FEDERAL COURT OF AUSTRALIA

The Queen v Blaskovic [1999] FCA 1306

CRIMINAL LAW – appeal against sentence by Director of Public Prosecutions – drug offences – criminal history – use of Griffiths Bond – sentencing principles required by statute – purposes of sentencing - whether treatment order sufficient – whether parity – whether mitigating circumstances.

Crimes Act 1900 (Cth)

Drugs of Dependence Act (1989) (ACT)

Griffiths v The Queen (1977) 137 CLR 293

Everett v The Queen (1994) 181 CLR 295

The Queen v S (1992) 39 FCR 276

THE QUEEN v SINISH MATTHEW BLASKOVIC

A 36 of 1999

SPENDER, MADGWICK & DOWSETT JJ

16 SEPTEMBER 1999

MELBOURNE (HEARD IN CANBERRA)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

REASONS FOR JUDGMENT

SPENDER J:

1                     The sentences the subject of appeals by the Crown and the facts relevant to them are set out in the reasons for judgment of Dowsett J, which I have had the benefit of reading in draft form.

2                     In respect of the count of possession of a trafficable quantity of heroin for sale on 24 September 1998, the learned sentencing judge, Miles CJ, imposed a treatment order pursuant to s 123 of the Drugs of Dependence Act 1989 (ACT).  In respect of the count of possession of a trafficable quantity of heroin for sale on 27 September 1998, the learned sentencing judge ordered a period of imprisonment for two years suspended upon the respondent entering into recognisance to be of good behaviour for three years and to submit to supervision.  The sentencing process on the remaining counts was adjourned to 6 August 1999 and further adjourned.

3                     It is in my opinion an unsatisfactory outcome that there is a combination of sentences of the kind imposed in the present case and what might be termed a Griffiths remand on other counts.

4                     The appeal is complicated by the fact that the learned sentencing judge gave no formal reasons for the sentences that he imposed, and the fact that he disposed of the remaining counts by the making of a Griffiths remand.  The Director of Public Prosecutions did not seek leave to appeal in respect of the orders for adjournment concerning the Griffiths remands, and so this Court is concerned only with the sentences that were in fact imposed.  This exacerbates the problem because a sentencing court is concerned to make orders which reflect the totality of the relevant criminal conduct.

5                     In my view, the sentences imposed and the orders made by the learned sentencing judge on all seven counts reflect an intention to give to the respondent an opportunity to rehabilitate himself, it being thought that such an opportunity would be unavailable if actual imprisonment was imposed.

6                     I agree with the conclusion of Dowsett J that there is no reasonable way of combining a treatment order with a period of imprisonment which is to be actually served, with the possible exception of a very short sentence, and with his view that in most cases a treatment order will only be appropriate if the option of imprisonment is able to be avoided.

7                     The cases, to which detailed reference is made in the reasons for judgment of Dowsett J, demonstrate that the usual order on conviction for trafficking in heroin is actual imprisonment, with the exceptions being focussed on young people or persons who have assisted the police.  It is the contention on behalf of the Crown that the circumstances of the offences and the personal circumstances of the respondent require the imposition of actual imprisonment, as demonstrated by the comparable sentences to which we were referred.

8                     It is not to be assumed that the learned sentencing judge was unaware of the sentences that had been imposed in respect of the trafficking in heroin, and it is true that the sentences imposed in the respondent's case seem out of kilter with comparable sentences.  Nonetheless, in my opinion, it was open to the sentencing judge in the circumstances of this case to adopt the very lenient course he did.

9                     It seems to me that the learned sentencing judge was faced with a very stark choice.  If a term of imprisonment was imposed, there would be no utility in the making of a treatment order, and the making of a treatment order (which offered the best opportunity for rehabilitation) could only realistically be ordered where no actual imprisonment was to be imposed.

10                  This case seems to me to be one described by King CJ in The Queen v Osenkowski (1982) 30 SASR 212, where his Honour said at 212-213:

"The sentence was undoubtedly less than the standard which has become established in this Court for this type of offence.  The question is whether it is an appropriate case for interference by this Court.

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.  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."

11                  In this particular case, one cannot ignore the fact of the suspended sentence with a longer period for supervision.  In addition, it is to be noted that treatment orders are not without conditions.  Part IX of the Drugs of Dependence Act prescribes consequences of treatment orders, and sets out conditions which are significantly onerous.

12                  I am not persuaded that the learned sentencing judge was in error in adopting the view that Mr Blaskovic should be given the benefit of one further chance of rehabilitation.  If the position is that he spurns that chance by failing to comply with the requirements of the treatment order, then it is beyond question that the Court should impose the term of actual imprisonment.  The compassion extended by the learned sentencing judge and his Honour's clear desire for rehabilitation, if at all possible, is not to be abused.

13                  While many judges would have felt compelled to order actual imprisonment in the circumstances of this case, in my opinion, it was not an appellable error to fail to impose actual imprisonment on the respondent.

14                  I would dismiss the appeal.

Associate:

Dated:              16 September 1999

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

REASONS FOR JUDGMENT

MADGWICK J:

15                  I have had the advantage of reading the reasons, in draft, of Dowsett J.  While there is much in his Honour's reasons with which I agree, there are crucial matters as to which I do not and my own conclusion as to the proper fate of the appeal regrettably differs from that of his Honour.

16                  The facts of the offences as we ought to take them to be are as set out by Dowsett J.

17                  From causes that are not apparent, the sentencing judge did not give reasons for the course that he adopted in sentencing the respondent.  It may be that he acceded, in substance, to some reasoned submission made by counsel for the defence and presumed that his acceptance of the reasons for the submission would be apparent from the result.  In any case, where a citizen's liberty is at stake on a Crown appeal and there are no reasons, it behoves us to consider the matter by assuming that the primary judge took the view most favourable to the respondent that would have been reasonably open.

The applicant's background and the prospects of his rehabilitation

18                  It is true that the Probation and Parole Officer who assessed the respondent took a somewhat pessimistic view of the applicant's "long term commitment to change" and that such a view appeared amply justified by a consideration of his past.  However, there was other material before the primary judge.  In the first place, a Treatment Assessment Panel, presumably expert, established under the Drugs of Dependence Act 1989 (ACT), assessed the respondent as being a suitable subject for a treatment order to be issued under s 123 of that Act.  The panel considered that a 24 month order, initially involving community counselling and subject to monthly review, would be appropriate.  Secondly, a governmental drug counsellor, Ms Knight, wrote:

"Mr Blaskovic has been a client of the Alcohol and Drug Program on a number of different occasions over the past few years.  He most recently resumed contact when he was assessed for the Treatment Referral Panel on the 29 March 1999.  Since that date he has attended for counselling on two separate occasions.

Mr [Blaskovic] states that he has found counselling helpful in the past and currently needs someone to support him through his mother's terminal illness.  He states that his resumption of heroin use was directly related to the grief he experienced when he learnt of his mother's brain tumour last year.  He says he feels that his previous problems with drug abuse may have contributed to his mother's illness by causing her a lot of worry.  Because he feels he is in some way responsible he is experiencing considerable guilt.

…

Mr Blaskovic has commenced naltrexone treatment.

I feel that Mr Blaskovic is very committed to remaining abstinent from heroin this time and that he will remain in counselling.  He wants to be able to assist his mother as much as possible through her illness and also to be a supportive and responsible father and partner.

I would like to see Mr Blaskovic given the opportunity to benefit from the naltrexone treatment which would not be available if he is required to attend a rehabilitation centre."

Thirdly, his de facto wife, whose general attitude was that "a crime can't go unpunished", wrote that the respondent,

"has made some very positive moves towards cleaning up his life (after he was remanded in custody last October).  He has stayed away from the drug scene and has [remained] drug free.  The naltrexone program has been a new lease on life.  Over the past few months I have watched my partner regain his self esteem, his passion for life and in general a [healthier] well being.

…

In the past few months he has started rebuilding a much closer relationship with his kids and I feel that if he is taken away from his family now after months of doing so well that it could have a [devastating] effect on all concerned.  [The respondent's] mother has recently been told she only has six months.  The [prospects] of Sinish being locked up for the remaining months of her life are causing her stress."

Fourthly, the Probation Officer conceded in cross-examination that the respondent was "capable of making gains in his life" and was "able to work normally".  It also appeared from her evidence that fatal consequences can result if a person uses both the therapeutic drug naltrexone and heroin.  Fifthly, there was ample evidence that the respondent's mother was dying of cancer and was severely depressed.

19                  Finally, from the respondent's own evidence the sentencing judge would have been entitled to accept that:

·        The respondent had a broad range of skills and considerable experience in the building trades;

·        A job was available to him which he had not taken up only because his remand conditions prevented him from travelling outside the ACT;

·        He had a credible work history (and a somewhat better one than is often seen in drug addicts in their early thirties);

·        He had not been "in gaol" before.  As is well-known, the Belconnen Remand Centre, in which the respondent had been incarcerated for 2 months, provides a more benign environment than, regrettably, do the gaols of NSW, to which the respondent would be sent;

·        He committed the offences under some pressure from those higher in the distribution chain, to whom he owed money, to repay it;

·        He sold to an already established clientele and did not enlarge the number of heroin users;

·        He blamed himself for causing his mother's fatal illness, which he believed to be stress-related, by causing her stress;

·        It had been his own initiative to take steps to have himself placed on the naltrexone program;

·        He believed that if naltrexone were taken in conjunction with heroin, it would be almost certain to kill him;

·        He was more motivated than in the past to quit heroin use because of the circumstances surrounding his mother's imminent death and the needs of his own family.

20                  Thus there was material from which the sentencing judge could have concluded that the respondent, despite his unfortunate history of heroin use had both reached a stage in his life when a particular opportunity for therapeutic intervention had presented itself and had a good prospect of being rehabilitated.  Apart from his Honour's advantages of seeing and hearing the respondent, such conclusions would appear surprising, but a case demonstrating the "palpable misuse" of such advantages is not, in my opinion, made out.  An inference that so senior a judicial officer as the learned sentencing judge gave way to mere credulity is not lightly to be drawn.  The respondent is entitled to have us conclude that he had made a powerful impression on his Honour.  I infer therefore that his Honour did draw such conclusions.

21                  Upon the assumption that his Honour formed some such favourable view about the appellant's rehabilitative prospects, in my view there are two bases for concluding that the appeal should not succeed.  The first of these grounds concerns the legitimacy of the sentencing judge's apparent approach to rehabilitation in the context of a drug-addicted drug-dealer.  The second relates to the degree of restraint that is appropriate in appellate proceedings.

The relevance of drug addiction in sentencing

22                  In their approach to sentencing, the courts attempt to reconcile a number of social values that are sometimes in conflict.  There is, for example, virtually universal condemnation of those who profit from the sale of illegal and addictive drugs.  There is a general, though perhaps less universal, desire that whatever can reasonably be done to help addicts overcome their addiction should be done.  It is not generally recognised however, in my experience that many drug-dealers, especially at the retail end of drug distribution systems, are, as Dowsett J points out, themselves drug addicts and motivated by their addiction to engage in drug dealing. 

23                  The law recognises the generally, though not universally, accepted view that, unless insane, people are to be treated for legal purposes as if morally responsible for their choices.  Thus the development of an addiction is, in most cases, seen as the result of an initial choice to use illegal drugs generally known (and therefore presumed to be known by the addict) to be seriously addictive, and at least as a series of continuing choices not to take the admittedly hard steps necessary to overcome the addiction.  There is no social consensus as to whether addiction, as a motivating factor for a crime, should be seen, in principle, as a mitigating factor in sentencing, let alone as to the degree of importance that should be attached to such factor.  The courts also have not spoken with one voice on this matter.

24                  The better view, in my opinion, and one which appears to be gaining increasing respect, is that attention needs to be paid to all the circumstances of the initial choice to use the drug until addiction developed and the continuing choices not to quit, or to recommence, drug use.  Those circumstances will include age, any disadvantage in emotional or intellectual development, any intellectual impairment, any significantly deprived cultural background for which the offender was not responsible and so on; in short the sorts of matters which courts daily regard as directly and appropriately mitigating, to a greater or lesser degree, the severity of a sentence.  The importance of "individualised justice" was emphasised by Wood CJ at CL and Simpson J in R v Henry [1999] NSW CCA 111.  Simpson J said, at paras 337, 340 and 341, that:

"Drug addicts do not come to their addiction from a social or environmental vacuum.  This court should not close its eyes to the multifarious circumstances of disadvantage and deprivation that frequently precede and precipitate a descent into illegal drug use.  I do not suggest for a moment that all drug users fall into this category.  It is because some do and some do not that I believe rigid rules about the impact on sentencing of drug dependency on sentencing cannot be laid down.

…

Where great social difficulties, poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses upon drug offenders, causing or reinforcing their resort to drugs, then it is appropriate for this court to give … recognition to those antecedent circumstances.

A sentencing judge always has a delicate balancing task to perform, taking into account the demands of the community for retribution, deterrence both general and specific, and the interests of the same community in the rehabilitation of an offender.  The exercise may call for an examination of the circumstances that led the offender to drug use, addiction and crime.  All the circumstances that precipitate the use of drugs are relevant to the evaluation of moral culpability that is essential to the sentencing process."

25                  In my opinion, the proper reconciliation of these competing legal values, and the social values they reflect, can only be partial.  It may be formulated as follows:

·        The relative seriousness of the generic crime of drug-dealing is to be judged by the maximum penalty.  In this, I agree with Dowsett J.  However, it is not to be forgotten that the maximum sentence is to be taken as intended only for the worst classes of cases. 

·        In particular, drug-dealing offences are not especially apt to be regarded as mitigated because drug-dealers, even in the case of the smallest dealers, are also addicts.  In this too, I agree with Dowsett J.

·        However, drug supply offences are not immune from potential mitigation by reference to the drug addiction of the offender.  They are as capable of such mitigation as any other equally serious offence.

·        Whether mitigation is appropriate on account of the addiction, and if so to what extent it should operate, ought to be determined having regard to the kind of approach outlined in para 24 above.

The relevance of rehabilitation in sentencing

26                  Dealing more specifically with the issue of when rehabilitation may be the principal determinative factor in sentencing, conflicts with other values also arise.  While there is no unanimity of social opinion, there is probably a balance in favour of rehabilitation being a preferred option, both as a matter of morality and of likely efficacy.  This is increasingly reflected in the decisions of the courts:  see for example R v Hebditch [1999] FCA 1087 where the members of a Full Court of the this Court approved a recent observation by Sir Anthony Mason:

"I am not alone in thinking that effort put into rehabilitation, rather than retribution and deterrence, is more likely to be cost effective and lead to a better world."

An offender who is a drug addict is not, on account of the addiction, either especially entitled to have, or disentitled from having, rehabilitation given pre-eminence in the sentencing process.  There are other sentencing values than rehabilitation.  In relation to drug-selling, these especially include the denunciation of the crime on behalf of the community, and general and individual deterrence.  However, in the case of confirmed drug addicts, the influence of deterrence is problematic.  One can at least say that in no case should predominance be given to rehabilitation without consideration of other sentencing values.  In some cases, the sentencing objective of rehabilitation ought to be given predominance:  without that, there may be no rehabilitation of the particular offender, and that potential loss may outweigh the significance of other sentencing objectives.

27                  It must be recognised also that, whenever a sentencing judicial officer provides for an opportunity of rehabilitation for a serious offender rather than imprisoning the offender, there is an element of risk involved.  Attempts at rehabilitation often fail and sometimes do so with disastrous consequences for other people and the offender.  The question is whether it is worth taking that risk.  This involves prediction about an offender's future behaviour.  Few things are more difficult.  Accordingly, it must be conceded that the decision, on behalf of the community, to undertake that risk is, inescapably, a highly subjective one.  Such decisions usually depend crucially on the sentencer's own intuition and experience.  It must be said also, however, that in reality such decisions cannot fail to be influenced, at least to some degree, by the sentencing judge's own values:  as in the community generally, some judges tend more readily than others to place faith in the prospects of a offender's rehabilitative values.  The community appears to wish that the composition of the judiciary will more or less reflect its own diversity of values.  If there is no legitimate scope for judges to give effect to their own values, there is little point in the desired diversity.  Equally, however, mere idiosyncrasy, unrestrained by broad principles, is indefensible.  For those to whom this appears as a charter for inconsistent sentencing decisions, it is worth pointing out that the High Court has recently said in Lowndes v R (1999) 163 ALR 483 at para [15]: 

"Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.  This is basic.  The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice." (Emphasis supplied).

28                  Further, alternatives to reposing a considerable discretion in sentencers have problems of their own.  Compulsory minimum sentences inevitably throw up cases of unwarranted hardship.  "Grid" systems can crush individuals on their crossbars.  A consequence is that, where such a decision has been made (or declined), it is particularly appropriate to apply the well-known rules against appellate interference with discretionary judgments.

29                  In any case, the risks and subjectivity do not tend only one way.  There are risks in not according an offender a chance of rehabilitation where there is some reason to think it might be effective.  What might be the particular offender's best chance of rehabilitation may be forever lost.  Indeed, incarceration may confirm, aggravate or magnify an offender's criminal tendencies, though this is not a universal phenomenon.  In relation to crime substantially motivated by drug addition, the prospects of a lasting cure being effected in gaol are not ordinarily high, as Dowsett J points out.

30                  In any case, a decision to structure a sentence so as to favour the provision of rehabilitation over incarceration must be defensible, in the sense that it will at least not "outrage the public conscience".  (By that, I mean of course the rational conscience of the reasonable public, and not of a mob, or of the yellow press or, perhaps even more to the point in current times, of those who peddle the values of the yellow press in the electronic media of communication).  The public, in that sense, does reasonably expect that, in general, serious crimes will be seriously punished.  Too frequent resort to rehabilitation as the determinative element in sentencing for serious crimes will undermine public confidence (again, in the same sense of the public) in the courts and the law.  Some judicial restraint, absent legislative elevation of rehabilitation to a position of pre-eminence among sentencing values, is necessary.

31                  In relation to drug-dealing, a practical reflection of these considerations would be this:

·        Where, making due allowance for the difficulties of prediction, the prospects of rehabilitation are poor, the sentencing judge can more readily give greater weight to denunciation, on behalf of the community, of drug-dealing and, where it is a realistic consideration, individual, as well as general deterrence.

·        Where, not forgetting that many claims by and on behalf of drug offenders need a grain of salt for their assessment, the prospects of rehabilitation appear good and particularly where some special opportunity presents itself, it is not necessarily an error of principle to structure a sentence, or the sentencing process, so as to provide an opportunity for rehabilitation.

·        Notwithstanding good prospects of rehabilitation, other sentencing objectives are not to be overlooked.  There will, of course, be cases, for example, in which the drug-dealing has been on such a scale or at such an organisational level, or perhaps for other reasons, that to give controlling weight to the desirability of rehabilitation is simply inappropriate.

·        It is generally possible to provide the opportunity for rehabilitation on pain of a prompt reconsideration of imposition of the sentence that would have been appropriate had the rehabilitative process not been afforded the offender.  The provision of the opportunity should, in general, be made conditional upon such reconsideration if there is not an encouraging response to the intended rehabilitation.

·        It is to be recognised that rehabilitation out of drug dependency may be a long and a rocky road.  To resort to imprisonment too readily, upon such reconsideration, for less than a perfect response to the therapy offered, may destroy what, viewed more broadly, is a considerable achievement and one which justifies the faith placed in the offender by the sentencing judge.  It is for that reason that I proposed, as a general rule, the imposition of a condition that would require prompt reconsideration of the need for actual imprisonment rather than automatic imprisonment.

·        Where the prospects of rehabilitation are what might be called middling, the case will be determined like such cases in relation to other types of offences, without special regard to the particular question of rehabilitation.  General questions of rehabilitation will remain relevant.  Thus, for example, the younger and less entrenched in crime the offender, the greater is the scope for rational hope that the "clanging of the prison gates" itself may provoke a determination to change.  In such a case, as in the case of a person of any age facing his or her first full-time gaol sentence, and recognising the difficulty of predicting future behaviour, it may be appropriate to build in maximum flexibility, in the event that the offender's rehabilitative efforts and success should exceed presently rational predictions of them.  Mathews J and I applied such an approach in Massey v R [1999] FCA 257.

32                  I should add that, to the extent that judges do invoke rehabilitative processes, they are entitled to do so in the reasonable expectation that appropriate measures will be taken, and appropriate resources furnished, to enable the courts and/or any other appropriate bodies such as parole boards to deal promptly and effectively, as well as reasonably compassionately, with apparent breaches of conditions set by the sentencer.

The comparative seriousness of this case

33                  Before testing what the primary judge did against the foregoing, it is necessary to express my view of the comparative seriousness of the respondent's offences.  There are drug dealers at many levels.  At the lowest level of distribution there are, for example, established addicts who buy drugs to share the same, without any profit or other benefit to themselves from the re-supply, with other established addicts.  Just slightly more serious are the addicts, who supply other addicts or established users with small "deals" but who finance their own addiction from the re-supply transaction.  Such people normally do not fall for punishment within the "trafficable quantity" provisions contravened by the respondent and which assume that at least 2 grams of heroin are involved.  Nevertheless, within the trafficable quantity range, the least serious class of case sometimes involves such a one-off supply. 

34                  The respondent's offences stand above, but not greatly above, that level.  The satisfaction of his addictive needs, it may be inferred, was one of his objects but it was something less than the entire and immediate object of his dealing, which included to obtain enough money to repay a debt to those who had supplied him with drugs for his personal use.  Further, he had not limited his activity to a single occasion and had in mind continuing it for some considerable, though not an indefinite, period.  But he had no lengthy history of drug-dealing.  Above the level of the respondent, there might be a varying number of levels and qualities of involvement in the trade of heroin.  Several of these might fall within the "trafficable quantity" range of charges.  It would not be right, in my opinion, to view the respondent as being any higher than towards the lower end of the lower to middle range of offences of the kind in question.

35                  Earlier cases, such as Jurkovic v R (1981) 6 ACrimR 215, that have placed emphasis on the quantity of the drug in possession have done so in an effort to gauge the comparative seriousness of the offence.  If other information is lacking, the quantity of the drug may be the only indication of this.  If the quantity is comparatively large and at odds with a proffered explanation, it may be a more reliable indicator of what was involved than the explanation.  But where the quantities are, as here, relatively small within the trafficable quantity category, they may be less useful.  A dealer on the approximate scale of the respondent might, for example, be supplied thrice weekly with five grams.  A day before re-supply to the dealer, the quantity in the dealer's possession might be barely over the two grams necessary to establish the offence as within the subject sentencing range.  But the scale of dealing remains the same.  It is the estimate of the comparative degree of seriousness that is important.  It is not every case that calls for close attention to be paid to the quantity and, in my opinion, from the facts testified to by the appellant and accepted by the Crown, this case is not one of them.

36                  Further, the principal and real matter relevant to mitigation was the appellant's plea of guilty.  Notwithstanding the strength of the case against him, it is the policy of the law to encourage the guilty to plead guilty.  It is both obvious and well-recognised that unless there is a significant discount in sentence for that factor, that policy will not be vindicated.

No error by the primary judge

37                  I have explained what I think must be understood to have been his Honour's reasoning processes.  The questions are whether his Honour was justified in regarding this as a case to accord rehabilitation an unusual degree of weight and whether he erred in the way he gave effect to such a view.

38                  Despite the respondent's history, his Honour was, in my opinion, entitled to view his prospects for rehabilitation as sufficiently good to give him the chance to undergo it in lieu of immediate imprisonment.  Of significance, from the materials before his Honour, were the facts that:  the respondent had been off heroin for some months; he was apparently particularly motivated to overcome his addiction by the circumstances of his mother's distressing and terminal illness; and, on the evidence, the naltrexone method both evidenced his degree of motivation and held out real hope.  There was material before his Honour which could justify a decision not to invoke the more stringent forms of rehabilitative therapy.

39                  Precisely why his Honour did not sentence on two of the counts and adjourned further proceedings was not made clear and cannot be safely inferred.  An appeal by leave may possibly lie to this Court against such an adjournment except for good and cogent reason.  No application for leave is before us.

40                  What is clear, however, is that: (a) the respondent had suffered two months loss of his liberty on account of his crimes, when bail was refused to him.  That period must be counted as the equivalent of two months' imprisonment; (b) a suspended sentence of two years' imprisonment is to be treated as itself having some significant degree of deterrent and denunciatory effect.  Of failure to recognise this, Bray CJ said in Elliott v Harris (No 2) (1976) 13 SASR 516 at 527, that:

"It reveals an entirely mistaken and wrong-headed approach to the question of suspended sentences.  So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of which can be called automatically into effect on the slightest breach of the terms of the bond during its currency.  A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.”

41                  Accordingly, his Honour's sentence should be judged as one which (i) involved imprisonment for two months, (ii) afforded the respondent an opportunity for rehabilitation, but (iii) accompanied that opportunity with a plain statement to the respondent, would-be drug dealers and the community that, given other than satisfactory progress with the rehabilitation, there would be immediate liability to actual imprisonment for up to two years.

42                  In my opinion, it cannot be said that this was beyond the bounds of a sound exercise of the sentencing discretion.

43                  Perhaps I need to add that reference to other cases is only of limited use.  That is particularly so when there is only, as in the case of the ACT, a small number of instances of the particular type of offence.  A permissible range is necessarily a broad one.  Facts and their nuances are infinitely variable, as are individual judges' reactions to them.  So much was recognised in Chung Thi Le v R [1997] FCA 1286 in which Foster, von Doussa and Madgwick JJ said:

"We do not read the majority judgments [in Suen] as purporting to lay down as discrete principles of sentencing that a large quantity or a high level of purity are determinative of a requirement that very severe sentencing be undertaken, although of course such factors will very often be of importance as aggravating a drug-dealing case. 

Nor do we think that the majority [in that case] were essaying the task, historically thankless, of attempting to lay down a tariff of, say, 10 years as a head sentence whenever a large quantity of a drug such as heroin is found in the possession of somebody close to the ultimate organisers of the supply of heroin into the ACT.  As will emerge, we think that in the circumstances of the present case 10 years is an appropriate head sentence.  But by that judgment we intend to bind no other sentencing judge in any other case.  Our decision may or may not be useful in other cases as part of a broad pattern of sentencing to which other sentencers will usually have regard.  While it is proper that sentencing judges value consistency highly, sentencing is a discretionary exercise and the available range of a sound discretion will, inescapably, often be wide." (Emphasis in the original)

Appellate restraint necessary

44                  The alternative basis for our not interfering with the decision of the sentencing judge is, in my opinion, appellate restraint in Crown appeals against sentence.  As Brennan, Deane, Dawson and Gaudron JJ said in Everett & Phillips v R (1994) 181 CLR 295 at 305, "deep-rooted notions of fairness which underlie the common law principle against double jeopardly" require that leave to the Crown to appeal against sentence should only be granted "in the rare and exceptional case".  When leave is granted, the influence of those notions is not exhausted:  it comes very hard on an offender to have a sentence increased on appeal, particularly when the result would be to substitute imprisonment for a disposition falling short of an immediate liability to loss of liberty.  If this be, contrary to my view, a case in which this Court should re-sentence the respondent, I would consider that appropriate sentences at first instance would total three years' imprisonment with a non-parole period of one year (in each of which would be counted the two months' loss of liberty while bail refused).  I could not say that head sentences amounting to two years with a non-parole period of six months (again including the two months on remand) were so low as to be outside a permissible range.  I would consider a two year head sentence and a two month non-parole period too low, but I would not in such a case interfere on a Crown appeal.  Appellate restraint would mean that, re-sentencing an appeal, I would need to give a significant reduction in the sentence of three years with a one year non-parole period that I would think ought to have been awarded at first instance.  The difference between the resultant non-parole period and the two months served by the appellant would not be great enough to justify interference.  So to do would be not much more than tinkering.

Addendum

45                  I should not leave this matter without saying something which, though obvious enough, seems to me to be important and worth saying.  In the light of the evidence in this case (and that of Ms Irvine), it is, on the face of things and with unfeigned respect for those involved, somewhat surprising that, as Dowsett J has noted, a wholesale dealer who was supplying both the respondent and Ms Irvine, should be at large pending finalisation of his sentence.  Further, Ms Irvine provided information to the police which suggested that the respondent was a well-known drug dealer before he began receiving heroin from her.  We have, of course, been required to disregard that information in the consideration of Mr Blaskovic's case, because it was not in evidence before us.  Neither, however, was there any apparent exploration of that issue at first instance.  Ms Irvine, Mr Blaskovic and their supplier were each dealt with by different judges.  It is inescapable that, in a small and busy court such as the Supreme Court, it will not always be possible to ensure that related matters are dealt with by the one judge, although of course that is highly desirable.  In such a case it is essential that the Director of Public Prosecutions have sufficient resources to be able to assign a small team in his office to such cases, in order to ensure that there is a unified source of knowledge of the cases at prosecutorial, as well as at the police, level.  Without this, there is a risk that the Court will not receive proper assistance in its efforts to achieve the reasonable general consistency in dealing with such matters that it would wish to achieve and which the community desires.

Disposition

46                  In my opinion, the appeal ought to be dismissed.

Associate:

Dated:              16 September 1999

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

REASONS FOR JUDGMENT

DOWSETT J:

INTRODUCTION

47                  This is an appeal on behalf of the Crown against sentences passed in the Supreme Court of the Australian Capital Territory.  The respondent pleaded guilty to the following counts:-

·                 Count one, possession of a trafficable quantity of heroin for sale on 24 September 1998;

·                 Count two, possession of a trafficable quantity of heroin for sale on 27 September 1998;

·                 Count three, possession of a trafficable quantity of heroin for sale on 29 September 1998;

·                 Count four, possession of a trafficable quantity of heroin for sale on 1 October 1998;

·                 Count five, possession of a trafficable quantity of heroin for sale on 4 October 1998;

·                 Count six, possession of a trafficable quantity of heroin for sale on 6 October 1998;

·                 Count seven, possession of a trafficable quantity of heroin for sale on 8 October 1998.

THE FACTS

48                  The facts surrounding the offences emerged in the course of a police operation which commenced on 11 September 1998.  The police discovered that two persons were regularly travelling from Sydney to the ACT, two or three times per week, delivering heroin for distribution.  A quantity of 1.5 – 2 ozs was delivered on each trip, yielding about $10,000 to the suppliers.  It was asserted that the respondent had received trafficable amounts of heroin on 24, 27, 29 September and 1, 4, 6 and 8 October.  On 8 October 1998 the police searched the respondent’s home and found white powder (later shown to be heroin) on the kitchen table, together with balloons, foils and implements which could be utilized for both smoking and injecting heroin.  They also located zip-lock plastic bags.  In the course of the search, four people arrived at the premises with cash for the purpose of purchasing heroin.  The respondent told police that he was a heroin-user and sold heroin to finance that addiction.  He had disposed of heroin by flushing it down the toilet as police entered the premises. 

49                  At a subsequent interview he admitted selling heroin over the period covered by the charges but was vague as to the amounts of heroin or money involved.  He usually obtained his drugs from a woman called Irvine.  She has been sentenced, those sentences having also been subject to appeal at the current sittings.  The respondent said that whilst in employment, he had been able to pay for his heroin, but when he “finished work”, he found that he could not finance his habit and so incurred a debt to a person called James.  He approached this person concerning the debt and was told that he could work it off by selling.  The respondent was, at that time, waiting to enter a methadone programme.  He thought that when on the programme, he would be able to repay the debt quickly, presumably because he would not be buying heroin.  He was given a telephone and sold for about two weeks.  Customers would telephone him, and he would meet them to effect the transactions.  He collected heroin from Irvine’s address, receiving two deliveries of 4 or 5 gms.  On a third occasion (on the day of the raid), he received 7 gms.  It seems that he admitted receiving only three consignments.  Presumably, his pleas on the other counts are based upon continuity of possession.  This is inconsistent with the prosecution case outlined above, that he received shipments on six occasions.  As appears below, the respondent has been sentenced on only two of the seven counts.  Presumably, both relate to the receipt of four or five grams. 

PERSONAL CIRCUMSTANCES

50                  The respondent was born on 28 November 1966 and was therefore thirty-one when he committed the offences.  He lives in a de facto relationship and has three children, a daughter aged eleven and twin sons aged six.  He has been employed in the building industry but was unemployed at the time of the offences.  He says that work is now available to him.  He has a lengthy criminal history going back to 1984 when he first appeared in the Children’s Court.  He has been dealt with for numerous offences involving motor vehicles, including negligent driving, dangerous driving and blood-alcohol related offences.  His most recent traffic offence was in 1997.  He has also been dealt with for offences of dishonesty, including burglary in 1992 and possession of stolen property in 1996.  His first drug-related offence was in 1993.  In 1996, he was convicted of possession of heroin and sentenced to twelve months’ imprisonment, suspended upon his entering into a recognizance.  He breached the recognizance in 1997, but no action was taken.  In that year he was again convicted of possession of heroin.  A treatment order was made.  Over the years, he has been fined and subjected to other non-custodial orders, including community service.  He has not actually served any period of imprisonment, other than a period of just over two months spent on remand for the current offences, from 8 October to 10 December 1998.

51                  At the time of sentence the respondent had commenced the naltrexone programme.  He said that he had been trying to stop using heroin for years.  He is able to abstain for six, seven or eight months at a time, but then relapses.  He had relapsed recently as a result of his mother’s illness.  She is suffering from terminal cancer.  A pre-sentence report was requested early this year, but on 5 March 1999 the relevant authority reported that it was unable to provide such a report because the respondent had failed to attend an appointment on 12 February 1999.  When directed to attend for drug and alcohol counselling and to submit to urine analysis on 22 February 1999, he again failed to attend.  He was directed to undergo urine analysis on 1 March and again failed to do so.  It was therefore thought to be unlikely that he would co-operate in any rehabilitation programme.  At a later stage, he co-operated in the preparation of a report.  He indicated that he was unwilling to enter a residential drug treatment facility, believing that he could deal with his problem in the community.  The report suggests that this is unlikely.  He was considered suitable for community service, and the relevant authority was willing to accept him into such a programme.  He has previously breached a non-custodial order.  An assessment was also prepared pursuant to the Drugs of Dependence Act (1989) (ACT) (the “Drugs Act”) for the purposes of a treatment order pursuant to s 123.  The panel considered him suitable for such an order, suggesting a period of twenty-four months, with counselling as directed.

SENTENCES

52                  The learned sentencing Judge imposed the following sentences:-

·                 On count one a treatment order pursuant to s 123 of the Drugs Act;

·                 On count two a period of imprisonment for two years, suspended upon the respondent entering into a recognizance to be of good behaviour for three years and submitting to supervision.

53                  His Honour adjourned the hearing of all other counts to 6 August 1999.  We were told in the course of argument that the matters were mentioned again on that date and further adjourned.  The disposition of these counts by way of adjournment appears to be pursuant to a practice allegedly authorized by the decision of the High Court in Griffiths v The Queen (1977) 137 CLR 293.  It is said that the decision also establishes that such an order is not subject to appeal by the prosecution.  In the reasons for our decision in Irvine (Appeal No A 31 of 1999) this Court pointed out that there may possibly be an appeal against such an order by leave because of the terms of the relevant statutory provisions concerning appeals to this Court.  We also pointed out that changes in the various statutory regimes may have rendered otiose or impermissible the procedure allegedly approved in Griffiths.  The Director did not seek leave to appeal.  The appeal therefore concerns only the orders made in respect of counts one and two.  

MAXIMUM PENALTY AND COMPARABLE SENTENCES

54                  Pursuant to s 164(3)(b) of the Drugs Act, the maximum penalty for possession of a trafficable quantity of heroin for sale is a fine of $100,000 or imprisonment for 25 years or both.  The appellant relies upon the decision of this Court (Fox, Kelly and Ellicott JJ) in Jurkovic (1981) 6 ACrimR 215 at 220, where Fox J said:-

Two factors seem uniformly to be regarded as important.  One is the amount of the drug, in terms of pure heroin.  The other is whether, supply being a purpose, the supply was to be for straight out commercial profit (the more serious case) or for financing the prisoner’s own addiction; in the latter case part would doubtless be for his own use.  In the last-mentioned type of case, five years’ imprisonment is in general at or towards the top of the range, if the amount involved is small.

55                  This decision preceded the introduction of the Drugs Act and, as I understand it, the ordinance which preceded it.  This may be relevant for reasons which appear hereafter.  It seems, however, that more recent decisions demonstrate a similar approach.  The following cases were amongst those referred to in argument.

·                 In Phuc Huu Le (Supreme Court, 11 July 1997) an offender charged with possession of 4.3 gms of “substance”, 53 per cent of which was “strong heroin”, was sentenced to imprisonment for five years with a non-parole period of two years.  He was gainfully employed but was a drug user.  He was treated as “more than a street dealer”. 

·                 In Massey (Federal Court, Gallop, Mathews & Madgwick JJ, 5 March 1999) the offender was in possession of 5.68 gms of “substance”, 52 per cent of which was heroin, partly for supply and partly for personal use.  The offence was committed whilst the offender was on bail, and he had an extensive criminal record, although not for drug-related offences.  He was sentenced to four years’ imprisonment with a non-parole period of eighteen months. 

·                 In Nycil Le (Supreme Court ACT, 30 September 1998) the offender was found in possession of fourteen balloons containing 7 gms of “substance”, 50 per cent of which was heroin.  He was convicted by a jury and sentenced as a “user and dealer at so-called street level”.  He had prior convictions and was a drug user, but he was not “driven to trafficking … to finance an uncontrollable addiction”.  He was sentenced to imprisonment for a period of four years with a non-parole period of two years.

·                 In Van Hieu Truong (Supreme Court ACT, 5 November 1998) the offender was in possession of 37.9 gms of “substance”, 72.5 per cent of which was heroin.  He had a prior conviction for supplying heroin.  He pleaded guilty and offered co-operation.  His partner was the mother of a four month old baby.  He was sentenced to five years’ imprisonment with a non-parole period of two-and-a-half years.  It was said that in the absence of co-operation, the sentence would have been seven years with a non-parole period of three-and-a-half to four years.

·                 In Rickard (Supreme Court ACT, 22 February 1999) the offender was in possession of 5.327 gms of “substance”, 50 per cent of which was heroin.  He pleaded guilty.  He had participated in a “small distribution arrangement”, buying for $100 per quarter gram and selling for $120 with up to $400 profit on “a good day”.  He had prior convictions and was a user.  He promised co-operation.  He was sentenced to three-and-a-half years’ imprisonment with a non-parole period of eighteen months.  It was said that in the absence of co-operation, he would have been sentenced to six years’ imprisonment with a two-and-a-half year non-parole period.

·                 In West (Supreme Court ACT, 25 June 1999) the offender was in possession of 10.939 gms of “substance”, of which 78 to 86 per cent was heroin.  He was convicted by a jury.  The Court found that part was for personal use.  He had prior convictions.  He was sentenced to five years’ imprisonment with a non-parole period of two years. 

56                  Since the hearing of the appeal, and at our request, the appellant has supplied us with a more comprehensive table of sentences for drug-related offences in the Australian Capital Territory.  Although some are consistent with the pattern which emerges from the above cases, there are others which appear to be somewhat more lenient.  It is, I think, necessary that I consider those with a view to ascertaining how they might affect the pattern. 

·                 In Stankcovic (20 November 1998) a twenty year old with prior convictions, who pleaded guilty, was sentenced to six months’ imprisonment, to be released after three months (which he had already served) upon a recognizance and with a treatment order.  However it appears that this was a case of a single supply (presumably of a small quantity) to the supplier’s brother who was under eighteen.  It is not in any sense comparable with the present case. 

·                 In Sheriff aka Fraser (6 November 1998) a fifty-one year old female pleaded guilty to supplying seven foils totalling 2.5 gms of heroin.  She had prior convictions for possession and had been subjected to one lengthy suspended sentence.  Her criminal record included offences of dishonesty.  She was sentenced to two years’ imprisonment which was suspended for three years on her entering a methadone programme and accepting counselling and treatment.  She had already served fifty-three days in custody.  It seems that her prior convictions for drug-related offences had occurred many years previously, and that she had assisted the authorities.  The latter consideration should receive substantial recognition in the sentencing process for the reasons given in Irvine.

·                 In Phong Vo (12 December 1998) an eighteen year old pleaded guilty to two counts of supplying heroin, having come to the Australian Capital Territory expressly for that purpose.  It seems that he supplied about 8 gms on the first occasion and about 1.5 gms on the second, although whether or not these were “pure” figures is not clear.  The second offence was committed whilst he was on bail for the first.  He was sentenced to imprisonment for three years and two years on these counts, to be served concurrently, with a non-parole period of fifteen months.  This might be thought to have been a more serious offence in some respect than those with which I am presently concerned, but his age and apparent lack of previous convictions would have counted in his favour.

·                 In Wehlau (17 November 1997) a nineteen year old female addict with some prior convictions was charged with possession of 51 gms containing 10 gms of pure heroin.  She was given a treatment order for a period of twelve months.  She had given evidence against a co-offender and successfully completed a rehabilitation course whilst on remand.  There was only one offence and obviously, her assistance to the authorities was significant.

·                 In Rebecca Massey, aka Edwards (14 August 1997) a twenty-one year old with a poor record, including convictions for theft and drug-related offences, was convicted of possession of twenty-nine foils containing 2.9 gms of pure heroin and $2,000 in cash.  She was given the benefit of a treatment order.

·                 In Doughton (10 July 1997) a first offender pleaded guilty to possessing or supplying 4.3 gms containing 2.3 gms of pure heroin.  She received a twelve months’ sentence, suspended subject to a two year recognizance. 

·                 In Hiep Le (10 June 1997) a twenty-eight year old with prior convictions was convicted of supplying 3.7 gms of heroin to an under-cover officer.  It seems that there had been active police encouragement.  He received a period of eighteen months’ periodic detention.  There is a view, with which I concur, that police incitement may be an appropriate mitigating circumstance.  The use of periodic detention appears not to be a common feature in sentencing for offences of this kind.

·                 In Hung Thoung (10 July 1996) a thirty-five year old male with prior convictions for supplying heroin was convicted of possession of .4 gm of pure heroin.  He was an addict.  He was sentenced to two years’ imprisonment to be released after seven months to undergo treatment.

TRENDS

57                  This survey discloses three occasions on which a treatment order has been made either in lieu of, or in conjunction with a relatively short period of imprisonment or a suspended sentence.  They are Stankcovic, Wehlau, and Rebecca Massey.  Those offenders were aged twenty-two years, nineteen years and twenty-one years respectively, suggesting an obvious and compelling reason for a non-custodial sentence.  Two other cases involved the imposition of treatment regimes in lieu of, or with imprisonment, Sheriff and Hung Thoung.  Sheriff had co-operated with authorities.  Hung Thoung involved only .4 gm of heroin.  He had one prior conviction but was an addict.  In any event, he was to serve seven months’ imprisonment.  Of the other additional cases, Phong Vo was aged eighteen years and received a sentence of three years to serve fifteen months.  Doughton’s age is unknown.  She received a non-custodial sentence.

58                  I should say by way of completeness that two sentences on appeal from Magistrates were also supplied.  I have not treated them as relevant simply because it seems probable that they were dealt with in the Magistrates’ Court because they were less serious offences.  Even so, it is interesting to note that in Tahan (10 November 1997) an eighteen year old with no prior convictions, pleaded guilty to possession for supply of 1.8 gms of heroin.  The motive was profit.  The Magistrate sentenced him to eighteen months’ imprisonment with a non-parole period of six months.  The non-parole period was reduced to three months on appeal.  In Thanh Tran (27 November 1996) a male of unspecified age with prior convictions for supply of heroin was convicted of possession of .38 gms of heroin for sale.  He was sentenced to eighteen months’ imprisonment with a non-parole period of nine months.  The non-parole period was reduced on appeal to seven months.

59                  These cases demonstrate a consistent tendency towards imprisonment other than for young people or people who have assisted the police.  This is by no means surprising.  The only possible exception appears to be Doughton which was a plea of guilty by a first offender about whom we know nothing.   The cases do not reflect a clear differentiation between those who plead and those who stand trial.  Section 429A of the Crimes Act 1900 (Cth) (the Crimes Act) makes this a relevant consideration on sentence.  The respondent pleaded guilty and should receive credit for that.

RELATIVE SERIOUSNESS

60                  As previously demonstrated, the Drugs Act prescribes substantial maximum penalties for the present offences.  The prescribed maximum penalties for some other serious offences under the Crimes Act are:-

·                 Murder – Life;

·                 Manslaughter – 20 years;

·                 Sexual assault in the first degree in company – 20 years;

·                 Sexual intercourse with a person under the age of ten years – 17 years;

·                 Burglary whilst armed with an offensive weapon – 20 years;

·                 Armed robbery – 25 years.

61                  Offences of the present kind are, in terms of seriousness, very nearly at the top of the calendar, although the appropriate penalty in any case will depend upon its facts, which may be of infinite variety, and the personal circumstances of the offender.  For most serious offences, a sentencing Judge is faced with a range of sentences, from a non-custodial order at one end to a substantial period of imprisonment at the other.  He or she must evaluate the relevant circumstances in each case and seek to attribute to them a degree of “seriousness” as compared with other similar offences. Although many factors are said to be relevant, the effects of an offence on the victim and his or her family and friends will often be a powerful consideration in the sentencing process.  In the case of a drug-related offence, however, there will often be no identifiable person whose life has been seriously and adversely affected by it.  Indeed, in some cases, police intervention will have prevented the offender from supplying to others.  Further, drug offenders who come before the courts are usually themselves victims of the drug distribution network.  These factors may sometimes lead sentencing Judges to under-estimate the adverse effects on others of such offences or the potential for such adverse effects.

62                  The existence of a heroin distribution system in a community exposes people, especially young people, to the initial temptation to experiment with heroin and thereafter provides the opportunity for them to continue to derive whatever satisfaction it provides, until such time as addiction has been established.  The network then supports that addiction whilst feeding on it for financial gain, without regard to the source of the user’s money.  The courts, from experience in dealing with other offences, know that heroin-users do not only resort to the sale of heroin to finance their habits.  We regularly deal with people, especially young people, who have committed serial burglaries, or even serial robberies to finance habits. A very large amount of such crime is drug-inspired.  I have spent time discussing these propositions, which are well known to any Judge who has been actively involved in the criminal jurisdiction, because they are often unexpressed in the sentencing process.  They demonstrate that involvement in the drug distribution network should be treated as a serious offence, as are robbery and burglary, and that all three categories of offence are often motivated by addiction.  Sentences should not be based upon an assumption that drug-dealing, motivated by addiction, is generically less serious than burglary or robbery so motivated.

PURPOSES OF PUNISHMENT AND THE ROLE OF A TREATMENT ORDER

63                  Section 429 of the Crimes Act provides:-

The only purposes for which a sentence may be imposed are –

(a)       to punish the offender to an extent and in a way that is just and appropriate in all the circumstances;

(b)       to deter the offender or other persons from committing the same or a similar offence;

(c)        to rehabilitate the offender;

(d)       to make it clear that the community, acting through the Court, denounces the type of conduct in which the offender engaged;

(e)        to protect the community from the offender; or

(f)        a combination of two or more of the purposes referred to in par (a) to (e) inclusive.

64                  Section 429A(1) provides a list of matters to be taken into account in sentencing and includes at par (r):-

Whether the person is voluntarily seeking treatment for any physical or mental condition which may have contributed to the commission of the offence ;  …

65                  These provisions relate to the sentencing process for all offences, including the present offences which are constituted by the Drugs Act.  There are, however, other relevant provisions in that Act.  Part IX deals with treatment.  Section 122 provides that a court may, prior to sentencing, order an assessment of an offender by a panel, if the offender was:-

(a)       under the influence of a drug of dependence or a prohibited substance when he or she committed the offence; or

(b)       motivated to commit the offence by a desire –

(i)        to administer a drug of dependence or prohibited substance to himself or herself;

(ii)       to obtain such a drug or substance for administration to himself or herself; or

(iii)      to obtain resources to enable him or her to obtain such a drug or substance for administration to himself or herself; …

66                  Upon receiving an appropriate report, the court may, pursuant to s 123, make a treatment order specifying that the offender is to:-

(a)       In accordance with the recommendation of the panel, submit himself or herself for the treatment specified in the order at the approved treatment centre specified in the order, or for any other treatment at that centre or any other centre, as directed from time to time by a panel under s 142 or s 143 in accordance, in any case, with the reasonable requirements of the person in charge of the relevant centre; and

(b)       Comply with such other conditions as the Court specifies in the order.

67                  Where a treatment order is made, only a limited range of other orders may be made in respect of the relevant offence.  They include reparation orders, orders for conditional release without proceeding to conviction, orders for release upon a recognizance, suspended sentences and orders for community service.  Part IX appears not to contemplate a person who is  subject to a treatment order serving a period of imprisonment at the same time.  There is no suggestion that a treatment order can be carried out in custody.  It is therefore unlikely that it is intended that a treatment order be made in conjunction with an order involving actual imprisonment, whether those orders relate to the same offence or divers offences.  It is, in any event, unlikely that a treatment order could be successfully combined with a period of actual imprisonment, except perhaps a very short one to be served before the commencement of treatment.  Prisons are not generally regarded as places where drug addiction is likely to be treated successfully.  Further, the prospect of serving a lengthy prison sentence is unlikely to produce an appropriate frame of mind for addressing the problems involved in overcoming addiction.  In my view, there is no reasonable way of combining a treatment order with a period of imprisonment which is to be actually served, with the possible exception of a very short sentence (perhaps up to a month). Thus, in most cases, a treatment order will only be appropriate if the prison option is able to be avoided. 

OTHER MATTERS

68                  A number of other matters require comment.  We were told that there was no second reading speech associated with the enactment of the Drugs Act.  It was an ordinance which attained legislative effect pursuant to the measures which conferred self-government on the Territory.  Secondly, I have considered whether there is any basis for the view that the Drugs Act creates some special scheme for dealing with drug-related offences constituted by that Act, which might dictate the treatment of offenders in ways different from those applicable to offenders against other legislation, such as the Crimes Act.  I can find no basis for such a view although, of course, the treatment order provides an additional sentencing option in some cases.

69                  In the course of argument we enquired as to the frequency with which treatment orders are made in connection with drug-related robbery and burglary offences.  We received no clear response, but the suggestion was that such orders are not common.  That is hardly surprising.  Although treatment orders may be appropriate aids to rehabilitation, they do little to satisfy the other prescribed purposes of punishment, especially when there is an identifiable victim whose injury or loss is easily identified and understood.  Such orders are, for similar reasons, not generally adequate for serious drug offences.  I am not challenging the relevance of addiction as a factor in sentencing.  I am rather saying that we must not allow understandable compassion for addicts to cloud our judgment as to the seriousness of drug-motivated offences involving the supply of drugs or possession for that purpose (which offences usually have unidentifiable victims or potential victims) as compared to drug-motivated burglaries and robberies (which may have more easily discernible victims).

70                  Treatment orders, with the various consequences prescribed by the other sections in Pt IX, are by no means without onerous conditions, and the threat of a suspended sentence is also not to be overlooked.  However they hardly stand comparison with actual imprisonment when one considers such matters as punishment, deterrence, denunciation and community protection.  A treatment order might well offer the best opportunity for rehabilitation, but that purpose cannot be permitted to assume paramount importance for sentencing purposes.  I should add that there may be room to doubt the applicability of ss 122 and 123 in this case.  The respondent claimed to have been motivated by a desire to pay off a debt incurred in acquiring heroin, rather than by the desire to obtain heroin.  It is fair to say, however, that the appeal was conducted without significant reference to this point.

71                  I note that in the course of argument, it was faintly suggested that the respondent had been introduced to drug-dealing by Irvine, no doubt with the intention of arguing that any sentence should therefore be no more stringent than that imposed upon her.  There are, however, marked distinctions between this respondent and Irvine.  She was a first offender, had demonstrated some real commitment to rehabilitation before apprehension and offered extensive co-operation to the police.  None of those factors is demonstrated in this case.  Further, the evidence does not suggest that Irvine recruited the respondent, but that one of the Sydney suppliers did so.

72                  Probably, all of the respondent’s known misconduct should have been dealt with at the same time so that its total criminality could be assessed.  Unfortunately, the Griffiths order has made that impossible, perhaps another reason for avoiding such orders in cases of this kind.  Had the totality of his misconduct been taken into account, he would have been dealt with for a series of similar offences committed over a period of two weeks.  That, in itself, is probably a factor in mitigation, although one must keep in mind that he did not desist for any reason other than that he had been detected.  Nonetheless, he did not have a lengthy history of involvement in drug dealing.  We are concerned with two counts only.

DETERMINATION OF THE APPEAL

73                  The appellant concedes the very serious hurdles faced by a prosecuting authority in appeals against sentence as evidenced by cases such as Everett v The Queen (1994) 181 CLR 295.  Unless there is a demonstrable error in principle, such an appeal will fail.  Of course, a manifestly inadequate sentence may demonstrate a miscarriage in the sentencing process.  The appellant submits that these sentences are manifestly inadequate.  I agree.  I am satisfied that the sentencing discretion miscarried because the learned sentencing Judge failed to accord appropriate weight to the purposes of sentencing prescribed by law, other than that of rehabilitation.  This is demonstrated by the obvious lack of comparability between these sentences and those in the other cases to which I have referred.  In my view, having regard to the respondent’s conduct and his previous history, sentences in the vicinity of five years ought to have been imposed on both counts, with non-parole periods of two years.  As the sentencing process has miscarried, this Court should intervene to set aside the sentences and impose its own sentences.

74                  For a number of reasons, it is not appropriate to impose the sentences suggested above.  The first is that the respondent was dealt with in April of this year and so has been at liberty for four months.  As was observed in argument, the courts are reluctant to imprison a person on appeal where he has been at large as a result of the order at first instance.  Where that course is deemed necessary, it is usual to make some reduction in the appropriate sentence to ameliorate any feeling of hardship.  (See The Queen v S (1992) 39 FCR 276 at 286.)

75                  A further problem in the present case is that one of the Sydney suppliers has also been before the Court and was dealt with by way of a Griffiths order, apparently because he has offered co-operation to the police.  We have been provided with a copy of the learned sentencing Judge’s remarks made at the time.  It seems that his Honour made it clear that there would be a sentence of imprisonment in due course.  This is of some importance.  In the course of argument, it was observed that the Court of Criminal Appeal (NSW) has indicated that the making of a Griffiths order can sometimes constitute a representation of an intention not to impose a prison sentence and that in those circumstances, the sentencing Judge should not, at the expiry of the period of adjournment, impose such a sentence.  In the present case the Court was concerned that if the sentencing Judge were precluded from imprisoning the Sydney supplier at the end of the Griffiths adjournment period, then he might, in the end, be treated more favourably than the present offender.  In view of their respective positions in the distribution network, that would be prima facie undesirable.  However, as his Honour made it clear that there would be a sentence of imprisonment in due course, the problem does not arise.  Nonetheless, the Sydney distributor has been at liberty for some time and will continue to be at liberty even after the present respondent is apprehended pursuant to any order made by this Court.  That may be a further basis for a perception of undue discrimination against the respondent. 

76                  For these reasons, I would impose rather more moderate sentences than I would otherwise have done.  On each count, I propose sentences of imprisonment for three-and-a-half years, with non-parole periods of twelve months.  The sentences should be served concurrently, having regard to the fact that the offences were committed within a short period of time.  The period already served in custody should be taken as time served for both purposes.  I have taken into account the provisions of s 452 as to remission.  The sentence I propose is based upon the comparable cases in which, I infer, that matter was given appropriate consideration.

ORDERS

77                  I would allow the appeal, set aside the orders made in respect of counts one and two, substituting therefor sentences of imprisonment for three-and-a-half years with, in each case, a non-parole period of twelve months, the sentence to be concurrent.  Pursuant to s 451(1) of the Crimes Act, time spent in custody is to be reckoned as imprisonment already served for the purposes of these sentences.

78                  There has been no explanation of the sentences as required by s 450 of the Crimes Act.  The parties should be at liberty to have the matter re-listed should such explanation be thought necessary.

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Dated:  16 September 1999