R v A

R v A
[2003] SASC 121
Court of Criminal Appeal: Perry, Nyland and Bleby JJ

PERRY J. This is an appeal against the sentence imposed upon the appellant in the District Court following her committal for sentence to that court on an admitted charge that on 30 April 2002 at a place named in the information she knowingly had amphetamine in her possession for the purpose of sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984.[1]
[1] The place, the name of the appellant and any details which might serve to identify her have been omitted, in view of her assistance to the police referred to in the judgment.
On 17 February 2003, she was sentenced to 13 months imprisonment with a non-parole period of 7 months. The sentencing judge declined to accede to a submission by counsel for the appellant that the sentence of imprisonment be suspended.
In her notice of appeal, the appellant advances one ground only, namely that the sentencing judge erred in refusing to suspend the sentence.
The appellant is a young woman now aged 24 years. On 30 April 2002, plain clothes detectives came to her house. The appellant answered the door, when she was seen to put something down the back of her clothing. This turned out to be two plastic press-seal bags each containing 0.01 grams of methylamphetamine.
The appellant accompanied the police officers to the local police station where she was interviewed. She was completely frank when questioned. She admitted that she had been engaged in a business of selling amphetamine, to feed her own habit. She had been doing so since the beginning of the year. She habitually bought 3 grams of amphetamine for $500, part of which she would use and part of which she would sell. Her business operation was described by the sentencing judge as a “small retail business”.
The sentencing judge had the benefit of a report from a psychologist, Dr White. This confirmed that the appellant had experienced a stressful upbringing and had been abused by her step-mother and by others.
Dr White expressed the opinion that the appellant’s “... dysfunctional behaviour was directly related to her inability to deal with her immediate crises, and her overwhelming desire to use drugs as a means of compensating for her dysfunctional emotional state”. He concluded that the appellant had “significant mental health problems” related to her “past abuse and rejection”. He recommended treatment by a psychiatrist, and thought that she might also benefit from a “stress management” program and an “anger management” program, and further, that she be referred to a drug and alcohol counsellor.
The sentencing judge was handed a letter during the course of receiving submissions. This detailed the assistance the appellant had given to the police with respect to what the sentencing judge described as “certain clandestine amphetamine laboratories”. She noted that the assistance had led to arrests.
The sentencing judge indicated that had it not been for the appellant’s co-operation and plea of guilty at the first opportunity, the head sentence would have been of the order of 2½ years. However, taking those matters into account, she would have reduced the head sentence to 18 months imprisonment. In view of the assistance to the police, which she regarded as a matter of significance, she went on to apply a further discount of a little less than one-third, resulting in the head sentence of 13 months imprisonment.
On the question of suspension, the sentencing judge had this to say:
“... suspension of the sentence for an offence such as yours must be out of the ordinary. Whilst your record of offending is, on one view, somewhat irrelevant - indeed the only offences of dishonesty on it were committed after this offence, though I am told to fund your addiction - I cannot find in the material which has been presented to me good reason to suspend the sentence. That is so, notwithstanding the assistance you have rendered to police and notwithstanding the attitude of the Director of Public Prosecutions that suspension is open to me. Ultimately it is a matter for my judgment. And, I simply have no confidence that you would complete the term of the bond without further offending.”
In that passage, the sentencing judge refers to the attitude of the Director of Public Prosecutions (“the DPP”).
When the sentencing judge received submissions as to sentence, the DPP was represented by Ms Powell. During the course of her submissions, Ms Powell is recorded as having said:
“I will refer your Honour to one other case at this time, that is a drug case, although the appellant in that matter was a courier, and this is R v Harris.[2] .... The courier in this case was transporting cannabis, 7.643 kilograms of cannabis, intending to transport it interstate. He did not provide information to assist police as to the principals involved in the offence. That is noteworthy because in upholding the sentence, the sentencing judge’s decision to not suspend any term of imprisonment, the CCA held - and I refer to the judgment of the Honourable Olsson J, that one factor that might have been relevant in suspending a term of imprisonment would have been whether or not the appellant gave information to the police about the principals involved, and that co-operation not forthcoming militated against suspending that term of imprisonment in that case. I suppose the converse or the submission that might have been made in this case is the case before your Honour that where she has provided valuable assistance to the police which in fact resulted in the apprehension and prosecution of others, would be, in this case, a factor towards suspension.
HER HONOUR:         It’s just a factor, isn’t it?
MS POWELL:            Yes.
HER HONOUR:         You can’t elevate it to the single determining factor that makes a difference between a suspended and not a suspended.
MS POWELL:            No, I would simply point that out as a third matter which your Honour can take into account from our submissions.”
[2] (2001) 122 A Crim R 241; [2001] SASC 227.
Later, Ms Powell added:
“I’m reminded to reaffirm that the Crown’s attitude towards this matter is that my friend’s submissions to your Honour about suspending the sentence is not opposed, indeed, supported.
HER HONOUR: You say that I should find good reason, do you?
MS POWELL: I would submit that on the matters before your Honour your Honour can find good reason to suspend. I can’t assist your Honour with the difficulties that are presented in terms of whether or not your Honour has confidence in her ability to comply with the bond, I think that’s a subject I wouldn’t be particularly helpful with. I can say that the other factors before the court do support your Honour’s finding of the good reason to suspend.”
On the hearing of the appeal, Mr Schapel contended, inter alia, that the sentencing judge had failed to give sufficient weight to what he described as “the attitude of the prosecutor”. He described that attitude as an “informed one” based largely upon the extent of the co-operation given by the appellant to the police which resulted in arrests of other offenders.
Mr Millsteed QC for the DPP submitted that a mere expression of attitude on the part of counsel for the Crown was irrelevant to the sentencing process and could not influence the exercise of the sentencing discretion one way or the other.
If the matter is put in those terms, that is, where it is simply a question of a statement of attitude by counsel for the Crown, that submission is clearly correct. The observations made by King CJ (with whom Cox and O’Loughlin JJ agreed) in R v Malvaso and Ors[3] are apposite:
“The decision as to what sentence is to be imposed is, however, entirely a matter for the Court which may, of course, be influenced by the arguments that are placed before it by the prosecution as well as by the defence, but must never be influenced by the attitudes or opinions as distinct from the arguments of either. In particular it must be stressed that the attitude of the prosecution towards a particular proposed course of action in relation to sentence is, as such, irrelevant; the view of the prosecution has no greater weight than the arguments advanced in support of that view. These propositions are elementary and fundamental propositions relating to the administration of criminal justice by independent courts, but their express elaboration may assist in clarifying the confusion of thought which lay at the root of some of the argument addressed on the present appeal.
It was put to us that the views, as distinct from the arguments advanced in support of those views, of the prosecution were proper to be taken into account in determining sentence in certain cases. I think that that is fundamentally wrong. It is true, of course, that the view of the prosecution as to certain relevant circumstances may be significant. The Court has received and considered, for example, the views of the Attorney-General and, through him, of the executive government that the prevalence of certain types of crime were of concern in the community. That community concern was a relevant factor for the Court in assessing the appropriate punishment and it was proper for the Court to be informed in the proper manner of the community’s concern by the elected government which represents it and by the Attorney-General who prosecutes on the community’s behalf. Likewise, it may be important to know the prosecution’s views as to the value of assistance given by an offender to the authorities. Other examples could be given but these are mere factors to be taken into account in assessing the appropriate punishment. It is quite another thing to suggest that the courts should be influenced by views as to the punishment of a particular offender entertained by those who are responsible for prosecutions.
When these principles are grasped, it will be seen that any deal entered into by investigating or prosecuting authorities with an offender can have only a limited impact upon the ultimate decision of the Court. It is the Court which must decide, in the end, having taken into account all relevant factors and arguments put to it, what mitigation of sentence is appropriate in recognition of the co-operation given to the authorities by the offender. The views of the prosecuting authorities cannot influence the Court. The most that those authorities can do, and effectively promise to do, is either to remain silent or to place before the Court considerations which might tend in the direction of lenience.”[4]
[3] (1989) 50 SASR 503 at 509-510.
[4] The case went on appeal to the High Court: see (1989) 168 CLR 227, but the appeal turned on other questions. Nothing fell from the High Court which could be taken to be inconsistent with the statement of principle by King CJ. See 168 CLR per Mason CJ, Brennan and Gaudron JJ at 233.
In Ienco v Kraft and Anor,[5] Olsson J dealt with an appeal from the Magistrates Court from the refusal by a magistrate to suspend a sentence imposed following the appellant’s plea of guilty to charges of receiving and unlawful possession. Through his counsel, the appellant had submitted to the sentencing magistrate that the court should impose a non-custodial sentence. The prosecutor intimated that he did not oppose the imposition of a suspended sentence.
[5] (1990) 53 SASR 40.
In the course of his judgment, Olsson J observed:[6]
“Attention must also be invited to what recently fell from the High Court in Malvaso v The Queen.[7] It there reiterated the fundamental sentencing concept that the sentencing discretion of the court must, in the final analysis, always be exercised in the public interest. It cannot be fettered by agreements made between the parties to criminal proceedings nor attitudes expressed by or on behalf of the prosecution.
That does not mean that, if some attitude is expressed by the prosecution - particularly if that attitude supports the extending of leniency to a convicted person - it should be ignored. On the contrary, such a submission must clearly be given anxious and careful consideration and accorded due weight. It must be taken that, in the normal circumstances and particularly in relation to cases coming before busy courts of summary jurisdiction, the prosecution is likely to have a more detailed knowledge of the background circumstances related both to the defendant and the commission of the offence or offences than the court and, as a matter of common prudence, a magistrate should hesitate before rejecting a joint suggestion that leniency is appropriate.”
[6] (1990) 53 SASR at 43.
[7] (1989) 64 ALJR 44.
If that passage is meant to convey that a mere expression of attitude alone by the prosecution is something which should be taken into account in the way suggested by Olsson J, with respect to him, such a view cannot stand with the observations of King CJ in Malvaso at first instance.
A mere expression of attitude by the DPP can carry no more weight than the expression of an opinion by counsel. What counsel has to say in a matter depends upon the strength of the arguments or contentions advanced, not on any personal view which might be expressed. Likewise, any acquiescence by the DPP in a submission by counsel for a defendant that a sentence of imprisonment which otherwise might be thought proper should be suspended, carries no more weight than that which the arguments on the merits of the matter, one way or the other, deserve.
Of course, counsel for the Crown may quite properly submit that a particular case is a proper case for a suspended sentence. But again, such a submission stands to be assessed against the merits of the arguments advanced for and against such a course being taken.
A separate but related question arises where the Crown seeks to appeal against the suspension of a sentence in circumstances where such a course has not been opposed by the Crown before the sentencing judge. In such circumstances the Court of Criminal Appeal may well take the view that it would not entertain an appeal by the Crown in such circumstances.[8] But that does not mean to say that an expression by the Crown, either of support or of opposition to the suspension of a sentence, when the matter is before the sentencing judge, is capable of carrying any more weight than the arguments offered in support of the proposed course.
[8] See DPP v Fermaner (1994) 61 SASR 447 per Matheson J at 450, citing R v Economides (1990) 58 A Crim R 466 at 469-470 and see the other authorities notes in Lunn, Criminal Law in South Australia Vol 1, para [7038.50(5)] at page 5289.
It follows that in this case the sole ground of appeal contended for, namely that the sentencing judge erred in refusing to suspend the sentence, must be assessed against the weight of the arguments bearing on the question of suspension, rather than upon the attitude taken by the Crown.
Before the sentencing judge, Ms Powell for the DPP, while supporting a suspension, referred to factors which she submitted could properly justify that course. That was a perfectly proper approach which did not in any way fetter the sentencing discretion. Her support for the suspension, standing alone, was irrelevant. The factors identified by her as relevant to the question of suspension fell to be considered on their merits. They gained no extra weight by reference to their source.
Mr Schapel for the appellant emphasised in the course of his submissions made in support of the appeal that the appellant had been found in possession of amphetamine; that she was addicted to amphetamines, and indeed, was in the process of injecting the drug when police entered her premises; that she pleaded guilty at the earliest stage; and that she thereafter extended positive and extensive co-operation to the police which resulted in arrests of others who had been involved in the illicit production of amphetamine.
Insofar as he submitted that the sentencing judge had failed to have sufficient regard to the attitude of the prosecution, it is unnecessary for me to add to the comments which I have already made.
As for the other points, Mr Millsteed QC countered by pointing out that they were all matters which have been expressly taken into account by the sentencing judge, and that it could not be said that the custodial sentence which she imposed lay outside the proper exercise of the sentencing discretion.
Mr Millsteed QC quite properly submitted that for offences involving the commercial distribution of drugs, the suspension of a sentence of imprisonment must be rare, citing R v Mangelsdorf and Ors.[9] He submitted that in the present case the sentencing judge was entitled to take the view that suspension was inappropriate, having regard to the serious nature of the appellant’s offence and the fact that it was committed against a background of substantial involvement in amphetamine trading.[10] Mr Millsteed QC further submitted that the fact that the amount of methylamphetamine involved (0.02 grams) was relatively small was of no great significance in cases such as this which involved what is commonly described as street trading.[11]
[9] (1995) 66 SASR 60 and 70-72.
[10] See R v Taddeo (1993) 67 A Crim R 338 at 340.
[11] See R v Jenkins (1988) SASC 6776 at [9-10], [16-20], and see also R v Mangelsdorf (1995) 66 SASR 60 at 64.
I have not so far referred to the fact that in October 2002 the appellant was charged with offences of unlawful possession (two counts) and false pretences. These offences were committed after her arrest in relation to the drug charge.
The offences were drug-related and resulted from the use by the appellant of stolen credit cards to acquire drugs and a place to stay in Adelaide. With respect to those offences, on 22 October 2002 in the Magistrates Court, following the appellant’s plea of guilty, she was released on a bond to be of good behaviour for two years, without a conviction being recorded. She stands to be sentenced on those offences should she break the bond.
Mr Millsteed QC quite properly submitted that although the appellant informed the psychologist Dr White that she had stopped taking amphetamine in December 2002, on 28 January 2003, pending sentence on the charge now in question, the appellant was admitted to hospital as a result of withdrawal symptoms following the taking of amphetamine.
No doubt it was these circumstances which prompted the sentencing judge to make the observation that she had “no confidence” that the appellant “would complete the term of her bond without further offending”.
However, the appellant had no previous convictions before the offending upon which she was convicted on 22 October 2002, being offending which post-dated the offence now in question. Although addicted to amphetamine, there were some positive indications that she was making a serious effort to break free of the habit, as is evident from her voluntary admission to hospital in January 2003.
It is clearly established that a sentencing court, faced with a situation where the offender has recently been released by another court upon a bond, should hesitate to impose a custodial term of imprisonment for another offence where this would operate to frustrate the opportunity for rehabilitation afforded by the bond.[12]
[12] See, for example, Power v French (1973) 6 SASR 100 and Mayfield v Police, (unreported) 14 May 1999, judgment No [1999] SASC 204 (Perry J).
Here, the appellant had only recently been released on a two-year good behaviour bond. Although the early indications were that the appellant was thereafter still struggling to throw off her drug habit, given the appellant’s youth and her prior good record, together with the other mitigating circumstances, it seems to me that the interests of justice would best have been served in this case by allowing some further time to go by before effectively terminating the opportunity which had been given to her to rehabilitate herself.

In offering that view, I must confess that I regard this case as close to the borderline. But at the end of the day I have reached the view that by failing to allow the appellant a further opportunity to prove that she had the capacity to rehabilitate herself, the sentencing judge fell into appealable error.
Having regard to s 38(1) of the Criminal Law (Sentencing) Act 1998, good reason to suspend may be found in the co-operation given by the appellant to the police and in the fact that at the time she was sentenced she was in the early stages of a two-year good behaviour bond.
I would allow the appeal for the purpose of suspending the sentence imposed by the sentencing judge, upon the entry into a further bond by the appellant in the sum of $1,000 for a period of two years on similar conditions to those which apply to the bond imposed in October 2002. The conditions which in my view would be appropriate are that the appellant be under the supervision of a probation officer or community corrections officer for the period of the bond, and that she obey all lawful directions given by such officer, and in particular that she keep all appointments and obey all directions with respect to assessment, counselling or treatment in relation to drug abuse.
NYLAND J. I agree that the appeal should be allowed for the reasons expressed by Perry J. I also agree with the conditions of the bond proposed by Perry J.
BLEBY J.               Like Perry J, I have found this a near borderline case, but in the end I too am persuaded that the sentencing Judge erred in not suspending the sentence. I agree with the reasons of Perry J and with the order that he proposes.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.    The place, the name of the appellant and any details which might serve to identify her have been omitted, in view of her assistance to the police referred to in the judgment.
2. (2001) 122 A Crim R 241; [2001] SASC 227.
3. (1989) 50 SASR 503 at 509-510.
4. The case went on appeal to the High Court: see (1989) 168 CLR 227, but the appeal turned on other questions. Nothing fell from the High Court which could be taken to be inconsistent with the statement of principle by King CJ. See 168 CLR per Mason CJ, Brennan and Gaudron JJ at 233.
5. (1990) 53 SASR 40.
6. (1990) 53 SASR at 43.
7. (1989) 64 ALJR 44.
8.    See DPP v Fermaner (1994) 61 SASR 447 per Matheson J at 450, citing R v Economides (1990) 58 A Crim R 466 at 469-470 and see the other authorities notes in Lunn, Criminal Law in South Australia Vol 1, para [7038.50(5)] at page 5289.
9. (1995) 66 SASR 60 and 70-72.
10.   See R v Taddeo (1993) 67 A Crim R 338 at 340.
11.   See R v Jenkins (1988) SASC 6776 at [9-10], [16-20], and see also R v Mangelsdorf (1995) 66 SASR 60 at 64.
12.    See, for example, Power v French (1973) 6 SASR 100 and Mayfield v Police, (unreported) 14 May 1999, judgment No [1999] SASC 204 (Perry J).

[2003] SASC 121

30 April 2003