R v Bray; R v Malatesta - [2017] SASCFC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRAY; R v MALATESTA
[2017] SASCFC 104
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Stanley)
21 August 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
These are two appeals against sentence.
Both appellants pleaded guilty in the District Court to one count each of trafficking in a controlled drug contrary to s 32 of the Controlled Substances Act 1984 (SA). Bray’s plea related to 54 tablets of ethylone. Malatesta’s plea related to 50 tablets of ethylone. Both appellants were motivated by greed, and were not intending to traffic to service a drug habit. They were each sentenced to a term of imprisonment of 2 years, 9 months and 18 days, with a non-parole period of 15 months, to be served on home detention. Each appellant was also ordered to pay a fine of $2,500.
Each appellant contends that there has been both an outcome error and a process error in the sentences passed. Both appellants contend that the learned sentencing judge erred in failing to find good reason to suspend their respective sentences. In the case of Bray, he contends that the learned sentencing judge erred in failing to take into account a material consideration, namely the impact a home detention order wold have on Bray’s employment. In the case of Malatesta, he contends that the learned sentencing judge erred in failing to take into account a material consideration, namely that Malatesta gave sworn evidence identifying the person from whom he had acquired the drugs in question. Malatesta contends that this evidence amounts to cooperation with the investigation.
At the appeal hearing, Counsel for Bray sought the Court’s permission to adduce further evidence relating to the difficulties that the home detention order placed on Bray’s employment.
Held, per Stanley J, Vanstone and Kelly JJ agreeing:
1. The further evidence should not be received (at [19]).
2. Neither appellant has demonstrated a process error made by the sentencing judge at ([26], [30]).
3. A decision by a sentencing judge as to whether good reason exists to suspend a sentence of imprisonment involves the exercise of a discretion. No House v The King error has been demonstrated (at [31]).
4. Appeals dismissed (at [1], [2], [32]).
Criminal Law (Sentencing) Act 1988 (SA) s 10A, s 10(1)(h), s 33BB; Controlled Substances Act 1984 (SA) s 32, referred to.
R v Dorning (1981) 27 SASR 481; R v Smith (1987) 44 SASR 587;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] SASCFC 104
Decision Date: 21 August 2017

CaseChat Overview and Summary

The case of *R v Bray; R v Malatesta* involved appeals against sentences imposed by a District Court judge for drug trafficking offences. The appellants, Bray and Malatesta, were each sentenced to two years and nine months imprisonment, with a non-parole period of 15 months, and a substantial fine. Both sentences were ultimately ordered to be served by way of home detention. The appeals were heard by Vanstone, Kelly, and Stanley JJ of the Supreme Court of South Australia.

The primary legal issue before the Full Court was whether the sentencing judge erred in failing to suspend the sentences of imprisonment imposed on the appellants. Mr Bray also sought to introduce fresh evidence on appeal. The court was required to consider whether, in light of the circumstances of the offending and the personal circumstances of each appellant, there was a demonstrable error in the sentencing judge's determination that there was no good reason to suspend the sentences.

The Full Court reasoned that while suspension of sentences for drug trafficking offences is permissible, no error had been demonstrated in the sentencing judge's finding that good reason to suspend did not exist. The judge had properly balanced the mitigating factors, such as the appellants' personal circumstances and positive prospects for rehabilitation, against the seriousness of the profit-driven offending and the significant need for general deterrence. The court affirmed the principle that street-level drug dealing, particularly when motivated by lifestyle enhancement rather than addiction, is viewed as objectively serious. The court found that the sentencing judge's approach was open to him and did not disclose a *House v The King* error.

Consequently, the appeals were dismissed. The court upheld the sentencing judge's decision not to suspend the sentences, finding that the home detention orders, combined with the fines, adequately addressed the aims of punishment and deterrence. The application for fresh evidence by Mr Bray was not explicitly addressed in the provided text, but the outcome of dismissing the appeals suggests it was either refused or did not alter the final decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The judge set out the circumstances of the offending and the personal circumstances of each appellant. In the case of Mr Malatesta, the judge, having heard evidence from the appellant and his mother found that the cash located by police in his bedroom was not the profits of any criminal offending. In imposing sentence, the judge said:[2][2] Sentencing Remarks of his Honour Judge Stretton [DCCRM-16-2013], pp 3-5. You advise that it was greed and hanging out with the wrong crowd which motivated you to offend and although you used ecstasy recreationally prior to offending, you have not used it since.You and your premises were assessed as suitable to serve your sentence on home detention in terms of the criteria addressed by the report.By way of early guilty pleas for which you are both entitled to credit, you are each entitled to up to 30% discount on the sentence and you will receive that full discount.You were both intending to commence to traffic this very harmful drug into the community as street-level dealers. I accept the submission that you had not undertaken any sales as yet. The court regularly sees, however, the destruction wrought by illicit drugs such as these. Your offending is, therefore, serious and both personal and particularly general deterrence must play a part in any sentence.I have regard to everything put on each of your behalf. I also have regard to the fact that somebody obviously sold you these drugs and encouraged you to get into this trouble and you might just reflect on whether that person is really a friend, given where you are standing now and given the fact that they do not seem to be charged with any offence at this stage.As to you Mr Bray, from a starting point of four years imprisonment, that will reduced [sic] by the full 30% to two years nine months and 18 days. There will be a non-parole period of 15 months.As to you Mr Malatesta, also from a starting point of four years imprisonment, that will be reduced by the full 30% to two years nine months and 18 days, also with a non-parole period of 15 months.As to you Mr Bray, the totality of all the circumstances, in particular the seriousness of this type of offending and the need for deterrence outweighs the matters urged on your behalf, such that there is not good reason to wholly suspend the sentence on a bond to be of good behaviour. However, Mr Bray, given all the matters urged on your behalf, including your age and your absence of convictions and all the positive matters submitted on your behalf, combined with your positive prospects of rehabilitation, if combined with a substantial fine of $2,500, the court is of the view that a home detention sentence will meet all the relevant sentencing aims, including adequate punishment and the important consideration of deterrence, such as the home detention criteria as outlined by Doyle J in the recent case of The Queen v Dell and Dell can albeit only just be met.Accordingly, you will serve your sentence entirely on home detention. As you will understand, you will be allowed to work and do other things. It does not mean you are at home the whole time.As to you, Mr Malatesta, in the totality of the circumstances, the seriousness of this type of offending and the need for deterrence, those factors outweigh the matters urged on your behalf such as there is not good reason to wholly suspend the sentence on a bond to be of good behaviour.However, similarly to the case of Mr Bray, given all the matters urged on your behalf, including your age and prior absence of convictions and your positive prospects of rehabilitation, when combined with a substantial fine of $2,500 the court is of the view that a home detention sentence will meet all the relevant sentencing aims, including adequate punishment and the importance of deterrence such that the home detention criteria, as I have mentioned that were outlined by Doyle J recently can also, albeit just, be met.I direct that your fine may be paid from moneys seized by police with the remaining moneys however to be returned to you.You will each be subject to electronic monitoring as set out and recommended in the home detention suitability report and be subject to conditions 1 – 14 as set out in that report.Application for the admission of fresh evidence on appeal by Mr Bray

Decision

Reasons for decision

STANLEY J (dissent)

Each appellant submits that in all the circumstances there was an outcome error in the failure of the judge to suspend the sentences of imprisonment. While the authorities recognise that a court can suspend a sentence for an offence contrary to s 32 of the Controlled Substances Act 1984 (SA), no error has been demonstrated in the approach of the judge in finding that good reason did not exist to do so in these cases. The sentencing judge had regard to the personal circumstances of each of the appellants including, in particular, those factors that mitigated their offending and demonstrated that the prospects for their rehabilitation were favourable. Those matters had to be balanced against the fact that this was profit-driven offending, rather than a case of a desperate addict who traffics in small amounts of a drug only to feed his addiction. The judge found that the crimes for which they were to be sentenced were serious and the need for deterrence so significant that good reason to suspend the sentences could not be found. It was open to him to do so. This Court has frequently emphasised the importance of general deterrence in sentencing for drug trafficking.[21] The Court has recognised that street-level dealing can range in its objective seriousness. Offending by people who may not use at all or may be only occasional or social users and who engage in street trading primarily to fund a comfortable, hedonistic lifestyle is viewed as being of greater objective seriousness than offending by people whose addiction has left them largely impoverished who trade in very small amounts only to feed that addiction.[22] A House v The King[23] error has not been demonstrated.[21] R v Kong [2013] SASCFC 15 at [90], (2013) 115 SASR 425 at 443.[22] R v Young [2016] SASCFC 102 at [65]; R v Irvine [2016] SASCFC 104.[23] (1936) 55 CLR 499.Conclusion For these reasons, I would dismiss the appeals.

Ratio Decidendi

Legal Principle Established

Established by:

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