R v M No. Sccrm-98-201 Judgment No. S44

[1999] SASC 44

R  v M
[1999] SASC 44

COURT OF CRIMINAL APPEAL: Millhouse,  Prior and Duggan JJ

MILLHOUSE J  (ex tempore):          The appellant pleaded guilty to several charges, in May 1994 possessing heroin for sale and in November 1995 selling heroin, two counts of causing bodily harm by dangerous driving and possessing heroin for sale.   It's been accepted the appellant was not just a street trader in heroin.  As the learned sentencing judge put it, his involvement in selling heroin has been 'at the level of a significant commercial enterprise.'  On both occasions, in 1994 and in 1995, the appellant was caught selling to known street traders.  He was a supplier to them.  The amount of heroin of which, on each occasion, he was found to be in possession was almost identical, in 1994, 23.6 grams in 94.6 grams of powder; in 1995, 23.16 grams in 86.6 grams of powder. 

In March 1994 the appellant had been given a six month sentence suspended on entering into a two year good behaviour bond for threatening to cause harm, to use the words in the antecedent report.  So when all offences were committed the appellant was on a good behaviour bond.  The learned judge estreated this, and taking into account truth in sentencing ordered that the appellant serve four months in gaol. 

As well, the appellant, at the time of the 1995 offences, was on bail for the 1994 offence. 

I should say that the appellant has a record of offending beginning in 1981. 

The learned judge imposed cumulative sentences, one for the 1994 offence and one for the 1995 offences, (obviously and justifiably regarding them as a course of conduct). 

As to the offences, he described them in this way - I go to p.183 of the book:

"In 1994, when arrested, 23.6 grams of heroin was located hidden at your house.  It was in about 95 grams of powder.   This offence was detected as a result of the approved telephone intercept of others. 

In 1995, you were arrested after being observed selling heroin to a known street dealer.  That person was also arrested and made admissions.  He had in his possession less than the prescribed quantity of heroin.  When the police attempted to arrest you from your vehicle at traffic lights you crashed past a stationary police vehicle to your front, having refused to turn off your vehicle when requested to do so by police officers who had identified themselves.  You wound your window up as you drove off, catching their arms.  As you accelerated, they were dragged off their feet and sustained injuries.   When they fell to the ground, one had his leg broken when run over by the rear wheels of your vehicle, the other was bruised.  The injuries caused to the police officers have generally healed, but that from your point of view, is good fortune. 

Your actions, in attempting to escape the police, were deliberate and extremely dangerous.  Your explanation to police, when arrested at your home after a high speed chase, that you thought you were being robbed, is unacceptable."

The appellant is now getting on for 44 years of age.  He was born in Hungary.  He came to South Australia in 1980.   His family background in Hungary was tragic.  His father having died in the 1956 Uprising and being ill-treated after that by a stepfather. 

In Australia he has been a self-employed transport operator.

All that is, I think, common ground between appellant and respondent. 

The learned sentencing judge worked on a head sentence of 9 years for the 1994 offence and 12 years for the 1995 offences.  Counsel for the appellant, Mr David Stokes, says these starting points are too high, but he said no more about it.  

Mr Paul Muscat for the Crown says 'No', and reminded us of the maximum penalty - a fine of $200,000 or imprisonment for 25 years or both - the substantial amount of heroin - that the appellant was engaged in commercial dealing - he wasn't only a street trader - these weren't isolated offences and he was on a bond at the time. 

The judge then accumulated the two sentences.  That would have made a total, beginning with the four months for the threaten to cause harm, of 21 years and 4 months.  He then proceeded to discount the total, first taking off four years for pleas of guilty. 

The appellant has, at the risk to his life, given valuable help to the police in getting evidence against other drug dealers.  Because of fears for his life, when he was on bail in 1996, he jumped bail and went back to Hungary, only returning to Australia in May 1998. 

He is prepared to give evidence in the District Court against another man. 

The learned judge said, about all this, I go to p.185: -

"You are also to receive a further discount to sentence because of your assistance to and cooperation with the authorities in relation to the identification of other offenders in the time since your arrest in 1995.  In this regard I have paid careful attention to the confidential information which I have received.  It's not necessary to discuss further those matters, save to note that it is agreed by the Director of Public Prosecutions that such cooperation is to be reflected in your favour in the fixing of a sentence.  I note that your assistance has led to the conviction of a heroin seller and that you have undertaken to give evidence against another. 

It is also relevant, whilst on bail, after you had entered your pleas in this matter in August 1996, you absconded to Hungary.  At that time you were assisting the police and were in fear for your life.  Subsequently, you contacted the police and returned to Australia by arrangement and surrendered. You have continued to provide information concerning criminal links between Eastern Europe and Australia."

His Honour took off another five years for assistance and cooperation with the police and two years for cooperation, for willingness to give evidence.  The trial has been delayed and has not yet taken place.

The discounts come to 11 years, off 21 years and four months.  Finally, because the appellant had to spend some 10 and a half months (Mr Muscat's figure), in custody before sentencing, the learned judge made the imprisonment a total of 9 years, a reduction of 16 months.  He refused counsel's plea for a suspension.  He fixed a non-parole period of three years.  He also made an order disqualifying the appellant from holding etc a driver's licence for 7 years. 

The points at issue on appeal are whether the discounts are big enough and whether the learned judge ignored the totality principle.  Mr Stokes has argued that none of the discounts is big enough: four years for the plea of guilty is less than 20 per cent (although I think he rather abandoned that point): five years for cooperation with the authorities is less than 25 per cent of the notional head sentence: two years for being willing to give evidence against a drug dealer, thus endangering himself and his family - he has a wife and two children - is not enough: the non-parole period is too long: and finally, seven years disqualification, even though the minimum is five years, is too long. 

Mr Stokes referred us to a letter from a senior police officer setting out the nature of the help his client has given.  He stressed the nature, quality and quantity of this cooperation. 

Mr Stokes also argued that the disqualification period was too long and should have been backdated.  However, as the appellant can't expect realistically to be driving until he comes out of gaol, three years at least, the period of disqualification is not more than four years.  Given his record of driving offences in the circumstances of the 1995 offences this is little enough. 

Looked at in toto, the discounts allowed, Mr Stokes argued, are insufficient.  Predictably Mr Muscat for the Crown says the sentence reflects appropriately the totality of the criminality: as for the non-parole period it's exceptionally generous. 

Eventually what should be allowed by way of discounts for cooperation with the authorities must be a matter of discretion for the sentencing judge.  It is a matter of impression. 

I could not say that in this case the learned judge's discretion has  miscarried.  On the contrary, I think he's been pretty generous, even given the value of the appellant's cooperation.  That being so I suggest dismissing the appeal. 

PRIOR J:                   None of the five particulars given in the grounds of appeal is made out.  The appeal must be dismissed.  I have nothing to add to what Millhouse J has said. 

DUGGAN J:              I agree, the appeal should be dismissed for the reasons given by Justice Millhouse and I add one short comment.  As the presiding judge has pointed out, substantial deductions were allowed for assistance to the police.  I think it is also relevant that those deductions operated both in relation to the head sentence and the non-parole period.  The reduction in relation to the non-parole period was not merely consequential upon the reduction to the head sentence but a further reduction was made to the non-parole period.  The resulting non-parole period of three years is of a level one might expect for a head sentence of approximately five years.  In those circumstances, in my view, there can be no argument that his Honour failed to adequately take into account and make appropriate deductions for the assistance given to the authorities. 

MILLHOUSE J:       The order of the court therefore is, appeal dismissed.