Centofanti, Jamie v Tasmania (State of) [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Tennent J,Porter J,Wood J
• Judgment Date: 10 August 2011
• Date: 10 August 2011
• Docket Number: S726/2010

[2011] TASCCA 10

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Tennent, Porter and Wood JJ

S726/2010

Centofanti, Jamie

and

Tasmania (State of)

Australian Digest Criminal Law [3521]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate — Trafficking in a controlled substance — Importation of cocaine with the intention of selling part — Rehabilitation from addiction to drug after charged — Prior conviction — Whether immediate imprisonment manifestly excessive.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Tennent J

1 The appellant was found guilty of trafficking in a controlled substance following a plea of not guilty to that crime before a jury. The controlled substance was cocaine.

2 The appellant was intercepted at Launceston Airport. He was found to be carrying 17.7 grams of cocaine in 23 small plastic bags. The estimated street value of the cocaine was $6,000. The appellant was interviewed by police and told them he was a long-term user of cocaine and that the cocaine found on him was for his personal use. While the jury may have accepted that the appellant was a long-term user and that some of the cocaine was for personal use, it clearly did not accept that all of it was for personal use. The appellant was a lighting designer and director. When intercepted, he was entering Tasmania for the purpose of working at a music festival. He was to be in the State for only a short period of time.

3 The cocaine found on the appellant at the airport was confiscated by police and of course no part of it was ever actually sold by him.

4 At the time of sentence, Blow J noted that the appellant was 36 years old and had a partner and a young child. He was a lighting designer and director and highly regarded in his industry, both for his competence and as an educator and mentor. His Honour was provided with a number of excellent character references. He also noted that the appellant had worked on apro bono basis for charities. He noted that the appellant had a prior drug-related conviction in 1998, imposed in New South Wales. The appellant was convicted of supplying a prohibited drug and sentenced to 18 months of periodic detention. On the same date, he was convicted of driving under the influence of a drug. The drug the appellant was convicted of supplying was cocaine, although counsel indicated the amount involved was less than 10 grams. No further information was available to the Court as to the precise nature of the charge of which the appellant was convicted.

5 His Honour also noted that, after his interception at Launceston Airport, the appellant stopped the use of cocaine, sought medical help for his addiction, and that since then had worked hard at rehabilitation. A report by a specialist in addiction medicine indicated that the appellant was well on the way to complete rehabilitation. His Honour was clearly mindful of the potential harm which might be caused to the community by the distribution of cocaine. He was also mindful of the potential for loss of income for the appellant and his family should he be imprisoned.

6 Counsel for the appellant did not contend that there was any specific error in the sentencing process. He submitted however that in all the circumstances of the case, the sentence was manifestly excessive and that error could therefore be inferred. He highlighted all the matters which I have already identified. Further, he indicated that the appellant had ongoing lucrative employment and had already spent three nights in custody, losing income as a consequence. Counsel submitted that the sentence imposed of five months imprisonment was substantially in excess of the range of sentences imposed in comparable matters. He submitted that there was nothing to indicate that one controlled substance should be treated as being any more serious than another, and, as a consequence, matters concerning the importation and trafficking in cannabis were comparable matters.

7 Counsel for the appellant referred to a number of sentences imposed in this Court for the offence of trafficking in a controlled substance, usually cannabis, many of which were lower than that imposed on the appellant. However, it should be noted that any attempt at direct comparison of sentences is often a somewhat dangerous exercise because all relevant factors may not be apparent, and there may be very good reasons for differences.

8 Counsel for the respondent appeared to concede that the sentence imposed in this matter might be at the high range for the particular offence in the circumstances of this appellant, but that the Court needed to be persuaded that there was error by the sentencing judge and not simply that individual members might feel they would have exercised their discretion differently.

9 The learned sentencing judge has clearly taken the view that, in effect, the appellant has already had a warning in the form of the 1998 conviction for supplying the same drug and, as a consequence, was not entitled to as much leniency as might otherwise be extended given the mitigating factors in this matter. While it is accepted that an offender should not be punished more harshly because of a prior offence, the Court is entitled to take into account the effective failure of the appellant to learn from his previous conviction and sentence.

10 Counsel for the appellant submitted that the Court should give significant weight to the steps taken by the appellant to rehabilitate himself. In the context of the increasing emphasis being placed upon the use of rehabilitation programmes, particularly in relation to drug-related crime, the fact that the appellant had, of his own volition and at considerable financial cost to himself, undertaken extensive counseling to address his addictive behaviours,...