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; R v C (2004) 89 SASR 270; R v O’Toole [2013] SASCFC 18; R v Mangelsdorf (1995) 66 SASR 60; R v Couper [2009] SASC 361; R v Wacyk (1996) 66 SASR 530; R v Jongewaard [2009] SASC 346; R v Lutze [2014] SASCFC 134; R v Nguyen (1989) 50 SASR 361, discussed.
R v Wheeler [2015] SASCFC 83; R v Kong (2013) 115 SASR 425; R v Young [2016] SASCFC 102; R v Irvine [2016] SASCFC 104, considered.

R v BRAY; R v MALATESTA
[2017] SASCFC 104
Court of Criminal Appeal: Vanstone, Kelly and Stanley JJ

VANSTONE J: I would dismiss each appeal for the reasons given by Stanley J.
KELLY J: I would dismiss each appeal for the reasons given by Stanley J.
STANLEY J.
Introduction
These are appeals against sentence.
Both appellants pleaded guilty to one count of trafficking in a controlled drug. In the case of Mr Bray, this related to 54 tablets of ethylone. In the case of Mr Malatesta, this related to 50 tablets of ethylone.
They were sentenced jointly.
Each appellant was sentenced to a term of imprisonment of two years, nine months and 18 days with a non-parole period of 15 months.
In each instance, the sentencing judge did not find good reason to suspend the sentence of imprisonment but ordered that the sentences be served on home detention pursuant to s 33BB of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act). In addition, each appellant was ordered to pay a fine of $2,500.
Each appellant appeals against the judge’s failure to suspend the sentence of imprisonment. Each appellant submits that the decision not to suspend is infected by both a process error and an outcome error.[1]
[1] R v Wheeler [2015] SASCFC 83 at [20].
Circumstances of the offending
In October 2015 police observed a number of young men leaving a nightclub and subsequently entering and exiting a hotel in the city. Police stopped the group and one of the men produced tablets suspected of containing illicit substances. A room occupied by the men at the hotel was subsequently searched. In the room police located 54 tablets containing ethylone which is commonly sold as ecstasy. The tablets were found in a bag marked with the name “F Bray”. Within a “Universal” store shopping bag police located 50 ethylone tablets. A purchase using a bank card linked to an account in the name of Davide Malatesta had been made at the Adelaide Universal store that day. Police obtained evidence from a CCTV camera inside the hotel which depicted Mr Malatesta in the hotel carrying the shopping bag on that day.
Some weeks later police attended at Mr Malatesta’s residence. A car key, which had been located by police within the Universal shopping bag, unlocked a car parked at the address. Found inside the car was a letter signed in the name Davide Malatesta. Handwriting analysis provided support for the opinion that the note had been written by Mr Malatesta. The note recorded that the 50 pills located within the hotel belonged to Mr Malatesta. In the bedroom occupied by Mr Malatesta at his residence police found cash totalling $7,200.
Both of the appellants’ offending was motivated by greed. They were not intending to traffic drugs to obtain funds to service a drug habit.
Personal circumstances of the appellants
Mr Bray
Mr Bray is a young man who was 18 years of age at the time of this offending. He had no criminal antecedents. He enjoys the benefit of a very supportive family. He is undertaking an apprenticeship with SA Water and is well regarded by his employer. He is not, and was not, addicted to drugs and since this offending has severed ties with acquaintances in the drug world. He cooperated with police and has kept out of trouble in the time since this offending took place.
Mr Malatesta
Mr Malatesta was 18 years of age at the time of this offence. He was 19 years of age at the time he came to be sentenced. He is in the fourth year of a plumbing apprenticeship. He has plans to start his own business. To that end he has purchased a van and tools. He has incurred a substantial debt as a result. He is one of five children and enjoys a positive relationship with his parents who are separated. He has no criminal antecedents. He is involved in playing sport.
Sentencing remarks
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
On the hearing of the appeal, counsel for Mr Bray applied for the Court to receive by way of fresh evidence a letter from Mr Bray’s employer and an affidavit of the appellant. This material was directed to the topic of difficulties which the home detention order posed for the performance of the appellant’s work duties, particularly in relation to travelling to parts of the state outside the metropolitan area for work.
The principles relevant to the admission of fresh evidence were considered by this Court in R v Dorning,[3] where the Court said:[4]
There is no doubt that in a proper case the Full Court has power to permit fresh evidence to be called before it. This is because s. 359 (a) of the Criminal Law Consolidation Act, 1935, as amended, provides that for the purposes of that Act the Full Court may, if it thinks it necessary or expedient in the interests of justice, order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial. In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible, but the Full Court will not necessarily decide whether the witness from whom the new evidence is sought is telling the truth: Orchard v. Orchard. See also Reg. v. Parks, cited in In re van Beelen. It was pointed out in In re van Beelen that applications under s. 359 to lead fresh evidence are never lightly granted.
[Citations omitted.]
[3] (1981) 27 SASR 481.
[4] (1981) 27 SASR 481 at 485 - 486.
In R v Smith,[5] King CJ, with whom Cox and O’Loughlin JJ agreed, said:[6]
The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, R v O'Shea and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.
[Citation omitted.]
[5] (1987) 44 SASR 587.
[6] (1987) 44 SASR 587 at 588.
That approach has been subsequently followed by Courts of Criminal Appeal in this state and other states.[7] However, the strictness of the position stated in Smith has arguably been modified in R v C,[8] where Doyle CJ, with whom White J agreed, said:[9]
That survey of the case law indicates that usually evidence of events occurring after sentence is passed is incapable of demonstrating an error by the sentencing judge that would enliven the power to set aside a sentence as erroneous, in exercise of the power conferred by s 353(4) of the CLCA. However, such evidence may establish that a matter that the sentencing court treated as material is now to be seen in a new light, or has a new significance, as a result of events occurring after sentence that were not anticipated and, usually, could not reasonably have been anticipated. In such cases, because the evidence of matters occurring after the passing of sentence will throw new and significant light on a matter relied on by the sentencing court, the evidence will be admitted and can be acted on. For present purposes it is not necessary to decide whether, in a case in which evidence of facts occurring after sentence is admitted, the court must be satisfied in the light of that evidence that the sentence passed can be said to be erroneous, or whether, having admitted the evidence, the court simply reconsiders the sentence in the light of all the circumstances including the further information.
[Citation omitted.]
[7]    R v C [2004] SASC 244 at [17] – [18], (2004) 89 SASR 270 at 275 - 276.
[8]    R v C [2004] SASC 244, (2004) 89 SASR 270.
[9]    R v C [2004] SASC 244 at [32], (2004) 89 SASR 270 at 279.
In my view, the evidence should not be received. The evidence from the employer could have been obtained with reasonable diligence for use at sentencing, but the appellant deliberately chose not to do so as he had decided to conceal from his employer the fact of his offending for fear that the information might have adversely affected his employment. Further, the evidence in the appellant’s affidavit goes to events which have occurred since the imposition of sentence. As is clear from R v C, it is usually not open to the Court of Criminal Appeal to intervene upon the basis of such evidence. The exception to that approach does not apply here. The fresh evidence sought to be adduced does not throw new and significant light on a matter relied on by the sentencing judge. Finally, the evidence from both the employer and from the appellant is such that, even if it was received, it would not have an important influence on the result of the appeal. The evidence of the employer makes it clear that the home detention orders do not pose any threat to the continuation of the appellant’s apprenticeship. It merely suggests that it would be advantageous to the employer if the appellant was not constrained by the terms of the home detention order.
Suspension
The power to suspend a sentence of imprisonment is conferred pursuant to s 38 of the Sentencing Act. In R v O’Toole,[10] Peek J, with whom Sulan J agreed, said:[11]
This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences. The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case. It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment. The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.
[Citations omitted.]
[10] [2013] SASCFC 18.
[11] [2013] SASCFC 18 at [50].
In R v Mangelsdorf,[12] this Court said that that a suspended sentence will only be justified rarely where an offender is being sentenced for drug trafficking, given the importance of the factor of deterrence in sentencing for such offending. To suspend the sentence would tend to erode the standard of punishment which the Court has set as appropriate for this offending. In R v Couper,[13] the Court said it is not easy to find good reasons to suspend a sentence for trafficking in ecstasy, it is serious offending which calls for a deterrent sentence which must be given greater weight than the personal circumstances of the offender.
[12] (1995) 66 SASR 60 at 70 – 71.
[13] [2009] SASC 361 at [30].
Nature of the appeal
A decision by a sentencing judge as to whether good reason exists to suspend a sentence of imprisonment involves the exercise of a discretion.[14] The Court will only interfere if an error of a House v The King[15] kind has been demonstrated. It is not for this Court to substitute its opinion as to whether good reason existed in this case. The Court will only interfere if it is persuaded that it was not open to the judge to find that there was not good reason for suspending the sentence.[16]
[14] R v Wacyk (1996) 66 SASR 530 at 535 – 536.
[15] (1936) 55 CLR 499 at 504 – 505.
[16] R v Jongewaard [2009] SASC 346 at [42]; R v Lutze [2014] SASCFC 134 at [48] – [49].
Process errors

The appellants each submit that, in the exercise of the judge’s discretion, a process error occurred. These are different errors in each case. The appellants submit that the process error in each case means that the sentencing discretion miscarried and the Court should set aside the orders for home detention and suspend the sentence.
In the case of Mr Bray, he submits that the judge failed to take into account a material consideration, namely, the impact that home detention would have on his employment. In the case of Mr Malatesta, he submits the judge also failed to take into account a material consideration, namely, his cooperation.
Starting with Mr Bray, the only evidence before the judge on the impact on his employment of not suspending a term of imprisonment was the home detention report, which stated:
Mr Bray stated that he commenced a four year apprenticeship as an electrician on 18/01/2016 with SA Water. Mr Bray works from the branch of SA Water situated in Williamstown and it is from here that he is assigned a different fully qualified tradesman each week with whom he must work and shadow. After he checks in at Williamstown, he then travels to appointed work sites which in the past have included Swan Reach and Mount Bold.
In tandem with the practical aspect of the apprenticeship, Mr Bray states that he is also required to attend Elizabeth TAFE for one week five days a week from 0800-1630 every six weeks, as he is undertaking Certificate III in Electro Technology.
The information that Mr Bray provided regarding his employment has not been verified. Mr Bray informed that his employer was not aware of his offending that should it be revealed, it would have an adverse impact on his apprenticeship. He feared that he may lose his job and sought advice from a fellow colleague who advised him not to disclose his current situation.
I do not consider there was any error on the part of the judge. At its highest, this evidence amounts to no more than a subjective apprehension on the part of the appellant that if his employer discovered his offending, he may lose his job. There was no evidence before the judge to indicate that there was any substance to this apprehension. In any event, the apprehension concerned the loss of employment if the employer learned of his offending. It was not evidence of the impact of not suspending the term of imprisonment. While submissions were made before the judge that home detention might constrain the appellant’s ability to travel for work, this is still the flimsiest of evidentiary material to be considered in the exercise of the sentencing discretion.
In any event, in the course of sentencing submissions the judge indicated that if the Court made a home detention order and this occasioned some problem with the performance by the appellant of his employment duties, it was open to come back to the Court.[17] I note in this regard the power conferred upon the Court pursuant to s 33BC(3) to vary a condition of a home detention order.
[17] AB 77.
I turn to Mr Malatesta. He submits that the judge failed to take into account a material consideration, namely, his cooperation. He submits that he cooperated in the investigation of offending by an acquaintance, Liam Hamood, by giving evidence before the judge that the drugs the subject of the charge against him had been supplied by Mr Hamood.
The policy of the law is to permit a discount in sentencing where an offender has cooperated with the authorities. Such a discount should be given whether the cooperation results in the apprehension of other offenders with respect to the particular crime in question or with respect to other crimes.[18] The principle was explained in R v Nguyen[19] where King CJ, with whom Cox and Millhouse JJ agreed, said:[20]
... It is the policy and practice of the Courts to make a reduction in the sentence which would otherwise be imposed on an offender who has co-operated with the authorities to the extent of incriminating co-offenders or others who have committed crimes. This practice is firmly rooted in policy considerations. It does not depend upon the personal merits of the offender. It may be, of course, that the offender's co-operation with the authorities is evidence of a change of heart and a determination to reform his life. Where that is so, the offender will ordinarily receive credit for his change of heart. But change of heart aside, an offender who is prepared to assist in the enforcement of the law by incriminating others receives a reduction in sentence as a reward for that conduct with the object of encouraging others to assist in law enforcement by implicating co-offenders and others who have committed crimes.
[18] R v C [2004] SASC 244 at [90], (2004) 89 SASR 270 at 284.
[19] (1989) 50 SASR 361.
[20] (1989) 50 SASR 361 at 362 – 363.
The appellant does not submit that this is cooperation of the kind towards which s 10A of the Sentencing Act is directed. Rather, here the appellant submits that this evidence constituted cooperation of the kind to which s 10(1)(h) is directed. Section 10(1)(h) provides that in determining sentence for an offence, the Court must have regard to the degree to which the offender has cooperated in the investigation of the offence. On its face, there must be some doubt at least that this evidence falls within the terms of s 10(1)(h). The evidence concerns the involvement of Mr Hamood in alleged offending, not cooperation by the appellant in relation to his offending. However, assuming that this evidence could be construed as a form of cooperation in the investigation of his offending, it is evidence that was given not by way of cooperation in the investigation of his offending but evidence given after a plea of guilty had been entered, in the course of giving evidence by way of mitigation to explain the presence of a large quantity of cash found in his bedroom. This is not cooperation that would attract any kind of public policy discount. It is telling in that regard that counsel appearing for the appellant before the sentencing judge did not submit that it should. That is hardly surprising, given that in evidence-in‑chief the appellant only volunteered Mr Hamood’s given name. He only provided his surname upon questioning by the sentencing judge. There is no process error. The exercise of the sentencing discretion did not miscarry. There was no error in the sentencing judge failing to reduce the term by any amount or for failing to suspend the sentence for this “cooperation”.
Did the judge err in failing to suspend?
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.