R v Morabito No. Sccrm-03-194

R v MORABITO
[2003] SASC 388

Court of Criminal Appeal

Coram:  Doyle CJ, Perry and Gray JJ  (ex tempore)

1. DOYLE CJ.            I would dismiss the appeal and agree with the reasons given by Perry J.

2. PERRY J.               The appellant appeals by leave against the sentence imposed upon him in the District Court following his plea of guilty to seven charges of having knowingly sold illicit drugs, and two charges of having in his possession a drug of dependence for the purpose of sale.

3. The possession charges related to quantities of amphetamine and methylamphetamine. Three of the remaining charges related to sale of the drug commonly known as Ecstasy, two of them the drug commonly known as LSD, and two others involved methylamphetamine.

4. The sentencing judge exercised his powers pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 by imposing one sentence relating to all of the offences. He intimated that were it not for the appellant’s plea of guilty, he would have imposed a head sentence of seven years. In view of the plea, he reduced that to five years and seven months. Against that, he set a non-parole period of three years.

5. The appellant advances one ground of appeal only, namely that the sentence is manifestly excessive in the circumstances. In his notice of appeal the appellant particularises that ground by alleging that the starting point of seven years imprisonment was too high.

6. The offences were committed between December 2001 and May 2002, a period of about five months. At the time of the offending the appellant was aged between 22 and 23 years. All of the sales were to an undercover police officer who, on each occasion, contacted the appellant by telephone and arranged to meet him at a prearranged location for the purpose of effecting the sale.

7. Except for the last sale, which took place on 2 May 2002, the sales were for amounts varying between $270 and $470. The last sale was of 75 Ecstasy tablets, for which the appellant was paid $3000.

8. As for the two possession counts, following the appellant’s arrest on the day of the last sale, police searched the appellant’s home at Toorak Gardens where they located three bags containing small amounts of the drugs.

9. During the course of his sentencing remarks, the sentencing judge made the following comments:

   “These offences are not isolated offences. They were against a background of ongoing commerciality of a limited nature, even if you did not make much money from the sale of a single tablet. You were selling a large number of tablets and your profit was significant. Perhaps, more importantly, these are very serious drugs.

   I deal with you on the basis that these drugs are less serious than heroin and cocaine, although I am not convinced that, in some circumstances, these drugs may not be more dangerous.

   General and personal deterrence must play a central role in the determination of sentence. Undoubtedly, your offending calls for a sentence of imprisonment. The…