R v Nicodin
[2009] SASC 102
•17 April 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v NICODIN
[2009] SASC 102
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Layton)
17 April 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence – appellant sentenced in the District Court for the offences of taking part in the sale of heroin – sentencing Judge imposed a sentence of eleven years imprisonment and a non-parole period of seven years – whether the sentence imposed was manifestly excessive – appellant contended that five features of the sentence had the effect, in combination, of indicating the sentence was manifestly excessive.
The features were the Judge’s appreciation of the seriousness of the offending; the sufficiency of the reduction for the appellant’s plea of guilty; the appellant’s lack of criminal antecedents; the appellant’s prospects for rehabilitation and the alleged disparity between the sentence imposed upon the appellant and her co-offender.
Held: sentence not manifestly excessive – appeal dismissed.
Controlled Substances Act 1984 (SA) s32(1)(d), referred to.
Cheung v The Queen (2001) 209 CLR 1; R v Spanos [2007] SASC 409; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; R v Creed (1985) 37 SASR 566; R v MacGowan (1986) 42 SASR 580, applied.
R v Bullock (2005) 91 SASR 461; R v Hogan and Hadley (1991) 161 LSJS 494; R v Mangelsdorf (1995) 66 SASR 60; R v Santalab (Unreported, South Australia, Court of Criminal Appeal, King CJ, Duggan and Debelle JJ, 20 July 1993); R v Millard [2008] SASC 262, discussed.
R v McLachlan [2004] SASC 277; R v Johnston [2007] SASC 300; Cameron v The Queen (2002) 209 CLR 339 ; R v Varano (1989) 150 LSJS 140; R v Angus [2004] SASC 317; R v Craciun [2006] SASC 57; R v Dubois (2004) 88 SASR 304; Yardley v Betts (1979) 22 SASR 108; Bugmy v The Queen (1990) 169 CLR 525; R v Miller (2000) 76 SASR 151; R v Shrestha (1991) 173 CLR 45, considered.
R v NICODIN
[2009] SASC 102
VANSTONE J: I agree that the appeal should be dismissed. I agree with the reasons of White J.
WHITE J: The appellant appeals against the sentence imposed on her in the District Court for the offence of taking part in the sale of heroin.[1]
[1] Controlled Substances Act 1984 (SA) s 32(1)(d).
The Judge sentenced the appellant to imprisonment for a period of 11 years and fixed a non-parole period of 7 years. The Judge had taken as a starting point a sentence of 12 years, but reduced that to 11 years on account of the appellant’s late plea of guilty.
The appellant contends that both the sentence of 11 years and the non‑parole period of 7 years are manifestly excessive. She referred to a number of features of the Judge’s sentence, but did not suggest that any one feature considered by itself indicates that the sentence is excessive. Rather, the appellant contends that the identified matters, when considered in combination, indicate that the sentence is too severe.
The Circumstances of the Offence
The appellant committed the offence with a co-offender. The essential circumstances of the offence were stated succinctly and accurately by the sentencing Judge in the following way:
You were caught red-handed in a police trap. In December 2003 you and your co-offender agreed with a man you both thought was a drug courier that you would sell a quantity of heroin to a female buyer coming to Adelaide from Sydney. Unknown to you both, the supposed courier and the female buyer were working with the police. At your various meetings with them your conversations were recorded.
On 18 December 2003 you were to the Arkaba Hotel with the courier and there you met the female purchaser. She was in fact a police officer. She handed $170,000 to the supposed courier and he immediately gave it to you. The following night, your co‑offender went to the Arkaba and gave the woman a package containing 20 ounces of heroin. He was arrested very soon after he left the room where he had handed over the heroin. Very shortly after that police went to your house and searched it. They found a large amount of money hidden in air conditioning ducts. It included the $170,000 which you had received the previous evening.
The following details can be added to that description of the offence. In early December 2003, a drug courier who was well known to the appellant agreed to assist the police. He flew to Adelaide and canvassed with the appellant a possible sale of 20 ounces of heroin to a person who he said was coming from Queensland. No arrangements were made between them at this time, but the possibility of the sale remained open. It was mentioned obliquely in conversations between them on 14 and 16 December 2003.
The courier came to Adelaide on 17 December 2003. He contacted the appellant who came to see him in his room at the Hyatt Hotel on 18 December. The appellant and the courier made arrangements to meet the “Queensland purchaser” (an undercover police officer) that night to collect the purchase monies from her. At about 10 pm the appellant picked up the courier from his hotel and drove him to the Arkaba Hotel. Both went to the room in which the “Queensland purchaser” was staying. The undercover police officer then handed over $170,000 in cash, and arrangements were made for the heroin to be delivered to her in the same room on the following night. The appellant took the $170,000 and drove the courier back to the Hyatt Hotel.
On the following day (19 December) the appellant and the co-offender met the courier, again in his room at the Hyatt Hotel. They discussed the delivery of the heroin to the Queensland purchaser that evening. It was arranged that the co‑offender would make the delivery.
As noted by the Judge, shortly after the co-offender made the delivery of the heroin he was arrested. The appellant was arrested at her home at about the same time. As the Judge recorded, the police found a substantial sum of money, including the $170,000 which had been handed over by the undercover police officer, hidden in an air conditioning duct at her home.
Each of the conversations between the courier and the appellant in his room at the Hyatt Hotel was taped. In addition, the conversations between the courier, the appellant and the undercover police officer at the Arkaba Hotel on 18 December, and the conversation between the undercover police officer and the co-offender at the same hotel on 19 December, were taped.
The heroin handed over to the undercover police officer was later analysed. There were some 558 grams of which 170 grams was pure heroin.
For reasons which are not clear, a considerable period elapsed before the appellant and the co-offender were committed for trial in the District Court. The co-offender pleaded guilty shortly after the first arraignment on 12 February 2007. However, again for reasons which are not clear, he was not sentenced until 19 June 2008.
The appellant pleaded not guilty and maintained that plea until shortly before her trial was to commence on 11 August 2008. When entering her plea of guilty, at that time, the appellant contended that her conduct comprised a “one off” incidental involvement in drug dealing. She contended that she was holding the sum of $170,000 as a favour for a friend who had received the money from the sale of drugs. The appellant claimed that she did not know that the drug sold by the friend was heroin.
After hearing evidence from the appellant, the courier and others on a disputed facts hearing, the Judge said that he did not believe the appellant. He said:
I [am] satisfied beyond reasonable doubt on the evidence offered by the prosecution witnesses that you had been trading in heroin for some time before 19 December 2003. Indeed, I was satisfied that you had been engaged at a high level in the chain of heroin distribution and that the amount of money and heroin, involved in that distribution, had been significant.
The Appellant’s Personal Circumstances
The appellant was 45 years old at the time of her offending and 50 when sentenced. She had migrated to Australia from Romania in 1982. At the time of her offending the appellant was divorced from her husband and was supporting her two children, then aged 18 and 11.
In Australia, the appellant had engaged in a variety of occupations including factory work, the operation of a delicatessen, and the operation of a jewellery business. More recently, the appellant had worked as a nurses’ assistant.
A psychologist accepted that the appellant suffered from depression, but did not consider that it had contributed in any significant way to her offending. The appellant had no relevant prior convictions.
The Approach of the Sentencing Judge
As already noted, the Judge was satisfied that the appellant had been trading in heroin at a high level for some time before December 2003; that she had been in charge of the sale of the heroin to the undercover police officer; and that she had given directions to the courier, to the co-offender and to the undercover police officer herself.
The Judge made it plain that he sentenced the appellant only for the offence to which she had pleaded guilty and not for any earlier offending. However he sentenced the appellant against the background of her previous involvement, rather than on the basis that she had been detected in the course of her first foray into heroin dealing.
The Judge took a serious view of the appellant’s offending. He said:
As I said earlier, your offending is extremely serious. I place it high up in the seriousness of offences of dealing in heroin. It was a very large quantity of heroin involved, 170 grams of pure heroin. It had an ultimate street value probably in the range of something up towards $1 million. You are not a heroin user selling heroin to pay for the costs of your addiction. Yours was a cold, hard commercial venture. You were greedy for money.
Issues Concerning the Head Sentence
The appellant referred to five matters which it was said, in combination, indicated that the head sentence was too high.
The Seriousness of the Offending
First, it was said that the Judge had overestimated the seriousness of the appellant’s offending in that, while the amount of pure heroin involved (170 grams) was large, it was not as substantial as seen in some offending of this kind. It was also said that the Judge had inappropriately identified the “ultimate street value” of the heroin as being towards $1,000,000. Thirdly, it was said that comparison with other sentences indicated the severity of the sentence.
As part of this submission, the appellant provided two tables of sentences imposed on heroin dealers. This Court has frequently remarked on the limitations of the utility of such tables.[2] At best, they can be of general assistance only. Usually they do not provide the Court with all the information necessary in order to make useful comparisons.
[2] Yardley v Betts (1979) 22 SASR 108 at 110-11; R v McLachlan [2004] SASC 277 at [30] – [31] (Doyle CJ); R v Johnston [2007] SASC 300 at [59]; (2007) 173 ACrimR at 540.
The tables upon which the appellant relies suffer from limitations. With one exception, every sentence in each table was imposed before 2003 and so do not give an indication of contemporary sentences. The tables show only the ultimate sentences imposed, and not the starting points before reduction for guilty pleas, cooperation with the police, time spent in custody, or other circumstances personal to the offender. In addition, the first table appears to have been prepared progressively over a number of years by different people and not always in a consistent manner. As the second table was derived from the first, it suffers from the same limitations.
At face value, the tables may suggest that the sentence imposed in this case was at the upper end of the range of penalties for this kind of offending, but that impression is heavily qualified by the inability to compare the starting points for the sentences imposed in each case. It is also heavily qualified by the fact that the majority of the offences referred to in the tables involved the dealing with lower quantities of heroin.
The appellant was critical of the Judge’s assessment of the street value of the heroin. As noted, the Judge said that that value approached $1,000,000. The appellant submitted that in stating that value, the Judge had taken the least, rather than the most, favourable view of the facts.
In my opinion, the appellant’s submissions in this respect tended to attach an undue significance to the Judge’s sentencing remark concerning the ultimate street value of the heroin. As I read the sentencing remarks, the Judge was not purporting to make a precise finding about that value. Instead, he was simply emphasising the significance of the offending by indicating in a general way the substantial amount for which the heroin could ultimately be sold.
In any event, I do not consider that the Judge’s statement that the heroin had a value of “up towards $1,000,000” has been shown to be wrong. The Judge had evidence from two police officers about the prevailing street value prices of heroin in December 2003. That evidence indicated that when sold in the street in small quantities, heroin fetches much greater prices than when sold in large amounts. The deposition from one police officer (Sergeant Gillan) also indicated that heroin sold on the streets is often adulterated with other substances so that the percentage of pure heroin may be as low as seven percent. On that basis, the Judge’s conclusion that the 558 grams containing 170 grams of pure heroin which had been purchased for $170,000 could be sold on the streets at “something up towards” $1,000,000 was reasonably open to him.
Contrary to the appellant’s submission, the Judge was not bound to adopt an estimate of the street value of the heroin which was most favourable to her.[3]
[3] Cheung v The Queen [2001] HCA 67 at [14], [103], [165]; (2001) 209 CLR 1 at 12-13, 35-36, 53; R v Spanos [2007] SASC 409 at [37]; (2007) 99 SASR 487 at 492.
In my opinion, the Judge was correct in regarding the appellant’s offending as being at a high level of seriousness for offences of dealing in heroin. The offence involved a large amount of heroin and, as the Judge noted, the appellant was orchestrating a “cold, hard commercial venture.” She participated regardless of the unlawfulness involved, of the exploitation which would be made of the ultimate users, and of the misery which would be caused to them.
Reduction for the Late Plea of Guilty
As noted earlier, the Judge reduced his starting point by one year on account of the appellant’s late plea of guilty. The appellant submitted that a reduction of 8.5% was inadequate and, in particular, that it did not recognise the utilitarian value of the plea.
There is no fixed tariff of reductions for pleas of guilty. Much depends upon the circumstances of the individual case and sentencing Judges have a considerable discretion in that respect. It is the willingness of the offender to facilitate the course of justice which is the underlying justification for the reduction of the sentence which would otherwise have been imposed.[4] The course of justice may be facilitated by the early expression of contrition for the offending. A plea also has a utilitarian value in that the State, the prosecution and the witnesses are spared the cost and inconvenience of a trial.
[4] Cameron v The Queen [2002] HCA 6 at [13]; (2002) 209 CLR 339 at 343.
In the present case, the appellant pleaded not guilty at the time of her first arraignment on 12 February 2007 and maintained that plea until very shortly before her trial was to commence.
The case against the appellant was strong, supported as it was by the police observations of the appellant on the 18th and 19th of December, the tapes of the incriminating conversations, and the finding of a substantial sum of money, including the $170,000, in her own home. The appellant’s plea seems to have been a recognition of the inevitable result of a trial.
The very lateness of the appellant’s plea, and the fact that it was accompanied by a false account which sought to minimise her culpability, militated against a conclusion that the plea was prompted by contrition. The authorities indicate that in circumstances of that general kind, an offender is only entitled to a small reduction in sentence. In R v Varano[5] King CJ said of a plea of guilty followed by a false account put forward on a disputed facts hearing:
The respondent pleaded guilty, but this can have little weight because he brought about a substantial hearing by putting forward a false story as to the degree of his involvement.[6]
Similarly, in R v Angus[7] Doyle CJ said:
I would not have made a reduction of 25% for the plea of guilty. Mr Angus’s persistence with his version of the facts, a version that the Judge rejected, meant that the practical benefits that would usually flow from a plea of guilty were substantially reduced. It is also doubtful whether Mr Angus is as contrite as he claims. I would have allowed a reduction of no more than 15%. I regard that as generous.[8]
[5] (1989) 150 LSJS 140.
[6] Ibid at 141.
[7] [2004] SASC 317.
[8] Ibid at [30].
I note that in R v Bullock[9] this Court considered that a reduction of 10 percent was overly generous in the case of a plea entered shortly before trial and in circumstances indicating an absence of contrition and remorse and little, if any, indication of a willingness to facilitate the course of justice.
[9] [2005] SASC 177; (2005) 91 SASR 461.
The appellant’s plea did have utilitarian value. In my opinion, the reduction of one year from the Judge’s starting point reflected appropriately that utilitarian value.
Absence of Prior Criminal History
The appellant submitted that the Judge had failed to give adequate weight to the absence of a prior criminal history.
The Judge referred specifically to the fact that the appellant had no relevant prior convictions. It is evident that he took the appellant’s good record into account together with a number of other circumstances which were personal to her. However, in a case like the present, which involves premeditated and planned conduct, prior good character does not carry the same weight as it does in the case of offending of an impulsive or less premeditated kind.[10]
[10] R v Varano (1989) 150 LSJS 140 at 141 (King CJ).
Prospects of Rehabilitation
In the course of explaining the importance of general deterrence in his sentencing decision, the Judge said:
I accept that you are unlikely to offend again and that you will eventually be fully rehabilitated.
The appellant submitted that the sentence imposed did not reflect the Judge’s acceptance of the favourable prospects for a successful rehabilitation.
Those prospects were a relevant matter. It is to be noted however that the Judge considered that a lengthy period in custody was an important element in those prospects. Furthermore, as the appellant acknowledged, the good prospects for a successful rehabilitation do not, by themselves, indicate that the sentence was too severe.
Alleged Disparity in Sentences
The appellant’s co-offender was sentenced by a different Judge. That Judge took as a starting point a sentence of 9 years imprisonment. That starting point was reduced on account of an early plea of guilty and on account of other circumstances personal to the co-offender which it is not necessary to detail presently. The appropriateness of the starting point and of the judge’s reduction in sentencing the co-offender were not in issue on this appeal.
Contrary to the appellant’s submission, it is not appropriate to compare the final sentence imposed on the co-offender with that imposed on the appellant. To do so would be to overlook the personal circumstances of each which led to the reductions from the respective starting points.
The co-offender was sentenced on the basis that he was more than a courier. In addition to physically transporting the heroin, the co-offender had some active involvement in the preparation of the heroin for sale and in determining the arrangements for its delivery to the undercover police officer.
The appellant’s involvement was however at a higher level. Together with the courier from Western Australia, she arranged the sale. The taped conversations revealed that the appellant was active in controlling the transaction and in giving directions to the others involved in it. Her role in taking and safeguarding the $170,000 also indicates that her role was at a higher level than the co-offender.
The principle of parity in the sentencing of co-offenders requires that like cases ought to be treated alike.[11] Equal justice requires that, as between co‑offenders, there should not be a marked disparity which gives rise to “a justifiable sense of grievance.”[12] When co-offenders have not engaged in exactly the same conduct, the parity principle requires that the sentences imposed on them should be proportionate to their respective degrees of culpability, as well as to the various personal factors of aggravation and mitigation.[13]
[11] Lowe v The Queen (1984) 154 CLR 606 at 610-11; Postiglione v The Queen (1997) 189 CLR 295 at 301.
[12] Ibid.
[13] R v MacGowan (1986) 42 SASR 580 at 582-3.
In the present case, for the reasons given earlier, the appellant’s offending did not involve exactly the same conduct as that of the co-offender. Her conduct was more culpable. A higher starting point than that adopted in the case of her co-offender was appropriate. The three year difference between the two was significant but not disproportionate.
Conclusion on Issues Concerning Head Sentence
As noted earlier, the appellant contended that it was the matters identified above, when considered in combination, which indicate that the sentence is too severe. That is to say, it is not any one matter considered by itself which made the sentence excessive, only the combination of the identified matters.
I agree that the sentence imposed in this case was heavy. However, it is appropriate that sentences for this kind of offending are severe. The Courts have repeatedly emphasised the importance of general deterrence in the sentencing of those who, like the appellant, engage in heroin trading at a high commercial level. As the sentencing Judge said, the trade in heroin has disastrous consequences for many users of heroin, for their families and for the whole community. It is an evil trade and the law should do what it can to stamp it out.
The authorities abound with statements concerning the importance of general deterrence in offending of the present kind. In R v Hogan and Hadley[14] Duggan J (with whom King CJ and Prior J agreed) said:
Those who traffic in heroin have been warned repeatedly that when they come before the courts they can expect to be dealt with severely. In imposing penalties for these offences emphasis is placed upon general deterrence and the subjective situation of the offender is of much less significance than in the case of many other offences.[15]
[14] (1991) 161 LSJS 494.
[15] Ibid at 495.
In R v Mangelsdorf[16] Doyle CJ said “very heavy sentences can be expected by those whose offending goes beyond street trading.”[17] The Chief Justice referred to the remarks of King CJ in R v Santalab[18] as follows:
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 maximum penalties. Clearly it is the intention of the legislature that severe penalty 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.[19]
Similarly, in R v Millard[20] Doyle CJ said:
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 high level distributors by imposing severe punishment.[21]
[16] (1995) 66 SASR 60.
[17] Ibid at 65.
[18] Unreported, South Australia, Court of Criminal Appeal, King CJ, Duggan and Debelle JJ, 20 July 1993.
[19] Ibid at 7.
[20] [2008] SASC 262.
[21] Ibid at [42]; see also R v Craciun [2006] SASC 57 at [29]; (2006) 94 SASR 173 at 176.
The appellant’s submissions about the severity of the sentence have to be considered in the light of these statements of approach.
In my opinion, account should also be taken of the difficulties faced by the police in detecting and prosecuting offences of this kind. The detection and prosecution of the appellant required a very large commitment of police resources and also some personal risk for the police officer who acted as the undercover agent.
The sentencing Judge did not make any error of principle, or of fact, in his sentence. Although the sentence is heavy, the starting point was less than half of the maximum available sentence (25 years) for this kind of offending. Even giving full weight to all the matters raised on appeal, I do not consider that the Judges’ starting point of 12 years to be inappropriate. Given the lateness of the appellant’s plea, and her maintenance of a false account about her involvement, the reduction of one year from the Judge’s starting point of 12 years was appropriate.
I would reject the appeal against the head sentence.
The Non-parole Period
The appellant submits that the non-parole period of 7 years (64% of the head sentence) was too high. She submits that greater account should have been taken of her personal circumstances and, in particular, her good prospects of rehabilitation in the fixing of the non-parole period.
I do not accept that the appellant’s personal circumstances and the requirements for personal deterrents were the principal features to be considered in the fixing of a non-parole period. The approach stated by King CJ in R v Creed[22] remains appropriate. King CJ said:
In fixing a non-parole period, as in fixing a head sentence, a judge has to bear in mind the purposes for which sentences are imposed. The non-parole period, no less than the head sentence, must reflect the basic consideration of justice that the punishment should fit the crime, having regard both to the offence and the offender, and it must reflect the community’s sense of justice,….for that reason alone the non-parole period, no less than the head sentence, should be properly proportionate to the gravity of the crime.
In every case, but particularly in the case of serious crime such as the present, it is necessary that the non-parole period, no less than the head sentence, operate as a deterrent to others who may be minded to commit similar crimes. It is necessary for the courts in fixing non-parole periods, just as in fixing head sentences, to convey a message to those who may be tempted to commit similar crimes, serious crimes, that the commission of those crimes will result in a period spent in prison of a sufficient duration to operate as a real deterrent.[23]
[22] (1985) 37 SASR 566.
[23] Ibid at 568; see also R v Dubois [2004] SASC 79 at [26] – [27]; (2004) 88 SASR 304 at 309.
The appellant’s submission that considerations of general deterrence are not important in the fixing of a non-parole period cannot be accepted.
In my opinion, a non-parole period which was 4 years less than the head sentence of 11 years reflected appropriately the favourable prospects for a successful rehabilitation while, at the same time, maintaining an appropriate level of general deterrence in this case.
I would dismiss this aspect of the appeal.
Conclusion
For the reasons given above, I would dismiss the appeal
LAYTON J: I agree with White J that the appeal should be dismissed and agree with his reasons save that I express my own reasons for rejecting the appellant’s submission that the non-parole period of seven years was manifestly excessive.
Counsel for the appellant submitted that the non-parole period of seven years in relation to a head sentence of 11 years, being 64% of the sentence, was manifestly excessive. Counsel referred to the following passage of the sentencing remarks:[24]
The courts have said, time and again, that people such as you who engage in heroin trading at a high commercial level must receive severe penalties in the hope that others minded to behave as you have will be deterred from doing so. I accept that you are unlikely to offend again and that you will eventually be fully rehabilitated, but general deterrence must play its part in this type of offending.
[Emphasis added.]
[24] AB 209.
The appellant’s argument as I understood it was that the sentencing Judge erred in his approach to the fixing of the non-parole period in that instead of giving greater weight to the appellant’s personal features and rehabilitation, his Honour took the view that general deterrence should prevail over those factors in this type of offending.[25] Counsel for the appellant particularly relied on authorities such as Bugmy v The Queen (1990) 169 CLR 525 and R v Miller (2000) 76 SASR 151.
[25] T 14-15.
The DPP in response to the appellant’s argument submitted that it was legitimately open to the sentencing Judge to conclude that the seriousness, nature, and extent of the appellant’s criminal conduct required that general deterrence had to predominate in the fixing of the non-parole period. The DPP particularly relied on the case of R v Mangelsdorf (1995) 66 SASR 60.
The principles relevant to the setting of a non-parole period have been discussed by the High Court and this Court in a number of decisions.[26] These principles were succinctly summarised by Doyle CJ in R v Miller at 158:
What is the purpose of a grant of parole? The High Court has considered this question on a number of occasions. While there have been some variations of emphasis, a fairly consistent view has been expressed in a line of decisions which includes Power v The Queen (1974) 131 CLR 623; Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525 and R v Shrestha (1991) 173 CLR 48. In Shrestha, Deane, Dawson and Toohey JJ conveniently drew together the principles that can be found in these cases. They said (at 67):
“The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody.”
…
Having explained the operation of the system, they then referred to the manner in which the decision to fix a non-parole period (the decision to be made by me) and the decision to release a prisoner should be made. They said (at 68-69):
“The fact that considerations of mitigation and rehabilitation will ordinarily found a decision that a prisoner be released on parole does not mean that they are the only considerations which are relevant to the question (for the sentencing judge) whether a convicted person should be eligible for release on parole at some future time or to the subsequent question (for the parole authority) whether the prisoner should be actually released. All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time.
[26] R v Creed (1985) 37 SASR 566; Bugmy v The Queen (1990) 169 CLR 525; R v Shrestha (1991) 173 CLR 48 and R v Miller (2000) 76 SASR 151.
The Chief Justice later encapsulated those principles in the following passage at 160:
As was indicated by the High Court in Shrestha, I must consider all factors relevant to the setting of a head sentence, but it is appropriate to give greater weight to rehabilitation of the prisoner when fixing a non-parole period, and to bear in mind the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.
Therefore all the factors relevant to the setting of a head sentence are also relevant to the setting of a non-parole period, including personal deterrence and general deterrence, but when fixing a non-parole period it is appropriate to give greater weight to rehabilitation of the prisoner.
The issue which is raised by the differing submissions put by counsel in this case is whether the general principles to be applied in fixing the non-parole period as articulated by the High Court differ when the offence involves commercial activity in drug dealing such that general deterrence should instead “predominate”, as the DPP expressed it.
In my view the case of Mangelsdorf, on which the DPP relies, was largely concerned with sentencing standards overall and did not specifically address the principles of fixing non-parole periods. There is nothing contained within the reasoning of Doyle CJ in Mangelsdorf which suggests that the principles relating to non-parole periods, as articulated by the High Court and adopted by the Chief Justice in R v Miller, do not apply in commercial drug trading cases. The approach taken by the Chief Justice in setting the non-parole periods for the three offenders in Mangelsdorf (at 70, 72 and 74) suggests to the contrary.
In Mangelsdorf the Chief Justice expressed that general deterrence must be given great weight in commercial drug offending and in relation to the trade of heroin this should be “uppermost in the judges mind”.[27] That does not mean that when a judge is fixing the non-parole period, general deterrence must predominate over rehabilitation. The principles set forward by the High Court still apply, but they apply in the context of the importance required to be given to deterrence in offences which involve commercial activity in drug dealing when fixing the overall sentence.
[27] (1995) 66 SASR 60, 70.
In this case, the sentencing Judge expressed his acceptance that the appellant was unlikely to offend again and would eventually be fully rehabilitated.[28] This was open to him, although this appeared to be a somewhat generous and overly-confident statement given his finding that the appellant was not a heroin user and that it was “a cold, hard commercial venture. You were greedy for money”. Further, that she “knew full well the risk that [she] was taking”.[29]
[28] AB 209.
[29] AB 208.
In considering the personal circumstances, the sentencing Judge set out in some detail that the appellant had no prior convictions; she had suffered anxiety and depression; and most particularly she was a single mother with two children, being a daughter aged 23 years who is a university student, and a son aged 16 years who is a secondary school student.
The Judge in his sentencing remarks indicated as follows:[30]
It is very distressing that I must sentence you to a long-term of imprisonment. Your children will be left to fend for themselves. Their father is, it seems, either serving a sentence of imprisonment in New South Wales or has just finished serving such a sentence for commercial dealing in drugs.
In sentencing you, I have not overlooked the impact of your being imprisoned upon your teenage son, but I can give it very little weight. I must sentence you to such a long term of imprisonment that the effects on him become much less relevant.
[30] AB 208-9.
The sentencing Judge was clearly mindful that this was a relevant feature, but that in the circumstances he could give it very little weight in the overall sentencing process because the nature of her offending must attract a long term of imprisonment. In my view the Judge was correct. In two years time the son would be an adult and any period of imprisonment imposed would have to be longer than two years. It is at least fortunate that the son has a 23 year-old sister who is living at home with him and can take some caring role.
Whilst views may differ as to the length of a non-parole period which may have been appropriate in this case, I am not satisfied that the Judge has erred in the application of the principles applicable to the fixing of a non-parole period. His Honour did not give insufficient weight to the factors of rehabilitation and personal circumstances. I therefore reject the argument put on behalf of the appellant that the non-parole period of seven years was manifestly excessive.
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