R v Zahra No. Sccrm-98-175 Judgment No. S7010

R v ZAHRA
[1998] SASC 7010

Court of Criminal Appeal: Millhouse, Olsson and Debelle J

Millhouse J. At the end of argument the Court was unanimously of the view that this appeal should be dismissed. We gave judgment accordingly.
My brothers Olsson and Debelle have now prepared reasons for their views. I agree in substance with both my brothers and now, on their behalf publish their reasons.
OLSSON J. The appellant in this matter was convicted, by verdict of a jury, of the offence of possessing cannabis for sale. When he came before a District Court Judge for sentence he pleaded guilty to a separate charge, on complaint, that, on 30 October 1997 at Beverley, he had in his possession $5000 in cash which, either at the time of such possession or subsequently, was reasonably suspected of having been stolen or obtained by unlawful means.
Because the two offences were the subject of separate proceedings the learned sentencing judge was unable to resort to the provisions of s18A of the Criminal Law (Sentencing) Act 1988.
In relation to the offence of possession for sale the appellant was sentenced to a term of 30 calendar months imprisonment. He received a separate sentence of six calendar months imprisonment for the unlawful possession offence, to be served concurrently with the drug offence. A non parole period of 15 calendar months was fixed. A submission that the sentences be suspended was rejected.
The appellant complains that the sentences imposed are manifestly excessive and that the custodial sentences ought to have been suspended. In particular it is contended that the learned sentencing judge erred in concluding that the offending had been committed against a background of involvement in commercial trading or dealing in drugs.
The appellant came before the court as a 39 year old man who had a number of prior convictions, mainly for illegal use and larceny committed as a juvenile between 1969 and 1976. He has had several convictions since then as an adult, but none of them for serious criminal offences.
The drug offence arose from the fact that the appellant was found in possession of just under 4 kilograms of female cannabis head, with some leaves mixed in.
The learned sentencing judge accepted that this was the product of six plants which had been cultivated by the appellant himself. He also accepted that the appellant was a personal user of cannabis. Indeed his own counsel had volunteered that he had been growing cannabis since 1992. He was accustomed to chewing, rather than smoking, it - to relieve back pain which he experienced.
As the learned sentencing judge pointed out, the appellant gave evidence at his trial that his intention had been to consume all of the cannabis himself and that none of it had been intended for sale. However, the jury verdict, given on the evidence bearing on that aspect, plainly negated such an assertion. The verdict, the learned sentencing judge said, clearly pointed to a commercial motive for the purposes of s44 of the Controlled Substances Act 1984.
Attention was directed to the fact that, on searching the premises, the police found various items of a circumstantial nature in that regard, not the least of which was the sum of $13000 in cash.
The appellant had originally been charged with unlawful possession of $13000, but, by negotiation, this had been reduced to $5000 because the appellant had been able to account for $8000 of the money. The learned sentencing judge said that he was in no doubt that significant moneys had been obtained from selling cannabis. Whilst counsel for the appellant informed the learned sentencing judge that the unlawful possession plea had been based on an inability to satisfy the statutory reverse onus and that there was no concession that the relevant money was the product of illegal sales of cannabis, he conceded that this was an inference which the learned sentencing judge could lawfully draw.
In the course of submissions the following exchange occurred between counsel for the appellant and the learned sentencing judge:-
“MR WAYE:               What I am saying is that certainly if there is an element of a past sale, it could not have been very much because it’s never been disputed by the prosecution that there was 6 plants.
HIS HONOUR:           But it must have been at least to the extent of $5,000 on the basis of the plea of this particular charge.
MR WAYE:                  The defendant said they were the best plants he had grown. You will recall that evidence. Therefore, the maximum probably from 6 plants would be 10 pounds and that is a highly productive crop. That leaves approximately 2 pounds that has gone somewhere.
HIS HONOUR:           Therefore, he must be sentenced on the basis, not only that he had it for sale, but that he had actually sold some in the past.
MR WAYE:                  A pound or so.
HIS HONOUR:           Do you accept I must sentence him on that basis?
MR WAYE:                  Yes. And I do ask you to take into account, of course, that he has lost $5,000 as a result of his plea to the unlawful possession.”
Mrs Shaw QC, of senior counsel for the appellant, sought to resile from the foregoing concessions. She said that they were erroneous concessions of law which flew in the face of Anderson v The Queen (1993) 177 CLR 520, Skrjanc v The Queen (1994) 71 A Crim R 347 and Godfrey v The Queen (1993) 69 A Crim R 318. They could and should not have been made.
These authorities, of course, establish the trite proposition that conduct amounting to the commission of other similar offences can only provide a basis for increasing a sentence if the accused is found guilty of those offences at trial, pleads guilty to them and asks for them to be taken into account in fixing penalty, or agrees that counts in the information are to be regarded as representative offences.
She sought to draw comfort from Traiconi v The Queen (1990) 49 A Crim R 417 and a dictum of King CJ in The Queen v Austin (1988) 121 LSJS 181 at 183 to the effect that, generally speaking, if a person is not charged with other conduct said to be criminal, it ought not to be relied upon as a circumstance of aggravation of some other crime. She submitted that, in substance, that was precisely what had occurred in the present case.
There are, in my view, two answers to such a proposition.
The first is that the dictum of King CJ sought to be relied upon needs to be read in the context in which it appears. What he said, in extenso, was:-
“It is true that in imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation.
Just what surrounding circumstances are properly to be taken into account in a particular case is a matter of degree. The courts have to be particularly cautious when the circumstances relied upon themselves may constitute crimes. Often the circumstances amount to crimes of a similar character to that charged and can more readily be taken into account as circumstances of aggravation. Likewise where the criminality of the aggravating circumstances is clearly subsidiary to as well as related to the criminality involved in the conduct constituting the crime charged. Special care, however, is required when the circumstances relied upon as circumstances of aggravation themselves constitute crimes or may constitute crimes of a different character or crimes against different victims.
If a person is to be punished for conduct which is said to be criminal, generally speaking it should not be relied upon as a circumstance of aggravation of some other crime. This, of course, is not a hard and fast rule; everything must depend upon the particular circumstances and, as I have said, it is very much a matter of degree.”
This dictum is, of course, entirely consistent with the following comments made by him in the course of his reasons in Taddeo v The Queen (1993) 67 A Crim R 338 at 339:-
“The respondent, of course, fell to be sentenced, not for anything he had done in the past, but for the particular offence with which he was charged. Nevertheless, that offence takes its colour from, and its character is affected by, the context in which it was committed. The concession which was made, and which is supported by the material to which I have referred, indicates that the court was dealing here, not with an isolated offence, but with an offence committed as an incident in the course of a continuing commercial dealing in the drug.”
What is involved is, indeed, very much a matter of degree, but it seems to me that the lastmentioned dictum is, in reality, an apt description of what occurred in this case. I remain unconvinced that the learned sentencing judge did other than approach his task in that manner.
Perhaps more importantly, I unhesitatingly reject the proposition that the concessions made by trial counsel were mere erroneous concessions of law. At the end of the day counsel quite clearly made express concessions of fact and specifically agreed that the appellant was to be sentenced on such a basis.
That situation has the practical effect of rendering academic the primary submission made by Mrs Shaw QC.
The learned sentencing judge noted that the street value of the cannabis in the possession of the appellant was of the order of at least $30000 - more if it was packaged in smaller quantities.
It was against that background that he said:-
“The considerations to which I have referred, and others to which I need not specifically refer, lead me to the inescapable conclusion that, had you not been prevented from doing so by the timely intervention of the police, you would, at some time thereafter, have embarked upon a moderate criminal enterprise by selling at least part of the prohibited substance to other persons for profit.”
He went on to conclude that, in fact, the evidence left him in no doubt that the large majority of the cannabis was intended to be for sale and would have been sold at a profit.
In considering the issue of whether or not any sentence imposed ought to be suspended the learned sentencing judge was unable to conclude that the ill health of the appellant (which had been stressed by his counsel) gave rise to a serious risk of imprisonment having a gravely adverse effect on him.
He then proceeded to review other factors bearing upon a possible suspension. However, he decided that the inherent gravity of the offence and the associated factors of deterrence and punishment outweighed other considerations. He therefore declined to suspend the sentences imposed.
In the course of submissions as to sentence counsel for the appellant at first instance emphasised these matters, which were placed before the learned sentencing judge:-

.the appellant left school in year 9 and thereafter had a series of largely unskilled jobs constituting a consistent work record;
.he ultimately sustained a work related injury which led to a Workcover claim which has recently been settled;
.he is left with an assessed 30% disability of his lower back and a 20% disability of one leg. He suffers ongoing pain;
.he had permanent accommodation with his aunt and had achieved a full realisation of the seriousness of his conduct;
.despite his earlier offending he has, in more recent years, not committed any serious offences; and
.apart from his other physical problems he has been a diabetic for some years. That condition deteriorated whilst he has been in custody on remand.

Two other points also arose for consideration.
The first was that, by pleading not guilty to the major offence, the appellant was not entitled to any sentencing discount in relation to it. The second was that the learned sentencing judge had no positive information as to the provenance of the $5000 unlawfully possessed. It was a question of what inference should fairly be derived from the totality of the evidence.
The essential thrust of counsel at first instance was that, in all of the circumstances, this could be regarded as a first offence of its type and was not in the most serious category. Stress was also placed upon the fact that the appellant had not had the previous benefit of a suspended sentence; and that, by virtue of his physical condition, prison would bear very hard on him.
It was urged upon this court that the sentence imposed was simply too draconian a response to the factual circumstances.
It is clear that all of these matters were taken into account by the learned sentencing judge in coming to the conclusion which he expressed. I cannot accept that they collectively indicate that, on a proper weighting of them, he fell into error.
In my opinion no arguable challenge can be, or has been, mounted to the head sentences imposed on the appellant. In light of the verdict of the jury, the conclusions of the learned sentencing judge as to the intention of the appellant, the content in which the offences were committed, and the absence of any entitlement to a sentencing discount, the imposition of a custodial sentence was inevitable. Moreover, bearing in mind the quantity of cannabis involved and the unaccounted cash, it seems to me that the learned sentencing judge was well entitled, as he did, to infer that the appellant was, indeed, engaged in a moderate sized ongoing criminal enterprise.
Even given his quite modest recent antecedent background this was not the situation of a person who was of the nature of a first offender, in the broad sense of the concept. He had, on his own admission, been breaking the law consistently since 1992 by cultivating cannabis.
I consider that the only issue which arises on this appeal is whether it can reasonably be argued that the learned sentencing judge erred in not suspending the sentences imposed.
As to this, the decisions of this court render it clear that, in the case of a serious offence such as possession for sale, suspension will not be appropriate in other than exceptional circumstances (R v Mangelsdorf (1995) 66 SASR 60). Like the learned sentencing judge I do not see any good reason, in the form of the requisite exceptional circumstances, which could possibly have warranted a suspension. No error on the part of the learned sentencing judge has been demonstrated.
For these reasons I was of the view that the appeal ought to be dismissed.

DEBELLE J. The facts of this appeal have been recited by Olsson J whose judgment I have had the advantage of reading.
Mrs Shaw QC submitted that the remarks made by the sentencing judge when sentencing the appellant disclose that the circumstances of aggravation relied upon by the judge themselves constitute a crime. She submitted that the judge had, therefore, contrary to well-established principle, punished the appellant for a crime with which he had not been charged: De Simoni (1981) 147 CLR 383; Austin (1985) 121 LSJS 181; Godfrey (1993) 69 A Crim R 318 and Traiconi (1990) 49 A Crim R 417.
It is clear that special care must be taken to maintain the distinction between circumstances of aggravation and a crime with which the accused has not been charged. As King CJ said in Austin (at 183), it may be a matter of degree. His Honour’s observations are apposite in this case:
“It is true that in imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation.
Just what surrounding circumstances are properly to be taken into account in a particular case is a matter of degree. The courts have to be particularly cautious when the circumstances relied upon themselves may constitute crimes. Often the circumstances amount to crimes of a similar character to that charged and can more readily be taken into account as circumstances of aggravation. Likewise where the criminality of the aggravating circumstances is clearly subsidiary to as well as related to the criminality involved in the conduct constituting the crime charged. Special care, however, is required when the circumstances relied upon as circumstances of aggravation themselves constitute crimes or may constitute crimes of a different character or crimes against different victims.
If a person is to be punished for conduct which is said to be criminal, generally speaking justice requires that he be charged with it and have the opportunity of defending himself. If he is not charged with it, generally speaking it should not be relied upon as a circumstance of aggravation of some other crime. This, of course, is not a hard and fast rule; everything must depend upon the particular circumstances and, as I have said, it is very much a matter of degree.”
For the reasons which follow, I do not think that the sentencing judge has erred in the manner suggested by Mrs Shaw QC. Instead, he was concerned only with circumstances of aggravation.
An examination of the transcript of the sentencing submissions shows that the sentencing judge was concerned to establish the seriousness of the offending and was enquiring whether there were aggravating circumstances. He was not punishing the appellant for past sales. That is apparent from the fact that the judge was at the same time sentencing the appellant for the unlawful possession of $5,000. It would, therefore, have been readily apparent to the judge that he should not punish the appellant for any past dealing which might have caused the appellant unlawfully to have possession of the sum of $5,000.
Furthermore, the remarks made by the sentencing judge when sentencing the appellant show that he was concerned only to assess the seriousness of the offending. He said:
“My view is that on the verdict of the jury, and based on your plea to possessing $5,000 which was reasonably suspected of having been stolen, or unlawfully obtained, your case has clear commercial overtones.
I note, as I must, that the quantity of cannabis involved in this case had a market value of at least $30,000 as packaged, and that it would have had a greater value had it been packaged in smaller quantities.
The considerations to which I have referred, and others to which I need not specifically refer, lead me to the inescapable conclusion that had you not been prevented from doing so by the timely intervention of the police, you would, at some time thereafter, have embarked upon a moderate criminal enterprise by selling at least part of the prohibited substance to other persons for profit.
Accepting, as I do, that you were a user of the substance, the evidence before me leaves me in no doubt that only a small portion of it was intended to be for your personal consumption. Differently expressed, I am satisfied beyond reasonable doubt that the large majority of what you had was intended to be for sale, and would have been sold at a profit.”
The reference to the unlawful possession of $5,000 was made for the purpose of determining the commercial purpose of the cannabis the subject of the offence for which the appellant was being sentenced. I do not think that the judge erred as a matter of law when fixing the sentence for the offence of possession of cannabis for sale.
There were two grounds of appeal. The first was that the sentence was manifestly excessive. The second was that the trial judge erred in deciding not to suspend the sentence. The remaining arguments advanced in support of the appeal were tantamount to asking this court to exercise the sentencing discretion afresh. That is certainly not the function of this court. The appellant has not demonstrated any error of the kind referred to in House v The Queen (1936) 55 CLR 499. It is unnecessary for me to canvass again the matters identified in the reasons of Olsson J.

I, therefore, agree with Olsson J that this appeal should be dismissed.

[1998] SASC 7010

22 December 1998