R v Perre No. Sccrm-97-194 Judgment No. S6401
[1997] SASC 6401
•20 October 1997
R v PERRE
Court of Criminal Appeal
Coram: Matheson, Duggan and Nyland JJ
Matheson J (Ex tempore)
The respondent was convicted in the District Court on his plea of guilty on a charge of taking part in the manufacture of methylamphetamine between 23 August 1995 and 5 January 1996 at Angle Vale. He was sentenced to imprisonment for six years, with a non-parole period of three years, both periods commencing on 4 January 1996, since which date the respondent has been in custody. The Director of Public Prosecutions now applies for leave to appeal on the following grounds.
The head sentence imposed is manifestly inadequate. The head sentence fails to reflect:
. the gravity of the prisoner’s crime;
. the seriousness of the prisoner’s role in the commission of the crime;
. the standards of sentencing imposed with respect to the manufacture of methylamphetamine;
. the standards of sentencing imposed with respect to the manufacture or production of less serious drugs.
The non parole period is manifestly inadequate. The non parole period fails to assume a proper proportion to the prisoner’s head sentence having regard to :-
. the gravity of the prisoner’s crime;
. the punitive, deterrent and preventative purpose of punishment;
. the prisoner’s poor prospects for rehabilitation.
The sentence discloses an error in principle in the excessive discount allowed for the prisoner’s late plea of guilty."
The respondent was jointly charged on an information with Sam Catanzariti, Francesco Carbone, Antonio Trimboli, Sam Trimboli and Francesco Trimboli with two counts, the count upon which he was convicted, and a second count of conspiring to take part in the manufacture of methylamphetamine.
All six were arrested by police on 3 January 1996 and were committed for trial in the District Court in August 1996. The respondent made what has come to be called a Dietrich application for a stay of proceedings. On 18 April 1997 his application was dismissed. Subsequently, the respondent, and his co-accused, applied for the exclusion of the evidence to be presented by the prosecution at the trial on the grounds of illegality and entrapment. A voir dire hearing of the applications commenced on 4 June 1997. On 14 July 1997, six weeks after the voir dire hearing commenced and before it was completed, the respondent pleaded guilty to the offence upon which he was sentenced. The prosecution entered a nolle prosequi in relation to the second count, and entered a nolle prosequi against the other accused.
There is no real dispute as to the background. In late August 1995 Catanzariti approached a police informant, and told her that the respondent wanted to manufacture amphetamine. Catanzariti said that the respondent needed money to pay legal expenses. The informant advised police of the respondent’s interest in manufacturing amphetamine. The police set up an operation to provide the respondent with an opportunity to commit the offence. The informant continued to meet Catanzariti and, on 6 October 1995, introduced him to an interstate undercover police officer, Mr Jack Pahia, posing as an amphetamine "cook". During the ensuing weeks the informant and Pahia had several discussions with Catanzariti in relation to the respondent’s interest in manufacturing amphetamine.
On 1 November 1995 the informant met the respondent and Catanzariti. The respondent expressed interest in investing $60,000 in the venture and indicated that he would find a property upon which the amphetamine could be manufactured. The informant continued to meet with the respondent, and on 1 December 1995 introduced the respondent to Pahia. At the meeting the respondent indicated that he wanted to manufacture a "smaller" quantity of amphetamine, that he would finance the operation, that he would obtain a site for the laboratory and furnish it, that he would supply the minor chemicals required for the manufacture, that he would recruit a person to assist Pahia in making the amphetamine, and that he would organise people to sell the amphetamine.
On 20 December 1995 the respondent gave Pahia $60,000 for the purpose of setting up the laboratory. Thereafter the respondent located a site for the laboratory on a property at Angle Vale belonging to Francesco Trimboli. The respondent and his co-accused obtained minor chemicals, glassware and equipment. The police supplied the main chemicals and glassware required for the manufacture. Pahia introduced the respondent and his co-accused to a second interstate police officer posing as Pahia’s assistant, namely Jimmy Anderson. The respondent and his co-accused assisted Pahia and Anderson to construct the laboratory. The undercover police officers, with the assistance of one of the respondent’s co-accused, commenced manufacturing methylamphetamine.
On 3 January 1996 the police arrested the respondent and his co-accused. By that time 486.7 grams of pure methylamphetamine had been manufactured, the wholesale value of which was $20,000, with the potential, from the chemicals located in the laboratory, for a further manufacture of between 1100-1600 grams of pure methylamphetamine. That amount of pure methylamphetamine could be diluted to yield 45 kilograms of "street" grade methylamphetamine worth $40,000 per kilogram.
The maximum penalty provided for this offence is imprisonment for twenty-five years and/or a fine not exceeding $200,000.
I propose to deal with the grounds of appeal in the same order as counsel have, and I will start with a consideration of the reduction made in the head sentence for the respondent’s plea of guilty.
The learned sentencing judge said:
"Although your plea of guilty was here entered late, still I accept that much time and public expense have been saved by your plea and that you should here be credited by a reduction in your sentence of twenty-five percent."
There is no need for me to cite any authority for the need, in a sentencing court, to take into account - as a factor in mitigation - a plea of guilty. Where there is genuine remorse or contrition shown or where a willingness to co-operate in the administration of justice has been shown, even more than 25% has occasionally been allowed. However, in my opinion, this is not such a case. Moreover, it was not an early plea. The plea of guilty was entered eighteen months after the respondent's arrest, eleven months after he had been committed for trial and six weeks after the commencement of a voir dire hearing.
Highly relevant here are the remarks of King CJ in The Queen v Slater (1984) 36 SASR 524. At p.526, his Honour said:
"The degree of co-operation in the administration of justice meriting a reduction in sentence is obviously considerably greater in the case of an offender who pleads guilty when he is first arraigned in the court than in the case of an offender who delays his plea of guilty until the morning of the trial when time of the court has been allocated and the witnesses and jurors summoned. I think that it is important, if the practical ends discussed in Shannon are to be served, that sentencing judges should make significant reductions in sentences in recognition of the co-operation in the administration of justice which the plea of guilty manifests and should explain that they are doing so. I think that it is important, too, that the reduction should be graduated according to the stage at which the plea of guilty is entered and should thereby reflect the degree of co-operation in the administration of justice which the offender has shown."
I have reached the clear conclusion that the amount his Honour deducted was excessive. In my opinion, even making allowance for the fact that there was some delay in the plea which might have been occasioned by the undercover nature of the operation, the most that should have been deducted here from the head sentence was twelve months.
I also agree with the submission that has been put to the court on behalf of the Director of Public Prosecutions that the actual head sentence imposed, was manifestly inadequate.
Counsel for the respondent did not challenge, as I understood his submissions, the following remarks of the learned sentencing Judge. He said:
"Although not a great amount of amphetamine was here actually manufactured, you were primarily responsible for having assembled the equipment with which it was intended to achieve substantial production of amphetamine for the street market. There is no doubt in my mind, from the papers presented, that you had the determination to achieve a substantial production. I do accept that you are not here to be punished for that which you had not done. However, the potential of the enterprise is a measure of the seriousness of the offence that you did commit."
Later on, his Honour said:
"The reason for which you committed this offence I accept arose out of financial difficulties which resulted from your defence of a charge of murder brought against you following the National Crime Authority bombing in 1994, where, after your committal for trial, the Director of Public Prosecutions did not proceed with that prosecution. You also had financial problems arising from your defence of an alleged production of cannabis in the Northern Territory, the prosecution of which has not yet been resolved."
Later again, he said:
"It was not here contended that there were any improper features of the police entrapment that could be made a ground for leniency."
This court has many times said that the drug in question here - namely, methylamphetamine - is to be treated, for sentencing purposes, as standing in the middle range of drugs which attract the maximum sentence of 25 years of imprisonment, being more serious than hashish but less serious than heroin. I refer, in particular, to the remarks of King CJ in the case of The Queen v Cronn and Bladon (1983) 34 SASR 555 at 556.
Having regard to the gravity of the respondent's crime, I do not think that the head sentence fixed, still less the non-parole period, sends the necessary message of deterrence to others minded to commit such a large scale commercial production of methylamphetamine.
The learned sentencing judge was in error here in fixing only half the head sentence as the non-parole period. In my opinion, a non-parole period of three years clearly failed to give sufficient emphasis to the need for general deterrence and the gravity of the crime in question.
For those reasons, I would give leave to appeal. I would set aside the order of the learned sentencing judge. I would substitute a head sentence of seven and a half years and a non-parole period of five years, both periods to commence as before from the date when the respondent was arrested - namely, 4 January 1996.
Duggan J
I would grant leave to appeal and I would allow the appeal.
The respondent was arraigned in the Supreme Court on 2 September 1996. A plea of guilty was not entered until 14 July 1997. It was entered in the course of an argument on preliminary issues which had then been in progress for some six weeks. The basis of the argument was that the police officers had been involved in illegality in their dealings with the respondent. The points being argued in the course of the preliminary application were abandoned by reason of the plea of guilty.
It is clear, in my view, that the plea of guilty did not arise out of any genuine contrition or remorse. Furthermore, it could hardly be said that it was an early plea, although it resulted in significant savings to the State and the witnesses did not have to give evidence at the trial. I think there was a clear error of principle in deducting as much as 25% from the sentence which otherwise would have been imposed.
In my view, the starting point for a head sentence in this case should have been a little higher than the eight years considered appropriate by the trial judge. However as this is a prosecution appeal against sentence and there is an element of double jeopardy, I am of the view that the same starting point should be used by this court.
I think that the plea of guilty should result in only a modest reduction of six months. On this basis I would agree with a head sentence of seven and a half years.
It was inappropriate, in my view, that the non-parole period imposed by the learned trial judge should have been such a high proportion of the sentence and I would agree with the non-parole period of five years suggested by Matheson J.
Nyland J
In my opinion, a discount of 25% for a plea of guilty in the circumstances of this case was excessive. For the reasons expressed by Matheson J, I would grant leave. I would allow the appeal for purposes of substituting the sentence which he has pronounced.
Matheson J
The order of the court is appeal allowed; in lieu of the orders imposed by the sentencing judge, substitute a head sentence of seven and a half years and a non-parole period of five years, both periods to commence on 4 January 1996.
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