R v Lloyd Murray Reed No. SCCRM 93/399 Judgment No. 4343 Number of Pages 7 Criminal Law and Procedure

[1993] SASC 4343

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ (1), MILLHOUSE(2) and OLSSON(3) JJ

CWDS
Criminal law and procedure - appeal by Director of Public Prosecutions against sentences imposed for two counts of selling heroin - judge sentenced respondent to 3 years 9 months for count 1 and 6 years 3 months for count 2 with a 60 month, non parole period (to be served concurrently) - sentence to be served cumulatively upon sentence of 5 years with 32 month non parole period for possession of a prohibited import - effect of sentences led to 7 year 8 month non parole period - factors of personal and general deterrence paramount - sentence imposed manifestly inadequate in circumstances - appeal allowed. Controlled Substances Acts32(1)(c). R v Ditroia (1990) 54 SASR 13, applied.

HRNG ADELAIDE, 8 December 1993 #DATE 22:12:1993
Counsel for appellant:        Mr P J L Rofe QC
  with Ms J Rusalen
Solicitors for appellant:     Director of Public Prosecutions
Respondent:                 In person.

ORDER
Appeal allowed.

JUDGE1 KING CJ The Director of Public Prosecutions for the State of South Australia seeks leave to appeal against sentences imposed upon the respondent in the District Court for two crimes of selling heroin. 2. The respondent was before the learned sentencing judge for sentence for the two crimes referred to above, being offences against the ControlledSubstances Act of South Australia, and also for a crime of possession of a prohibited import, namely heroin, contrary to s.33B of the Customs Act of the Commonwealth. The learned sentencing judge imposed in respect of the Commonwealth offence a sentence of imprisonment for 5 years with a non-parole period of 32 months commencing on the date of sentence, namely 5th October 1993. He imposed a sentence in respect of the first of the State offences of imprisonment for 3 years and 9 months and in respect of the second of those offences imprisonment for 6 years and 3 months to be served concurrently but cumulatively upon the sentence for the Commonwealth offence. His Honor fixed a non-parole period of 60 months with respect to the State offences. He ordered that the non-parole period commence at the expiration of the non-parole period for the Commonwealth offences. In determining the sentences for the State offences, His Honor took into account that the respondent had been in custody for a period of 14 months without the benefit of good conduct remissions and he treated that period as the equivalent of 21 months' imprisonment. A report by the learned sentencing judge to this Court discloses a misconception as to the effect of the orders which he made. In his report His Honor expressed the view that the aggregate of the sentences imposed was 11 years and 3 months. That is true if the aggregate is arrived at by adding total imprisonment for the State offences, namely 6 years and 3 months, to the period of imprisonment for the Commonwealth offence, namely 5 years. That process, however, does not reveal the true length of the total head sentence imposed upon the respondent for all offences. The order that the non-parole period for the State offences commence at the expiration of the non-parole period for the Commonwealth offence necessarily implies that the head sentences for the State offences commence at the expiration of the non-parole period for the Commonwealth offence; R v Bartels (1986) 133 LSJS
159. The total length of the head sentences imposed for all offences was therefore the sum of 2 years 8 months and 6 years 3 months, namely 8 years 11 months, and not 11 years and 3 months as supposed by the learned sentencing judge. 3. I think that the above misconception has the effect of vitiating the exercise of the sentencing discretion and requires this Court to examine the position afresh. There is no appeal by the Commonwealth Director of Public Prosecutions against the sentence for the Commonwealth offence. This Court is therefore concerned only with the sentences imposed for the State offences and can have regard to the sentence imposed for the Commonwealth offence only insofar as it bears upon considerations affecting the totality of the sentences imposed for the respondent's offending. 4. The respondent committed the Commonwealth offence while on parole in respect of a sentence of imprisonment in New South Wales. While he was on bail in respect of the Commonwealth offence, an undercover operation was mounted by the police with a view to detecting him in offences arising out of drug dealing in which he was believed to be engaged. The police engaged the assistance of a drug dealer whose name was given as Zehros. Zehros arranged with the respondent for the sale of an ounce of heroin to a customer who was in fact an undercover police officer. The transaction was to lead to a further transaction for the sale of a pound of heroin. 5. The respondent buried the heroin, the subject of the first sale, and when the purchase price was handed over gave directions to enable the heroin to be retrieved. The material which was the subject of the transaction weighed 27.9 grams of which 18.8 grams was pure heroin. 6. Negotiations were then put in train for the further transaction with respect to the larger quantity of heroin. The second transaction occurred on 7th August 1992, almost a month after the first transaction. By arrangement the sum of $136,000 was left in a motel room in Adelaide. In accordance with the arrangement Zehros located the heroin near a restaurant at Henley Beach and the undercover police officer who was the customer gave the respondent the key to the room where the money had been left. The respondent was apprehended in the motel room while handling the money. The transaction involved material weighing 467 grams of which 277 grams was pure heroin. 7. There was evidence that the heroin involved in these transactions could have yielded up to $790,000 in retail sales. Clearly the respondent was engaged in heroin dealing on a considerable scale. He was, of course, only a link in a supply chain but his role was obviously important. 8. The maximum sentence prescribed by law for each of these crimes was imprisonment for 25 years or a fine of $200,000 or both. 9. The respondent, who appeared in person before the Court of Criminal Appeal, argued that he had been the victim of entrapment at a time when he was vulnerable following his apprehension for the Commonwealth offence and that that should be given considerable weight in assessing the sentence. He went so far as to indicate that he had not engaged in the transactions for profit but merely out of compassion for users of heroin who were made the victims of unscrupulous operators. There is an inconsistency in the argument. It is difficult to know what the respondent could mean by his reference to his vulnerability unless he meant that he needed money as a result of his apprehension for the Commonwealth offence. That is inconsistent with the suggestion that his motive was not profit but compassion. There can be no doubt that the respondent was engaged in drug dealing involving heroin of substantial value for financial gain. 10. The circumstances of this case considered as a whole made inevitable the learned judge's rejection of the suggestion that the respondent would not have engaged in these transactions if advantage had not been taken by the police of his vulnerability in consequence of his arrest for the Commonwealth offence. It is clear that he was engaged in drug dealing for financial gain and that the police plan did no more than detect him in the commission of offences which he was only too willing to commit. The so-called "entrapment" does not, in my opinion, operate in the present case to diminish the gravity of the crimes. 11. The respondent has an appalling criminal record which indicates a settled lifestyle of crime. His long record includes a number of convictions for breaking and entering and three for armed robbery. For one of the crimes of armed robbery he was sentenced in June 1972 in New South Wales to 10 years' imprisonment cumulative upon 3 years' imprisonment for four crimes of breaking and entering. At the time of the commission of the Commonwealth offence he was on parole with respect to a sentence of 10 years and 6 months' imprisonment, with a non-parole period of 7 years, imposed upon him on the 23rd November 1987 in Griffith New South Wales for the crime of manslaughter. 12. The maximum sentences prescribed by Parliament for crimes such as these indicate that the Courts are expected to do what can be done by means of condign punishment to stamp out or at least to contain the trade in illicit drugs. Heroin is a particularly harmful illicit substance and the Courts have consistently imposed heavy penalties for dealings in it. The quantity of heroin involved in the present transactions is very large and a long sentence is clearly called for. There is a clear link between the first transaction and the second transaction. The first transaction is really a lead-in to the second transaction. In those circumstances I think it appropriate to fix a single sentence pursuant to s.18a of the Criminal Law (Sentencing) Act for both crimes. If it were not for the plea of guilty, I would have regarded a sentence of 15 years' imprisonment as appropriate. The learned sentencing judge discounted the sentence which he would have otherwise imposed by 20 per cent for the plea of guilty. He was in the best position to judge the weight to be given to the plea and I would adopt his figure. The appropriate head sentence therefore becomes 12 years. That figure must be reduced by 21 months to take into account the time spent in custody prior to sentence. The appropriate head sentence is therefore 10 years and 3 months. 13. I cannot envisage parole as playing any significant part in the sentencing package for the respondent. His record shows that he has a settled criminal lifestyle and prospects of his responding to parole are slight. These offences constituted a breach of his parole with respect to the New South Wales sentence. I would have fixed an 11 year non-parole period with respect to the 12 year sentence and that will be reduced by reason of the time spent in custody to 9 years and 3 months. 14. The State offences were quite distinct from the Commonwealth offence and were, indeed, committed while the respondent was on bail with respect to the Commonwealth offence. Sentence for the State offences must therefore be cumulative upon the punishment for the Commonwealth offence. I would therefore order that the head sentence and non-parole period for the State offences commence at the expiration of the non-parole period for the Commonwealth offence. 15. In reaching the above conclusions, I have considered the totality of the punishment which would result. It would mean an effective total sentence of 17 years' imprisonment with an effective total non-parole period of 13 years and 8 months. That is a severe sentence but having regard to the maximum sentences prescribed for these crimes, the quantity of heroin involved and the absence of mitigating factors, I do not consider that it is excessive. 16. I would therefore grant leave to appeal, allow the appeal, set aside the sentences appealed from and substitute the sentences which I have proposed above.

JUDGE2 MILLHOUSE J I agree.

JUDGE3 OLSSON J This is an appeal by the Director of Public Prosecutions against two sentences imposed on the respondent following his pleas of guilty to two counts of selling heroin, contrary to the provisions of section 32(1)(c) of the Controlled Substances Act. It is complained that the sentences imposed were manifestly inadequate. 2. The respondent appeared before a District Court Judge on three separate counts, to all of which he entered pleas of guilty. 3. The first was a charge, preferred by the Commonwealth Director of Public Prosecutions, of possession of a prohibited import, namely 20.7 grams of heroin. In respect of this the learned sentencing judge imposed a sentence of imprisonment for five years, with a non parole period of 32 months, both to run from 5 October 1993. Under the relevant legislation that head sentence attracts remissions, but the non parole period does not. There has been no appeal against that sentence. 4. The second and third charges were contained in an information preferred by the State Director of Public Prosecutions. 5. The first of these averred knowingly selling heroin on 10 July 1992, contrary to the provisions of the Controlled Substances Act. The second alleged knowingly selling heroin on 7 August 1992, contrary to the same provisions. These charges related to two separate quantities of 27.9 grams (of 67.3 per cent purity) and 467 grams (of 59.3 per cent purity) respectively. 6. The last mentioned offences attracted custodial sentences of three years and nine months as to the July offence and six years and three months as to the August offence. It was directed that these sentences be served concurrently with each other, but cumulatively on the sentence for the Commonwealth offence. 7. In imposing sentence the learned sentencing judge said that he both gave discounts for the pleas of guilty and also credit for the fact that the respondent had been in custody for almost 14 months - that period being equivalent to approximately 21 months with full remissions. A non parole period of 60 months was fixed in relation to the two State offences. 8. In a report to this court the learned sentencing judge explained that his intention had been to impose aggregate sentences totalling 11 years and 3 months, with an aggregate non parole situation of 7 years and eight months. 9. His rationale for arriving at such a result was as under:-
    . he considered appropriate sentences for each of the
    offences, taken in isolation to be - possess prohibited import
    7 years selling heroin - count 1 7 years selling heroin - count
    2 10 years Total: 24 years . on the totality principle this
    seemed too much. An aggregate of 17 years was his preferred
    commencement 3 point, arrived at by making the sentences for the
    State offences concurrent with another.
    . A reduction of 20 per cent for guilty pleas was
    appropriate, albeit that they were made somewhat late. This
    reduced the overall desired result to 13.6 years, which was
    rounded down to 13 years, being 5 years for the Commonwealth
    offence and 8 years for the State offences.
    . To give a 21 month credit for time already spent in
    custody the State offences were adjusted down to 3 years and 9
    months and 6 years and 3 months respectively. Unfortunately the
    understanding of the learned trial judge as to what he had
    achieved was erroneous. As the learned Director of Public
    Prosecutions pointed out, the practical end result was an
    aggregate head sentence of 8 years and 11 months, with a total a
    total non parole period of 7 years and 8 months. This is a
    consequence of the fact that, on the orders made by the learned
    sentencing judge, the State offence sentences commence to run
    from the expiration of the non parole period related to the
    Commonwealth offence (see reasoning implicit in R v Ditroia
(1990) 54 SASR 13). 10. The net consequence is that the sentencing formula adopted by the learned sentencing judge produced an outcome which fell short of the aggregate head sentence which he set out to achieve, by 2 years and 4 months. The effect of the sentences imposed by him gave rise to a total non parole period of 7 years and 8 months. 11. The offences in question were all of a very serious nature, reflecting, as they did, the fact that the respondent was trafficking in large quantities of high grade heroin. Moreover, the State offences were committed whilst the respondent was on bail in respect of the Commonwealth offence and on parole for an offence of manslaughter committed in New South Wales, apparently also committed in the context of some drug related activity. 12. The total quantity of heroin involved, even if only cut to about 15 per cent purity, would have realised a resale value of almost $800,000. If further cut it would have achieved an even greater return. 13. The Commonwealth prosecution resulted from the surveillance of the respondent by Federal police officers, who found both heroin and a quantity of bank notes buried in a location seen to have been visited by the respondent at Andrews Road Penfield. At the time of his arrest $39,500 in cash was found to have been buried by the respondent, in addition to which $8,500 in bank notes were found in premises occupied by him. 14. The two State offences were the result of undercover operations mounted by police officers from this State and New South Wales, acting in concert. They were the outcome of controlled buys of heroin from the respondent, in respect of which a total of $146,000 changed hands for the bulk quantities involved. 15. The learned sentencing judge correctly assessed that the three offences evidenced a major involvement of the 5 respondent in the heroin trade, although it is said that he has never personally used that drug. 16. It appeared that, at the age of 41, he has now spent some 20 years of his life in prison. He has a long antecedent record stemming back to 1967. His many offences span crimes of dishonesty, assault, breaking offences, armed robbery, manslaughter and escape from prison. 17. The attention of this court was drawn to a series of other reported sentencing cases, but these are of limited assistance. Some of them arose under different statutory regimes, whilst others were necessarily the product of specific fact situations. What must, however, be said is that this Court has made it plain that large scale traffickers in hard drugs such as heroin must expect heavy sentences. 18. Such persons are notoriously hard to detect and the adverse consequences of their activities to the community are profound and utterly destructive to human life. The factors of personal and general deterrence must be paramount considerations. The extent to which the Court may properly recognise individual mitigating circumstances (precious few of which exist in the case of the respondent, other than his early unfortunate experiences in prison) is extremely limited. 19. In the course of his submissions the respondent complained bitterly of the deliberate actions of the police in enticing him to commit the offences in question. He contended that his entrapment was inappropriate and that he had been propositioned in circumstances in which he was vulnerable. This ought, he said, to lead to much reduced sentences. 20. Indeed he made the somewhat extraordinary submission, in impassioned tones, that he did not set out to make any money out of the transactions, but was only acting as a broker. He asserted the he had never made a profit from drug dealing, only from gambling. He said that, had he been offered a brokerage fee, he may or may not have accepted it. 21. The respondent pointed to what, he asserted, were relatively brief periods actually spent in custody by other major drug dealers and the treatment accorded a police informer involved in his own case. He vehemently declaimed that his sole motivation was the compassion which he had for people unfortunately addicted to drugs. 22. All that need be said as to those assertions is that, having regard both to the background of the respondent and the detailed pattern, circumstances and magnitude of the offences now under consideration, it would require an unimaginable degree of gullibility on the part of this Court to accord weight to any of them. It is clear that the respondent deliberately engaged in the hard drug trade as a major participant. He was only too ready to sell his destructive wares to the undercover police officers, when invited to do so. His expressed concern and compassion for addicts can only be received with the cynicism which it so obviously deserves. 23. In my opinion the sentences imposed were manifestly inadequate in all of the circumstances. 24. I would allow the appeal, set aside the sentences imposed and substitute for them the sentence and non parole period proposed by the Chief Justice.