R v Lawrence; R v McDonagh - [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

The Director of Public Prosecutions applies for permission to appeal against sentences imposed in the District Court for drug offences.
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.
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.
The principles applicable to prosecution appeals are well established. The Court should grant leave to appeal only in a rare and exceptional case where it is necessary to establish a matter of principle: Everett v The Queen (1994) 181 CLR 295, 299-300. Where a sentence is so low as to shake public confidence in the administration of justice, it can indicate error or departure from principle: Griffiths v The Queen (1977) 137 CLR 293, 310 per Barwick CJ; R v Nemer (2003) 87 SASR 168, 172 per Doyle CJ. But mere inadequacy of the sentence, even manifest inadequacy, does not, of itself, justify the grant of leave. Careful and distinct consideration must be given to the question of the grant of leave: Malvaso v The Queen (1989) 168 CLR 227, 234-5.
Analysis
We deal first with the complaint that the sentences are simply too low.
In characterising the offending of the respondent Lawrence, the prosecution placed some emphasis, both before the sentencing judge and before this Court, on the respondent’s involvement in drug trading going beyond the three offences of which he acknowledged guilt and beyond the time span covered by them.
Before the judge it was put by prosecuting counsel that both men were “connected with the manufacture of fantasy to either a greater or a lesser degree”. Having referred to material on the depositions (including a receipt for a precursor found in Lawrence’s possession), the prosecutor went on:
It is my submission that the conclusion that [Lawrence] must have been involved in the manufacture becomes clearer and the conclusion that he must have intended to continue to sell in these sorts of quantities and at these sorts of prices for the foreseeable future is inescapable.
It was said that the respondents were more than wholesalers and that the material showed “an involvement in the overall activity of producing and selling fantasy which is greater than that [put by counsel]”. The prosecutor additionally pointed to submissions made on behalf of Lawrence containing admissions that as far back as 2001 he started supplying small amounts of fantasy to friends to support his own drug habit.
In this Court the Director relied on this material as putting the possession and sale of the relevant amounts in context and as demonstrating a “course of conduct” going back long before the first of the counts on the information. He stopped short of suggesting that the course of conduct included manufacture of fantasy.
There is a question in our minds as to how much weight can be given to submissions such as those advanced in this case.
It is clear that sentencing judges are entitled to have regard to the context in which a crime or a series of crimes is committed. A judge is not obliged to sentence on an artificial basis. As King CJ said in R v Taddeo (1993) 67 A Crim R 338, at 339, the offence “takes its colour from, and its character is affected by, the context in which it is committed”. He said that the Court was “dealing here, not with an isolated offence, but with an offence committed as an incident in the course of a continuing commercial dealing in the drug”. There, whilst Taddeo pleaded guilty to one count only, there was an express agreement between counsel that sentence should be imposed “against the background that [he] was substantially involved in the trading of cannabis”.
Statements by Doyle CJ in R v Mangelsdorf& Ors (1995) 66 SASR 60, at 69, are to similar effect:
There was a commercial aspect to the offence; it was an offence committed in, and as part of, commercial trading in heroin. To say this is not to suggest that Mr Mangelsdorf fell to be sentenced for anything other than the offence for which he was convicted. It is simply to make the point that the offence had a commercial flavour to it, and that he could not be sentenced on the basis that his offence was an isolated event.
In Weininger v The Queen (2003) 212 CLR 629, 639-640, the majority said that a conclusion beyond reasonable doubt that the offender had previously been involved in similar conduct would have entitled the primary judge to impose a heavier sentence than might otherwise have been warranted.
Whilst it is clear that an offender may only be sentenced for the crimes for which he has been convicted, the precise way in which uncharged conduct that is similar or related may be used is difficult to encapsulate. Whatever else can be said, we think the number of crimes for which the offender is convicted and the period spanned by that offending is a matter of significance. Where the uncharged conduct extends to crimes of a quite different character from the proved offences, or is more serious than them, or is well outside the period encompassed by the charges, we tend to think that there are difficulties in point of principle in having regard to that conduct at all. Particularly where an incident is the subject of a charge which was not proceeded with, we consider care would have to be taken before giving any weight to the evidence on which that charge was based.
In this case the sentencing judge made it plain during the course of submissions that he was alive to these issues. He approached the matter on the basis that Lawrence was involved in a course of conduct involving sales of fantasy, but he declined to sentence on the basis that Lawrence was a manufacturer. Consequently it is not necessary to say more about this contentious issue.
However, what is clear is that the respondents were far from being street traders. Lawrence in particular had ready access to extremely large quantities of the substance and stood to make significant profits from trading in it.
It was accepted on both sides that fantasy is to be regarded as a substance not as dangerous as heroin, but more dangerous than cannabis. There was no evidence before the sentencing judge as to how it compared with other so-called “middle range” prohibited substances.
In support of his argument that the sentences were manifestly inadequate the Director pointed to the warning issued in R v Pearce (1980) 91 LSJS 443, 445-446 and reiterated in Mangelsdorf at 67 to the effect that it should not be assumed that a sentence of seven years would be adequate for those engaged in heroin dealing to a serious extent and that it would be expected in the future that sentences imposed would approach the maximum penalty “to a much greater extent than in the past”. The same could be expected, it was said – proportionately – for middle-range substances.
The Director also relied upon R v Becker (2005) 91 SASR 498. There this Court declined to reduce a sentence totalling seven and a half years with a non-parole period of four years for offences of possessing fantasy for sale, unlawful possession of $950 and two counts of possessing methylamphetamine for sale. The offences occurred in two periods, being, for the first two offences October 2002 and then early in 2004, while the defendant was on bail. There was a long history of offending, including drug trafficking offences. The Court observed that for each pairing of offences a “notional starting point” of five to seven years was appropriate.
The Director also referred to the more recent case of R v Craciun (2006) 94 SASR 173. In that case there was an early guilty plea to six counts of selling heroin, two counts of possessing heroin for sale and unlawful possession of $15,770. The heroin seized had a street value of about $200,000. The Court declined to interfere with a sentence of eight years (non-parole period of six years) reduced from a starting point of ten years.
As this Court has often observed, each case must be considered in light of its own facts. Ranges expressed in such cases as Mangelsdorf are for the guidance of sentencing judges. Far from seeing any inconsistency between the level of sentencing in the cases cited and the sentence imposed on Lawrence, we think that giving due weight to the number of offences for which sentence was to be imposed, the nature of the substance in question, its value and the prior good record of the respondent, the various penalties are readily reconciled. No doubt a higher starting point could have been justified. But we think the sentence fell within the available range.
We have said very little about the respondent McDonagh. The judge accepted that his involvement in the enterprise was quite limited. He was “recruited on an ad hoc basis to assist in the three charged transactions”. The Director did not challenge the relativity of his sentence to that of Lawrence. Accordingly, it seems that both applications stand or fall together.
We turn to the complaint as to the reduction of 20 per cent given on account of the pleas of guilty. It is put that having regard to the history of the matter the pleas indicated recognition of the inevitability of conviction, rather than contrition and that the credit to be given should have been of a lesser magnitude.
Credit given for pleas of guilty can be attributable to remorse, acceptance of responsibility or willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339, 343 per Gaudron, Gummow and Callinan JJ. Determining the extent to which a sentence should be reduced by reason of any of these factors is a matter for the discretion of the sentencing judge. The fact that negotiation here led to abandonment of the manufacturing charge may not be irrelevant to that judgement. (See Atholwood v The Queen (1999) 109 A Crim R 465, cited by the majority in Cameron at 345.) It is also important to note that this was not a case where pleas were entered on the first day of trial. Rather, the offers to plead were received by the Director in the week prior. Furthermore, the judge was entitled to weigh in favour of both respondents their frankness with the court in submissions.
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.