R v Camarinha

Case [2018] SASCFC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CAMARINHA

[2018] SASCFC 118

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)

16 November 2018

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 - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

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

The respondent pleaded guilty to six counts of Trafficking in a Controlled Drug in breach of s 32(3) of the Controlled Substances Act 1984 (SA) and one count of Possessing a Prescription Drug in breach of s 18(3) of the Controlled Substances Act 1984 (SA). The respondent was sentenced to 6 years imprisonment. After a reduction of 40% on account of the plea and other mitigating factors, and taking into account the time the respondent had spent in custody and on home detention bail, the sentence was reduced to 3 years and 2 months, and a non-parole period of 1 year and 6 months was fixed. The sentencing Judge suspended the sentence, finding that good reason existed to do so.

The applicant seeks permission to appeal against the sentence imposed, and the decision to suspend that sentence.

Held by the Court, granting permission to appeal and allowing the appeal:

1.  The sentence imposed is manifestly inadequate.

2.  It was not open for the sentencing Judge to find that good reason existed to suspend the sentence of imprisonment.

3.  The respondent is to be resentenced to imprisonment for 4 years and 4 months with a non-parole period of 3 years and 6 months. Both the sentence and the non-parole period are to run from today or from such time he is taken into custody, whichever is the later.

Controlled Substances Act 1984 (SA) ss 18(3), 32(3); Criminal Law Consolidation Act 1935 (SA) s 340; Sentencing Act 2017 (SA) ss 54(1)(b), 54(2), 69(1), 71(2), referred to.
Everett v The Queen (1994) 181 CLR 295; House v The King (1936) 55 CLR 499; R v Nemer (2013) 87 SASR 168; R v Harkin (2011) 109 SASR 334; R v Osenkowski (1982) 30 SASR 212; R v McIntosh [2017] SASCFC 87; Dinsdale v The Queen (2000) 202 CLR 321; AB v The Queen (1999) 198 CLR 111; R v Kong (2013) 115 SASR 425; R v Young (2016) 126 SASR 41; R v Collins [2018] SASCFC 97, considered.

R v CAMARINHA
[2018] SASCFC 118

Court of Criminal Appeal:       Kourakis CJ, Blue and Lovell JJ

THE COURT:

Introduction

  1. Over a period of about two months the respondent trafficked 164.4 grams of methylamphetamine and approximately 2,000 ecstasy tablets. The respondent pleaded guilty to six counts of trafficking in a controlled substance,…

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R v Camarinha [2018] SASCFC 118
Case
[2018] SASCFC 118
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by the Crown against the sentence imposed on the respondent, who had pleaded guilty to six counts of trafficking in a controlled drug (methylamphetamine) and one count of possessing a prescription drug. The sentencing judge had imposed a suspended term of imprisonment of three years and two months, with a non-parole period of one year and six months, a $30,000 fine, and a condition of 300 hours of community service. The Crown argued that the sentence was manifestly inadequate.

The appellate court, comprising Kourakis CJ, Blue and Lovell JJ, was required to determine whether the sentence imposed by the sentencing judge was so lenient as to be outside the range of a proper exercise of discretion, thereby justifying intervention on a Crown appeal. This involved assessing the seriousness of the respondent's offending, the weight to be given to mitigating factors, and the overall proportionality of the sentence.

The court found that the sentencing judge had erred in her assessment of the respondent's role in the drug trafficking operation. The judge had rejected the respondent's evidence that his involvement was limited and that he had only recently begun trafficking, finding instead that the operation was sophisticated and for profit. Despite this finding, the court considered that the sentencing judge had not given sufficient weight to the objective seriousness of the trafficking offences, particularly the quantity and purity of the methylamphetamine involved, and the duration of the offending. While acknowledging the respondent's addiction to cocaine, lack of prior serious offending, and the psychological and character evidence presented, the court concluded that the sentencing judge had placed too much emphasis on these mitigating factors and had not adequately reflected the gravity of the commercial drug trafficking.

Consequently, the Full Court allowed the Crown's appeal, setting aside the original sentence. The court resentenced the respondent to a term of imprisonment of four years and six months, with a non-parole period of two years and six months. The fine of $30,000 and the community service order were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The respondent’s offending was clearly a commercial enterprise. The large quantity of drugs trafficked, the purity of the methylamphetamine (which varied between 60-80%), the length of time over which the trafficking occurred and the use of the encryption software on the mobile phones all point to a sophisticated drug operation, for profit. While the respondent was addicted to cocaine, he was not a user of methylamphetamine.The disputed facts hearing The respondent contested the factual basis on which he was to be sentenced. The disputed facts hearing concerned the extent of the involvement of the respondent in the trafficking offences and the provenance of the money the police found in a safe at the respondent’s premises. Both the respondent and the respondent’s father gave evidence. The sentencing Judge rejected the evidence the respondent gave about his role in the offending. The Judge found:You say that your selling to a wider group of people really only began with the transactions with the undercover police officer in June 2016. Until you transacted drugs with him, you had never sold amphetamines. On your account you received a commission of only $500 for each of the three sales of methylamphetamine to the officer and $1,000 for each of the two sales of ecstasy. Therefore in respect of the sales to the police officer of $29,500 worth of drugs, you say you received only $3,500.Your evidence is that you were trading by the use of encrypted BlackBerry phones and generally not in touch personally with your suppliers. You sold an encrypted BlackBerry phone to the police officer. You say that you did that because you became uneasy trading with him and you wanted to get him to organise his own purchases using the BlackBerry. He paid you $2,500 for the phone. In these ways you sought so minimise your involvement in the drug dealing [sic].… I do not accept your evidence that your drug dealing was limited in precisely the way that you say it was. I do not accept that you dealt exclusively with suppliers anonymously through the encrypted BlackBerry so that you never met your suppliers. I do not accept that every transaction involving your suppliers involved the anonymous dropping off of drugs by the supplier at nominated locations and the retrieval of cash. I think it much more likely that you dealt in person at least at times with your suppliers, just as you dealt in person with the police officer to whom you were providing drugs.There were three telephone intercepts suggesting drug transactions you were involved in with others on 20 July, 12 August and 31 August 2016. I do not accept that you sold the police officer the BlackBerry so as to make yourself redundant. I think it more likely that you effectively recruited, or at the least thought you were recruiting, the police officer into the drug trade via the mechanism of the BlackBerry so you could repeat the process with another customer.There were three encrypted BlackBerry phones found at your house when the police searched it on 8 September. I do not accept that you received a relatively small commission for the transactions with the police officer. The commissions you claim are a quite small proportion of the sums that you were being paid for the drugs…

Evidence

Evidence Before The Court

The respondent’s only prior criminal conviction was for a drink driving offence in 2010.Medical evidence Leah Tan, a psychologist, provided a report dated 8 December 2017 on the mental health of the respondent. Ms Tan met with the respondent on six occasions between 23 February 2017 and 15 November 2017. At the initial assessment on 23 February 2017, she considered that he exhibited “extremely severe” symptoms of depression, anxiety and stress. The respondent reported nightmares and flashbacks related to his incarceration after his arrest for the present offending. He also reported ongoing stress in relation to court proceedings manifested by hot flushes, excessive sweating and hyperventilation. He became socially withdrawn. The respondent reported to Ms Tan that his criminal actions were “fuelled by his own drug addiction”, and he indicated a desire to cut off his anti-social networks that were connected to his drug use, and re-focus on family. Ms Tan concluded that the respondent met the diagnosis for Adjustment Disorder with Mixed Anxiety and Depressed Mood. She was of the opinion that therapy sessions had been beneficial and would continue to be so. Ms Tan considered that a custodial sentence would adversely impact the respondent’s mental health, in particular his anxiety and depressive symptoms. She also emphasised the negative effect that imprisonment would have on the respondent’s business, and on his wife and their then-unborn child.Character references Eight character references were tendered. Those who gave the references included the respondent’s wife, relatives, friends and work colleagues. In general, the respondent’s referees were surprised to learn that he had committed the offences. The references disclose a supportive network around the respondent. The character references speak of a young man who is of good character, dedicated to his work and willing to emotionally support his family and friends.The sentence The respondent pleaded guilty to six counts of trafficking in a controlled drug, contrary to section 32(3) of the Controlled Substances Act 1984 (SA) (“the Act”), and one count of possessing a prescription drug, contrary to section 18(3) of the Act.[15] The trafficking offences each carry maximum penalties of a $50,000 fine or imprisonment for 10 years or both. The maximum penalty for the possession offence is a $10,000 fine or imprisonment for two years or both. [15] There was also one count of failing to store ammunition (maximum penalty of a $2,500 fine). The Sentencing Judge recorded a conviction without further penalty for this offence. The sentencing Judge imposed one sentence for the offending. The Judge’s starting point was a sentence of imprisonment for six years. Taking into account the appropriate discounts, the Judge imposed a term of imprisonment of three years and two months, with a non-parole period of one year and six months. The sentencing Judge found good reason existed to suspend the sentence on the condition that the respondent enter into a bond to be of good behaviour for three years. It was to be a condition of the bond that the respondent perform 300 hours of community service. The Judge also imposed a fine of $30,000.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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