R v BAIS

[2014] SASCFC 17

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BAIS

[2014] SASCFC 17

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice David and The Honourable Justice Bampton)

7 March 2014

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER OFFENCES

Appeal against sentence – the appellant was sentenced in the District Court in respect of five breaches of bail, breach of a District Court bond, two counts of supplying a controlled drug, one count of possessing a controlled drug and one count of supplying a controlled drug to a child – appellant sentenced to 22 months imprisonment (reduced to 15 months to account for time spent in custody and on home detention bail) with a non-parole period of 7 months.

The trial in respect of the offence of supplying a controlled drug to a minor commenced, but a mistrial was declared on the second day – one week before the retrial, which would also deal with all offences on the District Court Information, the appellant entered pleas of guilty.

On 17 January 2014, being two days after the appellant was sentenced in the District Court, her daughter attempted to commit suicide – as a result, the appellant was granted bail on compassionate grounds – the appellant now seeks to adduce evidence of her daughter’s vulnerability and mental health problems, which she contends are relevant to the sentencing process.

The appellant advanced five grounds of appeal.

Whether the sentence of 18 months imprisonment for the offence of supplying a controlled drug (cannabis) to a minor was manifestly excessive.

Held per David J (Vanstone and Bampton JJ concurring):  Ground of appeal dismissed - the gravity of the offending in this case was serious and involved a betrayal of trust by the appellant towards her daughter as well as encouragement of her addiction.  In those circumstances, the sentence imposed by the sentencing Judge is not manifestly excessive.

Whether the sentencing Judge erred in declining to exercise his discretion to suspend the term of imprisonment.

Held per David J (Vanstone and Bampton JJ concurring):  Ground of appeal dismissed – the seriousness of this matter is indicated by the maximum penalty and the continued nature of the offending in supplying cannabis to a minor.  There is no good reason to suspend the term of imprisonment.    

Whether the sentencing Judge failed to consider what discount, if any, was appropriate for the appellant’s pleas of guilty to the offences of possession of a controlled drug and supply of a controlled drug to a child.

Held per David J (Vanstone and Bampton JJ concurring):  Ground of appeal dismissed – having regard to the history of the matter and the context in which the appellant entered her guilty pleas, any discount afforded to her in recognition of those pleas would have been miniscule.  Further, when one looks at the totality of the sentence imposed, it is apparent that any failure by the sentencing Judge to consider what discount to apply would not have affected the sentence.    

Whether the sentencing Judge erred in finding an element of commerciality existed in the appellant’s offending.

Held per David J (Vanstone and Bampton JJ concurring):  Ground of appeal dismissed – a plain reading of the sentencing remarks makes clear that the contest between submission put by counsel and the Judge’s view of the facts was not one of commerciality, but whether the reason for her using drugs was addiction or self-medication.  The sentencing Judge’s erroneous use of the word ‘commerciality’ plays no part in his sentence.   

Whether this Court should accept the fresh evidence adduced by the appellant regarding her daughter’s mental health problems.

Held per Vanstone J:  the fresh evidence should be accepted by the Court – the fresh evidence is admitted for the purpose of underlining the significance of the submission made to the sentencing judge concerning the mental state of the appellant’s daughter. 

Held per David J (Vanstone and Bampton JJ concurring): the material sought to be presented should be accepted as fresh evidence – however even allowing for that material, such considerations would not affect the exercise of the Judge’s discretion to suspend.  

Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Franklin (2012) SASCFC 109, considered.

R v BAIS
[2014] SASCFC 17

Court of Criminal Appeal:  Vanstone, David , Bampton JJ

1. VANSTONE J:     I have had the advantage of reading the reasons prepared by David J.  I would be inclined to accept the fresh evidence, not for the purpose of establishing events occurring subsequent to sentence, but for the purpose of underlining the significance of the submissions made to the sentencing judge concerning the delicate mental state of the appellant’s daughter and the likely impact on her of imprisonment of her mother. 

2. Nonetheless, for the reasons given by David J the appeal should be dismissed.

3. I would make these orders:

   1the affidavit of Ms Stokes is admitted;

   2the appeal is dismissed.

4. DAVID J:              The appellant was sentenced in the District Court on 15 January 2014 to 15 months imprisonment with a non-parole period of seven months.  The sentence included a reduction for time spent in custody and home detention and was unsuspended.  The sentence was for a number of offences, including five breaches of bail, a breach of a District Court bond, two counts of supplying a controlled drug, one count of possessing a controlled substance and one count of supplying a controlled drug to a child.  At the time of sentence the appellant was a 41-year old female with a daughter who is now aged 17 years.

   The offending

   (a)     Breach of bond

5. On 7 August 2010 police searched the appellant’s house and located 4.207 grams of a substance containing methylamphetamine in her bedroom.  On 27 June 2012 she was convicted of possession of that material and released on a suspended sentence bond of three months imprisonment.  That bond was breached by five offences of failing to comply with a bail agreement because she returned during the period of the bond urinalysis tests positive to methylamphetamine on five separate occasions between 13 September 2012 and 27 May 2013.

6. On 15 January 2014 the sentencing Judge in this matter estreated that bond, revoked the suspension and ordered that the term of three months imprisonment be served.  

   (b)    Five counts of failing to comply with a bail agreement

7. These are the same breaches which breached the above bond.  The sentencing Judge convicted without further penalty.

   (c)     Two counts of supplying a controlled drug on 16 January 2012

8. There were pleas to these offences at committal. The facts, briefly, were that on 16 January 2012 the appellant attended an On the Run service station in the early hours of the morning and handed the service station attendant an envelope with her name and telephone number on it. Inside the envelope was a small amount of cannabis and .03 grams of a substance containing methylamphetamine. The sentencing Judge imposed a sentence of four months imprisonment for both offences, utilising s 18A of the Criminal Law Sentencing Act 1988.  It is to be noted that in his sentencing remarks the Judge indicated he would have imposed a term of eight months imprisonment, were it not for the appellant’s pleas of guilty at the committal stage for those two offences.  By doing that he discounted by 50% the sentence on account of those guilty pleas.

   (d)    Possession of a controlled drug

9. In the District Court the appellant pleaded guilty to one count of possessing a controlled drug, namely methylamphetamine.  That drug was found after a search by the Police at the appellant’s home on 18 January 2012. For that offending the learned sentencing Judge fixed a term of imprisonment of three months to be served concurrently with the penalties above. 

   (e)     Supply of a controlled drug to a minor

10. On the same information in the District Court as (d) above the appellant pleaded guilty to supplying a controlled drug to a child, namely her daughter, who at the time was 15 years of age.  The maximum term of imprisonment for that offending is life imprisonment and/or a fine of $1 million.  The facts in relation to that offending were that whilst the police were at her house on 18 January 2012, during a recorded interview the appellant made admissions to supplying her 15-year old daughter with cannabis on a weekly basis for the previous six months.  A term of imprisonment of 18 months was imposed, to be served cumulatively upon all other sentences. 

11. The total head sentence was therefore 22 months imprisonment.  The sentencing Judge reduced that to 15 months imprisonment to make allowance for time spent in custody and on home detention bail.  He set a non-parole period of seven months to commence from 14 January 2014.  He declined to suspend the sentence.

12. The appellant now argues the head sentence was manifestly excessive and that the sentencing Judge erred in not suspending whatever term of imprisonment  was imposed.

    Grounds of appeal.

13. There were five grounds of appeal.  I deal with each in turn.

    Ground 1 – The head sentence was manifestly excessive

14. Counsel for the appellant now argues that a sentence of 18 months imprisonment in respect of the supply of a controlled drug to a minor was manifestly excessive.  He argues that the reason given for supplying cannabis to her daughter over six months was a mitigating factor that should allow for a more lenient sentence.  That reason was that, having found that her daughter was using cannabis, she supplied it to her herself to stop her obtaining it from nefarious and expensive suppliers.  The sentencing Judge found the explanation unconvincing, as I do.  The fact was that over a period of time the appellant, by her behaviour, encouraged her young daughter’s addiction by constantly supplying her with cannabis.  It is the protection of young people from such an addiction which is one of the main purposes of the legislation. 

15. Mr Mead of counsel for the appellant on appeal and her counsel at sentencing submissions, Ms Stokes,  both referred to a decision of this Court in R v Franklin[1] where a sentence of imprisonment for supplying cannabis to a 14-year old girl in circumstances slightly different than the present case attracted a head sentence of 18 months and that sentence was upheld.  The difference in circumstances was that the girl had purchased the cannabis from the defendant in that case, as distinct from having it supplied by her mother in this case.  In my view, the gravity of offending in both cases is similar.   Although there is no commercial aspect in the present case there is the serious matter of a betrayal of trust by the appellant towards her daughter.  In my view, in the present case, the sentence is not manifestly excessive and I dismiss that ground of appeal.

    [1] (2012) SASCFC 109

    Ground 2:  Failure to suspend

16. The appellant argues that insufficient weight was given to the appellant’s circumstances when the Judge declined to exercise his discretion to suspend the term of imprisonment.  As I have already indicated, the appellant was a 41-year old female at the time.  She was born in Sydney and moved to Adelaide when she was very young.  Her mother was diagnosed with schizophrenia during her childhood and was cruel to her.  She had lived on the streets in Adelaide and Melbourne for some five years and was at a very young age introduced to amphetamines and cannabis.  She has worked very successfully in the real estate industry.  Her health has been poor and at 12 years of age she was diagnosed with a disease of the spine which causes great pain.  That pain was exacerbated after a motor vehicle accident in 2003 and another accident which occurred some four years after that. The appellant has been using drugs since the age of 14.

17. As far as criminal antecedents are concerned, between 1990 and 2007 the appellant has been before the Courts for a number of drug-related offences as well as a number of driving offences and other more minor matters.[2]  The appellant has one daughter and one son.  She has full-time care of her daughter, who lives with her and was the subject of the offence of supplying cannabis to a child. 

    [2]    See antecedent report (Appeal Book page 163).

18. Taking these antecedents into account and the difficulties the appellant has had, Mr Mead argues that the sentencing Judge has erred in not suspending the sentence.  He also contends that the submission of the appellant attempting to protect her daughter from predatory drug-dealing adults was not given enough weight by the sentencing Judge. 

19. In relation to this ground of appeal Mr Mead argues that the Judge should have given consideration to the effect that a term of imprisonment would have upon her daughter.  In making that submission, Mr Mead refers to evidence that the daughter gave at the sentencing hearing, talking of the difficulties of the absence of her mother.  Also before the sentencing Judge and before this Court was a letter from her counsellor, a Mr Bernie Lawless of Centacare, in which he expresses grave concerns for the daughter’s well-being in the absence of her mother. 

20. Connected to that ground of appeal is a further ground in which the appellant seeks to produce fresh evidence.  That has been referred to as Ground 5, but I deal with it now, because it is connected with the questions arising in Ground 2.  Placed before the Court is an affidavit of a barrister, Heather Frances Stokes, who was counsel at sentence in the present matter.[3]  In that affidavit, she swears that after the appellant was sentenced in the present case, her daughter attempted to commit suicide by way of overdose.  That event occurred on Friday, 17 January 2014, only two days after sentence was imposed.  She was admitted to the Women’s and Children’s Hospital and spent time in intensive care.  Ms Stokes further swears that the daughter has threatened suicide again.  Connected with that affidavit is a Mental Health Summary from the Women’s and Children’s Hospital about her attempted suicide, which says the following:

    [3]    Affidavit of Heather Frances Stokes – Appeal Book page 11.

    Medical Team Summary

    Bonnie is a 17 year old girl with a complex and stressful social situation who was admitted to the WCH following a polypharmacy overdose.

    On the night of her admission she ingested 15 x 180mg SR Verapamil and 26g paracetamol (20 x 500mg panadol tabs + 20 x Digesic tabs) with the intent to end her life.  Bonnie has no history of previous suicide attempts or overdoses.

    On admission the patient was alert and conversive (GCS 15) with stable observations.  Urine screen was positive for cocaine/amphetamines/methamphetamines and she was commenced on a NAC infusion with cardiac monitoring overnight.  She was admitted to PICU later that night following the development of a complete heart block – treated with calcium chloride. 

    Her ECG normalised and she was stable in PICU.  She was seen by the mental health nurse and was discharged home with her Grandfather.  She will have mental health follow-up in the community with CAMHS.

    Mental Health Summary

    17 year old female brought to hospital by ambulance, called by her mother’s barrister, following discovery for an overdose of Verapamil and Paracetamol, following disturbing news that her mother had been sentenced to a further 22 months imprisonment at Northfield Women’s Prison, for drug related offenses (sic) committed whilst service a custodial home detention sentence.  Had returned to prison 4 months ago and had been hopeful of release to further home detention.  Sentencing occurred on Friday (3 days ago).

    Bonnie is currently applying to return to school at Seaford R-12 campus, enrolling in a part time Yr 12 load.  She is enrolling at Centrelink to have her previously removed benefits reinstated.  She is visited regularly by some “Edge” church congregation members who take her to lunch and coffee and help with shopping.  She has a boyfriend Josh (18 years) with whom she has been with for 12 months and again previously when aged 14 or so. Her Opa lives in Adelaide and is accessible and caring, within his capacity.  Father and brother (18 yrs) live in QLD.

    Question of the discretion to suspend or not

21. The appellant’s daughter is now 17 years of age.  She has support, as set out in the Medical Summary and also, we are told, from her grandfather.  In my view, the above material, which is the basis of Ground 5, can be received as fresh evidence.  However, even allowing for that material and the general submissions about the effect of the appellant’s imprisonment upon her daughter, such considerations would not affect the exercise of the Judge’s discretion not to suspend.  This is a most serious matter.  Its seriousness is indicated by the maximum penalty and the continued nature of the offending in supplying cannabis to a minor.  There is no good reason to suspend and the Judge was correct in finding so.

    Ground 3 - The learned sentencing Judge erred in failing to consider what discount was appropriate for the pleas in relation to the District Court matters namely – possessing methylamphetamine and supplying cannabis to a minor

22. It is to be noted that the Judge gave a discount of 50% for those matters which were dealt with at committal but neglected to state what discount, if any, was given to the matters in the District Court.

23. The history leading up to the pleas of guilty in the District Court is a factor to consider. 

24. The appellant was first arraigned in respect of the matters in the District Court on 17 July 2012.  On that occasion, the appellant entered pleas of not guilty.  Those matters, which were subsequently severed, were later listed for trial commencing on 18 March 2013. 

25. The trial in respect of the supply to a minor was listed to commence on 15 July 2013 and the trial in respect of the trafficking/simple possession was listed to commence on 30 September 2013.  

26. Prior to the commencement of the trial on 15 July 2013, the DPP made a number of applications to revoke the appellant’s bail.  Each of these applications was dismissed, though the appellant’s bail was varied on 19 April and 17 June 2013.

27. On 15 July 2013, the trial commenced in respect of the charge of supplying a controlled drug to a minor.  The appellant was again arraigned on that day and entered a plea of not guilty.  On 16 July 2013, the appellant elected to give evidence in her defence and, later that day, a mistrial was caused as a result of a statement made by the appellant about time she had spent in custody.  As a result, the jury was discharged and the matter was listed for a further directions hearing to fix another trial date.

28. At the next directions hearing, the DPP indicated that the counts, which had previously been severed, could be heard together in the trial listed on 30 September 2013.  On that occasion, counsel for the appellant foreshadowed that the matters may resolve.     

29. On 23 September 2013, seven days before the second trial was due to commence, the appellant plead not guilty to Trafficking in a Controlled Drug, but guilty to the alternative offence of Possessing a Controlled Drug and guilty to Supplying a Controlled Drug to a Child.

1. Bearing that history in mind, I consider that any discount would be miniscule.  Also, I consider that when one looks at the totality of the sentence, including the generous discount given in relation to the Magistrates Court matters, that such an omission by the sentencing Judge could not affect the sentence.

2. I dismiss that ground of appeal.

   Ground 4 – Element of commerciality

3. In his sentencing remarks the sentencing Judge stated:

   You told Mr Fugler that you began using methylamphetamine because you were unable to obtain relief from other pain medication.  You stated through your counsel that you had an allergic reaction to opiate medication when you were in the Flinders Medical Centre.  You further outlined to Mr Fugler that your use of methylamphetamine escalated after you noticed the drug acted in such a way as to allow you to perform other tasks and work in spite of being in pain, although I am also told that there is no known pharmacological basis for this claimed effect.  Your counsel has submitted on your behalf that your story is one of self-medication rather than commerciality.  I find it impossible to accept that submission for the following reasons.

   You have a history of drug use.  You began smoking cannabis at age 14 and in your teenage years you tried a range of other illicit substances including Rohypnol, trips, heroin, amphetamine and methylamphetamine.  Mr Fugler outlines that your use of amphetamine for some time before discovering the therapeutic effect of that substance indicates that you are likely to have developed a dependency on that substance assuming that your account of using 1 g per day for three years is accurate.

4. Mr Mead argues that by referring to the story as being one of “self-medication rather than commerciality”, the sentencing Judge has, by inference, treated the offending as one of a commercial nature.  I reject that argument.  The contest between submissions put by counsel and the Judge’s view of the facts was not one of commerciality or otherwise, but whether the reason for her using drugs was addiction or self-medication.  A plain reading of the sentencing remarks makes that clear and although he has erroneously used the word ‘commerciality’ that plays no part in his sentence. 

5. I would dismiss that ground of appeal.

   Conclusion

6. I would dismiss the appeal. 

7. BAMPTON J:      I would dismiss the appeal.  I agree with the reasons of David J.