R v Galang No. Sccrm-02-276

[2002] SASC 440

R  v  GALANG
[2002] SASC 440

Court of Criminal Appeal:  Doyle CJ, Mullighan and Besanko JJ

1. DOYLE CJ          I would allow the appeal.  I agree with the orders proposed by Mullighan J, and with the reasons that he gives for making those orders.

2. MULLIGHAN J The appellant pleaded guilty in the District Court to three counts of selling methylamphetamine and one count of possessing methylamphetamine. One sentence for all of these offences was imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. He was sentenced to imprisonment for three years and six months with a non-parole period of two years. He appeals against that sentence.

3. He was born in the Philippines in 1964 and migrated to Australia in June 1980 with his mother and brother. He is now aged 38 years.

4. The offences of selling methylamphetamine at Mile End occurred on 6^th, 11^th and 25^th September 2001 and the offence of possession of that drug occurred at the Noarlunga Centre on 14^th November 2001. The offences of selling the drug were detected in consequence of an undercover operation undertaken by police officers. At relevant times the appellant lived in a shed at house premises at Plympton Park. He drove a Ford Falcon sedan. The police used an undercover operative who was given the name “Michelle Watt”.  I shall refer to her by the first of those names.

5. In view of the main basis of the appeal, which I shall mention in due course, it is necessary to mention the evidence against the appellant in some detail.

6. The incident which is the subject of the first charge occurred on 6^th September 2001.

7. At about 2.07 pm on that day, Michelle was in the poker machine area at the Mile End Hotel and was speaking to a male person who identified himself as “John”. She recognised the appellant from a photograph she had seen earlier in the day. John spoke to the appellant who went over to them. The following conversation occurred:

   “Appellant:          What do you want?

   Michelle:I’ve been sitting outside the hotel all morning waiting for you.

   Appellant:What are you after?

   Michelle:Just a point.

   Appellant:No worries, I’ll be back.”

   A point is a small quantity of methylamphetamine.

8. A short time later, Michelle saw the appellant sitting at a poker machine. She approached him and sat next to him. There was further conversation which was recorded electronically. The appellant said that he had not had any luck, presumably in playing the poker machine. He then placed a small press seal plastic bag containing methylamphetamine into the tray of the poker machine in front of Michelle. She thanked him and collected it. In answer to her question, he told her that it would cost her “thirty five”, no doubt meaning $35. The appellant then said, “That’s very nice. I make it bigger because you’re a friend of John’s so.” She paid him $30 in cash. Michelle then asked him if he had a telephone number so that she could call him so that she did not have to sit out the front of the hotel waiting for him. The appellant gave her his telephone number and told her that she could ring him any time of the day. The contents of the small plastic bag were analysed. Unfortunately the certificate of the analyst was not included in the appeal book and cannot now be found. Neither the prosecution nor the appellant have a copy. All that is known to the Court about the quantity of the drug sold on this occasion is what the appellant’s then counsel told the learned sentencing Judge. He said that it contained a trace of methylamphetamine.

9. The incident, which is the subject of the second charge, occurred on 11^th September 2001. On that day at 4.01 pm Michelle telephoned the appellant. The conversation was recorded electronically. Part of the conversation has assumed particular importance for reasons which I mention shortly. This part of the conversation is:

   “Michelle:           Hello, Eddie.

   Appellant:         Who this?

   Michelle:           Hi, how are you going, it’s Michelle.

   Appellant:         Which Michelle?

   Michelle:           John, John’s friend from the Mile End.

   Appellant:         Oh yeah, how are you going?”

   Michelle asked if she could catch up with the appellant on that day. He said he was “there”, presumably meaning the hotel and she said she would see him in about fifteen or twenty minutes.

10. Michelle went to the hotel at about 4.20 pm and saw the appellant walk from the hotel to his motor vehicle. She went to the vehicle and saw him sitting in the driver’s seat. She had a conversation with him which was also recorded electronically. The appellant told her to jump in the back of the vehicle and reached over and opened the rear driver’s side door for her. He said it was “too hot” at that location and he would drive around the corner. She declined to enter the vehicle and walked to the hotel car park at the back of the hotel which had been designated by the appellant. She approached the vehicle again and sat in the rear driver’s side seat at the request of the appellant and they had a conversation, which was also electronically recorded.

11. It is unnecessary to set out all of this conversation. I mention only the important parts of it. The appellant again said that it was “too hot”. The conversation proceeded:

    “Appellant:Yeah, it better because their Eddie, Eddie I’m sick of it you know there’s people chasing me chasing me for credit they want business they give me [indecipherable]. Yeah, um.

    Michelle:Can I just grab a couple from ya?

    Appellant:Yeah, alright because you always, alright I give you ah. Three, three for ninety [indecipherable].”

    At that stage the appellant put his hands in the area of his groin and produced six small press seal plastic bags. The conversation then continued:

    “Michelle:Oh no just a couple that’s all want for now.

    Appellant:Alright.

    Michelle:Thanks.

    Appellant:Right.”

12. The appellant then handed her two plastic press seal bags. According to the submission of the appellant’s counsel to the Judge, subsequent analysis revealed that their contents contained only a trace of methylamphetamine. There was further conversation about meeting again in the same location and the price of the methylamphetamine. The appellant told her it was $75. She told him she paid $30 for one the other day. A bargaining process ensued with the appellant offering $70 for two points and Michelle saying that she had $60. Agreement was reached and she paid that amount.

13. The appellant was also charged with taking part in the sale of methylamphetamine on 17^th September 2001. It seems that upon his pleas of guilty to other charges, the Director of Public Prosecutions accepted those pleas in full satisfaction of the information and did not proceed with this charge. It does not appear that a nolle prosequi was entered but the procedure is of no consequence on this appeal. I mention the incident, which is the subject of this charge, for reasons which I mention later.

14. On 17^th September 2001 Michelle made another telephone call to the appellant which was also recorded electronically. She asked to see him again and they arranged to meet later in the day at the car park where they met on the previous occasion. Michelle went to the car park during the afternoon. She saw the appellant with another man known as “Don” in a motor vehicle and then walking towards the entrance to the hotel. Michelle approached them. The appellant went into the hotel and she had a conversation with Don which was recorded. The conversation was as follows:

    “Michelle:         How are ya going? Where’s Eddie going?

    Don:Ah, Um I’m dealing with for Eddie at the moment, How’s it going what’s you name?

    Michelle:Michelle.

    Don:Don.

    Michelle:Oh, ooh.

    Don:Sorry, sorry about that.

    Michelle:No that’s all right how are you going Don?

    Don:Not to bad, Um, now he said, ‘I’ve got the three at the moment he said three for eighty or two for sixty.’

    Michelle:I only just want one.

    Don:Is that what he said.

    Michelle:No yeah I only want one.

    Don:One all right thirty.

    Michelle:Yeah, that’s cool.”

    They then walked to what appeared to be the appellant’s motor vehicle and then across a road. Don handed her one small plastic bag for which she paid him $30. Upon being asked by Michelle, Don said that he was doing this for the appellant because of the adverse emotional and physical state of Eddie at the time. He said she was still to call Eddie and that if he needed him to take “care of it, I’ll come and do it”. The contents of the plastic bag handed to Michelle by Don were subsequently analysed but all that is now known is that they contained a trace of methylamphetamine.

15. These conversations, and the incident of sale of the drug, occurred in the absence of the accused. I mention the significance of the incident later.

16. On 21^st September 2001, Michelle again contacted the appellant by telephone and their conversation was later recorded by Michelle:

    “Michelle:Good thank you, can I see you again?

    Appellant:Where?

    Michelle:The Mile End, the same place as usual.

    Appellant:How much do you want?

    Michelle:Just one.

    Appellant:Okay, how about half an hour?

    Michelle:Yeah okay.

    Appellant:See you then.

17. Michelle:          Okay.”

    A little later Michelle went to the hotel and could not locate the appellant. She telephoned him again and there was no answer. Later she did speak to him by telephone and he told her that he was on his way. It appears that the appellant did not keep his arrangement to meet Michelle.

18. The incident, which is the subject of the fourth charge, occurred on 25^th September 2001. Michelle spoke to him on the telephone on that day. He told her that he did not keep the previous arrangement because “something happened”. Again he arranged to meet her in 20 minutes.

19. Michelle went to the hotel and saw the appellant parking his motor vehicle. She approached him and had a conversation with him which was electronically recorded. She asked him what happened the other day and he said his motor vehicle “blew up” and he was stuck in Salisbury. The conversation continued:

    “Appellant:       What are you after?
      Michelle:                Just one thanks.
      Appellant:     Okay.”

    At that time the appellant lifted the first of several layers of mattress stuffing on the top of the console of the motor vehicle and Michelle saw several empty small plastic bags. He then lifted the second layer and she saw a larger plastic bag containing white powder. The size of the bag was nine centimetres by five centimetres and the powder was to a level of one half a centimetre. According to Michelle, the appellant removed powder from this bag with a nail file and placed it into one of the smaller bags. The conversation continued:

    “Michelle:So you’re busy today are ya?

    Appellant:Yeah.

    Michelle:Where have you been today?

    Appellant:Ah just been running, running around.

    Michelle:Oh.

    Appellant:People there, there, there, there. I’m only suppose to be doing for one, one like this but I don’t want to let you down. You see.

    Michelle:Oh, you don’t like doing one.

    Appellant:No, no, no I mean, it’s are you bit special really you know.

    Michelle:What do you normally do? like.

    Appellant:I do a half.

    Michelle:Oh.

    Appellant:I do half, hundred ah or, or one eight for a gram. But if you want to buy a half I’ll give it to you for ninety. All right.

    Michelle:A half for ninety.

    Appellant:Yeah, you get your money back straight away.”

    There was further conversation between them. The appellant told Michelle that on the previous night he was “hassled by cops”. He said they left him alone and he spoke to his lawyer. He then handed the small plastic bag to Michelle and she gave him $30. There was some further conversation and then:

    “Michelle:Well, may be I’ll get um a couple of friends to put some money in and then they will, I can I can get there.

    Appellant:It’s better, you know. You get more.

    [unable to decipher]

    Michelle:Huh.

    Appellant:I can give it to you huh for you special I give you one.

    Michelle:[laughing]

    Appellant:Unable to decipher

    Michelle:So how much is it for?

    Appellant:A half, I give for ninety, one eighty for a gram all right.

    Michelle:Okay. All right.

    Appellant:[unable to decipher]

    Michelle:Is it; is it best to catch you around this time? Like.

    Appellant:Oh, anytime, anytime ring me up all right.”

20. The small plastic bag contained only a trace of methylamphetamine.

21. The incident which is the subject of the fifth charge occurred on 14^th November 2001. Police officers had the appellant’s motor vehicle under observation at a car park at the Colonnades Shopping Centre at Beach Road, Christies Beach. The appellant and another man approached the vehicle. The appellant was arrested for selling amphetamines. When the vehicle was searched two small plastic bags containing amphetamine were found, one under the head rest of the front passenger seat and the other under a carpet mat in the centre console. They found a brown leather bag in the boot which contained a number of small plastic bags.  They also found a small spoon on the centre console. There was an amount of powder residue on the spoon. There was a black jacket on the back seat and a small plastic bag containing amphetamine was found in the pocket of that jacket.

22. Later that day, police searched the shed in which the appellant was living and found a plastic bag containing a substance which the prosecution alleged was amphetamine and which the appellant asserts was glucose. This issue is not resolved and I have proceeded on the basis that the substance could have been glucose. They also found a quantity of empty plastic bags. When the appellant was interviewed by police, he refused to answer any questions about the offences.

23. The appellant has been in custody since his arrest.

24. When first arraigned in the District Court, the appellant pleaded not guilty to all charges and was remanded for trial. There were three directions hearings and then the appellant came before the Judge on 1^st July 2002. He pleaded guilty to the first, second and fourth charges and on the fifth charge to simple possession which plea was accepted. On 2^nd July 2002 the Judge heard submissions. On 18^th July 2001 the appellant was convicted of unlawful possession and sentenced to imprisonment for one month which sentence was suspended upon his entering into a bond to be of good behaviour for 12 months. The offences, which are the subject of the appeal, constituted a breach of that bond and the bond was estreated and the suspension of the sentence revoked. He was remanded in custody pending sentence and sentence was imposed on 9^th July 2002.

25. The Judge sentenced the appellant on the basis that he was part of the supply chain of the drug to Michelle. The appellant had seen Dr Raeside, a forensic psychiatrist, who had provided a report which was placed before the Judge. The appellant told him that he did not supply the drug to Michelle for profit, but because he was attracted to her and was interested in helping her. She approached him for the drug and he sold her part of his supply for his own use because he hoped to have a sexual liaison with her. That contention was rejected by the Judge. He found that submission to be contrary to the recorded conversations. In his remarks on sentencing he said:

    “The overwhelming inference from your conversations with her is that you had amphetamine for sale and would respond to her calls. You gave her your phone number and you did [sic]. You also made it quite plain that you were able to provide larger quantities should she require.”

26. The Judge said that, but for the pleas of guilty, he would have sentenced the appellant to imprisonment for five years. He made a reduction of 15 per cent on account of the pleas of guilty, thereby reducing the sentence to imprisonment for four years and three months. He then fixed what he called a “notional” non-parole period for two years and nine months. The appellant had been in custody since 14^th November 2001, a period of nearly eight months. The Judge mistook that period to be about nine months and reduced both the head sentence and the non-parole period by nine months. The head sentence was fixed at three years and six months and it was ordered that it be served at the expiration of the sentence of one month, which the Judge said was to commence on the day of the sentencing. Having fixed a non-parole period of two years, the Judge said to the appellant that he would remain in prison for two years and one month from the day of sentencing. It appears that he did not have regard to the total period of imprisonment, namely one month and three years and six months, when fixing the non-parole period but ordered that the non-parole period commence when the sentence of one month had been served. That approach is erroneous and must be corrected on this appeal. That matter is the subject of a ground of appeal and is conceded by the respondent.

27. There are two other grounds of appeal, that the head sentence and the non-parole period are manifestly excessive and that procedural fairness was not accorded to the appellant when the Judge rejected the factual basis of the plea in mitigation. It is convenient to consider first the second of those grounds.

28. The appellant’s contention is that the Judge should not have rejected the factual basis put forward by him as to the circumstances of the offences involving Michelle. The basis put to the Judge was that Michelle had approached the appellant, he found her approach welcome, he was attracted to her and was more than willing to sell to her for that reason and also to impress her. His telling Michelle that he could supply more of the drug was no more than a boast. That factual basis was contested by the prosecutor. It was the prosecution case that the appellant was in the business of selling drugs and the Judge was referred to the evidence of Michelle, which I have mentioned. The prosecutor submitted that the conversation revealed that the appellant was offering to sell to Michelle larger quantities of the drug.

29. In support of this ground the appellant filed an affidavit. He deposed that he was not informed by his counsel at the sentencing hearing, who is not Mr White who appeared for him on this appeal, that he could have given evidence to the Judge, as to the reason for his selling the drug to Michelle. Had he been so advised he would have given evidence along the lines of the submission which had been made on his behalf. An affidavit sworn by his counsel at the sentencing hearing was also filed. He deposed that he did not have any independent recollection of whether he told the appellant that he could give evidence, but that it was likely that he did not do so. This affidavit is very brief. It was sworn and filed in support of this appeal. It is of very little assistance to the Court. I would have thought that this legal practitioner would have made some attempt to assist the Court. It would be very surprising indeed if a practitioner of his experience did not inform his client that he could give evidence and the likely consequence if he did not do so. He did not explain why it was likely that he did not give the advice to the appellant.

30. We received those affidavits on the appeal. Upon his application we allowed the appellant to give evidence on the hearing of the appeal because of a concern that, in the circumstances, there may have been an injustice. His evidence was along the lines of the submission which had been put to the Judge.

31. It is necessary that I refer to his evidence in some detail. He said that he was in receipt of unemployment benefits of $218 per fortnight. He made occasional payments of $50 or $60 per fortnight for rent. He also had the expense of running a motor vehicle and bought his own food and other necessities. He said that he purchased the drug for his own use. He bought half a gram for $100, usually each fortnight. He said that this supply would last him about three days. According to him, half a gram can be divided into four to five points.

32. The appellant said that on the occasion of the incident which is the subject of the first charge, he was at the hotel playing poker machines when a man known to him by the name of John introduced Michelle to him. The appellant said in evidence that he thought she was “alright” and perhaps he could take her out. He said that at this time he had about three points of the drug in his vehicle. He had just purchased his usual half a gram from his supplier. He had used a little and had the rest in his vehicle. He said that he sold the drug to Michelle because he had been told that she was alright, presumably meaning that it was safe for him to do so and he thought he could take her out. He claimed that he did not want to take the money.

1. Thereafter until the next offence was committed, the appellant said that Michelle kept ringing him. On one occasion she said that she wanted to meet him at the hotel. He said that he sold her the two bags containing the drug for $60 because he wanted to go out with her. He was trying to impress her. He agreed that he told her that people were chasing him for credit, which was not true. According to the appellant, he said that to her because he wanted to impress her.

2. On another occasion he said that he falsely told Michelle that his motor vehicle had broken down because he did not have any money and drugs. He made that statement as an excuse for not meeting her.

3. The appellant said that he told Michelle on 25^th September 2001 that she was “a bit special”. He told her he could sell her half a gram in order to impress her. He said he did not have half a gram to sell. His statement to her that he had been hassled by the police was also untrue and was said by him to impress her.

4. The appellant said that the plastic bag taken from the shed where he lived contained glucose which he mixed with the methylamphetamine. He said that apart from the occasions which are the subject of the charges involving Michelle, he did not sell any methylamphetamine. He said the plastic bags in his motor vehicle on 25^th September were his but he denied that he had a larger bag containing white powder. He said that he took some of the drug from one small plastic bag and placed it in the small bag which he sold to her. He used a small spoon. Whether he had a larger bag of methylamphetamine in the vehicle on this occasion was not resolved on this appeal. It is the part of Michelle’s statement which is not accepted by the appellant. She was not called to give evidence and so I have proceeded on the basis that it has not been established that the appellant did have a larger bag in his possession on this occasion.

5. I do not accept the evidence of the appellant as to his reason for selling the drugs to Michelle. The other evidence establishes that the appellant was a small time seller of the drug.

6. First, I mention what was seen by Michelle and found by the police. He had small press seal plastic bags in the shed where he lived and in his motor vehicle. He had glucose in the shed and said that he was aware that drug dealers did “cut” the drug by mixing it with glucose to make more powder to sell. He said that the drug which he bought was pure and that he mixed glucose with it, although he said he did so for his own use. Michelle saw the drug in his motor vehicle and he acknowledged that he kept it in the vehicle. He had press seal plastic bags in his vehicle and the small plastic spoon which he acknowledged he used to place the drug in other plastic bags. I accept that he had the usual paraphernalia of a small time drug dealer.

7. The circumstances of the incidents are revealing. On the first occasion the appellant did not know Michelle. I have set out the conversation. It is the sort of conversation to be expected between a drug dealer and a customer. The first thing he said was to ask her what she wanted and she told him. Without any enquiry as to why she said she had been sitting outside the hotel waiting for him, he went to his motor vehicle and obtained the drug. There is no suggestion in this very brief conversation that the appellant was talking to her due to infatuation or that he was exploring any possibility of a sexual liaison. He spoke and acted like a drug dealer dealing with a purchaser. The subsequent conversation after he returned to the poker machine involved brief discussion about the price Michelle had to pay and the transaction occurred. This incident is typical of a drug selling commercial arrangement. Also, it is significant that he had the drug in his possession. It will be remembered that his evidence was that he only purchased half a gram at a time for his own use which usually lasted about three days. On his case, it must have been mere coincidence that Michelle approached him soon after he had purchased a supply. Furthermore, his story is not consistent with the conduct of a person who does not sell the drug. He did not say anything which is consistent with his not being a dealer, such as “Sorry I am not a dealer”. If he sold because of sexual attraction, this desire must have arisen very quickly and he must have decided to become a dealer to her in an instant. As has been mentioned, it appears that the analyst found only a trace of methylamphetamine in the powder which was handed to Michelle on this occasion. If the drug purchased by the appellant was pure, or nearly so, he must have cut it to make it go further soon after he purchased it and kept it in his motor vehicle. That is the sort of conduct which could be expected from a drug dealer who was dealing from his motor vehicle. In my view, the appellant’s version of this incident lacks plausibility.

8. The second occasion is also typical of a drug selling transaction. When asked by Michelle for a couple of points, he readily agreed and tried to sell her three points. His production of the six press seal bags suggests that he was ready to sell more than two. As on the first occasion, there was some bargaining about the price which seems to be inconsistent with supplying the drug to her because he wanted to impress her and have a sexual encounter with her. Furthermore, it will be seen that when she spoke to him on the telephone and said it was Michelle speaking he said, “Which Michelle”. That response is consistent with a drug dealer speaking to a customer whom he had only met briefly on a previous occasion. I do not think it is consistent with a person who was so sexually attracted to a woman that he wanted to impress her.

9. When he was asked in cross-examination if he had ever asked Michelle to go out with him, he said that he did so on the second occasion, after she sat in his motor vehicle and before the sale took place. According to him, he asked her if she wanted to go out that night and she said she was busy with friends.

10. It will be remembered that the conversation on this second occasion was recorded electronically. The transcript of the recording reveals that no such conversation occurred. There are three brief parts of the conversation which could not be deciphered. The first occurs during the brief assertion by the appellant that others were chasing him for credit. The second occurs when Michelle asked for two points of the drug and the other, in two parts, occurred after the appellant produced the press seal bags. It was agreed by the appellant that there was no challenge to the accuracy of the statement of Michelle in which these conversations are set out.

11. I reject the evidence of the appellant about this alleged conversation. I accept that if it had occurred, it would have been recorded. I conclude that it has been invented by the appellant to advance his case because if his story were true, it is likely that he would have asked her to go out with him.

12. I now turn to the events of 17^th September 2001. It was submitted that these events are of no relevance because the appellant was not present when the man Don sold a small bag of the drug to Michelle. Whilst the evidence indicates that Don was selling on behalf of the appellant, the conversation between Don and Michelle and the sale occurred in the absence of the appellant and all of the other evidence does not establish that Don was acting as the appellant’s agent or that they were engaged in a common enterprise. However, there are features of the events on that day which have significance and which are admissible against the appellant.

13. Don was his neighbour. The appellant gave evidence that they went to the Mile End hotel following a telephone call to him from Michelle. He said that he did not have any drugs but Don had some for his own personal use. The accused said to Don, “Let’s go and see her. If you got some you can make money”. If he was trying to impress her and ingratiate himself for sexual purposes, it is unlikely that he would have encouraged his neighbour to commit a criminal offence involving her and to profit from her. According to the appellant, they went to the hotel in his motor vehicle. He pointed out Michelle to Don and then went inside to play poker machines. He said that he did want to talk to Michelle on that day but he did not do so because he did not have any drugs. He said that he still wanted to take her out but was embarrassed because he did not have any drugs and he felt that she was using him for drugs.

14. If the appellant had such a strong sexual attraction to Michelle which was the reason for trying to impress her and to sell drugs to her, it is likely that he would have wanted to be with her to try to advance his prospects. It is possible, but unlikely, that he would have ignored her and passed up the opportunity to be with her because he was embarrassed. If that was so, it is likely that he would not have remained at the hotel because she could have approached him at any time and he would have had to tell her that he did not have any drugs, thereby increasing his level of embarrassment. I reject the appellant’s evidence concerning this incident. To my mind, the conduct of the appellant is entirely consistent with the behaviour of a drug dealer who was indifferent to the customer, except for the purpose of sale.

15. The appellant gave evidence that Michelle was constantly telephoning him but he did not contact her. He said he was sick of her ringing up and asking for drugs. The statement of Michelle, which is accepted by the appellant as accurate, indicates that she did attempt to contact him by telephone on various occasions but the evidence does not reveal if he knew of those attempts at the time. Apart from the telephone conversations which have been mentioned, there were no other occasions when Michelle spoke to the appellant by telephone.

16. As to the occasion of the incident on 25^th September 2001, the appellant said that “.... maybe this is the last time I am going to see her”.  He thought that if she would not agree to go out with him, he would not sell her any more drugs. He went on to say that he had decided not to deal with her any more. It may be seen that on this occasion the appellant told Michelle that she could ring him up at any time. He did not ask her to go out with him.

17. I reject this evidence of the appellant. It is plain from the conversation that he would sell to Michelle half a gram of the drug. He suggested that buying a larger quantity would be better for her. She could have half a gram for $90. She had been purchasing a point for $30. He said he would make the supply bigger for her which she rejected. He offered to sell one gram for $180. That conversation contradicts the assertions made by the appellant as to his purpose on this occasion. Again, the evidence about this incident reveals a typical drug transaction.

18. Mr White submitted that the appellant was not seen selling the drug to anyone apart from Michelle which indicates that his story is reasonably possible and should be accepted for the purposes of sentencing. I do not think it can be safely assumed, even as a reasonable possibility, that because Michelle did not see him sell to anyone else, that he did not do so. It is clear from her statement that she usually went to the hotel after having made an arrangement to meet the appellant.

19. There is one final matter. I have mentioned the appellant’s evidence as to how often he purchased methylamphetamine, how long it lasted in his possession and the suggested coincidence that he happened to have some of the drug in his car when he first met Michelle. The same observation may be made about the occasions which are the subject of the second and fourth charges. She telephoned him and made the arrangement to see him on the same day as he sold the bags of the drug to her. The second of these incidents occurred only five days after the first occasion. His evidence that he purchased the drug usually each fortnight for his own use does not sit comfortably with what happened. Once again, he had the drug for sale the same day as she contacted him.

20. For all of these reasons, I do not believe the appellant and I reject his evidence as to his reason for selling the drug to Michelle. Consequently, his not giving evidence before the Judge is of no consequence and the alleged failure of his counsel to inform him that he could give evidence has no practical significance. Therefore, it is unnecessary to consider the effect of the decisions in R v Olbrich (1999) 199 CLR 270 and R v Lobban (2001) 80 SASR 550 as to the circumstances in which a sentencing judge must indicate that he does not accept the factual basis asserted by an offender.

21. I would reject the second ground of appeal.

22. I turn to the first ground of appeal. The Judge categorised the offences of selling the drug as reflecting a course of conduct at the lower end of the activity scale of that type of offending. He was correct in that assessment. The evidence establishes that the appellant was willing to sell to Michelle at her request, except on one occasion when he did not have any of the drug and Don took his place.

23. The appellant first came into contact with the law in 1982 and thereafter committed many offences involving, mainly, the possession of cannabis, a few street offences and some involving dishonesty. He had previously received short sentences of imprisonment, which were suspended, upon conviction for common assault, receiving and unlawful possession on different occasions.

24. He had a relationship with a woman some years ago and has a son who is now aged six years. He lives in very humble circumstances in the shed which has been mentioned and was unemployed for the last three years or so before he was taken into custody. He had been employed intermittently in various jobs but not for some years. He sustained injuries in a road accident in early 2001 for which he suffers some residual disability requiring medication for pain. Otherwise he enjoys good physical health.

25. The appellant began using methylamphetamine about five years ago. He told Dr Raeside, a forensic psychiatrist who assessed him prior to sentencing, that he used about one gram of the drug in a pure form on most days, which is a very different story as to his use than what he presented in his evidence. As it is possible that he has been misreported in that respect and the matter was not raised in his evidence, I pay no attention to the discrepancy. Of course, if what he told Dr Raeside is true, he must have had substantial income from other than unemployment benefits. According to Dr Raeside, the appellant has an Adjustment Disorder with Depressed and Anxious Mood. He has had difficulty in coping with separation from his former partner and has probably resorted to methylamphetamine and alcohol to ameliorate his depressive symptoms.

26. The Judge took as a starting point a sentence of five years which he discounted by 15 per cent because of the eventual pleas of guilty. I think a discount of that order is appropriate. Even now the appellant has not shown any remorse or contrition and has maintained his story as to the reason for his offending which was rejected by the Judge and which I reject. His pleas were entered after three directions hearings. However, the starting point of five years was too high. As I have said, the appellant was a small time dealer and the total amount of methylamphetamine sold was small. In R v Plaister & Graham [2001] SASC 383, the Court of Criminal Appeal had to consider the appropriate sentence for the crime of possession of methylamphetamine for sale for an offender with a significant record of past offending, including offences of possession of drugs. The amount of the drug was 52.02 grams of powder containing 28.49 grams of methylamphetamine. Martin J, with whom the other members of the Court agreed, reviewed the leading decisions of this Court as to sentences for offences involving the trafficking, or proposed trafficking, in drugs of dependence: R v Mangelsdorf (1995) 66 SASR 60 at 68, R v Gjoka (unreported, Court of Criminal Appeal, S6211, 1^st July 1997) and R v Di Maria & Ors (1996) 67 SASR 466. He concluded that the appropriate starting point in that case was three years and six months. Despite the amount of the drug in that case, Martin J categorised the offence as a small operation. The offender in that case had not sold the drug but had it in his possession for that purpose. The offences committed by the appellant are a much smaller operation. Nevertheless, he committed three separate offences of selling the drug. They are serious offences. The illicit drug trade, with all of its adverse effects upon the community, cannot exist without dealers such as the appellant who are willing to commit crimes of this nature. As has been said on many occasions general and personal deterrence must be an important consideration in sentencing for offences of this nature. The offences remain serious breaches of the law even though the total amount of the drug sold is relatively small. Also, the sentence had to reflect adequate punishment for the offence which is the subject of the fifth charge which is mere possession of methylamphetamine. I would impose one sentence for the drug offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. In my view, the starting point should have been three years and six months. After allowing a reduction for the plea of guilty, the head sentence should be three years which represents a discount of a little less than 15 per cent.

27. The sentence must reflect the period of time that the appellant had been in prison which, as has been mentioned, was about eight months when he was sentenced. The Judge could have ordered that the one month sentence be served cumulatively upon the sentence for the drug offences (s 58(4)(c) of the Criminal Law (Sentencing) Act) or the other way around (s 31(1) of that Act). He chose the latter and there is no reason to interfere with that decision. It was not appropriate to backdate the sentence to the date when the appellant was arrested and taken into custody because he had first to serve the earlier sentence of one month. The serving of that sentence did not arise until the suspension of it had been revoked. I do not think it was appropriate for that sentence to commence on the day of sentencing because the suspension was revoked on 2^nd July 2002 and the appellant was remanded in custody. That sentence should commence on 2^nd July 2002 and the sentence on the drug offences should be served cumulatively upon the earlier sentence as the Judge indicated. The head sentence for the drug offences should be two years and four months after making the allowance for the period the appellant had been in custody.

28. The third ground of appeal was correctly conceded by Ms Barnett, who appeared for the respondent. The non-parole period could not be fixed without consideration of the sentence of one month or be ordered to commence at the end of that sentence. As, in my view, the head sentence for the drug offences should be reduced, the non-parole period should also be reduced. The Judge took the view that the non-parole period should be a little more than one half of the head sentence but he did not take into account the sentence of one month which had to be served. In fixing the non-parole period, that sentence must be considered.  Otherwise, I see no reason to depart from the approach taken by the Judge.  I would fix a non-parole period of one year and three months.

29. I would allow the appeal and set aside the sentence of three years and six months imposed by the Judge for the drug offences. I would order that the sentence of one month be served commencing on 2^nd July 2002, and that the sentence of two years and four months for the drug offences be served cumulatively upon that sentence making a total period of imprisonment for two years and five months. I would fix a non-parole period of one year and three months to commence on 2^nd July 2002.

1. BESANKO J        I agree that the appeal should be allowed.  I agree with the orders proposed by Mullighan J and with the reasons he gives for those orders.