R v Tassone - [2011] SASCFC 7

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TASSONE
[2011] SASCFC 7
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Anderson)
4 March 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - POSSESSION FOR SALE OR SUPPLY - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
Appeal against sentence - appellant convicted of possessing cannabis for purpose of sale - provision of premises for packaging for subsequent sale - assistance to nephew to avoid police detection - sentenced to imprisonment for four years and six months with non-parole period of three years.
Appellant appeals on ground that head sentence and non-parole period were manifestly excessive.
Discussion of the classification of the seriousness of certain illicit drugs and possible reclassification for sentencing purposes - whether Director of Public Prosecutions should provide evidence of effect of different drugs and danger to those who consume - consideration of appellant's circumstances and role - process of sentencing Judge in determining non-parole period - whether sentence should be suspended - appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(e), referred to.
R v George (2004) 149 A Crim R 38, applied.
R v Becker (2005) 91 SASR 498; R v Ford (2008) 100 SASR 94; R v Cramp (2010) 106 SASR 304; R v Beresford (1972) 2 SASR 446; R v Campbell [2007] SASC 203; R v Mangelsdorf (1995) 66 SASR 60; R v Famiglietti [2005] SASC 489, considered.

R v TASSONE
[2011] SASCFC 7
Court of Criminal Appeal: Gray, Sulan and Anderson JJ
THE COURT:

This is an appeal against sentence.
On 19 November 2010, the defendant and appellant, Tony Tassone, was convicted on his plea to the offence of possessing cannabis for the purpose of sale, contrary to section 32(1)(e) of the Controlled Substances Act 1984 (SA). He was sentenced to imprisonment for four years and six months. A non-parole period of three years was fixed. The Judge declined to exercise his discretion to suspend the sentence.
The quantity of cannabis exceeded ten kilograms. Accordingly, the maximum penalty for the offence is 25 years’ imprisonment and a fine of $500,000.00, or both. The defendant agreed to pay $100,000.00 in satisfaction of an application for forfeiture of his home at which the police located the cannabis.
Background
On 12 July 2007, police attended at the defendant’s premises. In a shed at the rear of the property, an associate of the defendant was observed to be in the process of heat-sealing bags of cannabis. The defendant was also engaged in packaging cannabis that day. Some cannabis had already been packaged. Other cannabis was in the process of being packaged. A total of approximately 17 kilograms of cannabis was found in the shed.
The defendant’s associate was carrying $21,100.00 cash and the defendant had approximately $4,200.00 cash. Another amount of $500.00 cash was found in the shed.
During the police search, the police located hydroponic equipment with its own dedicated power supply in the basement of the defendant’s premises. An examination of tables revealed remnants of green vegetable matter. The sentencing Judge accepted that the only relevance of this discovery was to demonstrate that the defendant had prior knowledge and involvement in the cannabis trade:
Also located in your cellar was a sophisticated hydroponics set-up with dedicated mains power, tables, and remnants of green vegetable matter. Also on the property were a number of small potted cannabis plants. You cannot be penalised for previous offending nor any planned further offending and I do not do so. I use this material for the strictly limited purpose of rendering unavailable any submission that this offending was isolated, but rather it was committed as part of an involvement by you in the cannabis trade.
During sentencing submissions, counsel for the defendant accepted that the defendant was not naïve. This was not a case of a person who was doing a favour for a friend. Counsel acknowledged that the defendant was involved in the cannabis trade.
The defendant did not contest that the operation the police uncovered was a commercial operation. The street value of the drug, if sold in larger lots, was between $90,000.00 and $140,000.00. If the drug was sold in five gram deals on the street, its value was approximately $105,000.00 to $175,000.00.
It was agreed that dried cannabis had been provided to the defendant by his nephew who had died by the time the defendant was sentenced. The defendant’s nephew was involved directly with both the supply of cannabis to the defendant and its eventual sale. The defendant had been approached by his nephew who requested the defendant to assist him in the commercial enterprise of selling cannabis. It was agreed that the defendant provided his premises for the packaging of cannabis for subsequent sale. It was accepted that the defendant knew how cannabis was to be packaged for the cannabis trade.
The defendant was to receive payment for his part in the operation. However, the defendant was not involved in the supply or the subsequent sale of packaged cannabis. Nevertheless, the defendant was aware that his nephew proposed to sell the cannabis. The defendant agreed to assist because his nephew’s premises were under police observation. Alternative premises were consequently required for the packaging process.
The Judge concluded that a sentence of imprisonment should be imposed having regard to the gravity of the offence:
This court sees more and more the significant long-term damage done to other offenders by heavy cannabis use, including psychiatric and bipolar disorders. See R v Campbell (2007) SASC 203 at para.21. Time and time again this court also sees these drug-induced medical conditions and disorders leading to unemployability and further crime. The modern version of this drug is plainly no longer, if it ever was, the benign substance some parts of popular culture have historically portrayed it. It causes significant harm in the community.
The Judge adopted a notional starting point of seven years’ imprisonment. This was reduced to five years and six months on account of the plea of guilty. The Judge made a further reduction of one year to both the head sentence and non-parole period, having regard to the forfeiture of $100,000.00 by the defendant. This resulted in a head sentence of four years and six months with a non-parole period of three years, to commence on the day of sentence.
The Appeal
Counsel for the defendant submitted that the head sentence and non-parole period were manifestly excessive. It was emphasised that the defendant was, at the time of the offending, a 48-year-old first offender who committed the one single offence and whose involvement was due to a misguided view that he should assist the main offender, his nephew. At the time of sentence, he was 52 years’ old. It was said that the Judge failed to give sufficient weight to the fact that the offending involved an isolated offence and that this was not an ongoing commercial enterprise by the defendant.
The issue of whether particular illicit drugs should be classified as being in the category of middle or higher range of seriousness has been the subject of discussion by this Court in recent years.
In Becker,[1] this Court observed:
Since the decision in Mangelsdorf, there have been considerable advances in knowledge of the effect of various drugs upon human behaviour. There is some evidence about the effect of marijuana upon the human brain. Some research suggests that there is a relationship between heavy use of marijuana and schizophrenia in young people. There has been the introduction of so-called “designer drugs”. Their use as recreational drugs has become more common. The long and short-term effect of these drugs on human behaviour has been the subject of a number of studies. It may be that it is time to reconsider the classification of drugs referred to in Mangelsdorf. The time may have come, in the appropriate case, for the Director to consider whether expert evidence should be called to inform the sentencing court of recent research as to the effect of various popular drugs upon users.
In Ford,[2] Gray J, with whom Doyle CJ agreed, said:
In Becker, in light of the increase in the use and distribution of recreational drugs (including methylamphetamine), and the considerable advances in knowledge about the effect of these drugs on human behaviour, the Court of Criminal Appeal first ruminated as to whether it was appropriate for the Director to consider whether expert evidence should be put before the sentencing court for the purpose of considering whether such drugs should be reclassified to a higher range of seriousness:[3] (Citations omitted)
[1]    R v Becker (2005) 91 SASR 498, 512 [64].
[2]    R v Ford (2008) 100 SASR 94.
[3]    R v Ford (2008) 100 SASR 94, 101 [34].
More recently, in Campbell,[4] Sulan J considered the categorisation of drug offences as referred to in Mangelsdorf.[5]He expressed the view that that categorisation may no longer be applicable, having regard to greater knowledge which now exists about various types of drugs which are used in the community.
[4] R v Campbell [2007] SASC 203.
[5] R v Mangelsdorf (1995) 66 SASR 60.
On 10 September 2009, section 44 of the Act was amended by inserting subsection (2), which provides:[6]
In determining the penalty to be imposed in respect of a summary or indictable offence against Part 5 involving a controlled drug (other than cannabis, cannabis resin or cannabis oil), the degree of physical or other harm generally associated with the consumption of that particular type of controlled drug, as compared with other types of controlled drugs, is not a relevant consideration and the court must determine the penalty on the basis that controlled drugs are all categorised equally as very harmful.
[6] Controlled Substances Act (Controlled Drugs, Precursors and Cannabis) Amendment Act 2008 (SA) s 14(2).
In the second reading speech,[7] the Minister stated that the amendment sought to ensure courts treated the manufacture, sale and distribution of amphetamines, ecstasy, and similar drugs, at the upper level of the penalty range, rather than the middle. The amendment eliminates the distinction made between middle and upper-range drugs in Mangelsdorf.
[7] Hansard Legislative Council, 7 May 2008, 2808.
Cannabis, cannabis resin and cannabis oil is excluded. It is unclear why Parliament chose to exclude cannabis, when there is credible evidence to suggest that it has a potentially substantial deleterious effect on the long-term mental health of consumers of the drug.
We are of the view that, in an appropriate case, the Director should consider calling expert evidence before a sentencing Judge to inform the Judge of the current scientific and medical opinions about the effect of cannabis upon users of the drug. In our view, it would assist a sentencing court if it were informed of the relative harm which can be caused from the consumption of cannabis when compared to other illicit drugs. Such evidence would also assist the Court of Criminal Appeal when considering the appropriate range of penalties for drug offences.
Counsel for the defendant referred to other sentences which had been imposed for cannabis offences in order to demonstrate that the sentence under appeal was outside the range of sentences for this offending. The reference to other sentences is of limited assistance when considering whether a particular sentence is manifestly excessive. At the most, other sentences may indicate a range of sentencing for offences of a similar kind. Even that limited use of other sentences can be misleading, as in all probability each case has many idiosyncratic features, both in the circumstances of the offending and the personal circumstances of the offender.[8]
[8] R v George (2004) 149 A Crim R 38, 47 [48].
Counsel contended that there was no basis for the Judge to conclude that the defendant’s conduct included keeping his nephew’s money from the police. In submissions to the Judge, counsel asserted that the defendant’s criminality was limited to allowing his premises to be used and taking part in the packaging of cannabis. His nephew had brought the cannabis to the premises and would return to collect the packaged product. Counsel accepted that the money found in the garage was tainted money. In our view, it was open to the Judge to conclude that the defendant’s conduct included the keeping of both cannabis and money from the police who were, at the time, investigating the nephew’s involvement in drug dealing.
Counsel contended that there was no, or no sufficient, basis for the Judge to conclude that the defendant was to receive a substantially higher amount of money than $1,700.00, which the defendant claimed was his sole reward for assisting his nephew. The Judge made it clear to counsel that he did not accept that the defendant was to receive only $1,700.00 for his part in the offence. The Judge said that he required evidence to support that submission. No evidence was called on behalf of the defendant. In our view, the Judge was entitled to draw the inference that, for an operation of this size and for the assistance provided, the defendant would receive a substantial payment over and above $1,700.00.
This was a substantial commercial operation. The defendant’s participation was significant. He provided the premises at which large quantities of the drug were packaged. He provided the materials and equipment for packaging. It is to be accepted that the defendant is a first offender. Nevertheless, this was serious offending and a substantial sentence was warranted.
There were no personal circumstances, such as ill health or financial difficulty, which could explain the defendant’s conduct. He was involved in this operation for commercial gain.
The defendant’s plea of guilty came late. The reason given for the lateness of the plea was that the defendant had been involved in negotiations with the authorities in respect of the confiscation of property. It was not until he had agreed to pay $100,000.00, that the defendant finally agreed to plead guilty.
The starting point of seven years’ imprisonment was justified. The defendant had knowledge of the drug trade and his nephew’s involvement. The defendant was assisting his nephew. The assistance rendered was significant and rendered with a view to the nephew avoiding detection by the police.
The defendant’s role in the enterprise can be described as that of a middleman. He and an associate were involved in packing the cannabis ready for sale. His role was essential to the operation of the enterprise. His role was greater than that of a supplier to end users. As earlier mentioned, he provided his premises. He provided the material and equipment for packaging. Cannabis trade would be more difficult if persons such as the defendant were not prepared to provide premises and assist in packaging and storing large quantities of the drug. Those who provide such assistance must realise that the court considers that their conduct is serious criminal conduct.
Ultimately, it is necessary for this Court to consider the final sentence that was imposed. In our view, a reduction of two and a half years on account of the defendant’s plea, and having regard to the monies forfeited was, in all the circumstances, a generous reduction. The plea of guilty was late. The fact that he was negotiating with authorities about the confiscation of his assets was not a reason to defer his admission of guilt. The total reduction was 35 per cent of the otherwise head sentence.
In arriving at the non-parole period, the Judge concluded that a four-year non-parole period was appropriate, and he then deducted one year, having regard to the monies which were confiscated. The Judge arrived at a non-parole period by the adoption of an incorrect methodology. The correct approach was to determine a head sentence, having regard to the various factors which reduce the notional starting point. The non‑parole period is to relate to the final head sentence. Nevertheless, the non-parole period of three years in respect of a four years and six months’ head sentence is not, in our view, manifestly excessive.
Counsel submitted that, because the defendant was sentenced on the basis of a once-off involvement as a packager of cannabis for a fee - his role in a much larger enterprise - and that, having regard to this being his first offence at aged 48, his plea of guilty and his excellent prospects of rehabilitation, the Judge was in error in concluding good reason did not exist to suspend the sentence.
The question of whether to suspend a sentence in the case of a first offender, aged 52 at the time of sentence, is difficult. However, when large quantities of cannabis are involved and there is a clear commercial element, the general deterrence weighs heavily, even in the case of a first offender. There are cases in which suspended sentences have been given where commercial dealing has been involved. Those cases, however, do no more than illustrate that there may be cases of dealing in cannabis, in which good reason exists to suspend the sentence.
In Famiglietti,[9] Gray J considered the test to be applied in determining whether a sentence is to be suspended. There was a discussion that in the case of drug-trafficking offences, before a court could suspend a sentence rare and exceptional circumstances were required. That proposition was rejected. Gray J said:
Properly understood, Doyle CJ’s remarks in Manglesdorf [sic] were intended to convey that in the case of drug-trafficking offences where general deterrence will weigh heavily in the balance of the sentencing judge’s discretion, it will be an exceptional case where good reason can exist to justify suspending a term of imprisonment. Doyle CJ made this clear in Gjoka by concluding, “[good reason] is the statutory criterion, and that is the test to be applied”. The remarks in Mangelsdorf do not fetter the sentencing judge’s discretion. Counsel for the prosecution’s submission that Manglesdorf [sic] is authority for the principle that, in relation to drug-trafficking offences, a custodial sentence can only be suspended in exceptional cases, is incorrect.
The test for suspension established by the legislature is whether, in the discretion of the court, good reason exists to suspend. This is the test to be applied by sentencing judge’s in exercise of the discretion to suspend sentences. To state that, in addition to there being good reason to suspend, a case must also be rare or exceptional before suspension will be justified is to add a gloss to the words of the statute.
The submission of counsel for the prosecution that a particular case must be within a rare and exceptional category before a sentence can be suspended should be rejected.[10]
[9] R v Famiglietti [2005] SASC 489.
[10] R v Famiglietti [2005] SASC 489 [37] – [39].
In considering whether good reason existed to suspend the sentence, the Judge took into account all that had been submitted and concluded that the offending was too serious and the need for general deterrence too great to be outweighed by the extensive personal circumstances of the defendant. He concluded, therefore, that good reason did not exist to suspend the sentence. In our view, the approach of the sentencing Judge was correct.

In the circumstances of this case the Judge was correct not to suspend the sentence.
We would dismiss the appeal.