Attorney-General v Tilley[1999] QCA 424

COURT OF APPEAL

de JERSEY CJ

DAVIES JA

JONES J

CA No 244 of 1999

THE QUEEN

v.

BRISBANE

DATE 07/10/99

JUDGMENT

THE CHIEF JUSTICE:  The Honourable the Attorney-General appeals against a sentence of nine years imprisonment imposed on the respondent for the offence of unlawfully trafficking in heroin and methylamphetamines.  She was also sentenced to a concurrent two years term for breach of suspended sentences in relation to prostitution.  For a related offence of possession of property involved with drug crime, no further punishment was imposed. 

The Attorney contends that the nine year term failed to reflect the gravity of the crime, did not allow sufficiently for general deterrence and unduly yielded to mitigating features personal to the respondent. 

Because of the way the appeal was presented in writing, it is important to explain how Her Honour determined upon the nine years.  In her sentencing remarks she records that both the Prosecutor and defence counsel offered eight to twelve years as the range for the offence of trafficking, with the respondent being at the top end of that range, that is 10 to 12 years.  Her Honour selected 11 years as the appropriate sentence and then, because of the respondent's very early plea of guilty, reduced the term to nine years and adopted that as the sentence with no recommendation as to early parole.

Early pleas of guilty which result in considerable savings of public resources, even in the face, as here, of a Crown case highly likely to succeed are usually reflected by moderation of the head sentence or a recommendation for earlier than usual parole, or a combination of those approaches.  Here the sentencing Judge reduced the head sentence with no additional favouring in relation to parole, and that was a course reasonably open to her.

In the result the respondent is subject to that nine year term without the added burden of her offence having been declared a serious violent offence under part 9A of the Penalties and Sentences Act.  The Judge was not asked to make such a declaration.  It falls to the Prosecutor to ask the Judge to make a declaration if that is the position for which the Crown contends.

Part of the submission for the Attorney now is that the learned Judge misunderstood the position being advanced for the Crown with relation to the appropriate level of sentence.  We have been referred to the transcript.  I do not consider that the Judge proceeded inconsistently with the position as put by the Prosecutor.  If the Prosecutor, in fact, meant to urge a sentence of the order of 11 years after allowing for the plea of guilty, he did not clearly do so.

The issue now is whether, in terms of Melano and other cases, the penalty imposed upon the respondent is manifestly inadequate.  This was obviously a grave example of high level trafficking in especially serious unlawful drugs.  It was a sophisticated operation which involved trafficking in large amounts of the drugs over a substantial period, netting large sums of money. 

The respondent operated with Hapeta who was a major drug trafficker.  She assisted in both the production and the sale of the drugs.  Substantial sums of money passed through her hands.  Her motivation, significantly, was exclusively commercial.  She had a substantial relevant prior serious criminal history including a bad example of corruption and also significantly, these offences occurred during the suspension of other sentences imposed with relation to prostitution offences.

Punishment and deterrence are the substantial issues in this sort of case and circumstances personal to the offender will ordinarily not weigh heavily in an accused's favour.  The plea of guilty and its consequent saving of public resources should however usually lead to a discernible amelioration in the penalty.  That has occurred here and one should not ignore the circumstance that a nine year term of imprisonment is a substantial term.  The ultimate issue is, however, whether that penalty sufficiently meets the requirement for general deterrence.

Under a nine year term the respondent will be eligible for consideration for parole after she has served four and a half years.  One must ask whether in light of the gravity of the offence of trafficking and her prior criminal history, that reflects sufficient punishment and meets adequately the requirement for general deterrence; in particular and as well, of course, deterrence in relation to herself.

I said earlier that where a declaration under section 161B is sought, it falls to the Crown prosecutor to ask for it.  There may have been an assumption here that it would be unnecessary to ask for it because a sentence of ten years or more was expected, but as I have observed, if that was the expectation, then the request for such a sentence was not sufficiently clearly urged.

The question now is whether there should be some strengthening of the nine year term to reflect a legitimate community expectation that the Court will impose appropriately deterrent sentences for crime of this gravity which also involve adequate punishment.

The Court must be careful about interfering on Attorney's appeals where the offender has proceeded from the sentencing Court with a reasonable expectation that he or she has been finally dealt with.  I have asked myself whether, however, there is not in this case a marked leniency in the overall result which nevertheless warrants the Court, proceeding with circumspection, at this stage to intervene.  I have reached the view that the Court is in that position.

We are asked by counsel for the Attorney to exercise a discretion to add a declaration that the conviction for the crime of trafficking is a conviction of a serious violent offence and to make that declaration as part of the sentence. 

I consider that it is appropriate now that such a declaration be added which will have the consequence that eligibility for parole will not arise until after the respondent has served 7.2 years of the nine year term.  That contrasts with the current position which is that eligibility for parole would arise after she has served 4.5 years of the nine year term.

I would allow the appeal to the extent of declaring the respondent's conviction on the count of trafficking to be a conviction of a serious violent offence and to order that that declaration be made part of the sentence of nine years imposed upon the respondent in respect of that offence.

I would not see the Court's approach in this particular case as involving any departure from the normal level of circumspection with which the Court approaches Attorney's appeals, or to diminish in any way the stipulation frequently ventilated here that it falls to the prosecutor to urge the particular level of sentencing for which the Crown contends, and in appropriate circumstances to ask directly for the making of declarations such as the one I would add.

DAVIES JA:  I agree.

JONES J:  I agree.

THE CHIEF JUSTICE:  The order is as I have indicated.