R v Eggers - [2006] SASC 174

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v EGGERS
[2006] SASC 174
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
16 June 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appeal against sentence - appellant pleaded guilty to production of cannabis, possessing cannabis for sale and production of methylamphetamine contrary to section 32 of the Controlled Substances Act 1984 (SA) - sentencing Judge imposed single penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of eight years imprisonment with non-parole period of four years - appellant appealed on grounds that sentence was manifestly excessive and sentencing Judge had inappropriately taken into consideration the background circumstances of the offending - consideration of whether taking into account background circumstances of the offending constituted having regard to irrelevant material - no error of principle made by sentencing Judge - sentence not manifestly excessive - appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(b), s 32(1)(e); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Godfrey (1993) 69 A Crim R 318; R v Reiner (1974) 8 SASR 102; R v Taddeo (1993) 67 A Crim R 338; R v Angus [2004] SASC 317; R v Cracium [2006] SASC 57; Markarian v R (2005) 215 ALR 213; Dinsdale v The Queen (2000) 202 CLR 321; R v Manglesdorf (1995) 66 SASR 60; R v Becker (2005) 91 SASR 498; R v Sladic (2005) 92 SASR 36, considered.

R v EGGERS
[2006] SASC 174
Court of Criminal Appeal Bleby, Gray and Anderson JJ

BLEBY J: I agree with Gray J that the appeal should be dismissed.
There was no error by the sentencing Judge in referring to offending prior to the period in question. It was part of the context in which the offending occurred and, along with the relevant factors to which Gray J has referred, was a factor which did not warrant leniency.
As to the claim that the sentence is manifestly excessive, it is towards the upper end of the appropriate range. However, it does not warrant interference by this Court.
GRAY J:
Introduction
This is an appeal against sentence.
On 5 September 2005, the appellant, Sven Eggers, pleaded guilty to the offences of taking part in the production of cannabis, contrary to section 32(1)(b) of the Controlled Substances Act 1984 (SA), the maximum penalty for which is a fine of $2,000 or two years imprisonment or both; possessing cannabis for sale, contrary to section 32(1)(e) of the Controlled Substances Act, the maximum penalty in respect of which is a fine of $50,000 or 10 years imprisonment, or both; and taking part in the manufacture of methylamphetamine, contrary to section 32(1)(b) of the Controlled Substances Act, the maximum penalty for which is a fine of $200,000 or 25 years imprisonment or both. The appellant had previously been arraigned in respect of all three charges on 17 May 2005, at which time he pleaded not guilty to all charges.
Following a disputed facts hearing, a Judge of the District Court proceeded pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose a single sentence in respect of all three offences of imprisonment for eight years with a non-parole period of four years.
The appellant appealed against the sentence on the ground that it was manifestly excessive in all the circumstances. The appellant’s application for leave to appeal to this Court in respect of this ground was the subject of consent by the Director of Public Prosecutions, who conceded that the ground of appeal was reasonably arguable. Counsel for the appellant sought to amend the Notice of Appeal to include a further ground, namely that the sentencing Judge erred in relying upon material not relevant to the offence of taking part in the manufacture of methylamphetamine and in bringing into account uncharged and unadmitted offending in sentencing upon that charge. The Director did not consent to leave being granted in respect of that ground.
At the hearing of the appeal, the Court proceeded on the basis that the proposed additional ground of appeal really amounted to particularisation of the complaint that the sentence was manifestly excessive. Insofar as leave is required, it should be granted.
The offending
All three offences took place between 1 March 2004 and 2 June 2004. The factual circumstances giving rise to the charge of taking part in the production of cannabis were as follows. On 1 June 2004, police located nine cannabis plants grown hydroponically in a shed on premises owned by the appellant’s partner and occupied by both the appellant and his partner. The potential yield of that crop at harvest was at least 150 grams of dry useable material per plant.
When searching the premises, police found 5,232 grams of female cannabis plant material in bags in another shed located on the property. This gave rise to the offence of possess cannabis for sale.
Police also located a number of pharmaceutical preparations, including Codral and Sudafed, which were used for the extraction of pseudoephedrine, which in turn is used for the production of methylamphetamine. The pharmaceutical preparations contained 2.8 grams of pseudoephedrine. Police also located a bottle and a separatory funnel, which contained approximately 25 grams of pseudoephedrine. The sentencing Judge found that in practical laboratory conditions, the quantity of pseudoephedrine found was convertible to approximately 12 to 13 grams of methylamphetamine. The sentencing Judge observed:
I have already concluded, in a separate ruling [in relation to the dispute facts hearing], that your involvement in the production of methylamphetamine as charged in count 3 went beyond the mere extraction of pseudoephedrine, and that the purpose of your involvement was financial gain.
The sentencing Judge characterised the appellant’s offending in the following terms:
[T]he offences for which you must be sentenced are serious, and Parliament has prescribed substantial terms of imprisonment and/or fines. The overall financial return from the potential yield of the plants which are the subject of count 1, the cannabis material which is the subject of count 2, and the methylamphetamine associated with the manufacture which is the subject of count 3, would have been substantial. The quantity of cannabis which is the subject of count 2 indicated an intention to engage in a significant level of trading. Moreover, I am satisfied upon the basis of the evidence that was before me at the disputed facts hearing that the offence which is the subject of count 3 occurred against the background of an activity to manufacture and sell the drug over a number of months. A deterrent term of imprisonment is required.
The sentencing Judge accepted that some of the drugs the subject of each count were intended for the appellant’s personal use.
During the course of sentencing submissions, the appellant’s then counsel submitted that whilst the appellant was aware that his actions amounted to contraventions of the law and that he would be punished accordingly, in his personal view, drug use was a matter of personal choice and the manufacture and possession of drugs was not an “evil crime”. In the appellant’s view, the manufacture and possession of drugs, at least referrable to his level of involvement in the drug trade, was a “victimless” crime.
The appellant admitted that his intention, in growing and manufacturing the drugs, was for financial gain as well as for his own use. His counsel submitted that initially the appellant had grown the cannabis plants for his own personal use, but that due to a high yielding crop, he subsequently decided to sell a portion of it.
Personal circumstances and criminal antecedents
The sentencing Judge described the appellant’s personal circumstances as follows:
As for your personal circumstances, you are 37 years of age. There is nothing about your upbringing and schooling that requires comment. Your counsel tells me that both your parents worked very hard. After leaving school at the age of 15, you completed an apprenticeship as a baker and worked in several bakeries before commencing your own bakery business at Golden Grove. It seems you worked long hours in that business, and began to use amphetamines at that time. Your counsel tells me you own a bobcat for hire, you are in receipt of income from a rental property, and you are in a long term and stable relationship with your partner.
The Judge then turned to consider the appellant’s criminal antecedents:
You have a criminal record which dates back to 1983. The record is not a long one, but it includes convictions for possess cannabis in 1993 and produce cannabis in 2003. The record also includes drink-driving convictions in 1998, 2001 and 2003. Penalties have not included any terms of imprisonment.
The sentence
The sentencing Judge considered that the nature of the offending required a deterrent term of imprisonment. In the Judge’s view, the appellant’s criminal record and the seriousness of the present offending resulted in there being no good reason to suspend the sentence. The Judge concluded that whilst the appellant was entitled to credit for his pleas of guilty, the pleas did not appear to reflect any remorse. This conclusion reflected the submission of the appellant’s counsel regarding the appellant’s view of drug and drug-related offending generally. It was also supported by the pre-sentence report. The author observed:
Initially, [the appellant] was unable to see that his offending impact [sic] negatively on the community and did not identify any victims of his offending. As we talked about the concept of victims he was able to see that there had been negative consequences for his offending although he appeared to relate only to the consequences which affected his partner or himself.
…
In consider [sic] [the appellant’s] responsivity issues it significant [sic] that at no time when speaking to the writer did he actually admit his offending nor accept direct responsibility for these behaviours.
...
When interviewed for this report [the appellant] left the writer with the impression that he did not consider his offending to be of any great consequence. As mentioned earlier in this report he seems to view the production of drugs as a victimless crime.
Although in relation to other aspects the veracity and accuracy of the report was challenged, this part at least appeared to accord with what the appellant’s counsel put on his behalf.
The Judge outlined the process that he undertook in arriving at the final head sentence of eight years imprisonment with a non-parole period of four years:
I propose ultimately to impose a single sentence pursuant to s.18A of the Sentencing Act.
As a first step in the process, however, I will assign a notional term of imprisonment to each of the counts. To count 1, I assign a notional term of 12 months. To count 2, I assign a notional term of four years. To count 3, I assign a notional term of six years. Since counts 1 and 2 reflect a related course of conduct, the notional terms for those counts will be treated as concurrent.
As a second step in the process, I will reduce the notional terms by approximately 20% for your pleas of guilty. So the notional term of fours years with respect to counts 1 and 2 is reduced [sic] three years and two months, and the notional term of six years with respect to count 3 is reduced to four years and ten months.
The total of the notional terms following the second step in the process is eight years. Since this total fairly reflects, in my opinion, the overall culpability of your conduct with respect to the three counts, there is no need for any further adjustment.
The order of the court is that you be sentenced to a single term of imprisonment of eight years. I fix a non-parole period of four years. Both the head sentence and the non-parole period will commence from today.
Taking into account irrelevant material
Counsel for the appellant submitted that by reference to the manufacture of methylamphetamine occurring “against the background of an activity to manufacture and sell the drug over a number of months”, the sentencing Judge punished the appellant not only for the one offence admitted, but also for other uncharged and unadmitted offending. Counsel contended that the sentencing Judge had proceeded to deal with the appellant as if he was being sentenced as an ongoing commercial manufacturer of methylamphetamine. Counsel reiterated to this Court that the appellant had not pleaded on this basis but that rather, by virtue of his plea of guilty, had only admitted to the manufacture of pseudoephedrine during a confined period of time.
Counsel accepted that the Judge was entitled to take into account the circumstance of a commercial manufacture as opposed to a non-commercial manufacture in respect of the sentence imposed for the offence of taking part in the sale of methylamphetamine.
Attention was drawn to the Judge’s findings on the disputed facts hearing on the issue of commerciality. There the Judge concluded:
I am satisfied that, between December 2003 and June 2004, the defendant was involved in the production of methylamphetamine, and that his involvement extended beyond the mere extraction of pseudoephedrine from Sudafed and other pharmaceutical preparations. I am satisfied that his involvement was with more than one other person.
In the end, the amount of pseudoephedrine that was found at the house, the trouble and cost that was involved in purchasing the tablets, the value of the methylamphetamine that would have been extracted in practical laboratory conditions, the activity that went back to December 2003, and the unsatisfactory evidence of the defendant, all combine to lead me to conclude beyond reasonable doubt that the purpose of the defendant’s involvement as charged in count 3 was financial gain. I will now sentence him on that basis.
Counsel contended that the finding of earlier commissions of the same crime occurring back to December 2003 could not be used to increase what would be otherwise a proper sentence. Counsel submitted that the Judge erred in sentencing on the basis that offences not admitted or asked to be taken into account had in fact been committed. Counsel drew attention to the observations of Duggan J in Godfrey:[1]
[F]indings made as a result of a disputed facts hearing cannot be used as a basis for punishing an offender for offences not charged: Reiner (1974) 8 SASR 102; H (1981) 3 A Crim R 53. See also the cases cited in Current Sentencing Practice, Vol 2, p 110212f. Conduct amounting to the commission of other similar offences can only provide a basis for increasing the sentence if the accused is found guilty of those offences at trial, pleads guilty to them, asks for them to be taken into account in fixing penalty, or agrees that counts in the information are to be regarded as representative offences.
This is not to say that the sentencing judge cannot take into account the context and surrounding circumstances of the crime charged. It may be that in a particular case the court will be required to consider whether it is entitled to extend leniency on the basis that it is dealing with an isolated offence. But it cannot increase the sentence by reason of a finding on a disputed facts hearing that offences not admitted or asked to be taken into account have in fact been committed. To do this would be to deprive the accused of a proper trial on those counts. The line between the two situations will sometimes be a thin one. As Bray CJ said in Reiner's case (at 105):
" ... the distinction between refraining from taking something off and adding something on when there is no fixed normal penalty may seem, in some cases, to approach the metaphysical. But it is a recognised and time-honoured distinction for all that."
This concept was discussed in H, an incest case in which a distinction was drawn between using a concession by an accused of earlier sexual interference with his daughter so as to increase the sentence on the one hand and, on the other, using it to negative such benefit as the accused might otherwise have sought to obtain from the assertion that the offence was a wholly spur of the moment lapse (per Street CJ); using it to ensure that sentence was not imposed for "an artificial case quite contrary to the truth" (per Moffit J); and taking it into account in order to gauge "the extent to which leniency has to be applied" (per Begg J).
The decision of this Court in Taddeo (1993) 67 A Crim R 338 provides another example. It was conceded by the defence in that case that sentence was to be imposed against the background that the respondent was substantially involved in the trading of cannabis. It was held that the offence charged in that case took its colour from the context in which it was committed but the point was made that the offender could not be punished for conduct prior to the date of the offence charged.
[1] R vGodfrey (1993) 69 A Crim R 318 at 322-323.
In Reiner[2], Bray CJ emphasised the principle that a person is only to be sentenced and punished in relation to the offences with which they have been charged and convicted. Reiner involved a man convicted of numerous counts of indecent sexual assault and related offences perpetrated against his daughter. Bray CJ observed:[3]
The learned Judge of course was not entitled to punish the applicant for any of [the crimes for which he had not been charged or convicted]…. He was not charged with them, he may still be charged with them, and the normal procedure adopted when it is desired that offences not charged should be taken into account, namely the handling [sic] up of a precise list of such offences signed by the accused, was not followed.
On the other hand the learned Judge was entitled to take into account the context and the surrounding circumstances of the crime and in particular it was permissible, relevant and important for him to know whether the act charged was an isolated offence or whether it was only, to use the metaphor often adopted, the tip of an iceberg. The surrounding circumstances of the crime may be taken into account in considering whether or not to extend leniency so as to reduce what would otherwise be a proper sentence but the commission of other crimes not asked to be taken into account under the procedure just mentioned cannot be used in order to increase what would otherwise be a proper sentence. As I have said on another occasion, the distinction between refraining from taking something off and adding something on when there is no fixed normal penalty may seem, in some cases, to approach the metaphysical. But it is a recognised and time-honoured distinction for all that.
If the learned Judge did punish the applicant not only for the one indecent assault admitted, but for his other indecent assaults in relation to this girl, or for his conduct in relation to the other man or the bundle of documents, he was wrong in doing so unless the conduct of the dependence can be regarded as containing some sort of implied invitation to do so equivalent to the practice to which I have previously referred. According to his second report to us the learned Judge seems to have so regarded it. I think that he was mistaken there.
[2] R v Reiner (1974) 8 SASR 102.
[3] R v Reiner (1974) 8 SASR 102 at 105.

Reiner and the subsequent cases of Godfrey and Taddeo[4] stand for the principle that the surrounding circumstances of a crime may be taken into account in considering whether or not to extend leniency so as to reduce what would otherwise be a proper sentence.
[4] R vTaddeo (1993) 67 A Crim R 338.
In the present case, the Judge concluded, as a result of a ruling following the disputed facts hearing, that the appellant’s involvement in the production of methylamphetamine was with a view to financial gain. Later in his sentencing remarks, he further concluded that this offence “occurred against the background of an activity to manufacture and sell drugs over a number of months. A deterrent term of imprisonment is required.” There is nothing in the sentencing remarks to suggest that the Judge was increasing the sentence on account of previous offending or on the basis that he was sentencing the appellant for a course of conduct. To the contrary, the Judge took into account the context and surrounding circumstances. This was a reason for not extending leniency. Hence, the Judge’s immediate reference to deterrence and imprisonment. As King CJ observed in Taddeo:[5]
[T]he respondent cannot be looked upon as a man of unblemished character who comes before the court having offended for the first time. The basis upon which the plea was entered and accepted and upon which sentence is to be passed indicates that he has been engaged in criminal activity in relation to cannabis prior to the particular offence with which he is charged. The crime must be regarded by the court as a serious crime, not only in itself but also by reason of the context in which it was committed.
This complaint should be rejected.
[5] R vTaddeo (1993) 67 A Crim R 338 at 339.
Manifestly excessive
Counsel for the appellant accepted that on a stand-alone basis the notional sentences imposed for the cannabis-related offences were within sentencing discretion. Counsel contended that the notional starting point of six years for the offence of taking part in the manufacture of methylamphetamine was excessive and manifestly so.
Counsel for the Crown emphasised that this was a case where there was a strong need for the sentence imposed to reflect general and, even more importantly, personal deterrence. Through his counsel, the appellant had clearly stated his attitude to his offending and to drug-related offending generally and, as previously observed, he demonstrated no remorse for his conduct and there was nothing to indicate that he was cognisant of the negative impact that drug-related offending had on the community. His attitude raised serious doubts as to his prospects for rehabilitation.
Counsel for the Crown submitted that the sentencing Judge, in making a reduction of 20 per cent on account of the plea, adopted a generous approach given the result of the disputed facts hearing.[6]
[6] R v Angus [2004] SASC 317 at [30], R v Cracium [2006] SASC 57 at [25].
Counsel for the Crown further submitted that the starting point of 10 years imprisonment was appropriate having regard to:
-the factual basis for the sentence ultimately determined;
-the amount and value of the cannabis involved and the potential amount and value of methylamphetamine involved;
-the appellant’s antecedent history;
-the appellant’s lack of contrition and remorse; and
-the absence of any personal circumstances that mitigated the offending in any way.
Counsel for the Crown contended that the sentencing Judge made the generous reductions in penalty on account of the pleas of guilty having regard to the disputed facts hearing and the consequent findings. With respect to the non-parole period, which was 50 per cent of the head sentence, the Crown submitted that it was lenient having regard to the seriousness of the offending, the appellant’s personal circumstances and the need for the non-parole period, as well as the head sentence, to reflect the need for punishment, general deterrence and personal deterrence.
In Markarian,[7] Gleeson CJ, Gummow, Hayne and Callinan JJ discussed the approach that an appeal court should adopt when considering an appeal against sentence:[8]
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 R, 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]
[7] Markarian v R (2005) 215 ALR 213. See also Dinsdale v The Queen (2000) 202 CLR 321.
[8] Markarian v R (2005) 215 ALR 213 at [25].
Counsel was unable to point to any error of sentencing principle. Nor could counsel point to any instance of the Judge having regard to irrelevant material or having failed to have due regard to relevant material.
The notional starting point in the present case was fixed in circumstances where the sentencing Judge was entitled not to extend leniency. This was as a result of the surrounding circumstances, the appellant’s lack of apparent remorse and his criminal antecedents.
Parliament has prescribed severe penalties for commercial activity in relation to amphetamines and the maximum sentence for the present offence is imprisonment for 25 years. There is no doubt that the legislature expects the courts to impose penalties which might operate to deter people from engaging in commercial activity with respect to this prohibited drug.[9]
[9] R v Manglesdorf (1995) 66 SASR 60 at 63-69, R v Becker (2005) 91 SASR 498, R v Sladic [2005] SASC 210.
The issue for this Court to consider is whether the sentencing Judge has fallen into error, or if no specific error can be demonstrated, whether the sentence was manifestly excessive. In the circumstances, I consider the notional sentence imposed with respect to the offence of taking part in the manufacture of methylamphetamine to be within the range of appropriate sentences for offending of this type. The sentence imposed pursuant to section 18A of the Criminal Law (Sentencing) Act was an appropriate sentence. There is no substance to this complaint.
Conclusion
Insofar as leave is required to argue that the learned sentencing Judge erred in relying upon material irrelevant to the charge of taking part in the manufacture of methylamphetamine and in bringing to account uncharged and unadmitted offending in sentencing upon that charge, it should be granted. However, this appeal should be dismissed on both grounds.
ANDERSON J In my opinion this appeal should be dismissed for the reasons given by Gray J.