R v Drever - [2010] SASCFC 27

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DREVER
[2010] SASCFC 27
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)
27 August 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
Appeal against sentence - defendant and appellant pleaded guilty to three counts of refusing to answer a question at an Australian Crime Commission examination contrary to section 30(2) of the Australian Crime Commission Act 2002 (Cth) - defendant sentenced to period of 12 months imprisonment to be released after serving six months upon entry into recognisance in the sum of $1,000 to be of good behaviour for two years - sentence ordered to commence on expiry of existing State non-parole period of two years and eight months - whether the six month term defendant ordered to serve manifestly excessive - whether defendant's claimed fear with respect to leaks of information provided an explanation for defendant's offending which warranted a shorter period in custody.
Held: appeal dismissed - analysis of Judge's sentencing remarks indicates that Judge gave due consideration to relevant matters when sentencing - direction that defendant be released after serving six months in custody not an inappropriate exercise of the Judge's sentencing discretion.
Australian Crime Commission Act 2002 (Cth) s 7A, s 25A and s 30(2); Controlled Substances Act 1984 (SA) s 33; National Crime Authority Act 1984 (Cth); Crimes Act 1914 (Cth) s 19, referred to.
R v Rivkin [2004] NSWCCA 7; R v Abell [2007] QCA 448; Markarian v The Queen (2005) 228 CLR 357; R v Sissis (1981) 4 A Crim R; R v Nemer (2003) 87 SASR 168; R v Richardson [2010] SASC 88; R v Cooper [2009] NSWCCA 57; R v Chandra [2003] SASC 319; R v Romano (1981) 28 SASR 100; R v O'Donnell (1974) 7 SASR 114, considered.

R v DREVER
[2010] SASCFC 27
Court of Criminal Appeal: Duggan, Gray and Kelly JJ

DUGGAN J: In my view the appeal should be dismissed. I agree with the reasons prepared by Gray J.
GRAY J:
This is an appeal against sentence.
The defendant and appellant, Luke Cameron Drever, pleaded guilty to three counts of refusing to answer a question at an Australian Crime Commission examination contrary to section 30(2) of the Australian Crime Commission Act 2002 (Cth).[1] The maximum penalty is five years imprisonment or a fine of $22,000.00. The defendant was sentenced to 12 months imprisonment, to be released after serving six months upon entry into a recognisance in the sum of $1,000.00 to be of good behaviour for two years. A reduction of 20 per cent was made on account of the defendant’s pleas when fixing this sentence.
[1] Section 30(2) of the Australian Crime Commission Act 2002 (Cth) relevantly provides:
(2)A person appearing as a witness at an examination before an examiner shall not:
(a)when required pursuant to section 28 either to take an oath or make an affirmation—refuse or fail to comply with the requirement;
(b)refuse or fail to answer a question that he or she is required to answer by the examiner; or
(c)refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.
The sentence of 12 months imprisonment was ordered to commence at the expiration of an existing State non-parole period of two years and eight months, to which the defendant was then subject.[2] The State non-parole period commenced on 20 November 2009. Accordingly, the Commonwealth offence was ordered to commence on 20 July 2012.
[2] With respect to the interaction of state and commonwealth sentences see section 19 of the Crimes Act 1914 (Cth); see for discussion R v Richardson [2010] SASC 88 at [22].
The defendant complains on appeal that the term of imprisonment that he was ordered to serve – that is, the six month term in relation to the 12 month total term of imprisonment imposed – was manifestly excessive. It was contended that the defendant should spend a shorter period in custody.
Background
Over a two year period up to 17 December 2007, the defendant was involved in the manufacture of methylamphetamine as part of an ongoing business of making and selling the drug. On 17 December 2007, the defendant was in the process of manufacturing methylamphetamine when an explosion occurred. That incident resulted in a charge of knowingly or recklessly manufacturing a commercial quantity of methylamphetamine, contrary to section 33 of the Controlled Substances Act 1984 (SA)[3] to which the defendant pleaded guilty.
[3] Section 33 of the Controlled Substances Act 1984 (SA) provides:
(1)A person who manufactures a large commercial quantity of a controlled drug intending to sell any of it or believing that another person intends to sell any of it is guilty of an offence.
Maximum penalty: $500 000 or imprisonment for life, or both.
(2)A person who manufactures a commercial quantity of a controlled drug intending to sell any of it or believing that another person intends to sell any of it is guilty of an offence.
Maximum penalty: $200 000 or imprisonment for 25 years, or both.
(3)A person who manufactures a controlled drug intending to sell any of it or believing that another person intends to sell any of it is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
(4)If—
(a)in any proceedings for an offence against subsection (1), (2) or (3) it is proved that the defendant manufactured a trafficable quantity of a controlled drug; or
(b)in any proceedings for an offence of attempting or conspiring to commit an offence against subsection (1), (2) or (3) it is proved that the defendant attempted or conspired (as the case may require) to manufacture a trafficable quantity of a controlled drug,
it is presumed, in the absence of proof to the contrary, that the defendant had the relevant intention or belief concerning the sale of the drug necessary to constitute the offence.
On 20 November 2009, the defendant was sentenced for the State offence committed on 17 December 2007, to five years imprisonment with a non-parole period of two years and eight months, to commence on the day of sentence.
On 20 December 2007, the defendant was served with a summons to appear before the Australian Crime Commission “to give evidence of federally relevant criminal activity involving the manufacture, sale and supply of amphetamines and other synthetic drugs, and the possession of substances and apparatus for that manufacture”. On 21 December 2007, the defendant appeared at the Australian Crime Commission for examination. On his application, the examination was adjourned to 20 February 2008.
On 20 February 2008, the defendant appeared before the Australian Crime Commission represented by counsel. The defendant answered many questions, but refused to answer the following three questions: where he obtained the stainless steel welded pipes that he used in the manufacturing process; who was buying pseudoephedrine for him; and, to whom he was selling speed.
The first summons charging the defendant with the Australian Crime Commission offences was issued on 30 July 2008. It was unable to be served before the return date. The final summons was unable to be served until 13 October 2009.
The Appeal
On appeal, counsel for the defendant submitted that an explanation had been provided for the defendant’s refusal to answer questions that reduced his criminal culpability. It was said that the defendant feared that notwithstanding suppression orders made in relation to the examination, a leak of information might occur. It was submitted that such a leak would place his personal safety and that of his family in jeopardy. It was contended that as the defendant was in custody, any breach of suppression would heighten the risk to his personal safety.
Counsel emphasised that the defendant had pleaded guilty at the earliest opportunity and that since his pleas to the Commonwealth offences he had overcome his drug addiction, had developed a reputation as a good worker and had the support of his family and his wider circle of friends.
Counsel for the defendant drew attention, through a schedule, to prior sentencing in this State and elsewhere, for the offence of refusing to answer Australian Crime Commission questions. It was said that this schedule demonstrated that the directing of the defendant’s release after he had served six months of the 12 month sentence, would lead to him spending a longer period in custody than any other prisoner serving a sentence for like offending. It was contended that having regard to all of the circumstances outlined, the time to be spent in custody was manifestly excessive.
Counsel for the Commonwealth Director accepted that if a comparison were to be made to other sentences imposed for like offending, then the defendant’s time to be served in custody – six months – was at the upper end. However, it was submitted that there was little to be gained from a comparison with other sentences. It was said that there were marked variations in the sentences imposed, and that those variations reflected the different levels of seriousness of the offending as well as differences in the personal circumstances of the offenders. Further, it was contended that the question before this Court was whether or not the sentence imposed fell within a proper exercise of sentencing discretion, by reference to its own facts, rather than whether this Court would be inclined to fix a more lenient sentence. Counsel drew attention to the following observations in Rivkin:[4]
It is not, however, the case that much benefit is ever gained by an attempt to draw a comparison with other cases, having regard to the differences in the objective and subjective circumstances involved ….
…
…[it is] the responsibility of this Court to determine whether or not the sentence imposed fell within a proper exercise of sentencing discretion by reference to its own facts.
[4] R v Rivkin [2004] NSWCCA 7 at [415]-[416]; it is to be noted that the relevant passage is not included for publication in the authorised report R v Rivkin (2004) 59 NSWLR 284; counsel also drew attention to the following cases: R v Cooper [2009] NSWCCA 57 at [86]; R v Chandra [2003] SASC 319 at [34]; R v Romano (1981) 28 SASR 100; R v O’Donnell (1974) 7 SASR 114.
The functions of the Australian Crime Commission include inter alia the collection, correlation, analysis and dissemination of criminal information and intelligence, the maintenance of a national database of that information and intelligence, the undertaking of intelligence operations and the investigation of federally relevant criminal activity.[5]
[5] Australian Crime Commission Act 2002 (SA) section 7A.
Under the Australian Crime Commission Act, the Australian Crime Commission is given coercive powers to assist its special intelligence operations and investigations, which include summonsing a person to give evidence at Commission examinations and requiring that person to answer questions. Parliament has impinged upon the common law right to silence by requiring persons to answer questions even though it may incriminate them. To provide some protection to witnesses compelled under the coercive powers to answer questions, the hearings are private and, when the person has claimed privilege, any incriminating answers may not be used in subsequent criminal proceedings against them. The Act also creates an offence relating to the disclosure of information provided during an examination, further supporting the protection of witnesses whose right to silence has been statutorily impinged upon.[6]
[6] See eg section 25A of the Australian Crime Commission Act 2002 (SA).
The intended result of the coercive powers provided to the Australian Crime Commission is a more effective response to significant crime across the country. It is to be observed that the failure or refusal to respond to questions during an examination may have the effect of subverting that response.
Parliament’s intention to provide for an effective deterrent against individuals not answering questions during Commission examinations is evident from the increase in penalty introduced in 2001.[7] The relevant penalty for a breach of section 30 of the National Crime Authority Act 1984 (Cth), which was in the same terms as the current section 30 of the Australian Crime Commission Act, was increased from six months or a $1000.00 fine, to five years imprisonment or a $22,000.00 fine. The explanatory memorandum to the National Crime Authority Legislation Amendment Bill 2000 (Cth) provides the explanation for the amendments made at that time, relating to reasonable excuse, self-incrimination and the increases in penalties:
The purpose of this Part is to enhance the investigatory power of the Authority so that it may deal more effectively and efficiently with witnesses. The amendments will limit the ability of witnesses to challenge the legitimate and essential role of the Authority in investigating serious and organised crime. The amendments will also increase penalties for non-compliance with the Act so as to deter those who would otherwise embark on a course of conduct designed to thwart the investigatory process.
[Emphasis added]
That explanation clearly demonstrates the particular need for deterrence.
[7] It is relevant to observe that prior to 2001, the relevant body undertaking the investigatory and other functions now performed by the Australian Crime Commission was the National Crime Authority. That body, and the statute under which it was established, was replaced by the Australian Crime Commission Act2002 (Cth) and the establishment of the Australian Crime Commission. Section 30 of the Australian Crime Commission Act 2002 (Cth) is in the same terms as the previous provisions of the National Crime Authority Act 1984 (Cth).
In Abell,[8] McMurdo P of the Queensland Court of Appeal, when addressing offending against these Commonwealth provisions, highlighted the particular need for deterrence when observing:
…The Commonwealth legislature, in enacting Div 2 Pt 2 of the Act has impinged upon the common law right to silence by requiring witnesses to answer questions even though the answer may incriminate them. The Act provides some protection to witnesses by providing that the conduct of the hearing is private and by not allowing incriminating answers (where privilege has been claimed) to be used in subsequent criminal proceedings against them (see s 30(4) and (5)). The judge rightly recognised that salutary deterrent penalties must be imposed on those like Mr Abell who refuse to answer questions thereby offending against s 30(2)(b). Otherwise, Div 2 of Pt 2 of the Act would become a toothless paper tiger in the legislature's patent intent to detect and prosecute organised criminal activities by impinging on the common law right to silence and compelling witnesses to answer the examiner's questions.
[Emphasis added]
I respectfully adopt these observations.
[8] R v Abell [2007] QCA 448 at [33].
It is to be emphasised that private examinations under the Australian Crime Commission Act are an important tool in the intelligence gathering exercise necessary for the proper fulfilment of the Australian Crime Commission’s role. It is important that those who refuse to answer questions during an examination are adequately punished to reinforce the importance of compliance with the requirement to answer questions put during such examinations. As pointed out in Abell, not to do so would undermine the powers of the Commission and would result in the relevant powers of the Act becoming a “toothless paper tiger”.
It is also to be emphasised that although the defendant cooperated in answering the majority of the questions put to him, the three questions which he refused to answer - namely, where he obtained the stainless steel pipes used in the manufacturing process, his source of supply of pseudoephedrine, and, to whom he was supplying the drug - were of particular importance in the enquiry being undertaken by the Commission in relation to unlawful activity involving the manufacture, sale and supply of synthetic drugs. As noted, the explanatory memorandum with respect to the increase in penalties for offences pursuant to section 30, emphasised the need to prevent the thwarting of the investigatory process of the then National Crime Authority. The memorandum identified that the particular amendments in 2001 were designed to prevent precisely that, by providing an increased deterrent through the increase of penalties for non-compliance.
The above background to the legislation is to be kept in mind when assessing whether the sentence imposed fell within a proper exercise of the sentencing discretion of the Judge.
In Markarian, with respect to the relevant inquiry to be made on an appeal against sentence, Gleeson CJ, Gummow, Hayne and Callinan JJ observed:[9]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[Footnote omitted]
[9] Markarian v The Queen (2005) 228 CLR 357 at [25].
In the present proceeding, an analysis of the Judge’s sentencing remarks, indicates that due consideration was given to relevant matters. The Judge correctly identified the importance of general deterrence in sentencing for this offence and in that respect commented:
The penalties for these offences were increased in 2001 to provide deterrence from adopting the very course which you have adopted before the Commission. I do not regard your bald assertion that you feared for your safety as a particularly compelling factor in mitigation of these charges. The intention of deterrent penalties and protective orders are designed to deal with precisely the situation you refer to, otherwise the legislation would be completely ineffective. Courts must do what they can to avoid that result. You made a deliberate decision to refuse to answer questions knowing the penalties involved and, to that extent, you made a choice to commit these offences.
The Judge referred to the wide range of penalties imposed in other cases for the offences under considerations, but noted that each Judge had emphasised the need for general deterrence. The Judge also had regard to the insidious nature of the amphetamine trade:
The amphetamine trade is insidious and extremely harmful to the community. Very large sums of money are involved. Offences are difficult to detect. The Australian Crime Commission is charged with the responsibility of investigating such activity.

The Judge took into account the personal circumstances of the defendant. The defendant was 28 years of age at the time of sentence, and had a conviction for manufacturing methylamphetamine against a two year background of similar criminal conduct. The Judge had regard to reports of a psychologist and a psychiatrist. Those reports described the defendant as being of above average intelligence, but a person who displays symptoms of anxiety and depression. It was the psychiatrist’s view that the defendant had an adjustment disorder with mixed anxiety and depression. The Judge also had regard to excellent character references tendered by the defendant.
The appropriateness of placing reliance upon sentences imposed in other cases has been the subject of comment in this Court, and the difficulties and inadequacies in that process have been identified. In Sissis,[10] King CJ observed:
If the sentence passed upon an appellant Who is before this Court is a fair and reasonable sentence, it seems to me that he has no ground for complaint simply because others, dealt with by other judges and in other circumstances, may have received more lenient penalties.
Sometimes that is because the facts in the other cases are different. Sometimes it is simply because the judge in the other case -- or the judges in the other cases -- have taken a more lenient view of the facts. Sometimes it occurs because judges in other cases have taken an unduly lenient view of the matter. None of these things, it seems to me, can give rise to any legitimate sense of grievance in a person who has himself received a fair and proper sentence for what he has done. If the sentence imposed by the judge is within the limits prescribed by parliament and if it is a fair and reasonable sentence, having regard to circumstances of the crime and the circumstances of the offender, then in my opinion it is not a ground for complaint that some other offender in different circumstances and before a different judge may have received a lighter penalty.
[10] R v Sissis (1981) 4 A Crim R 93 at 94.
Similarly, Doyle CJ stated in Nemer:[11]
…Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.
That is why sentencing an offender is not a precise process. There is no sentence that is exactly right in a given case. In any particular case the most that can usually be said is that an appropriate sentence will be within a certain range. Any sentence within that range is appropriate. Different judges, presented with the one case, are likely to arrive at different results within that range. The different results do not indicate that an error has been made, as long as they are within the acceptable range. They reflect the nature of the sentencing process.
[11] R v Nemer (2003) 87 SASR 168 at [7]-[8].
Although it may be suggested that a more lenient sentence might have been imposed, having regard to all of the matters outlined, it is apparent that the Judge had appropriate regard to the relevant matters when arriving at the sentence imposed. As earlier noted, the mere fact that lesser sentences have been imposed in similar circumstances does not inform the inquiry to be undertaken when assessing whether the imposition of that sentence was an inappropriate exercise of the sentencing Judge’s discretion.
Having regard to all of the circumstances, including the antecedents of the defendant, I do not consider that the directing of a release after six months was an inappropriate exercise of the Judge’s discretion. For the reasons discussed earlier, the fact that this defendant may spend a few months longer in custody than others who have offended against these provisions does not lead to the conclusion that this sentence was inappropriate or manifestly excessive.
Conclusion
I would dismiss the appeal.
KELLY J: I agree that this appeal should be dismissed. I agree with the reasons of Gray J.