Maiolo v The Queen

[2021] SASCA 135

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MAIOLO v THE QUEEN

[2021] SASCA 135

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice Doyle)

11 November 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE

Application for permission to appeal against sentence.

The applicant was convicted of one count of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) and sentenced to four years imprisonment with a non-parole period of 18 months imprisonment.

The sentencing Judge imposed a single sentence for the trafficking offence together with several other related prior and subsequent offences. For the offence of trafficking, the sentencing Judge indicated a notional starting point of four years imprisonment, reduced by 15 per cent on account of the applicant’s plea of guilty to three years, four months, and 25 days. That sentence was aggregated with the sentences for the other offences to arrive at a sentence of four years, five months, and seven days imprisonment. This was ultimately reduced to one sentence of four years imprisonment on account of time served in custody and home detention, as well as the principle of totality.

The applicant seeks permission to appeal against his sentence on the ground that it is manifestly excessive.

Held (the Court), refusing the application for permission to appeal:

1.      The sentencing Judge did not err in adopting a notional starting point of four years imprisonment for the trafficking offence.

2.    While the circumstances of a case may make it appropriate to adopt a starting point below four years, the circumstances of the applicant and his trafficking offence did not require a notional starting point below that level.

Controlled Substances Act 1984 (SA) s 32(3); Sentencing Act 2017 (SA) s 26, referred to.
R v Young (2016) 126 SASR 41; Davidson v The Queen [2021] SASCA 130; R v Keut [2021] SASCA 39; Pateras v The Queen [2021] SASCA 107, considered.

MAIOLO v THE QUEEN
[2021] SASCA 135

Court of Appeal – Criminal:   Livesey P and Doyle JA

1. THE COURT (ex tempore):   The applicant seeks permission to appeal against sentence.  The sole proposed ground of appeal involves a complaint of manifest excess.  The focus of this ground is a complaint that the sentencing Judge erred in adopting a notional starting point of four years imprisonment for the applicant’s offence of trafficking in a controlled drug.  Whilst at times the applicant, through his counsel, suggested that there was a specific error of principle associated with recourse to the decision in R v Young,[1] ultimately the application for permission to appeal was pressed on the basis that the sentencing Judge’s application of that standard resulted in a manifestly excessive penalty.

   [1]     R v Young (2016) 126 SASR 41.

   Background

2. Following his plea of guilty, the applicant was convicted of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The maximum penalty for this offence is a fine of $50,000 or 10 years imprisonment or both.

3. The circumstances of the offence were that on 16 April 2020, the police searched the applicant and his vehicle, seizing two telephones, $245 in cash, a set of digital scales, a glass pipe, a bag containing more than 100 empty resealable plastic bags, and three plastic resealable bags containing 3.52 grams, 0.05 grams and 0.34 grams of methylamphetamine respectively.  The sentencing Judge found that this quantity of methylamphetamine was worth between $800 and $1,900.  Analysis of the mobile telephones seized from the applicant indicated text messages consistent with the applicant selling drugs in the days leading up to his being searched and arrested.  When arrested, the applicant admitted possessing the methlyamphetamine and told the police that friends paid him to supply them with methylamphetamine.

4. Following this matter being committed to the District Court for sentence, the sentencing Judge was asked to, and did, call up several Magistrates Court files relating to other charges to which the applicant had pleaded guilty.  Those charges consisted of three counts of possessing a controlled drug, two counts of possessing equipment to use with a controlled drug, four counts of possessing a prescription drug without a prescription and one count of failing to comply with a bail agreement.  Given the nature of the argument on this appeal, it is not necessary to set out the detail of this additional offending and the penalties imposed.  It is sufficient to note that they related to three occasions, one of which pre-dated the trafficking offence, and two of which post-dated that offence.

5. At the date of sentencing, the applicant was 57 years of age, single and with three teenage or adult sons.  Prior to his bail for the subject offending being revoked on 2 March 2021, the applicant had been living with his parents.

6. The applicant has a TAFE qualification in business management and concreting.  He spent 12 years as the managing director of a successful company in Queensland prior to competition forcing the closure of that business in 2014.  He then returned to Adelaide, and has worked on and off in concreting.

7. The applicant has had difficulties with methylaphetamine use and addiction throughout his life.  He commenced using that drug when he was 16 or 17.  He ceased using it for a number of years while the managing director of his business in Queensland.  However, when he began to experience stress as a result of that business encountering difficulties, he resumed using methylamphetamine.  Once the business collapsed, the applicant became depressed and his drug use escalated.  His depression and drug addiction were compounded when, about four years ago, he was involved in a serious robbery in which he was assaulted with a baseball bat and suffered significant physical and psychological difficulties.

8. Since his arrest on the trafficking charge the applicant has made some attempts to address his addiction, including through attending sessions with a relapse prevention support group.  However, he has since returned a positive drug test, indicating that his rehabilitation has not been entirely successful.

9. The sentencing Judge noted that the applicant had a lengthy history of offending, consistent with his long-term struggle with his drug addiction.  While he had not previously been convicted of any trafficking offending, he had five prior convictions for possessing a prescription drug, 19 for possessing a controlled drug, 18 for possessing equipment and five for driving with drugs in his system.

   The sentence imposed

10. After noting the insidious and harmful effects of methylamphetamine, both for users and the community, and the consequential need to give considerable weight to personal and general deterrence in sentencing trafficking offenders, the sentencing Judge said:

    Counsel for the Director of Public Prosecutions referred to the decision of R v Young in which the Court of Criminal Appeal in this state indicated a range of four to seven years imprisonment for offences of trafficking in a controlled drug where the offender was motivated by profit.  The court did say that there is a greater scope for a lesser starting point where there has been addiction and a commitment to rehabilitation.  During submissions it was said that you were selling drugs to your friends to fund your own addiction and that you were not making a profit from that activity.  I accept that you are a street level dealer primarily trading to fund your own addiction, however, there is an element of profit in the sense that you were using sales to cover the costs of your own drug use.  Further, the amount of methylaphetamine involved was not small and your offending was not isolated in the sense that the text messages show that you had been trafficking in the days leading up to your arrest.

    It is clear that you were addicted to drugs.  You attempted rehabilitation in September 2020, however, partly due to factors outside your control this was not successful. …Your commitment to the process of rehabilitation has yet to be established. Balancing these factors I consider that the sentencing standard ought to apply to the trafficking offence but that your offending was at the lowest end of that scale.

    The other offences are a product of your drug addiction but as I have said you have numerous past convictions for similar offending.  In those circumstances it is challenging to find scope for much leniency given the importance of personal deterrence.

11. The sentencing Judge decided to impose a single sentence under s 26 of the Sentencing Act 2017 (SA) for all 11 offences. However, her Honour explained that, because of the differing maximum guilty plea reductions available in respect of the various offences, it was appropriate to set out the notional sentence for each group of offences.

12. For the trafficking offence, the sentencing Judge indicated a notional starting point of four years imprisonment.  After allowing the maximum available reduction of 15 per cent for the applicant’s guilty plea, the notional sentence for that offence became three years four months and 25 days imprisonment.

13. Having set out the notional sentences for the other groups of offences, the sentencing Judge arrived at an aggregate notional sentence, after reductions for guilty pleas, of four years, five months and seven days imprisonment.  The sentencing Judge then said that “[r]eflecting considerations of totality, the 40 days in custody from August to October 2020 and making allowance for the four months and 28 days on home detention, I impose one sentence for all 11 offences of four years imprisonment.” 

14. Her Honour declined to suspend this sentence, or order that it be served on home detention.  Noting her view that the applicant would benefit from a greater period in the community on supervised parole, the sentencing Judge imposed what she described as a lower than usual non-parole period of 18 months.  The head sentence and non-parole period were backdated to 2 March 2021, being the most recent occasion upon which the applicant was taken into custody.

    Consideration

15. As mentioned at the outset, the sole proposed ground of appeal involves a complaint of manifest excess.  The complaint is one focused upon the sentencing Judge’s use of a notional starting point of four years imprisonment for the trafficking offence. While the applicant's counsel made some oral submissions in relation to the penalties imposed for the other offences of which the applicant was convicted, those submissions did not ultimately advance the applicant's contention of manifest excess.

16. Although announced as a complaint of manifest excess, as developed in submissions, the applicant’s complaint encompassed what was also described as a process error in applying the standard in R v Young[2] to the circumstances of the applicant’s offending.  The applicant contended that, as described by the Chief Justice in R v Young, the standard only applies to offenders motivated to a greater or lesser extent by profit,[3] and does not apply in the present case given that the applicant was selling drugs to fund his own addiction. The applicant acknowledged the sentencing Judge’s observation (in the passage from her sentencing remarks extracted above) that there “is an element of profit in the sense that you were using sales to others to cover the costs of your own drug use”. But the applicant contended that all trafficking would involve making a profit in this limited sense, and that this was not the notion of profit that the Chief Justice had in mind in R v Young.

    [2]     R v Young (2016) 126 SASR 41.

    [3]     R v Young (2016) 126 SASR 41 at [66] (Kourakis CJ, Vanstone and Stanley JJ agreeing).

17. The continuing applicability of the standard in R v Young, and the flexibility in its application, have been the subject of a number of recent decisions of this Court, including most recently in Davidson v The Queen.[4] 

    [4]     Davidson v The Queen [2021] SASCA 130 at [26]ff (Doyle JA, Bleby JA and Stanley AJA).

18. As to the relevance of a defendant’s profit motivation, the Court held in R v Keut:[5]

    [T]he fact that the proceeds of lower-level street dealings are predominantly used to satisfy a defendant’s addiction does not mean that the offender is not motivated by profit.  What profit there is may be deployed in a vicious cycle of addiction, but it is still profit.  It may fairly be said that such a dealer is motivated, to use the Chief Justice’s language, ‘to a lesser extent’ by profit.  That will ordinarily have an ameliorating impact on the sentence to be imposed within the range.

    [5]     R v Keut [2021] SASCA 39 at [22] (Kelly P, Doyle and Bleby JJA); see also Pateras v The Queen [2021] SASCA 107 at [22]-[23] (Lovell, Livesey and Bleby JJA).

19. After referring to the Chief Justice’s explanation in R v Young of the circumstances in which a defendant might properly receive a sentence less than four years, the Court in R v Keut continued:[6]

    Depending on all of the circumstances, then, an addicted street dealer may well find themselves being sentenced within the four to seven-year range, or there may be reason to sentence them to imprisonment for less than four years.

    [6]     R v Keut [2021] SASCA 39 at [24] (Kelly P, Doyle and Bleby JJA).

20. Understood in this way, the Chief Justice’s reference in R v Young to an offender motivated to a greater or lesser extent by profit is not some pre-condition to the applicability of the standard, but rather an aspect of the flexible application of that standard to the circumstances of a particular case.  Put another way, where, as here, it is difficult to say a street level trader is – because of his or her addiction – motivated by profit, then that does not render the standard inapplicable.  Rather, it merely operates as a consideration that may, depending upon all of the other relevant circumstances, may make it appropriate to adopt a starting point at, or potentially below, four years imprisonment.

21. In our opinion, the sentencing Judge did not err in applying the standard in R v Young.  While the applicant’s addiction, and the limited extent to which he was motivated by profit, was a significant feature of his offending, it did not render that standard inapplicable.  As emphasised in both R v Keut and Davidson v The Queen, there is significant flexibility in the application of that standard.  In some cases, the limited nature of an addicted defendant’s profit motivation may justify, or even require, a sentence with a starting point of less than four years. 

22. But the circumstances of the applicant and his offending could not be said to require a starting point for the applicant’s trafficking offending of less than four years.  While the applicant’s addiction and limited profit making motivation, and steps towards rehabilitation, were factors that weighed in his favour, there were other factors that weighed against him.  The quantity involved was not small, the offending was not isolated, the applicant had a history of other drug offending (albeit not drug trafficking), and he had not yet demonstrated a commitment to his rehabilitation.

23. In short, while another judge might reasonably have commenced with a notional head sentence for the trafficking offence of slightly less than four years imprisonment, we do not consider that the sentencing Judge was reasonably required to do so. 

24. We are not persuaded that the applicant’s proposed ground of appeal is reasonably arguable.  We refuse the application for permission to appeal.