R v Wolfgang Uwe Meyer (Appellant) No. Sccrm-97-120 Judgment No. 6335 Number of Pages 14 Criminal Law

[1997] SASC 6335

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

COX, PERRY AND DEBELLE JJ

Criminal law - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - applications to reduce sentence - appeal against sentence for possessing heroin for sale - plea of guilty at late stage - appellant has serious criminal record - totality and parity principles - previous unexpired sentences still to be served - appropriate level of penalties for heroin couriers discussed - reduction for assistance to police by appellant adequate - however, appellant had admitted only one offence and could not be sentenced on the basis that this offence was representative - Judge wrongly required appellant to serve two unexpired parole periods consecutively - appeal allowed. Controlled Substances Act 1984s32; Correctional Services Act 1982 ss74A, 75; Criminal Law (Sentencing) Act 1988s31, referred to. R v Hooper
(1995) 64 SASR 480; R v Cox (1996) 185 LSJS 206; R v Margetson (1987) 139 LSJS
325, applied. R v Mangelsdorf (1995) 66 SASR 60; R v Osenkowski (1982) 30 SASR
212; Postiglione v R (H.C.of A., 24.7.97 unreported) , discussed.

ADELAIDE, 21 July 1997 (hearing), 29 August 1997 (decision)

#DATE 29:8:1997

#ADD 8:9:1997

Appearances :

Counsel for appellant: Mr W F Braithwaite

Solicitors for appellant: Mr J Lister

Counsel for respondent: Mr S A Milsteed QC

Solicitors for respondent: DPP (SA)

Order: appeal allowed.

COX J

The appellant pleaded guilty in the District Court on 24 February 1997 to possessing heroin for sale: Controlled Substances Act 1984s32(1)(e). The offence occurred on 20 July 1995 at Elizabeth North when the police spoke to him and found that he was carrying in his mouth a plastic bag containing 5.08 grams of powder of which 2.49 grams were heroin. The appellant said he was acting as a courier for a drug dealer. The Judge made what he called a nominal discount for a very late plea of guilty and a substantial discount for the appellant's assistance to the police in what he understood to be a quite separate matter. He passed a sentence of four years' imprisonment and made it cumulative upon the appellant's previous sentences - there were two unexpired sentences which he added together - making a total head sentence of six years, ten months and ten days. He fixed a non-parole period of four years and six months and ordered that both sentence and non-parole period should run from 25 March 1997, which was the date of sentence.

There are numerous grounds of appeal including a complaint that the sentence was manifestly excessive and that the learned Judge misunderstood the relevant facts. There is also a question of the proper interpretation of the Correctional Services Act 1982.

At the time he was sentenced the appellant was forty years of age, divorced, with a young daughter. He had a history of drug use. He also had a serious criminal record. After a series of minor drug offences he was sentenced in this Court in January 1989 for a number of offences of amphetamine dealing to a total of five and a half years' imprisonment, with a non-parole period of two and a half years. In May 1989 he was sentenced in the Para Districts Magistrates Court for two months' imprisonment for unlawful possession, made cumulative upon the January sentences. The non-parole period was not extended. In 1991, in this Court, the appellant (following an appeal) received a sentence of six years' imprisonment, with a non-parole period of five years, for wounding with intent to do grievous bodily harm. The sentence was backdated to 7 April 1990. On 30 September 1993 the appellant was released on parole and he was still on parole when he committed the present offence.

The first ground of appeal is that the sentence was manifestly excessive. The learned Judge said that but for the police assistance the sentence would have been six years' imprisonment and Mr Braithwaite, for the appellant, argued that this, particularly in view of the plea of guilty, showed that the Judge took too high a starting point. In support of this submission we were referred to the Full Court's decision in R v Mangelsdorf (1995) 66 SASR 60 in which, on a successful Crown appeal, the Court increased a heroin dealer's sentence to four years.

It is important to understand that Mr Mangelsdorf's revised sentence did not set the penalty standard for street trading in heroin. All that the Full Court was saying was that, after making full allowance for Mr Mangelsdorf's candour with the police and his plea of guilty and his good record and the tragic circumstances that gave rise to his heroin addiction, a sentence of less than four years could not be justified. Plainly the sentence would have been considerably higher had it not been for the mitigating circumstances. For the broad standard of punishment for the typical street trader in heroin one has to go to a series of decisions, a number of which are discussed in Mangelsdorf itself. For another decision from the period before the Court made allowance for remissions, see The Queen v Osenkowski (1982) 30 SASR 212, where the revised sentence for a small scale retailer who had been convicted by a jury and had some possession convictions was six years. The earlier appeal cases of The Queen v Curnow (1980) 91 LSJS 447 and The Queen v Watson (1981) 96 LSJS 384 were in accordance with that decision.

However, if the appellant was a typical offender, the learned Judge was not obliged to regard the tariff as the maximum possible sentence. The appellant had convictions in 1989 for multiple drug dealing offences, serious enough to warrant a sentence of five and a half years, and the transcript of the 1991 sentence appeal shows that the aggravated wounding offence was also drug-related. He was on parole when he committed the present offence. All of that made him an atypical offender for whom the normal tariff was not necessarily the appropriate starting point. See Hooper (1995) 64 SASR 480. The learned Judge was not prepared to give the appellant more than a "nominal" discount for a plea of guilty which was notified only the week before the trial date. He indicated that, if a defendant wants to earn a substantial discount for a guilty plea, he needs to enter his plea before the trial date is set. I see no reason to question the learned Judge's attitude, either generally or with respect to the facts of this case. The grounds offered for the late plea were specious. I infer from the Judge's reference to a nominal discount that he made some allowance for the plea but a very small one. On the view that his Honour took of the relevant facts, police assistance aside, a sentence of six years could be regarded as severe but would not call for interference on appeal.

The learned Judge reduced the sentence by one third because of the police assistance. The Judge was under a misapprehension - understandably, from my reading of the papers - that the assistance the appellant gave related to another person and not to the man who supplied him with the heroin that was the subject of this charge; indeed, that the appellant had refused to name his supplier. I do not think the difference is very important. The Judge took into account that the appellant had already suffered some physical retaliation for his disclosures to the police and would presumably have to serve his prison sentence in protective custody. I do not think he can reasonably complain of the discount he received for helping the police. Cf R v Cox (1996) 185 LSJS
206.

In fact, the appellant did identify to the police the man from whom he obtained the heroin that the police found in his possession. That man was later the subject of a police undercover operation which resulted in his being charged separately with possessing seven and a half grams of heroin for sale. He was sentenced by another Judge to three years' imprisonment. So the quantity of heroin found on the supplier was larger, though that of itself is not of great moment, and that person was a retailer, not a courier. However, he had no relevant previous convictions and he also entered a prompt plea of guilty. That made his case significantly different from the appellant's. I think, looking at the two cases together, that the appellant was treated a little more severely than his supplier but whether he has a justifiable sense of grievance is another matter. The Judge was not asked to take into account the sentence that had been passed on the supplier twelve months earlier; indeed, he was not told anything about it. The offence for which the supplier was sentenced was not directly related to the appellant's offence. I do not think that there is such a manifest discrepancy between the two sentences as to require allowing the appellant's appeal on that ground.

Mr Braithwaite submitted that factual basis upon which the learned Judge sentenced the appellant was wrong in another respect as well. He treated the offence as a continuing one when the appellant was admitting to no more than a single offence on a single occasion. It is not surprising that the Judge should have misunderstood the appellant's position (if indeed he did). When the appellant was questioned by the police, he was not only concealing in his mouth the bag containing five grams of heroin powder, but he also had in his mouth two empty plastic bags one of which contained heroin traces. The report of Mr Fugler, which the appellant's counsel handed up to the Judge, implies a course of conduct. So far from repudiating that part of the report, counsel in his sentencing submissions appears to have suggested, if not in so many words, that the appellant had been acting as a courier for a couple of months. It is understandable, then, that the learned Judge did not realize that the appellant had been caught in his one and only relevant criminal act. However, he was charged with a single offence and on a plea of guilty he could not be punished on the footing that this was a representative count in the absence of clear evidence or an unequivocal admission. It often happens that the witness statements indicate plainly, though perhaps indirectly, a continuing business and the defendant does not challenge that evidence when he enters his plea, but that was not the situation here. Not without some hesitation, in view of the indicators to the contrary that I have mentioned, I think the appellant is entitled to take the point now. In my opinion, this ground of appeal succeeds.

Next, Mr Braithwaite submitted that the Judge erred in sentencing the appellant on the basis that his role as a courier was no less serious than a street dealer involved in selling small quantities of heroin. His Honour cited R v Moreton (1987) 136 LSJS 182 in support of his view. It was put to us that a courier is lower down the chain of distribution than the retailer and so must be regarded as less blameworthy.

Moreton's Case emphasized the interdependence of those engaged in the illegal drug trade. It rejected the argument that the courier's offence was necessarily less serious than that of the small retailer. A courier may have quite a substantial part to play in a drug business. While the Courts recognize broad categories of involvement, it is possible to classify roles with excessive refinement. It is not appropriate to have different penalty classifications that distinguish the retail trader and the servants or commission agents who help him run his business. Assessing the relative criminal culpabilities will depend on all the circumstances. I would not see the appellant's culpability as being much different from that of a person making a retail sale of the same quantity of heroin for his first and only time.

Then, it is said that, by accumulating the sentence of four years for possessing heroin for sale with the two unexpired sentences which, his Honour said, amounted to two years, ten months and ten days, the Judge failed to have sufficient regard to the principle of totality. I assume for the moment that those two unexpired sentences were themselves properly aggregated as well as made cumulative on the new sentence. The view has been taken in this jurisdiction that the totality principle does not apply to previous unexpired sentences, but is one of the personal circumstances of a prisoner that have to be considered when assessing a later sentence. See Margetson (139 LSJS 325) and Rossi (142 LSJS 451) and Chandler (1994) 62 SASR 558. In other places the totality principle appears to apply whenever one sentence is being made cumulative upon a sentence already being served or to be served. See, for example, Millen (1980) 2 Cr.App.R.(S.) 357, Brock (CA of Victoria, 22 February 1996, unreported) and Postiglione v The Queen (High Court, 24 July 1997, unreported). The difference appears to be one of terminology rather than substance. What is important is that the appellant has shown himself to be a persistent drug offender whose latest offence, committed while on parole - a double parole, as it happens - for other serious drug-related crimes, called for a substantial sentence. Taking the unexpired and present sentences at face value, the learned Judge was fully justified in not discounting the new sentence by reason of the totality principle. There is no merit in this ground of appeal.

Other grounds were urged - that the Judge should have had more regard to the appellant's prospects for rehabilitation and also the effect of the sentence upon the appellant's daughter. In my opinion those grounds cannot succeed.

Finally there is the matter of the aggregated unexpired sentences. As I have indicated, the present offence was committed while the appellant was on parole and he was in the unusual position of having two unexpired sentences that had to be taken into account. The learned Judge aggregated them. While the notice of appeal complained that the latest sentence was excessive, both in itself and by reason of the totality principle, it did not complain specifically of the aggregation of the unexpired sentences and it did not suggest that the aggregation was contrary to law. However, after we had reserved our decision on the appeal, the appellant sought to add the following additional ground of appeal -

"That the learned sentencing Judge erred in law in ordering that the two unexpired balances of parole that the appellant became liable to serve upon being sentenced to imprisonment be served cumulatively."

This application followed the provision by the Parole Board to the Court of certain information about the appellant's sentences and the way the Parole Board has interpreted them in light of the parole legislation. The Court directed that the appellant present his argument in support of this ground in writing and this was done. The Director of Public Prosecutions was given the opportunity to comment on the application and the submissions filed in support of it. His response was to concede that the learned Judge erred in ordering that the appellant's unexpired prison sentences be served cumulatively among themselves.

The appellant's relevant sentence and parole history is complicated. In April and May 1989 he was given sentences in this Court and the Magistrates Court for which a non-parole period of two years and six months was fixed. In March 1990, by reason of the remissions he had earned, he was released on parole (the first parole) with the parole term due to expire in August 1994. In May 1991 he was sentenced in this Court for the aggravated wounding offence which had been committed in 1988. His sentence for that offence, following an appeal, was six years, with a non-parole period of five years, to commence on 7 May 1990. In accordance with s74A of the Correctional Services Act, the sentence had the effect of suspending the first parole for the duration of the imprisonment actually served in prison in accordance with the 1991 sentence. The appellant served out the new non-parole period and in September 1993 he was released on parole with respect to that sentence (the second parole), with the parole due to expire in November 1995. On the commencement of the second parole the appellant, by reason of s74A, resumed his first parole so that the two parole terms were being served concurrently. In March 1997, before either parole term had expired, he was given the present sentence of four years' imprisonment for the heroin possession offence committed on 20 July 1995, on which date the unexpired balance of the first parole was two years, six months and three days and of the second parole four months and seven days. As I have indicated the learned Judge ordered that those two unexpired sentences be aggregated and the new sentence served cumulatively upon them, making a total head sentence of six years, ten months and ten days. The question is whether the unexpired parole periods should have been aggregated.

Section 75 of the Correctional Services Act requires that where a prison is imprisoned for an offence committed while on parole,

" the person is liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed."

The first three sub-sections of s31 of the Criminal Law (Sentencing) Act1988 read -

"(1) Subject to subsection (2), the court by which a sentence of imprisonment is imposed may direct that the sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the defendant.

(2) Where a sentence of imprisonment is imposed for an offence committed by the defendant -

(a) during a period of release on parole; or

(b) while serving a period of imprisonment pursuant to an order of the Parole Board for breach of parole conditions,

the sentence will (except where one of the sentences to which the defendant is subject to life imprisonment) be cumulative upon the sentence, or sentences, in respect of which the defendant was on parole.

(3) A direction may be given under subsection (1) irrespective of the number of cumulative sentences that the defendant is already serving or will, in consequence of the direction, be liable to serve."

Presumably these were the provisions under which the learned sentencing Judge purported to act. However, regard must be had as well to s74A of the Correctional Services Act which it is convenient now to set out in full -

"Where a person who has been released on parole is sentenced to imprisonment for an offence committed before release on parole or for non-payment of a pecuniary sum -

(a) the parole is suspended for the duration of the imprisonment actually served in prison in pursuance of the subsequent sentence; and

(b) on release from prison -

(i) the person will continue on parole in respect of the sentence that was first imposed for the balance of the period of parole remaining as at the date of the commencement of the subsequent sentence; and

(ii) if released on parole from the subsequent sentence, the person will on release also be on parole in respect of that sentence for the period of that parole."

The clear legislative policy and requirement here are that the two parole periods that the section envisages will run concurrently with one another from the time the prisoner is released on parole from the subsequent sentence. The concurrency is not a matter for a court's or the Parole Board's discretion. It is simply what the Act provides. The appellant's two unexpired sentences were therefore running together from September 1993, when the appellant was last released on parole, and there seems to be no good reason why they should not have continued to run together when, the appellant, by reason of his latest conviction, ceased to be on parole and resumed serving those sentences in prison. I agree with Mr Braithwaite that neither s75 of the CorrectionalServices Act nor s31 of the Sentencing Act requires that the two unexpired balances be aggregated and I think it is probably correct to say that any such aggregation would be inconsistent with s74A. At any rate, I consider that it would be unfair to aggregate the unexpired sentences in light of the policy implicit in that section. For these reasons I am of the opinion that the learned Judge was in error when he aggregated the appellant's two unexpired sentences. The effect was to increase the new head sentence impermissibly to the extent of the shorter of the two unexpired sentences, namely, by four months and seven days.

I would therefore allow the amendment that the appellant seeks to make to his notice of appeal and uphold the new ground.

Thus the appellant has succeeded on some grounds of appeal and failed on others. He should not have been sentenced for more than the single offence committed on the day the police spoke to him. For that reason alone, in my opinion, the appeal must be allowed. The sentence was, on the face of it, at the top of the scale. If the learned Judge had been given the full story about the appellant's supplier, he may have made some allowance in the appellant's sentence on that account.

I would allow the appeal and set aside the sentence and non-parole period imposed in the District Court. Instead, I would sentence the appellant to three years' imprisonment for possessing heroin for sale, cumulative upon the two unexpired sentences of two years, six months and three days and four months and seven days respectively which should be treated as being served concurrently with one another from 25 March 1997. That makes a new head sentence of five years, six months and three days. I would fix a non-parole period of four years which would also run from 25 March 1997.

PERRY J

The circumstances of this appeal against sentence are set out in the reasons published by Cox J.

I agree substantially with his reasons.

But I would add a comment as to the ability of the Court to aggregate terms of imprisonment where an offence is committed during the course of release on two or more parole periods which, because of the operation of s74A of the Correctional Services Act 1982, are running concurrently.

In such circumstances, I do not consider that the aggregation of the prison terms represented by the balance unexpired of the sentences with respect to which the concurrent periods of parole relate is inconsistent with s74A.

In my opinion, it is entirely a matter for the discretion of the Court whether or not in such circumstances the unexpired terms should be made concurrent or should be served cumulatively. After all, the prisoner must be taken to know that he or she is on parole with respect to more than one offence, and that a breach of parole arising by reason of the commission of a further offence may activate the unexpired balances of more than one sentence.

Particularly in circumstances where the head sentences are being served cumulatively, I see no reason to think that it would necessarily be unfair, or otherwise inconsistent with s74A, in such circumstances to direct that the unexpired balance of the sentences with respect to which the prisoner was released on parole likewise be served cumulatively.

But each case will depend on its own facts.

In the particular circumstances of this appeal, I would not go so far as to disagree with the order proposed by Cox J.

I agree that the appeal should be allowed, and that an order be substituted in the terms which he suggests.

DEBELLE J

I agree with the reasons of Cox J and the orders he proposes.