R v Attard No. Scgrg-99-170 Judgment No. S463

R v ATTARD
[1999] SASC 463

Court of Criminal Appeal: Doyle CJ, Perry and Mullighan JJ (ex tempore)

DOYLE CJ: The appellant appeals against a sentence imposed by a District Court judge. The appellant was charged with the offence of possessing heroin for sale under s 31(1)(e) of the Controlled Substances Act 1984. He was acquitted of this charge by the jury. He was convicted and sentenced for the lesser offence of possessing heroin for his own use. He had never denied his guilt of that offence.
The maximum penalty for this offence is a fine not exceeding $2,000 or imprisonment for a term not exceeding 2 years or both. The District Court judge sentenced the appellant to imprisonment for 18 months with a non-parole period of 9 months. The sentence of imprisonment was suspended upon the appellant entering into a bond to be of good behaviour for 2 years. The appellant complains that the sentence is manifestly excessive.
At the time of the offence the appellant and his wife ran a shop in the Riverland from which they sold various secondhand goods. From time to time he would travel to Adelaide to attend auctions at which he purchased stock for his store. On some but not all of these occasions he would stay at a unit at Clearview rented from the Housing Trust. On the weekend of the offence the appellant and his wife travelled to Adelaide to purchase stock. Their evidence was that on that occasion they did not stay at the unit at Clearview.
On 3 January 1998 police officers with the Drug Task Force attended at the unit to speak with the appellant. The appellant was approached by one of the officers as he stepped from a car. The police officer asked the appellant his name. When he received no response he noticed a bulge in the appellant's cheek. The officer struggled with the appellant and a package in the appellant's mouth was retrieved. The package contained 4.1 grams of white powder, 3.1 grams of which were heroin.
The appellant was also found to have roughly $1,720 in cash on his person at the time he was apprehended. Various items were found inside the unit which were said to be consistent with the packaging of heroin for sale.
The appellant was charged with the offence of possessing heroin for sale. The Crown case was that he sold heroin in exchange for stolen goods in order to support his own significant habit. The appellant denied this charge.
He claimed that the money that was in his possession was from the sale of his car the previous day. At trial he gave evidence that the heroin had been provided to him by his brother. He also admitted that he had lied about the source of the cash.
The appellant is 38 years of age. He has been married for 13 years and has four children. He has a history of drug abuse and dependency. He has made efforts in the past to break this dependency, but with varying degrees of success.
At the time of the offence he was addicted to heroin in addition to using marijuana and taking several prescription medications. On his own evidence he was at the time of the offence using as much as half to one gram of heroin a day. At the time of the trial the appellant claimed to not have used heroin for more than a year and to have significantly reduced his use of prescription medications. He has his wife's continued support in breaking his drug addiction. However, he has a long and consistent history of offending from the 1970s although much of that offending may be said to be of a relatively minor nature.
A fair number of the offences are drug offences and public order offences. The drug offences appear to involve cannabis and to be possession of drugs for his own use. The fact that only small fines were imposed suggest that they were not serious offences. On several occasions a suspended sentence has been imposed. The appellant has not yet served a term of imprisonment.
The submissions as to sentence were very brief. They ceased when the judge indicated that he would suspend any sentence imposed. The sentencing remarks are also very brief. The judge accepted that the appellant was endeavouring to break his drug dependency, but emphasised that he viewed this amount of heroin as significant and said that he thought the sentence was justified on that basis.
Counsel for the appellant argued that the sentence imposed was manifestly excessive having regard to the appellant's admission at all times that he was in possession of the heroin for his own use, and the fact that he was ultimately convicted on that basis.
It was further urged that the judge did not give adequate weight to the evidence of the appellant that he had not used heroin for over a year and was thus successfully rehabilitating himself. It was also submitted that the learned judge was aware that there was information available relating to assistance given to the police by the appellant, and that the judge must have failed to give adequate weight to that.
I turn to the question of whether the sentence was excessive. I consider that the sentence imposed was manifestly excessive. The appellant had never denied his guilt of the offence for which he was ultimately convicted. He was entitled to some discount for that. Assuming that the District Court judge recognised this, he must have started from a sentence close to the maximum before arriving at the sentence ultimately imposed. In my opinion, that was far too high a starting point for this offence.
Apart from the discount for the early admission of guilt, the appellant was, in any event, entitled to some credit for his attempts to break his drug habit. He was also entitled to significant credit for the assistance given to the police. The Director of Public Prosecutions accepts that that assistance was given and the court has been given information about it.
All of these factors indicate to me that a sentence which was three quarters of the maximum sentence was excessive. On the other hand, the fact remains that the appellant was in possession of an amount of heroin that was quite significant. His record is not good, as I have said. It indicates that in relation to drugs he has been prepared to disregard the law on a number of occasions, nor on his own admission was this his first involvement with heroin.
Taking into account the offending involved and the need to deter the appellant and others from what is a fairly prevalent offence, I consider that a sentence of imprisonment was called for, but a substantially lesser sentence than that imposed. I would impose a sentence of imprisonment for five months.
But for the assistance given, the sentence would have been of the order of 12 months, after allowing for a discount of about three months for the plea. Like the District Court judge, I would suspend the sentence.
Although the appellant has had the benefit of a suspended sentence on three previous occasions, there are still reasonable grounds for hoping in all the circumstances that he will learn his lesson and mend his ways. There are indications that he has tried to break his drug habit. He is in a stable relationship and appears to be able to support himself. However, the appellant does need to understand that this is likely to be the last occasion on which such leniency is extended to him.
I would suspend the sentence upon the same terms as did the District Court judge except that the bond should be for a period of 1 year 6 months. Accordingly, I would allow the appeal, substitute a sentence of imprisonment for five months and suspend the sentence on the basis indicated.
PERRY J: I agree.
MULLIGHAN J: I agree.
DOYLE CJ: The orders of the court are as follows:
Appeal allowed.
Set aside the sentence imposed by the District Court.
Substitute a sentence of imprisonment for five months.
Order that the sentence be suspended upon the appellant entering into a bond to be of good behaviour for one year six months from the date of the bond and further, on condition that the appellant be under the supervision of a probation officer for the period of the bond, obey the lawful directions of the probation officer, undertake such courses and counselling for drugs as the probation officer directs and the appellant is to report within two working days at the office of the Department for Correctional Services at 7 Kay Street, Berri, South Australia 5343.

I direct that the bond be entered into before the Clerk of Arraigns.

[1999] SASC 463

18 November 1999