R v Arnold

Case [2015] SASCFC 23

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ARNOLD

[2015] SASCFC 23

Judgment of The Court of Criminal Appeal

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

10 March 2015

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

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS

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

Application for permission to appeal against sentence.

The applicant pleaded guilty to three counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) and one count of unlawful possession contrary to s 41 of the Summary Offences Act 1953 (SA).

The offences were committed on two separate dates.  Two counts of trafficking relate to a search of the applicant’s home on 14 October 2012 during which the applicant was found to be in possession of 110 ecstasy tablets and 29.36 grams of methylamphetamine in crystalline form.  The remaining count of trafficking relates to a further search of the applicant’s home on 15 January 2013 where the applicant was found in possession of 3.82 grams of methylamphetamine.  The single count of unlawful possession related to $17,140 in cash which was the aggregate amount found in the applicant’s possession on both occasions.  The applicant was sentenced on the basis that the cash represented the proceeds of drug sales. 

The offences of 15 January 2013 occurred while the applicant was on bail in respect of the charges arising from the offending of 14 October 2012. 

The applicant had been engaged in the trafficking of drugs from July 2011 to January 2013.  Detailed records kept by the applicant indicated $1.26M in total sale of drugs with the applicant deriving nearly $285,000 in total earnings from that activity.  He had 104 customers to whom he supplied drugs. 

The applicant had no prior convictions. 

A judge of the District Court imposed a single sentence of four years imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) for the two counts of trafficking in a controlled drug committed on 14 October 2012. The judge imposed a sentence of four years and six months imprisonment for the further offence of trafficking in a controlled drug committed on 15 January 2013. For the offence of unlawful possession the applicant was convicted without further penalty. The sentences of imprisonment were made cumulative. The total head sentence was eight years and six months imprisonment. The judge imposed a non-parole period of four years. The cash the subject of the unlawful possession charge was forfeited to the Crown.

The sole ground of appeal is that the sentence imposed was manifestly excessive.

The applicant brought his application for permission to the Court of Criminal Appeal after a judge of this Court refused…

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AGLC
R v Arnold [2015] SASCFC 23
Case
[2015] SASCFC 23
Decision Date

CaseChat Overview and Summary

The applicant, R v Arnold, sought leave to appeal against sentences imposed by a sentencing judge for drug trafficking offences. The respondent, Ms Baohm, argued that the sentencing judge had acted within his discretion and that the overall sentence was not manifestly excessive given the applicant's total criminality.

The central legal issue before the court was whether the aggregate sentence imposed on the applicant for drug trafficking offences was manifestly excessive, considering the nature and extent of the offending, and whether the sentencing judge erred in failing to make the sentences partially concurrent. The court was required to determine if the sentencing judge had properly considered all relevant factors, including the applicant's addiction, commercial motives, and the fact that he was on bail for earlier charges at the time of the January 2013 offences.

The court reasoned that general deterrence is a primary consideration in sentencing for drug trafficking, particularly where there is an ongoing commercial enterprise. The sentencing judge was entitled to consider the context and surrounding circumstances of the crimes, including the applicant's substantial trafficking activities with sale proceeds exceeding $1.26 million and his continued involvement in drug trafficking while on bail. While the applicant's methylamphetamine addiction was noted, the court found that his offending was also motivated by greed. The court affirmed that there are no strict rules regarding concurrent or cumulative sentences, and that the overall sentence was a just and appropriate measure of the criminality involved, not being crushing or manifestly excessive.

Consequently, the court refused the application for permission to appeal, finding the total sentence to be just and appropriate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, when the sentences are considered in aggregate the terms of imprisonment are not crushing. On the contrary, the nature of the offending called for a significant sentence. The total sentence is a just and appropriate measure of the criminality involved. Conclusion I would refuse the application for permission to appeal.

Ratio Decidendi

Legal Principle Established

Ms Baohm, counsel for the respondent, submits that the approach taken by the learned sentencing judge was within his discretion and no error has been identified. The ultimate question is whether or not the overall sentence was manifestly excessive having regard to the total criminality of the conduct for which the applicant was convicted. She submits it is not. The judge was entitled to take into account all of the circumstances including the background to the offending in imposing sentence pursuant to s 10(1)(c) of the Sentencing Act. The offending of January 2013 was aggravated by reason of the fact that the applicant was on bail at that time for the earlier trafficking charges. The applicant was engaged in substantial trafficking involving sale proceeds of over $1.26M. The offences of January 2013 evidence the applicant’s continued involvement in drug trafficking. A heavy sentence was required for reasons of both personal and general deterrence. The ongoing course of conduct militated against leniency. While the applicant suffered from an addiction to methylamphetamine his offending must also be seen as motivated by greed. The failure to make the sentences partially concurrent is not indicative of error. There are no hard and fast rules applicable to whether a sentence should be concurrent or cumulative. When considered in the context of the applicant’s overall criminal conduct the sentences cannot be characterised as manifestly excessive.Consideration In sentencing for drug trafficking general deterrence is a primary consideration. A sentencing judge will have regard to whether there was an ongoing commercial enterprise, the extent of that enterprise and the quantity and nature of the drugs the subject of the charge.[15][15] R v Cetojevic [2005] SASC 273 at [25], (2005) 92 SASR 451 at 455; R v Scarpantoni [2013] SASCFC 120 at [88]. Where offenders engage in commercial drug offending they must expect that the court will impose heavy sentences in which deterrence is a significant factor. Personal circumstances must be given less weight in such cases than they might in other cases.[16] In sentencing for trafficking offences the court is required by s 44(1) of the Controlled Substances Act 1984 (SA) to take into consideration the nature and quantity of the substances involved in the commission of the offence, the personal circumstances of the convicted person including personal use of any controlled drug, the commercial or other motives of the convicted person in committing the offence and the financial gain likely to have accrued to the convicted person as a result of the commission of the offence. [16] R v Di Maria (1996) 67 SASR 466 per Doyle CJ at 477. It has long been recognised that a sentencing judge is entitled to take into account the context and surrounding circumstances of a crime and, in particular, whether the act charged is an isolated offence or whether it is part of an ongoing course of conduct.[17] Section 10(1)(c) of the Sentencing Act now elevates that entitlement into a requirement in imposing sentence. As was observed in Taddeo[18] the offence for which a defendant is to be sentenced may take its colour and its character from the context in which it is committed. The principle is qualified however to this extent: where the context and surrounding circumstances of a charged offence may themselves constitute crimes the defendant is only to be punished for the charged conduct. If he is not charged with conduct constituting the surrounding circumstances to the offence for which he or she is to be sentenced, the surrounding circumstances cannot be relied upon as a circumstance of aggravation.[19] Accordingly, the surrounding circumstances of the crime may be taken into account in considering whether or not to extend leniency to a defendant so as to reduce what would otherwise be a proper sentence, however, the commission of a crime, not asked to be taken into account, cannot be used in order to increase what would otherwise be a proper sentence.[20][17] R v Reiner (1974) 8 SASR 102 at 105; R v Taddeo (1993) 67 A Crim R 338 at 339.[18] (1993) 67 A Crim R 338 at 339.[19] R v Teremoana (1990) 54 SASR 30 at 37.[20] R v Reiner (1974) 8 SASR 102 at 105; R v Godfrey (1993) 69 A Crim R 318 at 322-323.