R v Cristol

R v CRISTOL
[2001] SASC 288
Court of Criminal Appeal: Doyle CJ, Wicks and Besanko JJ (ex tempore)

DOYLE CJ I would dismiss the appeal and I agree with the reasons given by Wicks J.
WICKS J This is an appeal against sentence
The Charge
The appellant was charged on Information with possessing cannabis for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984. It was alleged that on 29 January 2001 at Ridgehaven, the appellant knowingly had cannabis in his possession for the purpose of selling it to another person. It was further alleged that the cannabis was in excess of two kilograms.
Proceedings in the District Court
The appellant pleaded guilty to this charge on 22 March 2002 before a Judge in the District Court although the plea was belatedly made. On 28 May 2002 the appellant was sentenced to 21 months imprisonment with a non-parole period of 10 months. In coming to this conclusion the learned sentencing Judge took into account the appellant’s plea of guilty and also the fact that a forfeiture pursuant to s 8 of the Criminal Assets Confiscation Act 1978 of the sum of $13,597.44 was no longer contested. This money was located in two bank accounts in the name of the appellant. Had it not been for these factors, the learned sentencing Judge indicated that he would have imposed a sentence of imprisonment of three years. The maximum penalty able to be imposed for this offence is a fine not exceeding $50,000 or imprisonment for ten years or both.
In relation to the question of whether the sentence should be suspended the learned sentencing Judge said:
" I turn to the issue of suspension. Your counsel drew attention to what he called your minimal role in this matter, your lack of a previous record and your plea, in his submissions, and so he submitted that it was appropriate to suspend the sentence. I have had regard to all that was put to me on your behalf in this regard. However, I am not to overlook that couriers are an integral part of the trade in cannabis, even though an individual financial return might not be great, as here. The offence is serious and is at the very upper end of this penalty scale. It is prevalent and there is a need for a deterrent sentence. I decline to suspend the sentence."
I agree with His Honour’s remarks.
Grounds of Appeal
On 8 July 2002 the appellant sought leave to appeal to this Court on the following grounds:
1The sentence imposed was manifestly excessive having regard to the applicant’s (now appellant’s) minimal role in the circumstances of the offence.
2The Learned Sentencing Judge erred in failing to suspend the applicant’s (now appellant’s) sentence of imprisonment.
Leave to appeal was granted on both grounds.
Circumstances of the offence
The circumstances of the offence are as follows. The appellant was involved with a man by the name of Franco. Franco was under police surveillance. On 29 January 2001 the appellant was observed by police as a passenger in a white Sigma sedan. The appellant’s girlfriend was observed driving the vehicle.
The vehicle was driven to the Domestic Terminal of the Adelaide Airport where the appellant and his girlfriend collected a silver Mitsubishi Magna sedan from the rental car park area. The appellant then proceeded to deliver the Magna to an address at Lockleys, apparently at the request of Franco. The Magna was parked in the garage at these premises.
Approximately one hour later, the appellant left the Lockleys address and was observed driving the Magna to an address at Golden Grove. The appellant expected Franco to get in touch with him at this address with further instructions. However, when he did not hear from Franco he decided to take the Magna back to Lockleys. On this journey, he was arrested. The Magna was taken to the Angas Street Police Station where 23 plastic bags of cannabis were removed from under the carpet.
Later analysis showed that the bags contained a total of 9993.0 grams of female cannabis plant material. The Court was informed that the overall value of the drugs was in the range of $54,000 to $74,000.
Counsel for the appellant submitted before the learned sentencing Judge that Franco requested the appellant to hire the Magna and allow Franco to use it. Franco was to reimburse the appellant for the cost of hiring the car and the appellant was to receive another $500 by way of payment for his involvement. The appellant inferred that the vehicle might be used for an illegal purpose and knew that in the past Franco had made arrangements for cannabis to be taken interstate. It was submitted that while the appellant had a coffee with Franco at the Lockleys address another person placed the cannabis in the Magna. It was further submitted that after the appellant left the Lockleys address he was aware that cannabis had been placed under the matting in the car.
Personal Circumstance of the Appellant
The appellant is 36 years of age. His father died some time ago and his mother is unwell and thought to be suffering from cancer. The appellant attended Elizabeth Primary School and Gilles Plains Technical High School. He then acquired some qualifications in the building industry but found it quite difficult to obtain employment within that industry. He has worked in various industries but was unemployed for the 12 month period prior to being sentenced.
According to the appellant’s antecedents, the appellant has had no previous convictions in respect of illicit drugs. He was fined $80 for larceny in 1983. The offences which followed were largely for minor matters relating to motor vehicles and the hindering of police in the performance of their duties.
Was the sentence manifestly excessive and should the sentence have been suspended?
In R v Mangelsdorf (1995) 66 SASR 60 at p 63 Doyle CJ said:
" This Court has established standards for the punishment of crimes of the type dealt with by the judges in the cases the subject of the present application. The court has referred time and again to the severe penalties imposed by s 32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s 32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs. The court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32."
In Magelsdorf the respondent Mr Richards was convicted upon the verdict of a jury of two counts of possession of cannabis for sale and two counts of possession of cannabis resin for sale. The amount of cannabis involved was in the same category as that in the matter before this Court. The Court of Criminal Appeal imposed a sentence of four years imprisonment with a non-parole period of two years and declined to suspend the sentence.
The case involving Mr Richards differs somewhat from the case currently before the Court. Mr Richards was not entitled to credit for a guilty plea. No question of forfeiture was involved. Mr Richards came before the Court with a relatively poor record, including at least 13 drug offences. He had also received the benefit of four suspended sentences. In contrast, the appellant was given credit for his plea of guilty and a substantial reduction as a result of the forfeiture order. He was treated by the learned sentencing Judge as having no relevant prior offences. I am of the opinion that the sentence imposed by the learned sentencing Judge reflects the fact that there were many factors in the appellant’s favour which were taken into account.
In R v Harris (2001) 122 A Crim R 241 the Court of Criminal Appeal considered a situation where the defendant pleaded guilty to possessing cannabis for sale. The defendant was acting as a drug courier and was planning to transport 7.643 kg of cannabis from Adelaide to Queensland. He was to be given $500 and a return airfare in return for his services. He had no prior conviction and a good employment record. He was sentenced to two years and three months imprisonment with a non-parole period of nine months. That sentence was not suspended.
On appeal Olsson J said the following at p 243:
" What was involved was a ready willingness, for reward, to act as courier in respect of a very large amount of a prohibited substance. Although the appellant may well not have known the precise contents of the case, he at least must have appreciated from the outset that, in all probability, it contained an illicit substance …
It has often been pointed out in this Court that the drug trade has insidious and serious societal consequences, both direct and indirect. Large scale commercial trafficking is difficult to detect and must firmly be dealt with in a manner which recognises the all important factors of general and personal deterrence …
The drug problem continues as a very serious evil in our society and those who are minded, knowingly, to act as couriers of large amounts of prohibited substances must expect substantial custodial sentences, even where they have a prior good background. Substantial leniency, and certainly a degree of leniency involving the suspension of a significant custodial sentence, will, normally, only be justified in cases where the courier provides information which leads to a successful apprehension and prosecution of principals engaged in the drug trafficking."
In this case the appellant did not provide assistance to the authorities, other than nominating Franco as one of the persons involved.
Both the case of Mangelsdorf and the case of Harris indicate that this Court views commercial activity in relation to drugs as an offence that is not to be dealt with lightly. It is also clear that a suspended sentence should only be granted in very exceptional circumstances.
The passing of a sentence, requires the exercise of discretion on the part of the sentencing Judge. It cannot be said that the learned Judge’s sentencing discretion had miscarried in any way. It seems to me that the learned Judge has taken into account matters which he ought to have taken into account and he has not taken into account matters which he ought not to have taken into account. In my opinion, the sentence given is well within the learned sentencing Judge’s discretion.
In particular, I have given consideration to the question of suspension. Very rarely is a matter involving the sale or supply of illicit drugs the subject of a suspended sentence. I see no reason to part with the current practice and suspend the sentence on this occasion. Convictions for offences involving illicit drugs are all too prevalent. Members of the community need to understand that such offences will be dealt with seriously.
For these reasons I would dismiss this appeal and also indicate that I would not agree to any suspension of the sentence.
BESANKO J I agree that the appeal should be dismissed and I agree with the reasons of Wicks J.
DOYLE CJ Accordingly, the order of the court is that the appeal be dismissed.

[2002] SASC 288

20 August 2002