R v Mema - [2011] SASCFC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MEMA
[2011] SASCFC 56
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kourakis and The Honourable Justice Peek)
17 June 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
Appeal against sentence - appellant pleaded guilty to two counts of trafficking in a large commercial quantity of cannabis - sentenced to a single term of imprisonment for six years, with three year non-parole period - whether sentence manifestly excessive - whether sentencing judge accorded too much weight to deterrence - whether insufficient credit given for pleas of guilty - whether sentence excessive in comparison to that given a co-offender on one count.
Held: appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

R v MEMA
[2011] SASCFC 56
Court of Criminal Appeal: Vanstone, Kourakis and Peek JJ

VANSTONE J: The appellant pleaded guilty in the District Court to two counts of trafficking in a large commercial quantity of cannabis. The charges reflected the appellant’s participation in an organised drug trafficking operation aimed at transporting cannabis from Adelaide to Sydney. The first count involved 15 kilograms of cannabis, the second about 7.3 kilograms. The appellant was sentenced to one term of imprisonment for six years with a non‑parole period of three years. He appeals against that sentence arguing that it is manifestly excessive, that the learned sentencing judge accorded too much weight to the matter of deterrence, that insufficient credit was given for the pleas of guilty and that the sentence was excessive when compared with the three year sentence given to a co-offender on count 2, one Attenborough.
Background
The two offences contravened s 32(1) of the Controlled Substances Act 1984 (SA). The maximum penalty for each was a fine of $500,000 or imprisonment for life, or both.
The conduct specific to the two counts was as follows. The first count involved the appellant sourcing and packing the 15 kilograms of cannabis, worth between $85,000 and $115,000 on a wholesale basis. Together with a co‑accused, described by the judge as “the ringleader”, the appellant packaged the cannabis in 34 one pound bags and loaded it into a vehicle which was then driven by two other men towards Sydney. It turned out that police had intercepted telephone calls revealing the plan and were able to intercept the two men at Tailem Bend on 7 February 2008. Notwithstanding those arrests, the enterprise continued.
Count 2 was another attempt to transport cannabis to Sydney. The charge spanned the dates 21 February to 7 March 2008 and involved the appellant, the ringleader and Attenborough. The money required for this enterprise was placed by Attenborough into the appellant’s wife’s bank account. The appellant and the ringleader sourced just over 7 kilograms of cannabis, worth roughly $50,000 wholesale, and packaged it into 18 vacuum sealed bags for transport. On 6 March the ringleader and Attenborough picked up a trailer and potting mulch and drove to the appellant’s home. There, all three men secreted the cannabis bags within the bags of mulch. They were loaded onto the trailer attached to the appellant’s car. The ringleader and Attenborough then drove to a transport depot, where they were intercepted by police.
At the time of sentencing, the appellant was 40 years of age. Apart from a conviction for lighting a fire during the fire season, he had no previous convictions. He was dealt with as a first offender. He was in a stable relationship which had produced two children. The appellant and Attenborough pleaded guilty on what was to be the first day of their trial, although at least for several days prior the prosecution had notice of the impending pleas. Because of those pleas the judge reduced the appellant’s head sentence by about 10 per cent.
Through his counsel the appellant admitted involvement in the enterprise during January, February and early March, 2008 and acknowledged that he expected his involvement to continue through March. He was described by his counsel as “a worker”, being concerned with sourcing cannabis for transport and packaging it for transportation. The judge found that, although the appellant was “a worker and, to some degree, a patsy”, his involvement was “significant and ongoing”.
Arguments on Appeal
I can deal with the grounds of appeal quite briefly.
In support of his argument that both the head sentence and non-parole period were manifestly excessive, the appellant’s counsel pointed to a number of factors personal to the appellant which favoured him. They included his positive work history, that the offending was born of financial pressures principally precipitated by a work injury, and that, at 40 years of age, he was effectively a first offender. Reference was also made to the fact that subsequent to his arrest, the appellant was on home detention bail for about sixteen and a half months and that he completed that period without incident. It was suggested that the judge had not given any credit for that period. Counsel also referred to some material before the sentencing judge which suggested that the appellant was of less than average intelligence. That was contained in a report from Mr Fugler, a psychologist, who, though not measuring the appellant’s intelligence, suggested he would be at the top end of the borderline range of functioning. In all these circumstances it was put that the judge’s starting point of about six and a half years was too high.
In relation to Attenborough’s sentence of three years with a non-parole period of 18 months, the appellant’s counsel argued that, although Attenborough had pleaded guilty only to count 2, it was common ground that he had been involved to a degree in the offending charged as count 1. The judge found he had “good prospects for rehabilitation”.
Analysis
The judge found, in my view correctly, that these were “very serious offences of their type”. He said that this was “very significant interstate drug trading”. A particularly serious feature of the appellant’s offending was that, even after police intercepted the cannabis the subject of count 1, the appellant was prepared to proceed with the venture and to attempt the subsequent transportation.
In my view, only by having regard to the appellant’s prior good character and limited role in the trafficking operation, could the judge have commenced at a starting point as low as six and a half years. The applicable maximum penalty demonstrates how seriously Parliament regards offences of this type. While the appellant’s good record must have counted in his favour, it could not be said that his part in the operation involved isolated or spontaneous acts. As I have observed, it extended well over two months and continued in the face of detection by police. The nature of the appellant’s role meant that he worked consistently to fulfil the ends of the scheme, thereby demonstrating his commitment to it. While it is true that his role was a fairly menial one, it was also an important one. There is no suggestion that any intellectual disadvantage he suffered had any impact on his appreciation of the wrongfulness of what he did.
As to the reduction of about 10 per cent for the belated pleas of guilty, such a reduction was, if anything, generous.
There was no information before the judge to suggest that the terms of home detention bail were particularly onerous. It cannot be assumed that they were. The appellant continued in his employment during that period. There was no obligation upon the judge to reduce the sentence on account of the terms of bail.
In relation to a comparison with the sentence of Attenborough, the following can be said. This is not a case where the parity principle comes strictly into play. As seen, Attenborough faced only one offence whereas the appellant pleaded guilty to two. The fact that the appellant’s sentence was twice that of Attenborough is not suggestive of error. Counsel argued that the use of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose one sentence, without an accompanying explanation of how the sentence was notionally divided between the two offences, indicated error, or at least lack of transparency. I do not agree. Particularly where offences are of a similar type and represent an ongoing involvement in criminal enterprise, the use of s 18A without any accompanying indication of how the sentence is arrived at is, in my view, unexceptional. I do not consider that the appellant could properly entertain any sense of grievance in respect of Attenborough’s sentence.
Conclusion
In my opinion the sentence of six years with a non-parole period of three years was a moderate sentence for offending of this nature.
I would dismiss the appeal.
KOURAKIS J: I would dismiss the appeal. I agree with the reasons of Vanstone J.
PEEK J: I would dismiss the appeal. I agree with the reasons of Vanstone J.