 32(1), as it was from 2 April 2006 to 2 December 2007, stated:
[2] Controlled Substances Act 1984 s 32(1)(e) (repealed). See above n 1.
The next two offences were committed on 25 September 2008 while the appellant was on bail awaiting trial for the 2007 offences. Police attended at the appellant’s home and found a brown substance weighing 26.2 g which contained 12.4 g of methylamphetamine in the pocket of his track pants. They also found a resealable snap plastic bag holding 235 paper squares which contained a total of 0.0090 g of LSD. As a result, the appellant was charged with two counts of trafficking in a controlled drug.[3] I shall refer to the two offences committed on 25 September 2008 as the “2008 offences”.
[3] Controlled Substances Act 1984 s 32(3) (as amended by Controlled Substances (Serious Drug Offences) Amendment Act 2005 s 14). Section 32, as it was from 1 July 2008 and remains now, states:
32—Trafficking
(1)A person who traffics in a large commercial quantity of a controlled drug is guilty of an offence.
Maximum penalty: $500 000 or imprisonment for life, or both.
(2)A person who traffics in a commercial quantity of a controlled drug is guilty of an offence.
Maximum penalty: $200 000 or imprisonment for 25 years, or both.
(3)A person who traffics in a controlled drug is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
The appellant changed his plea to guilty in relation to the 2007 offences on the first day of the trial, 8 December 2008. He was remanded on continuing bail for sentencing submissions. On 30 March 2009, the appellant was arraigned on an information charging the 2008 offences and pleaded guilty to them. He was later sentenced by the Chief Judge for all nine offences on 5 June 2009. His Honour imposed two separate sentences for each of the two sets of offences; they were a sentence of five years and four months imprisonment for the 2007 offences and a sentence of three years and two months for the 2008 offences. The second sentence was cumulative upon the first. The Chief Judge would have imposed sentences of six years and four years respectively were it not for the appellant’s guilty pleas, giving him reductions of approximately 11 per cent for the 2007 offences and 21 per cent for the 2008 offences. The total head sentence was eight years and six months imprisonment for which a non-parole period of five years and two months was fixed.
The appellant appeals the head sentence and the non-parole period on the ground that they are both manifestly excessive. He also argues that the Chief Judge made four broad errors in sentencing him. First, the appellant contends that the Chief Judge sentenced the appellant for the 2008 offences as if they were “replicas” of the 2007 offences, even though the 2007 offences were offences of possession for sale and the 2008 offences were offences of trafficking in drugs. The appellant contends that the Chief Judge erred by failing to take into account the lesser criminality of the 2008 offences and that the applicable maximum penalty was lower than in the case of the 2007 offences. Secondly, the appellant contends that the Chief Judge erred in finding that the appellant’s prior traffic convictions were “serious” and in failing to treat the appellant as if he was essentially a first-time offender. Thirdly, the appellant contends that the Chief Judge erred in finding that the principle of totality did not call for adjustment in the sentences imposed having regard to the fact that the penalty imposed for the 2008 offences was cumulative upon the sentence imposed for the 2007 offences. Finally, the appellant contends that the Chief Judge failed to offer a sufficient discount for the appellant’s early guilty plea for the 2008 offences.
For the reasons that follow, I would dismiss the appeal. In summary, I am of the view that the Chief Judge’s reference to “replica” offences is a reference to the broad nature of the conduct in each case which offended the statutory prohibition against trading in drugs notwithstanding a statutory amendment in the form in which the prohibition was expressed between the commission of both sets of offences. The Chief Judge expressly referred to the factual differences between the offences; the mere failure to expressly refer to the different maximum penalties does not, in the circumstances of this case, support an inference that the Chief Judge sentenced by reference to a mistaken view of the applicable penalties.
In my view the head sentences were not manifestly excessive having regard to the appellant’s persistent involvement, at a relatively high level, in the drug trade.
The Chief Judge correctly described the appellant’s prior convictions, which were driving with excess alcohol and whilst under disqualification, as serious examples of traffic convictions, but he did not give the convictions any disproportionate weight or otherwise err in the way in which he took the convictions into account.
The reduction of about 21 per cent from the notional sentence proposed for the 2008 offences was not unreasonable having regard to the obvious expediency in the course taken by the appellant after his arrest.
Finally, in my view the Chief Judge did not fail to review the totality of the cumulative sentences he had imposed. He expressly turned his mind to the issue and determined that no adjustment was necessary; he was correct to do so.
The sentencing remarks
After referring to the factual circumstances of the offences and the appellant’s antecedents, the Chief Judge said:
As is clear from what I have said, this is very serious offending and there must be custodial sentences. It has been put to me that in setting the non-parole period I should bear in mind the difficulties associated with your daughter and the part that you can play in being with her during her formative years. While I take that into account as part of the overall personal circumstances, I must also put into the balance the detriment to her welfare and the reduced effectiveness as a parent and role model flowing from your replica crimes only a matter of months ago.
Dealing first with the seven counts in file 254/2008, to cover all seven offences, were it not for your plea of guilty I would have sentenced you to six years in prison, but after taking that into account your sentence is five years and four months.
I turn to the counts in file 430/2009. Once again, this was a single course of conduct and it is appropriate to impose a single penalty to cover both counts. In this case, the plea of guilty was entered at the earliest reasonable opportunity but I also take into account that the case against you was strong. Were it not for your plea of guilty, I would have sentenced you to four years in prison, but after taking that into account, your sentence is three years and two months.
These were separate incursions into crime and therefore, on the face of it, the sentences should be cumulative. That would produce a total effective head sentence of eight years, six months. In my opinion, the principles of totality do not call for any adjustment.
You have been in custody since I revoked bail on 26 May 2009. I order that the sentence on the seven counts committed on 23 August 2007 be backdated and deemed to have commenced on 26 May 2009. (emphasis added)
Appeal grounds relating to “identical” offences and maximum penalties
The appellant’s submissions that the Chief Judge treated the 2007 offences and 2008 offences as identical and subject to the same maximum penalty is founded on the reference in the sentencing remarks to “your replica crimes”.
However, as the appellant’s outline itself observes, the reference to replica crimes was first made by the Chief Judge in the course of a short hearing when the 2008 offences first came before him and before he was informed of the factual basis on which the appellant pleaded to those offences. The 2008 offences were committed whilst the appellant was on bail for the 2007 offences. For that reason they were brought before the Chief Judge so that he could sentence on them at the same time as sentencing the appellant on the 2007 offences. On that occasion the following exchange took place:
Chief Judge: The really serious issue, isn’t it, is that, while your client was appearing in this court waiting for trial, he committed the second set of offences, which are a replica of the first ones? That’s only a few months ago.
Mr Caldicott: Yes. It is extremely serious. He was asked to hold on to these drugs by the person … what has happened is that he was asked by persons who he had been involved with in the first lot of drugs to look after the drugs which were located at his house. He did so.
In context, it is quite clear that by using the word “replica” in that passage the Chief Judge did not mean that the circumstances of the offences were identical. The word “replica” was a reference to the amendment made to s 32 of the Controlled Substances Act 1984, which had come into operation after the commission of the 2007 offences but before the commission of the 2008 offences. At the time that the 2007 offences were committed, s 32(1)(e) created the offence of possessing a prohibited substance for sale.[4] When the 2008 offences were committed, s 32 had been amended to prohibit trafficking in a controlled drug.[5] The use of the word “replica” was meant to convey no more than that the offence of trafficking in a controlled drug was a replica of the former offence of possessing a prohibited substance for sale.
[4] Controlled Substances Act 1984 s 32(1)(e) (repealed). See above n 1.
[5] Controlled Substances Act 1984 s 32(3) (as amended). See above n 3.
The Chief Judge used the word “replica” in his sentencing remarks in the same sense. It could hardly be otherwise. The Chief Judge expressly referred to the different factual circumstances of the 2007 and 2008 offences which had been put by the appellant’s counsel.
The Chief Judge said of the 2008 offences:
With regard to the offences committed in September 2008 the reason put forward is that you were asked by people, with whom you had been involved in the first lot of offences, to look after these drugs at your house. Again, that can be no excuse for your part in trafficking. That is all the more so when at that very time you were on bail and appearing from time to time in this Court in relation to the first set of offences for which you were awaiting trial. Committing those offences whilst on bail for the other charges is an aggravating factor and that will be reflected in the penalty. What you did showed a blatant disregard for the law.
In my view the Chief Judge did not, in that passage, reject the factual basis put by the appellant’s counsel even though he would have been quite entitled to do so; it was, in all of the circumstances, quite improbable. The amphetamine was found in a pocket of the appellant’s track pants which were found strewn on his bedroom floor when police raided his home early in the morning. The LSD was found in a bag, also in his bedroom. If the appellant’s account were true, I would have expected him to take more care to safeguard the drugs which he had been persuaded to store. I acknowledge that the Chief Judge did not positively accept the appellant’s account as a basis for mitigating the sentence which would otherwise be appropriate. For the same reasons I have just given, the Chief Judge was not bound to do so.[6]
[6] R v Olbrich (1999) 199 CLR 270.
In my view the Chief Judge was doing no more than expressing the view that, whether it was accepted or not, the factual basis proffered by the appellant did not, in his particular circumstances, make the 2008 offences significantly less serious than the 2007 offences. Where an offence of trafficking is committed by storing drugs for the principal vendor because he or she has exploited some weakness or vulnerability on the part of an offender who is not otherwise involved in trafficking in commercial quantities, the “warehousing” of the drug may be relatively less serious. However, different considerations apply where, at another time, the offender has himself also participated in the commercial drug trade as a vendor of substantial quantities of drugs and there is no satisfactory explanation for his willingness to warehouse drugs for others. In those circumstances, far from showing a low level involvement in the drug trade, storing the drugs may show that the offender continues to play a significant role in the marketplace.
The Chief Judge did not expressly refer to the difference in the maximum penalties applicable to the two sets of offences. The maximum penalty for producing cannabis was $2,000 or imprisonment for two years or both.[7] The maximum penalty for the offence of possessing 1.86 kilograms of cannabis was $2,000 or imprisonment for two years.[8] The maximum penalty for the remainder of the offences of possessing illicit drugs for sale was $200,000 or imprisonment for 25 years or both on each count.[9] In contrast, the maximum penalty for the 2008 offences of trafficking is $50,000 or imprisonment for 10 years or both on each count.[10]
[7] Controlled Substances Act 1984 s 32(5)B(a)(iii) (repealed). See above n 1.
[8] Ibid.
[9] Controlled Substances Act 1984 s 32(5)B(b)(ii) (repealed). See above n 1.
[10] Controlled Substances Act 1984 s 32(3) (as amended). See above n 3.
If the 2008 offences had been committed at the time of the 2007 offences, they would have been categorised as offences of possessing illicit drugs for sale and would have had a maximum penalty of $200,000 or imprisonment for 25 years or both on each count. The effective reduction in the maximum penalty applicable to trafficking in drugs in the quantities involved in the 2008 offences does not indicate any significant relaxation of the seriousness with which the parliament regards drug trafficking. The primary purpose of the threefold gradation of maximum penalties introduced by the amendments to s 32 of the Controlled Substances Act 1984[11] is to increase penalties for trafficking in the prescribed quantities by dragging the starting point for the commercial quantities closer to the maximum penalty applicable to the immediately preceding category. In those circumstances, the principle of parity will not allow any significant change in the appropriate penalty range for quantities below the “commercial quantity”, notwithstanding the lesser maximum now applicable to them.
[11] Controlled Substances (Serious Drug Offences) Amendment Act 2005 s 14, which commenced on 3 December 2007.
In any event I am not persuaded that the mere failure to refer to the maximum penalty shows that the Chief Judge had not properly informed himself of the maximum penalties applicable to the 2008 offences.
The appellant’s prior convictions
The appellant has a number of prior convictions for minor traffic offences and three convictions for Driving with Excess Blood Alcohol. For each of those three convictions, the appellant was fined and his licence disqualified. The Chief Judge described these three particular prior convictions as “serious”. The appellant also has a prior conviction for possessing equipment to administer cannabis, for which he was fined $50. Although the Chief Judge referred to the appellant’s prior convictions, His Honour noted that they contained “nothing similar to the present offending”.
The appellant submitted that the Chief Judge erred in finding that his antecedent criminal history included some matters which, in the context of the offences for which the appellant was being sentenced, were “serious”. Counsel for the Director of Public Prosecutions replied that the Chief Judge was merely drawing a distinction between the three offences which were serious types of traffic offences and the other minor traffic offences committed by the appellant. Counsel for the appellant accepted that the Chief Judge’s remarks could be so understood.
The contention of the Director of Public Prosecution should be accepted. The offences which involved excessive blood alcohol leading to licence disqualifications are “serious” traffic offences. However, the Chief Judge was not suggesting that the convictions were “serious” matters that should be accorded substantial weight for the purposes of sentencing. The Chief Judge did no more than distinguish between the appellant’s prior convictions for minor traffic offences and those traffic offences involving excessive blood alcohol which led to fines and licence disqualifications.
The appellant also submitted that the Chief Judge erred in failing to treat the appellant as if he was essentially a first-time offender. Although strictly speaking the appellant was not a first-time offender, it is true that in sentencing a defendant with an antecedent criminal history a sentencing Judge should not give much weight to “offences that are not, viewed broadly, of the same kind and of about the same order of gravity as the offence or offences for which the convictions have been recorded”.[12] However, in the present case the Chief Judge’s remarks do not disclose any indication that the appellant was denied the leniency afforded to a first-time offender or that the appellant’s antecedent criminal history was otherwise erroneously treated.
[12] R v White (1981) 28 SASR 9 at 11-12 per Wells J, with whom White and Mohr JJ agreed.
Moreover, in the circumstances of this case the very nature of the offending of necessity limited the weight that could be given to the appellant’s generally favourable antecedents. The possession in 2007 of the range and quality of drugs with which the appellant was charged must have been preceded by a calculated decision to participate in the illicit drug trade and the taking of many steps over a period of time to procure the drugs and establish some capacity to distribute them.
Reduction for early guilty plea to the 2008 offences
The appellant pleaded guilty to the 2008 offences when he was arraigned on 30 March 2009. As mentioned above, for these offences the Chief Judge imposed a head sentence of three years and two months, which was a reduction of approximately 21 per cent from the four year head sentence which his Honour would have imposed on the appellant without the guilty pleas. The appellant complains that the Chief Judge failed to apply a sufficient discount for his cooperation in the expeditious disposition of the 2008 offences; he had instructed his solicitor that he intended to plead guilty to the charges before he was arraigned and then did plead guilty on his first arraignment in the District Court.
It is true that, in pleading guilty to the 2008 offences in the District Court on his first arraignment, the appellant took a course which expedited the disposition of the information on which he was charged. Although the appellant had earlier indicated his intention to plead guilty at the arraignment in the District Court, it must be kept in mind that until the arraignment the appellant could have changed his mind; he did not plead guilty in the Magistrates Court. Moreover, the guilty plea was intimated only after the declarations were provided and after he had pleaded guilty on the first day of the hearing of the 2007 offences. The strength of the prosecution case against the appellant was also a relevant factor which militated against a substantial reduction of his sentence.[13] The amphetamine was found in the appellant’s track pants and the LSD located in a bag on the floor of his bedroom. The only other resident seen by police at the time of the search was the appellant’s 14 year old daughter.
[13] R v Martin [2009] SASC 26 at [26] per Kelly J, with whom Anderson and White JJ agreed.
In these circumstances, I am satisfied that a reduction of the appellant’s notional sentence for the 2008 offences of about 21 per cent was well within the appropriate range and was certainly not an unreasonable exercise of the Chief Judge’s discretion.
The principle of totality
The appellant next argues that the Chief Judge erred in finding that the principle of totality did not call for any adjustment in the sentences, in failing to provide any reasons for his conclusion and in imposing a crushing sentence upon the appellant.
Counsel for the appellant submitted that his Honour erred in failing to reduce the sentence having regard to his determination to impose cumulative sentences, his determination to take into account the aggravating factor that the 2008 offences were committed whilst the appellant was on bail and his proposal to give less than a full discount for the pleas of guilty which had been entered by the appellant, especially for the 2008 offences. The appellant contended that the Chief Judge ought to have stepped back and considered whether the combined cumulative penalty should have been adjusted so as not to constitute a crushing sentence having regard to the appellant’s personal circumstances. Those circumstances included the fact that the appellant was essentially a first-time offender, that his motivation for offending was to ensure that his daughter was properly cared for and his prospects for rehabilitation. Finally, counsel for the appellant submitted that the conclusion that the Chief Judge so erred is strengthened by the fact that his Honour was mistaken about the maximum penalty applicable to the 2008 offences.
Counsel for the Director of Public Prosecutions conceded that the total sentence imposed was severe, but submitted that the sentence was a just and appropriate measure of the total criminality involved in this very serious offending.
Much of the appellant’s argument in relation to the totality ground is contingent upon favourable findings on the other grounds. I have already found that the Chief Judge did not err in reducing by about 21 per cent the sentence imposed on the appellant for his guilty plea to the 2008 offences (see [43]-[45] above), in the way in which his Honour took into account the appellant’s antecedents (see [38]-[42] above), and in his Honour’s consideration of the maximum penalty applicable to the 2008 offences (see [28]-[37] above). These findings reduce the strength of the appellant’s argument that the Chief Judge should have reduced the total penalty.
The totality principle addresses two related, but not identical, aspects of sentencing elements. In R v E, AD,[14] Doyle CJ made the following observation:
The totality principle has been stated in terms that reflect slightly different aspects. The first aspect is that when an offender is sentenced for a number of offences, the court must ensure that ‘the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved’: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 (McHugh J). The other aspect is that sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all of those sentences will become so ‘crushing’ as to call for some reduction in the aggregate: see King CJ in R v Rossi (1988) 142 LSJS 451, cited by McHugh J in Postiglione (at 308). I refer also to the remarks of Kirby J on this point in Postiglione (at 340-341). As these statements of the principle indicate, it is a general principle that requires the court to assess the overall criminality involved, and to do so by reference to the aggregate sentence to be imposed.[15]
[14] (2005) 93 SASR 20.
[15] R v E, AD (2005) 93 SASR 20 at 29-30 [37] per Doyle CJ. See also R v Roberts [2006] SASC 25 at [24] per Anderson J.
The second aspect, the prescription against imposing a crushing sentence, reflects the need to promote rehabilitation. Where there are reasonable prospects of rehabilitation, and the requirements of punishment and deterrence otherwise allow, care should be taken not to impose a sentence which leaves the offender in a state of despair in which he abandons any inclination to reform. Where there are prospects of rehabilitation, a sentence that destroys any real capacity for the offender to reform should not be imposed unless the protection of the community demands it.[16]
[16] In Jarvis v The Queen (1993) 20 WAR 201 at 205F, Ipp J said:
When is a sentence to be regarded as ‘crushing’ and when is ‘enough’ to be regarded as ‘enough’? It is sometimes said that a sentence falls into this category when it leaves the offender with no hope for the future; or when it would provoke a feeling of hopelessness in the defendant if and when he is released; or where it destroys a reasonable expectation of useful life after release: see Fox and Freiberg, Sentencing, State and Federal Law in Victoria (1985).
In my respectful view, it is the “crushing” aspect of the principle of totality that King CJ addressed in the following passages in R v Rossi:[17]
There can be no complaint, therefore, to my mind, in principle about the judge’s decision to make the sentences cumulative. The problem in the case is that the result of the three cumulative sentences for the offences of armed robbery in addition to the unexpired portion of the previous sentence, is that the head sentence becomes a very long head sentence, almost 30 years, so long indeed as to be properly characterised as a crushing head sentence.
There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentence is merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by reducing the total effect. …
One consequence of the order that was made by the learned sentencing judge is that if the non-parole period of 15 years is reduced by reason of good behaviour remissions to 10 years, the appellant would be subject to parole for a period of 20 years. I think that that is an undesirably long period of parole, so long indeed as to be unacceptable.
In my opinion, therefore, this Court ought to intervene to reduce the total effect of the sentences which the Judge has imposed. …
As I have said, I think that the appellant has thoroughly deserved the cumulative sentences which were imposed upon him and it is only because in the circumstances the total result would be unreasonable that I am disposed to make the adjustment which I have suggested.[18]
[17] (1988) 142 LSJS 451.
[18] R v Rossi (1988) 142 LSJS 451 at 452-3 per King CJ, with whom Jacobs and Cox JJ agreed.
In R v B, RWK,[19] Doyle CJ explained why this aspect of the totality principle will rarely result in the reduction of an otherwise appropriate sentence:
In the course of submissions counsel for the appellant invoked the totality principle. There is no substance at all in that submission. The sentence in question cannot be regarded as a crushing sentence. That is often an indicator that a sentence should be reduced by applying the totality principle. The totality principle cannot be invoked as there is a tendency to do, as a routine argument for a further reduction in what is otherwise an appropriate sentence. The totality principle is one that will apply in relatively infrequent circumstances.[20]
[19] (2005) 91 SASR 200.
[20] R v B, RWK (2005) 91 SASR 200 at 203 [16] per Doyle CJ, with whom Duggan J agreed. See also R v E, AD (2005) 93 SASR 20 at 30 [38] per Doyle CJ.
A sentence of eight years and six months with a non-parole period of five years and two months imposed on a man in the appellant’s circumstances cannot be said to be crushing in the sense explained by the passages I have just cited. The sentence leaves much scope for rehabilitation and it is well within the appellant’s capacity to resolve to use it to reform himself.
The first of the aspects of the totality principle referred to by Doyle CJ in R v E, AD was explained by Street CJ in these terms in R v Holder:[21]
The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight forward arthrimetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences, and having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.[22]
I shall refer to this aspect of the totality principle as the “overall review” principle.[23]
[21] R v Holder; R v Johnston [1983] 3 NSWLR 245.
[22] R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260C-D per Street CJ, with whom O’Brien CJ of Cr D agreed. See also R v Gordon (1994) 71 A Crim R 459 at 466 per Hunt CJ at CL, with whom McInerney and Sully JJ agreed. See also Postiglione v The Queen (1996-1997) 189 CLR 295 at 308 per McHugh J.
[23] In Reg v Faulkner (1972) 56 Cr App R 594 at 596, Lord Widgery CJ said:
At the end of the day, as one always must, one looks at the totality and asks whether it was too much.
This passage was referred to with approval in R v Knight (1981) 26 SASR 573 at 576 by Walters, Zelling and Williams JJ, their Honours erroneously attributing the passage to Lord Parker, who immediately preceded Lord Widgery as Lord Chief Justice.
As Vanstone J observed in R v B, RWK, the overall review principle can have no sensible application where a sentencing Judge utilises s 18A of the Criminal Law (Sentencing) Act 1988 without ascribing “notional sentences” to the individual offences for which an offender is to be sentenced. Vanstone J explained:
In my view it is implicit in the selection by the Judge of a sentence of seven years imprisonment that he took into account the notion of totality. After all, it is the accumulation of separate sentences which can give rise to the vice to which the totality principle is directed. When such a process is not followed and specific punishments are not ‘totted up to make a total’, the ‘synthesis’ of factors should result in an appropriate sentence.[24] (emphasis in original)
[24] R v B, RWK (2005) 91 SASR 200 at 205 [24]. See also R v M, REM [2008] SASC 348 at [32] per White J, with whom Anderson and Kelly JJ agreed; R v Tran [2009] SASC 341at [43] per Anderson J, with whom Bleby and White JJ agreed; but compare R v Bartel [2008] SASC 289 at [9] and [17] per Gray, Sulan and David JJ.
Those observations do not, of course, detract from the obvious utility, in many cases, of explaining how the single sentence imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 is arrived at by reference to the individual sentences which would otherwise have been imposed.[25] The offender and the community which brings the prosecution are entitled to know how the criminality of the individual offences were evaluated and the relative contribution they made to the sentence.[26]
[25] R v Major (1998) 70 SASR 488 at 490 per Doyle CJ, at 497 per Olsson J; R v Symonds [1999] SASC 217 at [21]-[22] per Doyle CJ, with whom Prior and Mullighan JJ agreed.
[26] R v Randall-Smith (2008) 100 SASR 326 at 331-2 [23] per Doyle CJ.
The rationale for the occasional reduction of the sum of accumulated sentences after an overall review was explained by Ipp J in Jarvis v The Queen[27] in this way:
What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of seven years may be appropriate for one set of crimes and a sentence of eight years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved simply because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison.[28]
[27] (1998) 20 WAR 201.
[28] Jarvis v The Queen (1993) 20 WAR 201 at 207B-D per Ipp J, approved in Herbert v The Queen (2003) 27 WAR 330.
I would only add that just as the severity of a fixed period of imprisonment is greater if by the time the prisoner commences to serve it he has already been imprisoned for a significant term, so too the period of imprisonment necessary to deter an offender from recidivism is reduced if that imprisonment is to commence only after he has served an earlier sentence.
Of course, a sentencing Judge may adjust downward a sentence which is to be made cumulative on another to address the more severe effect that it will have as a cumulative sentence.[29]
[29] If this approach were to be followed, it would rarely be necessary to make large reductions to the total of cumulative sentences. The artificiality (see R v Symonds [1999] SASC 217; R v Randall-Smith (2008) 100 SASR 326; R v Bartel [2008] SASC 259) of making such reductions to unrealistically long cumulative sentences is largely the product of accumulating several single sentences without prior adjustment for guilty pleas and other matters which would adjust the cumulative sentences downward.
It does not follow, therefore, that a reduction will always be necessary where cumulative sentences are imposed. In some cases the persistent offending may require greater punishment and for that reason too no downward reduction will be necessary after conducting the overall review. The application of the totality principle cannot be allowed to lead to a position where, in effect, offenders receive a “bulk discount”.[30] All that is required is that the sentencing Judge considers whether the sum of the sentences imposed is disproportionate to the criminality of the underlying offences. If the individual sentences have been framed so that the accumulation does not result in any disproportion, there need not be any reduction.
[30] R v Bruce and Hollick (1998) 71 SASR 536 at 541 per Doyle CJ, with whom Prior and Lander JJ agreed.
It is appropriate to repeat the explanations of the limited role the totality principle plays given by Doyle CJ in R v E, AD:
In recent times there has been a tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.[31]
[31] R v E, AD (2005) 93 SASR 20 at 31 [38] per Doyle CJ.
The Chief Judge did all that he was required to by turning his mind to the principle and reasonably deciding that no adjustment was necessary. No adjustment was necessary because, for the reasons I am about to give, the sentence justly reflected the overall criminality of the appellant’s offending.
Manifestly excessive
I accept that the gradation of penalty by reference to quantity necessarily implies that the quantity, and the hierarchical “classification” of the drug which is trafficked, must play a significant part in fixing the particular sentence. However, the particular quantity found on the offender when he or she is arrested is not the only indicator of the degree of their criminal involvement in the drug trade. In R v Rocco,[32] White J observed that it was quite fortuitous whether the street trader is detected early in the week when he has a larger quantity or late in the week when his stock is depleted; the penalty for street traders will not ordinarily fluctuate with the trading cycle.[33] I see no reason in principle why similar reasoning should not apply at higher levels of the marketing hierarchy.
[32] (1984) 37 SASR 515.
[33] R v Rocco (1984) 37 SASR 515 at 517.
The quantities involved in the 2008 offences, although smaller than the quantities involved in the 2007 offences, suggest an involvement at the same level; in 2008 the appellant had 235 squares of LSD alone and there was sufficient methamphetamine to separate into a similar number of street deals. The quantities involved and the appellant’s personal circumstances render it improbable that he was selling single street deals. Moreover, the very explanation offered by the appellant – that he had been asked to store the drugs for those who had supplied him with the larger quantities involved in the 2007 offences – suggests that by storing the drugs he was participating at a relatively high level of the drug distribution network.
Importantly, the 2008 offences were committed whilst the appellant was on bail awaiting his trial on the 2007 offences. His continuing involvement in the drug trade while on bail called for a higher level of personal deterrence.
It can be accepted that the sentence for the 2008 offences is a relatively high proportion of the maximum given the quantities involved and the presently accepted classification of amphetamines and LSD as “middle range” drugs. However, the appellant was trafficking in two quite different drugs; cumulative or at least partly overlapping sentences would have been justified even though the possession which evidenced that trafficking was contemporaneous. Moreover, as I have observed, the appellant was a more significant player than suggested by the quantities alone who had reoffended whilst on bail. In my view the sentence was no more than condign punishment for the totality of the appellant’s offending.
Reconsideration of classification of methamphetamine
During the course of the appeal hearing, counsel for the appellant made reference to the case of R v Ford,[34] saying:
Ms Powell:In his judgment, Gray J from page 101, paragraph 32 of the judgment, he went through the various occasions upon which this Court has made it plain that it will not undertake a reclassification of drugs such as methylamphetamine, ecstasy, fantasy and LSD from their position as a middle range drug without that being specifically a matter upon which evidence is appropriately led.
All of those cases referred to by His Honour were, of course, decisions of the Court of Criminal Appeal and the ranges of penalties exposed in those various authorities cited by His Honour demonstrate that this particular sentence with which this Court is involved is a very severe sentence indeed. (emphasis added)
[34] (2009) 100 SASR 94.
The following exchange then took place between myself and counsel:
Kourakis J: On what evidence was the original classification made?
…
Kourakis J:I haven’t looked at the cases for a while but my recollection was that there was no evidence.
Ms Powell:I think that’s right, I don’t think there was. But, in my submission, that’s what this Court has said and presumably, unless there is an invitation to overturn this Court’s authority – and I’m not sure whether this Court comprised of three Judges could do it – that’s what the law in South Australia is. I agree, I don’t think there was any evidence called in Mangelsdorf to talk about the prevalence of the drug. (emphasis added)
In light of this submission, I wish to make my view clear that, even though the appellant’s appeal has been dealt with on the basis that amphetamine is a “middle range” drug, this decision, along with other decisions of the Court of Criminal Appeal, do not stand in the way of sentencing Judges reconsidering the classification of amphetamines based on the information before them in a particular case.
In R v Beresford,[35] Hogan, Bright and Wells JJ considered the problematic issue of the means by which courts might be informed of the nature of prohibited drugs. Their Honours said:
But prosecutions with respect to dangerous drugs, in our view, stand altogether differently. A judge cannot begin to assess the evil or harm caused to society or to individuals by drug taking, drug handling, or drug distribution, until there are placed before him adequate details of the composition and strength of the drug in question and an authoritative and reliable description of its likely effects—long term and short term, psychological and physical. In some cases, it may be important for the judge also to be informed, in general terms, of the magnitude of the illegal operations of manufacturing or importing and supplying the dangerous drug to members of our community, and the difficulty of the control of those operations by law enforcement agencies.
Plainly, evidence upon many of these topics will not infrequently be irrelevant in the proof of the charge, but when the question of sentencing arises, it will be essential for evidence of this kind to be placed before the judge. It seems to us that it is the responsibility of the prosecution, in the first instance, to lead such evidence as is in their possession and will enable the sentencing judge to form an appreciation, not only of the prisoner’s conduct, but also of the drug with which that conduct was concerned. In many cases, the presentation of such evidence will entail the calling of an expert who can offer an up-to-date evaluation of the plethora of facts and opinions emanating from doctors, scientists and social workers month by month all over the world. It is, in our view, unsatisfactory for a judge to find himself left to perform his own research and formulate his own opinions and conclusions upon such arcane matters. What we can read in books, journals and reports about drugs is no doubt useful as background and as providing the basis for suggestions for further enquiry, but it would, in our view, be entirely wrong if those readings were to take the place of sworn expert testimony, properly presented and tested.[36]
[35] (1972) 2 SASR 446.
[36] The Queen v Beresford (1972) 2 SASR 446 at 449-50.
In R v Cronn,[37] King CJ confirmed the status of amphetamines as “middle range” drugs:
The learned sentencing Judge described the drug methamphetamine as standing ‘in the lower spectrum of evil drugs or nearly so’. In Reg. v Pearce this Court described a drug of the same family as the drug under consideration in this case as in ‘ “the middle range” so far as seriousness is concerned, that is to say, the middle range of prohibited drugs’. The Court commented that ‘it is a more dangerous drug than cannabis and its derivatives. On the other hand it is a less harmful drug than heroin’. I think that the experience of the Courts in relation to prohibited drugs now enables us to treat methamphetamine and drugs of the same family as in the middle range of drugs which attract the maximum sentence of twenty-five years’ imprisonment, being more serious than hashish but less serious than heroin.[38] (citations omitted)
[37] (1983) 34 SASR 555.
[38] R v Cronn (1983) 34 SASR 555 at 556 per King CJ, with whom Mohr J agreed.
I observe that the classification of amphetamines in Cronn was based exclusively on the experience of courts in relation to the comparative effects of heroin and amphetamine. No pharmacological, medical or criminological evidence was referred to. It is also important to recognise that the classification of amphetamine as a middle range drug preceded a rapid surge in its use in the following two decades and was made well before the widespread appearance of amphetamines in other forms such as crystalline methamphetamine, or ice.[39]
[39] Methamphetamine was first detected in 1999. A study by the National Drug and Alcohol Research Centre in 2004 found that supply and use of amphetamines increased ten fold between 1996 and 2002: McKetin R, McLaren J, ‘The Methamphetamine situation in Australia: a review of routine data sources’ NDARC Technical report N.172, National Drug and Alcohol Research Centre, Sydney, referred to in ‘New South Wales Amphetamine, Ecstasy and Cocaine: A Prevention and Treatment Plan 2005–2009’ (2005) New South Wales Department of Health, < at 2 March 2010.
In R v Ford,[40] the Court of Criminal Appeal dismissed an appeal against the severity of a sentence imposed for selling methylamphetamine and possessing methylamphetamine for sale. In the course of those submissions, counsel for the Director of Public Prosecutions asked the Court to reconsider the reclassification of methylamphetamine as a “middle range drug”. That request was declined. Gray J observed that methylamphetamine had been classified as a drug at the high end of the scale in Western Australia and Queensland but continued:
Notwithstanding the reclassification of methylamphetamine in interstate and overseas jurisdictions, having regard to the authorities of this Court, methylamphetamine should continue to be treated as a drug in the middle range of seriousness. This Court has repeatedly made it clear that before a change to the general classification of methylamphetamine will be considered, evidence will need to be provided to the court to support the application. If the position is as clear as the Director suggests, there should be no difficulty in presenting the relevant material before the court. As was noted by the Director in the course of submissions, it would be open for the Director to seek a guideline pursuant to section 29A of the Criminal Law (Sentencing) Act.[41] (emphasis added)
[40] (2008) 100 SASR 94.
[41] R v Ford (2008) 100 SASR 94 at 104 [41] per Gray J, with whom Doyle CJ agreed.
The earlier authorities referred to in that passage were R v Becker[42] and R v Sladic.[43] In the latter case, the Court said:
This Court has not undertaken the review of the classification of methylamphetamine that has occurred in Western Australia. In that State, the court has reclassified methylamphetamine as a drug in the higher range of seriousness. In Mangelsdorf the court addressed the established standards for punishment of drug offences. The previous standards were sought to be reinforced. Doyle CJ observed:
In the matters heard by us the Director of Public Prosecutions did not ask the court to review the standards which it has established, with a view to increasing them. The frequency with which offences involving trading in heroin, and indeed in other drugs, come before the courts make me think that it may be necessary to do so in the future.[44] (citations omitted)
[42] (2005) 91 SASR 498 (Gray, Sulan and Layton JJ).
[43] (2005) 92 SASR 36 (Gray, Sulan and Layton JJ).
[44] R v Sladic (2005) 92 SASR 36 at 42-3 [26].
For myself, I would express the following reservations about the present classification of amphetamines and the passages I have cited. First, in my view the very classification of drugs as low, middle or high range is problematic. The classification may refer to the degree to which the drug compromises the sensory and reasoning faculties and the degree of risk to the user and others posed by those effects. It may, alternatively, refer to the longer term detrimental physiological affects of the drugs on the user. Yet a further possibility is that the classification is a reference to the broader social harm caused by the drug. For example, use of the drug may contribute to the commission of other crimes by its users, or trading in a particular drug may be a major contributor to the financial resources of organised crime syndicates. The classification may involve some combination and balancing of all three factors. There may also be other factors which I have not here identified. The ranking of a particular drug may vary considerably depending on the measure used. For that reason, I doubt the practical utility of a simple one dimensional classification of drugs for the purposes of sentencing. Moreover, whatever classification is given to a drug, the appropriate sentencing range will be affected by its prevalence from time to time.[45]
[45] R v Stevens [2008] SASC 170 at [25] per Duggan J, with whom Doyle CJ and Anderson J agreed.
Secondly, I doubt that an “authoritative” review could be limited to a review by the Court of Criminal Appeal or the Supreme Court. Almost all serious offences against the Controlled Substances Act 1984 are heard by the District Court. The Court of Criminal Appeal cannot prospectively require judges to sentence on the basis that particular drugs fall within a certain range of seriousness. The adverse physiological and social effects of drugs to which I have referred require a careful and complex factual enquiry. All sentencing courts are bound by s 6(b) of the Criminal Law (Sentencing) Act 1988 to inform themselves as they think fit with respect to the matters on which they must sentence; the physiological and psychological affects of a drug, its prevalence and the personal and social harm it causes are questions of fact about which sentencing Judges should be informed before sentencing. Sentencing courts will of course give the classification thus far accorded to methylamphetamine by the Court of Criminal Appeal the utmost respect; a failure to do so may make the sentence vulnerable to be set aside on appeal. But questions of fact are ultimately matters for sentencing Judges. If a sentencing Judge were to sentence on the basis that methylamphetamine was in fact a drug at the higher end of the scale, whatever scale that may be, the question on any appeal which may be brought against that sentence will be whether that factual assessment was a reasonable one to make. I do not mean to suggest that the adverse effects of drugs will become contested ground in every sentencing hearing; I expect that a uniform approach would emerge reasonably quickly.
The Director of Public Prosecutions carries the primary, but not exclusive, responsibility of providing material from which a sentencing court can inform itself of the adverse personal and social consequences of prohibited drugs. However, I wish to bring attention to some important developments which have come about since the classification of amphetamines a quarter of a century ago.
First, I mention the reclassification by other Australian courts referred to in R v Ford.[46] The unlawful trade in drugs operates nationally and internationally. A uniform approach within Australia would plainly assist in the effective administration of the drug laws of the Commonwealth and the States.
[46] R v Ford (2008) 100 SASR 94 at 102 [37], 104 [40].
Perhaps more importantly, there is much publicly available material which records the emerging evidence of the great personal and social harm caused by amphetamine abuse. I have attached, as an appendix to these reasons, a note on some of that material.
Thirdly, I refer to the growing experience and knowledge of the courts of this State. A perusal of sentencing remarks in the District Court shows that offences of violence are often associated with heroin or amphetamine dependency. Those remarks also show an association between alcohol abuse and offences of violence. Notwithstanding the association between alcohol abuse and violence, which the community has every reason to be concerned about, also of great concern is the serious risk to the community posed by the strong association between amphetamine use and offences of violence.[47]
[47] Bulletin of the Bureau of Crime Statistics and Research, ‘Amphetamine Use and Violence’, 26 February 2009. I acknowledge that the New South Wales Bureau of Crime Statistics and Research found in a recent study that there was no evidence that persons with a prior conviction for an amphetamine offence were no more likely than those with no prior drug offences to be subsequently charged with a violent offence. However, as the Director of the Bureau himself observed, persons who were frequent long term users of amphetamines were not separately identified and tracked by that study.
Since 1983 when Cronn was decided, the courts of this State have gathered considerable knowledge through the evidence given in criminal trials, and information provided in sentencing submissions, about the involvement of organised crime in amphetamine production and distribution and the profitability of that involvement. The criminal courts also often deal with the violent disputes between those who seek to appropriate that profit.
In the face of these developments I would repeat, with a note of greater urgency, the view expressed in Becker[48] and in Mangelsdorf[49] that it may now be appropriate to review the classification of amphetamines.
[48] (2005) 91 SASR 498 at 512-13 [64] per Gray, Sulan and Layton JJ.
[49] R v Mangelsdorf (1995) 66 SASR 60 at 66-7 per Doyle CJ.
Conclusion
For the reasons that I have given, I would dismiss the appeal.
Appendix
Amphetamines occur naturally in some plants and have been the subject of human consumption from China to North Africa for thousands of years.[50] Synthetic amphetamine was first produced in 1887 and marketed commercially in 1932. It quickly became popular with students, artists, musicians and truck drivers. It has been prescribed for a wide range of conditions such as schizophrenia, seasickness, weight control, narcolepsy and attention deficit disorder. From the time of the Spanish Civil War, it has been provided to soldiers to promote alertness. Soon after the drug’s commercialisation, its adverse side affects began to be recorded. The induction of psychoses by amphetamine abuse was first recorded in 1938 and authoritatively documented in 1958. Its addictive potential was recognised in the mid 1960’s.[51]
[50] In China the name of the plant translated literally means “looking for trouble”.
[51] Sulzer D, Sonders MS, Poulsen NW, Galli A, ‘Mechanisms of Neurotransmitter release by amphetamines: a review’, Progress in Neurobiology (2005) 75:406-433.
Neuropsychological studies have documented the affects of longer term (more than three years) amphetamine use on decision making; the quality of decision making is significantly impaired and is comparable to the effects of injury to the orbital prefrontal cortex.[52] Orbitofrontal cortex dysfunction is associated with some core characteristics of borderline personality disorder, in particular impulsivity.[53] The recent use of the amphetamine MDMA, or “ecstasy”, and other drugs and alcohol has been associated with greater impulsivity.[54] Long term amphetamine abuse has also been associated with greater impulsivity,[55] and with damage to the functioning of the orbitofrontal complex.[56] Recent studies have demonstrated a link between repeated exposure to MDMA and impulsivity.[57]
[52] Rogers RD, Everitt BJ, Baldacchino A, Blackshaw AJ, Swainson R, Wynne K, Baker NB, Hunter J, Carthy T, Booker E, London M, Deakin JF, Sahakian BJ, Robbins TW, ‘Dissociable deficits in the decision-making cognition of chronic amphetamine abusers, opiate abusers, patient with focal damage to prefrontal cortex, and tryptophan-depleted normal volunteers: evidence for monoaminergic mechanisms’, Neuropsychopharmacology (1999) 20:322-339.
[53] Berlin HA, Rolls ET, Iversen SD, ‘Borderline personality disorder, impulsivity, and the orbitofrontal cortex’, American Journal of Psychiatry (2005) 162:2360-2373; Solof PH, Meltzer CC, Becker C, Greer PJ, Kelly TM, Constantine D, ‘Impulsivity and prefrontal hypometabolism in borderline personality disorder’, Psychiatry Research (2003) 123:153-163.
[54] Hanson KL, Luciana M, Sullwold K, ‘Reward-related decision-making deficits and elevated impulsivity among MDMA and other drug users’, Drug and Alcohol Dependence (2008) 96:99-110.
[55] Patti I, Vanderschuren LJ, ‘The neuropharmacology of impulsive behaviour’, Trends in Pharmacological Sciences (2008) 29:192-199.
[56] Crombag HS, Gorny G, Li Y, Kolb B, Robinson TE, ‘Opposite effects of amphetamine self-administration experience on dendritic spines in the medial and orbital prefrontal cortex’, Cerebral Cortex (2005) 15:341-348.
[57] Morgan MJ, ‘Recreational use of “ecstasy” (MDMA) is associated with elevated impulsivity’, Neuropsycholopharmacology (1998) 19:252-264.
A review published in the United States of America in 1971 of the circumstances of thirteen murder cases noted an association between the murders and amphetamine-induced paranoia, panic, emotional ability and lowered impulse control.[58]
[58] Everett H, Ellinwood Jr MD, ‘Assault and Homicide Associated with Amphetamine Abuse’, American Journal of Psychiatry (1971) 127:1170-1175.
A 2006 report prepared by the National Drug and Alcohol Centre of the University of New South Wales concluded that amphetamine use was likely to have a relatively minor impact on the assault rate in New South Wales.[59] However, it did observe that the strongest evidence for a relationship between methamphetamine use and violence is in the context of methamphetamine-induced psychosis. In particular, it noted that historical evidence suggested that methamphetamine epidemics tend to be accompanied by a rise in violent behaviour, particularly bizarre violent acts.
[59] McKetin R, McLaren J, Riddell S, Robins L, ‘The relationship between methamphetamine use and violent behaviour’ Crime and Justice Bulletin: Contemporary Issues in Crime and Justice, No. 97, August 2006.
The Australian Institute of Health and Welfare reported in October 2009 that, of the approximately 148,000 counselling and other treatment services provided to persons of all ages suffering from alcohol and drug dependencies in 2007-2008, 12.1 per cent were provided for amphetamine or ecstasy abuse. Alcohol (44.5 per cent) and cannabis (21.6 per cent) users accounted for the largest percentage of treatments. However, amphetamine users were a greater percentage of the total consumers of services in the 20-29 and 30-39 age groups, 15.6 per cent and 13.7 per cent respectively, than in the other age groups.[60]
[60] ‘Alcohol and other drug treatment services in Australia 2007-2008: report on the National Minimum data set’, (23 October 2009) Australian Institute of Health and Welfare, Drug Treatment Series Number 9, < at 2 March 2010.
The Drug and Alcohol Services of South Australia reports that 7.3 per cent of South Australians aged 14 and over surveyed in 2007 had used amphetamines, 34.9 per cent had used cannabis and 2.3 per cent had taken heroin or other opiates.[61]
[61] ‘Statistics on Illicit Drug Use in South Australia’, Drug and Alcohol Services South Australia, < at 15 January 2010.
A survey of amphetamine related presentations to the Royal Perth Hospital over a period of about three months in 2005 concluded:
Amphetamine-related presentations comprise 1.2% of all ED attendances and have a major impact on hospital EDs. Patients are often agitated and aggressive, require extensive resources, and frequently re-attend. The burden of amphetamine-related illnesses on EDs is likely to increase in the future.[62]
[62] Gray S, Fatovich D, McCoubrie D, Daly F, ‘Amphetamine-related presentations to an inner-city tertiary department: a prospective evaluation’ Medical Journal of Australia MJA (2007); 186 (7): 336-339.
It may be necessary to differentiate, at least to some extent, between particular drugs which are analogues of amphetamines. Ecstasy (MDMA),[63] for example, has a different chemical structure to amphetamine and methamphetamine.[64] The pharmacological effects of MDMA are a blend of amphetamine’s stimulant and mescaline’s hallucinogenic properties.[65] MDMA boosts the release of neurotransmitters leading to an increase in wakefulness, improved mood, endurance, sense of energy, sexual arousal and postponement of fatigue. Unlike amphetamine and methamphetamine, MDMA is less associated with aggressive behaviour.[66] The prevalence of ecstasy use in Australia expanded rapidly between 1988 and 2004; it is the only illicit drug for which estimated levels of use in Australia have increased in prevalence in every survey from 1998 to 2004.[67] There is a dearth of good studies of the relationship between MDMA use and health outcomes.[68] However, studies have linked ecstasy use to long term adverse psychological affects including mood changes, anxiety, depression, learning and memory problems.[69] Fatalities reported amongst users have caused much community concern even though significantly less fatalities are attributable to MDMA use than to opioid use in Australia.[70] Moreover, the patterns of poly‑drug use among ecstasy users, and the highly variable content of the pills sold as ecstasy, suggest that MDMA-related fatalities may be attributable to multi-drug toxicity
[63] Degenhardt L, Hall W (eds) 'The health and psychological effects of "ecstasy" (MDMA) use', National Drug and Alcohol Research Centre, University of New South Wales (2010) NDARC Monograph No.62 at 21. Ecstasy was first synthesised in 1912 as a blood clotting agent. Its use was later assessed as a potential chemical warfare agent. Demand for the drug increased exponentially in the 1980s when it was not yet illegal in the United States. It has become strongly associated with the dance party and nightclub scenes. From the United States it spread to Europe through the Rajneesh cult. It was discovered by English holiday makers in Spain and its popularity in the United States again increased with the spread of the rave party culture across the Atlantic in the early 1990s.
[64] Ibid at 13. However, in the past a high percentage of the tablets sold as ecstasy also contained amphetamine and methamphetamine.
[65] Ibid at 18.
[66] Ibid at 51-2. The drug was once known as “empathy”, before organisations involved in its marketing thought they might meet with better success if they adopted the name “ecstasy”.
[67] Ibid at 34.
[68] Ibid at 13.
[69] Ibid at 58.
[70] Ibid at 201.
32—Prohibition of manufacture sale etc of drug of dependence or prohibited substance
(1)A person must not knowingly—
(a) manufacture or produce a drug of dependence or a prohibited substance; or
(b) take part in the manufacture or production of such a drug or substance; or
(c) sell, supply or administer such a drug or substance to another person; or
(d) take part in the sale, supply or administration of such a drug or substance to another person; or
(e) have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.
…
(5)A person who contravenes this section is guilty of an offence and is … liable to a penalty as follows:
A. …
B. For any other offence under this section:
(a)where the substance the subject of the offence is cannabis or cannabis resin—
(i)if the quantity of the cannabis or cannabis resin involved in the commission of the offence equals or exceeds the amount prescribed in respect of cannabis or cannabis resin for the purposes of this subsection—a penalty of both a fine not exceeding $500 000 and imprisonment for a term not exceeding 25 years; or
(ii)if the quantity of cannabis or cannabis resin involved in the commission of the offence is less than the amount prescribed for the purposes of this subsection but one-fifth or more of that amount—a penalty not exceeding $50 000 or imprisonment for 10 years, or both; or
(iii)if the quantity of cannabis or cannabis resin involved in the commission of the offence is less than one-fifth of the amount prescribed for the purposes of this subsection—a penalty not exceeding $2 000 or imprisonment for 2 years, or both;
(b)where the substance the subject of the offence is a drug of dependence or a prohibited substance (not being cannabis or cannabis resin)—
(i)if the quantity of the substance involved in the commission of the offence equals or exceeds the amount prescribed in respect of that substance for the purposes of this subsection—a penalty of both a fine not exceeding $500 000 and imprisonment for life or such lesser term as the court thinks fit; or
(ii)if the quantity of the substance involved in the commission of the offence is less than the amount prescribed for the purposes of this subsection—a penalty not exceeding $200 000 or imprisonment for 25 years, or both.
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