R v Reed
[2013] SASCFC 16
•28 March 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v REED
[2013] SASCFC 16
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice David)
28 March 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - RELEVANT MATTERS - OFFENDER'S ADDICTION
The Director of Public Prosecutions sought permission to appeal against the sentence imposed on the respondent by a Judge of the District Court on the ground that it was manifestly inadequate - the respondent pleaded guilty to various drug offences contrary to the Controlled Substances Act 1984 (SA) - the respondent was sentenced to 14 months' imprisonment and ten months' imprisonment for the trafficking in controlled substances, the terms to be served concurrently - the terms of imprisonment were suspended upon the respondent entering into a 12 month good behaviour bond - the defendant had become addicted to methylamphetamine as a result of being prescribed the stimulant medication, dexamphetamine, from a young age.
Held: Permission to appeal refused.
Per Kourakis CJ (David J concurring): The sentence was manifestly inadequate - it was accepted that the respondent's addiction was a mitigating factor but one that was not accorded much weight - permission to appeal refused because the grant of permission would cause undue hardship and be counterproductive in the respondent's particular case.
Per Sulan J: The sentence, although low, was merciful - case to be distinguished from one in which a person becomes dependent upon drugs, having always used illicit drugs illegally - in circumstances where a person develops an addiction to a prescribed medication as a result of a course of medical treatment and commences purchasing and using illicit analogies of such medication, that that is a relevant factor to consider in determining the appropriate sentence - permission to appeal refused on the ground that no error had been demonstrated justifying interference by the Court.
Controlled Substances Act 1984 (SA) s 32(3), s 33B(3); Criminal Law Consolidation Act 1935 (SA) s 340, referred to.
R v Harkin (2011) 109 SASR 334, applied.
R v Nemer (2003) 87 SASR 169; Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; R v Osenkowski (1982) 30 SASR 212; Green & Quinn v The Queen (2011) 244 CLR 462; R v Godfrey (1993) 69 A Crim R 318; R v Peel [2009] SASC 280, discussed.
R v Mangelsdorf (1995) 66 SASR 60; Talbot v The Queen (1992) 34 FCR 100; Douglas v R (Unreported) Federal Court of Australia BC9507618, considered.
R v REED
[2013] SASCFC 16Court of Criminal Appeal: Kourakis CJ, Sulan and David JJ
KOURAKIS CJ: I gratefully adopt the summary of the sentencing facts in the judgment of Sulan J.
I take the view that the sentence is manifestly inadequate. The respondent was not the low level street dealer who purchases, or takes a consignment of, a little more of the drug than he or she needs to satisfy his or her addiction in order to fund that addiction. The respondent was trafficking in three different drugs. In just one month he received $13,015 from his dealing. The respondent’s trafficking distributed a significant quantity of drugs into the community with all the misery that that entails.
I accept that the cause of the respondent’s addiction is a mitigating factor but I would not accord it much weight. The moral culpability which falls to be assessed is for the offence of trafficking in drugs and not for the self administration of drugs. Moreover, the experience of the criminal courts is that many drug users become addicted when they are quite young, in desperate circumstances or suffering from psychiatric illnesses. They have little, if any, more control than the respondent over the circumstances that lead to their addiction. Few of the offenders who come before the criminal courts became addicted through hedonistic excess. If sentences were mitigated to reflect all such sad, and sometimes tragic, causes of addiction, the penalties would fail to provide the necessary level of general deterrence.
On the other hand I am impressed, on the fact of the documentary material before the Court, with the rehabilitation program provided by Dr Clark. The respondent has fully cooperated in that program. Dr Clark’s prognosis is optimistic. The revocation of the suspension of the respondent’s sentence, after the efforts he has made, would be a crushing blow.
I would refuse permission to appeal because a grant of permission would work an undue hardship and be counterproductive in the respondent’s particular case.
SULAN J: The Director of Public Prosecutions seeks permission to appeal against a sentence imposed upon the defendant, Philip David Reed, for various drug offences.
The defendant pleaded guilty to one count of trafficking in methylamphetamine, and one count of trafficking in cocaine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The defendant also pleaded guilty to one count of cultivating a trafficable quantity of cannabis plants, contrary to s 33B(3) of the Controlled Substances Act 1984 (SA). The maximum penalty for each of the offences is ten years’ imprisonment or a fine of $50,000, or both.
The sentencing Judge imposed a sentence of 14 months’ imprisonment in respect of the methylamphetamine offence, and ten months’ imprisonment in respect of the cocaine offence. He ordered that the sentences be served concurrently. He fixed a non-parole period of nine months’ imprisonment. The sentences were suspended upon the defendant entering into a bond in the sum of $100 for a period of three years, to be under the supervision of a Community Corrections Officer for 12 months, to undertake such treatment and/or assessment for illicit drug use as may be required by his Community Corrections Officer, and that he undertake testing as may be required by the Community Corrections Officer for the presence of illicit drugs. In relation to the cannabis offence, the defendant was fined $2000.
The Director appeals the sentences on the grounds that they were manifestly inadequate, and that no good reason existed to suspend the sentences.
Background
In the early hours of the morning of 14 May 2011, the defendant was stopped by police. The police officers detected a strong smell of cannabis and observed that the defendant appeared to be under the influence of some form of drug. They searched the defendant and located a small amount of cannabis and a pipe. Police also located a lunch bag containing approximately 11 grams of a white crystalline substance which contained 6 grams of pure cocaine, approximately 23 grams of white powder which contained 3.5 grams of pure methylamphetamine, resealable bags, a set of scales and $13,015 in cash. Inside a bumbag police located $819.20 and 6 grams of pure cocaine. An amount of $470 was also located in the defendant’s wallet.
Police then attended the defendant’s premises where they located an extensive hydroponic cannabis set up. They found eight mature cannabis plants, 14 small cannabis plants and approximately three kilograms of loose cannabis leaf and stalks.
The defendant admitted to police that the methylamphetamine was intended for sale and the cash located in the bag was the proceeds of selling. He claimed that the cocaine was for his own use.
The defendant’s personal circumstances
The defendant was born in Adelaide in 1981. He is the middle of three siblings. His parents live interstate. He attended school in Adelaide. He had a normal upbringing. After leaving school at the end of year 11, the defendant worked as a labourer and held a variety of other jobs. Apart from one short period, he has remained in full employment. For the past six years he has been employed as a truck driver. His employer describes him as a respected staff member with an outstanding work ethic. The defendant is in a relationship and his partner has a four-year-old child. He supports them financially.
The defendant pleaded guilty at the first arraignment. He was frank and cooperative with police. He has some minor previous convictions, but none involving drugs.
The sentencing Judge accepted that the defendant’s foray into drug taking resulted from his addiction which stemmed from medical treatment which he had been receiving from a young age. The defendant was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he was in about year 9. He was prescribed dexamphetamine to treat the condition from year 9 until he finished school in year 11. He had also been introduced to cannabis and was a regular user of that drug until he ceased using drugs after his arrest in May 2011. He stopped taking the medication when he left school until he fell out of work at the age of 25. The defendant consulted a general practitioner who referred him to a psychiatrist. Again he was prescribed amphetamines. At that time, he also commenced using cocaine. The defendant continued to take the medication until the psychiatrist retired in 2010 and his script ran out, at which point he began purchasing methamphetamine illegally. When the defendant commenced to purchase drugs illegally in 2010, the cost of his habit was about $1000 per week. He then commenced selling methylamphetamine to sustain his habit.
After his arrest, the defendant consulted Dr Richard Clark, a neuropsychologist.
In February 2012, the defendant commenced a 15 month treatment program at Shay Louise House. However, funding for the program ceased and treatment at the facility ended in May 2012. The program had been very helpful to the defendant. He has been tested for drugs since he ceased the program, and the tests demonstrate that he remains drug-free.
Dr Clark noted that the defendant demonstrated a mature and proper attitude towards rehabilitation and that there were reasonable grounds to expect that the intervention recommended would be successful. Dr Clark also noted that considering the defendant’s exposure to the stimulant medication, it was not surprising that the defendant found illicit drugs with similar effect attractive. Dr Clarke stated that the defendant had succumbed to the high risk of addiction to stimulant drugs:
My overall impressions of Mr. Reed were of a forthright young man keen to get back on track, and willing and motivated to do what’s needed to achieve this outcome. He retains difficulty with attention and concentration consistent with the earlier adolescent diagnosis of attention deficit disorder. Affect is generally good, with no objective indications of depression, anxiety or stress. He adopts a positive approach to matters but suffers from a poor coping capacity with low self-esteem and self efficacy.
Given the above, together with the history of prescribed stimulant medication when younger to deal with intentional issues, I am not surprised that Mr Reed found illicit analogues of such medications attractive and that they helped him with daily responsibilities requiring such skills in day to day life. Succumbing to the high risk of addiction to stimulant drugs and the cost of supporting the addiction to the stimulant methamphetamine, seem to have been the driving factors in him choosing to traffic in such drugs.
It is not clear from Dr Clarke’s report whether the defendant developed his addiction to stimulant drugs at the time of being prescribed the stimulant medication or following that when he commenced taking the illicit substitute illegally.
During sentencing submissions, counsel submitted that when the defendant was again prescribed dexamphetamine at the age of 25, his partner was concerned about his reliance on the prescription drug. It was submitted that when his prescription for the medication ran out, the defendant found himself again falling into listlessness, lack of motivation and he began purchasing and using methlyamphetamine until his arrest.
The medical report, together with the submission, which was not challenged, that he had become reliant on the prescription drug, supports the conclusion that he became addicted to amphetamines as a consequence of having been prescribed dexamphetamine.
Prosecution appeals
The principles relating to the grant of permission to the Director to appeal against sentence are well established.[1] They were identified Doyle CJ in R v Nemer:[2]
The High Court has determined that the court should grant leave to the Director to appeal against sentence “only in the rare and exceptional case”: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299.
The result of the principles established by the High Court is that to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”: see The Queen v Osenkowski (1982) 30 SASR 212 at 212-213 King CJ; Everett at 300. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
[1] Everett v The Queen; (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227, 233; R v Osenkowski (1982) 30 SASR 212, 213; R v Nemer (2003) 87 SASR 169, 172-4.
[2] R v Nemer (2003) 87 SASR 169, 172.
In Green & Quinn v The Queen,[3] French CJ, Gummow and Kiefel JJ considered the approach of an appeal court when considering appeals against sentence. They said:
The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the “residual discretion”.
In Crown appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice. Relevant circumstances include consequential disparity relative to an unchallenged sentence imposed on a co-offender and delay in the appeal process which may be associated with disruption of the offender’s progress towards rehabilitation. In such cases it may be appropriate for a court of criminal appeal, in the exercise of its residual discretion, to dismiss a Crown appeal.
[Citations omitted.]
[3] (2011) 244 CLR 462, [1]-[2].
The majority observed that other circumstances may combine to produce injustice if a Crown appeal is allowed. Those circumstances include delay in the hearing and determination of the appeal, the defendant’s current situation, including his path towards rehabilitation, his employment situation, his family situation and other factors personal to him.
Even when a sentence is erroneously low, it does not follow that permission to appeal should be granted. If allowing the appeal and increasing a sentence or setting aside the suspension of the sentence comes at too high a cost in terms of justice to the individual, the application will be dismissed:[4]
Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re‑sentencing on progress towards the respondent’s rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.
[4] Green & Quinn v The Queen (2011) 244 CLR 262, [43].
Double jeopardy
The principle of double jeopardy has historically been taken into account by an appeal Court at all stages of the appeal process. However, Parliament has imposed restrictions upon the effect of the principle. Section 340 of the Criminal Law Consolidation Act 1935 (SA) provides:
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must –
(a)
impose the sentence that should have been imposed in the first instance;
and
(b) order that the sentence –
(i)will be taken to have come into effect on a date before the date of the order;
or
(ii)will take effect on a date on or after the date of the order.
Although s 340 has the effect of restricting the effect of the double jeopardy principles on the appeal against sentence, it has no effect on the antecedent question of whether permission to appeal should be granted. In R v Harkin it was held that:[5]
The second reading speech indicates that section 340 was designed to remove the issue of double jeopardy from consideration by the appeal Court. However, the words of the section make it clear that section 340 only imposes a duty on the Court at the point after the question of the grant of permission to appeal and the question of whether the appeal should be allowed, have been decided.
[5] R v Harkin (2011) 109 SASR 334, 342.
The appeal
The Director of Public Prosecutions seeks permission to appeal the sentences imposed upon the defendant on two grounds. First, that the sentence of imprisonment, non-parole period and fine imposed are manifestly inadequate in that they fail to:
(a)reflect the seriousness of the defendant’s criminal conduct;
(b)maintain adequate levels of punishment for offences of this nature; and
(c)reflect the need for general and personal deterrence.
Secondly, that the sentencing Judge erred in finding that good reason existed to suspend the sentences of imprisonment imposed.
Counsel for the Director does not assert that the Judge made any error of law, any fact finding error, took into account irrelevant considerations or failed to take relevant considerations into account.
It is submitted that the decisions since R v Mangelsdorf [6] stress that offences of trafficking in drugs are serious offences where general and personal deterrence are the prime considerations in the sentencing process.
[6] (1995) 66 SASR 60.
It is further submitted that where the offending involves commercial trading or dealing in the drugs dealt with by section 32, a suspended sentence will only be justified in truly exceptional cases.
Counsel contends that where offences are committed against a background of admitted similar conduct then that is a relevant consideration as to what leniency can be extended to an offender[7] and that it has been held to be relevant to the ‘consideration of whether the sentence imposed should be suspended.’[8]
[7] R v Godfrey (1993) 69 A Crim R 318, 322; R v Peel [2009] SASC 280, [34]-[39].
[8] R v Peel [2009] SASC 280, [38].
Counsel for the Director submits that the defendant’s offending was not isolated and was substantially above that of a street dealer selling to fund his own habit. The defendant admitted to police that the $13,015 found in the lunch bag was the proceeds of selling drugs over a period of about one month. He was found with resealable bags, a set of scales and quantities of both methylamphetamine and cocaine. Counsel contends that, given that the defendant estimated having a $1,000 per week drug habit, the fact that the defendant’s proceeds from selling drugs for one month was around $13,000, the Court should infer that the defendant was not just selling drugs to support his own habit. Counsel also points to the defendant’s admission to police that he bought larger quantities of the drugs, cut them down and then sold them to support his submission that defendant’s conduct could be described as deeply involved in the sale of drugs.
Counsel submits that the statement of David J, with whom Duggan and Vanstone JJ agreed, in R v Hensel is apposite:[9]
Counsel for the appellant now argues that a combination of the very early plea of guilty, the appellant's good record, his age at the time and his determination to rehabilitate himself as described by his counsel are all matters which, even if no mistake has been made in the sentencing process, nevertheless the decision not to suspend the sentence amounts to appealable error.
There is a great deal of substance in those submissions. However, the sentencing Judge was concerned, quite rightly, with the trafficking of a serious drug such as ecstasy on the street. Although it is agreed that it was not done purely for profit, nevertheless profit was made and that profit on the appellant's submissions financed his habit. The sentencing Judge was concerned that this offence was not isolated, that street level trafficking of ecstasy is serious and prevalent and, of course, that the drug is harmful and the effect of drug trafficking in the community is serious.
In my view his discretion not to suspend the sentence has not been exercised erroneously even though a different sentencing Judge may have taken a more lenient view.
[9] [2010] SASFC 78.
Counsel for the defendant submits that the defendant’s addiction, resulting from medical treatment, reduced the defendant’s degree of moral responsibility. That circumstance alone, it is submitted, is a sufficiently exceptional mitigating factor which justifies the conclusion that good reason existed to suspend the sentence.
Counsel submits that when regard is had to the defendant’s cooperation with the police, his plea of guilty and genuine contrition, the fact that he is in long-term employment and his conduct since arrest in rehabilitating himself, those matters are compelling reasons for the appeal court not to interfere with the sentence. The defendant is currently employed and supporting his family. His employer and other members of the community speak highly of him and are prepared to assist him in his rehabilitation. To now require him to serve a prison sentence will cause hardship to the defendant and his family. His prospects of rehabilitation will be reduced if faced with the stress of now having to serve a sentence of imprisonment.
Discussion
I have stated the approach the Court should take to the decision of Mangelsdorf in the case of Kong[10]. I do not repeat my comments, nor do I repeat my general remarks about penalties for drug offences.
[10] [2013] SASCFC 15.
The penalties for any offences must reflect the attitude of the community, that drug dealing is extremely serious and the punishment must fit the crime. The observations of Doyle CJ in Mangelsdorf are just as relevant today as they were when they were made. Doyle CJ said:[11]
This Court has established standards for the punishment of crimes of the type dealt with by the Judges in the cases the subject of the present application. The Court has referred time and again to the severe penalties imposed by s32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs. The Court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s32.
[11] (1995) 66 SASR 60, 63 and 66.
...
In my opinion, a lesser sentence than the standards of punishment established by the cases referred to will be justified only by circumstances which are out of the ordinary. In the case of street trading offences, it is clear that matters such as previous good character, addiction and detection with relatively small quantities of the drugs are not matters out of the ordinary. It is also necessary to bear in mind that the importance of deterrence in such cases will often lead to less weight being given to circumstances personal to the offender than otherwise might be given.
On the other hand, it is always open to a sentencing judge to impose a merciful sentence in the appropriate case. The sentences in this case were very low. Nevertheless, there were compelling reasons to support a merciful approach. The defendant was dependent upon amphetamine, which is a highly addictive drug. His dependence was as a result of being exposed to the drug as part of a treatment program prescribed by a medical practitioner.
It is to be distinguished from the more common case of a person who has become dependent upon drugs, having always used illicit drugs illegally. Although many cases invoke sympathy because of the circumstances in which a person became addicted, those cases are to be distinguished from this case. The defendant’s increased tendency towards illicit drug taking was not initially as a result of his own choosing.
In Talbot v The Queen,[12] the defendant committed one count of attempted armed robbery and one count of armed robbery, both committed upon chemist shops. The defendant was addicted to pethidine. His addiction developed consequent upon medical treatment he had received for abnormal pain. The defendant was aware of his addiction and had attempted on several occasions to overcome it. After he was injured in an accident and admitted to hospital, he was treated with the drug. The treating doctor was unaware of his prior addiction. The defendant again became addicted. Prior to the offending, he was craving for pethidine. In each case, the defendant threatened a pharmacist with a pistol in order to obtain pethidine. Jenkinson J, with whom O’Loughlin and Higgins JJ agreed, said:[13]
What in my opinion justifies the denial to the addict of leniency in recognition of the relative strength of his temptation to obtain his drug by armed robbery are on the one hand the magnitude of the community's need of protection from that offence and on the other hand the moral and legal fault which originated the addiction.
...
But evaluation of moral culpability remains in my opinion as fundamental to our system of punishment for crime as evaluation of the degree of harm caused or threatened by the criminal act or actor.
...
The degree of moral responsibility of the appellant for the offences, in comparison with the moral responsibility of offenders of the kind King CJ and Crockett J had in mind, was in my opinion an exceptional mitigating circumstance which made it permissible for the sentencing Judge to abstain from a sentence of imprisonment. He erred, in my opinion, in failing to recognise that material circumstance.
[12] (1992) 34 FCR 100.
[13] (1992) 34 FCR 100, 105.
The case was considered in Douglas v R. The Court, von Doussa, Higgins and Nicholson JJ, observed: [14]
It is, of course, not a mitigatory factor that a person commits crime to feed a drug addiction. However, that is not a principle of universal application...the moral and legal fault for the acquisition is to be considered...
[14] Douglas v R (Unreported) Federal Court of Australia BC9507618, 3.
Later in the judgment, they said:[15]
The age of an offender when he or she became addicted and the degree of judgement open to them at that age is thus relevant in evaluating the extent to which they should be punished for consequential criminal conduct.
[15] Douglas v R (Unreported) Federal Court of Australia BC9507618, 4.
In circumstances where a person develops an addiction to a prescribed medication as a result of a course of medical treatment and commences purchasing and using illicit analogues of such medication, that, in my opinion, is a relevant factor to consider in determining the appropriate sentence. The addiction is not consequent upon any voluntary decision made by that person and that is relevant to his or her moral culpability.
The Judge considered good reason existed to suspend the sentence. Although it is a rare case in which drug trafficking will result in a suspended sentence, it was open to the Judge in this case to conclude that the sentence should be suspended. The circumstances called for a sympathetic and merciful approach. The defendant has good prospects of rehabilitation if he maintains treatment which has been recommended. To now require the defendant to serve a sentence of imprisonment would mean that his path to rehabilitation would be disturbed. I can see no good reason to disturb his rehabilitation. He has demonstrated that he is motivated to do so. Further, even if the sentences are reasonably lenient, it does not follow that this Court will interfere with the sentence.
Having regard to the principles stated in Green & Quinn v The Queen[16] referred to earlier, I consider that this is not a rare and exceptional case justifying interference by this Court. The sentences, while merciful, were not so inadequate as to shake public confidence in the administration of justice. I am of the opinion that no error has been demonstrated to justify interfering with the Judge’s discretion to suspend the sentence.
[16] (2011) 244 CLR 462.
I would refuse permission to appeal.
DAVID J: I would refuse permission to appeal.
I consider that the sentence imposed by the sentencing Judge was lenient if not inadequate. I agree with the Chief Justice that the respondent’s addiction can be given limited weight in the sentencing process. However, I also agree with the Chief Justice that, in the circumstances of this case, to grant permission to appeal would amount to an undue hardship for the reasons given by the Chief Justice.
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