R v John Tisizis

[1993] SASC 3936

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MOHR(1), BOLLEN(2) AND MILLHOUSE(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judgment and punishment - Criminal Law - sale of heroin suggestion of entrapment by police - such suggestion not established - principles governing effect of entrapment on sentence - sentences not manifestly excessive
R v Mandica Spakianos and Spakianos (1980) 24 SASR 394; R v Romeo (1987) 45 SASR 212 and R v Hani Taouk (CCA (NSW), 4/11/1992, unreported), applied.

HRNG ADELAIDE, 19 April 1993 #DATE 19:5:1993
Counsel for appellant Ransom:     Mr D F Stokes
Solicitors for appellant Ransom:    David Stokes and
   Associates
Counsel for appellant Tisizis:     Mr G F Barrett
Solicitors for appellant Tisizis: Camatta Lempens
Counsel for respondent:             Mr P A Brebner
Solicitors for respondent:         Director of Public
   Prosecutions (SA)

ORDER
Appeals dismissed.

JUDGE1 MOHR J The appellant Tisizis was convicted on his own plea of guilty for the following offences:-
    1. Selling heroin on the 4th July 1991.
    2. Taking part in the selling of heroin with Martin
    Lawrence Ransom and Sharon Lee Tisizis on 8th July 1991.
    3. Taking part in selling heroin with the same people on
    22nd July 1991.
    4. Possessing heroin on 22nd July 1991. 2. For the offences of taking part in the sale of heroin he was sentenced on each charge to four years imprisonment to be served concurrently. For the offence of selling heroin the sentence was three years imprisonment to be cumulative on the sentence of four years and for the offence of possession of heroin twelve months imprisonment to be served concurrently with the service of three years imprisonment. That is an effective head sentence of seven years. 3. A non parole period of four years was fixed. The offences were detected by undercover police officers who posed as buyers. They continued their operation after the first purchase, which was small, in the self evident attempt to apprehend the person or persons further up the chain of supply than the appellant. 4. The appellant was an addict and had been for many years. He had an extensive history of prior offending dating from early in 1980. Previous offences included both dishonesty and the use and possession of illegal drugs. There were no offences recorded since 27th January 1988. At the time of sentencing he was 30 years of age. His heroin dependency had in recent times had to some extent been abated at the time of sentencing by his involvement in the methadone programme. 5. It was argued by Mr Barrett that the case should have been treated as one involving entrapment and some reduction in the sentence made on that account. 6. I find it unnecessary to discuss the law regarding the treatment of entrapment cases as the evidence in this case falls far short of demonstrating any degree of entrapment. The appellant Tisizis along with his wife and the appellant Ransom showed throughout the approaches by the police officers to be more than willing to supply the heroin requested. 7. The transactions began with the police officers, Detective Senior Constable Roy, approaching the appellant with another person. After that other person had spoken to the appellant he said to Roy:- "How much do you want? Roy said '200.00 worth' Appellant then said 'No worries'." 8. In exchange for $200.00 four packets containing heroin were handed over. Roy inquired if he could purchase more heroin at a later day. The appellant replied "Fine, if I'm not here see Sharon (his wife) she'll help you out". 9. Help Roy out they did. He purchased more heroin culminating in the final purchase of $1,200.00 when the appellant Ransom appeared on the scene. 10. Throughout all of the police approaches there had not been the slightest hesitation or unwillingness on the part of this appellant, his wife, or Ransom in taking part in the various sales. In fact a perusal of the transcript shows complete willingness and cooperation on the part of each appellant. 11. To sum up this topic of entrapment, there was in my opinion no evidence at all to support such a submission. 12. Because it bears on the submissions made for this appellant on the grounds of disparity between his sentence and the sentences imposed on Ransom it is necessary to have regard to his offences. He faced a charge of possession of heroin for sale committed on 27th May 1992. Two counts of taking part in the sale of heroin. He was also by his plea of guilty to those offences in breach of a bond for a suspended sentence of four months. This suspension was recorded. For the offence of taking part in the sale of heroin a sentence of five years imprisonment was imposed to be served concurrently but cumulatively on the four months of the suspended sentence. For the offence of possession for sale a sentence of three years and eight months imprisonment was imposed to be cumulative on the other sentences. This made an effective head sentence of nine years. Allowance was made for a period of three months spent in custody while bail was arranged. A non parole period of five years and eight months was fixed. He had an extensive record of offences dating back to 1971 as a juvenile. He was 34 years of age at the date of sentencing and had an addiction to heroin since the age of twenty. At the time of sentencing he was reasonably established on a small usage of methadone. 13. There were relatively small amounts of heroin involved in all the offences. The largest amount was that found in the possession of Ransom. It is clear however that these offences were not isolated but formed part of an ongoing course of conduct. Tisizis and his wife were at the bottom of the chain of distribution and Ransom one step up. Some idea of the ongoing nature of the activities may be gauged from a conversation Mrs Tisizis had with Roy. She was speaking of Ransom at this time. She said:- "Before we owed him $450.00. We did over 20 caps and didn't use ourselves just to pay him back. We did that in four days." 14. She also in the same conversation referred to her husband and herself as being "his best sellers". 15. In the course of his remarks his Honour referred to the principle that the fact that if traders in heroin were addicts while attracting sympathy it did not excuse the conduct. 16. In the subject case it is apparent that both Ransom and Mr and Mrs Tisizis were, although at the end of the chain, vital links in the distribution of heroin. On the subject of disparity it could, perhaps, be argued that the sentences imposed on Ransom for his part in the sales were lenient but on the other hand he and Mr and Mrs Tisizis were closely linked and their respective culpability was very much the same. Ransom could not operate without them and they could not operate without him. Ransom attracted a higher sentence because he was marginally higher on the chain of distribution, but not by much. 17. It was argued for both appellants that the sentences were excessive and that the non parole periods were excessive. In view of the evidence showing that the offences detected were not isolated ones but part of an ongoing course of conduct in my opinion they were not excessive. 18. I would dismiss the appeal.

JUDGE2 BOLLEN J The appellants were convicted on their pleas of guilty to drug related offences pursuant to the provisions of the Controlled Substances Act. In the case of the appellant Ransom his commission of the offences amounted to a breach of a bond to be of good behaviour into which he entered when a sentence of imprisonment for four months for receiving was suspended in the Magistrates Court at Holden Hill on 13 May, 1991. 2. The appellant Tisizis admitted that he had committed two separate offences of taking part in the sale of heroin on different days in July, 1991. He admitted, too, one offence of possession of heroin on 22 July, 1991. 3. The appellant Ransom admitted two offences of selling heroin and one of possessing heroin for sale. The appellants and the wife of Tisizis acted together. 4. The offences of taking part in sale related to incidents where Tisizis and his wife (a co-accused) acted as sub-distributors and Ransom acted as distributor in relation to buying of quantities of heroin by under cover police officers. 5. With respect to Tisizis, the offence of selling arose from buying of heroin by undercover police from him. The offence of possession related to the finding of four small sachets of heroin in his trousers. With respect to Ransom, the offence of possession for sale relates to a separate incident on 27 May, 1991, when police found twenty-two small wrapped quantities of powder in his possession, containing in total 3.72 grams of powder, of which .53 grams was pure heroin. The above offences were breaches of the bond that Ransom be of good behaviour for two years. 6. I quote remarks of the learned sentencing judge. They are addressed not only to the appellant but to some extent to the wife of Tisizis, too. His Honour said:
    "In the case of each of you, John Tisizis and Sharon Lee
    Tisizis, you have admitted two separate offences of taking
    part in the sale of heroin on different dates in July 1991,
    one offence each of selling heroin, albeit on two separate
    dates in the same month, and one common offence of simple
    possession of heroin on 22 July 1991. The offences of
    taking part in the sale relate to incidents in which you
    acted as intermediaries or what may be described as sub
    distributors in relation to a controlled buy of quantities
    of heroin by undercover police officers from your
    co-offender, as the distributor. The offences of selling
    arise from controlled buys of heroin by undercover police
    officers from each of you separately on different occasions.
    The offence of simple possession relates, as I understand
    it, to your joint possession on 22 July 1991, of four small
    sachets of heroin found in your trousers, John Tisizis,
    which it is accepted you had acquired for the joint use of
    both of you. It must be accepted that the quantities of
    heroin involved in the various transactions were relatively
    small by way of contrast with some other cases, but the
    gravamen of the charges, other than those of simple
    possession, is that they clearly indicate that you were
    engaged in an ongoing fashion in acting as sub distributors
    for the ultimate supplier of the drug, albeit substantially
    as a means of supporting your own addiction to heroin, and
    obtaining small quantities for yourself. I accept that you
    were each at the very bottom of the distribution chain and
    handled quite limited quantities of the drug. You were, by
    no means, true professionals, in that sense. In your case
    Ransom the two offences of taking part are also related to
    two of the controlled buys in question, whilst the offence
    of possession for sale relates to a quite separate incident,
    which occurred on 27 May 1991. In relation to the latter,
    the police located some 22 small wrapped quantities of
    powder in your possession at that time. Each contained a
    substance in which heroin was later found to be present. On
    that occasion you possessed a total quantity of 3.72 grams
    of powder, of which .53 grams was pure heroin. It is clear
    that you had been acting as a direct distributor of heroin
    on behalf of a larger supplier of the drug up the
    distribution chain, on a more extensive basis than your
    co-offenders. As to the breach of the bond, in your
    instance, it need only be said, on 13 May 1991, you were
    sentenced in the Holden Hill Magistrates Court to four
    months imprisonment for receiving a computer which you
    rightly suspected of having been stolen, that sentence being
    suspended upon your entry into a bond to be of good
    behaviour for a term of two years. The offence on 27 May
    1991 clearly breached that bond. In this regard my
    undoubted duty under the Criminal Law (Sentencing) Act is to
    order that the suspension of the sentence in question be
    revoked and that it be carried into effect forthwith. I so
    order." 7. His Honour then discussed "the personal circumstances" of each appellant and of Mrs. Tisizis. To the appellant Tisizis His Honour said (amongst other things):
    "John Tisizis, you are now 30 years of age and married to
    your co-offender, Sharon Lee Tisizis. There is one young
    child of your union a daughter aged three years. You also
    have an eight year old daughter from a prior marriage. You
    come from a Greek migrant family born in Cairns and lived
    there and in Sydney until about three years ago, when you
    came to Adelaide with your wife. You have a substantial
    antecedent record in NSW dating back to early in 1980. That
    record relates to a wide spectrum of offences involving both
    dishonesty and use or possession of illegal drugs. You have
    served several relatively short custodial sentences. On the
    other hand, it must be recognized that you did not offend
    subsequently to your last conviction of 27 January 1988
    until the present offences were committed. You are not
    academically inclined and left secondary school at the age
    of 15 years. Thereafter you were in more or less regular
    employment as a factory hand, storeman, clerk and salesman
    respectively, but were retrenched in June last, since when
    you have not been able to secure other employment until very
    recently. You are described in the material before me, as a
    loner by nature, have no close friends and spend much of
    your time at home. The pre-sentence report reveals that you
    have had a heroin dependency problem for about the last ten
    years, although, of more recent times, an involvement in the
    methadone programme has greatly assisted in controlling the
    habit. So far as I can ascertain from the material before
    me, your involvement in the offences seems mainly to have
    stemmed from your need to purchase some quantities of heroin
    for your own casual use. Although your counsel has said
    everything possible in your favour, the plain fact is that
    you deliberately committed the offences well knowing of the
    potentially serious consequences of so doing, and at a time
    at which you claim that you did not even have a truly
    uncontrolled addiction. In any event, this court has
    repeatedly said that addiction cannot be accepted as an
    excuse for the commission of offences of this type. On the
    one hand, you have very actively fostered the insidious hard
    drug trade in this State, with all of its devastating
    effects on the ultimate victims of it. On the other, there
    are only limited mitigating circumstances which can fairly
    be identified in your case. The chief of those is your
    persistent, and to some extent, successful attempts to
    overcome your addiction, and your expressed resolve to live
    a future law abiding life. I accept you are entitled to
    some tariff discount for your pleas of guilty, although
    these were entered at a fairly late stage. I must also
    fashion a sentencing package which properly recognizes the
    totality principle in relation to what was essentially a
    continuing course of conduct. In your case the sentences of
    the court are as follows. As to each offence of taking part
    in sale, four years imprisonment, to be served concurrently
    and to run from today. As to the offence of selling heroin,
    three years imprisonment to run from the expiration of the
    sentences in respect of taking part in the sale. As to the
    offence of simple possession, imprisonment for 12 months to
    be served concurrently with the sentence for selling heroin.
    There will be a non-parole period, in your case, of four
    years to run from today. Additionally you must pay the
    mandatory statutory levy of $30 in respect of each
    conviction. Although your counsel has strongly urged upon
    me that I should suspend your sentences, the seriousness of
    the offences, viewed against your antecedent background,
    prohibits such a course. To do so would be to fly in the
    face of well established sentencing standards in cases of
    this nature. On the other hand, I have been persuaded to
    facilitate your rehabilitation by imposing a non-parole
    period which is shorter than that which would normally be
    appropriate to this type of situation. The effect of this
    sentencing package is that, if you qualify for full good
    conduct remissions, you will be eligible for release on
    parole after serving just under two-thirds of your
    non-parole period." 8. To the appellant Ransom His Honour said:
    "MARTIN LAWRENCE RANSOM, like your co-offender John Tisizis,
    you have a significant antecedent Report. In your case it
    extends back to 1971 and involves offences of dishonesty,
    including breaking offences, serious motor vehicle related
    offences and offences involving illegal drugs. You have
    been the subject of a number of custodial sentences, but
    appear only to have served two of them, as far as I could
    determine, the remainder have been suspended. You are 34
    years of age and have lived in a de facto relationship for
    some ll years. Your de facto wife still supports you. You
    were born in Northern Rhodesia, but came to Australia with
    your family after a short time in the United Kingdom, in
    1965. You were brought up in a caring family environment
    and showed great promise as a student at school. However,
    in secondary school, you obviously became involved with the
    wrong group of friends and then were beguiled into leaving
    school by the prospect of earning money. You secured jobs
    of what were mainly an unskilled nature. Later you were
    self employed in a variety of capacities. The fact is that,
    your brother introduced you to the use of heroin at the age
    of 20, after which you became an addict. You have tried
    several methadone programmes and have, at times, had short
    breaks from the use of the drugs. Currently you seem
    reasonably well established on a small dosage of methadone.
    It seems clear that the death of your father, in 1989, had a
    profound effect on you and a very adverse effect on your
    drug dependency problem. You were foolish enough to
    commence selling drugs for a number of substantial dealers
    to support your habit but, even so, reached the point at
    which you owed dealers a considerable sum of money. This
    eventually led to you being severely beaten and injured on
    several occasions to ensure you honoured your obligations
    and continued to work as a drug distributor. Whilst I
    cannot accept your addiction, as such, as any excuse for
    your conduct, I do bear in mind that at the time of your
    offences you were certainly acting under some degree of
    duress. Be that as it may, your part in what transpired
    must, on any view, be regarded as more serious and more
    extensive than that of either of your co-offenders.
    Moreover, it is a circumstance of aggravation that you
    committed offences whilst subject to a bond to be of good
    behaviour, and the total amount of heroin involved in the
    possession for sale offence was greater than that related to
    your co-offenders. Whilst I give due credit for your pleas
    of guilty (albeit entered at a late stage) and time spent in
    custody as well as your apparent motivation to rehabilitate
    yourself, nevertheless there is a very finite limit to the
    degree of leniency which I may properly extend to you.
    Whilst your fear of reprisals from those for whom you
    distributed was, no doubt, well founded, the fact is that
    you have, in a very active fashion, promoted a hard drug
    trade and the misery and degradation which inevitably stems
    from it. While I will, of course, bear in mind the totality

    principle, it is my clear duty to impose substantial
    sentences in your case. The hard drug trade could not
    flourish without distributors such as yourself and the
    factor of deterrence must be given due recognition. The
    sentences which I impose on you are as follows. As to each
    offence of taking part in sale, imprisonment for a term of
    five years, each sentence to be served concurrently and to
    run from the expiration of the sentence the suspension of
    which has been revoked. As to the offence of possession for
    sale, imprisonment for a term of three years and eight
    months to be served cumulatively upon the other sentences
    imposed. I fix a non-parole period of five years and eight
    months, to run from the date upon which you were taken into
    custody upon your plea in relation to possessing heroin for
    sale, namely ll May 1992. I have, however, made due
    allowance for an earlier period of three months spent by you
    in custody at one stage pending completion of bail
    arrangements. In relation to the various head sentences
    (including that the suspension of which has been revoked) I
    direct that the time spent in custody since 11 May 1992 be
    deemed time serving the sentences imposed." 9. Before us the case of Tisizis was argued first. The grounds of appeal are:
    "1. The non-parole period was excessive in all the
    circumstances.
    2. The total sentence was excessive in all the
    circumstances.
    3. The Learned Sentencing Judge erred in imposing sentences
    against Tisizis which were disproportionately high when
    compared with those imposed against Ransom whose culpability
    was greater.
    4. The Learned Sentencing Judge erred in not reducing the
    sentences of Tisizis in the light of the offences being
    committed as a result of police undercover operations." 10. In his "Outline" Mr. Barrett, for Tisizis wrote:
    "In this case the repeated transactions instigated by the
    police and the encouragement to escalate the quantity of
    drugs to be purchased called for a discount on sentence.
    The issue was not averted to by the learned sentencing
Judge." 11. Mr. Barrett spoke of the question of entrapment. He referred us to the relevant cases. He fastened on the correct principles regarding the effect on sentence of entrapment (see R. v. Mandica (1980) 24 SASR 394; R. v. Romeo
(1987) 45 SASR 212 and the most recently decided case R. v. Hani Taouk Unreported Court of Criminal Appeal of New South Wales decided on 4 November, 1992. At p 26 of his reasons in R. v. Hani Taouk Badgery-Parker J said:
    "Nevertheless, it appears to me that Newman, J applied too
    severe a test in determining the relevance of entrapment, or
    encouraging conduct of police officers falling short of
    entrapment, to the question of sentence. It is abundantly
    clear that, were it in this State a defence to a criminal
    charge to show that police officers entrapped the accused by
    inducing him to commit a crime which he would not otherwise
    have committed, the appellant would have failed to establish
    that defence. However, when it comes to sentence, the
    question is not whether the accused can show that but for
    the involvement, encouragement or incitement by police he
    would not have committed the crime, but rather, whether
    there is a real possibility that but for the assistance,
    encouragement or incitement offered by police officers he
    would not have done so, and whether in all the circumstances
    of the case the involvement of the police in the commission
    of the crime was such as diminished his culpability." (My
    underlining) In my respectful opinion this states the law accurately. Mr. Brebner, for the respondent, did not suggest the contrary. 12. Has the accused Tisizis shown that but for the assistance, encouragement or incitement of police officers he would not have committed the crimes? 13. I have carefully considered the submissions made by Mr. Barrett and the relevant information. That information is in the statements of Detective Roy and of Detective Winkworth. I do not recite that information. In my opinion it does not support the submission so ably put by Mr. Barrett. I think that that information shows that the appellant was always perfectly ready and willing to sell heroin. He was not moved by anything done or said by the police to do anything that he was the least reluctant to do. He was, as His Honour said, a sub-distributor ready to sell when he could. I can find no fault in the conduct of the police. Their duty as undercover officers was to catch people engaged in the sale of controlled substances. In my opinion they went about their task in an acceptable manner. They could not be expected merely to wait for a seller to approach them. Their duty required them to talk to people, to search out people and to exercise some measure of persuasion to negotiate sales which they could sense a person was ready to make. All that they did here in the way of detection not travelling beyond that into entrapment. 14. I reject the submission that there was any entrapment. The appellant Ransom offered one ground of appeal in his notice - "that the sentences imposed were, in all the circumstances, manifestly excessive". Tisizis had raised this ground, too. He suggested that his sentences were manifestly excessive in the light of the fact that "the offences were really one course of conduct and in the light of the applicable tariff". But I notionally repeat the remarks of the learned trial judge. I think, if I may say so, that His Honour has gone about his task and expressed himself very well indeed. 15. At the hearing I was impressed by a summary of submissions which Mr. Brebner offered. He said:
    "Essentially, it is my submission that each individual
    sentence was well within the appropriate range. Secondly,
    some degree of accumulation was appropriate in order to give
    effect to the totality principle. Third, Ransom's degree of
    culpability was greater than that of Tisizis. He deserved
    and got a greater penalty. However, as Ransom really isn't
    very far up the ladder from Tisizis, the difference between
    their two sentences couldn't be too great and thus there is
    no undue disparity demonstrated. Fourth, the antecedents of
    both of them suggest that neither is a good candidate for
    parole and, in all the circumstances, the non-parole periods
    were reasonable and not an excessive proportion of the head
    sentences. Fifth, there is no untoward disparity as regards
    Mrs Tisizis as she had significant personal mitigating
    factors which legitimately led to her receiving lenient
    treatment. Finally, it is my submission that the activities
    of the police officers were those of detection and not
    entrapment. Quite clearly, these can be characterised as
    run-of-the-mill trading offences at the bottom end of the
    scale committed at street level." 16. I think all that to be sound. I say no more than I can find no fault in the sentences imposed nor in the reasoning of the learned sentencing judge. The sentences individually, in the aggregate and as they, by operation of non-parole period, will affect the appellants were well within the appropriate range of penalty for offences and offenders, indeed perhaps they bordered on the moderate. 17. I would dismiss each appeal.

JUDGE3 MILLHOUSE J I agree that the appeals be dismissed.