R v Richards - [2012] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RICHARDS
[2012] SASCFC 61
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Peek)
1 June 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS - GROUNDS FOR DISCRIMINATION BETWEEN CO-OFFENDERS - DEGREE OF CRIMINALITY
Appeal against sentence – the appellant pleaded guilty to six counts of taking part in the sale of a drug of dependence or a prohibited substance, contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA) – a Judge of the District Court of South Australia imposed a sentence of imprisonment of 11 years and two months reduced from 14 years on account of the appellant’s early plea of guilty, and fixed a non parole period of seven years.
The ground of appeal was that the sentence imposed was manifestly excessive – the issues put into contention to support that ground of appeal were: (1) whether the Judge made an appropriate allowance for the plea of guilty - whether the sentencing Judge made insufficient allowance for the appellant’s cooperation with the police; and (2) whether the Judge failed to differentiate adequately between himself and a co offender whose offending was more serious.
Held: (1) the circumstances that the plea of guilty came late, the prosecution case was overwhelming, and the level of cooperation with the police, supported the Judge’s decision not to make a further allowance for the plea of guilty – the allowance can not be said to be inadequate; (2) the sentence reflects adequately the circumstance that the co-offender’s offending was more serious than that of the appellant’s – the relationship between the sentence imposed on the appellant and that imposed on the co-offender could not give rise to any justified sense of grievance on the part of the appellant.
Appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(d), referred to.

R v RICHARDS
[2012] SASCFC 61
Court of Criminal Appeal: Doyle CJ, Nyland and Peek JJ

DOYLE CJ: Mr Richards appeals against a sentence imposed by the District Court, a Judge of this Court having granted him permission to appeal. Mr Richards was sentenced to imprisonment on six counts of taking part in the sale of a drug of dependence or a prohibited substance, contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA) (the CSA). Mr Richards had pleaded guilty to those charges. He was sentenced to imprisonment for 11 years and two months. A non-parole period of seven years was fixed. But for his pleas of guilty, and certain assistance provided to the police, the Judge would have sentenced him to imprisonment for 14 years.
Mr Richards now complains that the sentence is excessive. The first complaint is that the Judge made insufficient allowance for Mr Richards’ cooperation with the police, by providing certain information to them. Second, Mr Richards complains that the Judge failed to differentiate adequately between himself and Mr Millard, a co-offender whose offending was more serious. Mr Richards complains that the sentence imposed on him is too close to that imposed by another Judge on Mr Millard.
I consider that neither ground of complaint is made out. The sentence is within an appropriate range. The appeal should be dismissed. My reasons follow.
The offences
Mr Richards’ offences were committed in 2006. Mr Gee, an acquaintance of Mr Richards, was trafficking in illicit drugs in a very substantial way. Mr Gee was based in another State. Mr Millard was described by the sentencing Judge as “in the upper echelons” of the network set up by Mr Gee. Being known to Mr Gee, Mr Richards turned to him as a means of raising money to deal with some debts. He became involved in selling drugs for Mr Gee in a limited way. Then Mr Richards’ son became involved with Mr Gee, and incurred a substantial debt to him. To protect his son, Mr Richards undertook to discharge that debt. I mention here that I do not regard the circumstances in which Mr Richards became involved with Mr Gee as mitigating the seriousness of his offence. It is clear that he became a willing participant in Mr Gee’s network. Be that as it may, Mr Richards began to operate as a “middle man”, selling drugs to street level traders. He did not deal directly with the consumers of the drugs. The offences charged were committed over a three month period.
The offences comprised one count of taking part in the sale of cocaine, three counts of taking part in the sale of ecstasy, and two counts of taking part in the sale of methylamphetamine.
These offences were committed in the course of, and as part of, trading in a substantial way both by Mr Gee and by Mr Richards. In a statement to the police (AB93) Mr Richards said that at one stage he was turning over about $112,000 a week for Mr Gee. While Mr Richards is not to be sentenced for uncharged offences, this indicates the scale of the business in which he was involved. The quantity of drugs involved in each of the offences to which Mr Richards pleaded guilty was substantial. It is evident that Mr Gee trusted Mr Richards with a substantial quantity of drugs. I accept the submission by counsel for the Director of Public Prosecutions that the evidence supports a finding that Mr Richards actively pursued the drug trade, and showed no sign of reluctance to be involved.
Each of the offences to which Mr Richards pleaded guilty attracted a maximum punishment of imprisonment for 25 years or a fine of $200,000 or both. Each of the offences was an offence of a serious kind. Each offence involved a substantial quantity of drugs. Each of the offences was committed as part of a continuing course of dealing in a substantial manner.
Mr Richards was 61 years of age. He had had a disturbed childhood. He was not himself a user of illicit drugs. According to the sentencing Judge he was suffering from a number of psychiatric conditions, and will require ongoing psychiatric assistance or support. Mr Richards is a transsexual, and for this reason imprisonment is likely to be more burdensome to him.
Mr Richards has a lengthy criminal record, going back many years. Most of the offences are relatively minor, compared with the present offences. But the number of offences, spreading over four pages, is disturbing. Mr Richards has previously been imprisoned. He has not committed any serious drug offences before. There is no scope for leniency on the basis of his record.
The Judge noted that Mr Richards had provided the police with statements in relation to his drug dealing, and that in that way Mr Richards had cooperated with the police. The Judge noted that Mr Richards had pleaded guilty only about three weeks before his trial was due to commence. He described the case against Mr Richards as “overwhelming”, and that appears to be correct. The Judge did not treat the cooperation with the police as a matter substantially affecting the sentence to be imposed, saying “… you have not done anything which entitles you to any really significant credit”.
As previously noted, but for the pleas and cooperation the Judge would have sentenced Mr Richards to imprisonment for 14 years. In fact, he sentenced him to imprisonment for 11 years two months. That is a reduction of about 20 per cent. The Judge fixed a non-parole period of seven years.
It is not necessary to say much more about the offending itself. Mr Richards committed serious offences, in the course of a substantial commercial trading activity. As counsel for the Director submitted, and I agree, Mr Richards’ offending must have resulted in substantial profits for Mr Gee and others involved. What he did gave rise to the commission of many other crimes by other offenders, further down the line of distribution. This was very serious offending.
Consideration of appeal
The circumstance that the plea of guilty came so late in the piece, and the further circumstance that the prosecution case was overwhelming, supports the Judge’s decision not to allow “really significant credit” for the plea of guilty. There is no reason to think that the plea of guilty reflected remorse or contrition on the part of Mr Richards. All that can be said is that he has made a trial unnecessary.
As to the assistance provided by Mr Richards to the police, I again agree with the submission by counsel for the Director. The relevant statements were given to the police some four years after the offences were committed, and only after Mr Richards had been charged with an offence of attempted murder. Mr Richards said that he was willing to give evidence against Mr Gee, but only if he received an immunity from prosecution. That request for immunity was rejected. He later offered again to give evidence after he had pleaded guilty, but by then Mr Gee had absconded, and he still has not been found. Not surprisingly, this offer was rejected.
In all of the circumstances, the allowance of 20 per cent that the Judge made for the plea of guilty and for assistance provided to the police was an appropriate one. It cannot be said to be inadequate. I reject this complaint.
I turn now to Mr Millard, and the sentence imposed on him. The Judge described Mr Millard as “higher up” in the chain of distribution. I have considered the sentencing remarks of the Judge who sentenced Mr Millard.
Mr Millard pleaded guilty in May 2008, at an early stage of the proceedings against him. He pleaded guilty to 17 offences. In brief, they are three counts of taking part in the sale of amphetamine, three counts of taking part in the sale of methylamphetamine, one count of taking part in the sale of cocaine, one count of taking part in the sale of LSD and two counts of taking part in the sale of ecstasy. He was also charged on five separate counts of possessing for sale methylamphetamine, ecstasy, LSD, cannabis and cocaine. All but one of these offences attracted a maximum punishment of 25 years’ imprisonment or a fine of $200,000 or both. Mr Millard also pleaded guilty to two counts of possessing a firearm without a licence.
It is not surprising that the sentencing Judge described Mr Millard as “relatively high” in the network or system established by Mr Gee. The Judge commented that he was obviously “the trusted deputy of someone at or near the top”. The offences to which he pleaded guilty involved a substantial quantity of drugs. He was found to be in possession of a large amount of money. As is apparent from what I have said earlier, the network of which he became a willing part involved trading by Mr Gee and others in a very substantial way.
Mr Millard had become addicted to methylamphetamine, and was taking it while he was selling drugs. On the other hand, as the Judge noted he had no relevant prior convictions, and in that respect his record was in clear contrast to that of Mr Richards. He was 46 years of age. He also had had a difficult childhood. He had numerous health problems. He had taken steps to tackle his drug addiction.
The Judge sentenced Mr Millard to imprisonment for 10 years, and fixed a non-parole period of five years.
The Director of Public Prosecutions appealed against that sentence, and the appeal was allowed. The Court substituted a sentence of imprisonment for 15 years, and fixed a non-parole period of eight years. But for the pleas of guilty, the sentence would have been a sentence of 20 years’ imprisonment. The Court commented that the sentence was the minimum sentence justified.
Thus, Mr Millard’s sentence of 15 years’ imprisonment is to be compared with the sentence of 11 years, two months’ imprisonment imposed on Mr Richards. When considering the relationship between the two sentences, one must bear in mind, as a primary matter, the seriousness of the offending conduct of each of the two men. But there is no need for fine gradations as between offenders each of whom is heavily involved in an enterprise like this one, and involved at a level above that of street dealing.
I consider that the sentence imposed on Mr Richards is well within an appropriate range, and also reflects adequately the circumstance that Mr Millard’s offending was more serious than that of Mr Richards. There is nothing about the relationship between the two sentences that could give rise to any justified sense of grievance on the part of Mr Richards. Mr Millard’s non‑parole period of eight years, is to be compared with the non-parole period of seven years fixed in relation to Mr Richards’ head sentence. Once again, I consider that there is an appropriate differentiation, and that no justified sense of grievance could arise from the differentiation. Two factors in particular stand out as being relevant here. First, there is reason to think that Mr Millard’s prospects of rehabilitation are better than those of Mr Richards, bearing in mind the early pleas of guilty and the attempts at rehabilitation. Second, Mr Millard’s relatively minor record of offending also allowed scope for a relatively low non-parole period, as this was.
Reviewing the sentence as a whole, and its relationship to that imposed on Mr Millard, I consider that the sentence imposed on Mr Richards was within an appropriate range, that the Judge has made adequate allowance for the pleas of guilty and for cooperation with the police, and that the relationship between the sentence imposed on Mr Richards and that imposed on Mr Millard cannot give rise to any justified sense of grievance on the part of Mr Richards.
Conclusion
I would dismiss the appeal.
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by the Chief Justice.
PEEK J: I agree with the orders proposed by the Chief Justice and with his reasons.