R v CHAN - [2015] SASCFC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CHAN
[2015] SASCFC 114
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Bampton and The Honourable Justice Lovell)
17 August 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
Appellant pleaded guilty to possession of a controlled drug (methylamphetamine) with intent to supply and trafficking in a controlled drug (ecstasy) – after reductions the appellant was sentenced to a head sentence of 20 months with a non-parole period of 10 months – appellant complains that the starting point was too high and that the Judge erred in failing to suspend the sentence – where appellant committed trafficking offence whilst on bail for possession offence – where numerous breaches of home detention bail recorded due to positive drug tests – where appellant was given a chance to comply with home detention bail.
The Judge had regard to all relevant matters in arriving at the sentence and the decision not to suspend the sentence.
Held (dismissing the appeal):
1. The Judge had regard to all relevant matters in arriving at the sentence and the decision not to suspend the sentence.
2. The sentence was within the range for drug offending of this type.
3. It was within the Judge’s discretion not to suspend the sentence.
4. Appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(3), s 33I(1)(b), referred to.

R v CHAN
[2015] SASCFC 114
Court of Criminal Appeal: Stanley, Bampton and Lovell JJ

STANLEY J: I would dismiss the appeal. I agree with the reasons of Bampton J.
BAMPTON J: The appellant was charged with possession of a controlled drug with intent to supply when police located methylamphetamine in his car in February 2014.[1] Two and a half months later, in April 2014 whilst on bail for this offence the appellant’s mother became very concerned about his activities and contacted police. The appellant was charged with trafficking in a controlled drug after police searched his parents’ home and found ecstasy tablets.[2]
[1] Contrary to s 33I(1)(b) of the Controlled Substances Act 1984 (SA) (the CSA).
[2] Contrary to s 32(3) of the CSA.
The appellant pleaded guilty to both offences in the Magistrates Court and was committed to the District Court for sentence. The maximum penalty for each offence is 10 years’ imprisonment or a $50,000 fine, or both.
After reductions for guilty pleas, time in custody and an allowance for home detention bail the appellant was sentenced to a head sentence of 20 months’ imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA). The Judge fixed a non‑parole period of 10 months.
The appellant makes no complaint about the percentage reduction applied to the indicative starting point nominated by the Judge or the non-parole period being 50 per cent of the head sentence. The appellant complains that the Judge’s starting point for the sentence was manifestly excessive and that the Judge erred in failing to suspend the sentence.
Background
Possessing a controlled drug with intent to supply
At about 9.30pm on 16 February 2014, police officers stopped the appellant’s vehicle. The appellant immediately got out of the car and walked toward the police. Police thought that he was trying to divert their attention away from the car. This led to a search of the car whereupon police found a plastic container containing resealable bags, scissors and scales. Police also located three packages of methylamphetamine totalling 1.2 grams and a small quantity of a cutting agent. A mobile telephone found in the car contained messages suspected to be drug related.
The appellant was originally charged with trafficking in a controlled drug and released on bail to his parents’ address. On 10 October 2014, the Magistrates Court information was amended to allege possession of a controlled drug for supply (the February offending).
Whilst on bail for the February offending the appellant committed further drug offending brought to the attention of the police by the appellant’s mother.
Trafficking in a controlled drug (ecstasy)
On 25 April 2014, the appellant’s mother contacted police after finding pills and glass pipes in a box stored on the back veranda of the family home. Police attended and during a search of the home located ice pipes and five packages of ecstasy, each package containing 10 tablets. On analysis the 50 tablets weighed a total of 11.54 grams and contained 1.7 grams of MDMA.
The appellant was arrested and charged with trafficking (the April 2014 offending). He remained in custody from 26 April to 5 June 2014 until he was released on home detention bail. A condition of the appellant’s home detention bail agreement was that he would not consume any drug which was not medically prescribed. The appellant breached this condition by testing positive on five occasions for methylamphetamine, amphetamine and cannabis or THC (the five positive drug tests) between June 2014 and February 2015.
The appellant’s personal circumstances
At the time of sentencing the appellant was 27 years old.
The appellant left school halfway through year 11 due to difficulties at home, stemming from his poor relationship with his father. He completed an apprenticeship as a mechanic and was consistently employed after leaving school until he lost his job in 2013.
The Judge was told that the breakdown of a long term relationship in early 2013 was the catalyst for the appellant’s descent into drugs. The loss of that relationship and the difficult relationship with his father caused him to rely heavily on drugs. He started using ice and a month or so later lost his job because he could not function.
The appellant soon spent all his money on drugs and when he was first apprehended by police in February 2014 had begun to supply drugs to support his habit.
In March 2014, the appellant commenced a new relationship with a woman studying pharmaceutical science. The appellant found other employment but that ended upon his arrest in April 2014.
At the time of sentencing the appellant was studying Human Movement at the University of South Australia.
The Judge had regard to the report of a psychologist the appellant had consulted in relation to his anxiety and depression. The appellant told the psychologist about his difficulties with his parents, particularly his father, and that he had suffered depression following a failed relationship. The psychologist considered the appellant required 12 months of psychological therapy and that he was motivated to work through his issues and learn more appropriate coping skills.
The appellant also sought assistance from Centacare for his addiction. He had attended nine appointments between June 2014 and the date of sentence.
During the period of home detention bail the appellant was breath tested with negative results but, as referred to earlier, upon urine analysis he tested positive to drugs on five occasions. The appellant was prosecuted for breaching his bail agreement in relation to three of these positive drug tests. He was convicted and fined $200 for one breach of bail on 1 October 2014. On 10 December 2014, he was convicted of two breaches and discharged without penalty. The appellant has no other convictions for drug related offending. He was fined without conviction for disorderly behaviour in 2007 and was placed on a good behaviour bond for property damage in 2010.
The appellant has the positive support of his girlfriend and his parents, his relationship with his father having much improved.
Submissions on appeal
The appellant complains that:
·the head sentence starting point, prior to deductions for matters which were specific to the appellant, was excessive;
·both the head sentence and non-parole period imposed were excessive; and
·matters personal to the appellant were given insufficient weight in imposing penalty and especially as to the question of suspension.
The respondent submitted that the ultimate sentence of 20 months with a non-parole period of 10 months was not manifestly excessive in all the circumstances.
Further, the respondent submitted that all matters personal to the appellant were appropriately considered by the Judge in fixing the sentence imposed and in her consideration of the question of suspension.
Analysis
The appellant’s offending involved two separate incidents of drug related offending within two and a half months of each other. The April 2014 offending was committed whilst the appellant was on bail for the February offending.
It is apparent from the transcript of sentencing submissions that it was common ground between defence and prosecution that the April 2014 offending was of a commercial nature. That is, the appellant was trading in drugs to support his own habit.
The appellant’s mother’s statement reveals an untenable situation for someone providing a place of home detention. She describes people coming out of her son’s bedroom in the middle of the night in strange circumstances and people coming to the house at odd hours during the hours of the appellant’s curfew between 11.00pm and 5.00am.
It was put by the appellant’s counsel that the people coming at such odd hours were those who were supplying him with drugs. But, as submitted by the prosecutor, the opposite scenario could be that the people were coming to obtain drugs, the drugs that were located by the police when they attended in April 2014. It is apparent that being charged with the February offending did not deter him from engaging in further drug dealing. The April 2014 offending occurred at the appellant’s address of home detention and possibly during his curfew period.
The Judge’s sentencing remarks make clear reference to each matter personal to the appellant and matters in his favour. The Judge made particular reference to the appellant’s age, his limited prior convictions, his family, education and work background, his personal drug use and the circumstances in which it escalated prior to the offending in question, his early pleas of guilty, his prospects of rehabilitation and likelihood of reoffending. Reference was also made to matters in the appellant’s favour, namely, his intention to continue study, his consultation with a psychologist pursuant to a mental health plan, and the drug counselling he had attended. The appellant complains that the Judge did not acknowledge that he had successfully completed a good behaviour bond he entered into in 2010. The fact that the Judge did not specifically mention this does not mean it was overlooked. The Judge referred to the appellant being placed on a bond in 2010. As submitted by the respondent, the appellant’s compliance with the bond is apparent from his antecedent history.
What was of understandable concern to the Judge were the five positive drug tests between June 2014 and February 2015. As was apparent from submissions made on behalf of the appellant, his drug addiction took hold after he lost his job and his relationship in 2013. It is also patently obvious that that addiction compromised his ability to stop dealing in drugs and using drugs whilst on bail as evidenced by the April 2014 offending and the five positive drug tests.
In her remarks, the Judge said that the appellant’s offending told “a very sad story of the addictive qualities of the drugs” he had been taking and that his very rapid descent into drugs led to him supplying and trafficking in drugs.
During the hearing of the appeal it was suggested that the Judge should have utilised s 19B of the CLSA. The purpose of a supervised bail agreement pursuant to s 19B is to assess the defendant’s capacity and prospects for rehabilitation. The appellant had the opportunity to demonstrate his capacity to keep off drugs while he was on bail for the February offending and following his arrest in April 2014.
The Judge heard submissions on 11 December 2014, 17 February 2015, 23 February 2015 and 26 February 2015. It is significant that on 11 December in adjourning the sentencing submissions the Judge commented that the adjournment might be to the appellant’s advantage in that that he would have the opportunity to be drug tested again and hopefully obtain negative test results. The Judge also requested a report from the Department for Community Corrections concerning the appellant’s response to home detention bail and the drug testing regime. The Judge made it clear that if the appellant could demonstrate he could abstain from drugs she would take that fact into account in considering whether she could suspend the sentence.
The Judge heard submissions on 17 February but as the Home Detention Compliance Report was not available the matter was adjourned. The Judge reminded the appellant that during the period of the adjournment he must abide by all of the conditions on his bail agreement “including, of course, that you not consume any illicit substances and illicit substances include cannabis”.
On 23 February 2015, the appellant’s counsel told the Judge the appellant acknowledged he had tested positive to drug use on 12 February 2015 and on four other occasions between June 2014 and October 2014 as detailed in the Home Detention Compliance Report.
The appellant had had some months to demonstrate his capacity for rehabilitation through concerted efforts to cease his drug use. To his credit, he attempted to engage with Centacare and sought psychological assistance. Regrettably, each and every one of the urine drug tests he undertook was positive for drug use. The last test was performed in February 2015, only two weeks prior to sentencing.
The defendant committed the trafficking offence whilst on bail. He continued to breach his home detention bail agreement by testing positive to drug use. In weighing these matters against the background of trading in drugs, albeit at a low level, the Judge could not be confident that the appellant would comply with the terms of a suspended sentence bond.
The Judge had regard to all the matters she was required to have regard to in setting the head sentence and in considering the question of suspension, including the continuing use of methylamphetamine.
In my view, when all the matters personal to the appellant are considered together with the seriousness of the repeat offending and the five positive drug tests, the sentence was within the range of sentences available for drug offending of the type the appellant had engaged in.
The matters the Judge identified with respect to the appellant’s personal circumstances in arriving at the sentence were equally applicable to her consideration of whether or not good reason existed to suspend the sentence.
In my view, the Judge had regard to all relevant matters in arriving at her decision in the exercise of her discretion not to suspend the sentence.
Conclusion
The sentence imposed is within the range of sentences available for drug offending of this type and it was within the Judge’s discretion not to suspend the sentence. No error has been demonstrated nor miscarriage of justice identified in the sentence imposed.
I would dismiss the appeal.
LOVELL J: I would dismiss the appeal. I agree with the reasons of Bampton J.