R v CHAN

Case [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

  1. STANLEY J:         I would dismiss the appeal.  I agree with the reasons of Bampton J. 

  2. 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.

  3. 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. 

  4. 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.

  5. 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…

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R v Chan [2015] SASCFC 114
Case
[2015] SASCFC 114
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, Mr Chan, who had pleaded guilty to possession of methylamphetamine with intent to supply and trafficking in ecstasy. The sentencing judge imposed a head sentence of 20 months imprisonment with a non-parole period of 10 months, after applying reductions. The appellant argued that the initial starting point for the sentence was manifestly excessive and that the judge erred in failing to suspend the sentence.

The legal issues before the Court of Appeal were whether the sentencing judge erred in setting a starting point for the sentence that was too high, and whether the judge was wrong to refuse to suspend the sentence. These issues were to be determined in light of the appellant's offending, which included committing the trafficking offence whilst on bail for the possession offence, and multiple breaches of home detention bail due to positive drug tests.

The Court of Appeal, comprising Stanley, Bampton and Lovell JJ, found that the sentencing judge had regard to all relevant matters when exercising her discretion not to suspend the sentence. The court held that the sentence imposed was within the available range for such drug offending and that the judge's decision not to suspend the sentence was a proper exercise of discretion. No error or miscarriage of justice was identified.

The appeal was dismissed, with the Court of Appeal upholding the sentence imposed by the sentencing judge.

Orders

Orders of the court

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Background

Background to the litigation

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.BackgroundPossessing 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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