Erica Frances Carter v R No. SCCRM 93/481 Judgment No. 4440 Number of Pages 4 Criminal Law and Procedure Sentence

[1994] SASC 4440

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL LEGOE ACJ(1), BOLLEN(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - sentence - Possessing methylamphetamine for sale - 4 grams powder containing 0.3 grams pure methylamphetamine - woman aged 37 with two prior minor cannabis offences - on bail for offence of producing cannabis when this offence committed - offence constituting breach of bond for suspended sentence of three months for that offence - suspension revoked - sentence for subject offence 15 months cumulative on that sentence - non-parole period 12 months - sentence not excessive.

HRNG ADELAIDE, 25 February 1994 #DATE 25:2:1994

Counsel for appellant:     Mr P J Rice

Solicitors for appellant:    Ms C M O'Connor

Counsel for respondent:     Mr S J Smart

Solicitors for respondent: Director of Public Prosecutions
   (SA)

ORDER
Appeal dismissed.

JUDGE1 LEGOE ACJ This is an appeal against a sentence imposed in the District Court for the crime of possessing methylamphetamine for sale.

2. The appellant had previously been convicted of the offence of producing cannabis, and on 30 April 1993 had received a sentence of imprisonment for three months, which was suspended upon her entering into a bond to be of good behaviour for two years and to perform 200 hours of community service within 12 months.

3. She failed to perform the community service. She, therefore, came before the District Court for breach of that bond at the same time as she came up for sentence for the crime of possessing methylamphetamine for sale.

4. The learned sentencing judge revoked the suspension of the sentence for producing cannabis and ordered that she serve the three months' term of imprisonment. For the crime of possession of amphetamine for sale, he imposed a sentence of imprisonment for 15 months, to commence at the expiration of the three months' sentence. He fixed a non-parole period of 12 months, to commence on the day on which the sentence was imposed, namely, 17 December 1993. The total effect, therefore, was an aggregate head sentence of 18 months and a non-parole period of 12 months.

5. Mr Rice, who appeared for the appellant before us, argued that the learned sentencing judge was wrong in not holding that there were proper grounds to excuse the non-compliance with the bond pursuant to s.58(3) of the Criminal Law Sentencing Act. After the bond was entered into, the appellant made contact with the community services officer on 3 May 1993. She was given an appointment for an interview on that day but she failed to attend. She contacted the department, on 7 May, and a further appointment was made for that day, but again, she failed to attend.

6. On 10 May, she contacted the department again and made an excuse for not attending on 7 May and asked whether she could attend on that day. She was told she could. Once again, she did not attend. The learned judge was informed that she did not contact the department thereafter.

7. Her counsel claimed in submissions that, subsequently, when she had gone to live at Elizabeth, she did contact the department and was told it was too late.

8. Be that as it may, it is quite clear that the appellant made no real attempt to comply with the order for community service which was a condition of the suspension of her sentence.

9. Mr Rice has submitted that she is to be excused by reason of the difficulties which she was having with her husband at that time and the fear that she held of him which forced her to leave Whyalla and to lie low. No doubt she was having difficulties with her husband and it may be that she was in fear of him at some point.

10. It is clear that it was a turbulent relationship and there seemed to have been intermittent periods of cohabitation and separation. Nevertheless, I cannot see that anything that happened between the appellant and her husband could possibly be a reason for her not complying with the order of the court to perform the community service. That was the punishment which the court had imposed as the alternative to her going to prison. She didn't undergo that punishment by performing the community service. She was, therefore, in breach of her bond and I cannot see any proper grounds for excusing that breach. In my opinion, the judge was right to revoke the suspension and order that the sentence be served.

11. Mr Rice has submitted that the judge was in error in not suspending the sentence for possession of methylamphetamine for sale. He relies upon what he has described as the element of entrapment in the circumstances of the commission of the offence.

12. It appears that the appellant and her husband had separated shortly before the commission of the offence. She had obtained a restraining order against him about a week previously. In retaliation, he appears to have gone to the police and reported that she had methylamphetamine and presumably she was willing to sell it. An undercover police officer was introduced to the appellant by her husband and, in that way, the arrangements for sale were made.

13. The transaction with the undercover police officer was for the sale of five plastic bags of methylamphetamine which contained, I infer, about two grams of powder containing 0.15 grams of pure methylamphetamine, or thereabouts.

14. Following that transaction, the police searched the appellant's shop at the Westlands Shopping Centre in Whyalla and also her home and six other plastic bags containing a somewhat similar quantity of material to that sold to the police were found. It is that material which is the subject of the charge.

15. The circumstances in which the appellant came to have this methylamphetamine appear to be these. Over a month before the sale to the undercover police officer, the appellant had entered into an arrangement with her husband whereby she would provide $1,000 which would enable the purchase of methylamphetamine. Her husband introduced her to a supplier and the purchase was made. The intention was that her husband would go to New South Wales and sell the drug there. The methylamphetamine was duly purchased, but, for some reason, the arrangements for its sale came to nothing. The appellant, it appears, used some of the methylamphetamine herself and provided some to a friend. She claims that there was no longer any intention of sale at the time that she was approached by the undercover police officer.

16. Mr Rice's argument is that, immediately before the approach by her husband to sell to the undercover police officer, the possession of the methylamphetamine was for a non commercial purpose and that it was converted into a purpose of sale by the approach from the undercover police officer and her husband's action.

17. I have some difficulty about that submission. I can understand that the sale to the undercover police officer would not, or might not, have taken place without the intervention of her husband who used a certain degree of beguilement to bring about the transaction, but that transaction revealed that the appellant possessed other methylamphetamine, and it was methylamphetamine which had originally been procured for the purpose of sale.

18. It is difficult for me to relate such beguilement or entrapment as might have existed in relation to the transaction with the police officer to the possession of the other methylamphetamine which was revealed when the police searched the shop premises and the domestic premises.

19. The appellant plainly had business capacity which she was prepared to use for the purpose of illicit dealing in drugs. She conducted a manchester shop. It was she who provided the $1,000 for the purchase of the methylamphetamine. When she and her husband separated, this drug remained with her and she was prepared to sell it when the opportunity arose.

20. The domestic dispute and her husband's malevolence were the means by which the offence of possession for sale was detected, but I cannot accept that they brought it about.

21. The appellant is aged 37 years. She does not have a clean record. There are previous drug related offences. In 1987, she was convicted and fined for possessing cannabis and possessing a smoking implement, and in 1992 for possessing equipment to administer a drug. At the time of the commission of this offence, she was on bail for the offence of producing cannabis which led to the suspended sentence to which I have referred.

22. Mr Rice, as I have said, has argued that the learned judge was wrong in not suspending the sentence. He does not contend that the length of the sentence was excessive. I think, however, it would have been extremely difficult for the judge to have suspended this sentence. The appellant had prior convictions. She was on bail for another offence at the time when this offence was committed, and at the time when the judge came to pass sentence, she had already committed the breach of the condition of community service upon which the previous sentence was suspended.

23. In those circumstances, I think that suspension was an option which was barely open to the learned sentencing judge. I certainly could not say that his refusal to suspend was an error. For those reasons, I consider that the appeal should be dismissed. I add to the reasons which I have given that we were told during the course of argument something that does not appear from the appeal book, and that is that this appellant has been committed for sentence to the District Court on the charge of selling the five bags of methylamphetamine to the undercover police officer. For some reason, that seems to have been overlooked in the proceedings which took place in the District Court.

24. This court has approached this appeal upon the footing that that was an oversight and that, in due course, the prosecution will abandon those charges.

25. This court would not regard it as appropriate for this appellant to suffer a further penalty as a result of that transaction and we express confidence that the prosecution will take the appropriate action in relation to that.

JUDGE2 BOLLEN J I agree. I emphasise that I too cannot think that there was any entrapment which caused the commission of this offence.

JUDGE3 MULLIGHAN J I agree that the appeal should be dismissed.