R v Zwarcyz No. Scgrg-98-110 Judgment No. S6781
[1998] SASC 6781
•20 July 1998
R v ZWARYCK
[1998] SASC 6781
Court of Criminal Appeal (ex tempore)
Coram: Millhouse, Perry and Nyland JJ
Millhouse J
I will ask my sister to give her reasons first.
Nyland J
The appellant appeals against the sentence imposed in the District Court following his entering a plea of guilty to a charge of possessing heroin for supply, contrary to the provisions of s.32(1)(e) of the Controlled Substances Act 1984.
At the commencement of the hearing the appellant applied to adduce fresh evidence, pursuant to s.359(c) of the Criminal Law Consolidation Act 1935. The fresh evidence sought to be led is annexed to the affidavit of Darren Marcello Russo, solicitor, dated 15 July 1998. It consists of a statement of the appellant which is undated, but which appears to have been obtained by his solicitor on 17 June 1998. It represents additional instructions obtained from the appellant by his solicitor at that time, and includes information which was not in his possession at the time of the sentencing submissions.
Generally, appellate courts will receive fresh evidence which is not adduced before the sentencing judge if it is established that:
(a)..... the evidence could not have been obtained with reasonable diligence for use at the trial;
(b).... the evidence was such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and
(c)the evidence must be apparently credible.
In this case I am unable to perceive anything in the proposed statement which could not have been obtained with reasonable diligence for use at the time of sentencing submissions. In the main it consists of more detailed instructions about the personal circumstances of the appellant, and his reasons for agreeing to take the drugs into the gaol. The information which is sought to be led does not, therefore, in my view, significantly add to the evidence available at the time of the sentencing submissions.
Any prisoner faced with an unpalatable sentence may well feel that more could have been said on his behalf in the course of sentencing submissions, but that in itself is not fresh evidence. In this case, although the statement may provide a more complete picture of the circumstances of the offending and certain circumstances of the appellant, they should have been known at the time.
I consider the failure to adduce that evidence in this case has not led to the result that an unjust sentence would be permitted to stand. For that reason I joined in the decision of the court to refuse the application.
On 20 February 1997, the appellant was sentenced by the District Court judge to a head sentence of two years, three months with a non-parole period of 18 months. The sentence and the non-parole periods were backdated to 27 January 1998, that being the day upon which the appellant was taken into custody. The sentence imposed also reflected a 25% discount for the appellant's plea of guilty at the first available opportunity.
The circumstances of this offence are somewhat atypical. The appellant, a former prisoner, was friendly with a female prisoner who was incarcerated at the Adelaide Women's Prison at Northfield. On 23 February 1997, police learnt through a monitored phone call that the inmate had requested her boyfriend, the appellant, to supply her with some heroin.
When the appellant arrived at the prison, police searched him and seized from him a small red water balloon concealed in his mouth. On analysis, this was found to contain 0.01 grams of heroin in 0.14 grams of white powder. Other items were also seized but do not form part of the charge. The appellant was arrested and charged with the present offence which related to the heroin concealed in his mouth.
At the time of this offence, the appellant was single and aged about 31. He had a son aged ten years who was cared for by his sister and her family, the mother of the child having died some ten years ago.
Counsel told the court that the appellant had last worked in early 1997 doing some fencing work, but there was a possibility of him obtaining employment through another sister in the sheet metal business. The appellant was described as being deeply contrite and remorseful.
Counsel referred to the fact that the appellant had pleaded guilty in the Magistrates Court on 5 March which was the earliest available opportunity in relation to this matter.
The appellant's antecedent report sets out an extensive history of prior offending. There are a number of driving offences which are of limited relevance. In 1986 he has convictions for possessing cannabis and possessing equipment. In 1987, 1991, and 1992, he has convictions for the manufacture of cannabis. In addition, in 1992, there were three convictions for possessing cannabis. In 1994, the appellant was convicted for carrying an offensive weapon, common assault and damaging property. The sentences imposed were varied upon appeal, but resulted in a period of imprisonment.
In 1986 there was a conviction for larceny and driving a motor vehicle without consent. There were also convictions for larceny and as well illegal use of a motor car and other driving matters, and in June 1997, the appellant was convicted of carrying an offensive weapon.
In the present case, the maximum penalty for the offence of possessing heroin for supply is $200,000 or imprisonment for 25 years or both.
In his notice of appeal, the appellant complained that the sentence was manifestly excessive, in support of which he advanced a number of criticisms of the sentence imposed. These include the suggestion that the supply in this case did not involve an elaborate or sophisticated scheme, that it was an isolated incident not initiated by the appellant, and it was not for financial reward.
The appellant submitted that the sentencing judge failed to place sufficient weight upon his prior record and personal circumstances, and in particular, the fact that he did not have any prior record involving sale or supply of heroin or any other drug, and any other drug related offences could be considered to be relatively minor.
In so far as the circumstances of this offence were concerned, it was put on behalf of the appellant that the learned sentencing judge had placed undue weight upon the fact that the proposed recipient of the drug was a prisoner and that he had erred when he said in the course of his remarks that he did not attach much significance to the small quantity of the drug involved. Mr Crocker, in his very forceful submissions, repeatedly emphasised the very small amount of heroin which was involved in the commission of this offence.
It must be accepted that the sentence under review was severe, given the small quantity of the drug, and notwithstanding the appellant's previous record of drug related offences.
It is, however, clear from the learned sentencing judge's remarks that he took a very serious view of this offence because of the particular circumstances. He said:
“The supply of heroin is especially serious if the proposed recipient is a prisoner in gaol. It is important to the integrity of the correctional system that gaols be kept as free of drugs as possible. A deterrent sentence is called for. I do not attach much significance to the small quantity of drug involved. A suspension of sentence would not be appropriate.”
The appellant also complained of the failure of the learned sentencing judge to suspend the sentence but, in my opinion, the judge was right in taking that course and that complaint is not made out.
Although s.44(b) of the Controlled Substances Act 1984 requires the court in fixing penalty to take into consideration the quantity of the substance or goods involved in the commission of the offence, it cannot be said in this case that the judge overlooked that matter. Quite the reverse. He specifically commented that he did not attach much significance to the small quantity of the drug involved.
This to me indicates he had regard to s.44(b) of the Act but considered that the circumstances in which this offence was committed outweighed any mitigating circumstance by reason of quantity.
The learned sentencing judge, in my view, correctly approached the matter of sentence on the basis that an offence involving the introduction of a drug into a prison was one which required a deterrent sentence.
In this case, it is obvious that there was an element of premeditation in the offending. It seems that the appellant was not long out of prison himself at the time of this offence. The drug involved was heroin. The drug was being smuggled into a correctional institution, with all the attendant difficulties that can be caused to the prison population.
The appellant does have a history of prior drug offending, even if, in the scheme of things, the earlier offences could be described as being at the lower end of the scale, having been dealt with by way of fines.
I consider that the discount given by the sentencing judge with respect to the plea of guilty may, to some extent, be considered generous given the circumstances in which the appellant was apprehended.
Mr Crocker, in the course of his argument, referred to the decisions of R v Massey (No.1)[1] and R v Mangelsdorf[2] as indicative of comparative penalties.
[1] (1993-1994) 62 SASR 481
[2] (1995) 66 SASR 60
In Massey, a prison officer, who delivered a small quantity of heroin outside the prison at the request of a prisoner from whom he was seeking a loan, was sentenced to three years imprisonment with a two year non-parole period suspended upon him entering into one year good behaviour bond. There was also an element of entrapment in that case. It also would appear that the order for suspension was made very much on the personal circumstances of the prisoner.
Mangelsdorf was a Crown appeal against sentence, and in that case the court considered the situation relating to a street trader. The Court of Criminal Appeal increased the sentence to a period of four years imprisonment but fixed a non-parole period of one year and six months, the lower non-parole period also reflecting the personal circumstances of the prisoner.
It is worthy to note, however, that the Chief Justice said (at p70):
“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 upper-most in the judge's mind.”
I think that those comments are pertinent to this case. A crime involving the introduction of a drug like heroin into a gaol must attract a severe penalty and be one which will act as a deterrent.
In my view, the learned sentencing judge took into account all relevant matters. I can see no error demonstrated in the approach which he adopted. In my opinion, the appeal should be dismissed.
Millhouse J
I agree with that.
Perry J
I agree.
Millhouse J
The order of the court, accordingly, is appeal dismissed.