R v Jenkins No. Sccrm-98-125 Judgment No. S6776

[1998] SASC 6776

R v JENKINS   
[1998] SASC6776

Court of Criminal Appeal
Coram:  Millhouse, Perry & Nyland JJ

Millhouse J (ex tempore)

1. The appellant pleaded guilty to two charges, selling amphetamine and methylamphetamine, and having each of the substances in his possession for the purpose of sale.  

2. He was caught in the men's lavatories at the Highway Inn on Wednesday, 3 September 1997.  He had 14 packets in his possession.  Between them they contained 0.1 of a gram of amphetamine and 0.21 of a gram of methylamphetamine. 

3. Upon being questioned the appellant confessed and admitted that in the preceding few days he had sold another 10 bags.  His daughter was to be married the next week and he was selling the drugs to raise the money to pay for a wedding present or to help pay for the reception. 

4. The appellant is now 41 years old, born in New South Wales.  He left school at 15 and became a plasterer.   Unfortunately in his mid 20's he had a bad accident and hurt his back.  This has meant he hasn't been able to work since.  He has lived on a pension.  Even worse, a so-called friend suggested he should try heroin for pain relief, and he soon became addicted.  He has been married and by that marriage in 1977 has two children.  He has two other children, younger, by another relationship. 

5. Up to 1991 he had some convictions, but not for very serious offences.  On 5 September 1991 he was sentenced for armed robbery to 6 years imprisonment to be cumulative on a 9 month sentence for cannabis offences, which had been suspended.  The total head sentence therefore was 6 years and 9 months, with a non-parole period of 4 years and 6 months.  With remissions the sentence had expired by September 1997. 

6. The maximum penalty for the offences for which the appellant has pleaded guilty is a fine of $200,000 or imprisonment for 25 years or both.  In his sentencing remarks the learned District Court judge said:

   "I must impose a sentence that will operate as a deterrent upon you and a deterrent to others who may be tempted to act in the same way as you have.  I must also take into account the extremely high maximum penalty fixed by Parliament for these offences, and the comments made by the Court of Criminal Appeal in the cases of Manglesdorf, Perry and Richards in 1995.  I impose one sentence for the two offences on the information.  The sentence of the court is that you be imprisoned for a period of 6 years.  Were it not for your plea of guilty and your co-operation with the authorities the sentence would have been one of imprisonment for 8 years.  I can find no good reason why the sentence should be suspended.  I fix a non-parole period of 4 years."

7. The grounds of appeal are that the head sentence and the non-parole period are manifestly excessive. 

8. Mr Gregory Mead for the appellant has canvassed a number of points.  He pointed out the early plea of guilty and the immediate co-operation when caught, that the amount of drug involved was small and that the offending was of an isolated nature.  But his main point was that the starting point for fixing the penalty of 8 years before making any allowance for the plea of guilty was "far, far too high".  He submitted that the drugs involved here were in the middle range.  He gave us a careful analysis of a number of the cases, going back to 1986, and argued from these that the sentence should be greatly reduced. 

9. In reply Mr Jensen for the Crown has pointed out that the sentence imposed is within the range contemplated in R v Manglesdorf, which of course was one of the cases canvassed by Mr Mead.  Mr Jensen pointed out that that decision makes it clear how seriously the court considers such crimes as these.  Mr Jensen said quite rightly that the appellant had already had a suspended sentence.  The suspension was revoked and the appellant served the 9 months imprisonment before beginning the term of 6 years for armed robbery. 

10. Perhaps the strongest point which Mr Jensen made was that the amount of drug involved, which admittedly is not high, is not as relevant a consideration as the fact of trading in drugs, and here we have multiple sales for profit. 

11. On general sentencing principles he argued that the sentence was well within the range and certainly, taking the appellant's circumstances into account, he should be given - as the learned sentencing judge said in the remarks which I have quoted - a sentence which will serve as a personal deterrent to him. 

12. In my view the learned sentencing judge has taken all the relevant factors appropriately into account.   Undoubtedly the sentence which he imposed is a severe one but it is not so severe as to justify, in my view, any interference. 

13. I suggest that the appeal be dismissed. 

Perry J:

1. I agree.

2. Mr Mead was not able to identify anything in the remarks on sentence which was indicative of appealable error as opposed to the question whether, in itself, the penalty was manifestly excessive.

3. It does seem to me, however, that the main points which he made, which were associated with the relatively small quantity of drugs which was involved and the fact that this was, as he put it, a small operation, not an organised business, are not matters which, when one looks at the papers, are borne out.  In the first place, the fact that the amount was a small quantity, for the reasons given by Millhouse J, is not a matter of great import in cases involving street trading.

4. This is made most clear in Manglesdorf[1], in the judgment of Doyle CJ where His Honour, after  referring to R v Rocco[2], said[3]:

   “The court said (at 516) that substantial penalties had been imposed, even though the amounts of heroin discovered in the hands of street traders had been quite small ..... In the judgment of White J (at 517) the penalty for heroin street traders does not normally fluctuate according to quantity.”

   [1]    R v Mangelsdorf and Ors (1995) 66 SASR 60.

   [2] (1985) 37 SASR 515.

   [3] 66 SASR at 64.

5. Although Rocco was a case involving heroin, the observation holds good for street trading in other drugs.

6. I do not accept the point made by Mr Mead that this was not an organised business.  It was sufficiently well organised for the appellant to make ten sales on the day before, and he was, when apprehended, equipped with the means of making a number of other sales.  At the time he was apprehended he had on his person a number of small bags of the drug in a leather wallet.

7. In my opinion, this was a typical street trading offence which warranted a substantial penalty.

8. The sentence under review is admittedly severe, but in my view it is not manifestly excessive.

9. I would dismiss the appeal.

Nyland J:

1. In my opinion the penalty imposed in this case was severe, but I am not persuaded, for the reasons expressed by Millhouse J, that it was manifestly excessive, and I would dismiss the appeal. 

Millhouse J:    

1. The order of the court, therefore, is appeal dismissed.