R v Becker

Case [2005] SASC 186

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BECKER

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Layton)

26 May 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY

Appeal against sentence - appellant, pleaded guilty to possessing 4-hydroxybutanoic acid (fantasy) for sale; unlawful possession of $950; two counts of possessing methylamphetamine for sale and breach of bail - sentenced to total of seven years’ imprisonment, non parole period of four years fixed.

Appeal on grounds that sentencing Judge erred in failing to assess the appellant’s drug addiction as a possible mitigating factor; erred in failing to give adequate weight to the appellant’s prospects for rehabilitation; erred by not reflecting the appellant’s ineligibilty for the court-sanctioned drug rehabilitation programme; and that the sentence was manifestly excessive in all the circumstances.

Consideration of sentencing judge's obligation to provide oral sentencing remarks - consideration of appellant's personal and criminal antecedents - dicussion of drug addition as a possible mitigating factor in sentencing - consideration of appellant's rehabilitation prospects - discussion of Drug Court program and appellant's eligiblity for such program - consideration of totality principle as contained in section 18A of the Criminal Law (Sentencing) Act 1988 (SA) - consideraiton of whether sentence imposed manifestly excessive.

Held:  drug addition may have possible mitigatory affect on sentence - appellant's plea to major indictable offences render him ineligible for Drug Court program -ineligiblity for Drug Court program not a relevant matter to consider when sentencing - sentencing judge erred in final step of application of totality principle but error in the circumstances of no consequence - sentencing judge did not fail to have regard to relevant considerations, or give consideration to irrelevant material - no error of sentencing principle identified - sentence imposed within the range - appeal dismissed.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Mill v The Queen (1998) 166 CLR 59; R v Rossi unreported CCA SA 20 April 1988; Postiglione v The Queen (1996) 189 CLR 295 at 304 and 308; Shrubsole v Rodriuez (1978) 18 SASR 233; R v Leach (2003) 226 LSJS 393; R v Huggett (2001) 212 LSJS 102; R v Proom (2003) 85 SASR 120; R v Tran (2000) 211 LSJS 479; R v McMillan (2002) 81 SASR 540; H, T v Police [2005] SASC 143; Johnson v The Queen (2004) 205 ALR 346; R v Place (2002) 81 SASR 395; R v Mangelsdorf (1995) 66 SASR 60; R v Plaister and Graham (2001) SASC 391,…

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Details
AGLC
R v Becker [2005] SASC 143
Case
[2005] SASC 186
Decision Date

CaseChat Overview and Summary

In R v Becker, the appellant challenged his sentence, arguing it was manifestly excessive. He pleaded guilty to several drug-related offences and was sentenced to a total of seven years’ imprisonment, with a non-parole period of four years. The appellant’s criminal activities spanned from October 2002 to March 2004 and involved the possession and sale of various illicit drugs, including fantasy and methylamphetamine. The court was required to determine whether the sentence imposed was manifestly excessive, whether the trial judge failed to consider relevant mitigating factors, and if the sentence was disproportionate in light of the totality principle.

The court examined the totality principle and whether the cumulative effect of the sentences for multiple offences warranted a reduction. It noted that the appellant had engaged in continuous criminal activity while on bail, which was an aggravating factor. The court found that the sentence was within the range of sentences that might be expected for the nature and extent of the offending. The appellant’s drug addiction, while noted, was not considered a significant mitigating factor given the seriousness of the offences and the need for deterrence. The court also highlighted the appellant’s participation in rehabilitation programs while in custody as a positive factor.

The court concluded that the sentence imposed was not manifestly excessive and that the trial judge had considered relevant factors in arriving at the sentence. The appeal was dismissed, and the sentence was upheld. The decision reaffirmed the settled approach to sentencing drug-related offences, emphasising the importance of deterrence and the need to consider the totality of the offending.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was sentenced to a total term of imprisonment of seven and a half years.The Facts At 5.20am on 5 October 2002 the appellant was stopped at a random breath testing station. The police discovered 74 grams of fantasy in a bottle in the lower shelf of the driver’s door. On searching the appellant police found in addition to $65 and small change in his jacket, a discrete package containing $950 in cash. The street value of fantasy was said by the police to be between $3 and $6 for one millilitre and $1000 to $2000 for a litre. There was no “street valuation” evidence based on weight, but counsel agreed that 74 grams of fantasy was the equivalent of a volume of 150 millilitres. So the value of the 74 grams was between $450 and $900. On 31 January 2004 the appellant was under police surveillance. That afternoon, police raided a motel room in Adelaide. This room was occupied by the appellant and another person. Police discovered three vacuum-sealed bags of powder, each respectively containing 1.14, 1.21 and 1.15 grams of methylamphetamine. When police searched the appellant, they discovered a bag containing 1.31 grams of methylamphetamine. The appellant by his plea accepted that two of the bags discovered in the room, as opposed to on his person, contained amphetamines that were for sale. The January 2004 offending involved a weight of approximately 2.5 grams of methylamphetamine. At about 12.59am on 20 March 2004, police officers observed a motor vehicle with only one headlight operating. The appellant was the driver of that vehicle. The police stopped the vehicle and, in the course of an ensuing inspection, discovered drug paraphernalia. Upon searching the appellant, the police discovered two small bags of methylamphetamine paste containing 1.91 grams and 0.62 grams of methylamphetamine respectively. The March 2004 offending involved a weight of 2.53 grams of methylamphetamine. The street price of one gram of pure amphetamine was said by the police to be $200 and 0.1 of a gram known as a point would sell for $50. On 2 April 2004, the appellant was granted home detention bail. The bail agreement included a condition that the appellant would not consume alcohol or non-prescribed drugs. On 27 June 2004, the appellant tested positive for methylamphetamine and codeine. The appellant admitted the breach of the conditions of the bail agreement.The Sentence In respect of the offences of possessing fantasy for sale and of unlawful possession, the learned sentencing Judge imposed the one sentence of imprisonment of four and a half years. Had it not been for the plea of guilty, the sentence would have been five years. In respect of the two counts of possessing methylamphetamine for sale, the Judge imposed the one sentence of imprisonment of four and a half years. Had it not been for the pleas of guilty, the sentence would have been six years. The Judge summarised the sentence orally to the appellant. He then delivered written reasons. In his written reasons he observed:Methylamphetamine and Fantasy (ie 4-hydroxybutanoic acid) are regarded as middle of the road drugs of dependence. The information about the harmful effects of these drugs is now such that I consider it inappropriate to characterise them so benignly. However, that is for another case and another court.An immediate custodial penalty is required to address the gravity of this offending. The starting place is within a range of 5 to 7 years imprisonment (see R v Le (2001) 212 LSJS 208 per Doyle CJ at para 13; R v Mangelsdorf (supra); R v C (1998) 72 SASR 391). It is an aggravating feature of the January and March 2004 offences that they were committed whilst the defendant was on bail for the October 2002 offences.I will fix one penalty for the October 2002 drug offence and the offence of unlawful possession pursuant to s18A of the Criminal Law (Sentencing) Act 1988 (SA). They are part of the one criminal enterprise. In respect of the January and March 2004 drug offences I will also impose a separate single penalty pursuant to s18A of the said Act. I will deal with the bail offence separately.SentenceFor the October 2002 offence of possessing 74 grams of Fantasy for sale and the offence of unlawful possession of $950.00 there will be a sentence of 4½ years imprisonment. If it were not for the plea of guilty after the voir dire, the sentence would have been 5 years.For the two January and March 2004 offences of possessing methylamphetamine for sale there will also be a single sentence of 4½ years imprisonment. Again if it were not for the plea of guilty the sentence would have been 6 years. I have given here a full discount for the early pleas of guilty. However, I started at 6 years because there are two offences and they are aggravated by having been committed whilst on bail for the October 2002 offences but then ameliorated by the early plea.On the offence of breaching bail, a conviction was recorded but no further penalty imposed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is to the credit of the appellant that he has now taken the opportunity to involve himself in rehabilitation programs whilst in gaol. It is hoped that for the sake of himself, his family and the community that he continues to engage in programs to enhance his skills and his ability to cope when released. Nonetheless, when all factors are taken into account, it cannot be said that the Judge imposed a sentence that was manifestly excessive.Conclusion In the present case, it has not been demonstrated that the Judge failed to have regard to relevant considerations, or that he gave consideration to irrelevant material. No error of sentencing principle has been identified. The sentence imposed was within the range of sentences that might be expected for the offending. This appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Lesley Work, a psychologist employed with the Drug and Alcohol Assessment and Counselling Service, provided two reports: one before the appellant was in custody and the other after. At the time of Ms Work’s first consultation in June 2004, she described the appellant as in a parlous state. By the time of her second report in September 2004, Ms Work was of the opinion that the appellant was presenting as a different person:Mr Becker’s general appearances showed a man that although he had gained a significant amount of weight, looked fit and healthy. While his speech was still somewhat rapid, he was not thought disordered and showed no clinical sign of drug use. He was focussed, showed insight into his current situation and stated he was willing to accept the consequences of his past actions. Mr Becker indicated that he had spent some time thinking about his future and some of the challenges ahead of him before he could fully embrace a drug and crime free lifestyle.Consideration of Issues ArisingDrug Addiction – Mitigatory Counsel for the appellant submitted that the Judge failed to assess the appellant’s drug addiction as a possible mitigating factor. Counsel drew attention to the decision of this Court in R v Proom[5]. That case concerned a 20-year-old heroin addict who had engaged in extensive dishonesty offending. The proceeds of the offending were used to maintain her habit. Doyle CJ observed:[6]Addiction to drugs, when it leads to crime, is not an excuse for the purposes of sentencing. Nor is addiction of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate. Nevertheless, addiction may be a relevant circumstance. It might explain that the offender is not a professional criminal, or did not make a calculated decision to offend. Addiction will often be relevant to prospects of rehabilitation, but might indicate that those prospects are not good. In the end, if addiction is of any significance, it is to be considered in the context of all of the circumstances of the case. The seriousness of the offending, or the need for a deterrent sentence, may outweigh any mitigatory effect that addiction would have. One cannot say that addiction is always simply irrelevant, nor can one say that addiction can never be a mitigating circumstance.This is the approach that has been taken in this State. When individual cases are examined it will sometimes be found that the nature and circumstances of the offence are such that the court has taken the view that even though addiction is a factor, other considerations mean that it cannot have any mitigating effect. Other cases will be found in which it appears that the sentence must have been reduced to reflect the fact that the offending was not the result of a calculated commercial decision, or to encourage what seemed to be strong prospects of rehabilitation linked to real progress in breaking addiction.The approach in this State is well settled. It is consistent with the approach taken in other Australian jurisdictions. That is a solid reason not to depart from it. This is not simply a stubborn adherence to precedent. There is no reason of principle to do so, nor is this approach inconsistent with the provisions of the Criminal Law (Sentencing) Act1988 (SA).[5] (2003) 85 SASR 120.[6] (2003) 85 SASR 120 at [43].