R v WAGNER - [2005] SASC 421

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WAGNER
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
17 November 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
Appeal against sentence - appellant charged with three co-accused - all pleaded guilty to a variety of charges relating to the sale of heroin - appellant pleaded guilty to two counts of taking part in the sale of heroin and one count of possessing heroin for sale - appellant's involvement recognised as being the least serious of the four co-accused - sentencing Judge imposed a head sentence of four years and a non-parole period of one year and four months and declined to suspend the sentence - whether sentencing Judge erred in failing to suspend the sentence - whether sentencing Judge had sufficient regard to prospects of rehabilitation - Held: no error on part of sentencing Judge demonstrated - appeal dismissed.
Controlled Substances Act 1984 s32; Criminal Law (Sentencing) Act 1988 s38; Summary Offences Act 1953 s41, referred to.
R v Mangelsdorf (1995) SASR 60; R v Gjoka (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Doyle CJ, Olsson & Lander JJ, 1 July 1997); R v Nguyen [2005] SASC 329, applied.

R v WAGNER
[2005] SASC 421
Court of Criminal Appeal: Duggan, Bleby & Anderson JJ

DUGGAN J I agree that this appeal should be dismissed for the reasons given by Anderson J.
BLEBY J I agree in substance with the reasons of Anderson J. I would dismiss the appeal.
ANDERSON J
Background
The appellant pleaded guilty in the District Court to two counts of taking part in the sale of heroin contrary to s 32(1)(d) of the Controlled Substances Act 1984. She also pleaded guilty to one count of possessing heroin for sale contrary to s 32(1)(e) of the same Act. In relation to the first two counts she was jointly charged with a Mr Mezzina, and in relation to the count of possessing heroin for sale she was jointly charged with a Mr Mavromatis.
The learned Judge of the District Court sentenced Mavromatis, Mezzina and the appellant at the same time on 12 July 2005. Although there are separate remarks relating to each appellant, the facts upon which each of them pleaded guilty are contained in the sentencing remarks. A Mr Tran who was also involved was sentenced later on 4 August 2005.
At the time of sentencing Mr Mavromatis was 63 years of age and had no relevant prior convictions. At the time of his arrest he was living in a house at Richmond with the appellant. When sentenced she was 38 years old.
During April and May 2002 the police had intercepted phone calls between the appellant, Mavromatis, Mezzina, and also Mr Tran.
Very briefly, Tran was the wholesale supplier of the heroin. He supplied it to Mavromatis and Mezzina and they organised for the appellant to be involved in the pick-up, sale, collection of money and then the final handing over of the money to Mavromatis and Mezzina. At all times it was alleged by the prosecution that the appellant’s role was at the bottom of the chain.
The appellant was paid in heroin to accommodate her habit.
Tran pleaded guilty to one count, the appellant to three counts as I have already indicated, Mezzina to nine counts, and Mavromatis to four counts.
In relation to Tran, the starting point in her Honour’s considerations was eight years and six months. She then imposed a head sentence of four years, five months and three weeks, and fixed a non-parole period of two years, nine months and three weeks.
In the case of Mavromatis, the starting point was six years less approximately 10 per cent discount for a plea of guilty. That meant a head sentence of five years and five months with a non-parole period of two years and eight months. He was given nine months credit for five months he spent in custody and for 14 months he spent on home detention bail which reduced the head sentence to four years and eight months and the non-parole period to one year and nine months.
In the case of Mezzina, the starting point was seven years less a 20 per cent discount for the plea of guilty. This resulted in an effective sentence of five years and six months with a non-parole period of three years. He was given six months credit for three months spent in custody and for eight months on home detention bail which reduced the head sentence to five years and the non-parole period to two years and six months.
Appellant’s Circumstances
For the appellant the learned Judge used a starting point of five years less an approximately 10 per cent discount for her plea. That meant an effective head sentence of four years and five months with a non-parole period of one year and nine months. She was given five months credit for four months spent in custody and for four months on home detention so that the final result was a head sentence of four years with a non-parole period of one year and four months.
Each of the offences to which the appellant pleaded guilty attracted a maximum sentence in each case of 25 years imprisonment and/or fines of $200,000.
The learned sentencing Judge said in relation to the charges:
The first charge of taking part in the sale of heroin occurred on 21 April 2002 and arose as a result of telephone intercepts of a phone call from a female to your co-accused, Mr Mezzina, who wanted to buy heroin. Mr Mezzina then called you and arranged for you to meet the purchaser.
The second charge, which is count 11 on the Director’s Information, is a charge of taking part in the sale of heroin. That also arises out of telephone intercepts of a phone call on 16 May 2002, two days after your arrest and the arrest of Mr Mavromatis. Once again, a purchaser had telephoned Mr Mezzina wanting to buy heroin, Mr Mezzina called you, made the arrangements for you to meet the purchaser, which you did.
The last count which relates to you arises out of the arrest of you and Mr Mavromatis in a motor vehicle as you left the premises of Everard Terrace, Keswick, on 23 May 2002. In the vehicle with you and Mr Mavromatis were numerous street deals of heroin; the pure amount of heroin in those street deals totalling 0.18g.
As pointed out by the sentencing Judge, there was no dispute that during the relevant period when the telephone intercepts were operating, the appellant acted as a courier for both Mavromatis and Mezzina. Mr Press for the respondent characterised the role of the appellant as more than just a mere courier. That was because it was not disputed that the appellant, apart from acting as courier, was also involved in the sales and collected the money.
The appellant did not plead guilty until 31 January 2005. That was the second trial date set, the first having been vacated. Following negotiations between defence counsel and the prosecution in the week before, the second trial date was also vacated and the matter transferred to the arraignment list. I have already indicated that, when sentenced, the appellant was 38 years old.
The appellant has been a heroin addict since the age of 19 but has no real criminal record to speak of, with only one dishonesty offence in 1997 in Western Australia. She also had some offences in relation to work as a prostitute.
Despite her addiction to heroin the appellant had managed to stay out of trouble and had earlier worked as a deckhand on fishing boats in Western Australia. She has one 10-year-old child as a result of a relationship with another person who was also working on the boat but that child is now in the care of the appellant’s biological mother. The appellant was brought up as an adopted child.
Her Honour accepted that the level of the appellant’s involvement in the whole scheme of things was:
…somewhere lower in the hierarchy than either Mr Mavromatis or Mr Mezzina. In one sense, of course, you are all street dealers. However, it is plain from the material I have read and particularly from the telephone intercept material, that you acted in the main at the behest of one of the other two co-accused and I accept that you did not make any profit from the selling activities that you were involved in, that you were simply supplied with heroin as payment for your actions.
It was on this basis that her Honour proceeded to sentence the appellant.
Head Sentence
Although most of the appellant’s argument related to the question of whether the sentence should have been suspended, it was also argued that the head sentence was excessive.
The respondent submitted that the head sentence of four years and five months, considered in the light of the starting point of five years, must be considered as a light sentence. Negotiations for the guilty plea were entered into only one week prior to trial but nevertheless there was a discount allowed of approximately 10 per cent for the plea.
In R v Mangelsdorf (1995) 66 SASR 60 at 70 Doyle CJ said:
This was an offence which was characteristic of its type. Against the mitigating circumstances, and the sympathy which one feels for Mr Mangelsdorf, must be set the seriousness of the offence and the fact that the trade in heroin continues because of the participation of street traders like Mr Mangelsdorf, many of whose personal circumstances equally excite sympathy. The sad fact of addiction is a recurring theme in these cases, as is, although less commonly, its origin in some injury or personal tragedy. The impact of the sentence on Mr Mangelsdorf’s family is a cause for concern, but it is only in exceptional cases that that can be taken into account ...
It has to be said yet again that in dealing with offences such as this, individual and general deterrence must be given great weight. The public interest in deterring those who would trade in heroin must be uppermost in the judge’s mind.
Later in R v Gjoka (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Doyle CJ, Olsson & Lander JJ, 1 July 1997) Doyle CJ said:
In Mangelsdorf … this Court considered the appropriate sentencing standard for certain drug offences … In relation to trading in heroin in particular, I adhere to what I said there. I referred to a number of decisions which indicated that sentences in the range of five years’ to seven years’ imprisonment could be expected for selling heroin or possessing heroin for sale, when those offences were committed against a background of involvement in commercial trading or dealing in heroin. I went on to say that like any standard, this standard was not to be applied inflexibly.
The fact is that, although the appellant received no cash for her involvement, she nevertheless received heroin in payment for her role in the distribution and this factor in my view does nothing to reduce the seriousness of her offending.
In my view, this was not a particularly harsh head sentence in light of the appellant’s involvement, and I do not regard it as manifestly excessive. Despite the fact that as between the other defendants the appellant played a lesser role, her involvement nevertheless was serious.
In my opinion the appeal against the head sentence should be dismissed.
Suspension of Sentence
In relation to the question of suspension, Mr Lang for the appellant submitted that it was of significance that in the three years since the commission of the offences, the appellant had made efforts to rehabilitate herself. Her Honour was clearly concerned to assess whether the chance of rehabilitation would be reduced by a term of imprisonment. She finally concluded:
However, having said that, I do not accept that at the age of 38 you are not capable, if so motivated, to continue on the path of rehabilitation irrespective of whether you are required to serve an immediate custodial term of imprisonment or not.
Her Honour weighed up the question of whether she should suspend the sentence of imprisonment but declined to do so. She was clearly influenced by the extent of the selling operation and the fact that the appellant’s involvement was not a mere isolated instance of a desperate heroin addict looking for further heroin.
Mr Lang criticised the failure to suspend the sentence in light of the following comment of the sentencing Judge:
I acknowledge that there are compelling circumstances in favour of mitigation in your case. However, having regard to the authorities which were cited to me during argument, I consider that I would be doing less than my duty if I did not require you to serve an immediate term of imprisonment along with your co-accused. The factors to which your counsel have referred I will take into account when setting the nonparole period.
In particular, Mr Lang criticised the statement by her Honour which I have underlined. The criticism was that her Honour engaged in an over-literal or too strict an interpretation of the words of the Chief Justice in Mangelsdorf and subsequent cases where Mangelsdorf has been applied. Mr Lang argued that the statement underlined demonstrates that the sentencing Judge felt “constrained by the authorities to a view that had she suspended the sentence she would have been doing less than her duty”. Further, Mr Lang submitted that if her Honour “placed reliance upon the standard pronouncements that a suspended sentence would be very unusual to curtail [her] examination further of that possibility, then again it was an error”.
In Mangelsdorf Doyle CJ at 66 deals with the question of suspension. He said:
In the case of the street trading offences, it is clear that matters such as previous good character, addiction and detection with relatively small quantities of drugs are not matters out of the ordinary. It is also necessary to bear in mind that the importance of deterrence in such cases will often lead to less weight being given to circumstances personal to the offender than otherwise might be given.
He further stated at 70-71:
That leaves the question of suspension. Suspension was opposed by counsel for the Director of Public Prosecutions in submissions to the sentencing judge. In my opinion it was wrong to suspend the sentence. For offences of such seriousness, suspension must be rare indeed. In my opinion the circumstances of this case, cogent as they are, do not justify the decision which the judge made. To allow suspension of the sentence in such a case would, in my opinion, tend to erode the standard of punishment which this Court has set as appropriate for this offence. As King CJ said in R v Taddeo (1993) 67 A Crim R 338 at 340 in words equally applicable to the heroin trade:
“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.”
It seems to me that all her Honour was doing in the passage set out above was effectively saying that in cases such as the present one, the type of offending involved normally attracts a custodial sentence, and that this case should not be regarded as being one out of the ordinary. I do not regard her Honour’s remarks as indicating any failure to properly consider the “good reasons” test in s 38(1) of the Criminal Law (Sentencing) Act 1988.
Mr Lang argued that the appellant’s motivation for being involved in the offences, namely, her addiction, was a reason why this should be treated differently than the norm. He referred to the appellant’s background and her pattern of substance abuse over the years. This eventually resulted in her becoming homeless and quite ill, and in addition she had worked as a prostitute.
He also argued that the appellant had made some progress in her attempts at rehabilitation. Mr Lang argued that any period of imprisonment would put that continued rehabilitation at risk. For all these reasons he submitted that this was a case out of the ordinary.
The learned sentencing Judge had regard to all these factors including the risk that imprisonment may place the continued rehabilitation in jeopardy. Having considered these matters her Honour concluded by saying:
However, the extent of this selling operation, albeit over a period of two months is such that it cannot be viewed, even your involvement in it, as a mere isolated instance of a desperate heroin addict looking for further heroin.
It cannot be said that the learned sentencing Judge failed to take any relevant matter into account. It is simply a case in which the appellant argues that her Honour should have suspended the sentence.
In R v Nguyen [2005] SASC 329 the defendant pleaded guilty to one count of possessing heroin for sale contrary to s 32(1)(e) of the Controlled Substances Act and one count of unlawful possession contrary to s 41 of the Summary Offences Act 1953. The maximum penalty for this first offence was the same as the maximum for these offences. The Court of Criminal Appeal was dealing with an appeal by the Director of Public Prosecutions after a sentence had been suspended by a Judge of the District Court. The respondent’s role, over a period of approximately two months was, as in this case, at the bottom of the distribution chain. He had demonstrated good prospects of rehabilitation and personal circumstances that attracted a great deal of sympathy.
Bleby J analysed the remarks of the Chief Justice in Mangelsdorf. On the comparison between Nguyen and Mangelsdorf his Honour said at [28]:
By his actions, the appellant was exploiting the weaknesses of others addicted to heroin. As was observed in R v Mangelsdorf, the street trade in drugs continues because of the participation in it of those like the respondent. The public interest in deterring that trade must be uppermost in the Judge’s mind. (footnotes omitted)
Bleby J also set out the passage from Mangelsdorf which I referred to earlier in these reasons. His Honour then said at [35]:
While comparison with other cases on sentencing appeals can often be odious, this particular decision of the Full Court must carry substantial weight in this case, at least on the question of suspension of any sentence. The circumstances are almost indistinguishable. The nature and period of trading was similar. While one defendant was driven by an addiction, the other was driven by the need to repay debts caused by an addiction. Both defendants were driven by an addiction. Both demonstrated good prospects of rehabilitation. Both demonstrated personal circumstances that could command a great deal of sympathy.
The Court allowed the appeal and reversed the order suspending the sentence.
Conclusion
Here again in the case under appeal there are similarities with Mangelsdorf as mentioned by her Honour in her sentencing remarks.
It seems to me that the learned sentencing Judge has correctly directed herself on all relevant matters in her consideration of whether this was an appropriate case in which to suspend the sentence. In my view her Honour was quite correct in following the clear guidance given by this Court in Mangelsdorf and in the cases which have followed. In my view her Honour did not fall into error in applying the comments of this court regarding suspension.
I would dismiss the appeal.