R v SMIROLDO [2000] NSWCCA 120

Reported Decision : 112 A Crim R 47

New South Wales Court of Criminal Appeal

CITATION : R v SMIROLDO [2000] NSWCCA 120 FILE NUMBER(S) : CCA 60456/99 HEARING DATE(S) : 16 March 2000 JUDGMENT DATE : 14 April 2000

PARTIES : Regina Shane Anthony Smiroldo JUDGMENT OF : Sheller JA at 1; Hulme J at 2; Dowd J at 25

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/0112 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : Crown: MC Marien Appellant CV Jeffreys Solicitor SOLICITORS : Crown: SE O'Connor Appellant: Jeffreys & Associates

DECISION : Leave to appeal granted; Appeal dismissed.

- 12 - IN THE COURT OF CRIMINAL APPEAL No 60456 of 1999 SHELLER JA HULME J DOWD J Friday, 14 April 2000 REGINA -v-Shane Anthony SMIROLDO JUDGMENT

1 SHELLER JA: I have had the benefit of reading the reasons for judgment of Hulme J. For the reasons his Honour gives, with which I agree, I joined in the orders made on 16 March 2000.

IN THE COURT OF CRIMINAL APPEAL No 60456 of 1999 SHELLER JA HULME J DOWD J Friday 14 April 2000

REGINA -v-Shane Anthony SMIROLDO JUDGMENT

2 HULME J: On 30 July 1999 Shane Smiroldo was sentenced to imprisonment for a minimum term of 2½ years from that date and an additional term of 2 years commencing on 30 January 2002 for an offence under Section 25A of the Drug Misuse and Trafficking Act. On 16 March last this Court granted leave to appeal but dismissed his appeal. These Reasons are directed to explaining why I joined in that decision. 3 So far as is relevant s25A provides:- (1) A person who, on three or more separate occasions during any period of thirty consecutive days, supplies a prohibitive drug (other than cannabis) for financial or material reward is guilty of an offence. Maximum penalty: 3,500 penalty units or imprisonment for 20 years or both. (2) A person is liable to be convicted of an offence under this section whether or not the same prohibited drug is supplied on each of the occasions relied on as evidence of commission of the offence. (3) If, on the trial of a person for an offence under this section, more than three occasions of supplying a prohibited drug are relied on as evidence of commission of the offence, all the members of the jury must be satisfied as to the same three occasions in order to find the person guilty of the offence. 4 Subsequent subsections provide that a jury not satisfied as to the commission of an offence under s25A may convict of offences of supply, deal with the topic of double jeopardy and contain other provisions not presently relevant. 5 The circumstances of the incidents of supply in the instant case were as follows:- (i). On 28 January 1998 an undercover police officer went to the garage area of the premises in which the Applicant lived, informed the Applicant that he was "after some stuff'. The Applicant said that he had "goey or grass". The police officer indicated he wanted "goey" and after a discussion as to quality and price, the police officer said he would have a "fifty". The Applicant took out a number of packets containing white powder from a bum bag, handed one to the policeman and was given $50. The other packets were replaced in the bum bag. In due course the white powder was analysed and weighed. It weight was 0.37gms and its methylamphetamine content was 4.5%. (ii). The Applicant also said to the police officer words to the effect "Come back and see me anytime, I'll fix you up with anything" and indicated he was open seven days a week. (iii). On 8 February 1998 the police officer again attended at the garage area and purchased another packet of powder for $50. The powder on this occasion weighed .49gms and its methylamphetamine content was 3%. (iv). On 23 February 1998 the police officer went again to the garage and purchased from the Applicant two bags of powder for the sum of $100. The quantity was 86 grams. (v). On this occasion the police officer also indicated that he was desirous of acquiring a larger quantity. The Applicant offered to supply 10ozs for $3,500, advising that what he was supplying was quite strong, could be cut by his customer with another substance and thus make up 12ozs which could be sold at $1,000 per ounce. Arrangements were made for the purchase and sale of 1oz for $900. (vi). On 25 February the Applicant sold to the police officer a plastic bag of powder for $900. The powder weighed 26.7grams, its methylamphetamine content being 5%.. 6 This last purchase was carried out with other police officers in the vicinity. When they made their presence known the Applicant fled into the premises. He was shortly thereafter arrested and the $900 paid was recovered in the possession of his mother. 7 Judge Howie found that the Applicant "was engaged in the business of supplying drugs to whosoever might approach him at his garage". His Honour also said:- "I have also no doubt in my mind that he engaged in this conduct for profit, even if he was also incidentally supplying his own drug addiction. … "… I should sentence the Prisoner on the basis that he was involved in the ongoing supply of amounts which might be described as street deals, that is packets of the drug for $50, being about 0.3, or 0.4 of a gram, depending upon the drug's purity. He was … the middle man in disseminating this drug into the community to users. However, he was prepared to supply a larger amount of the drug when requested to do so by the under cover operative. … I do not find that it was his usual practice to supply drugs in amounts of more than these street deals to which I have referred … The Prisoner was involved in "small scale, yet systematic drug dealing." 8 His Honour also recorded that methylamphetamine was considered to be not as dangerous as heroin and cocaine and that "although the offence does not depend for its seriousness upon the amount of drugs supplied, it is relevant to note that the amount of drug was almost six times the indictable quantity for that drug, although of course it was well short of the commercial quantity of 250gms." Later, his Honour remarked:- "In considering the appropriate sentence, I have had regard to sentences imposed for supply amphetamine in both the commercial and less than commercial quantities. I must confess that I am surprised at the leniency of the sentences which have been imposed by courts in this State in respect of trafficking in this drug which is considered to be a middle order drug in its harmfulness, and in particular, in relation to commercial quantities. Had it not been for my review of those sentences, I would have imposed a longer sentence in this case than I will do." 9 So far as subjective circumstances were concerned, Judge Howie noted that the Prisoner had pleaded guilty before a Magistrate and would accordingly receive an appreciable discount from the otherwise appropriate sentence. However His Honour also recorded that the plea was "simply bowing to the inevitable." The Applicant had his 23rd birthday on the day of his sentence. He had a criminal record, the most severe of his previous offences having been breaking, entering and stealing for which, on one occasion, he had been sentenced to three months imprisonment. 10 The Applicant had no convictions for drug matters. Nevertheless there was evidence which His Honour apparently accepted that the Applicant had become addicted to cocaine, amphetamines and alcohol consequent upon the death of his son, then aged six weeks, in November 1994. His Honour also accepted that the Applicant had resolved to try to change his lifestyle and had taken steps in that regard. 11 So far as I am aware, this is the first time a case under Section 25A of the Drug Misuse and Trafficking Act has come before this Court and it is perhaps appropriate to reflect on the section's history and terms. It was introduced into the Act by Act 73 of 1998. The second reading speech of the Minister who introduced the relevant Bill into parliament recorded that it was based on a recommendation of the Wood Royal Commission and targeted dealers who had organised their affairs in such a way as to limit the full effect of the Drug Misuse and Trafficking Act by, I summarise, dealing in only small quantities at a time. The Minister observed that the quantity of drugs supplied was, so far as Section 25A is concerned, immaterial. 12 On the other hand, it cannot be that all offenders who on 3 or more occasions within 30 days supply drugs, or a particular type of drug, were intended by Parliament to suffer the same penalty. In accordance with normal sentencing principles the maximum penalty stipulated "is intended for cases falling within the worst category of cases for which the penalty is prescribed Ibbs v R (19877) 163 CLR 447" - Veen v R [No 2] (1988) 164 CLR 465 at 478. 13 By what criteria should one determine where, on the scale, an offence under s25A falls? I said in R v Kalache [2000] NSWCCA 2, "The provisions of the Drugs (Misuse and Trafficking) Act, and other statutes making possession and supply of drugs illegal, have been enacted in the belief that the use of the drugs is harmful and manufacturing and supplying them contributes to this harm. Other things being equal, doubling the quantity is calculated to double the illegal profits for those engaged in such enterprises and, if not to double, at least substantially increase the harm. When an offender knows the quantity in which he is participating, a fortiori when his earnings or profit are proportional to or vary with that quantity, considerable weight must be given to it in assessing his criminality." 14 The factors mentioned in that passage and other sections of the Drug (Misuse and Trafficking) Act mean that quantity is a matter to which regard should be had in sentencing for an offence under s25A. Thus, it would be relevant to consider whether an offender, convicted of an offence under the section had sold 3 lots of 1 kilogram each or 3 lots of 1 gram. 15 On the other hand, it would be wrong to look merely at the quantity supplied on the occasions which led to a conviction and attempt to judge an offender's conduct by that quantity and those provisions of the Act which impose penalties for supply and grade those penalties by reference to quantity. The persons at whom s25A is directed are those who appear to be indulging in a practice or business of supplying prohibited drugs. It must, it seems to me, be relevant to consider the magnitude of such an operation. As great a quantity of a prohibited drug may be supplied by a series of small transactions as by a few large ones and one may anticipate that most offenders charged under s25A will have been involved in the supply of far more than the particular quantities the subject of the occasions which have inspired the charge. 16 But there are likely to be constraints on how far it is permissible to go in any assessment of any overall quantity supplied in an offender's operation. Any conclusion that he or she had supplied a specified quantity, or at least that quantity, on occasions other than those relied on in the particular charge would run against the principle for which R v De Simone (1980-1981) 147 CLR 383 is commonly cited that, in sentencing, it is not appropriate to take into account as factors of aggravation, circumstances which would themselves constitute another offence which has not been charged. 17 However, subject to that qualification, the sentencing judge was entitled to take other matters into account if they bore on the Applicant's criminality and which were proved in accordance with the standards referred to in R v Olbrich (1999) 73 ALJR 1550. 18 In support of a submission that, given the total quantity of drugs supplied, the sentence imposed was excessive the solicitor appearing for the Applicant took the Court to various statistics compiled by he Judicial Commission showing the sentences which had been imposed under s25A and for supplying amphetamines. Those imposed for offences under s25A related to only 4 cases. The lowest full term sentence of imprisonment was 12 months and the greatest 42 months. One must recognise that in the compilation of the statistics sentences are rounded upwards to the next complete period of 6 months but in any event the number of cases, particularly when the details of them were not provided is too small to be of assistance. 19 Included in the statistics supplied were those for the supply of a commercial quantity, i.e. not less than 250 grams, of amphetamines. The statistics show that 72 offenders were sentenced to total terms of imprisonment varying between 18 months and 9 years. 52 were given sentences of less than that imposed on the Applicant, 10 offenders were given more than 5 years and only 1 of these was given more than 7 years. 20 The details of these 72 cases are not before this Court but when one has regard to the fact that the maximum penalty prescribed in the Drug (Misuse and Trafficking) Act for the supply of a commercial quantity of amphetamines is 20 years imprisonment, and the maximum penalty for the supply of an indictable quantity, i.e. between not less than 5 and 250 grams is 15 years imprisonment, one can understand Judge Howie's surprise at the leniency of the sentences which have been imposed for the offence. Indeed, when one recognises that not one offender was given a sentence as great as half the maximum prescribed by Parliament, and only 10 were given sentences more than one quarter of that maximum, (or more than one third of the maximum for the lower offence) it is difficult to avoid the conclusion that there had been systemic inadequacy in the sentencing for this offence. 21 The statistics supplied also included a group of 134 offenders who were between 21 and 30 years and who pleaded guilty in the higher courts, in effect the District Court, to the supply of less than a commercial quantity of amphetamines. The statistics showed the imposition of full terms of between 6 months and 5 years. Only 2 offenders received sentences of over 4 years. As in the case of the statistics previously mentioned, sentences are rounded upwards to the next complete period of 6 months. Although the cases covered will have included some where relatively small quantities are involved, against a maximum penalty of 15 years imprisonment, these statistics also are suggestive of undue leniency. 22 In any event, as I have indicated, the difference between the elements of the offence committed by the Applicant and offences merely of supply is such that limited weight can be given to sentences imposed for the latter offences. Given this, my reservations concerning the statistics, and the fact they provide no information than I have indicated as to the facts of the offences encompassed within them, I do not find the statistics of assistance. 23 As Judge Howie recognised, the instances of supply in this case were in the course of a significant retail business, open 7 days a week. Although the quantities in which the Applicant usually dealt were small, when a larger quantity was sought, the Applicant was both able and willing to supply it. Like his Honour, I am of the view that the Applicant merited a sentence longer, and in my view significantly longer than was imposed. To take again the liberty of quoting something I said in R v Kalache:- "In the terms of the Drug (Misuse and Trafficking) Act, Parliament has indicated with unmistakable clarity the seriousness with which it regards trafficking in drugs. Experience in this Court and as a member of the community makes it equally clear that the penalties imposed by the Courts to this time have not been sufficient to preclude an increase in the trafficking which occurs." 24 As this seemed to be the first time s25A fell for consideration by this Court, it was appropriate that leave to appeal should be granted. However for the reasons indicated, the appeal should be dismissed.