R v Hunt; R v Yates - [2012] SASCFC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUNT; R v YATES
[2012] SASCFC 74
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Kelly)
21 June 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING COCAINE
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS - GROUNDS FOR DISCRIMINATION BETWEEN CO-OFFENDERS - PERSONAL FACTORS
Hunt and Yates were jointly charged with trafficking in a large commercial quantity of a controlled drug, namely cannabinoid, contrary to section 32(1) of the Controlled Substances Act 1984 (SA) - both were convicted following pleas of guilty in the District Court - Yates was further charged with the offence of trafficking in a controlled drug, namely cocaine, contrary to section 32(3) of the Controlled Substances Act - he was convicted of this offence following a plea of guilty - Yates was sentenced to the one term of imprisonment for both offences pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of 10 years with a non-parole period of seven years - Hunt was sentenced to a term of imprisonment of three years and four months with a non-parole period of two years and four months - whether Yates' sentence of imprisonment of 10 years was manifestly excessive - whether sentencing discretion miscarried in the determination of Yates' sentence in imposing one sentence for both offences - whether sentencing Judge misunderstood Yates’ earlier involvement in drug offending - whether sentences imposed on Yates and Hunt lacked parity with that imposed on co-offender Abbott.
Held per Gray J (Kelly, David JJ concurring): Appeals dismissed - the non-parole period set for Hunt was well within the sentencing discretion of the Judge - the overall sentence of 10 years imprisonment with a non-parole period of seven years which was imposed on Yates was well within the sentencing discretion of the Judge.
Controlled Substances Act 1984 (SA) s 32(1) and s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Millard (2008) 103 SASR 1; R v Stamos, Williams, Stanton and Kapovic [2004] SASC 132; R v Mema [2011] SASCFC 56; R v Tran & Tran [2011] SASCFC 153; R v Carbone & Ors [2012] SASCFC 34; R v MacGowan (1986) 42 SASR 580; R v Bagnato (2011) 112 SASR 39; R v Jones [2011] SASCFC 97, considered.

R v HUNT; R v YATES
[2012] SASCFC 74
Court of Criminal Appeal Gray, David, Kelly JJ
GRAY J.

These two appeals against sentence were heard together and are both the subject of these reasons.
Beau Trent Hunt and Stephen Lee Yates, the defendants and appellants, were jointly charged with trafficking in a large commercial quantity of a controlled drug, namely cannabinoid, contrary to section 32(1) of the Controlled Substances Act 1984 (SA) between 13 June 2008 and 26 July 2008. Both were convicted following pleas of guilty in the District Court.
Yates was further charged with the offence of trafficking in a controlled drug, namely cocaine, contrary to section 32(3) of the Controlled Substances Act. Following his plea of guilty he was convicted of this offence.
Hunt and Yates were sentenced by the same District Court Judge on 21 October 2011. They faced a maximum penalty of $500,000.00 or life imprisonment, or both, in respect of the offence of trafficking in a large commercial quantity of cannabinoid. The offence of trafficking in cocaine carried a maximum penalty of $50,000.00 or 10 years imprisonment, or both.
Yates was sentenced to the one term of imprisonment for both offences pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of 10 years. A non-parole period of seven years was fixed. In arriving at this sentence, a reduction of two years was made on account of the pleas of guilty.
Hunt was sentenced to a term of imprisonment of three years and four months. A non-parole period of two years and four months was fixed. In arriving at this sentence, the Judge made a reduction of eight months on account of the plea of guilty.
A co-offender, Shelley Abbott, who had been jointly charged with Hunt and Yates with the offence of trafficking in a large commercial quantity of a controlled drug, namely cannabinoid, had been sentenced following his plea of guilty by a different District Court Judge on 28 April 2010. Abbott was sentenced to a term of imprisonment of three years and nine months. A non-parole period of 18 months was fixed. In arriving at this sentence the Judge had made a reduction of one year and three months on account of the plea of guilty.
Yates complained that the sentence of imprisonment imposed of 10 years was manifestly excessive. It was contended that the sentencing Judge when imposing the one sentence for both offences failed to recognise and weigh up the relevant matters to the separate offences and that as a consequence the sentencing discretion miscarried. It was also contended that the sentencing Judge misunderstood Yates’ earlier involvement in drug offending. Finally it was contended that the sentence imposed lacked parity with that imposed on Abbott.
Hunt, complained about the length of the non-parole period that had been fixed. His primary contention was that there was a lack of parity with the sentence imposed on his co-offender Abbott.
The Appeal of Yates
Yates was the driving force behind the offence of trafficking in a large commercial quantity of a controlled drug, namely cannabinoid. Yates arranged for Abbott to purchase the drugs on his behalf. He provided Abbott with money to purchase the drugs and paid Abbott for his efforts.
Yates arranged for Hunt to come to South Australia to drive the shipment to New South Wales. Yates agreed to pay Hunt $10,000.00 for his involvement. Yates paid for Hunt’s accommodation. Yates indicated that Hunt could be further involved on a weekly basis. In the event, another associate of Yates drove the vehicle containing the cannabinoid on the day it was intercepted. Hunt was a passenger in the vehicle.
Material before the sentencing Court disclosed that Yates expected to sell the drugs in Sydney yielding a profit to Yates of between $700.00 and $1,000.00 a pound. The material further disclosed that Yates was active in every stage of the development and execution of the offending. Yates encouraged, cajoled and bullied the others involved to do his bidding and to ensure that the shipment was obtained and then delivered.
It was the prosecution case that the offence was part of Yates’ business. He was the organiser and he stood to gain the most. It was said that Yates was motivated by greed. The Director of Public Prosecutions supported these matters on the appeal by reference to the depositions. It was pointed out that this particular offence was committed against a background of other offending. This was said to be evidenced by large sums of money owed to Yates by others involved in the drug trade. Statements made during, and inferences to be drawn from, telephone intercepts establish that one debt was in an amount of $130,000.00 and another was between $137,000.00 and $227,000.00. The transcripts of the telephone intercepts also disclosed an intention on the part of Yates to offend in the same manner on a weekly basis in the future.
The Judge, when addressing the offence of trafficking in a large commercial quantity of drugs, namely cannabinoid, observed:
I do not accept that the inferences constitute circumstances of aggravation such that the prosecution needs to prove them beyond reasonable doubt, however if I am wrong about that, I indicate that I am satisfied beyond reasonable doubt that the inferences suggested by Mr Edge in his outline of argument have been established. The inferences I refer to are as follows:
You, Mr Yates, procured the 99 pound bags of cannabis from a man called Shelley Abbott. Abbott obtained it from various other people and you paid Abbott for the cannabis and stood to profit from its resale in Sydney. The cannabis was delivered to you by Abbott on 26 July 2008, the day of the interception by the police. You indicated to another man called Einfelt, who was also involved in the procurement of the cannabis, that you proposed to make a shipment of this type every week and that you had money flowing down from Sydney. You paid between $2,400 and $2,500 a pound for the cannabis and expected to sell it for a profit of about $700 a pound, or a total profit of nearly $70,000 in Sydney. You put up the money to obtain this cannabis, which must have been more than $200,000 in cash. I therefore reject your submission that you were merely a go-between between Einfelt and your purchasers in Sydney and that you stood to earn only $100 a pound for arranging the shipments.
The second inference is that at the time you arranged this particular shipment you had been actively involved in the commercial trading of cannabis interstate for profit.
Mr Edwardson conceded that there had been one previous transaction in which you were involved, namely, earlier in July 2008, when Mr Hunt was selling cannabis on your behalf in Sydney. I am satisfied that your previous trading was more extensive than that. For example, there is evidence in the telephone intercepts that a man named George owed you more than $130,000. I make it clear that you are not to be sentenced on the basis of that previous trading since you have not been charged with any offence arising from that. However, the fact that you were engaged in trading previously means that you are not entitled to the leniency which might be extended to a person who had committed an isolated offence.
The third inference is that you, Mr Yates, were in charge of the operation and that Mr Hunt and Shelley Abbott were doing your bidding. In my opinion, the whole tenor of the telephone conversations recorded by the police are to this effect.
Further, I am satisfied that Einfelt fell into the same category. I reject your submission that you were subordinate to Einfelt and were merely acting as his go-between. The clear inference from the evidence is that you were the principal and that Einfelt was acting on your behalf, or assisting you to assemble the shipment. He may have been, to use George Orwell’s expression, ‘more equal’ than Abbott and Hunt, but he was doing your bidding in relation to this shipment.
The next inference is that you arranged for Mr Hunt to come to South Australia, in your words ‘to party’, but also in order to drive the shipment back to New South Wales. You promised to pay Hunt $10,000 for his services in that regard and you indicated to him that the work was available once a week, if he wanted it. You paid for his room at the Stamford Grand Hotel on 25 July. As it happened, Stevens was to drive the ute. That was an arrangement made by Mr Hunt.
On the appeal, counsel for Yates complained that the evidence did not justify the above inferences, in particular, those concerning Yates being involved in a course of like conduct. In this respect it is relevant that the material before the Judge provided direct support for the prosecution allegations. Yates was aware of these allegations and the supporting material and did not dispute the allegations by sworn evidence before the Judge. Counsel further submitted that the findings of the Judge were beyond the facts agreed between the prosecution and Yates. However, a review of the transcript of the sentencing submissions and the material before the Judge do not provide support for this submission.
In my view, the Judge was entitled to take the serious view that he did on Yates’ offending and the fact that he was engaged in an ongoing course of conduct, namely, a large commercial dealing in cannabis-related drugs. The Judge was entitled to draw each of the inferences set out above.
A search of Yates’ house following interception of the shipment of cannabinoid on 26 July 2008 led to the discovery of two bags – one containing 9.04 grams of cocaine and the other 294.3 grams of powder containing 148.9 grams of cocaine, as well as scales disclosing traces of cocaine and more than $20,000.00 cash.
On the second count, that of trafficking in cocaine, the Judge remarked:
Finally, as to count 2 on the information involving the cocaine, I accept the submission that the cocaine was in your possession for the purpose of selling most of it. In my opinion, that inference is clear having regard to the large amount of cocaine involved, the large amounts of cash located with it, the notes found by the police recording the transactions involving cannabis and cocaine, the telephone conversations suggesting that people may have been paying for cocaine with cannabis, the extent of Einfelt’s spreadsheets, the large amounts of cocaine located, the presence of scales with traces of cocaine on them, suggesting that they had been used to weigh it for sale. I reject the submission that it was not your cocaine.
In respect of this count, counsel for Yates accepted that this was not an isolated instance of offending. However, it was said the Judge was influenced by the view he had formed that Yates was engaged in the commercial dealing in drugs, including cocaine. Again, in my view, the material before the Judge fully justified his findings and conclusions with respect to this offence.
Yates was aged in his early thirties at the time of offending. He was raised in New South Wales by his mother after his father abandoned the family. He was a good sportsman until a motor vehicle collision resulted in severe injuries including a broken neck. Yates received medical treatment over a four to five year period following injury. While continuing to receive treatment for his injuries, Yates became addicted to drugs and in particular cocaine. He fathered a child in a relationship that subsequently terminated. He maintained support of the child. Yates entered a relationship and eventually came to Adelaide with his partner. They have a baby together.
The Judge considered Yates’ personal situation, the nature of the offence and deterrence when imposing sentence:
Mr Yates, I take into account your personal situation, the ill health of your mother, the fact that your sporting activities were severely curtailed after the motor vehicle accident you had in 1998, your problems with drugs, your various relationship difficulties and circumstances in which you came to Adelaide and fell into the drug scene here. However, I do not accept that you became engaged in the commercial trading in these drugs simply in order to finance your own cocaine habit, or that you were in other financial difficulty in paying the mortgage of real estate in Sydney. I accept that that was part of it, but I do not think that this was the sole motivation. The evidence is clear that you were reaping very considerable financial profits from this trade. References to very expensive jewellery and generally what you were doing with your lifestyle seem to me to suggest very strongly to the contrary.
In my view, these offences were mainly committed in order to make large amounts of money. You were found in possession of large quantities of both cannabis and cocaine. The law is clear that cannabis is considered less serious, but cocaine is considered as being as serious as heroin, as harmful. The organisation of these offences was on quite a large and reasonably sophisticated scale. There were many people involved and, as I said, they were committed for financial gain.
For all those reasons, deterrence of both you from committing this sort of offence again and of others from committing similar offences must play a very large role in my sentence and that must take precedence over your personal circumstances.
I impose one sentence pursuant to s.18A of the Sentencing Act in respect of both counts.
I start with a sentence of 12 years imprisonment. I reduce it to 10 on the basis of your plea of guilty. Having regard to that reduction, I make no further reduction for the time spent in custody after your arrest or for the time you spent on home detention bail. I fix a non-parole period of seven years.
The sentence and the non-parole period should commence from 9 September 2011 when you were remanded into custody.
The sentencing of drug trafficking offenders has been considered in a number of cases in this Court’s jurisdiction.[1] With regard to organisers in drug syndicates, as Doyle CJ said in Millard, “[when] those who are higher up in the chain are detected and are brought before the court, the court must do what it can to deter the higher level distributors by imposing severe punishment”.[2] In Stamos, Williams, Stanton and Kapovic, it was observed by this Court that “[t]he drug problem has been described as a very serious evil in our society. Those involved as organisers and wholesalers must expect substantial custodial sentences”.[3] Vanstone J in Mema considered section 32(1) of the Controlled Substances Act and the penalties prescribed and concluded that “[t]he applicable maximum penalty demonstrates how seriously Parliament regards offences of this type”.[4]
[1]    See eg R v Millard (2008) 103 SASR 1; R v Stamos, Williams, Stanton and Kapovic [2004] SASC 132; R v Mema [2011] SASCFC 56; R v Tran & Tran [2011] SASCFC 153; R v Carbone & Ors [2012] SASCFC 34.
[2]    R v Millard [2008] SASC 262, [42].
[3]    R v Stamos, Williams, Stanton and Kapovic [2004] SASC 132.
[4]    R v Mema [2011] SASCFC 56, [11].
In relation to the first count, Yates had a leading role in the operation. Yates effectively employed Abbott to purchase cannabis on his behalf. Yates organised Hunt to transport the cannabis from Adelaide to Sydney. Yates expected to sell that cannabis at a very substantial profit. Yates was heavily involved in the development and execution of the operation. He had a clear leadership role in the operation and was instrumental in ensuring the timely obtainment and delivery of the drugs. The offence itself was committed against a background of other offending as evidenced by the large amounts of money owed to Yates by other people involved in the drug syndicate. Yates’ offending was serious as it was motivated by greed, was organised and extensive, and required the facilitation of others to offend to achieve his ends. Yates organised, instructed and stood to gain the most.
The powder the subject of the second count weighed 214.96 grams and contained 157.94 grams of cocaine. It had a value in the in the range of approximately $30,000.00 to $75,000.00. This was a significant amount of cocaine. This was serious criminal offending.
The Director submitted that the Judge had adequate regard to parity and ensured the sentences imposed were proportionate to their respective degrees of culpability and to the different personal factors. It was said that the submission by counsel for Yates that Yates’ sentence ought to have been the same as the sentence for Hunt or Abbott was misconceived. It was pointed out that when co-offenders have not engaged in exactly the same conduct, the parity principle simply requires that the sentences imposed on them should be proportionate to their respective degrees of culpability as well as to the various personal factors of aggravation and mitigation. It was submitted in this case that the sentences imposed achieved parity.

There were substantial differences between the offending of Yates and that of Abbott and Hunt. As mentioned above, Yates was the driver and organiser of the offending. Yates stood to gain far more than the others. Abbott and Hunt were acting at Yates’ direction. Yates was also sentenced for other serious offending – trafficking in cocaine. The submission that the sentence imposed on Yates was disproportionate to the sentences imposed on Abbott and Hunt is without substance.
It is to be accepted that a sentence of 10 years imprisonment is a substantial sentence. However, Yates’ offending was extremely serious. He was involved in trafficking in a large commercial quantity of drugs, namely cannabinoid, and faced a maximum penalty of life imprisonment. Yates’ offending was not an isolated act. The offending occurred as an ongoing course of conduct. As observed in Tran & Tran:[5]
A proportionate sentence for the subject offence should take into account the moral culpability of the defendant, the need for personal deterrence, the defendant’s prospects for rehabilitation and the protection of the community.
[5] R v Tran & Tran [2011] SASCFC 153, [31].
The further offence of trafficking in cocaine was also serious. This offence exposed Yates to a maximum term of imprisonment of 10 years. The offence involved a significant quantity of cocaine and although a personal user, Yates intended to go on and sell a major proportion of the drug.
Where offences are of a similar type and represent an ongoing involvement in criminal enterprise, the use of section 18A of the Sentencing Act without any detailed explanation of how the sentence is arrived at, is unexceptional.[6] Section 18A provides:
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
[6]R v Mema [2011] SASC 56, [14]; R v Bagnato (2011) 112 SASR 39; R v Carbone & Ors [2012] SASCFC 34, [59], [80]; R v Jones [2011] SASCFC 97.
The overall sentence of 10 years imprisonment with a non-parole period of seven years was well within the sentencing discretion of the Judge. I do not consider that any basis has been established to warrant interference by this Court with the sentence imposed.
The Appeal of Hunt
Hunt’s role in the offending the subject of count one was to transport the drugs from Adelaide to Sydney. He stood to receive about $10,000.00 for his involvement, with the promise of future similar work. On the evidence before the Judge, this was not an isolated offence by Hunt; he had a number of court appearances for driving offences as well as a drug offence committed after the present offending.
On appeal, counsel for Hunt did not challenge the primary findings made by the Judge. Instead, counsel challenged the sentencing Judge’s conclusions with respect to the fixing of a non-parole period. Hunt complained that there was a lack of parity in that his non-parole period was substantially longer than Abbott’s, despite Hunt’s head sentence being shorter.
A convenient statement of the principles concerning parity is to be found in the decision of this Court in MacGowan where King CJ observed:[7]
Where two or more persons are sentenced by the same judge for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in the sentences imposed should fairly reflect differences in the respective degrees of culpability and the circumstances of the offenders and should be explained by the sentencing judge. Unjustified disparities will be rectified by the Court of Criminal Appeal on appeal by the Attorney-General or the offender even though the sentence under review, considered apart from disparity, might be regarded as within the permissible sentencing range.
The overriding test for an appeal on disparity grounds is whether the sentence gives rise to a justifiable sense of grievance.
[7] R v MacGowan (1986) 42 SASR 580, 582-3.
Non-parole periods necessarily reflect matters that are personal to a defendant. The personal circumstances of Abbott and Hunt were markedly different, as was their contrition and their prospects of rehabilitation. The Judge in Abbott’s case indicated that she was imposing a lower than usual non-parole period for Abbott and cited the reasons for doing so as being:
…the isolated nature of [his] offending, the absence of any relevant and significant antecedent history, [his] otherwise good character as revealed by the character references, [his] excellent work record, the likely effect of imprisonment upon [his] business and employees, [his] depression, [his] difficult personal circumstances and the fact that [he is] unlikely to re-offend in a similar manner. …
The Judge considered the psychologist’s report of Hunt as well as his antecedents in imposing sentence:
As you to [sic], Mr Hunt, I indicate that I have read the reports of Ms Hopkins, the psychologist, who has closely analysed your background. She says that you have displayed symptoms of depression and anxiety, which you may have been attempting to self-medicate with drugs. You have a number of previous court appearances. They are mainly driving offences and only one drug offence, which seems to have been committed after this offence.
The Judge did also consider the sentence imposed on Abbott and the similarities of Hunt’s situation to Abbott’s:
I have had regard to the sentencing remarks of Judge McIntyre who dealt with Abbott. In his case, there was no suggestion of previous trading. It was accepted that he would only receive $100 a pound, or about $10,000 for his efforts. He was under acute financial pressure and he pleaded guilty at the first opportunity. Her Honour sentenced him to three years and nine months imprisonment having reduced it by 25% from five years having regard to his plea. Her Honour imposed a non-parole period of 18 months.
I agree with Mr Dibden, that there are similarities between your situation, Mr Hunt, and that of Mr Abbott. …
The Judge ultimately determined Hunt’s sentence on the following bases:
As to you Mr Hunt, as I said, I regard your situation as being somewhat analogous to that of Mr Abbott. Although it might be said that Mr Abbott’s participation in the venture was more active, his reward was to be about the same as yours.
I take into account what Mr Dibden said on your behalf, in particular, the matters in Ms Hopkins’ report. In particular, your childhood, your problems with addiction to illicit drugs and alcohol and gambling, the fact you currently have employment, you have had a reasonably constant level of employment over the years, the lack of relevant prior convictions and the circumstances in which the offence was committed at the suggestion of Mr Yates.
In all those circumstances on count 1 there will be a conviction.
I start with a sentence of four years imprisonment, which I reduce to three years and four months having regard to your plea of guilty.
I fix a non-parole period of two years and four months.
I have carefully considered Mr Dibden’s submission that I consider a suspended sentence in this case.
The scale of this offence, the fact that you entered into the offending willingly having had the opportunity to consider it, the fact that you did so for financial gain, the fact that it was not isolated and the fact the emphasis must be on deterrence, in my view, render it inappropriate to suspend the sentence.
The sentence and the non-parole period will commence today.
The Director submitted that there were material differences between the positions of Abbott and Hunt and that these differences were appropriately reflected in their respective non-parole periods. Abbott was sentenced on the basis that his offending was isolated whereas Hunt’s was not. Abbott pleaded guilty at arraignment, but Hunt only pleaded guilty shortly before the trial. Hunt’s personal circumstances were different to Abbott’s; in particular, he did not have children or the same work history and his antecedents indicated a greater need for personal deterrence. The prosecution submitted that these differences justified a difference of 10 months in Abbott and Hunt’s respective non-parole periods.
It is clear on the evidence that Abbott played a more substantial role than Hunt in the offending the subject of the first count. Abbott received a larger head sentence, but a smaller non-parole period than Hunt. The differences in circumstance of Hunt and Abbott do, however, warrant this result. The factors which the Judge considered as relevant for setting a lower than usual non-parole period for Abbott were valid and they justified her decision to set the non-parole period for Abbott that she did.
The non-parole period set for Hunt was well within the sentencing discretion of the Judge. The conclusions the Judge made in determining Hunt’s head sentence and non-parole period were fully justified. Hunt stood to receive a similar reward from the trafficking operation to Abbott. Hunt, unlike Abbott, was sentenced on the premise that his offending was not isolated. Hunt willingly chose to offend for financial gain. He pleaded guilty at a later point in time than Abbott and his personal circumstances were sufficiently different from that of Abbott as to justify a greater need for personal deterrence. I do not consider that a ground of appeal based on parity has been established to warrant interference by this Court with Hunt’s sentence.
Conclusion
I would dismiss both appeals against sentence.
DAVID J: I would dismiss the appeals. I agree with the reasons of Gray J.
KELLY J: I agree that both appeals should be dismissed for the reasons given by Gray J.