R v BURTT

Case [2018] SASCFC 5

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BURTT

[2018] SASCFC 5

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker)

7 February 2018

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - RECOGNISANCE RELEASE ORDER

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

A jury found the respondent guilty of attempting to import a border controlled precursor contrary to s 11.1(1) and s 307.13(1) of the Criminal Code (Cth). The charge related to the respondent’s involvement in an attempted importation of ephedrine and/or pseudoephedrine into Australia. Powder weighing 1.9 kilograms was sewn into clothing and despatched in parcels from India. The Indian authorities who intercepted the parcels did not conduct sufficient testing to determine the quantity of the substances in the powder.

The respondent had a history of drug use and a conviction in 2005 for manufacturing and possessing amphetamines for sale. Information provided to the sentencing Judge indicated that since the offending the respondent had begun work as a cleaner and a volunteer, started a Diploma of Counselling, changed her peer group and no longer used drugs.

In August 2017, the sentencing Judge indicated that he would sentence the respondent to a head sentence of imprisonment of four years. However, his Honour did not complete the sentencing process due to uncertainty concerning the power to suspend a sentence under the Commonwealth sentencing regime. The matter was adjourned to allow for clarification.

In September 2017, the respondent was sentenced to imprisonment of two years and nine months, with an order that she be released forthwith upon entering into a recognizance in the sum of $300 to be of good behaviour.

The Commonwealth Director of Public Prosecutions sought permission to appeal that sentence on the basis that it was manifestly inadequate having regard to: the nature and circumstances of the offending, the principles of general and personal deterrence and the requirement for national consistency in sentencing standards for federal offences. The Director also contended the sentencing Judge erred in ordering that the respondent be released forthwith under recognizance.

Held per Parker J (Kourakis CJ and Stanley J agreeing), refusing permission to appeal:

1.  Whilst in most cases it is undesirable for a judge to indicate one sentence and then impose another, the fact that the sentencing Judge revised his view as to the appropriate sentence does not, of itself, demonstrate an error in sentencing.

2.  Whilst consistency is an importance aspect of sentencing, what is required is not numerical equivalence but rather consistency in the application of sentencing principles. The interstate District Court sentencing decisions relied on by the Director had not been reviewed by an appellate court and in each case the…

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R v Burtt [2018] SASCFC 5
Case
[2018] SASCFC 5
Decision Date

CaseChat Overview and Summary

The applicant, the Crown, sought permission to appeal against a sentence imposed on the respondent, who had been found guilty of attempting to import a border-controlled precursor contrary to the *Criminal Code*. The precursor substances, ephedrine and/or pseudoephedrine, were contained within clothing in parcels despatched from India. The respondent had arranged the importation with the assistance of co-offenders and had researched and obtained materials for the conversion of these substances into methamphetamine, transferring significant funds overseas. The respondent had prior drug-related convictions from 2002, for which her sentence was suspended.

The legal issues before the court were whether the sentence imposed was manifestly inadequate, failing to adequately reflect the nature and circumstances of the offending, the principles of deterrence, punishment, and denunciation, and national consistency in sentencing for federal offences. Additionally, the court considered whether the sentencing judge erred in ordering the respondent's immediate release. The court was required to determine if the alleged errors constituted a process or outcome error, and in the context of a Crown appeal, whether public policy considerations outweighed the public interest in protecting individuals from having their liberty placed in jeopardy twice.

The court reasoned that while the head sentence imposed on the respondent was at the lower end of the sentencing range, it did not demonstrate an error of principle that would undermine public confidence in the administration of justice. The court noted the lack of information regarding the precise quantity of the precursor substance, which limited the utility of comparisons with interstate cases. Furthermore, the court found no disparity between the respondent's sentence and those imposed on her co-offenders. The decision to order the respondent's immediate release on a recognizance order was considered a reasonable exercise of discretion, given her personal circumstances.

Permission to appeal was refused.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks permission to appeal on the following grounds:1.The sentence imposed was manifestly inadequate as: (a)the sentence fails to adequately reflect the nature and circumstances of the offending, including the maximum penalty for the offence;(b)the sentence fails to adequately reflect the principles of general and personal deterrence, punishment and denunciation;(c)the sentence does not adhere to the requirement for national consistency in sentencing standards for federal offences.2.The learned sentencing judge erred in ordering that the offender be released forthwith.Background The jury found the respondent guilty of attempting to import a border controlled precursor contrary to s 11.1(1) and s 307.13(1) of the Criminal Code. The precursor substances were ephedrine and/or pseudoephedrine. Powder weighing a total of 1.9 kilograms was sewn into female clothing contained in two parcels that were despatched from India. The two parcels were intercepted by the Indian authorities. They permitted one parcel to be forwarded to Australia after it was repacked without the precursor substances. That parcel was delivered to an Adelaide address by an Australian Customs officer posing as a courier driver. The other parcel was retained by the Indian authorities. Although the Indian authorities conducted sufficient testing to determine that the parcels contained ephedrine or pseudoephedrine, the testing did not reveal the percentage of those substances contained in the powder. Thus, the precise weight of the border controlled precursors is unknown. However, it is not necessary to prove the weight of the substance to secure a conviction under s 307.13(1) of the Criminal Code. The essence of the prosecution case was that during November and December 2013 the respondent arranged for the importation of the border controlled precursor from India with the assistance of her co-offenders, Karen Inkster, Vincent Arrowsmith and Christopher Bryant. The parcel was delivered to Mr Arrowsmith’s home. The respondent had sought the assistance of Ms Inkster in obtaining contact details for her foreign supplier of ephedrine or pseudoephedrine. Ms Inkster facilitated contact between the respondent and the supplier who was located in Nigeria. The supplier was known as ‘Monkey’. Thereafter, the respondent made frequent contact with Monkey by way of SMS messages. In addition to the SMS messages, documents found on the respondent’s laptop computer provided further evidence of her involvement. This material has been referred to as the ‘suburbia’ documents. The respondent also conducted research about, and obtained materials for, the conversion of pseudoephedrine or ephedrine into methamphetamine. The respondent transferred funds to a person in Togo nominated by Monkey. Mr Bryant also transferred funds. The total amount transferred exceeded $30,000. The respondent’s personal circumstances The respondent was aged 42 years at the time of the offence and is now aged 46 years. She has a number of convictions for road traffic offences and other minor offences with the last recorded in 2007. Her only drug related conviction was in 2005 when she was sentenced by the District Court of South Australia to imprisonment for two years with a non-parole period of 15 months upon her conviction for taking part in the manufacture of a controlled substance and possessing amphetamines for sale. The sentence was suspended upon her entering into a good behaviour bond for two years. Those offences had occurred in 2002.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although the head sentence imposed on the respondent tended to the lower end of the available range, it does not display an error of principle that would shake public confidence in the administration of justice if it were allowed to stand. While the sentences in the interstate cases referred to by the applicant provide only limited assistance, there is no obvious disparity between those sentences and that imposed on the respondent. That point is reinforced by the complete lack of information in this case about the quantity of the precursor substance. There is also, in my view, no disparity between the respondent’s sentence and those imposed on her co-offenders. I also consider, notwithstanding that this was a serious drug offence, that the decision to order the respondent’s immediate release on a recognizance order was a reasonable exercise of the sentencing discretion in light of her particular circumstances. Conclusion I would refuse permission to appeal.

Ratio Decidendi

Legal Principle Established

Mr Bryant had pleaded guilty to one count of dealing with money, being the sum of $10,000 or more, where there was a risk that the money will become an instrument of crime contrary to s 400.6(2) and s 400.1 of the Criminal Code. The offence carried a maximum penalty of five years imprisonment or a fine of $51,000 or both. Mr Bryant was 32 years of age at the time of sentencing. He had worked as a jockey but had been banned for using drugs. His antecedents were primarily driving offences and he had no relevant prior convictions. He became involved in the offending due to his relationship with the respondent. Mr Bryant had facilitated the transfer of funds overseas on behalf of the respondent by physically attending the post office on two occasions. The Judge imposed a head sentence of 12 months imprisonment and declined to discount that sentence in recognition of his guilty plea because his Honour was not satisfied that it amounted to a display of genuine contrition but was instead a recognition of the inevitable. Mr Bryant was released immediately upon entering a recognizance to be of good behaviour and under supervision for 12 months. Consideration General principles In ordinary circumstances permission to appeal will be granted where it is reasonably arguable that the impugned sentence shows error.[10] Because sentencing involves the exercise of a judicial discretion, the alleged error must be of the type identified by the High Court in House v The King.[11] Thus, there must either be a process error or an outcome error.[12] [10] R v Parenzee (2007) 101 SASR 456 at 461, Doyle CJ, Anderson and Kelly JJ agreeing.[11] (1936) 55 CLR 499.[12] R v Horstmann [2010] SASC 103, (2010) 269 LSJS 42; R v Lutze (2014) 121 SASR 144 at [45]-[47], Vanstone and Parker JJ.Crown appeals When the Crown seeks permission to appeal against a sentence, a further requirement must be satisfied. The Court must be persuaded that there are public policy considerations that outweigh the public interest in protecting persons from having their liberty twice placed in jeopardy.[13] For that reason the High Court held in Everett v The Queen that leave should be granted for a Crown appeal against sentence ‘only in the rare and exceptional case’.[14] That reflects the reluctance of common law to expose a defendant to double jeopardy by being sentenced on a second occasion for the same crime.[15] [13] R v Koch [2015] SASCFC 31 at [23], Parker J, Kourakis CJ and Bampton J agreeing. [14] (1994) 181 CLR 295 at 299.[15] Malvaso v The Queen (1989) 168 CLR 227 at 234, Deane and McHugh JJ; DPP (Vic) v Bright (2006) 163 A Crim R 538 at 542-543. The relevant principles were summarised by the Court of Criminal Appeal (comprising five judges) in R v Payne as follows:Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained.[16][16] (2004) 89 SASR 49 at 70, Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ.The change in the Judge’s views