R v Camarinha
[2018] SASCFC 118
•16 November 2018
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 118Court of Criminal Appeal: Kourakis CJ, Blue and Lovell JJ
THE COURT:
Introduction
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, each offence carrying a maximum penalty of a $50,000 fine or imprisonment for 10 years or both, and one count of unlawfully possessing a prescription drug, which carries a maximum penalty of a $10,000 fine or imprisonment for two years. After allowing for appropriate discounts the sentencing Judge imposed a sentence of imprisonment of three years and two months and set a non-parole period of 18 months. The sentencing Judge suspended the sentence, having found good reason to do so.
The Director of Public Prosecutions appeals the sentence imposed. The Director submits that, given the admitted facts, the sentence imposed was so low as to be out of the range of sentences available. Further, the Director submits that the offending was so serious that a finding that good reason existed to suspend the sentence was not open to the sentencing Judge. The Director submits that this is one of the rare and exceptional cases where this Court should interfere and impose a proper sentence.
Prosecution appeals against sentence
It is well established that leave should only be granted with respect to Crown appeals against sentence in cases that are “rare and exceptional”.[1] As Brennan, Deane, Dawson and Gaudron JJ said in Everett v The Queen:
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.[2]
[1] Everett v The Queen (1994) 181 CLR 295 at 299.
[2] Everett v The Queen (1994) 181 CLR 295 at 299.
However, the prosecution will be granted permission to appeal if it is necessary to enable the Court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”.[3]
[3] R v Nemer (2013) 87 SASR 168 at 172 [24]; R v Harkin (2011) 109 SASR 334 at 339 [19].
As King CJ observed in R v Hicks:
… prosecution appeals fall to be decided on somewhat different considerations than appeals by persons under sentence. When a person such as the present respondent has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating.[4]
[4] R v Hicks (1987) 45 SASR 270 at 273.
In R v Osenkowski King CJ observed:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case.[5]
[5] R v Osenkowski (1982) 30 SASR 212 at 212.
Recently Hinton J in R v McIntosh observed:
Accepting this, the content of the rare and exceptional test as articulated by King CJ in Osenkowski and Barwick CJ in Griffiths exemplify categories of case where strong reasons of public policy outweigh the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State. Thus, on a Crown appeal against sentence the Director must establish error in the House v The King sense and, in addition, persuade the Court that there exists such strong reasons of public policy which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed. Only then will permission be granted.[6]
(citations omitted)
[6] R v McIntosh [2017] SASCFC 87 at [16].
As with any appeal against sentence, error must be identified before an appellate Court may interfere. Kirby J in Dinsdale v The Queen observed:
As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.
As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court’s authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.[7]
(citations omitted)
[7] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340 [58]-[59] (per Kirby J).
In AB v The Queen Hayne J explained the significance of the difference between specific error and manifest excess or inadequacy to the task of this Court.[8] His Honour said:
[8] AB v The Queen (1999) 198 CLR 111.
The task of the Courts of Criminal Appeal in this country in hearing appeals against sentences is a limited task and it is governed by well-established principles that have been repeatedly stated. In particular:
"If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."
Such cases are, however, different from cases in which the complaint is that the sentence is manifestly excessive. There, as was said in House v The King:
"It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.[9]
(citations omitted)
[9] AB v The Queen (1999) 198 CLR 111 at 159-160 [129]-[130].
The approach of an appellate Court to the question of the adequacy of a sentence was discussed by Gleeson CJ and Hayne J in Dinsdale v The Queen.[10] Their Honours observed:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. [11]
[10] Dinsdale v The Queen (2000) 202 CLR 321.
[11] Dinsdale v The Queen (2000) 202 CLR 321 at 325 [6].
This Court in R v Peet observed:
In Dinsdale v The Queen Gleeson CJ and Hayne J observed that manifest inadequacy was a statement of conclusion that did not depend upon attribution of error. A sentence was either plainly inadequate or not plainly inadequate. Accepting this, it follows that to determine whether a sentence is or is not plainly inadequate, it is necessary to, in effect, repeat the sentencing task undertaken by the sentencing judge and, doing so, consider whether the sentence imposed by the judge did not lie within the permissible range such that it may be said to be plainly inadequate. Thereafter, if error is established, this being a Crown appeal, the Everett principles, the effect of which is summarized in the passage taken from R v Lean above, must be applied.[12]
[12] R v Peet [2018] SASCFC 91 at [6].
A prosecution appeal against the adequacy of a sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied. Both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.
The appellate court must first deal with the question of permission to appeal before determining whether the appeal should be allowed. The question of permission to appeal involves issues ranging beyond those involved in the merits of the appeal. This is particularly so when the original sentence has been suspended. As the Court observed in R v Kong:
This Court must first deal with permission. There are circumstances which will produce an injustice if a Crown appeal is allowed, even in a case in which the sentence is erroneously lenient. Factors such as a defendant’s personal circumstances, the defendant’s progress towards rehabilitation, the harshness of sentencing a person to custody who has been free in the community and has taken significant steps to rebuild his life are just some of the factors which are relevant to which the exercise of a residual discretion to refuse a Crown appeal.[13]
(citations omitted)
[13] R v Kong (2013) 115 SASR 425 at 444-445 [102].
However once permission to appeal is granted, s 150 of the Criminal Procedure Act 1921 (SA) precludes the Court from having regard to “double jeopardy” when resentencing.[14]
[14] R v Kong (2013) 115 SASR 425 at 432 [33]. R v Kong discussed the now repealed s 340 of the Criminal Law Consolidation Act 1935 (SA), which was in identical terms to s 150 of the Criminal Procedure Act 1921 (SA).
The facts
On five occasions between 28 June and 23 August 2016, the respondent sold illegal drugs to an undercover police officer. The drugs trafficked were methylamphetamine and ecstasy. The respondent, when communicating with the undercover officer, used a BlackBerry phone on which had been installed encryption software; this made detection impossible. Over the course of their dealings, the respondent also sold to the undercover officer an encrypted BlackBerry phone for $2,500. This was done for the express purpose of providing the undercover officer with a device that could also avoid detection.
On 8 September 2016, police searched the respondent’s house and located a further quantity of methylamphetamine. The following table summarises the dates, quantities and (where applicable) the amounts paid for the drugs.
Count Date Quantity and Price (where relevant) 1. 28 June 2016 and 15 July 2016
1003 pills containing 15.5 grams of methylenedioxymethamphetamine (MDMA or ecstasy) for $8,000 2. 15 July 2016 24.7 grams of crystalline powder containing 15.0 grams of pure methylamphetamine for $4,500 3. 24 July 2016 and 6 August 2016
1030 pills containing 15.7 grams of MDMA for $8,000 4. 17 August 2016 28.0 grams of crystalline powder containing 22.3 grams of pure methylamphetamine for $4,500 5. 23 August 2016 28.0 grams of crystalline powder containing 22.3 grams of pure methylamphetamine for $4,500 6. 8 September 2016 83.7 grams of crystalline powder containing 66.9 grams of pure methylamphetamine
The methylamphetamine the subject of the sixth count on the table above was located during the search by police of the respondent’s property. As the sentencing Judge stated, had those drugs been on-sold, the respondent would have made a profit in the order of $13,500.
In addition to the methylamphetamine located, the police also found:
·$80,990 cash in a safe located in a hidden compartment behind a mirror;
·$950 cash inside a sunglasses case;
·$780 cash inside a bum bag;
·two handwritten tick-lists;
·digital scales; and
·three vials containing steroids, which comprised the count of Possessing a Prescription Drug.
After the police search the respondent was placed under arrest, and he remained in custody until 15 September 2016, when he was released on home detention bail. The respondent remained on home detention bail until he was sentenced.
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…
The respondent also submitted that there was a lack of evidence to support the position that the money found was entirely a result of drug trafficking. A $50,000 wedding gift from the respondent’s father and the respondent’s income from gainful employment were said to be explanations for the money or at least for most of it.
The prosecution submitted that all of the money located in the safe, or most of it, was the proceeds of the respondent’s trafficking activities. The prosecution argued that the respondent was simply attempting to minimise his culpability. The sentencing Judge found:
I am willing to accept that you received $50,000 cash about the time of your wedding in March 2015 and I am willing to accept that you received it from your father-in-law. I do not accept, however, that that cash remained intact in your concealed safe as you say it did. You had a substantial drug habit in 2015 and from December 2015 you were selling drugs. I find that the proceeds of your drug dealing were placed in the safe and became inextricably mixed up with the cash that you had been given at your wedding. You must have used a substantial amount of cash to pay for the drugs that you were consuming yourself. You say variously that you were consuming about one or at times two eight balls of cocaine per week which was costing you between $1,500 and $3,000 a week.
The sentencing Judge largely rejected the evidence of the respondent, both as to the way he conducted his trafficking and as to the provenance of the money. The Director relies on these finding as evidence of the respondent minimising his role in the offending. The Director submits that the findings were relevant to the respondent’s lack of remorse.
The respondent’s personal circumstances
The respondent is 29 years old. He was born in Adelaide and has three older sisters. He is of Portuguese descent, his parents having moved to Australia from Portugal approximately 32 years ago. He has a good relationship with his parents. After high school, he successfully enrolled in a marine biology degree at university. About one year after beginning these studies, he changed paths, and went into the construction industry as a manager. He remains in that industry today as a construction supervisor, and has been with the same company since 2011. He was, at the time of sentencing, overseeing about 50 to 60 tradesmen, and 25 different projects.
The respondent met his now wife when the pair were in high school. They eventually married in March 2015. They have two mortgages, one over an investment property and the other over the family home. The respondent’s wife became pregnant via in vitro fertilisation (“IVF”). Their child was born on the day before the respondent was sentenced.
The respondent used drugs, predominantly cocaine and ecstasy, from his late teenage years up until the time of his arrest in September 2016. It began as social usage, but by the time of his arrest he reported that he was using two “8-balls” of cocaine per week, as well as a number of ecstasy tablets. He reported that he never smoked cigarettes and does not consume alcohol.
The respondent spent seven days in custody, from 8 September 2016 until his release on home detention bail on 15 September 2016. From that time until the time of sentence, on 6 July 2018, he was on home detention bail, a period of approximately one year, nine months and two weeks; his compliance with home detention was good.
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.
The Director does not allege that the sentencing Judge made a process error when sentencing. The Judge correctly stated the facts and personal circumstances of the respondent. The Judge stated:
This was a serious course of drug offending. There are five counts of trafficking in controlled drugs which relate to the transactions with the undercover police officer for which you were paid $29,500. Count 9 relates to the three ounces of methylamphetamine which you had proposed to sell to the undercover agent. Count 10 relates to the possession of steroids. These transactions do not stand alone. You had been trafficking in drugs from about December 2015, a period of about 10 months. You were not selling drugs merely to support the addiction you developed. You were engaged in commercial drug dealing for profit. I do not know how much of the almost $83,000 found in your house was directly from drug dealing, but I do not accept the reliability of your estimate that only 5 to $10,000 was due to dealings other than those with the police officers and in that respect, the transactions with the police officer you received only commissions amounting to $3,500.
Having determined the final sentence the sentencing Judge turned to the question of whether good reason existed to suspend the sentence. He stated:
There remains the extremely difficult question of suspension. Quite understandably the prosecution opposes suspension. This is a reasonably extensive course of drug trafficking partly for the purpose of financial gain. The prosecution points to authorities which say that personal and general deterrence assume great importance in this sort of drug dealing and it is exceptional to be able to suspend the sentence.
On the other hand, your counsel points to your youth and the fact that there is good reason to think that you have rehabilitated yourself. He points to your pending family responsibilities, but I give no weight to that. He points to the fact that you have no prior convictions.
While I do not find this balancing exercise an easy one, I do think your youth and rehabilitation and the other mitigating matters do amount, in combination, to good reason to suspend the sentence.
I will suspend the sentence if you enter into a $1,000 bond to be of good behaviour for three years. During two of the three years you will be under the supervision of the Community Corrections officer. You will have to obey that officer's direction as to drug relapse treatment.
In addition, you have to perform 300 hours of community service in two years.
Submissions
The Director does not assert that any error of principle has been committed. Rather, he submits that the head sentence and non-parole period imposed are manifestly inadequate. It is so inadequate, he submits, that to allow the sentence to stand would undermine public confidence in the ability of the Court to play its role in deterring crimes of this type. Put another way, to allow the sentence to stand, he submits, would shake public confidence in the administration of justice.
The Director submits that the starting point of the sentence for offending of this kind was manifestly too low. No issue is taken with the discounts applied by the sentencing Judge. However, the Director submits that starting at six years imprisonment for the offending, which must be characterised as mid-level commercial dealing, falls outside the available range of sentences discussed in R v Young.[16]
[16] R v Young (2016) 126 SASR 41.
The Director submits that the level at which a person deals in illicit drugs is central to an assessment of the culpability of that offender. As Kourakis CJ (with whom Vanstone and Stanley JJ agreed) in R v Young stated:
In defining a class of offending, an intermediate court of appeal will focus on the primary characteristics of that offending. In the case of commercial trafficking of drugs, the particular drug, its quantity, the motive for the offending, and the level in the drug distribution hierarchy of the offender may serve to define the “objective factors of the ordinary case”.[17]
[17] R v Young (2016) 126 SASR 41 at 55 [38].
Kourakis CJ later observed:
Broadly it can be said that the large commercial trafficking offence was intended to apply to those offenders at the very apex of the drug distribution hierarchy and their immediate agents. The base trafficking offence was intended primarily to catch street traders and their immediate suppliers. The intermediate commercial trafficking offence was intended to apply to traders who receive drugs from the apex and who distribute them through networks to the base traffickers.[18]
[18] R v Young (2016) 126 SASR 41 at 62 [61].
The more significant the offender’s role in the illicit drug trade, the greater the need for deterrence. As Kourakis CJ stated in R v Young:
The offending of a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction is at the lower end of the scale of objective seriousness. Other street dealers may not use at all or may be only occasional or social users who engage in street trading primarily to fund a comfortable, usually hedonistic, lifestyle. Other street-level dealers, motivated by profit alone, may sell drugs directly to the end user but not use drugs at all.
Sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit.
…Sentences approaching the 10 year maximum for the base trafficking offence must be reserved for those middle order dealers, and persistent or recidivist street-dealers.[19]
[19] R v Young (2016) 126 SASR 41 at 62-63 [65]-[68].
Further the Director points to the concern about the impact of drug trafficking on the community. The Director submits that this Court has repeatedly emphasised that methylamphetamine can have particularly negative consequences for the user and the community generally. This knowledge, combined with the deterrent power of a sentence, are said to be factors central to arriving at an appropriate punishment. As was stated by this Court in R v Kong:
There continues to be concern about the prevalence of drug abuse in our community. Since Mangelsdorf, the variety of illicit drugs available has increased. Twenty years ago, heroin was a primary concern and was considered to be the most harmful of illicit drugs. The position has changed with the promotion of methylamphetamine and the availability of a variety of illicit drugs, all of which are addictive and have very harmful effects. Research and knowledge about the effects of drugs known as “speed” and “ice” has developed. The so-called party drugs are readily available. The manufacture and importation of drugs is prevalent. The abuse of illicit drugs causes great social harm. The treatment and the management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, nor surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers.
…
The range of penalties for drug offences must recognise that there is a concern in the community about the effect of illicit drug consumption, particularly upon the younger generation. Further, many of those who are involved at the higher end of drug trafficking are also involved in other criminal conduct. Many crimes of violence are committed in a background of drug offending.[20]
[20] R v Kong (2013) 115 SASR 425 at 443 [90], [92].
As Hinton J (with whom Peek and Stanley JJ agreed) observed in R v McIntosh:
His trafficking cannot be characterised as that of an ordinary street level dealer. The quantities that he was able to supply and the revenue generated makes this plain. As a supplier his culpability is greater, and in my view considerably so, than that of the street level dealer who sells drugs to support his own addiction. As a corollary of this, his contribution to the harm methamphetamine causes to individuals and the community is greater. The sentence imposed upon him must deter others who would do the same in addition to adequately punishing the respondent for what he has done.[21]
[21] R v McIntosh [2017] SASCFC 87 at [166].
In R v McIntosh, this Court observed that four counts of methylamphetamine trafficking, two involving 14 grams of methylamphetamine, and two involving 28 grams (one ounce), could each individually attract sentences in the range of two to three years.[22]
[22] R v McIntosh [2017] SASCFC 87 at [171].
The Director submits that the following matters demonstrate the seriousness of the offending: the length of time over which the offending took place; the charges were not isolated as trafficking had been ongoing for 10 months; the use of sophisticated encryption devices; the amount and purity of the drugs; the tick-lists that were located; and the profit made by the respondent. These factors, it is submitted, demonstrate, as the Judge found, that the respondent was not simply trafficking with the undercover police officer. Taking into account all matters the Director submits that the sentence imposed was manifestly inadequate.
Concerning the issue of suspension, the Director submits that the seriousness of the offending as discussed, and in particular the respondent’s position in the drug trafficking hierarchy, meant that it was not open to the sentencing Judge to find that “good reason” existed to suspend the sentence.
The sentencing Judge highlighted, in exercising the discretion to suspend, the respondent’s youth, his prospects of rehabilitation, and other mitigating matters. The Director submits that, although the respondent was young (at the relevant time he was 26), he was not an unsophisticated or immature man. This is evident in the sophisticated methods he pursued when trafficking in drugs. The Director submits that, while there was evidence to support the fact that the respondent was no longer addicted to cocaine, the Judge should not have been satisfied that the respondent would not re-involve himself in commercial drug offending. The Director submits that the false evidence given in the disputed facts hearing was indicative of the respondent’s failure to accept his culpability or show remorse for his actions. It is also submitted that the mitigating circumstances could not overcome the circumstances weighing against suspension.
The Director concedes that the $30,000 fine was not an insignificant aspect of the penalty imposed and cannot be ignored in assessing the level of punishment and deterrent effect.
The respondent submits that the head sentence imposed and decision to suspend, whilst lenient sentencing options, are nonetheless not so exceptional as to justify intervention by this Court. Each of the factual matters accepted by the sentencing Judge were correctly considered, including the respondent’s youth, his lengthy period in gainful employment, and the evidence of his rehabilitation, including his desire to start a family.[23] This, the respondent submits, could ensure that he is unlikely to lapse into drug addiction. The respondent had also undertaken rehabilitation by attending drug counselling. The report of the psychologist demonstrated that he had been diligent in his attempts at rehabilitation. A custodial sentence would interfere with his progress.
[23] Which was not accepted as a mitigating factor by the Judge as the respondent and his partner proceeded in attempting to have a child after he was arrested.
The respondent describes the $30,000 fine, and the imposition of 300 hours community service, as matters relevant to the deterrent value of the sentence. It is not alleged that the sentencing Judge took into account irrelevant matters or failed to consider relevant matters. Rather, the respondent submits that the sentencing Judge took into account matters that were relevant, and when combined, could reasonably be described as exceptional in the circumstances, justifying suspension.
The respondent submits that permission to appeal should be refused. He submits that the suspension of the sentence and the respondent’s release on the good behaviour bond are powerful reasons why permission should be refused. As the Court observed in R v Kong:
Where the defendant is serving a sentence which has been suspended, the sentencing court should hesitate to impose a custodial sentence which would frustrate the earlier sentence and deprive the defendant of the opportunity to rehabilitate himself, in particular when he has demonstrated that he is on the road to successful rehabilitation.[24]
[24] R v Kong (2013) 115 SASR 425 at 444 [98].
The respondent submits that the Court’s residual discretion to consider the respondent’s rehabilitation in the period between sentence and this appeal gives further reason to refuse the application for permission to appeal.
Discussion
It is necessary to consider first whether the sentence imposed was manifestly inadequate before turning to the question whether permission to appeal should be granted.
While there cannot be an appeal against a starting point, it is a critical step in arriving at the ultimate sentence to be imposed. It is the stage of the sentencing process at which comparison with the maximum penalty for the offence, and sentences imposed in other cases, is most readily made.[25] The Director points to the starting point of six years imprisonment as demonstrating error.
[25] R v Collins [2018] SASCFC 97 at [47] (per Lovell and Doyle JJ).
Recently, as discussed above, this Court has stressed the damaging and frequently all-consuming effects of illicit drugs like those trafficked by the respondent. In R v Young, this Court gave some guidance as to the range of sentences available to a sentencing judge for those offenders who can be termed “street-level dealers”. As Kourakis CJ stated:
Sentences approaching the 10 year maximum for the base trafficking offence must be reserved for those middle order dealers, and persistent or recidivist street-dealers. [26]
[26] R v Young (2016) 126 SASR 41 at 63 [68].
The Director does not submit that this passage establishes a sentencing standard for those dealers above the level of non-persistent or non-recidivist street dealers. What does fall from R v Young, however, is that drug offenders properly characterised as middle order dealers or persistent or recidivist street-level dealers will, in the ordinary case, be given a head sentence that has a higher starting point than that of a street level dealer.
In this case it was not suggested that the respondent was a street level dealer. The respondent trafficked methylamphetamine in significant quantities that could have been “cut” several times over and ecstasy in significant quantities. In total, 2033 ecstasy pills and 80.7 grams of methylamphetamine were sold over the two-month period. A further 83.7 grams of methylamphetamine was located in the search of the house. The methylamphetamine was of a purity of approximately 60% on the first occasion, and approximately 80% on the next three occasions. A purity reading of 80% is particularly high.
The respondent utilised a sophisticated telecommunications network. The drugs were all moved at very short notice, including on at least two occasions within 24 hours of the respondent receiving an order from the undercover officer. Put differently, there were no real or significant barriers to the acquisition of substantial quantities of illicit substances. The undercover officer’s text messages indicated on occasions that he was planning to on-sell those drugs.
The respondent had been dealing in drugs for a period that began, at the latest, in December 2015, until his arrest in September 2016. The charges represented a course of conduct and, although the respondent can only be penalised for the charged acts, the offending must be viewed in this context. Tick-lists located by police during the search of the respondent’s residence indicated that the respondent was dealing with people other than the undercover officer. The sentencing Judge correctly rejected the respondent’s evidence that he was only dealing with the undercover officer.
The respondent is an intelligent young man who was accepted into a tertiary marine biology course. Before completing that course he chose to apply his skills to the building industry in which he worked as a construction supervisor, which included leading a team of tradespeople across 25 building sites. He was financially successful and had no need to supplement his lawful income with the proceeds of crime. He engaged in the illegal drug trade for commercial profit (albeit partly to finance his cocaine addiction) and in order to do so established connections with persons who had the organisational capacity to supply him with substantial amounts of high purity methylamphetamine. Penalties having a strong deterrent effect are necessary to dissuade persons with the respondent’s skill and ability from making effective contributions to criminal organisations which distribute illicit drugs.
Having regard to the foregoing factors, the starting point of six years was too low leading to a sentence which was manifestly inadequate. We consider that, if permission to appeal is to be granted and the respondent is to be resentenced, a starting point of eight years imprisonment is appropriate for the offending.
Adopting the same discounts as the sentencing Judge, this would leave a head sentence of four years and four months imprisonment. Before considering the non-parole period, it is necessary to consider whether it would be appropriate to suspend the sentence of imprisonment under the Sentencing Act 2017 (SA). This is because the question whether the discretion is exercised has important consequences when fixing a non-parole period.
In deciding whether to suspend the sentence, the Judge had to answer the question whether in all of the circumstances good reason to suspend the sentence existed. At this point of the sentencing process, we accept that factors personal to the respondent weigh more heavily in the exercise of discretion. In particular, his young age, relative absence of previous convictions and his good prospects of rehabilitation are all relevant.
There were a number of positive indicators in the respondent’s personal circumstances that the sentencing Judge rightly considered. There had been a clear period of abstinence from drug use, and the respondent appeared on all of the evidence to be attempting to move away from the life that brought him before the courts. One of those life changes was the birth of his baby, which, although not a mitigating factor, was evidence to the sentencing Judge of a change in mentality.
A decision to suspend a sentence of imprisonment is one that should only be exercised in exceptional circumstances in the case of serious drug offending, in which factors of general deterrence take on heightened significance. In R v Fowler, Gray and Layton JJ said:
Properly understood, Doyle CJ’s remarks in Manglesdorf were intended to convey that in certain cases, particularly those involving drug-trafficking crimes, general deterrence can be expected to weigh so heavily in the balance of the sentencing judge’s discretion, it will be an exceptional case where good reason can exist to justify suspending a term of imprisonment.[27]
[27] R v Fowler [2006] SASC 18 at [57].
We acknowledge that the respondent’s prospects for rehabilitation are good. However, his repeated serious and sophisticated offending preclude any community based sentencing options. In our view, considering all the circumstances of the offending, and notwithstanding the personal situation of the respondent, it was not open for the sentencing Judge to find good reason to suspend the sentence. This Court must send a strong message of deterrence. To allow suspension in a case with offending as significant as the present would erode the standards of punishment set down by this Court.
The new sentencing regime permits the Court to consider whether a sentence of imprisonment should be carried out on home detention. A home detention order is now a custodial sentence,[28] as distinct from the position under the Criminal Law (Sentencing) Act 1988 (SA). It would not be appropriate to allow the period of imprisonment to be served in this way. The seriousness of the offending is such that to permit the respondent to serve the sentence at a residence would be likely to adversely affect public confidence in the administration of justice.[29]
[28] Sentencing Act 2017 (SA) s 69(1).
[29] Sentencing Act 2017 (SA) s 71(2)(a).
If the respondent is to be resentenced, he would fall to be sentenced as a serious repeat offender in accordance with s 54 of the Sentencing Act 2017 (SA). This is because on at least three separate occasions, he committed a serious drug offence (which includes trafficking in a controlled drug). Accordingly, where a sentence is not suspended,[30] s 54 requires the imposition of a non-parole period that, save for exceptional circumstances,[31] must be not less than four-fifths of the head sentence.[32] It was not suggested either before the sentencing Judge or on appeal that exceptional circumstances existed. If the respondent is to be resentenced, we would fix a non-parole period of three years and six months imprisonment.
[30] Sentencing Act 2017 (SA) s 52 (2)(a).
[31] Sentencing Act 2017 (SA) s 54(2).
[32] Sentencing Act 2017 (SA) s 54(1)(b).
The respondent should be resentenced to imprisonment for four years and four months with a non-parole period of three years and six months.
The respondent had been fined the sum of $30,000, of which he has paid approximately one third. The imposition of a fine will often play a proper part in the sentencing of drug traffickers. However, it should not be thought that the payment of a fine is a means of escaping imprisonment. We have considered imposing a fine equal to the amount already paid by the respondent; we have concluded that it is not necessary in the circumstances. Accordingly, the amount of the fine already paid by the respondent will be returned to him.
The respondent has now been out in the community for a period of three months. He has undertaken approximately one third of his community service, and has paid approximately one third of his fine as at late September. He has clearly undertaken what the courts have already required of him. To reverse this decision and to cancel his right to be at liberty, when he has already taken steps to rebuild his life, is a significant matter. However, we consider that the gravity of the respondent’s offending overwhelms his personal circumstances. We consider that strong reasons of public policy exist which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State. The respondent must serve the term of imprisonment imposed.
Order
Permission to appeal is granted. The appeal is allowed. The sentence imposed is set aside.
The respondent is sentenced to imprisonment for four years and four months with a non-parole period of three years and six months, the head sentence and non-parole period to run from today or from such time he is taken into custody, whichever is the later.
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