R v Lindsay Peter Moore No. DCCRM-02-478

R v MOORE
[2002] SADC 131
Judge Robertson
Criminal
Introduction

This matter first came before me on 14 August 2002 when the accused pleaded guilty to the charge for which he is to be sentenced, namely Taking Part in the Sale of Cannabis. On that occasion his plea of guilty to the charge was accepted in satisfaction of the Information which contained another charge against the accused of Taking Part in the Sale of Cannabis. Submissions on penalty were presented by Counsel for the accused and the Crown. However, it became clear during the submissions that there was disagreement regarding the factual basis on which the accused was to be sentenced. There were a number of further hearings during which agreement was reached with respect to some facts. However, there were two sticking points, which led me to order that these be resolved in a disputed facts hearing. Shortly I will refer to these
Facts not in dispute.
The facts over which there is no dispute are:
·The accused ordered from a person in South Australia approximately 5½ lbs of cannabis to be delivered to him in Victoria.
·The approximate cost of the cannabis was $17,000.
·One third of the cannabis was for the accused and two thirds was for three other people.
·One third of the cost of the cannabis was provided by the accused and the remaining two thirds was provided by the other three people.
·The accused intended to sell part of his cannabis and part was intended to be retained for his personal use.
·The accused was aware that each of the three people were going to sell part of their cannabis and part of it was for their personal use.
·None of the cannabis ordered was ever delivered.
I should mention that initially when both counsel were making their submissions it was on the basis that the amount to be delivered to the accused was 5 lbs and the amount contributed by the accused and those other three persons was $15,000. However, Mr Camilos, Counsel for the Crown, who appeared at the disputed facts hearing directed my attention to a telephone interception recording a conversation in which the amount of approximately 5½ lbs was discussed. He also pointed out that the intercept recorded a discussion of $62,000 being sent for the 20 lbs at a cost of $3,100 per pound. It is not in dispute that the 20 lbs order included the 5½ lbs. Telephone intercept Number 447 confirms the amounts described by Mr Camilos. Mr Abbott QC, who appeared for the accused, did not demur with respect to these figures. Accordingly, I have substituted those figures for the quantity and monetary amount referred to in earlier hearings. In any event, for sentencing purposes, any differences will not affect the terms of the sentence.
Facts in Dispute.
I turn to the two issues that were the subject of dispute. As I said it is not in dispute that the order of the 5½ lbs of cannabis was part of an order for the delivery of approximately 20 lbs of cannabis. The Crown accepts that approximately 15 lbs was ordered by the accused for a person by the name of “Ben”. There was $62,000 sent to South Australia by the accused for the purpose of acquiring the cannabis. It is accepted by the Crown that $45,000 was supplied by the person “Ben”. Neither the quantity of cannabis to be passed on to “Ben” nor the remainder of the cannabis for the accused, was ever delivered.
Mr Press, who appeared for the Crown, until the Disputed Facts hearing, submitted that the accused should be sentenced taking into account that the 5½ lb order was part of an overall order of 20 lbs. He submitted that the accused’s criminal conduct with respect to the order of 5½ lbs should be viewed more seriously because it was contained within an order of 20 lbs. I confess to having difficulty understanding the submission of Mr Press on this matter from the outset. He did not submit that it was a circumstance of aggravation but he said that the accused’s criminal liability for the order of 5½ lbs was greater because of it. I should add that the order of the approximately 15 lbs was the subject of a separate charge against the accused in the Information. However, as I said earlier, the Crown accepted the plea of guilty to the present charge in satisfaction of both charges.
The other issue in dispute related to the future conduct of the accused. The Crown submitted that the offending, the subject of the present charge, should not be viewed in isolation as a one-off transaction. It was submitted that the accused should be sentenced on the basis that he intended to facilitate the purchase of other amounts of cannabis from the supplier in Adelaide. Although Mr Press did not make it clear, it was inherent in counsel’s submissions, that these purchases would have some commercial element to them, in the sense that whilst part of the purchase might be for personal use by the accused or others, the other part would be for on-selling.
Mr Abbott QC, submitted, with respect to the first issue, that the effect of the Crown submission is that the accused would be sentenced for an offence for which he has not been convicted. With respect to the second point, Mr Abbott submitted that the accused should be sentenced on the basis of a one-off transaction and on the basis that if the opportunity arose in the future the accused may avail himself of the opportunity to purchase cannabis on a similar basis to the purchase the subject of the charge.
Refusal to allow the Crown to change position.
When the Disputed Facts issues came on for hearing Mr Camilos appeared for the Crown. He told me that he was appearing because Mr Press was on leave. He sought to widen the hearing by eschewing the facts which Mr Press had indicated were not in dispute at earlier hearings. He also sought to place in dispute other matters personal to the accused which had not been disputed by Mr Press in earlier hearings. I was disturbed at this approach which had the effect of commencing this entire process again. I informed Mr Camilos that the disputed facts hearing had been arranged to deal with the two discrete issues. I indicated that I would not allow him to widen the hearing beyond those two issues.
Evidence relied upon by the Crown.
I should mention the evidence relied upon by the Crown for the purpose of the sentencing of the accused. A number of telephone conversations between the accused and the person who was to supply the cannabis from Adelaide were intercepted by the police. The accused is a resident of Victoria. These intercepts recorded conversations in which the accused discussed the purchase of 20 lbs of cannabis. Further, when it was clear that the supplier could not supply 20 lbs, discussions took place regarding the supply of the 5½ lbs.
For the purpose of sentencing, the Crown relies upon telephone intercept numbers 97, 441, 447, 459, 477 and 494. They also rely upon the declaration of police officer Dechene of the Victorian police. He was involved in a search of the accused’s residence in Victoria on 28 March 2001. As a result of this search the accused pleaded guilty in Victoria to two offences associated with cannabis.
Resolution of the two issues.
In my view, the first issue, namely that the offending should be viewed more seriously because of the initial order of 20 lbs, can be disposed of shortly. Whatever manner in which it is dressed up, the Crown is submitting that the order of approximately 15 lbs on behalf of Ben, is a circumstance of aggravation. I mentioned earlier, that this conduct was the subject of a separate charge which the Crown has not proceeded with, having accepted a plea of guilty to the charge for which the accused is to be sentenced in full satisfaction of the charges against the accused on the Information.
The principle is expressed by Cox J in R v Teremoana (1990) 54 SASR 30 (at 36):
“I turn to the matter of sentencing principles. As a general rule, the judge who is sentencing a person who has been convicted of an offence will have regard to all of the circumstances surrounding the offence and this may include its impact upon other people. Care must be taken, however, not to take into account actions of the defendant, however reprehensible they may have been, that were really irrelevant to the crime charged, and special caution is needed if the result of taking something into account will be to punish the defendant for an offence of which he was [sic] not been convicted”.
This statement of principle has been recently approved by the Court of Criminal Appeal in The Queen v Delphin (2001) 79 SASR 429 (at 438). (See also: R v De Simoni (1981) 147 CLR 383 at 389; R v Newman (1997) 1 VR 14 at 150-151.)
In my opinion, the Crown is seeking to have taken into account, for the purpose of sentencing the accused for the charge to which he has pleaded, the circumstances of the charge for which he has not been convicted. This offends the principle to which I have referred. Accordingly, such a circumstance cannot be taken into account as an aggravating feature, for the purpose of sentencing the accused.
I now turn to consider the second of the disputed facts issues. Part of this dispute centred upon the words used by the accused in the telephone intercept Number 441. In that telephone conversation the accused expressed concern about the Adelaide person’s ability to supply the 15 lbs. At one point in the conversation the following exchange took place:
Adelaide person: “Lindsay, I wouldn’t do it for you mate, I told ya mate, I won’t thinks to fucking keep going mate not stop.”
Accused: “Yeah so do I, and I was gonna get bigger.”
This comment together with other comments by the accused in the course of the intercepted telephone conversations are relied upon by the Crown as the basis for the submission that the accused intended to continue to make purchases in the future. The Crown submits that such a fact has been proved beyond reasonable doubt.
After considering the telephone intercepts I make the following findings of facts:-
·That this was not the first occasion the accused had purchased cannabis from the supplier in Adelaide.
·That there was a business relationship between the accused and the Adelaide supplier existing prior to 6 February 2001.
·That the accused was concerned to have $45,000 returned to Melbourne so that he could attempt to acquire the fifteen pounds in Melbourne.
·That the 5½ lbs of cannabis was to be delivered by the Adelaide supplier to the accused on 7 February 2001.
·That the accused was anxious to ensure he delivered the 15 lbs to Ben by Thursday night.
In my view those findings of fact are relevant in determining the accused’s intention for the future. It is against that background that his comment in the telephone conversation “ … I was going to get bigger” needs to be viewed. The Adelaide supplier and the accused were discussing the difficulty the Adelaide supplier was finding in meeting the order and that he had let the accused down. In the passage in the telephone conversation which I referred to earlier, the Adelaide supplier indicated that he wanted things to keep going, not stop. By that I infer that he wanted to continue to supply cannabis. Seen in that context, with the factual background to which I have referred, in my opinion the accused’s answer was referring to an intention to continue to obtain supplies from the Adelaide supplier
Mr Abbott QC submitted that the proper interpretation of the accused’s comments is that he might make a repeat order in the future if the occasion arose. He referred to the comments of Doyle CJ in Johns v The Queen (Judgment S5171; delivered 19 July 1995 at page 1) where he said in the context of that case:-
“The relevance in this is that in sentencing Mr Johns, it was appropriate to approach the matter on the basis that he was prepared to make sales if the opportunity arose, and the instant sale could not be regarded as an event unlikely to be repeated”.
Mr Abbott QC suggested that the accused should be sentenced along the lines expressed in Johns.
The difference between the approach urged by Mr Abbott and that of the Crown is that Mr Abbott submitted that the accused should be sentenced on the basis that the accused may, in the future, if the opportunity arose, seek further supplies from the Adelaide supplier whereas the Crown submitted that the facts display an intention to continue to treat with the Adelaide supplier.
I do not accept the submission made by Mr Abbott QC. I am satisfied beyond reasonable doubt that the accused intended to purchase further supplies of cannabis from the accused in the future. Furthermore I am satisfied beyond reasonable doubt that the purchase in the future would involve an element of commerciality.
It follows from what I have said that this offending cannot be viewed as a one-off transaction, in the manner submitted by Mr Abbott QC. It must be viewed against a background that further transactions would be undertaken having, in part, commercial overtones.
I should also point out that the accused is not to be sentenced on the basis that there had been other transactions of a similar nature in the past. It is not the Crown case that there were any earlier transactions which had any commercial element to them. The Crown’s case is that there was intention to undertake similar transactions in the future.
Summary.
By way of summary the accused is to be sentenced on the following basis:
1.     That the nature of the offending, the subject of the charge is:
(a)     That part of the cannabis to be purchased was for the accused’s personal consumption and part was for sale.
(b)    That the accused was to distribute part of the cannabis to be purchased to three other persons who the accused knew would consume part and sell part.
2.     That the transaction is not to be viewed in isolation as a one-off transaction.
3.That transaction is to be viewed against the background that the accused intended to place further orders in the future which had a commercial element to them.

[2002] SADC 131

9 October 2002