R v Lawrence; R v McDonagh

Case [2007] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LAWRENCE;  R v MCDONAGH

[2007] SASC 106

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Kelly)

30 March 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES

Prosecution appeals against single sentences imposed for three counts of taking part in sale of fantasy - sentence in one case imposed on basis that offences were incidents in an ongoing commercial enterprise - extent to which admission of past sales to be taken into account - extent to which conduct forming basis of manufacturing charge later dropped could be relied upon - whether 20 per cent reduction for pleas entered the week before trial excessive - effective sentences of five years seven months in one case and four years in the other.  Held:  appeal dismissed.

Controlled Substances Act 1984 (SA), s 32(1)(d); Criminal Law (Sentencing) Act 1988 (SA), s 18A, referred to.
Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1977) 137 CLR 293; R v Nemer (2003) 87 SASR 168; Malvaso v The Queen (1989) 168 CLR 227; Cameron v The Queen (2002) 209 CLR 339, applied.
R v Taddeo (1993) 67 A Crim R 338; R v Mangelsdorf & Ors (1995) 66 SASR 60; Weininger v The Queen (2003) 212 CLR 629; R v Pearce (1980) 91 LSJS 443; R v Becker (2005) 91 SASR 498; R v Craciun (2006) 94 SASR 173, discussed.
Atholwood v The Queen (1999) 109 A Crim R 465, considered.

R v LAWRENCE;  R v MCDONAGH
[2007] SASC 106

Court of Criminal Appeal

Coram:  Vanstone, Anderson and Kelly JJ

THE COURT:

Introduction

  1. The Director of Public Prosecutions applies for permission to appeal against sentences imposed in the District Court for drug offences.

  2. Each respondent was convicted upon his pleas of guilty to three counts of taking part in the sale of 4- hydroxybutanoic acid (“GHB”), commonly called “fantasy”.  The quantities involved were extremely large.  The effective sentences imposed were, for the respondent Lawrence, imprisonment for five years and seven months with a non-parole period of two and a half years and for the respondent McDonagh, four years imprisonment with a non-parole period of one year and ten months.

  3. The Director argues that the sentences are so low as to shock the public conscience and erode sentencing standards.  Further, it is submitted that the sentencing judge erred in reducing the sentences to the extent of 20 per cent on account of the pleas of guilty, those pleas having been entered not long before the day upon which the respondents’ trial was to commence. 

    Background

  4. Each sale occurred within the period August to September 2002 and was made to an undercover police officer.…

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AGLC
R v Lawrence; R v McDonagh [2007] SASC 106
Case
[2007] SASC 106
Decision Date

CaseChat Overview and Summary

In the case of R v Lawrence; R v McDonagh, the Director of Public Prosecutions (DPP) sought an appeal against sentences imposed on Lawrence and McDonagh for their involvement in the sale of large quantities of gamma-hydroxybutyrate (GHB). The appeals centred on the argument that the sentences, which were five years and seven months for Lawrence and four years for McDonagh, were so lenient as to shock the public conscience and erode sentencing standards. The DPP further contended that the sentencing judge erred in reducing the sentences by 20% due to the respondents' pleas of guilty, which were entered just before the trial was set to commence. Each respondent was charged with three counts of participating in the sale of a controlled substance, specifically GHB, in quantities that exceeded the prescribed threshold, thus attracting the higher penalties under the Controlled Substances Act 1984 (SA). The quantities involved were substantial, with over 17,000 grams sold in two instances and over 34,000 grams in the third. The judge imposed sentences using section 18A of the Criminal Law (Sentencing) Act 1988 (SA), taking into account the respondents' pleas and time already spent in custody or on bail. The court found that while the judge's reduction in sentence due to the late pleas of guilty was a matter of judicial discretion, it did not constitute an error. The sentences were deemed appropriate given the nature and severity of the offences. The appeal was ultimately dismissed, and permission to appeal was refused.

Orders

Orders of the court

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Background

Background to the litigation

The Director argues that the sentences are so low as to shock the public conscience and erode sentencing standards. Further, it is submitted that the sentencing judge erred in reducing the sentences to the extent of 20 per cent on account of the pleas of guilty, those pleas having been entered not long before the day upon which the respondents’ trial was to commence. Background Each sale occurred within the period August to September 2002 and was made to an undercover police officer. These were offences contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA). That Act provides a 2-tier penalty system for offences against that section. In each case the amount sold was far in excess of the prescribed amount of five grams which attracts the higher maximum penalty of a fine not exceeding $500,000 and imprisonment for life. (The lower tier figures are $200,000 and 25 years.) For counts 1 and 2 the amounts were in excess of 17,000 grams and for count 3 in excess of 34,000 grams. The price paid by the police officer for these quantities of GHB, was, for counts 1 and 2, $15,000. In respect of count 3, $28,000 was to be paid. However, counsel for Lawrence put to the judge that only $3,000 of the sale prices for counts 1 and 2 was to be retained by Lawrence, and that on each occasion he passed to McDonagh $500 for his assistance. In each case the judge imposed one sentence, utilising s 18A Criminal Law (Sentencing) Act 1988 (SA). In respect of the respondent Lawrence, the judge took a starting point of seven years and reduced it to five years and seven months on account of the pleas of guilty. In respect of that sentence he determined upon a non-parole period of two years and six months. That was the effective sentence. However it fell to be reduced further on account of Lawrence having spent eleven months in custody after his arrest and then almost two years on home detention bail. To reflect that, the judge deducted one year and two months from both head sentence and non-parole period. In relation to the respondent McDonagh, whose role, it was acknowledged, was lesser, the judge took a starting point of five years imprisonment and reduced it to four years on account of the pleas. He would have fixed a non-parole period of one year and ten months, but deducted a total of one year from both the head sentence and non-parole period in recognition of eleven months in custody and a bit over nine months on home detention bail. The respondents’ committal for trial occurred on 25 February 2004. From that time there were a number of delays before the matter was finally set down for trial. Various factors contributed to the delays and all these need not be outlined, but one was that the first respondent’s advisers sought to have issued a number of subpoenas directed to the Police Commissioner, designed to allow for examination of the police operation which led to this offending. It seems that it was thought these might reveal illegality in police conduct which could have resulted in exclusion of evidence. A ruling upon the last of these applications was given not long before the July 2006 trial date. It was adverse to the respondent. It appears that from that time there was some negotiation and the respondents offered to plead guilty to the three counts already mentioned. It is perhaps of significance that a fourth count – being one of taking part in the manufacture of fantasy – was the subject of a nolle prosequi once the pleas to the selling counts were entered.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the respondents’ cases the judge said he was not inclined to give maximum credit for the pleas, but settled on a reduction equal to one-fifth of each starting point. Whilst some judges would not have been prepared to allow that degree of credit, we do not think it can be said to be outside the ambit of the judge’s discretion. Conclusion No error of approach has been made out. Nor is any matter of principle at stake. We consider that the sentences imposed were within the range of sentences appropriate to the serious offences committed by the respondents. Permission to appeal should be refused.

Ratio Decidendi

Legal Principle Established

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