R v Schaefer & Schiworski - [2006] SASC 348

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SCHAEFER & SCHIWORSKI
[2006] SASC 348
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice White)
21 November 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appellants convicted of two counts of taking part in the manufacture of a drug of dependence – appellants and two others took part in the manufacture of methylamphetamine on two occasions – disputed facts hearing as to commercial purpose – trial judge found that manufacture on both occasions was for a commercial purpose and sentenced on that basis – whether finding of commerciality was open on the facts – whether judge erred in failing to suspend sentence of appellant Schiworski.
Held: finding of commerciality open on facts as found – sentences not manifestly excessive – no error in failing to suspend the sentence of the appellant Schiworski – appeals dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Anderson v The Queen (1993) 177 CLR 520; R v Adamai (1999) 51 SASR 229; R v Carpentieri (2001) 81 SASR 164, applied.
R v Schwabegger [1998] 4 VR 649, discussed.
R v Todd [1982] 2 NSWLR 517; R v P (2003) 87 SASR 287; Duncan v The Queen (1987) 9 A Crim R 354; Kernich v DPP (Cth) (1997) 68 SASR 454; R v Whyte (2004) 7 VR 397; R v Suckling (1983) 33 SASR 133; R v Hathaway [2005] NSWCCA 368; R v Mangelsdorf (1995) 66 SASR 60; R v Wirth (1976) 14 SASR 291; Bates v Police (1997) 70 SASR 66; R v Ivic [2006] SASC 8, considered.

R v SCHAEFER & SCHIWORSKI
[2006] SASC 348
Court of Criminal Appeal: Doyle CJ, Anderson and White JJ

DOYLE CJ: I would dismiss the appeals. I agree with the reasons given by White J.
ANDERSON J I would also dismiss the appeals. I agree with the reasons given by White J.
WHITE J: Each of the appellants was convicted by a judge, sitting without a jury, on two counts of taking part in the manufacture of a drug of dependence. The prosecution case was that on 4 July 2001 and 2 August 2001 the appellants had taken part, with two others, in the manufacture of methylamphetamine. After a disputed facts hearing, the judge found that on each occasion the manufacture of the methylamphetamine had been for a commercial purpose and he sentenced the appellants on that basis.
Using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), the judge sentenced each of the appellants to imprisonment for three years and fixed a non-parole period of 12 months. He declined to suspend those sentences.
The appellants submit that their respective sentences are excessive because it was not open to the judge to find that the manufacture of the methylamphetamine had been for a commercial purpose. The first appellant, Mr Schiworski, contends, in addition, that the judge erred in failing to suspend his sentence. Although Mr Schiworski was also granted leave to appeal on the ground that his sentence, even in the event that the finding of commerciality was upheld, was excessive, that ground of appeal was not pursued at the hearing.
Background to the Offences
In mid 2001, Mr Schiworski wished to manufacture methylamphetamine using the hypophosphorous method. Although he had a substantial amount of the necessary equipment and access to the several of the necessary ingredients, he did not have hypophosphorous acid, nor experience in the manufacture of methylamphetamine. He was put in contact with a person described by the judge as “P”. P agreed to assist Mr Schiworski.
P was well experienced in the manufacture and distribution of methylamphetamine. Unbeknown to the two appellants he was also, in mid 2001, a police informant. P assisted the two appellants and a third man, Mr Brown, on 4 July 2001 and 2 August 2001 to manufacture methylamphetamine at the property of the second appellant, Mr Schaefer. P provided his assistance in his capacity as a police informant and as part of a police undercover operation.
Although a substantial attack was made upon the credibility and reliability of P’s evidence, the judge accepted his evidence generally and, in particular, for the purposes of his findings following the disputed facts hearing.
The judge found that in the period between 30 May 2001 and 2 July 2001, Mr Schiworski met P on seven separate occasions in connection with arrangements for the manufacture of methylamphetamine. At the first meeting, Mr Schiworski expressed interest in manufacturing amphetamines with P and another person named Barrett. Mr Schiworski told P that he could obtain all that was required for the manufacture, other than the hypophosphorous acid. A second meeting occurred six days later at which both Mr Schiworski and Mr Schaefer were present. Mr Schaefer was introduced to P as a “business associate”. At this meeting, Mr Schiworski reiterated, in the presence of Mr Schaefer, that he could obtain all of the equipment and chemicals required except the hypophosphorous acid which P would have to procure. There was some discussion of a suitable location for a laboratory. This was the only meeting of P and Mr Schiworski (prior to 4 July 2001) which was also attended by Mr Schaefer. Although P gave evidence that at this meeting Mr Schiworski discussed “dividing up the proceeds, the profits from the cooking” and suggested “a 4-way split” it is unclear whether the judge relied upon that evidence for his finding of commerciality. In any event, Ms Mealor, who appeared for the respondent, did not seek to uphold the finding of commerciality by reference to that evidence.
It is not necessary to record in detail the judge’s findings as to what took place at each subsequent meeting. All of the meetings with P took place at locations in Adelaide’s northern suburbs or on its northern outskirts. In general, Mr Schiworski reported to P on his progress in obtaining the requisite equipment, his difficulties in obtaining some of the ingredients, his concerns about the reliability of Mr Barrett and the fact that he had obtained a suitable location for the laboratory. On 2 July 2001, arrangements were made for the manufacture (“the cook”) of methylamphetamine to take place on 4 July 2001. P informed the police of his various discussions with Mr Schiworski as well as the arrangements which he had made with him at each of the meetings.
On 4 July 2001 P, taking with him a bottle of hypophosphorous acid given to him by the police, met Mr Schaefer and Mr Brown at Hamley Bridge. P then followed them in his vehicle to Mr Schaefer’s property near Owen. The cook took place in a shed on the property. Mr Brown performed the role of a lookout and was given a mobile telephone by Mr Schiworski for the purpose. It was evident to P when he entered the shed that the process of extracting pseudoephedrine from pharmaceutical products had commenced prior to his arrival. With the assistance of Mr Schiworski, P assembled the laboratory equipment. Mr Schiworski and Mr Schaefer continued with the pseudoephedrine extraction process. At one stage P said that a pH meter was required and Mr Schaefer left the property to obtain it. P, together with Mr Schiworski, attended to the remaining aspects of the manufacturing process. That process included, at one stage, the use of acetone. It was found that there was insufficient acetone and Mr Schaefer again left the property so as to obtain more.
Once the methylamphetamine powder had been obtained, the final stage involved “cutting” it by mixing it with other substances. The resulting product was split equally between the participants. P provided his share to the police. It weighed 3.5 grams. Analysis revealed 0.77 grams of pure methylamphetamine.
A second cook took place on 2 August 2001. Between 4 July 2001 and 2 August 2001, Mr Schiworski had been in telephone contact with P several times. Mr Schiworski discussed with P the possibility of obtaining 100 grams of pseudoephedrine. The evidence showed that that amount of pseudoephedrine could be converted into 200 grams of methylamphetamine. However, Mr Schiworski had difficulty in obtaining pseudoephedrine of that quantity.
The circumstances of the cook on 2 August 2001 were similar to those on 4 July 2001. Pseudoephedrine had been extracted from pharmaceutical products prior to P’s arrival at the property. Each of P, Mr Schiworski and Mr Schaefer participated in the cook in the shed while Mr Brown again performed the role of a lookout. Mr Schaefer and Mr Schiworski engaged in the extraction of pseudoephedrine and P attended to the reflux and steam distillation phases of the operation. When the steam distillation process was completed, Mr Schiworski applied acetone to some of the purified methylamphetamine oil which had been created and then dried the resulting product on a glass plate in a microwave oven. Some oil remained undried. At about this time, P left the property. Later that day the police entered the house and arrested each of Mr Schiworski, Mr Schaefer and Mr Brown.
In the laboratory in the shed, the police found a bowl containing residues of methylamphetamine and pseudoephedrine and a round bottomed flask containing a crude methylamphetamine solution. The contents of the flask in powder form weighed approximately 2.4 grams of which 0.24 grams was pure methylamphetamine. There was evidence that 1.2 grams of pseudoephedrine would have been required to produce that amount of methylamphetamine. In addition, a metal scraper and a bottle, each with residues of methylamphetamine and pseudoephedrine was found. A solution of ethanol and pseudoephedrine in a bottle, suitable for extraction purposes, was also found. If the cook had continued, that solution could have produced one half to 1 gram of methylamphetamine.
During each of the two cooks, a radio scanner owned by Mr Schaefer was used to monitor police radio communications.
The Findings of the Judge
The judge was satisfied that each of the appellants took part in the manufacture of methylamphetamine for commercial distribution. The judge accepted (correctly) that the existence of a commercial purpose was a circumstance of aggravation and reached his conclusion after applying the criminal onus.[1]
[1] Anderson v The Queen (1993) 177 CLR 520.
The judge rejected a defence submission that the prosecution evidence was just as consistent with manufacture for personal use. The judge rejected a submission by Mr Schiworski that his role had been merely that of assisting P in locating a site at which P could carry out his manufacture. He also rejected a submission by Mr Schaefer that his role had been simply that of providing the property at which the manufacture had been carried out.
The Purpose of Mr Schiworski
Mr Lister, who appeared for Mr Schiworski, submitted that a finding of a commercial purpose was not open on the evidence. He repeated the submission which had been made to the judge, namely, that the evidence was just as consistent with manufacture for private purposes and perhaps for the purpose of Mr Schiworski obtaining experience in the manufacture of methylamphetamine. Mr Lister emphasised the small amount of methylamphetamine which was in fact manufactured and the fact that if he had been so minded Mr Schiworski could, in the period between 4 July 2001 and 2 August 2001, have purchased greater quantities than he had of Sudafed and other pharmaceutical products from which to extract pseudoephedrine. The fact that he had not indicated, it was said, the limited purpose of the enterprise.
Although satisfied that each appellant was also motivated to commit the offences so as to acquire methylamphetamine for his own use, the judge considered other factors indicated a commercial purpose to the operation. The judge found that relatively smaller amounts of methylamphetamine had been produced at each of the two cooks only because Mr Schiworski had experienced difficulties in obtaining pseudoephedrine in larger quantities. The chemicals located in the shed by the police on 2 August 2001 included 2 kg of granulated iodine. The judge accepted evidence that, with a sufficient quantity of the other necessary chemicals, 2 kg of iodine could be used to produce 600 grams of methylamphetamine.
The judge accepted that each of Mr Schiworski and Mr Schaefer was a minor user of methylamphetamine only. He thought it implausible that the two appellants would have gone to so much trouble in assisting P to the extent that they did, with all the attendant risk of detection and prosecution, simply to obtain relatively small amounts of methylamphetamine for personal use. Mr Schiworski, in particular, showed remarkable persistence; seven separate meetings with P prior to the first cook and all of them some distance from his home and workplace in the Barossa Valley. In addition, Mr Schiworski organised the supply of equipment and chemicals and arranged for the use of Mr Schaefer’s property. Not only was he present on each occasion, he spent several hours actively assisting P in the manufacture of the methylamphetamine.
In my opinion, it was open to the judge to reason from the circumstances of the offending which I have outlined and, in particular, the trouble taken by Mr Schiworski, and his persistence, that he was doing much more than the manufacturing of amounts for his own use. In addition Mr Schiworski participated, with the others, in the “cutting” of the methylamphetamine produced on 4 July 2001 by mixing it with other substances. It is a matter of notoriety that substances like pure methylamphetamine are commonly mixed with other substances so as to increase the amount available for sale. Cutting for that purpose is not necessary in respect of pure methylamphetamine intended by a manufacturer for his own use. It is also to be noted that the judge accepted P’s evidence that at his first meeting with Mr Schiworski on 30 May 2001, Mr Schiworski had suggested that he and P become involved in other drugs including marijuana and cocaine.
In all these circumstances, I do not consider that it was not open to the judge to conclude, beyond reasonable doubt, that Mr Schiworski was engaged in the manufacture of methylamphetamine for a commercial purpose.
Mr Lister also submitted that the judge had applied the civil onus in reaching his determination as to Mr Schiworski’s purpose. That submission was not developed by Mr Lister. I have not been able to find any support for it in the judge’s reasons following the disputed facts hearing. On the contrary, the judge explicitly noted that it was the criminal onus which had to be applied and expressed his conclusion by reference to that onus. There is no reason to suppose that despite that direction to himself, the judge did not apply that onus.
The Purpose of Mr Schaefer
Mr Retalic, who appeared for Mr Schaefer, submitted that the trial judge had not distinguished Mr Schaefer’s circumstances from those of Mr Schiworski. He had instead, in Mr Retalic’s submission, treated the evidence against them as common without identifying the evidence which was admissible only against Mr Schaefer and considering it separately from that which was admissible against Mr Schiworski.
The judge considered Mr Schaefer’s participation in each of the two cooks to have been significant. Whilst accepting that Mr Schaefer had attended only one meeting with P before 4 July 2001, he noted that Mr Schaefer had supplied his premises, as well as his power and water for the purposes of the laboratory and that he had been actively involved in assisting P on each occasion. He had arranged for Mr Brown to act as a lookout. Mr Schaefer had been sufficiently concerned about security to use his scanner to monitor police radio communications whilst the two cooks were taking place. During each of the two cooks Mr Schaefer brought water to the laboratory for use in the manufacturing process. He assisted actively on both occasions in the process of extracting pseudoephedrine from the pharmaceutical tablets. As already noted, on the first occasion he left the property on two occasions, once to obtain a pH meter, and once to obtain more acetone. He supplied a microwave oven and an electric fan to speed up the processes of drying the extracted pseudoephedrine. Mr Schaefer participated with Mr Schiworski in the cutting of the product after the completion of the first cook. The judge considered it implausible that Mr Schaefer would have gone to this amount of trouble, again with the attendant risks of detection and prosecution, if it was only for the purpose of obtaining a small quantity of methylamphetamine for personal use.
It is true that in expressing his conclusion that neither Mr Schiworski nor Mr Schaefer would have gone to so much trouble in order to obtain only a small quantity of methylamphetamine, the judge seems to have thought that the value of the amount which was obtained by them individually on 4 July 2001, and which would have ultimately been obtained on 2 August 2001, would have been of the order of $50. The judge was mistaken about this. The evidence suggested that the value of the individual shares of the methylamphetamine produced on each occasion was about $200, or slightly higher. However, I do not consider that that undermines the judge’s reasoning. I consider it implausible that either of the two appellants would have gone to so much trouble (and particularly, in the case of Mr Schiworski, expense) for such small amounts of methylamphetamine if it was only for personal use.
I do not accept the submission that the judge did not distinguish appropriately between Mr Schiworski and Mr Schaefer. It is true that in much of his reasons, the judge referred to evidence of the two appellants, and to the submissions made on their behalf, without identifying the use to which the evidence could be put in relation to each. However, reference to the evidence and submissions in that way was inevitable. In some respects the two appellants had run a common defence. In many respects the evidence which each gave about events was similar. It was natural therefore for the judge to address evidence and submissions of that kind in a composite way. However, in the section headed “Findings” in the judge’s reasons following the disputed facts hearing, the judge explicitly considered separately the cases against the two men. He identified separate aspects of their participation upon which he relied. That belies the submission that the judge failed to consider the case against Mr Schaefer separately and, in particular, the submission that he did not have regard, in considering the case against Mr Schaefer, only to the evidence which was admissible against him.
Finally, Mr Retalic submitted that the judge erred in not likening Mr Schaefer’s position to that of Mr Brown. The judge was satisfied that Mr Brown had acted as a lookout both on 4 July 2001 and 2 August 2001 and that he had done so either as a participant in a joint enterprise or at the very least, as an aider and abettor to Mr Schiworski and Mr Schaefer. The judge accepted, however, that Mr Brown’s role was peripheral and that he had been hired to keep watch for the others in exchange for a small amount of money or drugs for his own use. On the judge’s findings, Mr Schaefer’s involvement was much more active, and therefore significant, than that of Mr Brown. He was involved in the manufacturing process in the laboratory himself. On two occasions he went to acquire materials required for the first cook. In addition, he provided his property, power and water as well as taking arrangements by the use of his scanner, to ensure the security of the operation. In my opinion the judge did not err in not treating Mr Schaefer’s offending as similar to that of Mr Brown.
The Suspension of the Sentence on Mr Schiworski

As already noted, the judge sentenced each of Mr Schiworski and Mr Schaefer to imprisonment for three years and fixed a non-parole period of 12 months. The judge described that non-parole period as low. He declined to suspend either of the sentences. Mr Schiworski appeals against the non-suspension of the sentence.
The judge regarded the offences as being serious. They were not impulsive acts but were committed only after a considerable amount of planning and persistence by mature men. Each offence carried a maximum fine of $200,000 or imprisonment for 25 years, or both. The judge considered that both general and personal deterrence were significant factors and personal factors of less significance. While noting the personal circumstances of each of the appellants which were favourable to them, the judge said that he regarded the gravity of their conduct as outweighing those factors.
Mr Lister’s submission that the judge had erred in refusing to suspend Mr Schiworski’s sentence rested on the personal circumstances of Mr Schiworski and circumstances associated with his prosecution rather than on the circumstances of the offending. Apart possibly from the fact that in the circumstances which happened only relatively small amounts of methylamphetamine were produced, there was nothing in the circumstances of the offending which was mitigatory.
Mr Schiworski is now aged 45, married and with four children, the oldest of whom is 13. The evidence before the sentencing judge showed that Mr Schiworski was generally regarded as being a hard working and responsible member of his Barossa Valley community. The judge was told that he was very conscious of the disgrace which he has brought not only upon himself but onto his family. Since the offending in 2001, he has suffered a low back injury which has partly disabled him. It seems that this injury prevents him from returning to his previous work as a security officer at a hotel, but his convictions have meant that he has, in any event, lost his security agent’s licence.
Mr Lister emphasised these matters and in addition, the time which has elapsed since the offending, the effect of Mr Schiworski’s imprisonment on his young family, the fact that the offences were committed in the course of an unlawful police undercover operation, and a comparison of his sentence with that imposed upon P.
Delay
The appellants were committed for trial in April 2002. The matter was initially listed for trial on 4 August 2003 but that was later changed to 7 October 2003. Unfortunately, on 7 October 2003, no court was available and the matter had to be adjourned. The trial commenced some 11 months later on 13 September 2004. There was then a lengthy voir dire hearing. The judge delivered his ruling on the voir dire on 17 December 2004. On 3 February 2005 the appellants sought trial by judge alone. That trial commenced on 4 July 2005. The judge delivered his verdict on 9 August 2005. There was then a dispute about the basis upon which the appellants should be sentenced. The disputed facts hearing commenced on 10 October 2005 and proceeded over a number of days. The judge delivered his ruling on that dispute on 23 June 2006. The appellants were eventually sentenced on 17 July 2006. Mr Lister submitted that the lapse of five years between arrest and sentence with the concomitant anxiety and disruption to Mr Schiworski’s life which it had produced was itself a form of punishment which had not been taken into account by the sentencing judge. He referred to R v Schwabegger[2] in which Vincent AJA said:
[T]here is, in my opinion, a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the court, on the other. For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be attained. Additionally, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion.[3]
Relying on this passage, Mr Lister submitted that the elapse of five years in this case should have been regarded as mitigatory.
[2] [1998] 4 VR 649.
[3] Ibid at 659-60.
A lengthy lapse of time between the commission of an offence and the time of sentence can be relevant in a number of ways. It may give the offender an opportunity to demonstrate rehabilitation[4] or to embark upon a course of rehabilitation which the sentencing court considers should not be interrupted.[5] The uncertainty and anxiety which a long period without determination of the offender’s fate entails is also a relevant consideration.[6] When the delay is attributable to conduct of the prosecuting authority, or to the system of administration of justice, the anxiety and uncertainty which the offender has experienced may be particularly important and considerations of personal and general deterrence may become less significant.[7] In general, it is thought that a sentence for a stale crime calls for a measure of understanding and flexibility of approach.[8] Different considerations may apply when the delay in the reporting of the offence, as in many cases of unlawful sexual intercourse, is attributable to the effect of the offender’s conduct upon a victim.
[4]    R v Todd [1982] 2 NSWLR 517 at 519-20; R v P [2003] SASC 428 at [79]; (2003) 87 SASR 287 at 299 per Perry J.
[5]    Duncan v The Queen (1987) 9 A Crim R 354 at 356-7.
[6] Ibid.
[7]    R v Schwabegger (1998) 4 VR 649; Kernich v DPP (Cth) (1997) 68 SASR 454; R v Whyte [2004] VSCA 5 at [25]; (2004) 7 VR 397 at 404-5 per Winneke P.
[8]    R v Todd [1982] 2 NSWLR 517 at 519-20 per Street J; R v Suckling (1983) 33 SASR 133 at 137 per Legoe J; R v Hathaway (2005) NSWCCA 368 at [42] per McClellan CJ at CL.
The present case is quite unlike that considered in Schwabegger, upon which Mr Lister relied. In that case the offender was being sentenced in 1997 for taxation offences committed between 1984 and 1988 and for which, despite having been detected by the taxation authorities by at least 1991, he had not been charged until 1997. In this case there was no delay between the time of the offending and the laying of the charges. Much of the lapse of time since 2001 is attributable to the not guilty pleas by Mr Schiworski and his co-accuseds and, when found guilty, to the dispute as to their commercial purpose. It is true that the criminal justice system produced some delays, for example, between the committal and the initial trial listing, and the delay which occurred when the trial was not reached on 7 October 2003. But the trial (insofar as it concerned Mr Schiworski) was necessary only because Mr Schiworski pleaded not guilty to offences of which he was ultimately found guilty. This does not mean that the total lapse of time is irrelevant, but it is sufficient to indicate that this case is quite different from those in which the delay is not attributable at all to the offender.
The judge did not overlook the significance of the delay. He accepted that the lawful and productive life led by Mr Schiworski since 2001, and particular aspects of his conduct since that time, did suggest rehabilitation and were mitigatory factors. The judge thought, however, (correctly in my opinion) that the strength of these mitigatory factors was reduced to some extent by the plea of not guilty and by the absence of any meaningful expression of contrition or remorse. The judge said expressly, however, that he did take account of Mr Schiworski’s good behaviour since 2001. He also said that he took account of the anxiety which Mr Schiworski and his family must have experienced by reason of the delay in the finalisation of the matter. I am unable to detect any error in the judge’s consideration of the significance of the lapse of time.
The Effect on Mr Schiworski’s Family
Section 10(1)(n) of the Sentencing Act provides that a sentencing court should have regard to the probable effect any sentence under consideration would have on dependants of the defendant.
In relation to the emotional and financial hardship which Mr Schiworski’s family would experience in consequence of imprisonment the judge said:
The law is clear that the fact that the imposition of imprisonment upon an offender is likely to cause hardship is not, absent exceptional circumstances, a mitigating factor. I do not consider that your circumstances, and those of your family, justify a departure from the general principle.
Mr Lister submitted that there is nothing in s 10(1)(n) which limits consideration of the effect on an offender’s dependants to exceptional circumstances and that the judge’s requirement that exceptional circumstances exist was an error of principle.
In R v Adami[9] Bollen J (with whom King CJ agreed) said that s 10(1)(n) had not effected any change in the existing law.[10] Bollen J said:
It has always been the law that the effect of a sentence of imprisonment on dependants is not normally to be taken into account in fixing the sentence. There is no doubt, of course, that the incarceration of almost anybody causes adverse effect, often financial, on dependants. Certainly it does for every married man, every father, who is sent to prison. If that were to be taken into account in the normal run of things there would be no complaints of overcrowding in our prisons. The court may take effect on dependants into account to ameliorate a penalty in exceptional cases.[11]
[9] (1999) 51 SASR 229.
[10] Ibid at 233. See also R v Mangelsdorf (1995) 66 SASR 60 at 70.
[11] Ibid at 232-3.
Some of the authorities on this topic were reviewed by Doyle CJ in R v Carpentieri.[12] After referring to a well-known passage in the judgment of Wells J in R v Wirth,[13] Doyle CJ (with whom Martin and Besanko JJ agreed) accepted a submission that:
…at common law and under the Sentencing Act, a court must have regard to the probable effects of a sentence on the dependants of the defendant. … However, the effect of the cases referred to is that ordinarily hardship to a dependant will not be a reason to mitigate or reduce a penalty, but in exceptional cases that hardship may be a reason to do so.[14]
[12] [2001] SASC 420; (2001) 81 SASR 164.
[13] (1976) 14 SASR 291 at 295-6.
[14] R v Carpentieri [2001] SASC 420 at [19]; (2001) 81 SASR 164 at 168. See also Bates v Police (1997) 70 SASR 66 at 69 per Perry J; R v Ivic [2006] SASC 8 at [33]-[34] per Gray J.
In the present case, Mr Lister emphasised the financial difficulties which Mr Schiworski’s wife would experience in single-handedly supporting their young family and meeting the mortgage payments on their house. In addition, Mr Lister emphasised the detriment to Mr Schiworski’s sons which the absence of his care and supervision at critical times in their lives would cause. All of these detriments are very real and one cannot help but have sympathy for the position of Mr Schiworski’s wife and sons. However, the judge was correct, in my opinion, in not regarding these detriments as being so much greater than might ordinarily be expected as to warrant suspension in this case.
The Police Undercover Operation
Mr Lister submitted that account should have been taken of the fact that these offences were committed in the course of an unlawful police undercover operation. The same submission was made to the sentencing judge. In relation to that submission the judge said:
As a matter of established sentencing principle, a sentence is not to be discounted merely because it was committed in the course of a police undercover operation. An offender is only entitled to a discount if it appears, as a reasonable possibility, that he would not have committed the offence had he not been talked into it by the police or their undercover operatives. As I said, when I delivered my ruling on the voir dire, I found that this is not a case where P or the police beguiled or seduced you to commit the crimes. You were merely provided with the opportunity to commit crimes which you were willing to commit.
The judge was correct both as a matter of principle and as a matter of fact. As already noted, it was Mr Schiworski who wished to manufacture methylamphetamine and who sought P’s assistance to that end. This was not a case of Mr Schiworski being induced to commit an offence which would not otherwise have occurred.
Parity with P
P was prosecuted for two offences of taking part in the manufacture of methylamphetamine. Both those offences were committed in early 2001 prior to him becoming a police informant. P apparently also has a history of prior offending. For those two offences, P was sentenced to imprisonment for six years and a non-parole period of 15 months. His sentence was suspended upon him entering into a bond to be of good behaviour for a period of two years. It seems that that sentence was considerably lower than it might otherwise have been because the sentencing judge in P’s case took account of a “letter of comfort” provided by the police relating to P’s assistance to them in relation to the offending of Mr Schiworski and his colleagues.
Mr Lister submitted that the absence of parity in the treatment of his client with P engendered a legitimate sense of unfairness. The judge rejected a submission to this effect at the time of sentencing. He noted that the circumstances of P’s offending were quite different and that, in any event, his assistance to the police meant that an application for the principles of parity did not arise. In addition, it is to be noted that P’s assistance to the police involved some danger to himself. In my opinion the judge was correct in refusing to accept that parity of treatment with P was required in this case.
Conclusion on Suspension
A decision to suspend or to refrain from suspending a sentence involves an exercise of discretion by the sentencing court. The circumstances in which an appellate court interferes with the exercise of discretion by a sentencing judge are limited. In my opinion, no error by the sentencing judge has been demonstrated. Nor do I consider that the various matters emphasised by Mr Lister, when considered in combination, indicate that the exercise of the discretion in this case miscarried. Despite the personal circumstances of Mr Schiworski which were mitigatory, the judge was entitled to regard the circumstances of his offending as being so serious as to make suspension inappropriate.
Conclusion
For these reasons, I would dismiss the appeals of each of the appellants