R v Sarbu - [2010] SASC 157

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SARBU
[2010] SASC 157
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice David)
1 June 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ILLNESS OR PHYSICAL DISABILITY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against sentence - appellant charged in June 2004 with eight counts relating to sale and supply of heroin - charges dismissed in June 2005 - charges reinstituted in October 2007 - appellant pleaded guilty to four charges in July 2009 - sentenced in December 2009 to nine years imprisonment with a non-parole period of six years - whether judge gave adequate weight to the rehabilitation of the appellant between time the offences were committed and time he was sentenced - whether judge took into account the fact that the appellant's diabetes would not be adequately treated in the prison system.
Held: Judge properly weighed up appellant's behaviour during the period of delay and his rehabilitation with the seriousness of the offending - no suggestion that the appellant's diabetes could not be treated in the prison system - appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(d); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Craciun (2006) 94 SASR 173, applied.

R v SARBU
[2010] SASC 157
Court of Criminal Appeal: Vanstone, White & David JJ

VANSTONE J: I would dismiss this appeal. I agree with the reasons of David J.
WHITE J: I agree that the appeal should be dismissed. I also agree with the reasons of David J.
DAVID J: This is an appeal against sentence.
On 15 December 2009, the appellant was sentenced in the District Court to nine years imprisonment, with a non-parole period of six years. He had pleaded guilty to four counts of selling and supplying heroin between 10 April 2004 and 25 May 2004, contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA). The sentence was deemed to have commenced on 11 September 2009, the date that the appellant was taken into custody.
Charges and penalties
The appellant was originally charged on information with eight counts relating to the sale and supply of heroin.
The totality of the charges covered a period from 10 April 2004 until 25 May 2004. He eventually pleaded guilty in the District Court to four counts, namely three counts of taking part in the sale and supply of heroin and one count of taking part in the sale of heroin. There was no dispute before the sentencing judge that these counts were representative of an ongoing course of conduct in the months of April, May and June 2004, in which the appellant sold and supplied heroin to other people.
The sentencing judge imposed one sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). He imposed a notional head sentence of 11 years and six months, but reduced that to nine years to take into account the appellant’s pleas of guilty and the fact that he had already spent two months in custody. He set a non-parole period of six years imprisonment.
The appellant now argues that that sentence was manifestly excessive.
Facts
At the date of sentence, the appellant was 58 years of age. He was born in Romania, came to Australia in 1979, and is married with two adult children. He has a number of prior criminal convictions, the most relevant of which was a sentence of seven years imprisonment, with a non-parole period of three years, imposed in the District Court on 21 June 1996 for the offence of possessing heroin for sale.
At the appellant’s sentencing submissions, material was presented to the court indicating that he was suffering from a number of medical ailments.[1] In particular, it was put to the court that he was suffering from diabetes, which required ongoing medical treatment. Whether that ongoing medical treatment could be catered for properly in the prison system, and whether that is a factor that should be taken into account in the sentencing process, is a matter to which I will return.
[1] Medical report Dr P Frost, 8 December 2009.
On 8 April 2004, the police obtained warrants authorising interception of the appellant’s mobile phone service. Those warrants expired on 17 June 2004. During that period, the police intercepted many calls which indicated that the appellant and two other people, namely Harvey and Giselle Arnott (“the Arnotts”), were engaged in the distribution of heroin. The police also had warrants in relation to the Arnotts.
On 31 May 2004, the police arrested the Arnotts and they were charged with possessing heroin for sale but were released on bail. The appellant and the Arnotts continued to deal in heroin until 17 June 2004, when the Arnotts were again arrested and the appellant’s home was searched. In the appellant’s home the police found two electronic scales with heroin residue adhering to them, $11,135 in cash, numerous items of jewellery and computer equipment, and a list of names of people to whom he supplied heroin. He was arrested that day.
At sentencing submissions, the appellant’s counsel argued that the course of conduct of selling and supplying heroin was merely to feed the appellant’s habit and there was, in fact, no commercial gain. The sentencing judge, having looked at all the material and heard all the telephone intercepts, came to the following conclusion:
For these reasons, I intend to sentence you on the basis that the offences to which you pleaded guilty were committed in the context of a lengthy course of conduct that involved selling and supplying heroin for profit. Your business was extensive and involved you selling heroin directly to customers.
You also employed the Arnotts to sell heroin for you, or you sold them heroin that enabled them to conduct their own heroin-selling business. It is not possible to say how much money you made out of this illicit venture but the evidence and commonsense dictate that it must have amounted to thousands of dollars.
It should be understood that you are not to be punished for the uncharged offences that you committed. The significance of the context in which you committed those offences is that it eliminates any scope for leniency that might have been extended on the basis that the charged offences were isolated or impulsive crimes.
The context of your offending also eliminates any leniency that might have been extended on the basis that your motive was not to financially profit from distributing heroin beyond meeting the costs of your own use of the drug.
On appeal, there is no challenge to that finding.
After the appellant was arrested on 17 June 2004, the first information was filed on 18 June 2004. He was remanded in custody for two months. He was granted bail in the Supreme Court on 17 August 2004. On 1 June 2005, the Chief Magistrate discharged all charges against the appellant when the prosecutor conceded that there was no case to answer on the papers before the court. This was due to the failure by the prosecution to satisfy time limitations in the filing of declarations. As a result, the appellant was at liberty. The charges were reinstituted on 31 October 2007, and the appellant was granted bail. He was arraigned in the District Court, and pleaded guilty to the four charges on 8 July 2009 and was sentenced on 15 December 2009.
After the charges were dismissed in 2005, the appellant went to Romania. He returned from Romania to Adelaide, although he was aware that the charges might be reinstituted by the prosecution. It was put before the sentencing judge, as it is argued before this Court, that between the date of the offending until the date of sentence, a period of time of about five and a half years, the appellant had not been involved in either the use or distribution of heroin, had overcome his drug addiction and had re-established a truck driving business.
There is no dispute that the delay occasioned by the dismissal of the charges in 2005 and the reinstatement of them in 2007 was not the appellant’s fault.
Appeal
There is one ground of appeal, namely:
The head sentence and the non parole period are manifestly excessive.
PARTICULARS
1.The Learned Sentencing Judge failed to give adequate weight to the rehabilitation of the applicant in the intervening period between the time of the offences and the imposition of sentence.
2.The Learned Sentencing Judge failed to take into account the fact that the applicant’s medical condition, namely diabetes, would not be adequately treated in the prison environment.
3.The Learned Sentencing Judge erred in failing to take into account the effect of the applicant’s imprisonment upon his wife and finding that “…[She] is fortunate not to be sitting beside you in the dock.”
4.The sentence is excessive in all the circumstances.
Ms Geraldine Davison, who acted for the appellant on appeal, did not pursue the third particular, but relied upon the first two particulars as a basis for arguing that the sentence was manifestly excessive.
Ms Davison argues that not enough consideration was given by the sentencing judge to the actual rehabilitation of the appellant during the period between the dismissal of the charges by the magistrate until he was eventually sentenced. She also emphasises that much of that delay was due to the conduct of the prosecuting authorities. She emphasises that the charges against the appellant were dismissed by the magistrate on 1 June 2005, and from then until when they were reinstituted in the Adelaide Magistrates Court on 31 October 2007, the delay was unnecessary and not due to any fault on the part of the appellant. Ms Davison submits that during that period of time the appellant had gone to Romania to meet his family members and had been there for some time. She says he had recommenced a trucking business in about September 2008, and that helped him support his family in a meaningful way. He had also rid himself of drug addiction. She argues that the sentencing judge did not give enough weight to his rehabilitation during that period.
In his sentencing remarks the judge said the following:
Your counsel, Mr Gaite, pointed out that before the charges were reinstituted, you went to Romania and then returned to Australia, though you were aware that the prosecution might recharge you. He submitted that you deserve credit for that. He also submitted that you have stayed away from drugs since your arrest in relation to present offences and that you became involved in the trucking business again.
Further in his remarks the sentencing judge said:
I turn to the sentence to be imposed in your case. The courts have emphasised time and again that it is the duty of the courts to impose severe penalties as a means of deterring those who attempt to make money out of heroin dealing. Your involvement in the heroin trade was serious. You had a substantial network of customers. Your conduct was calculated and spanned several months. You had ample time to withdraw from this venture but pressed on, even after the Arnotts were first arrested.
Furthermore, you did not learn from your earlier experience when you were sentenced to seven years imprisonment. Your repeat offending reflects a complete disregard for the drug laws. However, I am prepared to accept that since your arrest, you have stayed away from the drug scene. This suggests that your prospects for rehabilitation may not be as bad as your record and the present offences suggest.
It is clear the sentencing judge took into account the behaviour of the appellant during the period of delay. The judge had the task of weighing up those factors with the seriousness of the crime and the fact that the appellant had served a term of imprisonment for exactly the same type of offending. He also had to take into account that this was a serious commercial enterprise and involved the type of behaviour which this Court has continually said requires a heavy penalty. As Doyle CJ said in R v Craciun:[2]
Over the 10 years or so since the decision of this Court in Mangelsdorf this Court and sentencing judges have said, time and again, that those who promote the trade in drugs and dealing in drugs can expect heavy penalties. Those who do so on a substantial scale can expect particularly heavy penalties.
[Citation omitted.]
In my view, the sentencing judge carefully and properly weighed up those matters personal to the appellant, including both his behaviour during the period of delay and his prospects of rehabilitation, against the seriousness of the offending. I can find no error.
[2] R v Craciun (2006) 94 SASR 173, 176 [29].
Ms Davison also argues that the sentencing judge has not given regard to the fact that there may be problems treating the appellant’s medical condition of diabetes whilst in jail. At sentencing submissions, the medical report of Dr Peter Frost of the South Australian Prison Health Services was tendered to the court. In the report Dr Frost said in relation to the appellant’s condition of diabetes: [3]
With respect [to] ongoing medical management:
1.Diabetes: Recommended management includes - appropriate dietary restrictions, regular exercise, compliance with medications, regular blood tests to monitor blood sugar control, and regular health checks looking for potential diabetic complications, including a specialist eye examination 2 yearly. Since admission: repeat blood tests confirmed poor diabetic control. His medication was changed accordingly. He will have 3 monthly blood tests as per standard guidelines. Tests reveal he may have early kidney disease secondary to diabetes – there is no specific treatment. Management involves keeping blood sugar, blood pressure, weight and smoking controlled. SAPHS informed Correctional Services of Mr Sarbu’s dietary requirements – unfortunately SAPHS has no control over what constitutes diabetic diets. SAPHS also has no control over Mr Sarbu’s freedom to exercise regularly. Mr Sarbu will see a medical practitioner every 3-4 months for a health check and blood tests. He will be referred to an Ophthalmologist for a routine eye examination if [he] hasn’t had one within the past 2 years.
Ms Davison argues that the sentencing judge did not take into account those difficulties when imposing sentence. In his sentencing remarks the judge said:
I have also taken into account a report from Dr Frost which summarises problems that you are expecting with your health, especially diabetes. However, it is clear from the report that there is no reason to believe that your problems cannot be appropriately monitored and treated in prison. This is not a case where it appears that imprisonment will be a greater burden on you by reason of your state of health or that there is a serious risk of imprisonment having a gravely adverse effect on your health.
I agree with the sentencing judge’s assessment of Dr Frost’s report. There is no suggestion that the appellant’s diabetes cannot be adequately treated in the prison system.
[3] Medical report Dr P Frost, 8 December 2009.
Conclusion
In my view, the sentence imposed is not manifestly excessive, bearing in mind the organised, continuous, and commercial nature of the enterprise of selling and supplying heroin to addicts in the community. The sentencing judge has properly taken into account the seriousness of the offending along with those matters personal to the appellant, including his health and rehabilitation.
I would dismiss the appeal.