Jacobs v The Queen [2001] FCA 1192

FEDERAL COURT OF AUSTRALIA

Jacobs v The Queen [2001] FCA 1192

Criminal Law – sentencing – severity appeal – challenge to "facts" found by sentencing judge not made out –further evidence of sentencing statistics from another jurisdiction not received on appeal – sentences not manifestly excessive.

ROYCE ALFRED JACOBS v THE QUEEN

A 13 of 2001

HIGGINS, WHITLAM & GYLES JJ

29 AUGUST 2001

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY A 13 of 2001

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ROYCE ALFRED JACOBS

APPELLANT

AND: THE QUEEN

RESPONDENT

JUDGES: HIGGINS, WHITLAM & GYLES JJ

DATE OF ORDER: 29 AUGUST 2001

WHERE MADE: CANBERRA

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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 A 13 of 2001

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ROYCE ALFRED JACOBS

APPELLANT

AND: THE QUEEN

RESPONDENT

JUDGES: HIGGINS, WHITLAM & GYLES JJ

DATE: 29 AUGUST 2001

PLACE: CANBERRA

REASONS FOR JUDGMENT THE COURT 1 This is an appeal by an offender against sentences imposed in the Supreme Court of the Australian Capital Territory. 2 The appellant was convicted on an indictment containing three counts for offences against the Drugs of Dependence Act 1989 (ACT). The offences were: (1) possession of a traffickable quantity of a prohibited substance for the purpose of sale or supply, (2) possession of a drug of dependence for the purpose of sale or supply, and (3) supply of a drug of dependence. The prohibited substance was lysergide (LSD) and the drug was methamphetamine. The appellant was sentenced to imprisonment for four and a half years on the first count, one year on the second count and two years on the third count. The sentencing judge (Miles CJ) directed that all terms be served concurrently and fixed a non-parole period of 18 months. 3 The essential facts of the offences were summarized in his Honour's sentencing remarks as follows: "The offences all occurred on 18 February 1999. A man whom I shall identify as 'A' telephoned the offender on his mobile telephone at about 1.30pm. In accordance with arrangements made in that conversation, the offender was driven by a third man, immediately, so it would appear, to a car park in Civic, where A was waiting. The offender handed the man A a container. Police moved in and arrested the offender and the man A. The container was found to have within it 30 blue tablets, each impressed with a 'Batman' symbol. The offender was found to have on his person $1,800 in cash, as well as a notebook containing entries about amounts owed. In the car in which the offender arrived, there were found 10 film canisters containing 192 tablets. Inside each tablet was a paper tab. Upon analysis, the tablets handed by the offender to the other man were found to weigh 10.846 grams, of which 0.339 grams, or 3.1 per cent was the methamphetamine charged in count 3. The tablets found in the car were made up of powder weighing 90.724 grams, of which 0.646 grams or 0.7 per cent was the amphetamine charged in the second count. The paper tabs contained not less than 3639 micrograms of lysergide or LSD. The traffickable quantity is 2000 micrograms." 4 Following his arrest, the appellant was granted bail. On 12 July 1999 he was committed for trial. (On 18 April 2000 the appellant was arrested and charged with other offences in respect of which he was refused bail.) A trial date of 30 October 2000 was fixed for the charges in the indictment which is the subject of this appeal. However, on 18 October 2000 he was arraigned before Miles CJ and pleaded guilty to all three offences charged in the indictment. His Honour recorded convictions accordingly and ordered a pre-sentence report. The appellant was remanded in custody. 5 The hearing on sentence commenced on 5 December 2000. The Crown tendered the record of the appellant's previous convictions and a statement of facts, together with a pre-sentence report prepared by Sallie Rue, a probation and parole officer. Ms Rue was cross-examined on her report. The appellant tendered a signed statement by his parents dated 30 November 2000, three character references and a report dated 16 November 2000 from the Education Officer at the Belconnen Remand Centre. The appellant adduced oral evidence from his mother and from Captain Lewis Gibson, a Salvation Army prison chaplain. The appellant did not give evidence himself. Miles CJ adjourned the sentencing proceeding to 2 February 2001 and granted the appellant bail in respect of the offences of which he had been convicted. (He remained in custody, however, on the other charges until he was granted bail for those alleged offences on 7 December 2000.) 6 On 2 February 2001, when the hearing resumed, the appellant tendered documents relating to his conduct since being discharged from custody and to his future plans. These comprised a statement dated 24 January 2001 from a casual employer on Queensland's Gold Coast (where he apparently went to reside with his parents), an acknowledgment dated 29 January 2001 of an application for enrolment in a TAFE course during 2001, certificates of enrolment in various courses at the National College of Fitness on the Gold Coast scheduled for the period March–June 2001 and a report on three sessions in January 2001 with a counsellor from the Gold Coast Drug Council. At the end of the hearing on that day, Miles CJ declined the appellant's request further to adjourn the proceeding and passed the sentences which are the subject of the present appeal. 7 It is now necessary to set out a good part of his Honour's sentencing remarks: "The offender was born on 24 October 1974. His parents had migrated to Australia from South Africa some 2 years previously. They are of so-called 'Cape coloured' background, and his mother who gave evidence said that their purpose was to escape the regime of apartheid. There was some tension in the family in the early years, but the offender has remained in a close relationship with his parents and other members of the family. He grew up in Canberra, was educated here, and worked in various semi-skilled occupations. He had nearly completed a diploma course in hospitality when he was arrested. He has one prior conviction for assault and one conviction for driving with the proscribed content of alcohol. He began drinking alcohol and experimenting with what may now be called the usual drugs, apart from heroin, at about age 16. He was placed under stress in his personal relationships and his use of, or abuse of amphetamine, cannabis, Ecstasy and alcohol increased until his initial arrest. Since then, it appears that has kept himself free of illicit drug use. He expressed to Ms Rue the wish to undergo residential rehabilitation. His parents felt the need to move interstate following his arrest, and whilst on bail he has been with them for at least part of that time. During that period he appears to have made positive efforts to break from the lifestyle that almost of necessity accompanied his participation in the trafficking and use of illicit drugs. His mother spoke and wrote eloquently of their shame and the effect of the proceedings on the family. A number of other persons testified in writing to the offender's positive qualities, and it appears that whilst in custody he took every opportunity to avail himself of the courses and counselling available at the Belconnen Remand Centre. I take the plea of guilty into account. There is also considerable remorse, mainly due to the offender's recognition of the effect that the detection of the offence has had on the family. There will be some reduction for those matters, but in respect of the plea of guilty it must be noted that it was not entered at an early stage, but it was at least in advance of the date of trial. These aspects however have to be measured against the seriousness of the offences. It is well known that use of heroin in the Australian Capital Territory exacts a heavy toll on the users and on the community. Amphetamine type drugs, including methamphetamine, commonly known as Speed, may be less widely used. It is not clear. What is clear, however, is that the trafficking in amphetamine type drugs is productive of much of the organised violent crime in this city, with rival groups competing for control of the trade. In contrast with heroin, as I understand it, amphetamine type drugs are available upon prescription from a medical practitioner. Their lawful availability has not prevented the growth of a substantial and vicious black market. In relation to heroin, the courts have been required in recent times to deal increasingly with offences of trafficking on a small scale by addicts who traffic in order to maintain their addiction. This does not appear to me to be a similar sort of case. This offender was clearly participating in an organised distribution ring. He responded quickly to the call to his mobile telephone and had a ready supply of tablets which … appear to have been supplied under the assumption that they were Ecstasy. He refused to tell police the source of his supplier, and as I have said, although the offender told police that the tablets he supplied to the other man were amphetamine, they were supplied in response to a request for Ecstasy. Ecstasy is a variety of another prohibited substance called shortly MDMA, and the penalties for its possession and use are the same as for methamphetamine. It is well known that the use of Ecstasy is on a steep increase among young people, particularly in Sydney, and although the present offender is not to be sentenced for trafficking in Ecstasy, I take the opportunity to remark that Ecstasy offences are likely to be taken very seriously by this Court and other courts in this territory in an attempt to ensure that the use of that drug does not get the hold here that it has elsewhere. The use of lysergide or LSD is understood to be quite low at the present time. It was fashionable and on the increase some years ago, but it is so dangerous and unpredictable in its effect that even the most desperate or enthusiastic of drug users will have little or nothing to do with it. It is therefore hardly necessary for me to say, but I will, that to place LSD in tablets which are passed off as Ecstasy or Speed is an act which calls for the severest condemnation. The present offender denied through his solicitor that he knew that there was LSD in the tablets in the car, and on the state of the evidence I have to accept his denial. As I have said, he refused to name his supplier, and I am not aware of what efforts have been made to track down the source, or with what success. I do not know if it is likely that the tablets were manufactured here in the ACT or brought in from elsewhere. But those who traffic in drugs, particularly when they know nothing of the true nature and quality of what it is they are supplying need to know that they may be dancing with death, and their ignorance of the fatal propensities of what they are supplying is no excuse when they come to be dealt with under the law. I have regard to all the requirements of section 429 and 429A of the Crimes Act, but in my view the need for deterrence requires a custodial sentence to be commenced immediately. Suspension of the sentence in whole or in part, periodic detention or disposition by way of a Griffiths bond in my view would not sufficiently mark the seriousness of the offences or provide sufficient deterrent. The prospects of rehabilitation, however, justify a relatively short nonparole period. I take into account the time spent in custody, bearing in mind that bail was revoked when the offender was charged with further offences." (Emphasis supplied.) 8 The grounds pressed in support of the appeal are: "3. The sentence imposed was excessive. 4. The learned Sentencing Judge placed undue weight and emphasis on the aspect of deterrence in the sentence that he imposed on the appellant. 5. The learned Sentencing Judge took factual matters into account that were not before him." Counsel for the appellant argued these grounds in reverse order. It is convenient to deal with them in the same sequence. 9 We have highlighted in the excerpt reproduced at [7] above the particular matters relied upon by counsel for the appellant as grounding the complaint in paragraph 5 of the notice of appeal. The approach of Miles CJ to those matters is said to involve an error of the kind identified by the New South Wales Court of Criminal Appeal in R v Mason [2000] NSWCCA 82. In that case a District Court judge, in sentencing an offender on a single count of supplying methylamphetamine, had purported to take judicial notice of common knowledge that excessive use of amphetamines can induce states indistinguishable from paranoid schizophrenia. The Court of Criminal Appeal held that, in the absence of expert evidence on the psychiatric effects of amphetamine abuse, the judge erred in proceeding upon such an assumption. Abadee J referred to s 144 of the Evidence Act 1995 (NSW) and then said at [24]: "I consider that care should be taken by a sentencing judge that he or she does not permit to intrude into his reasons for sentencing, views that may or may not have been formulated based upon his own or her own perhaps private experiences in life, or even acquired from judicial experiences as the case may be." 10 In Mason the court evidently considered that the sentencing judge's knowledge did not satisfy the test in s 144(1) of the Evidence Act and that proof was required of such a matter. So understood, the case is merely another instance of the application of the well-known principle that an exercise of discretion miscarries if a judge mistakes the facts. 11 Counsel for the appellant seizes on the highlighted passages in Miles CJ's sentencing remarks to submit that there was no evidence of these matters. It is also contended generally that heroin and Ecstasy were irrelevant to the offences for which the appellant stood for sentence and that references by his Honour to such drugs impermissibly elevated the appellant's criminality. 12 One item of complaint may be quickly disposed of. The finding that the appellant "was clearly participating in an organised distribution ring" was well open on the agreed statement of facts in evidence. Any other conclusion would, in our view, have bordered on the perverse. Moreover, and most importantly, such a finding was directly relevant to an evaluation of the criminality involved in the appellant's offences. 13 On the other hand, however, it must be said that at first blush the other statements impugned by the appellant are more problematic. No pharmacological or medical evidence was given in the sentencing proceeding. Nor were any crime statistics received in evidence. Thus there was no evidence on which to base any findings about links between amphetamine trafficking and organised violent crime, the incidence of illegal drug use or the effects of using any particular drugs. His Honour must have relied on other sources of information for the views he expressed on these topics. Those views do not, however, necessarily betoken a sentencing error. What must be determined in a specific case are the facts relating to the commission of the offence and the personal circumstances of the offender. These are the so-called "objective" and "subjective" considerations. In the present case the sentencing judge has not mistaken those facts, and his relevant findings are firmly based on the evidence before him. 14 The harsh language used by Miles CJ to denounce the illegal drug trade generally did not, in our opinion, infect the specific findings required in the present case. The reference to "ignorance of the fatal propensities of what they are supplying" did cause us pause. Earlier in the same paragraph his Honour, somewhat puzzlingly, said that he had to accept a denial made by the appellant's solicitor that his client knew there was LSD in the tablets which were the subject of the first count in the indictment. Such a denial would contradict the guilty plea. Since the appellant did not give evidence, we think that in the circumstances his Honour was doing no more than courteously acknowledging what the solicitor said were his instructions. That would explain the following homily of general application with its figurative use of the word "dancing" followed by the alliterative "death". Such extravagant language can sometimes create a suspicion that there has not been a proper factual analysis of the offence. However, in the present case it is clear that his Honour did not find that the tablets involved in the appellant's offence had fatal propensities. The appellant was not, therefore, sentenced on the basis of a finding of fact for which there was no evidence. This ground of appeal is not made out. 15 Counsel for the appellant further submits that the sentencing judge erred in failing to take account of the appellant's "addiction" to drugs. Presumably, in view of the way the second ground of appeal is expressed, this error must result from the undue priority allegedly given to deterrence by Miles CJ. 16 In his sentencing remarks his Honour noted the appellant's abuse of "amphetamine, cannabis, Ecstasy and alcohol". This statement is obviously based on the hearsay evidence of Ms Rue. Apart from a passing mention in his parents' statement and his mother's evidence, the only information on the appellant's use of drugs comes from Ms Rue's report. After recounting the history she was given, Ms Rue expressed her "belief that due to the [appellant's] history of alcohol offences and drug use he is at high risk of further offending if he does not address his addictions". In respect of the subject offences, she also said that the appellant was to receive "two tablets for his own use". 17 The only evidence of an offence by the appellant connected with alcohol was the record of his conviction for a "PCA" offence committed on 29 May 1994. Ms Rue's reference to the appellant's "addictions" is impossible to justify on the material recounted in her report. To put it bluntly, there was no evidence before his Honour upon which a finding of addiction to drugs could possibly be made. In any event, even had the evidence been such as to compel a finding of drug addiction, such a consideration is not always a mitigating factor. This ground of appeal also fails. 18 Finally, it is contended that the sentences are manifestly excessive when regard is had to the quantity of drugs involved in the offences, the guilty pleas and the appellant's "strong subjective circumstances". In particular, counsel for the appellant submits that Miles CJ did not give enough emphasis to the possibility of rehabilitation. 19 In order to show that a sentence of four and a half year's imprisonment was by itself excessive, the appellant tendered sentencing statistics from the on-line information system of the Judicial Commission of New South Wales. These statistics showed the penalties imposed in the higher courts of New South Wales during the period from April 1993 to March 2000 in respect of offences under the Drug Misuse and Trafficking Act 1985 (NSW) for supplying less than a commercial quantity of each of the prohibited drugs LSD, Ecstasy and amphetamines. The use of the New South Wales statistics was justified on the basis that in that jurisdiction there was a larger pool of cases involving offences such as those for which the appellant was sentenced. The reception of this material in evidence was opposed by the Director of Public Prosecutions. 20 The Court was not taken during argument to a detailed examination of the statutory basis of the New South Wales offences. However, enough was said to indicate that the relevant statutes in that State and in the Australian Capital Territory differ in significant respects. Apparently the New South Wales Court of Criminal Appeal takes the view that it can act on such statistics because the information is available to all sentencing judges: see R v Henry (1999) 46 NSWLR 346 per Spigelman CJ at 360-361. 21 The power of this Court to receive further evidence on an appeal has been explained in CDJ v VAJ (1998) 197 CLR 172. We very much doubt that such bald statistics from another jurisdiction, if objected to by the Crown or by a defendant, should be admitted in sentencing proceedings in the Australian Capital Territory. However that may be, we see no reason whatsoever to exercise our discretion now to receive them in this case. The relevance of the statistics is marginal at best and they certainly would not demonstrate that the sentencing discretion of Miles CJ miscarried. The tender should be rejected. 22 The maximum terms of imprisonment for the offences here in question are respectfully 25 years, 5 years and 5 years. These are the starting points in determining the appropriateness of the sentences. The Director of Public Prosecutions acknowledges that imprisonment for four and a half years is a severe sentence. However, in his sentencing remarks Miles CJ has carefully taken into account all the objective and subjective circumstances of this case. The nonparole period fixed by his Honour means that the appellant will be eligible to be released from prison within a relatively short time. Sentencing the appellant obviously required different and often conflicting matters to be considered and balanced. It is trite that it is not to the point whether an appellate court agrees with the sentence imposed. Sentencing is not a mathematical process: Pearce v The Queen (1998) 194 CLR 610 at 624 [46]. In our opinion, the appellant has failed to demonstrate that the sentencing judge made an error of principle or that the sentences are manifestly excessive. 23 The appeal will be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Higgins, Whitlam and Gyles.