R v TON No. SCCRM-98-166 Judgment No. S6934
[1998] SASC 6934
•23 October 1998
R v TON
[1998] SASC 6934
Court Of Criminal Appeal: Millhouse, Olsson, and Debelle JJ
MILLHOUSE J. The appellant was convicted by a judge sitting alone, without a jury, of possessing heroin for sale. The amount in the appellant's possession was 13.8 grams of powder (in rock form and 68 percent purity) containing 9.3 grams of heroin. Being more than two grams of heroin the appellant had the onus of proving that he did not have the heroin for sale and he failed to discharge it. The learned District Court judge sentenced the appellant to five years imprisonment with a two year three months non-parole period.
Originally, the appeal was against both conviction and sentence. Leave to appeal against conviction has been refused and this appeal is against sentence only.
In his reasons for verdict the learned trial judge set out the facts:
"When the police went inside the accused's place of residence, at Seaton, they found the heroin (in rock form in approximately 68% in purity) in plastic wrapping in a balloon wrapped in a sock in a sleeping bag in his bedroom. They also found under the mattress a bank deposit slip referring to a deposit of $3,500 made by the accused on 24 November 1997 into his estranged de facto wife's bank account, some notes and cards and pieces of paper (torn from a 1998 diary) containing inter alia telephone numbers, lists of names and some columns of numbers, some of which represented sums of money. They also found some shiny magazine paper (sometimes used for packaging heroin), some small pieces of alfoil (that had been used for smoking heroin), a large roll of unused alfoil (sometimes used for packaging heroin and sometimes used for smoking heroin), and a packet of balloons (used for packaging heroin)".
The learned judge did not believe the appellant's explanations as to all this saying:
"By the time the accused came to the end of the cross-examination, he was completely discredited".
The judge found that the bank deposit slip for $3,500 "to have been drug money and equivalent to him having $3,500 in cash the day before the police raid".
He remarked that:
"There were some, albeit not many, of the indicia of commerciality; but the indicia were of strong probative value".
In his sentencing remarks the learned judge said:
"I am satisfied beyond reasonable doubt that you were more than a small-time street peddler. You were a dealer operating in the moderate range. You were a dealer who, mostly to support your own addiction, would have been expected to have sold this heroin in $50 lots of several hundreds of dollars and would, but for your arrest, have made a gross profit of several thousands of dollars. That having been said, I have no reason to suppose that you were trying to make large net profits to enable you to save a lot of money or live an extravagant lifestyle."
His remarks shew that the learned judge regarded the appellant as "dealing or proposing to deal on a commercial scale in heroin".
His Honour used the phrase "operating in the moderate range". "Moderate range" is an inexact term which, so far as I know, has not been precisely defined. However, what his Honour describes as having been found in the appellant's possession justifies, I believe, the learned judge's view, giving the words "moderate range" their ordinary and accepted meaning.
The appellant's complaint is the view taken by the learned judge that he was a "dealer operating in the moderate range". Ms Davey argued that it was only on the balance of probabilities that his client had failed to discharge the onus of proving that the heroin was for his own use. Yet the learned judge found beyond reasonable doubt that the appellant was "more than a small-time peddler, ... a dealer operating in the moderate range".
I cannot see any inconsistency in this. That the appellant failed to discharge the onus on him does not preclude the learned judge from being against him beyond reasonable doubt.
From the passages which Mr Muscat pointed out to us, it's obvious that his Honour was well aware that he had to find beyond reasonable doubt on this matter. For that reason I reject Ms Davey's argument.
The learned judge was entitled when concluding on what basis to sentence the appellant, to have regard to the whole of the evidence. Having obviously done so he was satisfied beyond reasonable doubt that the appellant was operating as a dealer in the moderate range. The conclusion was open to him on the evidence.
Ms Davey also complained that the head sentence and non-parole period are manifestly excessive. She urged on us which she called "significant personal circumstances warranting mitigation and mercy". I take that phrase from Ms Davey's outline of argument, and also these points which I now set out come from her outline of argument.
"
·.. Aged 44 years, no relevant prior convictions.
·.. Born Vietnam, served in the war.
·.. Incarcerated in "re-education" camp from 1975 to 1979. Left Vietnam by boat. Spent until 1982 in Philippines in refugee camp.
·.. Worked until 1988 when he suffered significant back injury.
·.. Addiction arose from break up of marriage in 1996. Now suffering from hepatitis C.
·.. Commenced drug rehabilitation February 1998 (but took action to be in the program in December 1997)."
The appellant has only one previous conviction, in 1990 in New South Wales. In the antecedent report it is called "goods in custody" which I take it to mean being in possession of stolen goods and for which he was fined $250. For our purposes this is not a relevant conviction.
It has often been said that penalty should be fixed taking into account three factors, retribution, reformation, and deterrence. In drug offences of the kind here deterrence, general deterrence, is a strong factor. The appellant was not entitled to any reduction for a plea of guilty, nor as a rule is drug dependence a factor making for leniency. That being so, even taking into account the appellant's background and lack of relevant previous convictions I do not regard the head sentence as too harsh. As for the non-parole period it is a quite a generous one reflecting the appellant's antecedents, two years and three months on a five year term.
I suggest that the appeal be dismissed.
OLSSON J: I agree.
DEBELLE J: I agree with the substance of the reasons of Millhouse J. I would only add these comments.
As Millhouse J has pointed out, the quantity of heroin found in the possession of the appellant reversed the onus of proof and required him to prove on the balance of probabilities that it was not in his possession for sale. In his reasons for his verdict, the judge made a finding against the appellant on the balance of probabilities but in somewhat unusual terms. He said:
"In my judgment the hypothesis relied upon the Crown arising from the strong circumstantial evidence for the prosecution is, in the circumstances of this case, more probable; or, to put it another way, the circumstances raise a more probable inference in favour of what is alleged by the Crown. The defence hypotheses, which were the subject of the defence oral evidence, seemed to me to be (and to remain) in the realm of conjecture and surmise."
The judge then went on to find the accused guilty. It is this passage upon which the appellant relies and contrasts it with the judge's remark in the sentencing remarks that he was satisfied beyond reasonable doubt that the appellant was more than a small time street pedlar.
The submission confuses the matters which had to be considered to find the appellant guilty with those falling for consideration when sentencing the appellant. Although the remarks made by the judge when finding the appellant guilty could have been more happily expressed, it is nevertheless clear that all that he has done is find, on the balance of probabilities, that the appellant had not discharged the onus which lay upon him. When it came to the question of sentencing, the judge apparently took the view that there were aggravating features about the offending which he was required to take into account when sentencing the accused. Those aggravating features had, of course, to be established beyond reasonable doubt. It was for that reason that the sentencing judge has referred to that onus in the course of his sentencing remarks. The two tasks which his Honour was performing were quite separate and distinct and should not be confused in the way which has been the basis upon which the appellant has advanced this appeal.
As for the other aspect of the submissions, it was submitted that there was not sufficient evidence upon which the judge could be satisfied that the appellant was, to use his Honour's words, "a dealer operating in the moderate range". His Honour found that he was more of a small time street pedlar.
As Millhouse J has said, the expression "a dealer operating in the moderate range" is somewhat imprecise. Its meaning is elusive. However, the sentencing judge then went on to explain what he meant. He identified the appellant as a person who was prepared to deal in heroin in lots for sale at $50 and lots for sale at several hundreds of dollars, which would have realised gross profit of several thousands of dollars to the appellant. This course of dealing placed the appellant in a category which was very much more than the small time pedlar seeking to support his own addiction. It was on that footing that the sentencing judge sentenced this appellant.
When that is appreciated, it is apparent that the sentence imposed is well within the range of sentences for that kind of offending as it is explained in R v Mangelsdorf (1995) 66 SASR 60. For those reasons, I do not think that this sentence can in any sense be described as manifestly excessive.
Further, as Millhouse J has pointed out, the non-parole period is reasonably lenient and no doubt has regard to the good prior record of this appellant. I too would dismiss the appeal.
MILLHOUSE J: The order of the court, therefore, is appeal dismissed.
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