Re William Eric Mummery v R [1985] FCA 36 (20 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: WILLIAM ERIC MUMMERY
And: THE QUEEN
No. NTG 41 of 1984
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
McGregor J.
Beaumont J.

CATCHWORDS

Criminal Law - sentencing - appeal against severity of sentence - appellant convicted of supplying drugs for resale to co-offender - appellant's sentence more severe than that of the co-offender - whether appellant's sentence of imprisonment and non-parole period manifestly excessive - whether disparity between sentences imposed on appellant and co-offender such as to warrant intervention - whether certain remarks of trial judge concerning appellant such as to warrant intervention.

Lowe v. R. (1984) 54 ALR 183 - con.

HEARING

SYDNEY
20:2:1985

ORDER

The appeal is dismissed.

DECISION

This is an appeal by WILLIAM ERIC MUMMERY (appellant) against the severity of a sentence imposed on him on 27 November 1984 by the Northern Territory Supreme Court (Muirhead, J.) of imprisonment with hard labour of 18 calendar months with a non-parole period of eight months.

2. The appellant was charged with supplying cannabis contrary to s.66(2)(b) of the Poisons and Dangerous Drugs Act 1983, the particulars being that on 26 November 1983 in Darwin the appellant supplied cannabis to Mark James Faint (Faint). The maximum sentence provided was 7 years for a first offence and, in certain circumstances, 15 years for a second offence.

3. The facts are that on or about 26 November 1983, following an approach by Faint who was known to him, the appellant supplied 40 deal sized bags of cannabis. No money then changed hands, the arrangement being that Faint would sell the drug and return the proceeds to the appellant. The reward to Faint was that he would "tax" the bags, meaning take from each a small portion of the drug for himself with the view to obtaining the equivalent of eight deals for himself. Thereafter, Faint and one Patrick Wilson went to Katherine. They did sell some of the cannabis there. Faint was returning to Darwin when he was arrested. The residual cannabis, slightly over 600 grams, was found in the vehicle in which he was travelling. His Honour said that although the appellant did not, in fact, profit from the crime, if all had gone as arranged he stood to receive $4,OOO.OO. His Honour referred to the transaction as "a supply of a significant quantity on a commercial basis".

4. The learned trial Judge, as part of the evidence available to him, considered the appellant's previous record of convictions including convictions imposed on 25 June 1976 for being unlawfully in possession of cannabis for which a sentence of one month's hard labour was imposed but which had been suspended upon the appellant entering into a bond; and that on 23 November 1981 the appellant had been convicted on counts of possessing cannabis and possessing the drug for the purposes of supply. On that occasion the appellant had been, as his Honour put it, "treated leniently" in that he had been fined and, again, released on a bond to be of good behaviour for 12 months. Moreover, his Honour was informed by counsel of the previous sentences imposed by the Court on others who were involved in the matter, including the sentence passed on Faint. His Honour said that he took into account all that had been put to him by the appellant's counsel but could not overlook the appellant's previous convictions for drug offences, the amount of cannabis supplied and the failure of the appellant after the earlier leniency extended to him.

5. In order to understand some of the arguments addressed to this Court, it is relevant to note that, appellant's counsel, before the learned Judge at first instance, stated that his instructions from the appellant were that he had been approached by Faint who, in turn, had been earlier approached by a number of young people in Katherine in the hope that they would obtain cannabis. Faint received a custodial sentence of six months imprisonment with hard labour on each of two counts of supply to date from 10 April 1984. These facts were not disputed by the prosecution. His Honour had before him the antecedents of Faint against whom no earlier conviction for drug offences had been recorded. He did not, so far as the evidence goes, stand to gain financially. Counsel for the appellant told the trial Judge that his client refused to identify the person who supplied him with the drug and that the appellant was aware that the drug was being supplied for the purpose of sale in Katherine.

6. There was evidence that the appellant was a single man born in Darwin on 20 November 1959, that he had grown up in Darwin as a member of a large family with whom he maintained a close relationship; that he lived with a girl and they had three children. His Honour noted that the appellant was a proficient footballer; that his employment pattern over the years had been erratic and he had lived off unemployment benefits; that as a juvenile he had been in trouble with the law.

7. The only grounds of appeal which were pursued before us were first, that the sentence imposed and the minimum parole period were manifestly excessive, and further that the sentence was manifestly disparate with the sentence imposed on Faint.

8. An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see R v. Tait and Bartley 24 ALR 473, at p 476).

9. In our view, putting aside for the moment the question of disparity between sentences, the sentence imposed on the appellant was not manifestly excessive. In our opinion, the sentence was proportionate to the appellant's guilt: it was a serious crime committed with a view to commercial profit. The appellant's record was bad, especially in the area of drug offences. The first ground of appeal must be rejected as no basis for interference by an appellate court has been made out.

10. In Lowe v. R.(1984) [1984] HCA 46; 54 ALR 193 the High Court discussed the question whether the existence of a disparity between sentences imposed on co-offenders calls for intervention by an appellate Court. In that case, the co-offenders were sentenced separately by different judges at different times. The view of the majority, as summarised in the headnote, was that one co-offender having received a sentence more severe than that imposed on a co-offender whose circumstances are comparable would not of itself justify reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive. Gibbs C.J. who formed part of the majority said at p.194 -

"The approach to be adopted by a Court of Criminal

Appeal when it appears that the sentences imposed
on co-offenders exhibit disparity is not always
stated in the authorities with complete uniformity.
It is unnecessary for me to discuss in detail the
cases which are cited in other judgments. The true
position, in my opinion, may be briefly stated as
follows. It is obviously desirable that persons
who have been parties to the commission of the same
offence should, if other things are equal, receive
the same sentence, but other things are not always
equal, and such matters as the age, background,
previous criminal history and general character of
the offender, and the part which he or she played
in the commission of the offence, have to be taken
into account. The fact that one co-offender has
received a sentence which is more severe than that
imposed on a co-offender whose circumstances are
comparable would provide no reason in logic for
reducing the former sentence, if the only question
were whether that sentence, viewed in isolation,
was manifestly excessive."

His Honour went on to say that the reason why a court of appeal interferes where there is a marked disparity between sentences imposed on co-offenders is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, and thus to give the appearance that justice had not been done (see p.195). Mason J., who dissented, said at p.198 -

"What is the correct principle to be applied in
cases of discrepancy? It is that a Court of Appeal
is entitled to intervene when there is a manifest
discrepancy such as to engender a justifiable sense
of grievance, by reducing a sentence, which is not
excessive or inappropriate considered apart from
the discrepancy, to the point where it might be
regarded as inadequate."

Dawson J. said at p.205 -

"There is no rule of law which requires co-offenders
to be given the same sentence for the same offence
even if no distinction can be drawn between them.
Obviously where the circumstances of each offender
or of his involvement in the offence are different
then different sentences may be called for. But
justice should be even-handed and it has come to be
recognized both here and in England that any
difference between the sentences imposed upon
co-offenders for the same offence ought not be such
as to give rise to a justifiable sense of grievance
on the part of the offender with the heavier
sentence or to give the appearance that justice has
not been done."

And at p.206 his Honour stated -

"There is always the dilemma that in order to
eliminate the disparity the Court may have to
reduce a sentence which it regards as proper in
itself because of an inadequate sentence imposed
upon a co-offender. To do so, it has been
observed, is to compound the error. The view has
been expressed in England that a court should not
interfere unless the disparity is gross or glaring
and the circumstances are 'most exceptional'
(authority cited). The decisions in this country
do not appear to be quite as restrictive as this,
but on any view the interference of a court of
appeal is not warranted unless the disparity is
such that the sentence under appeal cannot be
allowed to stand without it appearing that justice
has not been done. The difference between the
sentences must be manifestly excessive and call for
the intervention of an appellate court in the
interests of justice."

11. In the present case, the circumstances of Faint and of the appellant were by no means the same. In the first place, the appellant supplied a significant amount of cannabis and made possible the crimes of Faint and others. Further, the appellant, unlike Faint, stood to receive a substantial monetary receipt if the transactions were completed as planned. Again, the appellant had had earlier experiences as a drug offender yet had failed to respond adequately to leniency extended to him. Although Faint had a bad record, it did not include drug offences. It follows, in our opinion, that "things were not equal" as between the appellant and Faint and the second ground of appeal must also be rejected.

12. Although not strictly one of the appellant's grounds of appeal, in the course of his submissions before us, counsel for the appellant ventured some criticism of the approach adopted by the learned Judge to one aspect of the hearing on penalty. The point arises in this way. In addressing the learned judge, counsel then appearing for the appellant said that, on his instructions, the appellant "was merely a conduit or a channel of supply" for the cannabis that was in fact supplied. Counsel also submitted to the learned Judge that, on his instructions, the appellant was not to receive any commercial return for this. Counsel then referred the learned judge to the refusal of the appellant to identify his source of supply of the cannabis. The following exchange then took place between counsel and his Honour -

"MR McCORMACK: Mummery instructs me that he was
aware that the material was being supplied for the
purpose of sale in Katherine, but nothing more. He
instructs me that for his involvement in the supply
of this material he was to be allowed to take a bag
for his own use and nothing more.

HIS HONOUR: That's not what he told the police, is
it?

MR McCORMACK: Yes, Your Honour, I accept that but
rather - the record of interview does say on page 3
that the bags were to be sold for $4OOO and that
money returned to him. Putting it you on this
basis, Your Honour, that he himself was not to be
the recipient or the - receive the benefit of the
$4OOO, that in turn was to go to the third person
and he himself was to tax the bags or tax one of
the bags for his own personal use.

HIS HONOUR: It's quite a different explanation he
gave to the police, Mr McCormack. "What were you
going to do with the money?----Spend it."

MR McCORMACK: Your Honour, my instructions are
that at the time that he gave this record of
interview, he was aware that Faint had told the
police of his involvement and that he himself went
along with the information that, as he knew it,
that had been supplied by the police at the time
that his record of interview had been given.
Should Your Honour be in any doubt, I'm prepared to
call Mr Mummery on that point. I believe that Mr
Faint is also available to give evidence, he's in
custody in the cells.

HIS HONOUR: That's up to you, Mr McCormack, just
bear in mind if you call your client to give
evidence on oath, he's compellable to answer
questions.

MR McCORMACK: Yes.

HIS HONOUR: Including questions as to where it
came from. And the Crown's perfectly entitled to
cross-examine him.

MR McCORMACK: Yes.

HIS HONOUR: But I must tell you that the view I
will have to take on looking at the factual
situation is on the basis that he packed it up and
he supplied it to Faint.

MR McCORMACK: There's no issue taken on that, Your
Honour.

HIS HONOUR: No, that's right but he's not charged
with selling but I think I'll also have to take the
view that he would have profited.

MR McCORMACK: Yes, I won't take the matter any
further, Your Honour.

HIS HONOUR: In the interests of your client, I
doubt whether you should but that's entirely for
you, if you want to call him to give evidence.

MR McCORMACK: I won't take that matter any
further, Your Honour, except one aspect there is
that Mummery received no commercial benefit from it
but obviously one of the main reasons for that is,
of course, the fact that the police had intervened
in the transaction.

HIS HONOUR: I appreciate that he got nothing out
of it except a lot of worry."

13. Before us, counsel for the appellant submitted that the learned Judge in effect lulled counsel then appearing for the appellant into a false position by leading counsel to believe that the appellant should not be called. The suggestion is that the learned Judge should have either said nothing on the question whether the appellant should enter the witness box or candidly foreshadowed to the appellant the view which he had then formed.

14. In our opinion, the criticism of the learned Judge is without foundation and we reject it. In his record of interview, the appellant admitted that Faint was to pay him $4,OOO.OO for the supply of the 40 bags of cannabis as the proceeds of its sale by Faint to others. The submission made to the learned Judge by counsel then appearing for the appellant that his client was a "mere conduit" rested in assertion from the bar table only. In that context, the learned Judge very fairly indicated to counsel that, although his client was not charged with selling, he intended to approach the question of penalty upon the footing that, but for the intervention of the police, the appellant would have made a profit on the transaction. Counsel accepted that position.

15. In his remarks on sentence, the learned Judge observed that the appellant had been frank with the police, save that he declined to reveal the source from which he obtained the drug. Counsel for the appellant sought to link these observations, so far as they may be seen as adverse to the appellant, to the exchange between counsel and his Honour set out above. In our view, there is no warrant for making that connection. When the learned Judge said that he doubted whether it was in the appellant's interests to give evidence he made it clear that, if called, the appellant may have worsened his position generally and, in particular, as to his role in the transaction vis-a-vis Faint. The learned Judge was not, as we read the exchange, expressing any view, explicity or implicitly, on the different question of the appellant's reluctance to nominate his sources of supply. It follows, in our opinion, that there is no juistification whatever for the criticism levelled at the learned Judge.

16. The appeal is dismissed.