R v. DEANMANGELSDORF; R v. DAVID PERRY; R v. SHANE RICHARDS Nos. SCCRM 95/229, SCCRM 95/246 and SCCRM 95/335 Judgment No. 5328 Number of pages - 18 Criminal law (1995) 66 SASR 60 [1995] SASC 5572 (10 November 1995)
SUPREME COURT OF SOUTH AUSTRALIA
R v. DEANMANGELSDORF; R v. DAVID PERRY; R v. SHANE RICHARDS
Nos. SCCRM 95/229, SCCRM 95/246 and SCCRM 95/335
Judgment No. 5328
Number of pages - 18
Criminal law
(1995) 66 SASR 60
COURT
IN THE FULL COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA
DOYLE CJ(1), PRIOR(2) AND WILLIAMS(3) JJ
CATCHWORDS
Criminal law - jurisdiction, practice and procedure - judgment and punishment - Application for leave to appeal against sentence by Director of Public Prosecutions - three unrelated cases involving drug offences - leave to be granted only in the rare or exceptional case - examination of standard set in previous cases - scope for trial judge's assessment must be allowed, but standards must be given appropriate weight - appropriate to grant leave in two cases, to reiterate standards because reason to think sentencing judges not observing the relevant standards - appropriate to grant leave also on grounds related to each individual case. Everett v R (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Pearce (1980) 91 LSJS 443, applied.
Criminal law - jurisdiction, practice and procedure - sentence - Heroin dealer - public interest in deterrence to be uppermost in judge's mind - impact on family only to be taken into account in exceptional cases - suspension inappropriate - sentence increased and suspension revoked. R v Adam; (1989) 51 SASR 229, applied.
Criminal law - jurisdiction, practice and procedure - sentence - Conspiracy to trade in LSD - no trading occurred - sort of offence would ordinarily attract a sentence of imprisonment - suspension inappropriate - sentence increased but suspension not revoked.
Criminal law - jurisdiction, practice and procedure - sentence - Cannabis dealer - clear commercial overtones - sizeable quantity - previous suspended sentences - suspension inappropriate - sentence increased and suspension revoked.R v Walker (1981) 27 SASR 315, applied.
HEARING
ADELAIDE, 17-18 October 1995
10:11:1995
Counsel for appellant: Mr P Rofe QC with Mr P Muscat
Solicitors for appellant: DPP (SA)
Counsel for respondentsMangelsdorf and Richards: Mr C Caldicott
Solicitors for respondentsMangelsdorf and Richards: Caldicott and Co.
Counsel for respondent Perry: Mr R Mayne
Solicitors for respondent Perry: Carter and Prendergast
ORDER
Appeals allowed.
DECISION
DOYLE CJ The Court has before it three applications by the Director of Public Prosecutions for leave to appeal against sentences imposed by Judges of the District Court.
2. It is convenient to deal with the three applications together.
3. Two of the applications relate to sentences for offences against s32 of the Controlled Substances Act (SA). The other application relates to a sentence for the offence of conspiring to trade in a prohibited substance for the purposes of the Controlled Substances Act. In the first application the prohibited substance involved was heroin. In the second application the prohibited substance involved was Lysergic Acid Diethylamide, commonly known as, and hereinafter referred to as, "LSD". In the third application the prohibited substance involved was cannabis and cannabis resin. It can be seen that each application relates to offences involving drugs, the unlawful use of which Parliament has made the subject of heavy penalties, reflecting widespread community concern about the harm done to users of such drugs.
4. Each application was made by the Director of Public Prosecutions on the ground that the sentence imposed failed to maintain an adequate standard of punishment for the crime involved. In submissions in support of each application it was also argued that each sentence was so disproportionate to the seriousness of the crime involved as to require intervention by the Court of Criminal Appeal. The Director also argued that sentences imposed in the District Court for like offences indicated a general erosion of appropriate standards set or indicated by this Court, and that for that reason also this Court should intervene.
5. It can be seen from this that similar issues are raised by each application.
LEAVE TO APPEAL - PRINCIPLES
6. The High Court has held that the jurisdiction to grant leave to the Director of Public Prosecutions to appeal against sentence "should be exercised only in the rare and exceptional case": Everett v R (1994) 181 CLR 295 at 299. The Court went on to explain why that is the case, and when leave might be granted, in the following passage (at 299-300):
"An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed (citations omitted).
That being so, a 'court entrusted with the jurisdiction to grant or refuse such leave should give
careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified': Malvaso v R (1989) 168 CLR 227 at 234-235.
In determining whether that question should be answered in the affirmative, a Court of Criminal Appeal should be guided by the following comment of Barwick CJ in Griffiths v R (1977) 137 CLR 293 at 310:
'an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts
having the duty of sentencing convicted persons'.
The reference to 'matters of principle' in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting 'error in principle' (Ibid at p310)."
Remarks to a like effect are to be found in Malvaso v R (1989) 168 CLR at 233-235, Deane and McHugh JJ.
7. In this Court the same approach has been taken. The role of prosecution appeals was described by King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-213 in terms which have often been repeated but which warrant further repetition:
"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.... The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable
idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."
This approach was reaffirmed in R v Drewett (1983) 35 SASR 344. It has remained the approach of this Court.
STANDARDS
8. 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 s32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s32; 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. The Court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s32.
9. This has occurred against a background of a number of increases by Parliament in the penalties attaching to offences created by s32. It is unnecessary to refer to these legislative changes in detail.
10. I do not propose to refer to all of the many cases in which the Court has referred to the need to impose sentences which will mark the gravity of the crimes created by s32 and which will operate as a deterrent to those who are tempted to engage in trading in the drugs dealt with by s32. But it is appropriate to refer to a few of them, and in particular some which deal with the drugs in question in this present case.
11. In R v Belcher (1981) 27 SASR 46 the Court referred to past warnings that the then recent increases in maximum penalties (imposed by earlier legislation) must lead to more severe sentences. The judgment makes it clear that a sentence of seven years' imprisonment for possessing heroin for sale, imposed on a person with no prior conviction and of apparent good character, was not outside the normal sentencing range.
12. In R v Rocco (1985) 37 SASR 515 the Court again reviewed sentences for trading in heroin under the earlier legislation. The Court referred to sentences for "street traders" in heroin ranging from four years' to seven years' imprisonment. Some of these were imposed on persons with no prior conviction. The Court said (at 516) that substantial penalties had been imposed even though the amounts of heroin discovered in the hands of street traders had been quite small. The reasons for this, which are well known to those who have to deal with these cases, are set out in the judgment of White J (at 517). The point is made (at 517) that: "The penalty for heroin street traders does not normally fluctuate with the quantity."
13. In this review of cases I do not propose to refer to the weight of heroin involved, for that reason. That is not to say that the quantity of heroin is of no relevance. It is of limited relevance in the case of a street trader. But my purpose is to indicate the general standards of punishment set by this Court, and in doing so there is no need to descend to the detail of individual cases.
14. In R v Wilson (1990) 158 LSJS 134 the Court considered a sentence of six years' imprisonment for possession of heroin for sale. The appeal was against the severity of the sentence. Counsel for the appellant apparently referred the Court to certain sentences for the same offences which were substantially less than that imposed. As to that, King CJ said, with the concurrence of the other members of the Court (at 136):
"I do not know what might be the explanation for the lowsentences which have been brought to our attention. It may well be that the particular cases in which those sentences have been imposed are atypical and that there have been features of those cases which make the ordinary standards of
punishment for this offence inapplicable to them.
I would wish to make it clear, however, that this court could not condone the types of sentences to be found in the lists applied to us as being in accord with the recognised standards of punishment approved in this Court. This Court should adhere, in my opinion, to the standards laid down in
such cases as R v Eyres, Eastway, Clarke and Osenkowski (1977) 16 SASR 226, R v Belcher (1981) 27 SASR 46 and Murton v Bates (1988) 50 SASR 92, and the sentence which was imposed by the learned sentencing judge in this case is well within the standard which has been recognised and approved in those cases."
15. The judgment of King CJ makes a further pertinent point. The appellant was a heroin addict who was making real efforts to overcome his addiction. A reduction was sought to the non-parole period to reduce it to a point at which the appellant would be offered encouragement to overcome his addiction. The judgment of King CJ makes it plain that addiction provides little or no basis for leniency in cases involving trading in drugs contrary to s32. In rejecting the argument referred to, he said (at 135):
"Unfortunately, however, there is a limit to the extent to which this Court can give effect to considerations of that kind. The drug trade flourishes because suppliers of drugs are able to find people like the appellant who are prepared to engage in the trade at the lower levels and in that way
to entice other people into the same type of drug dependence and misery which has been experienced by the appellant himself. It is the duty of the court, which has been made perfectly plain by the penalties prescribed by Parliament, to impose sentences which will, one hopes, deter other
people from engaging in this type of conduct."
16. In R v Harris; R v Simmonds (1992) 59 SASR 300 each appellant was convicted of possessing heroin for sale. Of the two offenders, Harris was described as the main offender. He had some prior convictions, although none of them were drug related. The sentence of six years six months imprisonment imposed upon him was described (at 301) as "quite a moderate sentence" by the standards applicable under the previous legislation (that legislation imposed lower penalties than the Controlled Substances Act).
17. The Court was referred in argument to a number of unreported decisions which reflect the approach taken in the cases to which I have referred. I do not propose to refer to them, but a reference to one is appropriate. In R v Milan Santalab (Court of Criminal Appeal, 20 July 1993 Judg No 4055, (unreported, available on SCALE)) the Director of Public Prosecutions appealed against a sentence of seven years' imprisonment imposed on each of five counts of selling heroin and one year's imprisonment on one count of possessing heroin for sale, each sentence to be served concurrently. The offences were committed in the course of a business of selling heroin which had extended over at least nine months. Santalab was dealt with, on appeal, "as a drug dealer who was involved in a substantial commercial enterprise", going beyond street trading. He had a poor record, including drug offences. The Court said that but for his plea of guilty his offences would have merited a sentence of 15 years' imprisonment. The sentence was increased on appeal from the seven years imposed to twelve years. This is a reminder of the fact that very heavy sentences can be expected by those whose offending goes beyond street trading. In the course of his judgment King CJ again made the point (at p.6) that:
"Street offences in relation to heroin prior to the passing of Section 302 of the Criminal Law Consolidation Act, which became Section 12 of the Criminal Law (Sentencing) Act, attracted penalties in a range between five years and seven years. When the statutory provisions relating to good conduct remissions are taken into account, as now required by Section 12 of the Criminal Law (Sentencing) Act, it is evident that that range would be significantly increased."
He went on to remind sentencing Judges of the approach which must be taken in such cases, and of the duty of this Court on appeal. He said (at p7):
"Parliament has prescribed severe maximum penalties for heroin dealing, and it is the duty of this court to impose penalties which give effect to the legislative policy reflected by those maximum penalties. Clearly it is the intention of the legislature that severe penalties should be imposed as a means of deterring those who are tempted by the big profits to be made out of heroin dealing from
engaging in that enterprise. The courts would be failing in their duty if they should fail to impose sentences which properly implement the legislative policy. It is the duty of this appellate court to intervene at the instance of the Director of Public Prosecutions when it appears that a failure on the part of a sentencing judge to implement the policy of the legislature by applying the standards which
have been developed by the courts, is of such a nature that it might result in an erosion of the standard of penalties which is required to give effect to the legislative policy.
It seems to me therefore that it is the duty of this court, sitting as a Court of Criminal Appeal, to intervene, when it sees, as I think it must see in the present case, that the sentences imposed are manifestly inadequate and fail to maintain the appropriate sentencing standards."
18. I consider that these judgments adequately indicate the standard which has been set by this Court for offences involving heroin which can be described as street trading, a description which is not precise, but has often been employed by the Court.
19. It has often been said, and needs no repeating, that it is for the sentencing Judge to take into account all material matters in deciding upon the appropriate sentence to be imposed. Scope must be allowed for the sentencing Judge's assessment of those matters, and for the understanding of the offence and of the offender which the sentencing Judge obtains. The latter, in particular, may be influenced by aspects of the sentencing process in respect of which the sentencing Judge is better placed than is a Court of Criminal Appeal to make an appropriate assessment of what should be done. As King CJ said in R v Osenkowski (supra) at 212-213:
"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."
20. But in the end the standards which this Court determines must be given appropriate weight. Departure from them must be justified by some aspect of the particular case. The standards are not, and are not intended to be, precise. But they do provide clear guidance.
21. The Court was provided with information that indicates that a significant number of sentences have been imposed in the last two years which are substantially less than the standard established by the cases referred to. As in the case of R v Wilson (supra), the Court does not have information about all of those cases, and there may be particular circumstances justifying the sentences imposed.
22. But I would wish to make it clear that, in my opinion, there is reason to think, from the number of such cases, that the standards established by this Court are not being observed as they should be.
23. In my opinion, a lesser sentence than the standards of punishment established by the cases referred to will be justified only by circumstances which are out of the ordinary. In the case of street trading offences, it is clear that matters such as previous good character, addiction and detection with relatively small quantities of the drug are not matters out of the ordinary. It is also necessary to bear in mind that the importance of deterrence in such cases will often lead to less weight being given to circumstances personal to the offender than otherwise might be given.