Salmon v Rosenberg
[2007] WASC 17
•2 FEBRUARY 2007
SALMON -v- ROSENBERG [2007] WASC 17
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 17 | |
| Case No: | SJA:1057/2006 | 28 NOVEMBER 2006 | |
| Coram: | BLAXELL J | 1/02/07 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | GLEN ANTHONY SALMON ANTHONY WILLIAM ROSENBERG |
Catchwords: | Criminal law Appeal from convictions for five offences of dealing in or possession of methylamphetamines with intent to sell or supply Whether evidence sufficient to sustain findings of guilt Whether Magistrate incorrectly applied onus of proof Whether no substantial miscarriage of justice Criminal law Appeal from sentences totalling 3 years immediate imprisonment Total of eight offences including three offences involving cannabis to which the appellant pleaded guilty Whether sentences manifestly excessive |
Legislation: | Nil |
Case References: | Harriman v The Queen (1989) 167 CLR 590 Liberato v The Queen (1985) 159 CLR 507 Weiss v The Queen (2005) 224 CLR 300 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- SJA 1058 of 2006
- Appellant
AND
ANTHONY WILLIAM ROSENBERG
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T J McINTYRE
File No : MH 1188 of 2005, MH 1189 of 2005, MH 1190 of 2005, MH 1193 of 2005, MH 1195 of 2005
Catchwords:
Criminal law - Appeal from convictions for five offences of dealing in or possession of methylamphetamines with intent to sell or supply - Whether evidence sufficient to sustain findings of guilt - Whether Magistrate incorrectly applied onus of proof - Whether no substantial miscarriage of justice
(Page 2)
Criminal law - Appeal from sentences totalling 3 years immediate imprisonment - Total of eight offences including three offences involving cannabis to which the appellant pleaded guilty - Whether sentences manifestly excessive
Legislation:
Nil
Result:
Appeals dismissed
Category: B
Representation:
Counsel:
Appellant : Mr R D Young
Respondent : Mr A A Liveris
Solicitors:
Appellant : Robert Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Harriman v The Queen (1989) 167 CLR 590
Liberato v The Queen (1985) 159 CLR 507
Weiss v The Queen (2005) 224 CLR 300
(Page 3)
1 BLAXELL J: On 26 May 2006, following a trial in the Magistrates Court at Mandurah, the appellant was convicted of three offences of selling methylamphetamine, one offence of possessing methylamphetamine with intent to sell or supply, and a further offence of possessing morphine with intent to sell or supply. He had previously pleaded guilty to three related offences involving cannabis, and the sentences that were then imposed in respect of all eight offences totalled 3 years immediate imprisonment.
2 On 15 June 2006 the appellant lodged appeals against the convictions on the defended charges, and against the sentences imposed. After the appellant reformulated certain of his grounds of appeal against conviction, he was granted leave to appeal on 7 September 2006.
3 The appeals came on for hearing before me on 28 November 2006, and I now provide these reasons for decision.
The prosecution's case at trial
4 The eight charges against the appellant resulted from a police covert surveillance operation conducted between December 2004 and February 2005. During this period police officers intercepted and monitored the appellant's telephone conversations and also carried out controlled purchases of illicit drugs from a house at 57 Sutton Street, Mandurah.
5 At all material times the appellant was the lessee of the house at Sutton Street but did not live there. He had sublet the house to one Simon Marsh, and was living with his partner at a property in the neighbouring suburb of Greenfields. The appellant was nevertheless a frequent visitor to the house at Sutton Street.
6 On 6 January 2005 Surveillance Operative No 76 went to 57 Sutton Street and purchased four small bags of methylamphetamine for $700. The transaction was conducted through a purpose made slot in the front screen door. Although shade cloth covered the top of the door, operative 76 was later able to identify the appellant from a photo board as being the person who had sold him the drugs.
7 The methylamphetamines were analysed and found to weigh a total of 1.64 grams. The purity of methylamphetamine within each bag varied, and was 12 per cent, 24 per cent, 37 per cent, and 17 per cent respectively.
8 On 1 February 2005 Surveillance Operative No 19 went to the Sutton Street house and purchased four small bags of methylamphetamines
(Page 4)
- (weighing a total of 1.5 grams) for $800. On this occasion, the person selling the drugs was Simon Marsh.
9 On 2 February 2005 Surveillance Operative no 19 returned once again to Sutton Street and purchased two small bags of methylamphetamines (weighing .74 grams) and 5 grams of cannabis for $500. On this occasion Simon Marsh was yet again the person who sold the drugs.
10 On 3 February 2006 police executed a search warrant at the Sutton Street house and found the following items on, or in the vicinity, of the kitchen bench:
• 6 clip seal bags of cannabis weighing 15.2 grams;
• 5 plastic bags of methylamphetamine weighing 1.19 grams;
• 15 morphine tablets (inside a round of ammunition) weighing 2.3 grams;
• $3,500 in cash;
• a notebook containing figures in relation to drug transactions;
11 There were another eight bags of amphetamine (weighing 1.92 grams) in a container on top of the kitchen fridge, further note papers with figures in a kitchen vase, a can of pepper spray on the lounge room table and quantities of clip seal plastic bags, scissors and a butter knife on a table in a back shed. The police also found the following hand printed signs in and about the house:
(1) A sign listing the "house hours" for each day of the week commencing at either 8 am or 9 am and finishing at 9 pm or 10 pm. This sign concluded with the statement: "Kindly don't knock before 8 am and after 9 and 10 pm".
(2) A more carefully prepared "opening hours" sign listing the same hours of trading as the above with the heading: "Please respect the people that serve you every day!!!" This sign concluded with the words "Thank-you", "'The boss'".
(3) Another sign stating that the hours were "8 am to 10 pm 7days a week" but including the words that:
- "This house is protected by a shot gun, 3 day's a week!!! You pick wich 3 day's – and if you don't like it, don't buy it!!!
You break it – you bought it!!!
Thank-You, 'The' Boss!!!"
- (4) A piece of paper with the words: "Sorry sold out cum back at 10.30 am".
12 Later on 3 February 2005 police officers stopped the appellant while he was driving his motor vehicle. The vehicle was searched and found to contain $15,000 in cash, a set of electronic scales, cannabis (weighing 156 grams) and a can of pepper spray. The appellant was also carrying $1,370 in cash in the front pocket of his pants.
13 The police then went on to search the appellant's house at Greenfields and found various quantities of cash (totalling $28,000) hidden in lounge chair cushions, on the underside of a coffee table, and behind an office desk. The appellant was asked who owned the cash and "he indicated that it may be (his) partner Sandra's". The police also found substantial quantities of snap seal plastic bags of varying sizes.
14 An examination of all of the cash seized on 3 February 2005 revealed that some notes had come from the controlled purchases conducted by the surveillance operatives. The cash found in the appellant's car included two $50 notes from the transaction on 1 February and two $50 notes from the transaction on 2 February 2005. The cash found at the appellant's house at Greenfields included 16 $20 notes from the transaction on 1 February 2005.
15 The prosecution also tendered evidence of various telephone conversations and SMS messages to and from the appellant's mobile telephone. It is fair to summarise this material as establishing a high level of communication between the appellant and Simon Marsh concerning events at the Sutton Street house. The house was sometimes referred to as the "shop", and a frequent topic of conversation was whether or not Marsh had enough "nuts, bolts and washers". On other occasions there was also reference to paper work and to where particular items were hidden. It was also clear that the relationship between the two men was such that Marsh always deferred to the appellant's instructions. For example, on 18 December 2004 there was an SMS from Marsh to the appellant stating: "Can i grab my days pay boss". On 19 December 2004 the appellant
(Page 6)
- instructed Marsh to "take the signs down from the front door" because police were expected to visit as a result of a burglary at the house.
The appellant's evidence at trial
16 At all material times the plaintiff was unemployed and in receipt of a disability support pension. It was his evidence that he commenced to live in the Sutton Street house in 1995 and after moving to Greenfields in 2000 continued to rent the property. It was not clear from the appellant's evidence whether anyone occupied the Sutton Street house from 2000 onwards, but throughout this period he was continuing to store car parts there.
17 Simon Marsh commenced to live at Sutton Street in November 2004 and lived there with his "on and off" girlfriend. The appellant had known Marsh for approximately 10 years. Although the appellant testified that he himself returned to live at Sutton Street in late 2004 (T 66) it was also his evidence that: "If I ever went in the house it was only to wash my hands after getting car parts out of the rear shed" (T 73).
18 The appellant admitted in evidence that at all material times he and Marsh were conducting an enterprise selling cannabis from the Sutton Street house. The sales were made by Marsh through the slot in the front door (T 73). The appellant would visit the house at least once a day "to drop off the marijuana" and twice a day if he had to get car parts (T 68). The appellant regularly received payments from Marsh for "his rent and money we made from selling marijuana" (T 67).
19 According to the appellant he had nothing to do with, and was unaware of, sales of any drugs other than marijuana from the Sutton Street property. However, "towards the end" he had suspicions that Marsh was selling other drugs "but couldn't prove anything" (T 68).
20 The appellant denied that he was the person who sold methylamphetamines to Operative No 76 on 6 January 2005. It was his evidence that at the time of this alleged transaction he was waiting in his vehicle parked opposite the Mandurah police station while Marsh was being interviewed by police concerning a burglary that had occurred at Sutton Street.
21 According to the appellant, the $15,000 cash found in his car on 3 February 2005 was largely the takings from his girlfriend's business of "Mandurah Hair and Beauty Supplies". He had intended to deposit $10,000 of the takings into her bank account that morning. Another
(Page 7)
- $1500 was "rent" that Marsh had paid to the appellant the day before. In summary:
"Some of it had been rent from Sutton Street, takings from a girlfriend's business, some of it was even my disability support pension money, money we had all put together to pay back investors that we had borrowed money off to start the business up." (T 75)
"Also the money Mr Marsh had obviously been handed. As you know, money does change hands, and I can't tell whether money he gives me is used for what he sold methylamphetamine for or what he sold marijuana for." (T 84)
23 The appellant also gave particular explanations for various of the statements made by him in telephone conversations with Marsh and in SMS messages. For example, his explanation for the references to "nuts, bolts and washers" was that this was code for "$50 bags, $100 bags and $200 bags" of cannabis (T 80).
The Magistrate's reasons for decision
24 Following a trial on 20 April, his Honour reserved his decision until 26 May 2006. In reaching findings of guilt in respect of all charges, the Magistrate essentially rejected the appellant's version of events, accepted the direct evidence identifying him as the person who sold methylamphetamines on 6 January 2005, and (as to the remaining charges) drew adverse inferences from that fact and all of the other surrounding circumstances.
25 In rejecting the appellant's evidence, the Magistrate noted that while Operative No 67 was approaching the Sutton Street house on 6 January 2005 the latter recorded (on his listening device) the registration number of the appellant's vehicle as being parked outside. His Honour also referred to the improbability of some unknown person (other than the appellant and Marsh) having the same general appearance as the appellant and being in the position to sell drugs from the house.
(Page 8)
26 His Honour also referred to the anomaly of a social security pensioner being in possession of $43,000 in cash which "would normally require a great deal of explanation". Although the appellant did not bear any onus in this respect, there had been no attempt to call evidence from the persons said to have provided the cash in order to verify its source. His Honour considered that the appellant's account as to how he had come by the money was "lacking in any shred of credibility".
27 The Magistrate was satisfied as to the accuracy of identification of the appellant by Operative No 67 notwithstanding "the barrier provided by the mesh covering on the door, the prevailing light conditions and the limited opportunity to fully observe the face of the person dispensing the drugs through or from behind the door". In this regard, Operative 76 was a person trained in identification techniques and the sole purpose of his attendance on 6 January 2005 was to try and identify the person with whom he was dealing.
28 The reasons for decision also refer to the appellant's regular attendances at the Sutton Street house, and the indications of drug dealing such as the signs and the presence of methylamphetamines. Furthermore, the fact that the appellant dealt in methylamphetamine on 6 January made it "far more likely, on the whole of the evidence, that he was aware of and involved in the dealings undertaken by Marsh".
29 In the course of general remarks as to the onus of proof his Honour correctly summarised the law to be applied when there is a conflict between the direct evidence of the accused and adverse inferences said to arise from the surrounding circumstances. However, in his concluding remarks when finding the appellant guilty of all charges, his Honour stated:
"In my view, aspects of the evidence such as the finding of the money are irrefutable and for me to fail to draw … the inferences the prosecution suggest I would need to accept the evidence of the accused as implicitly honest and accurate. I do not accept that for a moment. The accused is untruthful and his evidence totally without credibility. His denial of his presence at 57 Sutton Street on the 6th of January is false and his explanation of his possession of $43,000 is totally spurious.
Having rejected the accused as a witness of truth I have no hesitation in finding that the inferences to be drawn from the evidence are overwhelming and point unerringly to guilt as the
(Page 9)
- only possible outcome. The identification by 76 was accurate. The accused did engage in that transaction and the whole of the evidence supports the conclusion, which I now express, that the accused was not just involved in the offences committed by Marsh, he was the instigator and the controller of them. I say this because the evidence proves and I find to be the fact that he is the landlord of the premises, the person in control of the house, he is the money man, the ringleader, and guilty on each of the counts that are in front of me." (T 9)
The grounds of appeal against conviction
30 When the appeal notice was originally lodged it challenged the convictions in respect of all five defended charges. However, as a result of amendment, the appellant no longer appeals from his conviction for the offence committed on 6 January 2005 when he sold methylamphetamines to Operative No 67.
31 The residual grounds of appeal relate to the four convictions where the appellant was found to be a party to the offences committed by Marsh. Those grounds are as follows:
"1. The learned Magistrate erred in finding the charges proved where the evidence was such that the learned Magistrate could not have concluded beyond reasonable doubt that the appellant was guilty
PARTICULARS
- (a) The identification of the appellant as having sold methylamphetamine to an undercover police officer on 6 January 2005 was insufficient to prove beyond reasonable doubt that he was the 'ringleader' in relation to sales of methylamphetamine conducted by another person (Marsh) a month later;
(b) The finding of a small amount of money that had been marked by police in the purchase of methylamphetamine from Marsh in the possession of the Appellant was equally explicable by the Appellant being paid money by Marsh for rent and/or the sale of cannabis and could not lead irresistibly to the inference
- that Marsh was required to pass all proceeds of sales of methylamphetamine to the Appellant;
- (c) The conversations between the Appellant and Marsh that were covertly recorded by police were equally consistent with the Appellant's admitted involvement in the sale of cannabis;
(d) The fact that the Appellant was the landlord of the property from which methylamphetamine was being sold was an insufficient basis from which to conclude that the Appellant must necessarily be guilty of jointly possessing any methylamphetamine and morphine located in those premises.
- 2. The learned Magistrate erred in incorrectly applying the onus of proof in that his Honour found that in the absence of 'implicitly honest and accurate' evidence from the appellant, he was compelled to draw an inference of guilt on each charge."
The merits of the second ground of appeal against conviction
32 As the second ground of appeal raises a narrow issue, it is convenient to deal with that first. In his Honour's concluding remarks he stated that "to fail to draw the inferences that the prosecution suggests I would need to … accept the evidence of the accused as implicitly honest and accurate". That was clearly a misstatement of the law and may well have been a slip of the tongue. However, in the following paragraph, the error was compounded when his Honour made a statement to the effect that having rejected the accused as a witness of truth, findings as to the inferences alleged were the only possible outcome.
33 These remarks suggest that there is a nexus between the rejection of an accused's evidence and the drawing of adverse inferences against him. However, the law on this subject is well established by authorities such as Liberato v The Queen (1985) 159 CLR 507, 515, and is to the effect that the rejection of an accused's evidence does not determine the question whether the prosecution has proven guilt beyond reasonable doubt. In a circumstantial case such as the present when an accused is disbelieved, it is still necessary for the court to be satisfied on the whole of the evidence that the only reasonable inference is that he is guilty of each charge.
(Page 11)
34 It follows that the second ground of appeal must be upheld. However, this does not necessarily mean that the relevant convictions are to be set aside, because I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred (s 14(2), Criminal Appeals Act 2004).
35 The question whether no substantial miscarriage of justice has occurred substantially overlaps with the issues raised by ground 1 of the appeal. Accordingly, I will return to this question once I have dealt with the merits of ground 1.
The merits of the first ground of appeal against conviction
36 I propose to deal with ground 1 by addressing each of the particulars in turn:
(a) The relevance of the offence committed by the appellant on 6 January 2005
37 The first particular of ground 1 correctly asserts that the involvement of the appellant in the offence committed on 6 January 2005 was insufficient on its own to prove beyond reasonable doubt that he was the "ringleader" in respect of the subsequent sales of methylamphetamine. This was but one of the surrounding circumstances from which an inference of the appellant's guilt of each of the subsequent offences was drawn.
38 The finding that the appellant was the offender on 6 January 2005 was nevertheless a highly probative circumstance. Not only did it destroy the appellant's credibility generally, but it rebutted his defence that he had no knowledge of methylamphetamines being sold from the house. It also made it more likely that he was a party to the subsequent sales of methylamphetamine.
39 In this regard, evidence of an accused's prior offence or offences of drug dealing can support an inference of continued participation. In Harriman v The Queen (1989) 167 CLR 590, Brennan J held:
"In determining whether or not evidence of participation can support such an inference, regard must be had to the extent and duration of past participation, the proximity and time between the past participation and the offence charged and the whole of the circumstances of the case." (see also Toohey J at 609 and McHugh J at 630.)
(Page 12)
- (b) The significance of the marked notes found in the appellant's possession
40 Obviously, the appellant's possession of 20 notes that had been used by Operative No 19 to purchase methylamphetamines on 1 and 2 February 2005 was consistent with him being a party to those sales. However, it was equally consistent that those notes were handed to the appellant by Marsh by way of payment of rent or for the former's share of the proceeds of cannabis sales.
41 Nevertheless, the fact of the appellant's possession of those notes was one circumstance to be considered collectively with all other relevant circumstances when determining whether his guilt of each subsequent offence was the only reasonable inference. It was also relevant that the notes came into the appellant's possession within only one or two days of each sale.
(c) Whether the telephone conversations and SMS messages were equally consistent with involvement in only cannabis
42 As already noted, the content of many of the telephone conversations between the appellant and Marsh, concerned "nuts, bolts and washers". The appellant's evidence was that these words were code for $50, $100 and $200 bags of cannabis being sold from the Sutton Street house.
43 However, in two of the telephone conversations there were additional items referred to. The first of these conversations was on 3 December 2004 while the appellant was at the house and Marsh was absent. The former telephoned the latter and stated: "I've got all the nuts and bolts and washers, but where's the rest of the others". (The underlining reflects the emphasis in the appellant's voice.) Marsh then enquired if the appellant was referring to the "rest of the tiny little things, tiny little bags" and the appellant responded: "No, not the nuts, bolts and washers, the number 4's".
44 The second telephone conversation was on 23 January 2005 when the appellant and Marsh disagreed about the quantity of "1100" in the house. Marsh claimed to have only one lot of 1100 but the appellant said that there were "two lots of 1100 there". The appellant also said: "I put two on the table and I have three left in the box". Marsh disputed this statement and said that "there were 4 in the box".
45 There is a further aspect of the telephone evidence which tends to rebut the appellant's contention that he was involved in only sales of cannabis. This relates to three telecommunications on 3 December 2004
(Page 13)
- including the one referred to above. The sequence of these communications were as follows:
(1) An SMS from Marsh to the appellant at 5.33 am stating "it's all under th mattress in th laundry hav a nice day there pepper spray in th lounge 4 th nigger if u get any trouble";
(2) The telephone conversation referred to above (at 7.15 am) when the appellant enquired as to whereabouts of items other than "nuts, bolts and washers" following which there was reference to "tiny little bags" and "Number 4s". Marsh informed the appellant that the items he wanted were "in the hiding spot you showed me on the outside in the roof".
(3) A telephone call by the appellant to an unknown person at 4.21 pm. The appellant asked the other person whether he wanted to earn some money because "I need someone to watch this joint for a little while". The other person responded positively and the appellant then said: "Are you able to come here now and watch the shop till 10?" The other person agreed to do this and arranged to come in about an hour.
The only reasonable inference from these communications (and from other evidence as to the trading hours) is that for some reason Marsh was unable to "watch the shop" on 3 December 2004 and it was arranged that the appellant would do so. When the appellant arrived at the house he could not find all of the drugs that were meant to be there and for that reason telephoned Marsh at 7.15 am. The appellant then remained at the house all day until 4.21 pm when he arranged for another person to replace him from about an hour afterwards until 10 pm. The significance of this evidence is that if the appellant was "watching the shop" for almost a whole day, and was in a position to arrange a replacement for the evening, it is hardly likely that he was unaware of all of the drugs being traded at that time. This is particularly so when on that same day he specifically enquired of Marsh as to the whereabouts of drugs other than "nuts, bolts and washers".
(d) The fact that the appellant was landlord
(Page 14)
- circumstances where he was visiting the property once or twice a day and closely monitoring what was happening there.
Other evidence which supported the findings of guilt
47 Obviously, it was not only the evidence particularised in the first ground of appeal which the Magistrate relied on in finding the appellant guilty of each charge. His Honour specifically referred to the large quantity of cash (more than $44,000) found in the appellant's possession and the absence of any credible evidence as to its source. There was also the evidence of the methylamphetamines and other drugs lying around in the kitchen giving rise to an inference that the appellant must necessarily have been aware of their presence. There was also the evidence of the degree of control that the appellant exercised over Marsh. As to this last factor, the following aspects of the evidence were particularly relevant:
- the frequent visits and telephone calls by the appellant;
- an SMS by Marsh to the appellant on 13 December 2004 stating, "Goin 2 centre link 2 put form in. julz is whatchin shop";
- Marsh's SMS to the appellant on 18 December 2004": "Can i grab my days pay boss";
- a telephone conversation on 18 December 2004 concerning Marsh's obligation to provide the appellant with "paper work";
- Marsh's telephone call to the appellant on 19 December concerning a "code red" situation involving a drunk at the door who "won't take no for an answer". When the drunk then entered the house, the appellant instructed Marsh to "hit him with pepper spray" and said that he would be around straight away;
- the telephone call on 19 December concerning an expected visit by the police following a burglary at the house. The appellant instructed Marsh to "take the signs down from the front door" and to meet the police at the side of the house.
- As previously noted some of the signs at the house were purportedly made by "the boss". It was therefore significant that Marsh sometimes referred to the appellant as "boss".
(Page 15)
48 There was a further aspect of the evidence not referred to by the Magistrate but which in my view was of considerable significance. This was the fact that the four bags of methylamphetamines sold by the appellant on 6 January 2005 had varying purities of 12 per cent, 24 per cent, 37 per cent and 17 per cent. As a matter of logic and commonsense, four separate quantities of methylamphetamines with such varying purities could not have come from the same batch and must necessarily have been the result of different mixtures. This consideration obviously supports an inference that the appellant was involved in a wider range of methylamphetamine activities than just a single sale.
Whether the appeal against conviction can succeed
49 In my view, a consideration of the total circumstances established by the evidence leads inevitably to the conclusion that the appellant was guilty of all of the offences with which he was charged. The only reasonable inference was that he was aware of, and was a party to, the drug sales conducted by Marsh. I do not consider that it was reasonably open on the evidence to infer that the appellant was a party to only the cannabis transactions. Accordingly, the first ground of appeal cannot succeed.
50 In Weiss v The Queen (2005) 224 CLR 300, the High Court held at 317:
"It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty."
51 It necessarily follows that notwithstanding the validity of the second ground of appeal, no substantial miscarriage of justice has occurred. For these reasons, the appeal against conviction will be dismissed.
The appeal against sentence
52 The appellant was sentenced to 18 months immediate imprisonment for the offence on 6 January 2005 committed by him as principal offender. For the offence committed on 3 February 2005 of possessing methylamphetamines with intent to sell or supply (Complaint No 1193) he was sentenced to 18 months' imprisonment which was made cumulative on the first sentence. In respect of the remaining offences he received terms ranging between 6 months and 9 months, all of which were made
(Page 16)
- concurrent. Accordingly, he received a total term of 3 years in respect of which he was made eligible for parole.
53 The Magistrate was required to impose sentences commensurate with the seriousness of each offence. The seriousness of each offence was to be determined by taking into account the maximum penalty, the circumstances of commission of the offence, any aggravating factors, and any mitigating factors. In each instance, the maximum penalty was a fine of $100,000 or 25 years' imprisonment or both. The summary conviction penalty was a fine of $5,000 or 4 years' imprisonment or both.
54 There were many aggravating factors to be found in the circumstances of the offences. Firstly, the appellant's eight offences (although involving a total of only 3.85 grams of methylamphetamines and 176 grams of cannabis) were clearly not isolated, but occurred in the context of an ongoing illicit drug selling operation. Given the quantities of cash found in the appellant's possession it was obviously a very profitable operation.
55 Secondly, there was the aggravating feature of the appellant conducting a semi-permanent operation involving the set up of a "shop" with external signs advertising trading hours, and the construction of a door with a purpose made slot through which to conduct the illicit transactions. This was a significant escalation from the usual covert methods of drug dealing.
56 A further aggravating factor was the appellant's use of Marsh to conduct the drug sales instead of doing so himself. The only reasonable inference from all of the surrounding circumstances was that the appellant was the principal beneficiary of the drug trading operation but used Marsh to keep some distance between what was happening at the Sutton Street house and himself.
57 The difficulties that the police face in obtaining evidence sufficient to convict such an offender are quite obvious. In the present instance numerous police officers and covert operatives were engaged in ongoing surveillance for a period of approximately two months. A surveillance operation of this type is a very significant drain on public resources.
58 There was little in the way of mitigating factors to be found in the appellant's personal circumstances. It was not suggested that his involvement in the offences had resulted from any drug habit of his own, and he had not shown any remorse. He had a moderately long previous criminal record for mostly minor offences, had been in a stable
(Page 17)
- relationship for approximately five years, and was in receipt of a disability pension as a result of neck and back problems caused by an assault in 1990 and a motorcycle accident in 2000.
59 However, an important consideration was the question of parity with the sentence imposed on the co-offender, Marsh. On 2 March 2005 Marsh pleaded guilty to 10 related offences and was placed upon an intensive supervision order for 9 months. This was a surprisingly lenient sentence, which (from the transcript of the proceedings) was seemingly influenced by the fact that Marsh had not "reaped the full benefit" of his offences and had become involved because of his own drug problems. He also had a very minor prior record and had pleaded guilty.
60 In my view, the penalty received by Marsh did not provide any guide to the sentences that were appropriate for the appellant. The appellant's culpability was much greater in that he was the organiser and principal beneficiary of the drug selling operation. The only reasonable inference from all of the evidence was that the appellant was the proprietor of the business conducted at the "shop", and had employed Marsh in a role which can be fairly described as that of a shop assistant.
61 The principles governing an appeal against sentence are well established, and the present appeal can only succeed if it is shown that the sentences imposed fell outside the range of a sound discretion. It is not contended that the appellant should have received sentences other than immediate imprisonment, and it is only the quantum of the overall term that is put in issue.
62 In my view, the predominant factors affecting sentence were the unusual aggravating features which collectively called for an overall term of imprisonment sufficiently long as to act as a strong deterrent. Such a penalty was necessary in order to combat the evil trade in methylamphetamines and other illicit drugs which currently wreaks great havoc in our community.
63 I am not persuaded that an overall sentence of 3 years' imprisonment was manifestly excessive, and in fact consider this outcome to be relatively moderate, if not somewhat light, in all of the circumstances of the case.
64 Accordingly, the appeal against sentence must be dismissed.
0
4
1