R v Vincent Roderick Lane No. SCCRM 96/214 Judgment No. 5813 Number of Pages 6 Criminal Law

[1996] SASC 5813

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA MILLHOUSE(1), OLSSON(2) AND WILLIAMS(3) JJ

CWDS
Criminal law - particular offences - drug offences - Appellant - plea of guilty to being knowingly concerned in importing prohibited import. Offence committed 1985 - absconded when on bail before trial - surrendered to police 1996. Sentencing in 1996 as at 1985. Sentence manifestly excessive by 1985 standards. Appellant good conduct while abscondment not to be taken into account. Appeal allowed. Crimes Act ss16G, 19AC(1); Customs Acts233B(1)(d), referred to. R v Sheehan and Sheehan 124 LSJS 144; R v Leondaris 13 November 1985 unreported; R v Taddeo CCA Unreported Judgment No. S4059, applied. R v Mangelsdorf 184 LSJS 1, distinguished. R v Thomas and Arthur (1993) 65 ACR 73, discussed.

HRNG ADELAIDE, 20 August 1996 #DATE 20:9:1996

Counsel for appellant:     Mrs M Shaw

Solicitors for appellant:    Armour and Co

Counsel for respondent:     Mr P Rice

Solicitors for respondent: DPP (Cwlth)

ORDER
Appeal allowed.

JUDGE1 MILLHOUSE J
1. This is an appeal against a sentence imposed by His Honour the Chief Judge of the District Court. Judge Brebner gave the appellant four years with a non-parole period of two years and three months, deciding not to suspend, for the offence of being knowingly concerned in importing a prohibited import contrary to s233B(1)(d) of the Customs Act 1901. The import was 189.5grams of cannabis resin in the latter part of 1985.

2. What happened is this. The appellant is a New Zealander. In 1985 he was 26. In the first part of that year, apparently he threw up a science course he was doing at a university over there, to go on his travels. He came to Australia and after some time to Adelaide. He intended going to Kashmir. The details have not come out but it looks as though someone persuaded him, before he left here, to agree to sending back through the post some cannabis resin. He rented post boxes, in a false name, in Melbourne and at the GPO here. He was to receive 20% of the profit on the transactions. When he was in Kashmir he bought the resin for $50 and concealed it in the bases of two ashtrays which, together with some other articles he packed up and sent back to the two post boxes. I do not know what happened in Melbourne (except that he made one fruitless visit over there to collect the stuff - it hadnÕt arrived) but the 189.5 grams sent to Adelaide would have been worth about $13,000 on the market in Australia. In case he was caught - as he was as soon as he had picked it up from the GPO - the Customs people having detected the cannabis resin in the parcels when they arrived - he had prepared two letters (one for Adelaide and one for Melbourne) from "Vicky" and "John", asking him to collect the parcels for them. The ruse did not work: he was arrested, charged, committed to the Supreme Court on 27 March 1986 and given bail. He skipped bail and did not come back to Adelaide for just on ten years. During that time he lived and worked in the eastern states under an assumed name: he committed no offence. To use MrsÊMarie ShawÕs words (she appeared for him before us) he lived in ÔpurgatoryÕ - he could not disclose his identity for fear of being discovered, he could not marry or live a normal life: finally, most significantly he could not get a passport. His father in New Zealand is now in his 80s and sick. The appellant has been anxious to go home to him and to his family. He cannot until this matter is finished and he can get a passport. The learned Chief Judge assumed that this last was the reason why, earlier this year, he came back to this state and gave himself up. With respect, I think Judge Brebner made a correct assumption. The appellant has been in custody since 12 April. He pleaded guilty and on 26 April the learned Chief Judge imposed the penalty I have already mentioned. In the course of his sentencing remarks Judge Brebner said:-
    "I have considered all of the sentencing options that are open to
    me; but, as your counsel apprehended, I am satisfied that there is
    absolutely no option but to impose a sentence of imprisonment upon
    you. Your importation of illicit drugs had a clear commercial
    purpose about it. In such circumstances, the aspects of
    punishment and deterrence loom large in the sentencing process. I
    give you credit, as IÕve said, for the fact that you have no other
    convictions and I give you credit for your plea of guilty, although
    the credit cannot be in all the circumstances anything like as
    great as it would have been had you pleaded back in 1986 when you
    were arraigned in the Supreme Court.

I must remember that the legislation with regard to sentencing
    matters has changed - although not the provisions of the Customs
    Act as to the penalty prescribed for the importation of the
    trafficable amount of cannabis resin - since this offence was
    committed. I must be cautious in my consideration of other cases
    in which sentences were passed at about the time of your offending.
    The Truth in Sentencing Legislation, as itÕs been called, has come
    into effect in both State and Federal jurisdictions since that
    time. The true comparisons are not so much with the actual
    sentences passed, but with the periods that would have been spent
    in custody and on parole respectively in sentences imposed a decade
    ago. However, I can obtain some assistance from the recent case in
    this State of R v Mengelsdorf, a decision of the Court of Criminal
    Appeal given on 11 November 1995 and not yet reported, and the West
    Australian case, to which I was referred, of R v Thomas and Arthur
(1993) 65 ACR 73 where the court considered a significant number of
    cases where the prosecutions had been laid under the section relied
    upon in this case and where the prohibited import was cannabis
    resin.

Taking everything that has been put before me into account, I am
    satisfied that I have absolutely no alternative but to impose a
    custodial sentence upon you. The amount of the illicit drug that
    was involved and the elaborate steps that were taken to avoid
    detection convince me that, to adopt the words of the former Chief
    Justice of this State, it would send quite the wrong signal to
    those in the community minded to offend in this way if I were to
    take any other course."

3. The grounds of appeal are, that the term of imprisonment and the non-parole period are both too long and the imprisonment should have been suspended: the learned judge "erred in his approach to the credit that the prisoner was entitled for his plea of guilty", and did not give weight to the appellantÕs rehabilitation in fixing the non-parole period and "to his consideration of whether he ought to make an order for early release": most significantly, "The Learned Judge erred in applying the approach of the Court of Appeal in R v Mangelsdorf 11/11/95 to the circumstances of this particular offender and this particular offence".

4. R v Mangelsdorf (184 LSJS 1) is a decision of the Court of Criminal Appeal. It was a Crown appeal, heard with two others (R v Perry and R v Richards). In his Reasons, published on 10 November 1995 Doyle CJ reviews at length the standards of penalty imposed for drug offences and relates them to the three appellants. Mangelsdorf had pleaded guilty to possessing heroin for sale. The Court of Criminal Appeal fixed a term of imprisonment of four years. As Mrs Shaw pointed out this was the same penalty as was imposed by Judge Brebner on the appellant in relation to the much less serious and deadly substance, cannabis resin.

5. I may pause here to make the obvious comment that no two cases are alike and it is inappropriate to compare one penalty with another - each depends on its own circumstances. That is why schedules of penalties imposed in other cases - such as we were given - are not of much help. They can only be the most general guide -to give a sentencing judge or the Court of Criminal Appeal a "feel" for the proper range of penalty. Nevertheless Mrs ShawÕs point was a good one.

6. Later on in his Reasons the learned Chief Justice refers to the words of his predecessor in R v Taddeo:-"It would send an entirely wrong signal to people who are tempted to engage in cannabis trading and could only tend to weaken the defences which the community expects to be erected and maintained against the drug trade."

7. These must be the words echoed by the learned Chief Judge in his sentencing remarks. I think Judge Brebner allowed himself to be too much influenced by R v ÊMangelsdorf . That is a recent decision on recent crimes. This appellant stands to be punished by the standards of ten or more years ago when it all happened.

8. Looking at the cases, penalties have changed since then. Mrs Shaw referred us to a case of about that time, The Queen v Sheehan and Sheehan (124 LSJS 444 - Court of Criminal Appeal 18 November 1985). Two brothers were given six years with a non parole period of four and half years and four years with a non parole period of three years respectively for the same offence as this one - except that the amount of cannabis resin was 11.833 kg. She said this was a much better guide for us.

9. In having regard to the The Queen v Sheehan and Sheehan I must remember my own injunction against comparing one case with another. Yet it is sufficiently close in time and in nature to the present that I may use it as some sort of guide.

10. We must bear in mind that in 1985 the Court, in fixing sentences, took into account remissions, about one-third. Now, with Truth in Sentencing (for both State and Commonwealth crimes) there are no remissions. Bearing in mind remissions in current terms, the Sheehan brothers got head sentences of four years and two and a half years. Doing the calculation the other way, the penalty imposed on this appellant is equal to six years in 1985. That seems altogether too much.

11. It may be that the intention of the learned Chief Judge was not drawn to s16G of the Crimes Act:- "    If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly." There is one other factor I should mention. The appellant was missing for nearly ten years. In that time, Mrs Shaw argued - I acknowledge the strength of her argument - the appellant rehabilitated himself. She complained that the learned Chief Judge had not given sufficient weight to his rehabilitation - but how much should have been given? The Courts are in a dilemma: weight should be given to rehabilitation but prisoners should not be encouraged to abscond by being treated leniently because of their rehabilitation during abscondence.

12. Cox J had to deal with the dilemma in R v Leondaris (13 November 1985 unreported). In sentencing the prisoner he said:-
    "You absconded from bail just before you were supposed to appear in
    this court in June1981 and you went with your wife to Sydney. You
    got a job, sought counselling help privately and with Narcotics
    Anonymous, and both you and your wife stopped taking drugs. The
    references I have read from social workers in Sydney who knew you
    at that time are impressive. At the end of last year you returned
    to Adelaide ... The question is whether the sentences that you
    would have received in June 1981, had you not jumped bail, can
    properly be reduced by reason of what has happened since. As a
    matter of principle, I do not think they can. I have no doubt that
    if you had committed other offences, for instance, while in Sydney
    or had done other discreditable things, I would have been urged
    generally to ignore them and to sentence you according to the state
    of affairs in 1981. I think it important, also, that the courts
    make it plain that a man cannot expect to get any benefit from
    absconding from bail. Bail is granted much more readily these days
    than it used to be and the success of that more liberal practice
    obviously depends upon persons who are granted bail appearing in
    due course to face trial. It seems basically wrong that, if two
    more or less identical defendants are facing similar charges at a
    particular time, the one who answers his bail should get a
    particular sentence while the one who jumps bail is allowed the
    chance of improving his sentence prospects, say by earning the
    money to make restitution, so that when eventually he is picked up
    or surrenders he will get a lower sentence than the other man.

I think the most that can be said is that subsequent events,
    including your surrender to the police, confirm the soundness of a
    contrition and a determination to give up heroin that would in June
    1981 have been regarded as merely speculative. Apart from that I
    think the sentences should be based upon the facts and
    circumstances as they would have been seen by a judge in mid
    1981."

I am happy to adopt the same approach. I suggest that a head sentence of two and a half years would fit this crime. What about non-parole and suspension?

13. Section 19AC (1) of the Crimes Act:-
    "... where: ... a person is convicted of a federal offence the
    court must make a recognisance release order in respect of that
    sentence or those sentences and must not fix a non-parole
    period." Therefore no non-parole period but a recognisance release order. Section 20 provides for the latter:-
    "Where a person is convicted of a federal offence or federal
    offences, the court before which he is convicted may, if it thinks
    fit: ... sentence the person to imprisonment in respect of the
    offence or each offence but direct, by order, that the person be
    released, upon giving security after he or she has served a
    specified period of imprisonment in respect of that offence.".

14. I suggest making a recognisance release order after the appellant has served one year. The sentence should run from 12 April since when the appellant has been in custody.

15. That leaves only the question of whether the imprisonment should have been suspended. The learned judge, in the exercise of his discretion, thought not. Mrs Shaw referred us to Leondaris where Cox J did suspend. However that learned judge did make clear that it was a most exceptional thing to do. Bearing in mind the commercial element in this crime and the emphasis on deterrence in drug cases, the learned chief judge made the same decision, not to suspend, as I would have but that doesnÕt matter - the decisive consideration is that I do not think his discretion miscarried. There should be no suspension.

16. I suggest therefore that the appeal be allowed by quashing the sentence imposed and substituting for it a term of imprisonment of two and a half years to run from 12 April 1996 and that a recognisance release order be made allowing the appellant to be released 12 months after that day.

JUDGE2 OLSSON J
17. I agree.

JUDGE3 WILLIAMS J
18. I agree with the order proposed by Millhouse J.