FEDERAL COURT OF AUSTRALIA Jones v The Queen [2000] FCA 71 GLEN ANDREW JONES v THE QUEEN A82 OF 1999 SPENDER, HIGGINS & MATHEWS JJ 7 FEBRUARY 2000 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A82 OF 1999 DISTRICT REGISTRY On appeal from a single Judge of the Supreme Court of the Australian Capital Territory BETWEEN: GLEN ANDREW JONES Appellant AND: THE QUEEN Respondent JUDGE: SPENDER, HIGGINS & MATHEWS JJ DATE OF ORDER: 7 FEBRUARY 2000 WHERE MADE: CANBERRA 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. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A82 OF 1999 On Appeal from a single Judge of The Supreme Court of the Australian Capital Territory BETWEEN: GLEN ANDREW JONES Appellant AND: THE QUEEN Respondent JUDGE: SPENDER, HIGGINS & MATTHEWS JJ DATE: 7 FEBRUARY 2000 PLACE: CANBERRA EX TEMPORE REASONS FOR JUDGMENT SPENDER J: 1 Glen Andrew Jones appeals against the severity of sentences imposed on 1 October 1999 when he pleaded guilty to six offences of supplying heroin to another person. Five of those offences are said to have occurred on 4 September 1998 and the last on 7 September 1998. Those charges were preferred on a "representative" basis as there was evidence of other dealing in heroin. 2 Under s 146(3)(a) of the Drugs of Dependence Act 1989, the maximum penalty for a person who supplies heroin to another is a $10,000 fine or imprisonment for five years or both. The learned sentencing judge imposed a sentence of three years imprisonment on each count, with a non-parole period of eighteen months. His Honour ordered that the sentences be served concurrently and be back dated to 23 June 1999 to take into account the time that the appellant had already spent in custody. 3 In addition to the six counts of dealing in heroin Mr Jones asked that two further offences be taken into account, in accordance with s 448 of the Crimes Act 1900. These offences were an offence of failing to answer a bail undertaking on 26 June 1999 and an offence of attempting to escape from lawful custody on 7 July 1999. 4 The central question argued on Mr Jones' behalf on this appeal concerns the circumstance that Mr Jones was dealt with in respect of those offences by the Supreme Court. It was submitted that under s 477 of the Crimes Act 1900 all the offences could have been dealt with by the Magistrates Court; the appellant had not elected to come before the Supreme Court; and had the matters been dealt with in the Magistrates Court the maximum sentence would have been imprisonment for two years or a fine of $2000 or both. 5 It is true that the fact that an appellant could have been dealt with summarily is relevant to the penalty to be imposed but in this particular case the fact is that the maximum penalty which a Magistrates Court might impose, had the matter been able to be dealt with summarily or been dealt with summarily is a sentence of imprisonment not exceeding two years or a fine not exceeding $5000 in respect of each offence. Moreover, s 477 of the Crimes Act requires before the Magistrates Court deals with the matter, it must be of the opinion that the case can properly be disposed of summarily. 6 Not only does the defendant have to consent to summary disposition of the offence but it is necessary that the magistrate be of the view that it would be proper to dispose of the matter in that way: s 477(7)(b). The opinion concerning that question is required, by s 477(8), to be formed after the court has had regard not only to the representations made by the defendant and any relevant representations made by the prosecutor, but also "whether, if the defendant were found guilty or the defendant's plea of guilty had been accepted by the court, the court is by virtue of this section empowered to impose an adequate penalty having regard to the circumstances and in particular to the degree of seriousness of the case" and "any other circumstances which appear to the court to make it more appropriate for the case to be dealt with on indictment rather than summarily." 7 We do not have the reasons why the Chief Magistrate declined to deal with the present appellant pursuant to the provisions of s 477. Having regard to the number and seriousness of the offences it may very well be that the Chief Magistrate viewed the matter as one which did not fall within the requirements of s 477(7)(b). 8 On the central submission that this was an appropriate case where the sentence ought to have been no higher than would have been imposed in the Magistrates Court the fact is that the sentence imposed was no higher than might have been imposed by the Magistrates Court. 9 Mr Jones was exposed to the possibility of a total of twelve years' imprisonment on the six supply charges. The fact that the learned sentencing judge imposed an effective total imprisonment of three years, to serve eighteen months and then give full allowance for all the time spent in remand in the ACT, indicates that the sentence that was imposed was within the parameters of the sentence that might have been imposed by the Magistrates Court, should the Magistrates Court have been inclined to deal with the matter summarily. 10 That in my opinion is sufficient to dispose of that central submission for Mr Jones on this appeal. 11 The facts before the learned sentencing judge show that the appellant was, with a Sonny Stuart Black, supplying heroin on a regular basis to heroin users in the ACT. They had two cars at their disposal and their practice was to drive, either together or separately, around Canberra where they would meet various customers and supply them with quarter weights of heroin for between $110 and $120. They had mobile phones and were available 24 hours a day to deliver heroin to their clients. They would deal up to 24 full quarter weights in a day. 12 Listening devices picked up the number of conversations between the appellant and people who came to the car to buy heroin from him. These conversations founded the individual charges of supplying heroin to persons unknown. On 8 September a search warrant was executed under the Drugs of Dependence Act at Mr Black's home at 2 Castley Circuit, Kambah, where Mr Jones was living at the time. During that search police seized $3,285 in cash, a set of electronic scales, a number of unused water balloons, 10 water balloons containing heroin, four foils containing heroin, and a tin containing heroin was found in the bedroom which Mr Jones was occupying. 13 The 10 balloons contained 1906 milligrams of a white substance analysed at 65.5 per cent pure heroin, that is 1248 milligrams. The five foils contained 1184 milligrams of a white substance analysed at 70 per cent, or 830 milligrams of pure heroin. Mr Black, the Court understands, has been charged with similar offences and has been committed for sentence in the Supreme Court of the Australian Capital Territory. His sentencing proceedings have been set down for 11 February. 14 A number of features concerning the offences to which Mr Jones pleaded guilty make it plain, in my view, that the sentence, viewed as whole, was well within the appropriate sentencing range. Those factors include the number of separate offences to which he stood to be sentenced; the seriousness of each of them, apparent from the maximum penalties available on each; the need for general deterrence in the case of drug dealers; the fact that he had a number of convictions dating back to 1990, some of which were for drug offences; the fact that he was dealing in quantities and for amounts of money that went beyond what was necessary to support his own drug addiction; and the circumstances of the commission of the offences. 15 Mr Jones, in short, was part of a business of dealing in prohibited drugs. The conversations recorded by listening devices used in the police investigations make it clear that the dealing was taking place on an organised and regular basis. Mr Jones was heard assuring his customers that he could deliver 24 hours a day, that it did not matter what time of the day or night they called. The operation was not unsophisticated or ill-equipped. The whole operation, of which he was an integral part, was well organised and offered a 24 hour supply of heroin. 16 That circumstance, of course, is reinforced by the fact that the Mr Jones was dealt with on six charges as representative charges. It is true that Mr Jones has made progress towards his own rehabilitation. He claims to have been drug free since October 1998. That aspect is a matter of commendation and is relevant to the appropriate sentence or sentences to be imposed. However it is not irrelevant to note in this regard that Mr Jones has previously been placed on probation for offences, including the possession of dangerous drugs, and in 1993 he was given a community service order for offences including the possession of a dangerous drug. He has, in the past then, been given the benefit of community based orders and yet his offending in relation to heroin has escalated. He claims that he left his family in Adelaide and travelled to Canberra in order to detoxify in a clean environment and says that on his arrival in Canberra he was unaware that his brother-in-law, Mr Black, was a heroin user. 17 It seems that there is no evidence to suggest that he started with his intended rehabilitation on his arrival and then later lapsed back into use. The evidence seems to suggest that he immediately went into assisting Mr Black in his drug dealing business. The sentencing judge noted that he was not satisfied with the explanation that Mr Jones offered for his travel from Adelaide to Canberra. 18 It seems to me that the learned sentencing judge took into account all those matters which entitle Mr Jones to leniency and he gave them due weight. When one has regard to the extent of the criminality exhibited, the need for general deterrence, the maximum penalties to which he was exposed and the range of sentences imposed in similar cases (many of which are referred to in the judgment of Dowsett J in R v Blaskovic 1999 FCA 1306, 16 September 1999), in my opinion it cannot be said that the present sentence calls for any appellant intervention. On the contrary, in my opinion the sentence effectively imposed fell well within the range of the sentencing judge's discretion and his sentencing exposed no error. The appeal should be dismissed. HIGGINS J: 19 I agree. The decision of the Chief Magistrate to commit the appellant for sentence in the Supreme Court may be not only for the reasons the learned presiding judge gave but also, when one bears in mind that Mr Black the co-offender is also committed for sentence in the Supreme Court, to give effect to what it is generally regarded as appropriate that co-offenders be dealt with, if at all possible, by the same sentencing judge. I agree the appeal should be dismissed. MATHEWS J: 20 I also agree that the appeal should be dismissed, for the reasons given by the learned presiding judge. SPENDER J: 21 The order of the court is that the appeal is dismissed. The order of the court is that the appeal is dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Higgins & Mathews Associate: Dated: 11 February 2000 Counsel for the Appellant: Mr J Sabharwal Solicitor for the Appellant: Legal Aid Office (A.C.T.) Counsel for the Respondent: Mr R Refshauge Solicitor for the Respondent: Director of Public Prosecutions Date of Hearing: 7 February 2000 Date of Judgment: 7 February 2000