R v Faehrmann; R v Moore; R v Price-Austin
[2014] SASCFC 25
•2 April 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FAEHRMANN; R v MOORE; R v PRICE-AUSTIN
[2014] SASCFC 25
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Nicholson)
2 April 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE - OTHER MATTERS
Appeals against sentences imposed by a District Court Judge, specifically whether the sentences were manifestly excessive.
Held (The Court):
The treatment of uncharged offending in a course of offending is background information relevant to questions of leniency and prospects for rehabilitation, and should not lead to a sentence higher that would otherwise be appropriate for the offences for which the defendants have been convicted (at [37]).
It was appropriate for the Judge to have regard to the effect of the supply of cannabis upon vulnerable end users. The fact that the defendant targeted a community which was vulnerable must be regarded as a seriously aggravating feature of the offending (at 61]).
No specific error by the Judge has been demonstrated (at [62]). However, taking into account the aggravating feature of targeting a community which was vulnerable, and giving consideration to decisions of this Court and of interstate intermediate appellate courts, the starting points for the defendants were too high and manifestly so leading to sentences that were manifestly excessive (at [64]).
Sentences imposed on each defendant in the District Court set aside.
Faehrmann sentenced to seven years and six months imprisonment to be served cumulatively on the earlier imposed sentence of 15 months, the suspension of which is revoked. The existing non-parole period imposed (fixed with respect to the earlier 15 months sentence) is extended to five years and ten months (at [76]).
Moore sentenced to seven years and six months imprisonment to be served cumulatively on a period of unexpired parole of 18 months and 14 days. A new non-parole period of six years fixed (at [76]).
Price-Austin sentenced to four years and ten months imprisonment with a non-parole period of two years and eleven months (at [76]).
Controlled Substances Act 1984 (SA) ss 32, 44; Criminal Law Consolidation Act 1935 (SA) ss 19, 340; Criminal Law (Sentencing) Act 1988 (SA) ss 10, 18A; Summary Offences Act 1953 (SA) s 41; Drugs Misuse Act 1986 (Qld) ss 5, 9A, referred to.
Daniels v The Queen [2007] NTCCA 9; R v Jacobs (1997) QCA 114; R v Salter [2010] QCA 284; R v Broad [2010] QCA 53; R v Brienza [2010] QCA 15; R v Wallace [2008] QCA 135; R v Brown [2004] QCA 229; Director of Public Prosecutions v Stamos [2004] SASC 132; R v Mema [2011] SASCFC 56; R v Mustac [2013] SASCFC 21; R v Hunt [2012] SASCFC 74; R v Parsons [1999] QCA 402, discussed.
Police v Cadd (1997) 69 SASR 150; R v Place (2001) 81 SASR 395; R v Clancy [2013] SASCFC 63; R v Nozuhur (2013) SASCFC 81; R v Pearce (1980) 91 LSJS 443; R v Mangelsdorf (1995) 66 SASR 60; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive", "manifestly inadequate" and "aggravating feature"
R v FAEHRMANN; R v MOORE; R v PRICE-AUSTIN
[2014] SASCFC 25Court of Criminal Appeal: Kourakis CJ, Blue and Nicholson JJ
THE COURT: These are appeals against sentences imposed by a District Court Judge.
The appellants/defendants, Michael Russell Faehrmann, Christopher Simon Moore and Paul Bernard Price-Austin, pleaded guilty in the District Court to multiple counts of trafficking in a controlled drug.[1] In addition, Moore pleaded guilty to one count of trafficking in a commercial quantity of a controlled drug[2] and Faehrmann and Price-Austin pleaded guilty to one count of trafficking in a large commercial quantity of a controlled drug.[3] In each case, the drug was cannabis.
[1] Controlled Substances Act 1984 (SA) s 32(3).
[2] Controlled Substances Act 1984 (SA) s 32(2).
[3] Controlled Substances Act 1984 (SA) s 32(1).
Price-Austin pleaded guilty to unlawful possession of cash reasonably suspected of having been obtained (as proceeds of cannabis sales) by unlawful means.[4] Faehrmann admitted to breaching a suspended sentence bond imposed in February 2009 in respect of two counts of aggravated threatening life.[5] Moore admitted breaching parole on a sentence imposed in June 2008 in respect of eight counts of selling or possessing cannabis.
[4] Summary Offences Act 1953 (SA) s 41(1).
[5] Criminal Law Consolidation Act 1935 (SA) s 19(1).
In each case the Judge exercised the discretion available under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) to impose a single penalty for all offences to which each defendant pleaded guilty.
Faehrmann was sentenced to imprisonment for nine years, cumulative upon the 15 months imprisonment in respect of the suspended sentence which was revoked. A non-parole period of seven years was fixed.
Moore was sentenced to imprisonment for eight years and three months cumulative upon the unexpired parole of 18 months and 14 days in respect of the earlier sentence. A non-parole period of seven years was fixed.
Price-Austin was sentenced to imprisonment for six years and nine months. A non-parole period of four years and five months was fixed.
Each defendant appeals on the ground that the sentence imposed was manifestly excessive. In addition, Faehrmann appeals on the ground that the sentencing Judge erred in finding that he had probably been engaged in cannabis trading during the entirety of the suspended sentence bond and Price-Austin appeals on the ground that the sentencing Judge failed to have sufficient regard to matters personal to him.
Circumstances of the offences
The circumstances and context of the offences were the subject of agreed facts. The Director also relied on various witness declarations and exhibits concerning the effect of cannabis on residents of the Anangu Pitjantjatjara Yangkunytjatjara Lands (the APY Lands).
The context in which the offences were committed was as follows. Faehrmann and Moore, together with a third male, were equal partners in a drug trafficking business selling cannabis from a house known as Two Drums at Mintabie. Mintabie is located just to the west of the Stuart Highway approximately 200 kilometres south of the border with the Northern Territory. It has a population of approximately 300 as well as a substantial transitory population. Mintabie is a base for opal mining. Its residents are mainly Caucasian. Mintabie also serves as the gateway for the APY Lands. The largest settlements in the APY Lands are Ernabella, which has a population of approximately 600 and Amata, which has a population of approximately 400. There are approximately 2,300 residents of the APY Lands as well as a substantial transitory population. The customers of the business comprised residents in or around Mintabie and residents of the APY Lands. The residents of the APY Lands comprised a substantial proportion of the total customers.
The charged period collectively for the three defendants (who each had different charged periods) was between 22 October 2009 and 6 March 2010. The operation was up and running before 22 October 2009 but there was no evidence or agreement bearing on the duration of the earlier trading. Faehrmann was primarily responsible for sourcing cannabis in the first part of the charged period and Moore was primarily responsible in the second part of that period.
Cannabis was sold by the business for $8,000 per pound or $500 per ounce (with no discount for quantity).
The cannabis sold by the business was sourced from various suppliers in or around Adelaide for approximately $16,000 per four pound (1.8 kilogram) lot. Cannabis was delivered from Adelaide to Mintabie initially in eight pound (3.6 kilogram) lots until the end of November 2009 and thereafter in four pound (1.8 kilogram) lots. On average, there was a delivery of four pounds of cannabis to Mintabie every fortnight. Deliveries were less frequent when there was difficulty obtaining supply and more frequent when supply and demand were good.
Price-Austin was the local manager of the business at Mintabie. He stored the cannabis at his house, delivering it to Two Drums as required and notifying the partners when cannabis stocks needed to be replenished. Price-Austin sold cannabis to other retailers. In addition, the business sold cannabis directly to consumers at Two Drums. The business employed three sellers at Two Drums who were paid $15 per hour. Faehrmann and Moore engaged various delivery drivers who were paid $1,500 per round trip.
For each four pound delivery of cannabis, the business made a gross profit of approximately $16,000. Of this, $12,000 (after business costs) was split equally between Faehrmann, Moore and the third partner. Costs of approximately $4,000 per four pound delivery comprised $1,500 paid to Price-Austin, $1,500 paid to the delivery driver and $1,000 in wages paid to the sellers at Two Drums.
The maximum penalty for trafficking a controlled drug is imprisonment for 10 years or a fine of $50,000 or both, for trafficking in a commercial quantity of a controlled drug (1 kilogram of cannabis or more) imprisonment for 25 years or a fine of $200,000 or both, and for trafficking in a large commercial quantity of a controlled drug (2 kilograms of cannabis or more) imprisonment for life or a fine of $500,000 or both.
Faehrmann pleaded guilty to one count of trafficking in a large commercial quantity of cannabis (jointly with Price-Austin) and two counts of trafficking in cannabis (jointly with Moore). The three counts related to arrangements made to deliver cannabis to Mintabie for the purposes of sale as follows:
1. between 18 and 23 November 2009, Faehrmann in conjunction with Price-Austin arranged a shipment of eight pounds (approximately 3.6 kilograms) of cannabis to be delivered to Mintabie (a large commercial quantity);
2. between 11 and 18 January 2010, Faehrmann and Moore arranged to deliver cannabis to restock and ensure that trading continued at Two Drums following a police raid on 13 January 2010;
3. between 21 and 29 January 2010, Faehrmann and Moore arranged for a shipment of cannabis to be delivered to Mintabie.
Moore pleaded guilty to four counts of trafficking (two jointly with Faehrmann and one jointly with Price-Austin) and one count of trafficking in a commercial quantity of cannabis. The five counts related to arrangements to deliver cannabis to Mintabie for the purposes of sale as follows:
1. between 11 and 18 January 2010, Moore and Faehrmann arranged to deliver cannabis to restock and ensure trading continued at Two Drums following a police raid on 13 January 2010;
2. between 21 and 29 January 2010, Moore and Faehrmann arranged for a shipment of cannabis to be delivered to Mintabie;
3. between 15 and 22 February 2010, Moore arranged for a shipment of cannabis to be delivered to Mintabie;
4. between 20 February and 4 March 2010, Moore in conjunction with Price-Austin arranged for a shipment of cannabis to be delivered to Mintabie;
5. between 27 February and 6 March 2010, Moore arranged for a shipment of four pounds (approximately 1.8 kilograms) of cannabis to be delivered to Mintabie (a commercial quantity).
It was common ground before the sentencing Judge that Faehrmann and Moore were only to be sentenced for the specific counts with which each was charged, although they were to be sentenced on the basis that these were not isolated offences.
Price-Austin pleaded guilty to two counts of trafficking (one jointly with Moore) and one count of trafficking in a large commercial quantity (jointly with Faehrmann) of cannabis as follows:
1.on 22 October 2009, Price-Austin supplied cannabis to an undercover police officer at Two Drums for $100;
2.between 18 and 23 November 2009, Faehrmann in conjunction with Price-Austin arranged for a shipment of eight pounds (approximately 3.6 kilograms) of cannabis to be delivered to Mintabie for the purpose of sale (a large commercial quantity);
3.between 20 February and 4 March 2010, Moore in conjunction with Price-Austin arranged for a shipment of cannabis to be delivered to Mintabie for the purpose of sale.
It was agreed that Price-Austin was to be sentenced on the basis that these three counts were representative of his involvement in the operation over the entire charged period.
The Judge’s sentencing remarks
The Judge referred to the circumstances of and surrounding the charged offences as set out above.
The Director contended that the offending was aggravated because a substantial portion of the market for cannabis supplied out of Mintabie was to the Indigenous community in the APY Lands, who suffered significant social and economic disadvantages and were likely to be adversely affected by a continuing supply of cannabis.
Evidence was adduced by the Director from Dr Martin Kelly, Jill Steel and Hannah Meredith. Dr Kelly gave evidence by way of statutory declaration and oral evidence-in-chief and was cross-examined by counsel for Moore effectively on behalf of all defendants. Ms Steel and Ms Meredith were successively the Manager of the NPY Women’s Council, Domestic and Family Violence Service.
The general effect of the evidence adduced by the Director was that the supply of cannabis to the APY peoples was particularly detrimental for a number of reasons. When money is available it is common to use cannabis heavily, night and day until all of the money is gone and then abstain until more money is obtained to again purchase cannabis. This pattern of drug abuse leaves the consumer and their family without money for food and other necessities. It also has serious adverse mental health and social consequences. The abuse of cannabis in this way leaves the consumer without motivation and can lead to child neglect. Domestic violence is also associated with demands for money to purchase cannabis and with periods of cannabis withdrawal or unavailability.
The Judge said:
The social and medical problems in the isolated and far-flung Aboriginal communities in the northern parts of the State and adjacent areas are well documented. It is a matter of our common sense, our common experience, not only within the courts but within the community at large that many of the persons living in those communities suffer from very significant social and economic disadvantage and they have a high rate of physical and mental impairment. There has been an increase in dislocation from traditional life and an increasing rate of alcohol, drug and petrol dependence that is, petrol sniffing, which causes or aggravates the very significant social and economic problems in those communities.
…
You targeted that particular market, the Aboriginal people of the north of this State, not because you wanted to do Aboriginal people particular harm but because they were an easy and ready market for your criminal enterprise. However, you knew that you were selling cannabis to particularly vulnerable and, very often, damaged people. In my view, this is a significant matter of aggravation with respect to your offending. The fact that you were trafficking in a relatively isolated area, to remote communities enabled you to have a greater control of your market and for the trafficking enterprise to flourish quite openly, and it did. Your enterprise was referred to by locals as “KFC”, a drive-in cannabis outlet and that was a drive-in cannabis outlet for the poor and the disadvantaged people of the Lands.
The Judge then turned to the defendants’ personal circumstances. Faehrmann was 46 years old. He had seven children from four relationships. He had one son from the first relationship who now lives in Western Australia, a son from the second relationship now aged 17 with whom he has regular contact and two sons aged 13 and 12 from the third relationship with whom he has regular contact. His most recent marriage broke down at the end of 2011 and he has little or intermittent contact with his former wife and the three children from that relationship, being a son aged two and a half and very young twin daughters. Faehrmann gave as his reason for offending his desire to spoil his children and provide them with a better way of life.
The Judge referred to Faehrmann’s criminal history, which she characterised as extensive. His convictions included convictions for breaking and entering, larceny and assault. He had convictions for possessing cannabis in 1985 and 1986 which were dealt with in the Magistrates Court by way of fines, but he had no other drug history. He had received two suspended sentences. On 10 February 2009 he was sentenced in the District Court, on two charges of aggravated threatening life, to imprisonment for 15 months with a non-parole period of eight months which was suspended upon his entering into a bond to be of good behaviour for 12 months. He breached that bond by the commission of the three trafficking offences to which he pleaded guilty.
Moore was 44 years old. At the age of 13, he was placed in the care of the State and was subjected to violent and appalling abuse while in State care. He discontinued his education at the age of 13 and thereafter had rarely been engaged in lawful employment. He had been in a stable relationship for many years, having married in 2000, with a son who was completing his education at secondary school. Moore suffered from a serious ongoing abdominal and bowel condition, which resulted in chronic pain.
The Judge referred to Moore’s extensive criminal history, mainly for offences of dishonesty including illegal use, larceny, breaking and entering and armed robbery. He had convictions for possession of drugs in 1985, 2000, 2002 and 2003 which were dealt with in courts of summary jurisdiction and generally resulted in a fine. He had received a number of suspended sentences and had served six terms of imprisonment. Moore had a number of convictions for possessing drugs. On 26 May 2008 he was sentenced, on seven counts of selling or taking part in the sale of cannabis and one count of possessing cannabis for sale, to a term of imprisonment of 28 months with a non‑parole period of eight months. He was on parole when he committed the five trafficking offences to which he pleaded guilty.
The Judge adopted a starting point for Faehrmann of imprisonment for 12 years, which she reduced to nine years on account of his guilty pleas. She revoked the earlier suspended sentence of imprisonment for 15 months in respect of his 10 February 2009 conviction and made the two terms cumulative, resulting in a total term of 10 years three months backdated to 1 November 2012, being the date when all three defendants had been remanded in custody by the Judge. The Judge fixed a non-parole period of seven years backdated to 1 November 2012.
The Judge adopted a starting point for Moore of imprisonment for 11 years, which she reduced to eight years and three months on account of his guilty pleas. She made the sentence cumulative upon the unexpired parole of one year, six months and 14 days which Moore was required to serve in respect of his 26 May 2008 conviction. The total head sentence was nine years, nine months and 14 days, again, backdated to 1 November 2012. The Judge fixed a non-parole period of seven years backdated to 1 November 2012.
Price-Austin was 46 years old. His parents separated when he was 13 years old following which he lived with his father until the end of year 11, when his father asked him to leave. He worked as a rabbit shooter, a show worker and an interstate driver. In 2004, he went to Mintabie and worked in the Opal Mining business. He also became heavily involved in working for the local CFS and SES. He commenced using cannabis from an early age but was attempting to remain cannabis free before his imprisonment. The Judge referred to an apology made by Mr Price-Austin to the Aboriginal people in court and accepted that he was now contrite.
The Judge referred to Price-Austin’s criminal history. He had drug convictions in 1986, 1988, 1994, 2006 and 2007 for possession of drugs or possession of drugs for supply. In each case, the matter was dealt with in a court of summary jurisdiction and Price-Austin received a fine.
The Judge adopted a starting point for Price-Austin of imprisonment for nine years, which she reduced to six years and nine months on account of his guilty pleas backdated to 1 November 2012. The Judge fixed a non-parole period of four years and five months backdated to 1 November 2012.
Manifestly excessive: Faehrmann and Moore
Faehrmann and Moore contend that the starting points adopted by the trial Judge of imprisonment for 12 years and 11 years, and the head sentences imposed of nine years and eight years three months respectively, are manifestly excessive. They refer to decisions of this Court and of interstate intermediate courts of appeal in relation to sentencing of principals for cannabis trafficking offences.
Sentencing for specific offences
It was common ground before the sentencing Judge that Faehrmann and Moore were only to be sentenced for the offences to which they pleaded guilty, and while there were agreed facts concerning trading and a course of conduct over a four and a half month period, those agreed facts only formed the background against which they were to be sentenced. This background is relevant to such matters as questions of leniency and prospects for rehabilitation but should not lead to a sentence higher than would otherwise be appropriate for the offences for which the defendants have been convicted.
In her sentencing remarks, the trial Judge explicitly acknowledged that Faehrmann and Moore were to be sentenced on this basis. However, on appeal, Faehrmann and Moore contend that, notwithstanding this acknowledgement, the Judge must have sentenced them for their conduct over the entire period given the length of the sentences which were in fact imposed. That contention is, in essence, a complaint that the sentence is manifestly excessive. If an appeal court is satisfied that, in all the circumstances of the offending, a sentence is manifestly excessive, it is idle to speculate on the latent error or errors which have caused the sentencing discretion to miscarry. The appellants’ appeal on the manifest excess ground is considered below. We will also return to the question of the proper treatment of uncharged offending when considering interstate sentences for trafficking in illicit drugs.
Comparative sentences
There is no tariff for drug trafficking and what comprises an appropriate sentence in a given case depends upon the particular circumstances of the offending and the offender. The question whether a sentence is manifestly excessive or manifestly inadequate can only be answered by reference to whether the particular sentence falls within an available range. The dismissal of an appeal or refusal of leave to appeal, where it is contended that the sentence is manifestly excessive, does not necessarily entail that the same sentence would have been imposed by the appeal court. The same applies to the dismissal of an appeal or refusal of leave to appeal on the ground that a sentence is manifestly inadequate. For these reasons, great caution needs to be exercised when considering sentencing outcomes in other cases as reviewed by an appellate court as part of its consideration of manifest excess or inadequacy. Nevertheless, sentences in other matters can provide guidance as to whether a particular sentence is manifestly excessive or manifestly inadequate.[6]
[6] See Police v Cadd (1997) 69 SASR 150 at 165-169 per Doyle CJ, 172-173 per Duggan J, 174-180 per Mullighan J, 196-197 per Lander J and 205 per Bleby J; R v Place (2001) 81 SASR 395 at [21]-[33] per Doyle CJ, Prior, Lander and Martin JJ (Gray J agreeing); R v Clancy [2013] SASCFC 63 at [63] per Sulan and Blue JJ; Rv Nozuhur (2013) SASCFC 81 at [55] per Nicholson J.
Section 44(2) of the Controlled Substances Act 1984 (SA) requires a court to determine penalty on the basis that controlled drugs, other than cannabis, are all categorised equally as very harmful. While this subsection renders sentences for different types of drugs such as heroin and methamphetamine comparable if all other things are equal, it does not affect the established proposition that, all other things being equal, a sentence for trafficking in cannabis is likely to be less than a sentence for trafficking in other drugs.[7] Accordingly, sentences imposed for trafficking in drugs other than cannabis are of limited assistance in considering whether the sentences in the present case are manifestly excessive (although appropriate relativities between sentences for trafficking in cannabis and sentences for trafficking in drugs such as heroin and methamphetamine need to be maintained).
[7] R v Pearce (1980) 91 LSJS 443; R v Mangelsdorf (1995) 66 SASR 60.
A number of cases cited by the parties relate to the cultivation and production of cannabis. Such offences involve activities quite different from those presently under construction. Features such as the duration of the offending (involved in a single offence of cultivation), the financial expenses and returns and the position in the supply chain will not always be readily comparable. Such differences render it more difficult to compare a sentence in the case of cultivation with a sentence in the case of a wholesaler of cannabis.
Faehrmann and Moore were principals in the Mintabie drug trafficking operation. Previous sentences imposed upon persons at a lower level in the hierarchy are of limited assistance in considering whether a sentence imposed upon a principal is manifestly excessive (although there should be appropriate relativity between sentences for principals and sentences for persons involved at a lower level).
For the above reasons, we have confined our consideration to sentences in other cases which involved principals wholesaling large quantities of cannabis.
In Director of Public Prosecutions (SA) v Stamos,[8] Stamos pleaded guilty to five counts of taking part in the sale of cannabis. He also pleaded guilty to three counts of taking part in the sale of ecstasy. The counts involving the sale of cannabis related to a course of conduct between October 2000 and February 2001 during which Stamos organised the sale of more than 100 kilograms of cannabis. The quantity of ecstasy involved (900 tablets) was described as substantial. This, of course, qualifies the utility of this case for comparative purposes. Stamos was sentenced on the basis that he was a very major player in a “large-scale commercial” cannabis supply enterprise. Cannabis was purchased from suppliers in South Australia and exported to New South Wales where it was sold. This Court, applying s 18A of the Sentencing Act, increased the Judge’s head sentence of five years to ten years reduced from 12 years on account of his pleas. The Court described this as “an appropriate minimum” for Stamos’ conduct. At the time of this decision, the Court, when resentencing following a successful Crown appeal, was constrained by double jeopardy principles to approach a resentencing on this basis. The Court is no longer so constrained and is obliged to impose the sentence that should have been imposed in the first instance.[9] It follows that, if Stamos was to have been sentenced today, the starting point may have been higher. This earlier sentencing practice concerning Crown appeals will apply to the consideration, for comparison purposes, of any South Australian case decided where a Crown appeal was lodged before 3 August 2008.
[8] [2004] SASC 132.
[9] Criminal Law Consolidation Act 1935, s 340.
In R v Mema,[10] Mema and his co-accused pleaded guilty to two counts of trafficking in a large commercial quantity of cannabis. The first count involved 15 kilograms and the second involved about seven kilograms. He was caught by police in February at Tailem Bend transporting the first lot of cannabis destined for New South Wales. This was a joint venture with a co-accused. Within a few weeks of and while on bail for that offence, Mema and the co-accused sourced the second lot of cannabis and packed it into a trailer attached to Mema’s car. The co‑accused drove to a transport depot, destined for Sydney, but was intercepted in March 2010 by police. Mema was 40 years old and had no relevant previous convictions. Mema was sentenced to a term of imprisonment for six years, reduced from six years and six months on account of his late guilty plea. This Court dismissed Mema’s appeal on the ground that the sentence was manifestly excessive, characterising it as “a moderate sentence”.
[10] [2011] SASCFC 56.
In R v Mustac,[11] Mustac pleaded guilty to one count of trafficking in a large commercial quantity of cannabis. In early 2011, Mustac was caught by police on the South‑Eastern Freeway transporting 21 kilograms of cannabis destined for New South Wales. Mustac was 37 years old when sentenced in 2012. He had a prior conviction in 2007 for transporting 14 kilograms of cannabis destined for New South Wales. This Court held that he was to be sentenced on the basis that the offence was an isolated offence and not part of a course of conduct. Mustac was sentenced to imprisonment for three years, reduced from a starting point of four years. This Court allowed an appeal by the Director and held that the sentence was manifestly inadequate and sentenced Mustac to imprisonment for seven years and six months reduced from eight years.
[11] [2013] SASCFC 21.
In R v Hunt,[12] Yates pleaded guilty to trafficking in a large commercial quantity of cannabis and trafficking in cocaine. He was sentenced to a single term of imprisonment pursuant to section 18A of the Sentencing Act of 10 years, reduced from 12 years on account of his guilty pleas. A non-parole period of seven years was fixed. Yates was the principal involved in the importation into New South Wales of 45 kilograms of cannabis from South Australia. The offence was committed against a background of other trafficking offending involving an intention by Yates to offend in the same manner on a weekly basis in the future. Yates was in his early thirties and had become addicted to drugs following a neck injury. Yates was sentenced on the basis that his offending was not an isolated act and occurred as an ongoing course of conduct. Yates’ appeal on the ground that the overall sentence was manifestly excessive, was dismissed by this Court.
[12] [2012] SASCFC 74.
In view of the limited occasions upon which this Court has considered sentences for trafficking in large quantities of cannabis in relation to the principals of an operation, both parties made extensive reference to decisions of intermediate courts of appeal interstate. The Court has reviewed the large number of cases from all State and Territory jurisdictions (bar the ACT) to which its attention was directed. The very task of reviewing this array of decisions has reinforced, in our view, the very real limitations of such a comparison exercise. The differences between the various jurisdictions in nature (elements) of offences charged, in penalty regimes and in local approaches to sentencing, including, but not limited to, the extent of any leniency offered for a plea and in what circumstances and whether that leniency is to be reflected in the head sentence or only the recommended period before parole might be considered, are legion. When this is added to the fact that every case is different, as to the circumstances of the offending and the personal circumstances of the offender, it is not surprising that the most that can be hoped for when undertaking such a review is the obtaining of a “feel” for the type of sentences imposed in other jurisdictions in serious cases of cannabis trafficking. The quite limited review of some of the interstate and Northern Territory cases that follows must be seen in this light.
In R v Parsons,[13] Parsons pleaded guilty to trafficking in cannabis.[14] He sold cannabis imported from Papua New Guinea. He sold four kilograms of cannabis in April 1998 and 20 kilograms of cannabis to an undercover police officer for $100,000 in June 1998, agreeing to supply that quantity monthly. He was 50 years old when sentenced in 1999. He had a substantial criminal record, principally involving breaking and entering and other dishonesty offences. He had been sentenced to imprisonment on nine occasions between 1967 and 1973 but he had engaged in little offending with no terms of imprisonment since 1973. He was sentenced to imprisonment for eight years with a non‑parole period of three and a half years. The Queensland Court of Appeal refused leave to appeal on the ground that the sentence was manifestly excessive.
[13] [1999] QCA 402.
[14] Drugs Misuse Act 1986 (Qld) s 5.
In R v Brown,[15] Brown pleaded guilty to carrying on the business of trafficking in cannabis.[16] Brown and her husband imported cannabis from South Australia over a period of 14 months. They sold the cannabis in Queensland and New South Wales. The police located 3.2 kilograms in South Australia en route to the Browns in December 2000 and four kilograms of cannabis en route to the Browns in December 2001. The total cost of the purchases of cannabis from South Australia over the 14 month period was approximately $700,000. Brown had several prior convictions for offences of dishonesty between 1988 and 1996. She was sentenced to imprisonment for seven years with a non‑parole period of three years. The Queensland Court of Appeal refused leave to appeal on the ground that the sentence was manifestly excessive.
[15] [2004] QCA 229.
[16] Drugs Misuse Act 1986 (Qld) s 5. She also pleaded guilty to one count of unlawful possession of cannabis (in contravention of Drugs Misuse Act 1986 (Qld) s 9A).
In R v Wallace,[17] Wallace pleaded guilty to carrying on the business of trafficking in cannabis.[18] He was importing cannabis from South Australia at an average of 10 pounds per week over a 12 month period. The police located 3.973 kilograms of cannabis at his business premises and 3.23 kilograms of cannabis on route via a courier. Over a 12 month period, Wallace had sold about 236 kilograms of cannabis for a profit of about $100,000. He was 49 years old when sentenced in 2007. He had two minor drug convictions in 2000 and 2002. He made full admissions to the police and pleaded guilty. He was sentenced to imprisonment for seven years with a non‑parole period of two years and nine months. His appeal to the Queensland Court of Appeal on the ground that the sentence was manifestly excessive was dismissed.
[17] [2008] QCA 135.
[18] Drugs Misuse Act 1986 (Qld) s 5.
In R v Brienza,[19] Brienza pleaded guilty to carrying on the business of trafficking in cannabis.[20] Brienza participated in what the Queensland Court of Appeal described as part of an organised crime network trafficking commercial quantities of cannabis grown in South Australia. Brienza’s co‑accused, Diano, organised the acquisition of cannabis from producers in South Australia and arranged transport to Queensland. Diano admitted to organising the supply of at least 200 pounds of cannabis which was sold for approximately $600,000. Brienza acted as a wholesale distributor in the Gold Coast area. He supplied 70 pounds of cannabis in twelve transactions. Diano had a criminal history in South Australia, including a conviction for cultivation of cannabis. Brienza was 37 years old when sentenced and had no relevant criminal history. Diano was sentenced to imprisonment for seven years six months with a non‑parole period of two years six months. Brienza was sentenced to imprisonment for six years with a non‑parole period of two years. The Queensland Court of Appeal refused Brienza leave to appeal against sentence on the ground that it was manifestly excessive.
[19] [2010] QCA 15.
[20] Drugs Misuse Act 1986 (Qld) s 5.
In R v Broad,[21] Broad and Prior pleaded guilty to carrying on the business of trafficking in cannabis.[22] They were part of what was described by the Queensland Court of Appeal as an organised crime network, trafficking in commercial quantities of cannabis grown in South Australia and transported for sale into Queensland in motor vehicles especially modified to conceal the drugs. Janusaitis was the head of the operation. He received orders from Queensland distributors and procured the cannabis from Collis, who was responsible for the receipt and packaging of the cannabis in South Australia. Broad was one of Janusaitis’ customers and pleaded guilty to trafficking between June and November 2007 but did not otherwise cooperate with the police. Over this period, Broad was supplied with at least 122 pounds of cannabis by Janusaitis. Broad was sentenced on the basis that he resold the cannabis for a profit. Broad was sentenced to imprisonment for seven years with a non‑parole period of two years three months. Janusaitis was sentence to imprisonment for six years six months with a non-parole period of 20 months. Broad’s application for leave to appeal on the ground, inter alia, that the sentence was manifestly excessive was dismissed by the Queensland Court of Appeal.
[21] [2010] QCA 53.
[22] Drugs Misuse Act 1986 (Qld) s 5.
In R v Salter,[23] Salter pleaded guilty to carrying on the business of trafficking in cannabis.[24] In 2009, police located at Salters’ house 24 one pound packages of cannabis amounting to 11.2 kilograms in total. Salter made full admissions to the police that he had been trafficking in cannabis for the last three years in Queensland and for two years before that in South Australia. He imported on average 24 pounds of cannabis from South Australia per week, which he sold to four regular customers. He made a profit over the five years of at least $1.3m. He was aged 60 when sentenced. He had a substantial criminal history involving breaking and entering, other dishonesty offences and assault, and one previous conviction for a drug offence in 1991. He was sentenced to imprisonment for nine years with no non-parole period. He sought leave to appeal against sentence in respect of the refusal of the sentencing Judge to fix a non-parole period. He did not challenge the head sentence, which the Court of Appeal described as “entirely within range”. The Queensland Court of Appeal refused leave to appeal.
[23] [2010] QCA 284.
[24] Drugs Misuse Act 1986 (Qld) s 5. He also pleaded guilty to possession of cannabis (in contravention of s 9A of the Drug Misuse Act 1986 (SA)).
In considering the Queensland authorities to which we have referred, it is important to bear in mind the particular form of the offence of drug trafficking enacted by s 5 of the Drugs Misuse Act 1986 (Qld). Section 5(1) of that Act provides:
5 Trafficking in dangerous drugs
(1) A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime.
Maximum penalty
(a)if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1—25 years imprisonment; or
(b)if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2—20 years imprisonment.
In R v Jacobs[25] the offence enacted by that section was described as a continuing single offence which could be committed by engaging in multiple commercial transactions of more than one dangerous drug. A judge sentencing for an offence against s 5(1) of the Drugs Misuse Act 1986 (Qld) may therefore make findings, consistently with the verdicts or other sentencing materials, as to the totality of the offending over the period charged and fix a sentence which is proportionate to the totality of that conduct. In South Australia, by contrast, a judge must sentence for the particular offences of which the defendant has been convicted, the trafficking context in which the offences were committed can do no more than inform the prospects for rehabilitation on the one hand or the degree of personal deterrence on the other which that sentence must reflect. To put it in the shorthand way in which it is often expressed, an offender sentenced for an offence committed in the course of commercial trading cannot expect the leniency which might be afforded to a defendant who commits an isolated offence. In this State the ultimate sentence for multiple offences will also reflect the exercise of the sentencing discretion to impose those sentences cumulatively or concurrently, in whole or in part, even when resort is made to the facility of s 18A of the Sentencing Act. It is therefore important that both the prosecution and the defence pay careful attention to the offences which are charged, and to the counts and basis on which guilty pleas are negotiated.
[25] (1997) QCA 114.
Sentencing judges will, of course, exercise their discretion as to the degree of concurrency, if any, which should be allowed as between sentences, not only by reference to the offending of which the defendant has been convicted, but also by reference to the course of offending as a whole. In that way sentencing judges may ameliorate to some degree the over or under charging of defendants relative to the course of conduct of which the charged offences are part. However, the point we wish to emphasise is that it is the number and nature of the charges of which the defendant has been convicted which is the primary determinant of the objective features of the offending and not a global assessment of the background uncharged offending. In comparing sentences in those jurisdictions which, like this State, charge individual transactions, it is therefore necessary to have regard to both the particular charges on which the defendant is being sentenced as well as the context in which the charged offending occurred. The merits of adopting in South Australia a provision like s 5(1) of the Drugs Misuse Act 1986 (Qld) deserves the attention of the legislature.
In Daniels v The Queen,[26] Daniels pleaded guilty to two counts of aggravated unlawful possession of cannabis.[27] In June 2006, Daniels was found in possession of 0.6 grams of cannabis together with cash and the proceeds of a larger portion of the cannabis which he had sold to members of the Ngukurr Community. In October 2006, he was found in possession of 1.2 kilograms of cannabis en route to the Ngukurr Community. The sentencing Judge characterised Daniels as a “party to a major drug distribution activity” who “embarked upon major activity as a reseller of cannabis” for his supplier. The October offence was committed while Daniels was on bail in respect of the June offence. He was 28 years old when sentenced. He had a criminal history including three assault offences and five drug offences involving small quantities of cannabis. His offending was in breach of a two year bond which had been imposed upon his conviction for the drug offences in June 2005. Daniels was sentenced to imprisonment for seven years, which reflected a discount of 25 per cent on account of his pleas of guilty. Daniels appealed against the sentence on the ground that it was manifestly excessive. The Court of Criminal Appeal held that sentences which had been imposed in the Northern Territory in the past were too low and penalties should be increased to reflect the need for greater general deterrence, particularly in relation to commercial drug offending within Aboriginal communities. The Court held that, under past sentencing standards, the total sentence was excessive and reduced it to five years and nine months. However, the Court held that in future the sentencing standards should be increased and, if the sentence had been measured against that new standard, it would not have been excessive.
[26] [2007] NTCCA 9.
[27] Drugs Misuse Act 1986 (Qld) s 5.
Supply to disadvantaged peoples
The sentencing Judge took into account in sentencing the defendants the fact that a substantial proportion of the end users of the cannabis comprised people on the APY Lands who suffered significant social and economic disadvantages and were likely to be adversely affected by the continuing supply of cannabis.
During sentencing submissions, the Director submitted that the fact of supply to such persons gave rise to a particular need to focus upon general deterrence in fashioning an appropriate sentence. As earlier observed, the Director called evidence with a view to demonstrating the harm which is caused by cannabis to end users in the APY Lands. During sentencing submissions, the defendants did not dispute that this was a relevant factor but contended that the Director had not demonstrated that particular harm was caused by the use of cannabis by people on the APY Lands. A large proportion of the cross-examination of the witnesses called by the Director was devoted to the question whether cannabis use causes schizophrenia, being a question which the Judge did not find it necessary to decide.
Section 10(1) of the Sentencing Act requires a sentencing court to have regard, inter alia, to any “injury, loss or damage resulting from the offence” and “the deterrent effect any sentence under consideration may have on the defendant or other persons”. In the circumstances, it was appropriate for the sentencing Judge to have regard to the effect of the supply of cannabis upon end users who were people on the APY Lands. There can be no doubt about the potential for the regular supply of cannabis in large quantities to cause significant harm to the relatively small (in population) and highly vulnerable communities in the APY Lands. The evidence before the Judge supports a finding that excessive availability and use of cannabis within the APY communities is productive of severe social (including domestic violence) and economic problems. The description given by the Judge (quoted earlier in these reasons at para [26]) is entirely apposite. The fact that the defendants may not have intended or wished to cause harm is not to the point. They targeted this market of vulnerable people for the reasons given by the Judge. We agree with the Judge that this is to be regarded as a seriously aggravating feature of the offending.
Level of the sentences
In this case no specific error by the Judge has been demonstrated. Nevertheless, the question before the Court is whether the final sentences imposed by the Judge are manifestly excessive, that is, sentences that, upon the facts, are unreasonable or plainly unjust.[28] Counsel for each defendant submits that, having regard to the personal circumstances of each defendant and the circumstances of the offending itself, the starting points were unreasonably and plainly unjust with the consequences that the final head sentences and non-parole periods are also to be so characterised.
[28] House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ; Markarian v The Queen (2005) 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
As observed above, the legislature has distinguished between cannabis on the one hand and other drugs such as heroin and amphetamines on the other hand in terms of the harm caused by the drug. In general, trafficking in a drug such as heroin is to be dealt with more severely than is trafficking in cannabis. However, this matter is rendered more complex by the aggravating feature of knowingly targeting a very vulnerable community and in doing so for the reasons given by the Judge. As such these defendants can expect to be treated more severely than would other defendants engaged in a similar level of offending involving cannabis in the absence of such an aggravating circumstance.
Nevertheless, after taking into account this aggravating feature and other decisions of this Court and of interstate intermediate appellate courts concerning sentencing for trafficking by principals of substantial quantities of cannabis, we are of the view that the starting points in each case were too high and manifestly so leading to sentences that were manifestly excessive. The sentences should be moderated but not by as much as otherwise had the vulnerable community aggravating feature not been present.
Re-sentencing
Faehrmann pleaded guilty to two counts of trafficking in cannabis and one count of trafficking in a large commercial quantity of cannabis. Taking into account all relevant circumstances, an appropriate starting point for Faehrmann is imprisonment for 10 years. In recognition of his pleas of guilty, this should be reduced to a term of imprisonment of seven years and six months. This sentence should be cumulative upon the revoked sentence of 15 months’ imprisonment, giving a total of eight years and nine months. A non-parole period of five years and ten months should be fixed.
Moore pleaded guilty to four counts of trafficking in cannabis and one count of trafficking in a commercial quantity of cannabis. Moore pleaded guilty to two additional counts of trafficking compared to Faehrmann. He pleaded guilty to one count of trafficking in a commercial quantity of cannabis compared to Faehrmann’s plea to one count of trafficking in a large quantity of cannabis.
The Judge adopted different starting points for Faehrmann (12 years) and Moore (11 years). Whilst the charges as laid differed between these two defendants, this was largely a matter of happenstance given the nature of the overall operation and the similar role each played in it as principals. Both had significant prior criminal records although Moore’s is worse particularly insofar as prior drug offending is concerned. As against this, Moore can be regarded as having faced more significant difficulties during his upbringing (including as the Judge described it, violent and appalling abuse whilst in State care) and early adult years.
However, what seemed to be of some significance to the Judge was a particular, at the time, unresolved medical condition with which Moore was suffering. There was, at the time of sentencing, quite some uncertainty concerning prognosis, the extent that chronic pain would continue into the future, the effect imprisonment would have on Moore’s condition and as to the likelihood of a further operation being required and, if so, the extent to which it might ameliorate his condition. The Judge was plainly concerned about this issue but concluded that only a modest allowance could be given on the basis of this personal circumstance. Nevertheless, it does seem that for this reason a lower than otherwise starting point was settled upon. It goes some way, at least, to explaining the 11 year starting point for Moore.
During the appeal, further information was sought and provided to the Court concerning Moore’s medical condition and the extent to which he is coping with prison life in this respect. In essence, and following further treatment after the sentence was imposed, the condition appears to have been effectively resolved. It has resolved at least to the extent that it is no longer to be considered as a material personal circumstance or a reason to distinguish Moore from Faehrmann.
In all of the circumstances, we see no reason now to distinguish between Faerhmann and Moore and would adopt the same starting point for Moore of imprisonment for 10 years, again, reduced to seven years and six months on account of his guilty pleas. This should be cumulative upon Moore’s unexpired period of parole of 18 months and 14 days which must be served, giving a total head sentence of nine years and 14 days. A non-parole period of six years should be fixed.
Price-Austin contends that the starting point adopted by the sentencing Judge of imprisonment for nine years and the head sentence imposed of six years and nine months are manifestly excessive. He also contends that the Judge failed to have sufficient regard to matters personal to him.
Price-Austin was at a lower level in the drug trafficking business to that occupied by Faehrmann and Moore. He was not a principal of the business but received a fixed remuneration of $1,500 per four pound lot. He acted as the hands on manager of the operation at Mintabie.
Unlike Faehrmann and Moore, Price-Austin did not commit the offences in breach of a suspended sentence bond or parole. Price-Austin did not have serious prior convictions and had not previously been sentenced to imprisonment or a suspended sentence.
Price-Austin made a personal apology in court addressed to members of the APY community and the Judge accepted that he was contrite concerning his offending. He had a significant involvement in voluntary work for the local CFS and SES.
In all of the circumstances, the head sentence of six years and nine months was manifestly excessive. On re-sentencing, an appropriate starting point is imprisonment for six years and six months, which should be reduced to four years and ten months on account of his guilty pleas. A non-parole period of two years and eleven months is fixed.
Conclusion
The Court makes the following orders:
Faehrmann
1. Appeal allowed.
2. The sentence imposed by the Judge is set aside.
3.Faehrmann is sentenced to a term of imprisonment for seven years and six months to be served cumulatively on the earlier imposed sentence of 15 months the suspension of which is revoked.
4.The existing non-parole period (fixed with respect to the earlier 15 months sentence) is extended to five years and ten months.
5.Both the total head sentence of eight years and nine months and the non-parole period of five years and ten months are backdated to commence 1 November 2012.
Moore
1. Appeal allowed.
2. The sentence imposed by the Judge is set aside.
3.Moore is sentenced to a term of imprisonment for seven years and six months to be served cumulatively on a period of unexpired parole of 18 months and 14 days.
4. A new non-parole period of six years is fixed.
5.Both the total head sentence of nine years and 14 days and the non-parole period of six years are backdated to commence 1 November 2012.
Price-Austin
1. Appeal allowed.
2. The sentence imposed by the Judge is set aside.
3.Price-Austin is sentenced to a term of imprisonment for four years and ten months with a non-parole period of two years and eleven months.
4.Both the head sentence and non-parole period are backdated to commence 1 November 2012.
5
18
1