R v Milan Paul Santalab and John Santalab No. SCCRM 93/130 and 93/131 Judgment No. 4055 Number of Pages 7 Criminal Law and Procedure

[1993] SASC 4055

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - selling heroin and possessing heroin for sale - appeals against sentence by DPP - main offender aged 59 years with record of offending - engaged in business of selling heroin, yielding substantial profits, for at least eight months - plea of guilty - sentence of 7 years with non-parole period 4 years increased to 12 years with non-parole period of 10 years - subordinate offender 31 year old son of main offender - no convictions and prior good reputation and useful life - engaged in heroin business for 4 months - guilty plea - sentence 3 years with non-parole period 2 years increased on appeal to 7 years with non-parole period 4 years.

HRNG ADELAIDE, 20 July 1993 #DATE 20:7:1993
Counsel for appellant:         Mr J J Doyle QC
Solicitors for appellant:     Director Of Public
   Prosecutions (SA)
Counsel for respondent Milan Santalab:                 Mr G Barrett
Solicitors for respondent Milan Santalab:                 Camatta Lempens
Counsel for respondent John Santalab:                 Mrs M E Shaw
Solicitors for respondent John Santalab:                 Elston and Gilchrist

ORDER
Appeals allowed.

JUDGE1 KING CJ This is an application for leave to appeal against sentences imposed in the Supreme Court for drug offences. 2. The respondent, Milan Santalab, was convicted upon his plea of guilty of five counts of selling heroin and one count of possession of heroin for sale. He was sentenced to imprisonment for seven years on each of the five sale counts and for one year on the possession for sale count, those sentences to be served concurrently with one another, with a non-parole period of four years, the sentences and the non-parole period to commence on 15 April 1991 being the date upon which he had been taken into custody in New South Wales with respect to certain other offences. 3. The respondent, John Santalab, was convicted on his plea of guilty of two counts of selling heroin and one count of possession of heroin for sale. He was sentenced to imprisonment for three years on each of the sale counts and one year on the possession for sale count, those sentences to be served concurrently with one another, with a non- parole period of two years, the sentences and the non-parole period to commence on the date upon which he went into custody during the proceedings, namely, 22 December 1992. 4. The respondents were arrested on 28 July 1990 following a period of surveillance by undercover police officers. On appearing before a magistrate, they were released on bail. Following the release on bail Milan Santalab went to Sydney. He there committed other drug related offences and was sentenced to imprisonment in New South Wales. That sentence expired on 9 July 1992 and he was then brought back to Adelaide in custody to face the charges presently under consideration. 5. The offences which are the subject of these charges were incidents in the course of a business of selling heroin which had been carried on by Milan Santalab for a period of time extending back to at least November 1989. The business involved Milan Santalab in making regular trips to Sydney to obtain heroin, in bringing it back to Adelaide, and there disposing of it to other persons. It is evident from the amounts of money which it has been shown that Milan Santalab expended on gambling, that the business produced for him substantial sums of money. 6. John Santalab was not involved in the illegal business initially. He had lived with his mother following the separation of his parents some 25 years before. His father returned to Adelaide in late 1989 and contact was made between father and son. John Santalab became involved in the heroin selling business in April of 1990. 7. The first that is known of the activities of Milan Santalab in relation to heroin is a contact which was made in November 1989 between him and two under cover police officers, Detectives Chaseling and Maiden. They engaged in discussions at that time with Milan concerning the possibility of obtaining high grade rock heroin for $8,000. Milan told them that he could purchase that heroin in Sydney. 8. At about that same time there is evidence of sales of heroin by Milan Santalab to a person by the name of Andrew Frost. Contact continued between the undercover police officers and Milan in November and December. There was then a break of some months, but contact was renewed on 10 June 1990 when Milan contacted Detective Chaseling and indicated the availability of heroin for sale to Chaseling. 9. A meeting was arranged and Milan sold Chaseling four foil wraps containing heroin powder for the sum of $400. The powder was of a total weight of .797 grams, of which .123 grams was pure heroin. That sale is the subject of a count in the information, being count two. I mention at this point that the first count in the information, which was a conspiracy count, was abandoned. 10. Chaseling continued to meet Milan, and there were three further sales by Milan to Chaseling in June of 1990. The first of these on 16 June 1990 was a sale of a foil wrap containing 1.204 grams of powder of which .2 grams were pure heroin, for the sum of $800. That is the sale which is the subject of count three in the information. 11. On 28 June there was a further sale of four alfoil wraps containing powder for $600. The total weight of the powder was 1.131 grams of which .227 grams was heroin. That was the subject of Count 4. 12. On 30 June there was a further sale of a single foil wrap containing powder for the sum of $100. The total weight of powder was .212 grams of which .036 grams was heroin. That sale was the subject of count five. 13. Those four counts, namely counts two, three, four and five, were charges against Milan Santalab only. On 20 June 1990 the police obtained a warrant to install a listening device on a telephone operated by John Santalab at the office of his employer. That device was installed on 22 June 1990. 14. The conversations which were detected as a result of that listening device demonstrate that there was a continuing business involving the sale of heroin and that John Santalab was fully and deeply involved in that business. 15. From about April 1990 onwards the man, Frost, to whom reference has already been made, was regularly purchasing heroin from John Santalab. One of those purchases occurred on 9 July when John sold to Frost a deal of heroin for the price of $100, and that is the subject of count six in the information, which is a charge against John only. On 24 July there was a further sale by John to Frost of a deal worth $100, and that is the subject of count seven in the information, which is also a charge against John only. 16. The police investigation came to a head on 27 July 1990. Milan Santalab had returned from Sydney. There was a sale of heroin by Milan Santalab to two other men of powder weighing 13.6 grams, containing 3.06 grams of pure heroin, and that sale is the subject of count 8 in the information, being a charge against Milan only. The police searched Milan's premises and found heroin powder, weighing 12.395 grams, of which 2.8693 grams was pure heroin, and that is the subject of count 9, the count for possession for sale against Milan Santalab. On the same day the police searched John Santalab's home and found heroin powder weighing 1.119 grams, of which .169 grams was pure heroin. That heroin is the subject of count 10 which charges John Santalab with possession for sale. 17. It is evident from the facts which I have recited that Milan Santalab was carrying on a heroin business at least since November 1989 and that the incidents which have been charged in the information were incidents occurring in the course of that business. 18. Milan Santalab is aged 59 years. He had an accident some 25 years ago as a result of which he suffered considerable pain. His treatment for that injury and that pain resulted in an addiction to heroin, which persisted right through to the time of the commission of these offences. It is also evident that he has a considerable taste for gambling, which a psychologist has described as an addiction, and a substantial proportion of the profits derived from his heroin selling was obviously spent on gambling. He has some ill health, being a sufferer from arthritis; he also has a body rash and other ailments and he suffers from depression. 19. He has a record of crime extending back to 1965. There is a variety of offences in his record and some of those offences are related to drugs. He was convicted in 1981 in Sydney of possession of a drug of addiction. He was convicted in 1987 in Sydney of supplying a prohibited drug, and possessing a prohibited drug. He was convicted in 1988 of possessing heroin in Sydney. None of those offences resulted in custodial penalties. In 1991 however, he was convicted in Sydney of the offences to which I have already made reference, which were committed after his release on bail with respect to the subject offences. Those offences were possession of a prohibited drug for which he was sentenced to six months imprisonment and supply 6 of a prohibited drug for which he was sentenced to a minimum term of 12 months imprisonment with an additional term of three months imprisonment. The last mentioned offences, of course, were committed after the commission of the subject offence, but their significance is that they indicate that even detection for the subject offences did not turn Milan away from the course of illegal conduct which he had been pursuing for some time. 20. An effort was made by Mr Barrett, who appeared as counsel for Milan Santalab, to persuade us that the degree of his offending did not exceed that of a person who might be detected in the course of what is often described as a street offence in relation to heroin. Street offences in relation to heroin prior the passing of s.302 of the Criminal Law Consolidation Act, which became s.12 of the Criminal Law (Sentencing Act), attracted penalties in a range between five years and seven years. When the statutory provisions relating to good conduct remissions are taken into account, as now required by s.12 of the Criminal Law (Sentencing) Act, it is evident that that range would be significantly increased. I am unable to accept Mr Barrett's submission with respect to the nature and degree of Milan Santalab's offending. I think that it is evident from the facts to which I have referred that he was engaged in drug selling as a business enterprise, involved in regular trips to Sydney to obtain drugs and the sale of those drugs in Adelaide on a scale which was productive of substantial revenue. He must be dealt with, in my opinion, as a drug dealer who was involved in a substantial commercial enterprise. 21. That being so, it seems to me that the sentences which were imposed upon him by the learned sentencing judge do not reflect the standard of penalties which is appropriate to drug offending of this nature and on this scale. Parliament has prescribed severe maximum penalties for heroin dealing, and it is the duty of this court to impose penalties which give effect to the legislative policy reflected by those maximum penalties. Clearly it is the intention of the legislature that severe penalties should be imposed as a means of deterring those who are tempted by the big profits to be made out of heroin dealing from engaging in that enterprise. The courts would be failing in their duty if they should fail to impose sentences which properly implement the legislative policy. It is the duty of this appellate court to intervene at the instance of the Director of Public Prosecutions when it appears that a failure on the part of a sentencing judge to implement the policy of the legislature by applying the standards which have been developed by the courts, is of such a nature that it might result in an erosion of the standard of penalties which is required to give effect to the legislative policy. It seems to me therefore that it is the duty of this court, sitting as a Court of Criminal Appeal, to intervene, when it sees, as I think it must see in the present case, that the sentences imposed are manifestly inadequate and fail to maintain the appropriate sentencing standards. 22. In my opinion this offending on the part of Milan Santalab, if he had not pleaded guilty, would have merited a sentence of 15 years' imprisonment. His plea of guilty means that that term should be reduced by a substantial amount in order to acknowledge the cooperation with the system of justice which is involved in the plea of guilty. I think therefore that the appropriate sentence in the case of Milan Santalab is imprisonment for 12 years. 23. I think that his record indicates that he is not a good candidate for parole and indeed he has little claim for release on parole. I would fix a non-parole period of ten years. 24. I am unable to see any justification for dating that sentence back to the time at which he was taken into custody in New South Wales. The fact that, having been released on bail with respect to these offences, he committed the further offences in New South Wales, in my opinion, requires that the present sentences be cumulative upon the sentence which he served in New South Wales. I would therefore make the sentences and the non-parole period commence as from 9 July 1992. 25. In my opinion therefore, in relation to Milan Santalab, there should be leave to appeal. The appeal should be allowed. The sentences on the five counts of selling heroin should be increased to imprisonment for 12 years. I would affirm the sentence of one year for possession for sale. I would order that those sentences be served concurrently with one another to commence on 9 July 1992, and I would order there be a non-parole period of ten years commencing on that day. 26. The case of John Santalab is substantially different from that of Milan Santalab. He is aged 31 years. He is not a user of heroin and he has no prior convictions. He has lived a useful life, and been in regular employment achieving a position of some responsibility in that employment. He has been a good son to his mother and has given her substantial financial assistance. It was his misfortune, it would seem, to have come into renewed contact with his father and to have allowed himself to be corrupted by his father's criminal influence. 27. Nevertheless, John Santalab is a mature man, and is responsible for his actions. He elected to become deeply involved in this criminal business. That is evident from the telephone calls which were intercepted. I accept that he became involved in the business only in about April, some four months before his arrest, but nevertheless it is apparent from the telephone interceptions that by June he was deeply involved in the business. It would seem that the lure of the profits which his father was earning from this illegal business was too much for him and that he succumbed to the temptation which those profits presented. 28. It is possible to be far more lenient in the case of John Santalab than in the case of his father for the reasons I have mentioned but, nevertheless, I am unable to justify the sentences which were imposed on him as being reasonable and proper having regard to the nature and degree of his participation in this heroin business. 29. It is unnecessary to repeat the observations I have made in the case of Milan Santalab as to the duty of this court in this type of case. I would, in the case of John Santalab, grant leave to appeal, allow the appeal, and increase the sentences on the counts for selling heroin to imprisonment for seven years on each count. I would affirm the sentence of one year on the count of possession for sale, I would order those sentences be served concurrently with one another. I would fix a non-parole period of four years, the head sentences and the non-parole period to commence on 22 December 1992.

JUDGE2 DUGGAN J The learned sentencing judge found that the respondent, Milan Santalab, had what his Honour called "a longstanding business of bringing in heroin from Sydney and selling it here." That finding was supported by the evidence and the material before the sentencing court. 2. It would seem that Milan Santalab regularly hired motor vehicles for the purpose of travelling to Sydney to purchase heroin. He brought significant quantities of that drug into the State and sold it here. At times he took part in the sales but he also enlisted the aid of his son who used the premises of his employer to effect distribution. Although Milan Santalab was an addict and found a need to support that habit, he could not be considered as a mere street trader. His operation was more extensive and had been in existence for some time before his apprehension. He made considerable financial profit from his dealings. His determination to continue with this conduct is well demonstrated by the commission of the drug offence in New South Wales whilst on bail. It is also apparent from convictions recorded for the supply of drugs in 1987 and 1991. 3. The learned trial judge made appropriate findings and did not seem to misunderstand the role of the respondent, Milan Santalab. But the sentence itself must be considered as inadequate when compared with the tariff which is apparent from a study of cases which have been reviewed by this court. 4. The sentence imposed on John Santalab is also well below the level appropriate for someone regularly and systematically involved in the sale of heroin. In making this judgment I have not overlooked the fact that he has no previous convictions and was influenced to a considerable extent by his father. Those matters are, in my view, adequately taken into account in the sentence suggested by the Chief Justice. Nevertheless, John Santalab is clearly an intelligent person who became involved in this episode with his eyes open. 5. The extent to which the sentences imposed on both respondents depart from the sentencing level considered as appropriate by this court justifies interference in accordance with the well-known principles in Crown appeals referred to by Mrs Shaw and derived from cases such as Malvaso v The Queen
(1989) 168 CLR 227; R v Drewett (1983) 35 SASR 344; and R v Wait (1991) 161 LSJS 357. 6. For these reasons I agree with the reasons for the orders proposed with respect to both respondents.

JUDGE3 DEBELLE J I agree with the reasons of the Chief Justice and Duggan J and the orders proposed.