R v Doecke No. Sccrm-95-461 Judgment No. S7016

R V DOECKE

[1998] SASC 7016

Court Of Criminal Appeal: Prior, Lander & Wicks JJ

PRIOR J. I agree with the reasons given by Lander J. Leave to appeal should be granted and the appeal allowed.
The sentence imposed in the District Court should be set aside. In all the circumstances, a single sentence of three years’ imprisonment with a non parole period of one year should be imposed.
LANDER J. This is an application for leave to appeal by the Director of Public Prosecutions against a sentence imposed by a Judge of the District Court on 31 August 1995. There was no delay in the making for the application for leave to appeal. The application was made on 21 September 1995. The delay in the hearing of this matter has been due to the inability of the applicant to serve the respondent, Mr Doecke with the application.
The respondent was charged with Martin Andre Diesing on information with three counts of possessing heroin for sale. The matter first came before the Court in January 1995 and after completion of the evidence and whilst the jury were considering the matter, the Trial Judge, for reasons that are unimportant, declared a mistrial and discharged the jury. The matter was next listed for trial in August 1995. The applicant entered a nolle prosequi in respect of the first count and the respondent and Mr Diesing then pleaded guilty to counts two and three. Count two alleged that the two men had in their possession 28.9 grams of heroin for the purpose of sale to another person and count three alleged that the two men had in their possession 14.7 grams of heroin for the purpose of sale to another person. Their pleas admitted those particulars.
Mr Diesing was sentenced by the learned Judge to imprisonment for three years and a non parole period of one year was fixed. The learned Judge suspended that sentence of imprisonment upon Mr Diesing entering into a bond to be of good behaviour for two years and on the further condition that he perform 120 hours of community service within eighteen months.
The respondent was convicted without penalty. He was released on a bond in his own reconnaissance of $1000 to be of good behaviour for two years.
Pursuant to s32(1)(c) of the Controlled Substances Act, the maximum penalty for each count was, a penalty of $200000 or imprisonment for twenty years.
The applicant sought leave to appeal in relation to both sentences. The applicant was unable to serve the respondent until 17 November 1998.
In the first instance service was for the Court. It could not serve the application. The Court then sought assistance from the Director of Public Prosecutions. He, in due course, sought assistance from both the State and Federal Police. They were unable to locate the respondent. I am not quite sure why.
The respondent said that he changed his address shortly after he was sentenced but claims that he was always available to be served. It is unfortunate that the matter has been delayed so long.
The failure to serve the application for leave to appeal until 17 November 1998 means that this Court is called upon to consider an application for leave to appeal by the Director of Public Prosecutions more than three years after the sentence was imposed by the Judge of the District Court. It also means that this Court is called upon to consider that application for leave in circumstances where the sentence which was imposed, has now been served.
During the hearing of this appeal these matters were drawn to the attention of counsel for the applicant, who sought leave to further address the matters of delay in writing. Leave was granted and the Court was provided with very helpful submissions in respect of those matters.
The application for leave to appeal was made within the time prescribed by r4A of the Supreme Court Criminal Appeal Rules. Applications for leave to appeal in the case of an appeal by the Director of Public Prosecutions are to be considered in the first instance by the Full Court (r15(2)(c)). It cannot be said that there was any fault on the part of the Director of Public Prosecutions in failing to prosecute the application within time. The responsibility for service in the first instance was on the Court. Thereafter the Court notified the Director who sought the assistance of both State and Federal Police but they were not able to assist in serving the documents.
The fact that the sentence has been served is a relevant matter, in my opinion, in the exercise of the discretion whether to grant the application for leave to appeal. The fact that the sentence has been fully served, however, does not render the application for leave to appeal a nullity.
The Director of Public Prosecutions previously applied for leave to appeal in respect of the sentence imposed upon Mr Diesing. That application was heard on 23 October 1996. On that day the Court Of Criminal Appeal granted leave and allowed the appeal. It set aside the sentence imposed by the learned Sentencing Judge and in lieu thereof sentenced Mr Diesing to be imprisoned for a period of five years and set a non parole period of two years and six months. The Court refused to suspend the sentence of imprisonment.
The circumstances of the offences were these. The Police discovered a PVC pipe in Sheoak Road at Belair. It was inside a Telecom Tower and the pipe contained packets which themselves contained heroin. The pipe was well hidden under small branches and rocks in a place which was about eighteen metres along a clear track near Belair National Park.
Police Officers saw a person who was later identified as the co-accused Mr Diesing drive his vehicle to near this track, run down the track and disappear into the scrub near where the Telecom Tower was. They saw him then run back the same way from which he had come and re-enter a Holden Commodore which other Police Officers had previously seen him drive to that area. The respondent, Mr Doecke, was an occupant of that car and remained in the car whilst Mr Diesing ran to the Telecom Tower and back.
The car moved off with Mr Diesing driving. Mr Diesing was seen to throw a packet containing white powder from the vehicle immediately before the vehicle was stopped by Police Officers.
Later observations showed that there were two further packets of white powder found in the pipe which had been deposited by Mr Diesing. The packet thrown from the car was obtained and all three packets were later analysed and shown to contain heroin.
Mr Doecke was found with a pager on him. More than $9000 was found at the house which he occupied with his de facto wife.
Mr Diesing put to the learned Sentencing Judge and to the Court of Criminal Appeal that the circumstances giving rise to these charges were somewhat unusual in that Mr Diesing had heard through people he knew that there was what he called “a hidey hole” near this Telecom Tower and Mr Diesing decided to investigate it. He discovered the pipe and removed the contents, took them home and showed them to Mr Doecke. He thought that perhaps the parcel contained either heroin or cocaine. He became concerned about it and returned to the Telecom Tower and redeposited two of the packets in the pipe.
Apart from being unbelievable, and inconsistent with the objective facts in that it does not explain why he was still in possession of heroin when he drove away from the tower, the explanation put was inconsistent with his plea. On the facts put to the learned Sentencing Judge, he did not possess the heroin for sale at all.
Mr Doecke submitted, through his counsel, that when he was first shown this white powder he believed the powder to be cocaine and he was happy enough, so it was put, to go along with the sale of it. However, it was submitted, when he discovered the powder was heroin he became quite concerned and he advised Mr Diesing to return the powder from where he had got it. He submitted that that was what they were doing when they were apprehended. Again his explanation does not account for the fact that Mr Diesing carried heroin away from the Telecom Tower and also is inconsistent with his plea in that on his explanation the heroin was not possessed for sale.
He explained the sum of money which had been found on the premises. He said that he carried on part time work as a spray painter and that was money which had been paid to him for work done for friends. There was evidence to suggest that he had in fact done work for friends and had been paid reasonably substantial sums of money.
Mr Doecke had previous offences for receiving and illegal use but no convictions for more serious offences and in particular no convictions whatsoever for drug related offences.
He does not use drugs or certainly, at least, he does not use heroin.
The amount of heroin to which both men pleaded guilty to possessing for sale was a significant amount and possessed considerable value. The fact is that both men pleaded guilty to possessing heroin for the purpose of sale. They were involved in a commercial enterprise which was driven, not by any reliance themselves upon drugs but, by greed.
The learned Sentencing Judge in his all too brief remarks said:
“What the Crown has said to me with this large amount of material, simply anyone involved in the trading of heroin for sale always goes to gaol. Your counsel may well have pointed out to you all the cases where that has happened.
My task was made more difficult by the fact that you have both very much come here as first offenders. Mr Diesing, you have some minor matters. But Mr Doecke, I treat you, almost as a first offender and both coming here for the first time, and with good references. Clearly, Mr Diesing, your involvement was substantial. What worries me a little is the source of your advice about this deposit and then seeking it out. Fortunately for you, and I think it is what is going to save you from going to gaol, is your actions, of then going back and replacing the packet.
Mr Diesing, what I am going to do to you is say you will go to gaol for 3 years with a 1 year non-parole period. I will suspend that, providing you enter into a bond to be of good behaviour for 2 years and also you perform 120 hours of community service within the next 18 months.
Mr Doecke, you can see where this involvement has got you. Like Mr Diesing there were some other matters which caused me some concerns when I initially read the papers, particularly the fact of a pager and cash. It seems that has been explained. This time, like Mr Diesing, I give you the benefit of the doubt. What you both have to appreciate is, if you get in any sort of trouble again, I think a judge would look at what I have done and say that you have had a chance, and you won’t get another one.
Mr Doecke, I am going to simply convict you. I won’t impose any penalty this morning. I release you on a bond to be of good behaviour for 2 years. If you go wrong in that time I will sentence you and I won’t feel all that sympathetic. I will simply leave it there.”
A conviction without penalty and release on a good behaviour bond for a person who pleads guilty to the possession of more than 43 grams of heroin is self evidently and transparently manifestly inadequate. Ordinarily, in my view, this Court would not have any hesitation in allowing an application for leave to appeal and allowing an appeal against a sentence which is so clearly inappropriate.
A matter of concern, however, is that more than three years have passed since the sentence was imposed. Moreover, the sentence has been served although, in the circumstances of this case, the sentence was merely served by the respondent not committing an offence.
The time which has passed since the imposition of a penalty is a relevant factor in determining whether leave to appeal should be granted. However, delay itself does not necessarily render it unjust to allow the application for leave to appeal and re-sentence the respondent.
In R v Hallocoglu (1992) 29 NSWLR 67 at 80 Hunt CJ at common law said:
“A Crown appeal will not be dismissed simply because of delay. It will only be dismissed if that delay has caused prejudice to the respondent; R v Cuc Thanh Pham (1991) 55 A Crim Reports 128 at 136, 138. Such prejudice may be occasioned, for example, where as a result of a successful Crown appeal the respondent has to be returned to custody after having served the whole of the custodial part of the sentence from which the appeal is brought; but, even then, the seriousness of the crime may be such as to outweigh that prejudice; R v Carngham (1978) 140 CLR 487 and 494; R v Morris (Court of Criminal Appeal, 10 March 1989, Unreported) at 8.”
In this case the appellant has not suffered any prejudice. True, it is, he has served the sentence imposed upon him but he was able to serve that sentence by merely not committing a further offence.
I think the seriousness of this offence and the obvious inadequacy of the penalty imposed by the learned Sentencing Judge requires that leave be granted. Mr Diesing’s position is another matter that cannot be overlooked in considering whether leave should be granted. Fourteen months after sentence was imposed upon him he was re-sentenced to be imprisoned for five years. If this application was not granted, he could, in my opinion, consider that he has been, comparatively speaking, unjustly treated. The court should ensure so far as it can between co-offenders, consistency of sentence.
In my opinion, notwithstanding the delay, it would be appropriate to grant leave to appeal and allow the appeal and set aside the sentence imposed by the learned Trial Judge.
Clearly enough, these crimes required a sentence of imprisonment. The sentence needed to reflect aspects of general deterrence, personal deterrence and punishment. The sentence imposed did none of that.
In re-sentencing the respondent, regard must be had to the penalty imposed on Mr Diesing by the Court of Criminal Appeal. Neither he nor this respondent should be left with any sense of grievance by reason of the penalty imposed on the other.
In determining the appropriate sentence for this respondent, the Court is required to take into account his personal circumstances, his character, his antecedents and his age. It is also required to take into account the fact that the respondent pleaded guilty to the charges, but even giving the most generous consideration to all of those matters there can be no doubt that the appropriate penalty for these offences was a sentence of imprisonment.
It is probably the case that this respondent’s involvement in the criminal activity was less than Mr Diesing. It is also the case that he has had less involvement in criminal activity in his past than his co-accused. In those circumstances he should receive a less severe sentence than that imposed upon Mr Diesing.
In due course the Court of Criminal Appeal sentenced Mr Diesing to five years imprisonment and set a non parole period of two years and six months. In doing so they took into account some community services which had been performed by Mr Diesing and the delay in bringing his matter before the Court of Criminal Appeal because of the inability to serve this respondent. I think it is likely but for those matters that Mr Diesing would have received a longer head sentence and non parole period. I think also the sentence imposed took into account that it was a prosecutor’s appeal. For all these reasons Mr Diesing’s sentence was lower than perhaps those very serious offences would otherwise have required.
But for the delay in this matter I would have sentenced the respondent to four years imprisonment and set a non parole period of two years. However, having regard to the delay this Court ought to extend as much mercy as it can towards the respondent. In those circumstances, I would sentence the respondent to be imprisoned for three years. I would set a non parole period of one year. Clearly enough the sentence cannot be suspended.
Neither the head sentence nor the non parole period should be taken in any way as reflecting the appropriate punishment for this offender or these offences. The sentence which has been imposed has been tailored to the special circumstances of the matter.
I would therefore grant leave to appeal and allow the appeal and set aside the sentence imposed by the Judge of the District Court.
In my opinion, the respondent should be sentenced to three years imprisonment. I would set a non parole period of one year.
WICKS J. I agree with the orders proposed by Lander J for the reasons he gives.

[1998] SASC 7016

23 December 1998