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)

DOYLE CJ. I would dismiss the appeal and agree with the reasons given by Perry J.
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.
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.
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.
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.
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.
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.
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.
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 real question for me is, as Mr Ey has submitted, is whether there is good reason for me to exercise my discretion to suspend the sentence.”
The sentencing judge declined to suspend the sentence and there is no appeal against that.
The appellant had a number of previous court appearances dating back to 1994 when he appeared in the Children’s Court. Most of these were relatively minor traffic offences. But in February 1995 he was convicted without penalty on charges of possessing cannabis and possessing equipment to administer cannabis, and in November of the same year, of possessing equipment to administer cannabis.
In February 1997 he was again convicted of possessing cannabis and equipment to administer the drug.
The appellant’s employment history was good. He studied baking and worked as a baker for a while, and later worked as a boner at meatworks.
He suffered a work injury and began experimenting with drugs. After being out of work for a time, he obtained further work as a boner. Although he lost that job on his arrest in May last year, he obtained further work in the same occupation until he again accidentally suffered an injury at work.
It appears that the appellant began selling drugs after becoming acquainted with contacts from whom he obtained drugs for his own use.
The maximum penalty, both for selling or having possession for sale a drug of dependence or a prohibited substance is a fine not exceeding $200,000 or imprisonment for 25 years or both.
The Court of Criminal Appeal has emphasised that Parliament clearly intends that Courts impose substantial penalties for this type of offending. The penalties must reflect a substantial allowance for general deterrence.
Reference was made during the course of submissions to the case of R v Mangelsdorf & Ors.[1] In that case the Court of Criminal Appeal endorsed the approach to sentencing for drugs of this class expressed in the earlier decision of Pearce[2] which concerned offences of trading in what was described as middle-range drugs. The drugs in question in this case fall into that category.
[1] (1995) 66 SASR 60.
[2] (1980) 91 LSJS 443.
In Pearce, a young man who pleaded guilty to small scale trading in LSD and who had no prior convictions for drug offences, was sentenced to seven years imprisonment, which was reduced to five years on appeal.
In Mangelsdorf, Doyle CJ referred to the fact that since Pearce the court has consistently applied the approach which found expression in that case.
The court has also referred to the decision in this court in Jenkins.[3]
[3] (Unreported) judgment No S6776, 21 July 1998.
In that case a 41 year-old man pleaded guilty to two charges of selling amphetamine and methylamphetamine. The defendant was described as a street trader. The sentencing judge commenced with a starting point of eight years which, on account of the plea of guilty, was reduced to six years with a non-parole period of four years.
It is true that each case depends upon its own circumstances, and it would be wrong to place too much reliance on particular sentences which have been imposed in other cases.
However, it seems to me that, bearing those authorities in mind, and other authorities which relate to trading in middle-range drugs, the sentence imposed in this case lies within a proper exercise of the sentencing discretion.
Mr Ey, who appeared for the appellant, emphasised that his client was a relatively young man who had made efforts to rehabilitate himself, and had recently entered into a new relationship which he infers is the start of a period of stability. The difficulty with allowing very much on account of those circumstances is that, as I have said, in sentencing for this class of offence the sentence must reflect a substantial allowance for general deterrence.
Mr Ey argued that the non-parole period should have been shorter, but it seems to me that the non-parole period of three years which was set by the sentencing judge against a head sentence of five years and seven months was a modest non-parole period in all the circumstances.
In my opinion, the principal ground argued, namely that the starting point in this case was too high or manifestly excessive, has not been made out, and in my opinion, the non-parole period was within a proper exercise of the sentencing discretion.
I would dismiss the appeal.
GRAY J: This appeal should be dismissed. No error of sentencing principle has been identified; no irrelevant material was considered by the sentencing judge; no relevant consideration was overlooked or disregarded. It was appropriate for the judge to invoke s 18A of the Sentencing Act. The term of imprisonment and the non-parole period were not manifestly excessive. The sentence imposed was within the sentencing judge’s discretion.
DOYLE CJ: The order of the Court is that the appeal be dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (1995) 66 SASR 60.
2. (1980) 91 LSJS 443.
3. (Unreported) judgment No S6776, 21 July 1998.

[2003] SASC 388

21 November 2003