R v WHITING (No 2) - [2005] SASC 351

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WHITING (No 2)
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
14 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO-OFFENDERS
Appeal against sentence of imprisonment imposed by Judge of District Court - applicant sentenced to imprisonment for four years with non-parole period of two years following pleas to offences of taking part in the sale of methylamphetamine and possessing methylamphetamine for sale - applicant sentenced at same time as co-offender who was given a suspended sentence of two years and eight months imprisonment with non-parole period of 16 months. Appeal on grounds that sentencing Judge had sentenced on basis of misapprehension of the facts; that sentence unjustifiably disparate from that imposed upon the co-accused; that sentencing Judge mis-stated the maximum penalty for the offence; and that sentence imposed was manifestly excessive. Discussion of principles in respect of parity in sentencing - consideration of general sentencing principles. Held: Judge's characterisation of the appellant's role in the offending was open on the evidence - there was no basis for parity between the co-offenders - penalty imposed was appropriate in the circumstances and not manifestly excessive - appeal dismissed.
Controlled Substances Act 1984 (SA) s 32; Controlled Substances (Prohibited Substances) Regulations 2000 (SA) schedule 2, referred to.
R v Olbrich (1999) 199 CLR 270; Wakely v Police (2003) 229 LSJS 327; R v Manglesdorf (1995) 66 SASR 60, considered.

R v WHITING (No 2)
[2005] SASC 351
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons given by Gray J. There is nothing that I wish to add to those reasons.
BLEBY J: The facts and circumstances giving rise to this appeal are set out in the reasons of Gray J. I will not repeat them.
The principal submission of counsel for the appellant was that, rather than the appellant being the organiser of the drug trading in which he and the co‑defendant Kennewell were involved, they were equal partners and should have been treated in similar fashion on sentencing. The submissions of counsel for the appellant on the appeal suggested that there were unresolved disputes of fact as to their respective roles, that the sentencing Judge acted on facts unfavourable to the appellant and, so it was submitted, contrary to the facts that were most favourable to the appellant.
The sentencing Judge had before him a record of interview of the appellant. In that interview the appellant admitted packing the amphetamines and taking them to the airport. He was less than frank about the role of the co-defendant, claiming that he was a hitchhiker who was unknown to the appellant, whom he had met at the airport and who he persuaded, for a modest fee, to deliver the package to the freight counter of the airline and from whom he subsequently recovered the despatch docket.
In making submissions for the appellant before the sentencing Judge his counsel informed the Judge that the appellant’s plea of guilty was “based on his record of interview that he gave to the police on 24 August ‘03”. On the basis of that record of interview there can be no doubt that it was the appellant who organised the delivery of amphetamines on that occasion and the respondent was merely his assistant for the purpose of ensuring that the appellant could not be identified at the airline counter as having any role in the sale and despatch of the drugs.
The other important evidence before the trial Judge was an extensive record of interview with Mr Kennewell, the co‑defendant, and the pre-sentence report of a psychologist concerning Mr Kennewell. The appellant had acknowledged that the offences in question were to be viewed against the background of a significant period of similar drug trading on the part of the appellant. Mr Kennewell, in his record of interview, gave a much fuller description of his involvement on the day in question. He had developed a friendship with the appellant over the preceding six months or so. He had been at the appellant’s home working on a motor vehicle when the appellant came out with a package and told Kennewell to “jump in the car” as they were going to the airport. Kennewell was fully aware of the appellant’s involvement in drug delivery, and this was nothing unusual. Kennewell filled out the paperwork for the despatch because he was told to by the appellant.
Besides confirming the events of that day as to despatch of the drugs at the airport, Kennewell described how he and others did courier work for the appellant and from time to time assisted in the packaging of drugs which the appellant had obtained for selling to others. He spoke of the numerous trips to country towns and the Northern Territory on which he had accompanied the appellant when the appellant made deliveries of drugs to others. He was introduced to the appellant by his brother because Kennewell was then dependent on amphetamines, and in return for assisting the appellant he was supplied with drugs and occasionally small amounts of cash if he asked for it, along with the friendship of the appellant who was some 32 years his senior. There was evidence that Kennewell was not the only young man on whom the appellant had bestowed favours in return for assistance with despatching drug packages. It was the appellant who knew the suppliers, obtained the supplies and who organised the deliveries.
Both the appellant and Kennewell had been jointly charged with taking part in the sale of methylamphetamine evidenced by the transaction which took place at Adelaide Airport on 23 August 2003. The record of interview with Kennewell for sentencing purposes was relevant to the sentencing of both defendants.
The psychologist’s report concerning Mr Kennewell, as was to be expected, touched on a wide range of family and other relationships, including Mr Kennewell’s relationship with the appellant. It was apparent from that report that Kennewell welcomed the friendship of the appellant which began in about February 2003 and that the appellant was “a dominant and threatening individual who was a drug supplier”. There was evidence in the record of interview that, after their relationship ended following the charges in these proceedings, Kennewell had been the subject of threats from the appellant. One of the conclusions reached by the psychologist was:
In my opinion, your client’s motivation was not only his need to maintain his own drug dependency but also his willingness to comply with a more dominant person and maintain a “friendship”.
In his sentencing remarks the sentencing Judge described the relationship between the two in the following terms. In addressing the appellant and having described how the appellant was recruited to deliver amphetamines to others he said:
You subsequently persuaded Kennewell to assist you by supplying him with drugs as payment.
When addressing Kennewell the Judge said:
The two of you met in 2002, by which time you were already using amphetamines. After some time, he began to give them to you for free and so your use escalated and by the time of your offending you were heavily independent (sic) on them. In return for that you helped him with his deliveries.
…
I accept that you did not stand to benefit financially from your part, but were involved in the transactions in order to provide drugs for yourself.
When considering the question of suspension of Mr Kennewell’s sentence the Judge took into account “the fact that you were subject to the influence of an older man and your limited role in the drug dealing enterprise”.
I consider that there was every justification for those remarks in the materials to which I have referred.
At the hearing of submissions on sentence both defendants were represented by counsel. Counsel for the appellant made his submissions followed by counsel for Mr Kennewell. Counsel for Mr Kennewell emphasised her client’s youth and the secondary role in the relationship played by Mr Kennewell. There was no suggestion during the course of the hearing that counsel for Mr Kennewell had misrepresented the position. There was no suggestion by counsel or the Judge of any factual dispute. That suggestion only arose upon the filing of amended grounds of appeal and the development of those grounds in argument on the appeal.
Counsel for the appellant relied on two passages in Mr Kennewell’s record of interview which suggested that Kennewell was at least an equal if not dominating partner in the activity. The first of these was in the following passage of the record of interview:
Q.So you, you were helping him, you were couriering –
A.Yeah, I was –
Q.Him.
A.Keeping him in line ‘cos he was actually making himself more broke than actually making money.
Q.All right.
A.Like doing the runs and wasting his money on petrol and all that.
Q.What sort of runs. Where was he going.
A.Just – We went up to Darwin to see my brother.
Q.Yeah.
A.Just for something to do and we -, that six days and we went to Alice a few times and –
Q.So did you meet Roger in Alice then.
A.No. Nuh. I was always kept at the hotel.
Reliance was placed on the phrase “keeping him in line” as if Kennewell were controlling the operation. A complete reading of the record of interview, however, reveals that that was not the case. Kennewell was critical of many of the activities of the appellant as being wasteful and uneconomic. He sometimes suggested that the selling price should be higher if the appellant wanted to make a profit. However, there was never any suggestion in any of the material before the sentencing Judge that the organiser of the operation was other than the appellant, being assisted in a secondary and relatively minor role by Kennewell.
The second passage relied on is contained in the following passage of the record of interview:
Q.… So it’s best, it’s best that you be truthful to me and tell me –
AYeah.
Q.Exactly what you know because I’ve got a diary and it’s got a lot of entries with your handwriting in there to say that you were participating.
A.Yeah, I kept him in line –
Q.And that you were –
A.Yes, Like I said, I kept him in line.
Q.Mm. So you –
A.And I told him to up the prices and all that if you must know so he can keep going and so he can keep doing it ‘cos the way he was going about it was, he was going down hill, he was going in red.
The expression relied on was that Kennewell “kept him in line”. Once again, the overall impression gained from the complete interview is that the appellant was somewhat disorganised and inefficient, and that others, including Kennewell, kept his diary and other records. However, there is no suggestion that the appellant was other than the leader and organiser.
Counsel for the appellant on the appeal also sought to rely on a submission of the appellant’s counsel before the sentencing Judge that there was no concession by the appellant that he was the leader. The sentencing Judge asked counsel if the appellant got Mr Kennewell “to be his gofer”. Counsel replied:
It is accepted that the prisoner and Kennewell were involved together. In answer to your Honour’s question, yes, Kennewell was getting a benefit, as I understand it, of some drugs off my client, and they were both, in effect, in it together.
The concession that both defendants were “in it together” was no more than a concession that both were guilty of the offence charged. It says nothing about the respective roles of the two defendants.
In short, I do not consider that there were any inconsistent submissions put to the sentencing Judge. He did not suggest that there were. Furthermore, it was by no means established that Kennewell was at least an equal partner in the enterprise with the appellant. There was ample justification on the evidence for the sentencing Judge to treat them differently for sentencing purposes.
In respect of all other grounds of appeal I agree with the reasons of Gray J and have nothing to add to those reasons. In my opinion the appeal should be dismissed.
GRAY J:
Introduction
This is an appeal against sentence.
The appellant pleaded guilty before the District Court to the offences of taking part in the sale of methylamphetamine and possessing methylamphetamine for sale. On 2 February 2005, the appellant was sentenced to imprisonment for four years. A non-parole period of two years was fixed. The sentencing Judge declined to suspend the sentence. The appellant was sentenced at the same time as a co-offender, David Ian Ronald Kennewell.
Kennewell was charged with only one offence of taking part in the sale of methylamphetamine. He was sentenced to a term of imprisonment of two years and eight months with a non-parole period of 16 months. However, the Judge exercised his discretion to suspend the sentence of imprisonment.
Leave to appeal was granted on the grounds that the sentencing Judge:
-erred in characterising the appellant as the dominant offender and in finding that the appellant “persuaded” his co-offender, Kennewell, to assist him;
-imposed a sentence on the appellant which was unjustifiably different from the sentence imposed upon the co-accused, namely that the co-accused’s sentence of imprisonment was suspended;
-erred in not suspending the term of imprisonment imposed on the appellant in that he failed to have sufficient regard to the appellant’s age and antecedents;
-incorrectly proceeded to sentence on the basis that the maximum penalty for the offences was life imprisonment; and
-imposed a sentence that was manifestly excessive.
Circumstances of the offending
On 23 August 2003, the appellant and Kennewell drove to Adelaide Airport. Upon arrival, the appellant gave Kennewell a parcel and asked him to arrange for it to be freighted to a person in Alice Springs. Kennewell went to the Australian Air Express and made the necessary arrangements. The contents of the parcel were described as “drill bits”. The parcel was suspicious and the police were called. The parcel contained a section of sealed PVC piping, which was later examined by the police and found to contain 26.7 grams of powder, of which 6.32 grams was methylamphetamine. The appellant and Kennewell were later jointly charged with taking part in the sale of that quantity of methylamphetamine.
In a subsequent search of the appellant’s home, the police located several press-sealed bags containing methylamphetamine, or traces of that drug. One of the bags contained 1.29 grams of methylamphetamine. Two other bags contained 0.03 and 0.07 grams of methylamphetamine. The police also discovered a set of scales bearing traces of methylamphetamine and a pocket diary containing records of names, dollar amounts and quantities. The appellant was subsequently charged with the further offence of possessing methylamphetamine for sale.
The Approach of the Sentencing Judge
When determining an appropriate sentence, the Judge had regard to the appellant’s personal and criminal antecedents. At the time of sentencing, the appellant was 52 years old. He did not have any prior convictions for drug-related offences. The appellant had not served time in prison prior to this offending. His only criminal antecedents were drink-driving offences.
The sentencing Judge took the view that the appellant had influenced and persuaded the younger Kennewell to assist him. The Judge proceeded on the basis that the appellant supplied Kennewell with drugs as payment. At the time, Kennewell was aged 20 years.
The sentencing Judge applied section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed a single penalty in relation to the appellant’s offending. The Judge took into account counsel’s submissions urging leniency on account of the pleas of guilty, co-operation with police, commitment to rehabilitation, previous good character and the unlikelihood of re-offending. The Judge reduced the sentence from five years to four on account of the pleas. The Judge was satisfied that he could extend some measure of leniency by fixing a slightly lower non-parole period than he would otherwise have imposed.
The sentencing Judge was unable to conclude that there was good reason to suspend the sentence of imprisonment that he intended to impose. He said that suspension of a sentence for offences of this type would only be justified in rare and exceptional circumstances, and that such circumstances did not arise in respect of the appellant.
The Appeal
Approach to Sentencing
The following propositions may be accepted:
-A plea of guilty establishes the essential ingredients of the offence as charged.
-Beyond the plea, disputed facts relied upon by the Crown adverse to the interest of the accused or any that aggravate the offence must be established by some appropriate procedure.
-Any dispute about matters beyond the essential legal ingredients of the offence admitted must be resolved in accordance with ordinary legal principles, including the resolution of a reasonable doubt in favour of an accused.
It is also desirable, when co-offenders are to be sentenced, for the court to proceed on a common factual basis.
In Olbrich,[1] Gleeson CJ, Gaudron, Hayne and Callinan JJ observed:[2]
We do not accept that the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process.
It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate.
...
There is a very practical reason for concluding that a sentencing judge is not obliged to inquire about the course of events before or after an importation of drugs. Very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence.
...
There are, of course, cases in which only one offender is prosecuted but it is clear that the importation is part of a business venture that is organised hierarchically. In such a case a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation. And that, in turn, might assist in identifying the nature of that offender's criminality…
Whether others stood to gain from the respondent's conduct does not, it seems to us, affect what sentence should have been passed on him. That depended on what he had done and who he was, not on what others may have hoped to gain from his activity. But even if this were thought to be a useful inquiry, it was one that could not be pursued in this matter because there was no evidence about it.
It would have been wrong for the primary judge to sentence the respondent on the basis that he was the mastermind (or even an important member) of some larger criminal enterprise. But the primary judge did not do so. He sentenced the respondent as if the respondent had told the police and the court nothing about the circumstances of the event at all.
[1] R v Olbrich (1999) 199 CLR 270.
[2] Olbrich (1999) 199 CLR 270 at [13]-[14],[16],[20]-[22] (emphasis omitted).
Dispute of Fact

Following the pleas of guilty, submissions were made on behalf of the appellant and Kennewell. Counsel for the appellant submitted that the appellant was a middleman obtaining drugs from a supplier and then forwarding the drugs to another party. It was the appellant’s case that he and Kennewell were “in it together”. Counsel for the appellant submitted to the sentencing Judge that he could not have regard to submissions made on behalf of Kennewell that suggested otherwise.
Counsel for Kennewell, in making his submissions, relied on a psychological report, which asserted that the appellant took on a dominant role and persuaded and influenced the immature and youthful Kennewell to become involved in the criminal activities. Counsel for Kennewell relied on this assessment in the course of submissions.
It therefore followed that the Judge was faced with a conflict. It would be a relevant circumstance surrounding the offence for the appellant to have influenced and persuaded a younger man to be involved and for the appellant to have dominated the younger man. Those circumstances tended to increase the appellant’s criminal culpability.
On the other hand, on behalf of Kennewell, it was said that these matters were mitigatory. This, it was submitted, suggested immaturity and gullibility on Kennewell’s part.
Nothing was done to resolve this difference. The Judge did not seek to raise with counsel the need for a disputed fact hearing. Neither counsel sought such a hearing.
It was in these circumstances that counsel for the appellant submitted that the sentencing discretion had miscarried. It was said that the sentencing Judge was bound to proceed to sentence the appellant on the essential facts admitted by his plea, together with the conclusions of fact that could be fairly drawn from the evidentiary material relevant to the appellant. It was contended that the sentencing Judge had had regard to an aggravating circumstance, namely the appellant’s persuasion and influence of a younger man. This, it was said, was in dispute.
Counsel for the appellant submitted to this Court that passages from the record of interview revealed that Kennewell was fully supporting the appellant in drug dealings. He was not the submissive partner in the enterprise as the sentencing Judge was said to have concluded. Kennewell had, contrary to the Judge’s findings, received money as well as drugs. He stood to gain financially. On his own admission, counsel contended, Kennewell was the one who was holding the enterprise together. He was “up to his armpits” in the offending.
Counsel for the appellant submitted that the sentencing Judge should have confined his view of the facts to the material tendered relevant to the sentencing of the appellant. Counsel further said that the sentencing Judge had drawn on submissions made by counsel for Kennewell, and had used that material in reaching conclusions adverse to the appellant. That material included psychological evidence placed before the Court on behalf of Kennewell.
On appeal, counsel for the appellant submitted that the disparity in the head sentences imposed demonstrated that the Judge had treated Kennewell on the basis that he was influenced by the appellant, a dominant person, who had persuaded Kennewell to be involved in their activities. Counsel for the appellant pointed out that it had submitted that, as both offenders were in it together, there was little or no basis to distinguish between the two.
The sentencing Judge took the view that the appellant had influenced and persuaded Kennewell to be involved. However, it has not been demonstrated that the Judge, when sentencing the appellant, proceeded on the basis that the appellant dominated Kennewell.
The sentencing Judge was entitled, on the facts admitted by the appellant, to proceed on the basis that the appellant’s role in the offending involved the greater culpability. The appellant was the point of contact with the provider of the drugs. He arranged the purchase and the delivery. The drug activities appeared to be located at the appellant’s home. The appellant directed Kennewell as to what he was to do on the day of the offending. The role of Kennewell was that of the assistant. But for the appellant’s conduct, there would have been nothing for Kennewell to be involved in. The Judge was entitled to infer that, by reason of their marked difference in years, the appellant had some influence over the younger man. This is borne out by their respective roles on the day. This does not deny the appellant’s submission that they were “in it together”.
Parity
Counsel for the appellant submitted that because the co-accused were equally involved in the offending, the principles of parity should have been applied with the result that both should have received the same sentence.
Counsel for the appellant said that the proper approach for the sentencing Judge to have adopted would have been to treat the two men as having a roughly equal role in the offending. Counsel said that the starting position in respect of sentencing should therefore have been equal sentences for both. Counsel acknowledged that the relative youth of Kennewell was a factor that differentiated him from the appellant, but submitted that the principles of parity nonetheless had application.
Doyle CJ discussed the principles in respect of parity in Wakely v Police:[3]
It is important that the punishment imposed on joint offenders should reflect a consistent approach. An unjustified inconsistency or disparity in the penalty imposed on joint offenders will rightly be regarded by the public as unfair and unjust, and will erode public confidence in the judicial process. As well, an unjustified inconsistency or disparity is unfair to the offender who is prejudiced by that inconsistency or disparity.
Different punishments may be imposed on joint offenders. Differences in their involvement in the offence and in their personal circumstances might warrant different punishments. So might the fact or timing of a plea of guilty, the attitude of the respective offenders to the offence and prospects of rehabilitation. But after allowance has been made for all relevant matters, it might still appear that there is an inconsistency or disparity that cannot be explained or justified. Even then the difference in the punishments must be a substantial one, outside the range that is inevitable and acceptable, bearing in mind that sentencing involves balancing a wide range of factors, and that for any given offence and [sic] offender a punishment within a certain range will be appropriate. The most that can ever be done in relation to a particular offence and offender is to identify a range within which the appropriate punishment should fall.
When a court of appeal is confronted by an unjustified or unwarranted disparity between the punishments imposed upon joint offenders, the court is entitled to intervene. If the disparity would engender a justifiable sense of grievance, the court can reduce a sentence that is not, standing alone, inappropriate or excessive: Lowe v The Queen (1984) 154 CLR 606 at 609-610 Gibbs CJ; at 613 Mason J and at 623 Dawson J; Postiglione v The Queen (1997) 189 CLR 295 at 301 Dawson and Gaudron JJ; at 309 McHugh J and at 322-323 Gummow J; MacGowan at 583 King CJ. The court may find it necessary to reduce the sentence in question below what is an appropriate sentence, but such cases will be exceptional; Lowe at 613-614 Mason J and at 623 Dawson J; Postiglione at 341 Kirby J. It may be necessary to leave the sentence stand in the public interest, to avoid compounding the error; MacGowan at 583 King CJ. In dealing with such cases the court exercises a discretion in which considerations of justice to the individual and broader considerations of justice must be balanced; Lowe at 610 Gibbs CJ; MacGowan at 583 King CJ.
[3] (2003) 229 LSJS 327 at [34]-[36].
Accepting the appellant’s account that the two offenders were “in it together”, there was, nonetheless, ample reason to impose different sentences on the offenders. The age difference between the two was a relevant and significant factor. The sentencing Judge was entitled to take the view that Kennewell’s immaturity and relative youth were factors that made him a better candidate for rehabilitation than the appellant, a man of mature years with an admitted involvement with amphetamines. A further ground for distinguishing between the two was that the appellant was to be sentenced for two offences whereas Kennewell was to be sentenced for one. Further, as earlier pointed out, the Judge was entitled to infer that the appellant had a leading role in the criminal activities and had influence over his younger co-offender.
Failure to suspend term of imprisonment
Counsel for the appellant submitted that the sentencing Judge erred in failing to exercise his discretion to suspend the four-year term of imprisonment. Counsel said that the Judge failed to have sufficient regard to the appellant’s age and antecedents.
The appellant’s personal antecedents were outlined in the sentencing remarks. The Judge recounted the appellant’s employment history. He also referred to the circumstances of the appellant’s childhood and schooling. The Judge took into account the fact that the offending occurred in the context of the appellant’s personal drug dependence. He referred to the appellant’s history as a drug-user.
The decision not to suspend the sentence was open to the sentencing Judge. The decision involved the exercise of discretion. It has not been shown that the sentencing Judge overlooked the material facts or considered irrelevant matters. No error of principle has been shown. As was observed in Manglesdorf,[4] when the offending involves a commercial dealing in drugs, it is only in the “truly exceptional circumstance” that a sentence of imprisonment can be suspended.
[4] R v Manglesdorf (1995) 66 SASR 60 at 63.
Misstatement of Penalty
A further ground of appeal advanced was that the sentencing Judge erred in misstating the penalty for the offence of taking part in the sale of methylamphetamine as life imprisonment. During the course of his sentencing remarks, the sentencing Judge stated:
The maximum penalty for the offence of taking part in the sale of methylamphetamine is imprisonment for life or a fine of $500,000 or both.
Two days after sentencing, the Judge recalled the matter and noted that the correct maximum penalty for the offence of taking part in the sale of methylamphetamine was 25 years or a fine of $200,000 or both. The Judge said, in effect, that he had had regard to appropriate levels of punishment for offending of this type and was not influenced by the maximum penalty. Counsel for the appellant submitted that the appellant was sentenced having regard to the earlier, incorrectly identified, higher penalty.
An examination of the relevant legislation reveals that the determination of precisely what is the correct maximum penalty for the offence of taking part in the sale of methylamphetamine involves a complex question of statutory construction.
The applicant was charged with an offence pursuant to section 32(1)(d) of the Controlled Substances Act 1984 (SA). Section 32(3) provides:
For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person.
Section 32(5)B(b) of the Controlled Substances Act sets out the penalty for an offence pursuant to section 32(1)(d). It provides:
A person who contravenes this section is guilty of an offence and is, subject to subsection (6), liable to a penalty as follows:
…
B. For any other offence under this section:
(b)where the substance the subject of the offence is a drug of dependence or a prohibited substance (not being cannabis or cannabis resin)—
(i)if the quantity of the substance involved in the commission of the offence equals or exceeds the amount prescribed in respect of that not exceeding $500 000 and imprisonment for life or such lesser term as the court thinks fit; or
(ii)if the quantity of the substance involved in the commission of the offence is less than the amount prescribed for the purposes of this subsection—a penalty not exceeding $200 000 or imprisonment for 25 years, or both.
The “prescribed amount” of methylamphetamine for the purposes of section 32(3) is 0.008 kilograms, pursuant to schedule 2 of the Controlled Substances (Prohibited Substances) Regulations 2000 (SA).
Given that the applicant was found to be in possession of 6.32 grams of methylamphetamine, the maximum penalty attached to his offence is that provided for in section 32(5)B(b)(ii), namely, “a penalty not exceeding $200,000 or imprisonment for 25 years, or both”.
As earlier observed, the Judge misstated the maximum penalty. The Judge later acknowledged this misstatement and correctly identified the relevant penalty. The Judge said that the penalty had not been influenced by the misstatement of the maximum penalty. The penalty imposed was well within the range of penalties generally imposed for this type of offending. Any misapprehension as to the maximum penalty has not led to the imposition of an inappropriate penalty in the present case. There would be no point in interfering on this basis, as I would not impose a lesser sentence.
Manifestly excessive
The sentencing Judge described the nature of the offending as follows:
Your offending is very serious. Involvement such as yours in packaging and arranging the delivery of drugs forms an essential part of the drug distribution process, without which trading cannot occur. The fact that it here occurred against a background of such dealing adds substantially to the seriousness of what you have done, because this was not a one-off transaction.
It is not surprising that the Judge viewed the offending as serious. Commercial dealing in prohibited drugs is a serious matter. The offences committed by the appellant are of a kind about which there is considerable community concern.
The approach and remarks of the sentencing Judge are supported by the observations of Doyle CJ in Manglesdorf:[5]
This Court has established standards for the punishment of crimes of the type dealt with by the judges in the cases the subject of the present application. The court has referred time and again to the severe penalties imposed by s 32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s 32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs.
[5] Manglesdorf (1995) 66 SASR 60 at 63.
The offending of the appellant was grave. The offence of taking part in the sale of methylamphetamine involved a covert operation with respect to the delivery of the drugs to Alice Springs. This was a commercial dealing in methylamphetamine. For his part in the transaction, the appellant was to receive both money and drugs.
The offence of possessing methylamphetamine for sale related to the drugs found at the appellant’s home. The drugs were found in press-sealed bags. Scales were present, together with a pocket diary containing records of names, dollar amounts and quantities.
Although the appellant had no prior offences with respect to drugs (apart from alcohol related offences) it was acknowledged that he had been involved in the commercial dealing in amphetamines for some time. The appellant was not to be sentenced in respect of that other conduct and was only to be sentenced in respect of the two offences to which he pleaded guilty. However, his admitted earlier involvement in the drug trade made it more difficult to extend leniency.
The appellant’s offending, accepting his account of the nature of the involvement of Kennewell, called for a sentence in the order of five years’ imprisonment. A reduction of 20 percent, on account of his pleas, was in the circumstances an appropriate reduction. A non-parole period of two years was unexceptional. Such a non-parole period could be described as merciful. The appellant was of mature years and deliberately set about engaging in the drug trade. He has been involved in covert activities designed to allow for the dissemination of drugs for profit. Good reason did not exist to suspend the term of imprisonment.
This is a heavy penalty for a man of mature years with a reasonably good record who has never been in custody before. However, Parliament has made it clear that offending involving commercial dealings in drugs calls for an immediate custodial sentence. The head sentence and the non-parole period imposed were well within the range of appropriate punishment for the offences of taking part in the sale of methylamphetamine and possessing methylamphetamine for sale. It cannot be said that the sentence imposed was manifestly excessive.
In these circumstances the appeal should be dismissed.