R v Millard - [2008] SASC 262

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MILLARD
[2008] SASC 262
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Layton)
2 October 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE - DRUG OFFENCES
DPP appeal against sentence – respondent pleaded guilty to and convicted of drug sale offences and offences relating to possession of drugs for purpose of sale – respondent the trusted deputy of somebody at or near the top of the drug trade – respondent not a street dealer – respondent in possession of a large quantity of drugs and cash – respondent also had unlicensed firearms and ammunition – whether sentence imposed manifestly inadequate.
Held: offending conduct at highest level of seriousness – having regard to the number and nature of the offences, and to the overall seriousness of the offending, sentence manifestly inadequate – courts to impose sentences which reflect seriousness parliament attributes to offences – general deterrence significant consideration in imposing both head sentences and non-parole periods for relevant offences – sentence fails to reflect adequate standard of sentencing – permission to appeal granted and appeal allowed.
Controlled Substances Act 1984 (SA) s 32(1); Firearms Act 1977 (SA), referred to.
R v Nemer (2003) 87 SASR 168; R v Stamos, Williams, Stanon and Kapovic [2004] SASC 132, applied.

R v MILLARD
[2008] SASC 262
Court of Criminal Appeal: Doyle CJ, White and Layton JJ

DOYLE CJ: The Director of Public Prosecutions has applied for permission to appeal against a sentence imposed by the District Court on Mr Millard. Mr Millard pleaded guilty to 15 counts alleging offences against the Controlled Substances Act 1984 (SA) (“the CSA”). He also pleaded guilty to two offences against the Firearms Act 1977 (SA). Mr Millard was engaged in trading in drugs in a substantial way. The offending is serious.
The Judge decided that a single sentence of imprisonment for ten years and a non-parole period of five years was appropriate. After allowing for time spent in custody and on home detention bail, the Judge imposed a head sentence of nine years six months’ imprisonment, and fixed the non-parole period at four years six months.
The Director submits that the sentence is manifestly inadequate, that it fails to maintain an adequate standard of punishment for offending of the kind in question, and that this Court should intervene.
I agree. The offending is such as to call for a substantially heavier sentence than the Judge imposed. The case is one in which the Court should intervene.
Facts
The police had Mr Millard under surveillance during May and June 2006. They relied on telephone intercepts and physical surveillance. The police arrested Mr Millard on 8 July 2006.
During that period of surveillance Mr Millard committed ten offences involving the sale of drugs contrary to s 32(1)(d) of the CSA as it stood at the time of the offences. The drugs involved were amphetamine, methylamphetamine, cocaine, lysergide (LSD), and 3,4 methylenedioxymethamphetamine (ecstasy).
The material before the Judge gives rise to the inference that this dealing in drugs was the continuation of a course of dealing, and not the first incursion into crime by Mr Millard. He is not to be punished for earlier undetected offences. But nor is he to be sentenced on the basis that these were his first or the only occasions on which he engaged in selling drugs contrary to the CSA.
Each of these ten offences attracts a maximum punishment of imprisonment for 25 years or a fine of $200,000 or both.
In the case of the last two sales (29 June 2006) the police intercepted the drugs sold. The drugs sold comprised 200 tablets containing 14.8 grams of ecstasy, and 11 plastic bags containing powder or paste weighing 283.94 grams, which contained 92.99 grams of methylamphetamine. These are substantial qualities. They were not small sales.
The police searched Mr Millard’s mother’s residence on 29 June 2006. They found a large quantity of drugs there. This resulted in Mr Millard being charged with five counts of possessing drugs for sale, contrary to s 32(1)(e) of the CSA as it stood at the time of the offences.
The drugs found, and the quantities, were as follows:
Count 17 -
8840.05 grams of powder, containing 2954.03 grams of methylamphetamine.
Count 18 –
7,113 tablets, containing 548.4 grams of ecstasy and 13.8 grams of powder, containing 3.13 grams of ecstasy.
Count 19 –
8,347 papers, containing 0.1003 grams of LSD and 886 tablets containing 0.0173 grams of LSD.
Count 20 –
11,045 grams of cannabis.
Count 21 –
422.82 grams of powder, containing 309.56 grams of cocaine.
As that list indicates, this was a substantial quantity of drugs. The quantity and variety indicate the substantial scale of the dealing in drugs in which Mr Millard was engaged.
The street value of the drugs, which I take to mean the resale value in relatively small quantities, was estimated at $1,200,000.
At Mr Millard’s mother’s house the police found $246,550 in cash. This money was ordered to be forfeited, on the basis that it was the proceeds of or money used in connection with the offending.
The police also found a semi-automatic pistol and a revolver. Neither weapon had a serial number that was visible. Mr Millard pleaded guilty to possessing each of these firearms without a licence. The maximum punishment for each of these offences is imprisonment for seven years or a fine of $35,000.
These further matters only serve to emphasise the substantial nature of the business in which Mr Millard was engaged.
The Judge sentenced Mr Millard on the basis that his offending was “in the upper range in the hierarchy of drug dealing, although not at the top”. The evidence supported a finding that Mr Millard was supplying drugs to other persons in relatively large quantities, and that those drugs would later be distributed in smaller quantities. It is in that sense that he was in the upper range of the hierarchy of drug dealing. One need do no more than consider the frequent transactions in which he engaged during May and June, and the quantity of drugs and range of drugs found in his possession to come to the conclusion that this was selling on a big scale.
The drugs found in Mr Millard’s possession would, if sold, have resulted in countless smaller sales. He was a major participant in the trade in drugs in this State. The Judge said he was “the trusted deputy of someone at or near the top”. I agree with that description.
It is not necessary to labour the point any further. Mr Millard was dealing in a manner which puts his offending at the highest level of seriousness.
Mr Millard had two convictions for possessing cannabis for supply. The offences were committed in September 2005, but he was not convicted until April 2007, after the offences now under consideration. He was on bail when he committed the offences now under consideration.
Mr Millard indicated an intention to plead guilty from a very early stage. He entered his pleas of guilty at the first available opportunity. He did not challenge any of the prosecution evidence. No doubt this saved substantial time and trouble. He is entitled to substantial credit for that.
Mr Millard is now 46 years of age. He had a disturbed childhood and adolescence. He completed up to year 11 in school. The Judge was told that he had been unemployed for most of his adult life. He was in poor health when sentenced, and had a history of significant health problems. A de facto relationship of some 18 years had come to an end because of his offending.
Mr Millard had been addicted to amphetamines. The Judge was told that he ran up a debt of $11,000 and engaged in trading in drugs to enable him to pay the debt. But as the Judge said, it is clear that financial gain was a significant factor in what he did. There is no indication that he was reluctant to engage in the trade in drugs. Although he was being supplied by someone higher up in the distribution chain, he is not to be treated as someone who offended under the influence of unlawful duress or significant pressure to offend.
Since his arrest, Mr Millard has made a real effort to end his addiction. The Judge accepted that he had been drug free since his arrest, but for one minor relapse.
Mr Millard has strong support from his extended family, and from his mother. He lived with his sister for a number of months while on bail. The Judge was provided with a number of written statements from family members, supporting a submission that Mr Millard had begun to rehabilitate himself. These written statements indicate that Mr Millard is regarded as a valued family member. The family will continue to support him in his efforts to rehabilitate himself and to change his ways.
The Judge’s reasons
The Judge referred to the circumstances of the offending conduct, and to Mr Millard’s personal circumstances. He acknowledged that deterrence, both general and individual, must be significant factors in arriving at a sentence.
The Judge said that but for the pleas of guilty he would have imposed a sentence of 15 years’ imprisonment. He reduced that to 10 years’ imprisonment. He fixed a non-parole period of five years. In relation to the non-parole period he mentioned in particular Mr Millard’s comparatively good record and his efforts at rehabilitation. Mr Millard had been in custody for one month, and on home detention for eight months. Accordingly, the Judge reduced the head sentence to nine years six months, and the non-parole period to four years six months.
Consideration of the Director’s application
I consider that the Judge has erred. His reasons do not, of themselves, demonstrate error. But having regard to the number and nature of the offences, and to the overall seriousness of the offending, the sentence is manifestly inadequate.
The starting point was much too low. As I have already said, taken as a whole, the offending conduct is in the most serious category. The unlawful possession of the two weapons adds to the seriousness of the course of conduct. It was appropriate to conclude that Mr Millard had these weapons with a view to using them in connection with his offending, should that be necessary.
By fixing the maximum penalties that it has, Parliament has made plain how serious this kind of offending is. The Courts must impose sentences that reflect that seriousness.
It was appropriate to bear in mind that addiction to drugs was in the background, and also to recognise the unsettled background from which Mr Millard came. But by the time of the offending, Mr Millard was a mature man who had to take responsibility for his actions. He had to accept responsibility for the adverse social consequences of the substantial quantity of drugs that he was involved in distributing.
This is a case in which considerations of general deterrence, and the need to reflect the seriousness of the offending conduct, had to take precedence over the consideration of circumstances personal to Mr Millard. I consider that a starting point of not less than 20 years’ imprisonment was called for in this case.
The reduction for the plea of guilty was generous, having regard to the overwhelming nature of the prosecution case. The fact that Mr Millard maintained that he was a mere underling, driven by a need to repay a debt, indicates that he was not wholly contrite. The Judge rejected these claims. The allowance that the Judge made for time in custody and for time on home detention was also very generous.
When allowance is made for these other circumstances, I consider that a sentence of less than 15 years cannot be justified.
As a result of starting from an unduly low starting point, and making a very generous allowance for the plea of guilty and for time in custody on home detention, the Judge arrived at a result that, in my opinion, is manifestly inadequate.
I consider that the non-parole period was also too generous. Considerations of general deterrence play their part in fixing a non-parole period. They limit the weight that can be given to individual circumstances in this case. I consider that a non-parole period of at least eight years was called for, and even that is relatively lenient.
In my opinion this leads to the conclusion that the sentence imposed by the Judge was manifestly inadequate. It fails to reflect the seriousness of the offences. It fails to maintain an adequate standard of punishment for offending of this kind.
The principles by reference to which the Court is to approach an application by the Director for permission to appeal against sentence are well known. I reviewed these principles in R v Nemer [2003] SASC 375; (2003) 87 SASR 168.
It is not sufficient for the Director to establish that an error has been made. Ordinarily, permission to appeal will be granted only if doing so will serve some wider purpose, such as giving the Court an opportunity to establish a relevant principle, or to maintain adequate standards of sentencing. Alternatively, the Court might intervene if the sentence is so far below the appropriate range that the sentence reflects an error of principle, and is one that would “shock the public conscience” or would “shake public confidence in the administration of justice” were it to stand: see Nemer at [24].
In the present case an error has been identified. It is an error that has led to a sentence being substantially less than is called for.
I consider that permission should be granted to the Director to appeal against the sentence. The sentence is one that fails to reflect an adequate standard of sentencing. It is not just that the sentence is less than it should have been. It does not reflect the standards that should be applied. As well, having regard to the number of offences and the quantity of drugs involved, to allow the sentence to stand would, in my opinion, shake public confidence in the administration of justice.
This is a case in which the Court should allow the appeal. The offending is too serious for the Court to say that it suffices to identify the error, to reaffirm the appropriate standard, but to leave the sentence unchanged. Dealing in drugs continues to be prevalent. Often those who are detected are only street traders. When those who are higher up in the chain are detected and are brought before the Court, the Court must do what it can to deter the higher level distributors by imposing severe punishment.
For those reasons I would allow the appeal, set aside the sentence imposed by the District Court, and substitute a single sentence of imprisonment for 15 years. I would fix a non-parole period of eight years.
I add that, as my reasons earlier indicate, a higher sentence might have been justified. The sentence that I would impose is what I consider to be the minimum sentence appropriate.
Conclusion
I would grant permission to the Director to appeal against the sentence. I would allow the appeal. I would set aside the sentence imposed by the District Court. I would substitute a sentence of imprisonment for 15 years, and fix a non-parole period of eight years. The head sentence and non-parole period should commence from 25 July 2008, the day when the District Court imposed sentence.
WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons.
LAYTON J: I agree that permission to the Director to appeal against sentence should be granted and that the appeal should be allowed. I agree with the Chief Justice as to the sentence which should be imposed and with his reasons. I add these further reasons.
The primary consideration in sentencing drug offending of this magnitude and seriousness should be on general and specific deterrence. That is not to say that personal factors are irrelevant, but they are lesser considerations.
So far as mitigating features are concerned, the respondent came from a very dysfunctional childhood and adolescence which included him being a victim of sexual abuse. Since that time he has endured multiple relationship problems and presently suffers from significant physical ill-health and drug and gambling addictions. It was submitted on his behalf, at the time of this offending, that he had a drug debt of $11,000. He told a psychiatrist Dr Balfour that his offending was an endeavour to try and repay the drug debt, and candidly admitted that it was also to “make my life, my family’s life better”.[1] Whilst I accept that his disadvantaged background is the backdrop to his offending, it appears not to have been directly influential on his involvement in these drug offences. Further, the respondent was not primarily motivated to offend in order to satisfy his own drug habit.
[1] Report Dr Balfour, 18 June 2008. Book 1, p 75.
I also note that the respondent was aware of the effect of his behaviour on the community. In particular, he acknowledged to Dr Balfour that his offending behaviour was wrong, and replied:[2]
Very seriously. The children, they get hooked on it. The bikies – how they extort money out of people. That’s the main reason it does stuff up lives. It’s sending all the kids strange, isn’t it.
[2] Dr Balfour’s report 18 June 2008, Book 1, p 87.
He continued that the victims of his offending were “All my family. The kids, the people that score are victims.”[3]
[3] Dr Balfour’s report 18 June 2008, Book 1, p 87.
In addition, Mr Millard expressed remorse to Dr Balfour for his behaviour.
Whilst these matters may in part point to mitigating factors of remorse and acknowledgment of his wrong behaviour, which is relevant to rehabilitation, at the same time they reflect a level of awareness of the very detrimental effects of his offending. He was not forced into criminal offending and his continuing drug addiction was not in itself a motivating factor; he wanted to make money from trading to improve the lifestyle of himself and his family. He was involved in organised criminal behaviour, which included a potential availability of weapons. He was not a “bunny”, as was the submission of his counsel before the sentencing Judge in the trading operation but, as the sentencing Judge accepted, was “relatively high in the hierarchy”: a “right-hand man in South Australia of one of the men who was directing operations from interstate” and “the trusted deputy of someone at or near the top.”[4]
[4] Sentencing Remarks 25/7/2008, Book 1, 161.
A further aggravating feature is that this offending occurred whilst he was on bail for supplying cannabis.
In my view, the penalty imposed was manifestly inadequate and is sending out a wrong message for what was clearly very serious offending. The observations of the Full Court in R v Stamos, Williams, Stanon and Kapovic[5] are apposite as to why, in my view, the penalty imposed by the sentencing judge was manifestly inadequate:[6]
[5] (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Perry, Gray and Sulan JJ, 13 May 2004, Judgement No 132.)
[6] Ibid [30], [31].
… If this sentence is permitted to stand, adequate sentencing standards for this level of offending will not be maintained. The expectation of the legislature in cases involving commercial quantities of prohibited substances is that sentences will be imposed that will deter persons from engaging in such criminal conduct. It is essential that adequate sentencing standards are maintained.
The drug problem has been described as a very serious evil in our society. Those involved as organisers and wholesalers must expect substantial custodial sentences.
[references omitted]