R v Peter John Roberts No. DCCRM-00-637

R v Peter John Roberts
[2001] SADC 188
CRIMINAL
JUDGE DAVID SMITH

On the 3^rd May 2001 Peter John Roberts pleaded guilty to the following charges:-
Count 2. Selling amphetamine and methylamphetamine contrary to s32(1)(c) of the Controlled Substances Act 1984.
The particulars being that on the 28^th August 1997 at Plympton he knowingly sold a quantity of a substance containing amphetamine and methylamphetamine, drugs of dependence, to another person.
Count 3. Possessing amphetamine and methylamphetamine for sale contrary to s32(1)(e) of the Controlled Substances Act 1984.
The particulars being that on the 28^th August 1997 at Plympton he knowingly had a substance containing amphetamine and methylamphetamine, drugs of dependence, in his possession for the purpose of selling it to another person.
The information in fact charged four offences. Upon his plea of guilty to the above two counts, the Crown entered a nolle prosequi in relation to Counts 1 and 4. The penalty for these two offences is set out in s32(5)(B)(b)(i) and (ii) of the said Act.
Circumstances of Offending
On the 28^th August in the car park of the Bilo Supermarket at Plympton, the defendant sold three bags of powder containing amphetamine and methylamphetamine to an undercover police officer. Each bag held 27.5 grams of powder. Precisely what was in each bag is as follows:-
·The first bag contained 3.10 grams of amphetamine and 0.08 grams of methylamphetamine;
·The second bag contained 3.08 grams of amphetamine and 0.08 grams of methylamphetamine; and
·The third bag contained 2.85 grams of amphetamine and 0.07 grams of methylamphetamine.
The defendant was arrested. His vehicle was searched and 10 bags of white powder containing amphetamine and methylamphetamine were located. Each of the 10 bags weighed between 0.6 and 0.8 grams or 7.5 grams in total. These bags contained about 11 percent amphetamine (i.e. 0.84 grams) and 0.25 percent of methylamphetamine (i.e. 0.01 grams in total).
On arrest the defendant declined to answer questions. The considerable evidence in the Crown case discloses that this offending occurred against a background of the defendant being involved in a commercial trading or dealing operation in amphetamine and methylamphetamine; (see R vMangelsdorf (1995) 66 SASR 60).
History since the arrest
Following the arrest of the defendant on the 28^th August 1997, he was released on bail. He then absconded to Perth. He was arrested on a bench warrant on the 22^nd March 2000. On the 26^th June 2000, he was committed for trial on the charges the subject of the information in this matter. On the 5^th March 2001, he was arraigned on all the charges set out on the information and pleaded not guilty. There followed a Voir Dire hearing in which the defendant applied, pursuant to Rule 9, to exclude the evidence of the undercover operative known as “Peter” on the basis that the renewal of the authority to conduct an undercover operation pursuant to the Criminal Law (Undercover Operations) Act was void and of no effect. On the 6^th April 2001, I declined to exclude the evidence of the undercover operative “Peter” or any of the allied evidence and dismissed the application.
Then on the 3^rd May 2001 the defendant was re-arraigned and pleaded guilty to Counts 2 and 3 on the information as set out above.
Notwithstanding the fact that the defendant absconded to Western Australia, he has from time to time in the course of this matter secured grants of bail. However, on the 1^st of June 2001, he again failed to answer his bail and a bench warrant was issued. By that time his counsel, Mr Vadasz, had not quite concluded submissions in mitigation. The defendant was arrested on the warrant and brought before the Court on the 6^th August 2001 and thereafter he has represented himself.
Whilst on bail and unlawfully at large the defendant committed a number of offences which have been referred to this Court from the Magistrates Court. I turn to them now.
On the 16^th October 2001, before me, the defendant pleaded guilty to the following Magistrates Court matters, so that they could be dealt with together with the drug offending, the subject of the information. The offences to which the defendant pleaded guilty are as follows:-
·On or about the 17^th January 2001 at Klemzig in the said State, entered a non-residential building of Linda Callinan as a trespasser whilst in company with the intention of committing an offence to which this section applies, namely larceny of an air conditioner and a pot belly stove the property of Linda Callinan, contrary to s169(1) of the Criminal Law Consolidation Act 1935;
·Between the 26^th day of May 2001 and the 30^th May 2001, at Surrey Downs, in the said State, remained in a place of residence of Dianne Pearl Daymond, as a trespasser with the intention of committing an offence to which this section applies, namely larceny and stole four stamp albums, 20 video cassette tapes and a diary/organiser together of the value of $150, the property of Diane Pearl Daymond, contrary to s170(1) of the Criminal Law Consolidation Act;
·On the 5^th day of June 2001 at South Plympton in the said State, drove a motor vehicle without first obtaining the consent of Neil Raymond Baker, the owner thereof, contrary to s86a of the Criminal Law Consolidation Act;
·On the 5^th day of June 2001 at South Plympton in the said State, drove a vehicle, namely a motor vehicle on a road, namely Waterhouse Road at a speed dangerous to the public, contrary to s46 of the Road Traffic Act, 1961;
·On the 5^th day of June 2001 at South Plympton in the said State, drove a motor vehicle on a road, namely Waterhouse Road whilst disqualified from holding or obtaining a licence, contrary to s91 of the Motor Vehicles Act, 1959;
·On the 5^th day of June 2001 at Plympton Park in the said State being the driver of a vehicle, namely a motor vehicle and on being asked questions by a member of the police force for the purpose of ascertaining the name and place of residence of the said driver did not truly answer such questions, contrary to s42 of the Road Traffic Act, 1961.
Circumstances of offences referred from Magistrates Court
It is an aggravating feature of all these referred offences that they were committed whilst the prisoner was on bail.
In relation to the first of the referred matters, the defendant broke and entered an unoccupied home unit at 20 Fife Street, Klemzig and stole out of the premises an air conditioner and a pot belly stove. All told, the losses to the householder exceeded $2,000.00. The defendant’s fingerprints were found on a window frame. When spoken to by police he declined to answer questions. The penalty for this offence is a maximum term of imprisonment for 10 years; (see s169(1)).
As to the second of the referred matters, during May 2001 the victim Dianne Daymond resided at 2 Sarah Court, Surrey Downs. Between the 27^th of May and the 29^th of May the defendant broke into her home by smashing a rear laundry window. He stole an Akai brand television and stereo, four stamp albums, a large number of video cassettes and a leather diary/organiser. The TV and stereo were valued at approximately $300.
Ms Daymond informed the police that the defendant had previously been staying at her premises and had given her the stereo and TV as rent. She said he had never owned the other items.
On his arrest, the defendant said that he attended the Surrey Downs premises to collect some of his property including his vehicle. He found no-one at home and so he entered through an already broken window and unlocked the rear door, intending at this stage to retrieve his property. He admitted that while inside he took the items mentioned as he believed that the owner had sold some property belonging to him.
The penalty for this offence is a maximum of 15 years imprisonment; (see s.170(1)).
As to the motor vehicle offences, the facts are that on the 1^st of June 2001 a Ford Sedan registration number UBM-644 was stolen from an address at Brooklyn Park where it was left locked and secured. On the 5^th of June, police attended an address at Delaine Avenue, Edwardstown, acting on information received. They saw the vehicle parked on the footpath outside number 63 Delaine Avenue and observed that the boot and bonnet of the vehicle were open.
As police left the street the defendant drove the vehicle away at a fast speed. Police then chased the vehicle at a speed of not less than 100 kilometres per hour on Waterhouse Road, a residential street with houses on either side of the street. The chase continued for about 400 metres on this street. The vehicle then travelled at a speed of not less than 80 kilometres per hour on Marion Road in heavy traffic and then through residential streets, namely Shakespeare Avenue and Wilson Street at high speed. Police observed that the vehicle would not have been able to stop in time had any pedestrians stepped out onto the streets travelled. The vehicle stopped in Wilson Street and the defendant was arrested.
He gave his name as Graham John White of 17 Kingswood Avenue, Onkaparinga Hills. He produced a wallet containing a driver’s licence and health care card with those details. The accused’s correct name was not discovered until the next day when further checks were made after the accused had been charged and bailed under the false name. At this time it was also discovered that the accused was disqualified from driving, by court order, for four months on the 7^th of May 2001.
Enquiries revealed that the wallet belonging to Graham White, whose Ford Sedan registration number UBG-515, was stolen on the 27^th of May 2001. This vehicle has never been recovered. Graham Smith said his wallet was left inside the vehicle at the time that it was stolen.
When questioned about the offences, the defendant said that he was at 63 Delaine Avenue on the 5^th of June assisting a friend at that address to fix another vehicle in the driveway. He said in the course of this he obtained parts from the boot of the Ford Sedan, which he was later found to be driving. He claimed that about 11 am, when police drove past the house, his friend Randall Assheton asked him to move the vehicle away from the house. He got into the car and drove away. He said that he suspected at this point that the vehicle was stolen, although he did not ask Assheton.
He said he had given a false name and provided false identification because he thought he had a warrant.
In respect to the wallet, the defendant said he had been given the item by an unknown male about a week before, as he had indicated to this person that the police were looking for him, and he would need some identification. He said he suspected the male had made the driver’s licence. He denied that he had taken the wallet from the stolen vehicle.
The maximum penalty for illegal use is a penalty of two years for a first offence; (see s86A). I propose treating this as a first offence, despite a mention in the antecedent report of a prior conviction for illegal use. The defendant did not admit that prior offence. The penalties for breaches of s46 of the Road Traffic Act is a fine between $300 and $600 and a minimum licence disqualification of not less than six months. For driving whilst disqualified, the penalty for this defendant, who has a prior conviction for this offence, is imprisonment for two years.
I take into account the defendant’s response to these referred matters which is set out in the transcript for the 16^th October 2001. Though he pleaded guilty to all these matters, and confirmed that in his submissions, he prevaricated about acknowledging what was plain. As to the aggravating feature of having committed these offences whilst on bail, and in respect of the 5^th June 2001 offences whilst unlawfully at large, he offered the incomprehensible excuse that “If I hadn’t been on bail and if I hadn’t been running from the police, then there would have been no need for these offences”.
Personal circumstances
The defendant was born on the 1^st January 1956 and so is now 45 years old. He is a widower with two sons aged 20 and 25. His wife was murdered in Perth in 1996. That plainly had a severe impact on him.
He was born in Adelaide, the youngest of three children. His early schooling was unhappy and disrupted. At the age of nine he was placed in the Windana Remand Centre and then the Glandore Childrens Orphanage. That was routinely his lot throughout childhood and early adolescence. In 1968 his parents moved to Western Australia leaving him in the Brookway Park Childrens Home. He was eventually released to rejoin his family in Perth, but the regime of boys’ homes and trouble with the law continued. As the antecedent report shows, the defendant settled into a routine of offending ranging from stealing and breaking offences, to assaults. As an adult, the offending became more serious. In May 1992, the defendant was convicted of robbery with violence. The antecedent report is voluminous (7 pages), and discloses multiple annual offending with a noticeable gap for three years from July 1997 onwards.
I take into account the submissions of Mr Vadasz, counsel for the defendant made on the 3^rd May 2001, when he said, inter alia, that the defendant was “on the cusp of rehabilitation”. On that occasion, Mr Vadasz adjourned the submissions to obtain a report from the psychologist Mr Allen Fugler. During the resultant adjournment, the defendant was granted bail and absconded. I have before me the report of Mr Fugler dated the 29^th May 2001 which paints a dismal picture of the defendant’s past life. Mr Fugler’s view is that the defendant has Borderline Personality Disorder overlayed with anti-social tendencies. But Mr Fugler offers the hope that the defendant is in the throes of modifying dysfunctional behaviour.
I take into account the defendant’s own oral submissions which were supplemented by articulate written submissions which laid emphasis, inter alia, on his troubled upbringing, his drug addiction, the tragedies of losing two partners and the present excellent prospects of employment and a settled life with a women who has attended the hearings from time to time. I take into account, in particular, the following which was placed before me by the defendant:-
·Three type-written submissions to me from the defendant;
·Letter dated 27^th April 2000 from Salvation Army Family Stores;
·Two letters from Champion Crash Repairs;
·Letter dated 28^th August 2000 from Prison Fellowship of Australia;
·Letter dated 29^th September 2001 from South Australian Forensic Health Service;
·Letter dated 3^rd May 2000 from pharmacist Philip Colasante;
·Letter from David and Bronwyn Moore of Raglan’s Hotel; and
·Letter from Dr Peter Gould-Hurst.
I accept that collectively the submissions and the testimonials would appear to offer a glimmer of hope. As to the drug offending, which is the primary focus of my attention, the defendant accepted that he was guilty of trafficking on a commercial basis. However, he blamed the undercover operative “Peter” for the increased scale of his trading. He sold amphetamines, which he saw as relatively harmless, to support his heroin habit.
Sentencing considerations
I turn firstly to the drug offences. The defendant and his counsel before him sought a suspended sentence.
The defendant is entitled to a discount, albeit a reduced discount for his late plea of guilty. Indeed, the discount is given on the basis that the plea arises from genuine remorse, repentance or contrition; (see Harris v The Queen (1967) SASR 316; R v Slater (1983) 36 SASR 524). The two episodes of absconding would suggest no genuine contrition at all. However, I will nonetheless allow a 10 percent discount. Addiction, albeit to another drug, in this case heroin, is little or no ground for leniency; (see R v Henry (1999) 106 A Crim R 149; R v Terizakis (1986) 41 SASR 252). Whilst amphetamine and methylamphetamine, like LSD, are regarded as middle of the range drugs of dependence (see R v Jenkins [2000] SASC 188; R v Pearce (1980) 91 LSJS 443), the severe penalties prescribed by s32 of the Controlled Substances Act evince a clear intention by Parliament that courts will impose penalties, which will deter commercial selling of these drugs. It has been made clear that where the offence or offences are committed against a background of commercial dealing, then a suspended sentence “will be justified only in truly exceptional circumstances”; (see R v Mangelsdorf (1995) 66 SASR 60 per Doyle CJ at 63).
In my view, there are no exceptional circumstances in either the circumstances of the offence or the personal circumstances of the defendant. The defendant has spent fragmented periods of time in custody throughout the long history of this matter. The Crown agreed with the defendant that as at the 19^th September 2001, the period in custody which I should take into account was eight months and three weeks. That was three months ago. The defendant has been in custody since then. So, the period in custody swells to 11 months and three weeks. In the circumstances of this matter, I decline to give the defendant any credit for time spent on home detention bail.
I will impose one penalty for the two drug offences; (see s18A of the Criminal Law (Sentencing) Act). The sentence of the Court is that the defendant be imprisoned for four years. If it were not for his plea of guilty for which I have allowed a discount of six months and say 12 months for time in custody, I would have imposed a sentence of five and a half years in accordance with the indications in Mangelsdorf (supra).
I turn to the referred offences. I propose fixing one penalty for the serious criminal trespass offences. The aggravating feature common to these two offences is that they were committed whilst the defendant was on bail. Again the penalties for these offences are quite severe. There have been recent substantial increases in the penalties prescribed by Parliament. Again, this is indicative of Parliament’s intent that the Court should impose deterrent penalties for these invasions of people’s homes; (see R v Delphin [2001 SASC 203). I note that in respect of the serious criminal trespass of the home of Dianne Daymond the Crown agree that the offending was at the lower end of the scale.
So, for the two serious criminal trespass offences the sentence of the Court is that the defendant be imprisoned for 18 months, which sentence is to be cumulative upon the sentence imposed for the drug offences.
I now turn to the balance of the other offences, all of which were committed on the 5^th June 2001 when the defendant was in breach of his bail and unlawfully at large.
For the offence of illegal use the sentence of the Court is that the defendant be imprisoned for one month to be served cumulatively upon the previous sentences. For the offence of driving at a speed dangerous to the public there will be a conviction without penalty and I order that the defendant be disqualified from holding or obtaining a driver’s licence for 12 months. For the offence of failing to truthfully answer, there will be a conviction without penalty. Finally, for the offence of driving whilst disqualified, which is a second such offence, there will be a sentence of imprisonment of one month to be served cumulatively upon the previous sentences.
So the result is as follows:-
·Drug offences – four years imprisonment;
·Serious criminal trespass offences – 18 months imprisonment cumulative;
·Illegal use – one month imprisonment cumulative;
·Driving at a speed dangerous – conviction without penalty, disqualification from holding or obtaining a driver’s licence for one year;
·Driving whilst disqualified, second offence – imprisonment for one month cumulative;
·Fail to truthfully answer – conviction without penalty.

Accordingly, the total period of imprisonment is five years and eight months.
There is no basis for reduction under the principle of totality; (see Lowick v McDonald (1988) 46 SASR 537).
42 I now turn to fixing the non-parole period. I accept that the defendant appears to be turning his life around. Clearly his life thus far is beset by difficulties and tragedies. Whilst awaiting the resolution of this matter between August 2000 and January 2001, the defendant obtained rewarding work which he indicated was most unusual for him at Champion Crash Repairs. Further, in this same period he worked voluntarily for the Salvation Army Family Stores at Kensington Gardens. He is now drug free as a result of undertaking the methadone and naltrexone programs. For those reasons I intend to fix what might be regarded as a low non-parole period. I fix that non-parole period at two and a half years. Accordingly, the head sentence is five years and eight months and the non-parole period is two and a half years.

[2001] SADC 188

21 December 2001