R v Armistead

Case [2019] SASCFC 85

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ARMISTEAD

[2019] SASCFC 85

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Hinton)

16 July 2019

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

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

Appeal against conviction and application for permission to appeal against sentence.

On 17 November 2016 three police officers attended premises at Highbury to speak to the occupant. When the officers arrived the appellant was sitting in the driver's seat of his car which was reversed into the driveway of the premises and wholly on private property. Whilst one of the officers went to the front door of the premises to speak to the occupant, a second approached the appellant and asked him for his driver’s licence. The appellant did not have his licence but provided his licence number. The second officer then withdrew to the police car whilst the third stood nearby keeping the appellant under watch. Observations made by the third officer led him to suspect that the appellant had or was committing an offence and that a search of the appellant’s car would elicit evidence of an offence.

The second officer returned from the police car whereupon the third officer advised the appellant that he intended to search the appellant and his car under the Controlled Substances Act 1984 (SA). The search uncovered a package containing a crystalline substance weighing 13.9 gm of which 11.1 gm was methylamphetamine. The appellant was charged with and convicted of trafficking after a trial before a judge sitting alone. He was sentenced to imprisonment for three years and 10 months with a non-parole period of two years and six months.

The appellant appealed against his conviction and sought permission to appeal against his sentence. With respect to his conviction he contended that a miscarriage of justice had occurred. The police officers’ search of the appellant’s vehicle, he submitted, was unlawful because they were trespassers and had unlawfully detained him. That unlawfulness enlivened the public policy discretion to exclude the evidence obtained in consequence of the police officers’ search. That discretion ought to have been exercised in favour of the appellant. The appellant also contended that his conviction was unreasonable and could not be supported by the evidence due to inconsistencies in the prosecution case. With respect to his sentence the appellant submitted that it was manifestly excessive in two respects; first, the head sentence and non-parole period were too high, and, secondly, the sentence of imprisonment should have been ordered to be served on home detention.

Held, per Hinton J (Kelly and Stanley JJ agreeing), dismissing both the appeal…

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AGLC
R v Armistead [2019] SASCFC 85
Case
[2019] SASCFC 85
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for drug trafficking. The appellant, Mr. Armistead, challenged his conviction on the grounds that the evidence was insufficient to support the jury's verdict, arguing it was unreasonable and could not be supported by the evidence. He also appealed against the sentence imposed, contending it was manifestly excessive and that any term of imprisonment should have been served by way of home detention. The Court of Appeal, comprising Kelly, Stanley and Hinton JJ, considered these grounds of appeal.

The primary legal issue before the Court was whether the jury's verdict of guilt was unsafe or unsatisfactory, requiring an independent assessment of the evidence's sufficiency and quality. This involved applying the principles established in cases such as *M v The Queen* and *SKA v R*, which require an appellate court to determine if it would be dangerous to allow the verdict to stand, even if there was evidence upon which a jury might convict. The secondary issue concerned the appropriateness of the sentence, specifically whether the head sentence and non-parole period were excessive and whether home detention was a suitable alternative.

The Court affirmed that the jury is the primary finder of fact, but an appellate court must conduct an independent assessment of the evidence to ensure a verdict is not unsafe or unsatisfactory. In relation to the conviction, the Court found that the evidence, including the quantity and purity of the methylamphetamine seized, supported the jury's finding of guilt. Regarding the sentence, the sentencing judge had considered the appellant's personal circumstances, including his drug use and attempts at rehabilitation, alongside the seriousness of the offence, the prevalence of methylamphetamine in the community, and the need for general and personal deterrence. The judge determined that the quantity of drugs, valued at over $10,000, indicated possession primarily for sale, despite some personal use. The Court found that the sentencing judge had properly balanced these competing considerations and that the sentence imposed, three years and 10 months imprisonment with a non-parole period of two years and six months, was not manifestly excessive, nor was the refusal of home detention inappropriate given the seriousness of the offending.

The Court of Appeal dismissed the appeal against conviction and the application for permission to appeal against sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Having regard to these considerations, in my view balancing the competing public interests to which I have referred above, the evidence was rightly admitted. A conviction obtained on the strength of the evidence of the search is not one, having regard to the premium that the community places upon the liberty of the individual, obtained at too high a price.Unreasonable and cannot be supported by the evidence In BCM v The Queen the High Court said:[30]The principles to be applied in determining a ground which challenges the sufficiency of the evidence to support a conviction are well-established. They are collected in SKA v R. Prominent in the majority’s discussion in SKA of the application of those principles is the requirement that the appellate court’s reasons disclose its assessment of the capacity of the evidence to support the verdict.[footnotes omitted][30] (2013) 88 ALJR 101 at [31]. The reference to SKA v The Queen is to the joint judgment of French CJ, Gummow and Kiefel JJ who said:[31]It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to “unsafe or unsatisfactory” in M is to be taken as “equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.”The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”...In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:“In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”[31] (2011) 243 CLR 400 at [11]-[14].

Decision

Reasons for decision

I would dismiss this ground of appeal.Conclusion I would dismiss the appeal against conviction.The application for permission to appeal against sentence The Judge sentenced Mr Armistead to imprisonment for three years and 10 months. He fixed a non-parole period of two years and six months. The Judge considered Mr Armistead’s offending too serious to suspend upon him entering into a bond or to order that the sentence be served on home detention. The appellant contends that the sentence was manifestly excessive in two respects. First, the head sentence and non-parole period are simply too long. Secondly, any sentence of imprisonment should have been ordered to be served on home detention. In sentencing Mr Armistead the Judge referred to his finding that Mr Armistead was in possession of 13.9 gm of ice containing 11.1 gm of pure methylamphetamine. That is, the ice was approximately 80 per cent pure. The evidence adduced at trial was that it would sell for $50 to $100 per 0.1 gm deal at street level. Accordingly, the 13.9 gm, if sold in 0.1 gm deals at $100 per 0.1 gm deal, was worth over $10,000. The Judge sentenced Mr Armistead on the basis that he possessed the ice primarily for sale but that he would have used some in the course of satisfying his own addiction. The Judge referred to Mr Armistead’s personal circumstances as follows:You are presently 29 years of age, born and raised in South Australia. You have a supportive family. You attended Murray Bridge Unity College and completed year 12.You initially worked in the Riverland prior to the family moving to Adelaide to be involved in the family business.The family business is involved in transporting food and beverages, both locally and interstate. Unfortunately, you started taking drugs at the age of 19 and over time, your drug use worsened, affecting your ability to work. By the time of this offence in 2016, you were no longer living with your family. Rather, you were living and associating with people involved in drugs who would certainly not have been good influences.Your counsel indicated that since your arrest you have been trying to address your drug use, although there have been a number of instances of failing required drug testing.Your counsel tendered materials reflecting your positive engagement with OARS between March and July 2017. You were, however, taken back to work in the family business as outlined and you now fulfil the role of operations manager. Your father suffered health issues in 2017 and you have been particularly needed in the business in light of that.Your mother has written to the court indicating you have been a great help in the family business and you have the family support now and in the future. The Judge then made observations as to the seriousness of the offence, the prevalence of methylamphetamine use in the community and the harm it causes. The Judge expressed the view that the appellant was in possession of a considerable quantity of ice, notwithstanding that a portion of it was for the appellant’s own use. He added that he did not know to what extent the appellant stood to gain financially from his dealing, nonetheless the quantity was significant as was its value. The Judge observed that general and personal deterrence must play a significant part in any sentence he imposed. The Judge then sentenced Mr Armistead saying:From a starting point of four years imprisonment, that will, however, be reduced by a total of two months to reflect credit for both your time in custody and your time on home detention bail subsequent to your arrest.There will be a non-parole period of two years and six months. Regrettably, your offending is too serious, even when balanced against all the matters urged in your favour, for there to be good reason to suspend the sentence.As to home detention, the court takes into account all submissions made and matters tendered by your counsel, the home detention report, the statutory criteria and the recent decisions of the Supreme Court on the topic.At the end of the day, your offending is too serious and a home detention sentence would not represent adequate punishment for the offending. Accordingly, home detention is not appropriate.In summary, your sentence is three years and 10 months imprisonment with a non-parole period of two years and six months, to date from today. The seized drugs are forfeited pursuant to the legislation.

Ratio Decidendi

Legal Principle Established

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