Blyss v The Queen [2011] NTCCA 3

 

 

PARTIES:                                         BLYSS, Peter Reginald

 

                                                         v

 

                                                            THE QUEEN

 

TITLE OF COURT:                           COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

 

JURISDICTION:                               CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          CCA 22 of 2010 (20820816, 20925084 and 20926942)

 

DELIVERED:                                   24 February 2011

 

HEARING DATE:                             31 January 2011

 

JUDGMENT OF:                              RILEY CJ, SOUTHWOOD and BARR JJ

 

APPEALED FROM:                          MARTIN (BR) CJ

 

CATCHWORDS:

 

CRIMINAL LAW – Appeal against sentence – whether sentence manifestly excessive – whether sentences should be cumulative or concurrent – whether learned sentencing Judge erred in giving too much weight to the estimated value of the drugs in the course of sentencing – appeal allowed in part

 

The Queen v Spiero (1981) 26 SASR 577, applied

 

 

 

 

 

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     J C A Tippett QC

    Respondent:                                  R Coates

 

Solicitors:

    Appellant:                                     Northern Territory Legal Aid Commission

    Respondent:                                  Office of the Director of Public Prosecutions

 

Judgment category classification:    B

Judgment ID Number:                       Sou1103

Number of pages:                             25


IN THE COURT OF CRIMINAL APPEAL

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Blyss v The Queen [2011] NTCCA 3

No CCA 22 of 2010 (20820816, 20925084 and 20926942)

 

 

                                                     BETWEEN:

 

                                                     BLYSS, Peter Reginald

                                                         Appellant

 

                                                     AND:

 

                                                     THE QUEEN

                                                         Respondent

 

CORAM:     RILEY CJ, SOUTHWOOD AND BARR JJ

 

REASONS FOR JUDGMENT

 

(Delivered 24 February 2011)

 

THE COURT:

Introduction

[1]       This is an appeal against sentence.

[2]       The grounds of appeal are:

1.            The total sentence imposed on the appellant was manifestly excessive.

2.            The sentencing Judge erred in failing to correctly apply the presumption of concurrency to counts 5 and 8 on the indictment dated 15 March 2010 filed in proceeding No SCC 20820816.

3.            The sentencing Judge erred in imposing manifestly excessive sentences on counts 1, 2, 3, 5 and 8 on the indictment dated 15 March 2010 filed in proceeding No SCC 20820816 and on count 1 on the indictment dated 10 June 2010 filed in proceeding No SCC 20925084.

4.            The sentencing Judge erred in giving too much weight to the estimated value of the drugs in the course of sentencing the appellant.

The sentences imposed on the appellant

[3]       On 16 July 2010 the appellant was sentenced to a total period of 15 years imprisonment commencing on 1 June 2009 with a non-parole period of 10 years.  The total sentence was imposed on the appellant for 13 counts of drug offending which were pleaded on three indictments dated respectively 15 March 2010, 8 July 2010 and 10 June 2010.  The appellant pleaded guilty to all counts.

[4]       The counts on the indictment dated 15 March 2010 relate to offences arising out of drugs found at a shed rented by the appellant and at his home on 1 August 2008.  The counts pleaded on the indictment dated 8 July 2010 concern the supply of cannabis to Kevin Charles Winstead and drugs that suppliers from South Australia tried to deliver to the appellant two days after he was arrested.  The counts pleaded on the indictment dated 10 June 2010 relate to crimes committed by the appellant while he was on bail for the counts pleaded on the indictment dated 15 March 2010.

[5]       The offences to which the appellant pleaded guilty on the indictment dated 15 March 2010 and the penalties imposed by the sentencing Judge are as follows:

(a)            Count 1, possession of 138.2 grams of cannabis contrary to s 9(1) and (2)(e) of the Misuse of Drugs Act.  A sentence of imprisonment of two years commencing on 1 June 2009 was imposed.  The maximum penalty for this offence was imprisonment for five years or a fine of $10,000.

(b)            Count 2, possession of 0.78 grams of MDMA contrary to s 9(1) and s (2)(e) of the Misuse of Drugs Act.  A sentence of imprisonment of two years and three months was imposed.  The sentence was ordered to be served concurrently with the sentence imposed on count 1.  The maximum penalty for this offence was imprisonment for five years or a fine of $10,000.

(c)            Count 3, possession of 47.53 grams of methylamphetamine contrary to s 9(1) and (2)(e) of the Misuse of Drugs Act.  A sentence of imprisonment of two years and nine months was imposed to be served concurrently with the sentence imposed on count 1.  The maximum penalty for this offence was imprisonment for five years or a fine of $10,000.

(d)            Count 4 was withdrawn by the Crown.

(e)            Count 5, possession of $35,000 cash contrary to s 6(1)(a) of the Misuse of Drugs Act.  A sentence of imprisonment of five years and three months was imposed.  Three years and three months of the sentence was ordered to be served cumulatively upon the sentence imposed for count 3 on the indictment.  The maximum penalty for this offence is imprisonment for 25 years.

(f)            Count 6, possession of 20.8 grams of cannabis contrary to s 9(1) and s 9(2)(f)(ii) of the Misuse of Drugs Act.  No additional penalty was imposed on the appellant.  The maximum penalty for this offence was a fine of $2000.

(g)            Count 7, possession of 0.23 grams of methylamphetamine contrary to s 9(1) and s 9(2)(f)(ii) of the Misuse of Drugs Act.  No additional penalty was imposed for this offence.  The maximum penalty for this offence was a fine of $2000.

(h)            Count 8, possession of 124.31 grams of MDMA in the form of 370 tablets and 31.07 grams of powder contrary to s 9(1) and s 9(2)(d) of the Misuse of Drugs Act.  A sentence of imprisonment of four years was imposed.  Two years of the sentence of imprisonment was ordered to be served cumulatively upon the sentence of imprisonment imposed on count 5.  The maximum penalty for this offence is imprisonment for 25 years.

[6]       The offences to which the appellant pleaded guilty on the indictment dated 8 July 2010 and the penalties imposed by the sentencing Judge are as follows:

(a)            Count 1, supplying 28.846 kilograms of cannabis to Kevin Charles Winstead between 1 July 2008 and 2 August 2008 at Darwin contrary to s 5(1) and s 5(2)(b)(iii) of the Misuse of Drugs Act.  A sentence of imprisonment of six years and three months was imposed.  Two years of the sentence of imprisonment were ordered to be served cumulatively upon the sentence imposed for count 8 on the indictment dated 15 March 2010.  The maximum penalty for this offence is imprisonment for 14 years.

(b)            Count 2, taking part in the supply of 24.25 kilograms of cannabis to another person or persons between 28 July 2008 and 4 August 2008 contrary to s 5(1) and s 5(2)(b)(iii) of the Misuse of Drugs Act.  A sentence of imprisonment of four years was imposed.  The sentence was ordered to be served concurrently with the sentence imposed for count 3 on this indictment.  The maximum penalty for this offence is imprisonment for 14 years. 

(c)            Count 3, unlawfully taking part in the supply of 10,000 pills of MDMA weighing a total of 4.6 kilograms, being pills brought to Darwin contrary to s 5(1) and s 5(2)(b)(iii) of the Misuse of Drugs Act.  A sentence of imprisonment of five years was imposed.  Three years of the sentence was ordered to be served cumulatively upon the sentence of imprisonment imposed on count 1 of the indictment. The maximum penalty for this offence is imprisonment for 14 years.

(d)            Count 4, unlawfully taking part in the supply of 656.74 grams of methylamphetamine to persons unknown contrary to s 5(1) and s 5(2)(b)(iii) of the Misuse of Drugs Act.  A sentence of four years imprisonment was imposed.  The sentence was ordered to be served concurrently with the sentence of imprisonment imposed on count 3 of the indictment.  The maximum penalty for this offence is imprisonment for 14 years.

[7]       The offences to which the appellant pleaded guilty on the indictment dated 10 June 2010 and the penalties imposed by the sentencing Judge are as follows:

(a)            Count 1, possession of 58.75 grams of methylamphetamine on 29 July 2009 in Darwin contrary to s 9(1) and s 9(2)(e) of the Misuse of Drugs Act.  A sentence of imprisonment of three years and three months was imposed.  Two years of the sentence was ordered to be served cumulatively upon the sentence of imprisonment imposed on count 3 on the indictment dated 8 July 2010.  The maximum penalty for this offence was imprisonment for five years or a fine of $10,000.

(b)            Count 2, possession of 16.29 grams of cannabis on 29 July 2009 in Darwin contrary to s 9(1) and s 9(2)(f)(ii) of the Misuse of Drugs Act.  No additional penalty was imposed.  The maximum penalty for this offence was a fine of $2000.

The facts of the offending in relation to the charges pleaded on the indictment dated 15 March 2010

[8]       On or about 1 June 2008 the appellant arranged to rent a shed at Winnellie under a two year lease.  Rental payments were $1,903 per month.  Power was connected to the shed in the name of the appellant’s then girlfriend. 

[9]       The appellant maintained the shed as a storage and meeting place for his drug related activities.  A set of electronic scales was kept in the shed.  It was equipped with a security video monitoring system which provided visual images of the exterior of the property through a closed circuit television monitor. 

[10]     After leasing the shed the appellant arranged to ‘house sit’ a two bedroom house at Herbert.  The appellant and his girlfriend moved into the house on 19 June 2008.

[11]     On Monday 28 July 2008 the appellant attended the Motor Vehicle Registry at Palmerston and registered a Holden Commodore sedan in another name.  The appellant retained possession of the motor vehicle. 

[12]     Just prior to 3.00 pm on Friday 1 August 2008 the appellant used the Holden Commodore to take possession of a traffickable quantity of methylamphetamine and cannabis plant material.  He then returned to the shed and sent a message to Terry Hooton who attended a short time later in his motor vehicle. 

[13]     At 3.10 pm on 1 August 2008 police executed a search warrant at the shed at Winnellie.  As to count 1, the police found 138.2 grams of cannabis plant material in five clip seal bags inside a piece of PVC pipe which was on the front passenger seat of the appellant’s Holden Commodore.  As to count 2, the police found two MDMA tablets which weighed 0.78 grams in a silver tin in the appellant’s shoulder bag.  As to count 3, the police found 47.53 grams of methylamphetamine powder in three clip seal bags in another container which was also in the appellant’s shoulder bag.  As to count 4, the police found $815 in cash in the appellant’s wallet. 

[14]     Another search warrant was executed by police at 9.35 pm on 1 August 2008 at the house at Herbert.  A precision set of scales was found at the premises.  $35,000 in cash was found in a container in the middle drawer of a bedside table in the appellant’s bedroom.  20.8 grams of cannabis plant material was found in a small plastic container under the kitchen sink.  0.23 grams of methylamphetamine was found in a clip seal bag in a bedside table drawer.  Four clip seal bags that contained 266 blue tablets, three clip seal bags that contained 104 pink tablets and three clip seal bags that contained white crushed powder were found in a PVC container in the bedroom.  The tablets and the powder contained MDMA.  The total weight of MDMA was 124.31 grams. 

The facts of the offending on the indictment dated 8 July 2010

[15]     Between 1 July 2008 and 1 August 2008 the appellant contacted a person named Keith Winstead and delivered 28.8463 kilograms of cannabis plant material to him for safe storage at 35 Brahminy Road, Humpty Doo.  The appellant paid Mr Winstead a small amount of cannabis in return.

[16]     During 2008 the appellant made arrangements with Mark and Lisa Anderson to supply drugs to him on behalf of a South Australian drug cartel.  Shortly before 1 August 2008 the appellant placed an order with the Andersons for 5000 MDMA pills to be delivered to him from South Australia.  On 1 August 2008 the Andersons departed Adelaide to drive to Darwin.  They arrived in Darwin in the early hours of the morning on 3 August 2008 and travelled directly to the appellant’s home at Herbert.  However, they were unable to locate the appellant at this location so they travelled to appellant’s shed at Winnellie where they were again unable to locate the appellant as he had been arrested.

[17]     The Andersons then travelled to the Free Spirit Resort, Pinelands and booked into a cabin.  They removed three packages containing the MDMA and cannabis from the motor vehicle and placed them in the cabin.  They left a single package of methylamphetamine in the jack storage area in the rear of the motor vehicle.  They then retired to the cabin for a rest.

[18]     At 10.35 am on 3 August 2008 police executed a search warrant on the cabin and found the Andersons inside.  A search of the cabin revealed three boxes.  A box wrapped in paper which contained four plastic containers containing a total of 10,000 MDMA pills which weighed 4.6003 kilograms and one cryovac package containing 400.8 grams of cannabis.  A box wrapped in yellow rose patterned paper which contained 27 cryovac plastic bags containing cannabis plant material.  The cannabis weighed 12.126 kilograms.  A box wrapped in silver paper which contained 26 cryovac plastic bags of cannabis.  The cannabis weighed 11.731 kilograms.  The total weight of the cannabis located by the police was 24.25 kilograms.  A search of the motor vehicle revealed a clear plastic container which contained 656.74 grams of methylamphetamine which was in the form of light brown yellowish crystalline powder.

[19]     The appellant was interviewed by police on 13 August 2009.  During the interview he told the police he had only ordered 5000 pills of MDMA as he did not need the cannabis.  He already had approximately 50 pounds of cannabis which was stored with Mr Winstead.  The remainder of the drugs were all coming to him.  He said that he would have been able to sell the drugs on the market in Darwin over a couple of weeks to a month.

The facts of the offending on the indictment dated 10 June 2010

[20]     On 29 July 2009 the police executed a search warrant at the shed leased by the appellant.  The shed included two bedrooms, a lounge room, a bathroom and a large work area. 

[21]     During the search of the roof of the premises police found a sunglasses case.  Inside the case they found two clipseal bags which together contained 54.47 grams of methylamphetamine in the form of crystalline powder.  Two other clipseal bags were found in a small oval shaped container.  These bags contained a total of 4.0 grams of methylamphetamine.  Police also found two clipseal bags that together contained 16.29 grams of cannabis plant material.

[22]     Inside a bedside table in a bedroom the search revealed a silver box that contained clipseal bags that contained a total of 0.2 grams of methylamphetamine.  The methylamphetamine was in the form of crystalline powder.

The context of the offending

[23]     The appellant has been a drug user for many years.  In about 1996 or 1997 he came to Darwin.  For the next five years he worked in a retail hardware store.  He used amphetamines and cannabis.  However, he did not get into any trouble.  In 2002 he worked for a freight company.  After eighteen months he worked for another freight company until January 2007 when he was arrested for a drug offence. 

[24]     Following his arrest the appellant saw by a psychologist because he was trying to overcome his addiction to drugs.  He told the psychologist that he had been talked into selling cannabis in return for free amphetamines and he believed that he was not doing anybody any harm.  He had been surviving financially on a week to week basis because of his drug habit.  The charges in relation to this offending were later withdrawn.

[25]     As at 2007 in addition to symptoms of Attention Deficit Hyperactivity Disorder, the appellant was suffering from post traumatic stress disorder.  He was abusing different forms of drugs including alcohol and amphetamines.  A psychiatrist who saw the appellant in 2007 diagnosed a severe social anxiety state with panic attacks and a deeply suspicious and obsessive personality.  However, there were no signs of psychotic disorder and nothing to indicate an organic impairment of brain function.  The appellant was socially isolated as a consequence of his high interpersonal anxiety which was caused by his overwhelming suspicion and mistrust of most people.

[26]     Following his arrest in 2007 the appellant attempted to stop using drugs.  He voluntarily undertook the Salvation Army drug program.  He told a psychologist in 2007 that after he stopped using drugs he had experienced a marked increase in anxiety and depressive symptoms and he was also suffering night terrors about a bashing and accidental death.  He found himself screaming in his sleep.  Struggling psychologically, he was drinking more alcohol than previously.  His anger, resentment and bitterness were apparent to the psychologist.  The appellant was fearful of his own propensity to be violent which led to him avoid society as much as possible and to suffer from loneliness. 

[27]     The appellant’s efforts to remain drug free lasted only three months.  He relapsed into heavy use of cannabis and amphetamines.  After losing his job with a freight company he attempted running his own cleaning business.  He also undertook work installing air conditioners and maintaining and fixing pools. 

[28]     The appellant got into financial difficulty and he started dealing in drugs to support his drug habit.  In the first half of 2008 his drug related activities and personal use of drugs became more serious.  He was using up to 5 grams of amphetamines and half an ounce of cannabis a day.

[29]     In about January or February 2008 he was approached by a person in Darwin and asked to sell drugs.  His active involvement in the selling of drugs began a month or so later.  Initially, it only involved cannabis.  People would drive the cannabis up from South Australia and, each time, the appellant would sell the cannabis to the same buyer at wholesale rates, after which he would send the proceeds of the sales of the drugs back to the suppliers.  The appellant would take a pound of cannabis for his own use as payment for his involvement in selling the cannabis. 

[30]     Ultimately, the appellant became involved in selling MDMA and methylamphetamine.  This started in about mid June 2008.  The Andersons would turn up once a week or once a fortnight with large quantities of drugs and the appellant would be expected to sell them.  Most of his time was taken up selling the drugs that were brought to Darwin from South Australia.

[31]     The appellant would sell the drugs wholesale.  He mainly supplied them to Mr Terry Hooton.  Mr Hooton would take the drugs from the appellant for a wholesale price and pay the appellant that price from the proceeds he received by selling the drugs on what is known as the retail market.

[32]     The sentencing Judge found that the appellant was engaged in a very large commercial drug enterprise.  The appellant was trusted with very large quantities of drugs and hundreds of thousands of dollars and drug dealing became the primary activity of his life.  The sentencing Judge was also satisfied that the appellant received cash rewards.  However, his Honour was unable to determine how much cash he received. 

[33]     The sentencing Judge discussed the value of the drugs in his sentencing remarks.  His Honour noted that this depended upon the manner of sale.  The value of the cannabis stored with Mr Winstead was between $472,600 and $660,800.  The value of the MDMA was between $200,000 and $600,000.  The value of the methylamphetamine, if it remained uncut, was between $370,000 and $460,000.  If cut, depending on the ratio, it may have sold for a total value of almost $1.3 million.  His Honour observed that the quantity and value of the drugs gave an indication of the size of the appellant’s criminal enterprise.

[34]     The appellant’s commercial drug enterprise only came to an end because of his arrest.  The appellant admitted that if he had not been arrested he would have kept selling drugs because of his addiction.  Further, as events transpired, being caught arrested and charged was not enough to stop the appellant dealing in drugs.  It did not deter him from continuing to sell drugs in order to support his habit.

Ground two – the presumption of concurrency

[35]     It is convenient to address grounds two and four of the appeal first.

[36]     As to ground two, the sentencing Judge directed that two years of the sentence of imprisonment he imposed for count 8 on the indictment dated 15 March 2010 be served cumulatively on the sentence of imprisonment imposed for count 5 on the indictment.

[37]     The appellant argued that the sentences imposed for counts 5 and 8 on the indictment dated 15 March 2010 should have been made substantially concurrent.  It was said that the reason for substantial concurrency was to be found in the facts that the offending which was the subject of both counts, took place on the same day in one location and was part of one enterprise.  It was submitted that, while the possession of the money and the possession of the drugs are separate charges, they did not represent separate incursions into criminal conduct.  One went with the other.  They represented conduct that was necessary to carry on a commercial drug enterprise.  The aggregate sentence of imprisonment imposed for counts 5 and 8 was seven years and six months.  It was contended that such a sentence is wholly disproportionate to the totality of the criminal conduct which is the subject of those two counts on the indictment.

[38]     In our opinion this ground of appeal cannot succeed.  The appellant was not charged with conducting a commercial drug enterprise and, in any event, his criminal enterprise involved a series of ventures into crime.  The appellant’s sale of illicit drugs over a substantial period of time did not constitute a continuing episode or one transaction or a single invasion of the same legally protected interests.  This is not a case where the tainted money was inextricably linked with the possession of the commercial quantity of MDMA which is the subject of count 8 on the indictment.  Counts 5 and 8 on the indictment dated 15 March 2010 represent separate incursions into criminal conduct.  The $35,000 represents the proceeds of completed drug sales.  The appellant admitted he was involved in the supply of three different drugs.  It is not known what drugs the appellant sold in order to obtain the $35,000 or when the money was acquired or for how long the money had been held by the appellant.  The MDMA in the possession of the appellant was possessed for sale.  It is not known when the drug was acquired by the appellant. 

[39]     The fact that the motive for committing the two crimes may have been the same does not mean that the two crimes are so connected that it would be inappropriate for one sentence to be made substantially cumulative on the other sentence[1].

Ground four – value of the drugs

[40]     The appellant argued that the sentencing Judge gave too much weight to the estimated value of the drugs.  It was submitted that the actual quantity or purity of the MDMA and methylamphetamine within the substances, which were weighed, was unknown.  While all admixtures, regardless of the quantity of the dangerous drug found in them will, by virtue of the operation of the Act, be defined as a dangerous drug, the purity or amount of the drug actually present will determine how it may be cut and the prices for which it may be sold.  In the circumstances the value of the drugs could not be a significant factor in the sentencing process. 

[41]     In our opinion, the submissions as to ground four cannot be sustained.  Both the quantity and the value of the drugs involved are significant but not determinative elements in sentencing.  An assessment of the gravity of a drug offence which includes consideration of the value of the drug is not uncommon.  Reference is frequently made to the street or retail value or wholesale value of drugs and the values of the drugs formed part of the admitted facts in this case.  We agree with the submission of the Director of Public Prosecutions that the sentencing Judge’s comments in relation to the value of the drugs were measured and did not over emphasise the importance of that factor.

[42]     During his sentencing remarks the sentencing Judge stated:

Speaking very generally, from the overview of the potential sale prices of the various drugs, it is apparent that you were trusted with drugs with a minimum of approximately $1M and potentially worth in the order of $2.5M.  More importantly than the value of the drugs you already had stored 28.84 kilograms of cannabis ready to be distributed into the community.  The Andersons were about to top up that supply with a further 24.25 kilograms.  If the operation had been successful, you would have had a little over 53 kilograms of cannabis ready for distribution and sale over the next few months.

[43]     There is no demonstrated error in relation to this ground of appeal.  The sentencing Judge did not place undue emphasis upon the importance of the value of the drugs. 

Grounds one and three – manifest excess

[44]     The principal grounds of appeal are grounds one and three.  The appellant submitted that the sentences imposed for counts 1, 2, 3, 5 and 8 on the indictment dated 15 March 2010, the sentence imposed for count 1 on the indictment dated 10 June 2010 and the total sentence were manifestly excessive. 

[45]     As to counts 1, 2 and 3, the appellant made the following submissions.  All three counts deal with the possession of traffickable quantities, not commercial quantities, of the relevant drug.  The maximum penalty for each offence was a fine of up to $10,000 or five years imprisonment.  An initial penalty of two years imprisonment on count 1 with escalating periods of imprisonment for the possession of the other drugs is far too much having regard to the offender’s subjective circumstances and the quantities of drugs found to be in his possession.  The sentences are out of all proportion to the level of criminality involved. 

[46]     As to count 5, it was submitted that the sentence was outside of the range of sentences imposed for equivalent offending.  It was not known what drugs were sold to obtain the sum of $35,000. 

[47]     The appellant submitted that four years imprisonment for count 8 on the indictment dated 15 March 2010 was too much.  The ecstasy came in 370 tablets and some powder which had a total weight of 124.31 grams.  The maximum penalty for this offence was 14 years imprisonment.  Likewise, the sentence of imprisonment imposed for count 1 on the indictment dated 10 June 2010 was too much.  For possessing slightly more than half the commercial quantity of methylamphetamine the offender was sentenced to significantly more than half the maximum sentence.

[48]     There is force in the submissions made on behalf of the appellant.  In our opinion the appeal should succeed on these grounds.  The total sentence and the sentences imposed for counts 1, 2, 3, 5 and 8 on the indictment dated 15 March 2010 and count 1 on the indictment dated 10 June 2010 are manifestly excessive.

[49]     Counts 1, 2 and 3 on the indictment dated 15 March 2010 involved a single episode of offending.  On 1 August 2008 the appellant used his motor vehicle to take possession of a traffickable quantity of methylamphetamine and cannabis plant material.  He then returned to the shed at Winnellie and sent a message to his distributor who attended a short time later.  Only part of the cannabis and part of the methylamphetamine were to be sold.  The remainder of those drugs was to be consumed by the appellant.  In addition, the appellant was going to sell the two MDMA tablets in his possession.  The quantity of cannabis possessed was almost three times the traffickable quantity of cannabis.  The quantity of methylamphetamine possessed was less than half the commercial quantity of the drug.  The appellant became involved in drug trafficking because of his addiction to drugs.  His motivation for his drug activities was both need and greed.  In our opinion, the objective seriousness of this episode of offending was towards the lower level of such offences.

[50]     In the circumstances the sentences of imprisonment of two years, two years three months and two years nine months, were manifestly excessive.  The sentences are not only outside of the range normally imposed for such offending but they are significantly disproportionate to the other sentences of imprisonment which are not subject to challenge in this appeal.  While it is true that when sentencing for possession the Court should take into account the intention of the possessor, the use which he intended to make of the drugs and his role within the drug trade, the length of the sentence imposed cannot be increased beyond what is otherwise justified by the gravity of the offence solely to restrain an ongoing danger to society.

[51]     The sentences imposed for counts 5 and 8 on the indictment dated 15 March 2010 and for count 1 on the indictment dated 10 June 2010 are also outside of the range of sentences imposed for such a level of offending.  They are also disproportionate to the sentences imposed for the other counts which are not the subject of challenge in this appeal. 

[52]     In the circumstances the appeal is allowed. 

Re-sentence

[53]     The appellant is re-sentenced as follows:

(1)           As to count 1 on the indictment dated 15 March 2010, the appellant is sentenced to 10 months imprisonment.  The sentence of imprisonment is backdated to 1 June 2009.

(2)           As to count 2 on the indictment dated 15 March 2010, the appellant is sentenced to six months imprisonment.  The period of imprisonment is to be served concurrently with the sentence imposed on count 1.

(3)           As to count 3 on the indictment dated 15 March 2010, the appellant is sentenced to two years imprisonment.  The period of imprisonment is to be served concurrently with the sentence of imprisonment imposed for count 1.

(4)           As to count 5 on the indictment dated 15 March 2010, the appellant is sentenced to four years imprisonment.  The sentence of imprisonment is to be served wholly concurrently with the sentence of imprisonment imposed for count 1.

(5)           As to counts 6 and 7 on the indictment dated 15 March 2010, no additional penalty is imposed.  The Court has not interfered with the sentences imposed by the sentencing Judge.

(6)           As to count 8 on the indictment dated 15 March 2010, the appellant is sentenced to two years and six months imprisonment.  One year and six months of the sentence of imprisonment is to be served cumulatively on the sentence of imprisonment imposed for count 5 on the indictment.

(7)           As to count 1 on the indictment dated 8 July 2010, the appellant is sentenced to six years and three months imprisonment.  The Court has not interfered with the sentence imposed by the sentencing Judge.  Three years and three months of the sentence is to be served cumulatively on the sentence of imprisonment imposed for count 5 on the indictment dated 15 March 2010.

(8)           As to count 2 on the indictment dated 8 July 2010, the appellant is sentenced to four years imprisonment.  The Court has not interfered with the sentence imposed by the sentencing Judge.  One year and nine months of the sentence of four years imprisonment is to be served cumulatively on the sentence of imprisonment imposed for count 1 on the indictment dated 8 July 2010.

(9)           As to count 3 on the indictment dated 8 July 2010, the appellant is sentenced to five years imprisonment.  The Court has not interfered with the sentence imposed by the sentencing Judge.  The sentence of imprisonment is to commence at the same time as the sentence of imprisonment imposed for count 2 on the indictment dated 8 July 2010 and is, to that extent, to be served concurrently with that sentence.

(10)        As to count 4 on the indictment dated 8 July 2010, the appellant is sentenced to four years imprisonment.  The Court has not interfered with the sentence that was imposed by the sentencing Judge.  The sentence is to be served wholly concurrently with the sentence of imprisonment imposed for count 3 on the indictment dated 8 July 2010.

(11)        As to count 1 on the indictment dated 10 June 2010, a sentence of two years imprisonment is imposed on the appellant.  The sentence is to be served wholly cumulatively on the sentence imposed for count 3 on the indictment dated 8 July 2010.

(12)        As to count 2 on the indictment dated 10 June 2010, no additional penalty is imposed.  The Court has not interfered with the sentence imposed by the sentencing Judge.

[54]     The total effective sentence is, therefore, 12 years imprisonment commencing on 1 June 2009.  The Court fixes a non-parole period of eight years.

[55]     The sentences imposed by the Court in re-sentencing the appellant have been partially or wholly cumulated to the extent specified in order to reflect the totality of the appellant’s criminal conduct.  The appellant was a high level intermediary in the drug trade in the Northern Territory.  He was, in effect, a subcontractor for the major drug suppliers in South Australia.  He engaged in the commercial supply of drugs for an extended period of time.  His motives for doing so were both his own need to consume drugs and greed.  He supplied and/or possessed large quantities of dangerous drugs. 

[56]     In partially or wholly cumulating the sentences imposed on the appellant the Court has had regard to the following factors.  First, counts 1, 2 and 3 on the indictment dated 15 March 2010 involved a single episode of offending.  Count 5 involved the possession of the proceeds of the sale of drugs which were sold at times unrelated to the other counts in this proceeding.  Count 8 involved the possession of drugs which were acquired on dates unrelated to the other counts in this proceeding.  Count 1 on the indictment dated 8 July 2010 involved the supply of drugs to Mr Winstead.  This was a discrete episode of offending.  Counts 2, 3 and 4 on the indictment dated 8 July 2010 also involved a discrete episode of offending.  Count 1 on the indictment dated 10 June 2010 involved offending after the appellant was arrested.  The offending was aggravated by the fact it was engaged in by the appellant while he was on bail.  For this reason the sentence was made wholly cumulative on the sentence imposed for count 4 on the indictment dated 8 July 2010.

[57]     The Court has fixed a non-parole period of eight years because, in the opinion of the Court, this is the minimum time the appellant should serve in prison.  The Court has given significant weight to denunciation and both general and specific deterrence.  The appellant was engaged in a substantial trade in illicit drugs and he continued to offend while he was on bail.  The community must be protected from such conduct.

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[1] The Queen v Spiero (1981) 26 SASR 577.