R v Clancy - [2016] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLANCY
[2016] SASCFC 4
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Kelly and The Honourable Justice Blue)
16 February 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
Appeal against sentence. The appellant pleaded guilty in the District Court to the offence of trafficking in a controlled drug in a prescribed area. She also pleaded guilty to the offence of having in her possession personal property, namely $560.00 cash, reasonably suspected of having been obtained by unlawful means. The appellant was sentenced to a term of imprisonment of three years with a non-parole period of 10 months. At the time of sentencing, the appellant was 20 years of age, had no prior convictions and had undertaken significant steps toward rehabilitation.
Whether the sentence imposed by the District Court Judge was manifestly excessive. Whether the Judge failed to properly consider the question of suspension.
Held per the Court (allowing the appeal):
1.       The head sentence was manifestly excessive considering the fact that it was by a young first offender and at the lower end of the scale of offending encompassed by the maximum penalty. The offending was designed to subsidise the appellant’s own drug addiction.
2.       The Judge failed to have proper regard to the circumstances giving rise to there being good reason to suspend and erred in his conclusion that considerations of general deterrence meant that there was not good reason to suspend.
3.       There was very good reason to suspend the sentence of imprisonment. The immediate custodial sentence imposed by the Judge would completely disrupt the treatment programs being undertaken by the appellant.
4.       Appellant resentenced to a term of imprisonment of two years and six months with a non-parole period of 10 months. Sentence suspended on the appellant’s entry into a good behaviour bond.
Controlled Substances Act 1988 (SA) s 32(2a); Summary Offences Act 1953 (SA) s 41(1); Criminal Law (Sentencing) Act 1988 (SA) s 38(1), referred to.
Bright v Police (2008) 101 SASR 519; R v Kane [2003] SASC 237, considered.

R v CLANCY
[2016] SASCFC 4
Court of Criminal Appeal: Gray, Kelly and Blue JJ
THE COURT.

This is an appeal against sentence.
The defendant and appellant, Kayla Anne Clancy, pleaded guilty to the offence of trafficking in a controlled drug in a prescribed area.[1] She also pleaded guilty to the offence of having in her possession personal property, namely $560.00 cash, reasonably suspected of having been obtained by unlawful means.[2]
[1] Controlled Substances Act 1988 (SA) section 32(2AA).
[2] Summary Offences Act 1953 (SA) section 41(1).
The defendant was sentenced in the District Court on 26 November 2015 to the one term of imprisonment of three years in respect of both offences. This term was imposed after the Judge made a reduction of 30 per cent on account of her early pleas. The Judge fixed a non-parole period of 10 months. The Judge considered that there was not good reason to suspend the sentence.
Following the hearing of the appeal, on 15 December 2015, the Court ordered that the appeal be allowed, the sentence imposed by the District Court be set aside, the defendant be resentenced to a term of imprisonment of two years and six months, a non-parole period of 10 months be fixed and that the sentence be suspended on the defendant’s entry into a good behaviour bond. Our reasons follow.
Introduction
As at 26 November 2015, the defendant was aged 20 years. At the time of the offending, she was unemployed and in receipt of a youth allowance. She is the eldest of 11 children and from a young age was in the care of her grandmother’s sister at Freeling, pursuant to a guardianship order. The defendant has never met her father and has not seen her mother for over six years. The defendant moved to Adelaide as a teenager. She spent time sleeping rough and would occasionally visit her grandmother’s home in Elizabeth. When aged 14 years she was introduced to the use of crack cocaine and by 17 years of age had developed a drug addiction. She commenced dealing in illicit drugs to support her own drug use.
On 1 April 2015, the defendant was apprehended after selling drugs in the beer garden of Checkmates Restaurant at Pirie Street, Adelaide. Sixty four 3,4-methylenedioxymethylamphetamine (MDMA) tablets and $560.00 in cash were found in her possession. The tablets weighed 13.8 grams and contained 3.05 grams of pure MDMA. The defendant was before the Court without any prior conviction.
In September 2015, the defendant was referred by her general practitioner from Nunkuwarrin Yunti to Fiona Fallo for psychological treatment. Ms Fallo is a qualified clinical psychologist also practising at Nunkuwarrin Yunti. The purpose of the referral was for the treatment of depression, for support to abstain from drug use and for therapy to assist with destructive relationship issues. Fortnightly treatment commenced in early October 2015 and five treatment sessions had been completed prior to the defendant being sentenced. A further four treatment sessions had been scheduled to be completed by the end of December 2015. This was then to be followed by a reviewed mental health treatment plan, which would involve a further 18 treatment sessions in 2016.
Ms Fallo provided a report dated 23 November 2015:
Psychological treatment sessions have been informed by an Interpersonal Therapy framework and I have utilized techniques from Cognitive Behavioural Therapy and Acceptance and Commitment Therapy. Sessions have included psycho-education and relaxation training to increase the capacity to reflect on internal experiences. Ms Clancy has begun to learn how to observe her thoughts and feelings and manage them more skilfully. Ms Clancy reports a significant reduction in substance use and complete abstinence from methamphetamine use. She has been supported to clarify valued ways of being and to set clear goals to materialize these values. Ms Clancy has secured stable accommodation which has as a requirement the ongoing contact with support workers. Ms Clancy reports very good working relationships with support workers and in particular with worker Ms Fostiak.
As a result of Psychology treatment sessions Ms Clancy has developed more insight and is better able to monitor herself, identify behavioural and emotional markers of stress and adjust her behavior accordingly. Ms Clancy has described times when she has been able to take steps to deliberately avoid substance use. Ms Clancy has been able to clearly articulate what she values in herself, what she is striving for and how she is committing to the actions required to behave consistently with these goals.
[Emphasis added.]
A report dated 16 November 2015 was provided to the Court by the defendant’s case manager with Baptist Care. The report outlined the considerable achievements the defendant had made in the six months leading to 16 November, including the following:
Financial barriers: Kayla is currently on a Youth Allowance. She is on a payment plan for court fines, she has in place EzyPay to cover her rent, and Centrepay for her household utilities. This leaves her very little to cover food and personal items, and we have seen a financial counsellor from Uniting Communities who has gone through budgeting with her. Kayla is linked with a Job Services Provider and is very keen to gain employment so as to increase her income. Kayla recently gained some self employment as a cosmetics and skin care consultant.
...
Drug and alcohol: Kayla has been linked with Aboriginal Connections Programme, an aboriginal specific service run under the umbrella of DASSA drug and alcohol services. Kayla and her worker Steve have discussed reducing her drug use and the option of formal rehabilitation. Kayla has already significantly reduced her drug use on her own. Aside from drug and alcohol counselling, Kayla has been linked with psychological counselling, and will gain insight into her use of drugs as self-medication to deal with past issues which have effected her emotionally.
[Emphasis added.]
In the opinion of the case manager:
Kayla shows enormous resilience in living through what she has. I have been shocked and saddened by experiences she has described, she relays these with composure but with grief and frailty behind that composure.
I have also seen her in such a compassion towards others, she shows respect, kindness and loyalty to people that she considers friends who have also done it tough. This does not come from a good upbringing, it comes from Kayla herself, and it says so much about the person that she could be if she had been born into a caring and supportive family environment, with all the opportunities that would have afforded her.
I am aware that Kayla is facing serious criminal charges. I provide this support letter not to excuse her behaviour but to explain a little of her history as well as her circumstances at that time – living on the street, and not in receipt of any welfare allowance.
She tells me that she herself was using drugs very heavily at that time, and this had a very detrimental effect on her decision making. She states that she was offered this solution as a means to support herself, a decision I know she regrets and is now deeply ashamed of.
Given the positives occurring in Kayla’s life currently, I would respectfully ask that the court be favourable in consideration of her criminal matters. I feel that if she were to receive a custodial sentence that would be a tragedy in an already tragic life, given all that she has achieved.
I will be continuing to provide support to Kayla and will do all I can to ensure that she continues along this new path.
The Judge addressed the seriousness of the defendant’s offending as follows:
Unfortunately your offending is serious. You are an ongoing street trafficker of what the law recognises as a very harmful drug. You were in possession of a significant number of tablets which you were plainly in the course of selling at Checkmates. Your offending is more serious than standard trafficking as you were trafficking in a prescribed area, namely licensed premises.
In such circumstances deterrence and in particular general deterrence must form a significant element of any such sentence. That means deterring others who are tempted to embark upon the same kind of offending that you undertook.
The Judge, when imposing a sentence, observed:
There will be a single sentence for the offences of trafficking in a controlled substance in a prescribed area and unlawful possession of money as they both relate to your drug dealing.
From a starting point of approximately four years and six months imprisonment, that will be reduced by 30% for your early plea of guilty to three years.
I turn to the issue of whether there is good reason to suspend that sentence. In the final analysis, your trafficking of this significant amount of a very harmful drug in prescribed licensed premises and the importance of general deterrence outweigh the important matters put on your behalf such that there is not good reason to suspend the sentence.
There is however, based on everything your counsel has submitted, and in particular to support your rehabilitation, justification for a very much shorter than usual non-parole period which will be 10 months.
The sentence of the court is accordingly three years imprisonment with a shorter than usual non-parole period of 10 months, both of which will commence today.
The Appeal
On appeal, the defendant contended that the notional starting head sentence of four years and six months was manifestly excessive having regard to the limited amount of money and drugs involved and the fact that the defendant was seeking to obtain monies to meet the cost of her drug addiction.
Counsel for the defendant also noted that the Judge had stated in his remarks that the defendant had not assisted police by providing any information as to who was supplying the drugs that she was selling. It was submitted that this was not a matter relevant to sentencing. It is to be noted that the Judge also referred to the fact that the defendant had initially lied to the police before acknowledging her guilt through her pleas of guilty.
Counsel for the defendant further submitted that the Judge’s discretion to suspend miscarried on account of him failing to consider whether good reason existed to do so. Emphasis was placed on the defendant’s age and background, and the fact that she was a first offender.
Counsel for the Director of Public Prosecutions submitted that no error had been identified on the part of the Judge in fixing the sentence and, in the circumstances, it could not be said that a head sentence of three years, after a reduction of 30 per cent, was manifestly excessive. It was accepted that it was not a relevant matter to sentencing that the defendant had not named her suppliers but counsel pointed out that, during sentencing submissions, the Judge had raised this topic as a matter possibly relevant to mitigation but noted explicitly that it could not be treated as a matter of aggravation.
It is unfortunate that the Judge made reference to the defendant not providing the names of her suppliers in his sentencing remarks, especially as that statement followed soon after the Judge’s reference to the defendant lying to the police. However, as we consider that the complaint that the sentence is manifestly excessive is made out, it is unnecessary for us to determine whether the Judge improperly took these matters into consideration. In our view, this offending was by a young first offender and at the lower end of the scale of offending encompassed by the maximum penalty. The offending was designed to subsidise the defendant’s own drug addiction. In our view, the starting point used by the Judge would have been appropriate for an offence of greater seriousness.
After allowing for a reduction of 30 per cent for the defendant’s pleas of guilty, we consider a head sentence of two years and six months to be appropriate. The Judge imposed a merciful non-parole period of 10 months. Although we would fix a lower head sentence, we consider a non-parole period of 10 months to be appropriate.
It is apparent from the remarks of the sentencing Judge that he considered that the nature of the defendant’s offending and, in particular the need for general deterrence, precluded the Court from suspending the sentence. The Judge did not, however, identify the important matters put on behalf of the defendant that he considered to be so outweighed by considerations of general deterrence such that good reason to suspend did not exist. In our view, the Judge failed to properly consider the question of suspension.
Section 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) provides:
Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
The court may only exercise its discretion to suspend a sentence under subsection (1) if it concludes that good reason exists for doing so. It is apparent that the Judge did not, in his remarks, consider the reasons which may exist for suspending the defendant’s sentence. The Judge only considered factors which militated against suspending the sentence.
In the present proceeding, there was, in our view, good reason to suspend. The following factors are of particular importance.
-The defendant was 20 years of age with no prior convictions.
-The defendant had been referred by her general practitioner to a psychologist and had commenced a course of treatment. She had attended five sessions and the balance of the course involved a further four sessions of treatment by the end of December 2015. At that time, a further treatment plan was proposed to be prepared with a further 18 sessions of treatment to be undertaken in 2016.
-The treating psychologist reported to the Court about the defendant’s progress. Earlier in these reasons, we have extracted portions of the report detailing the defendant’s good progress.
-The defendant’s case manager from Baptist Care provided evidence from which the conclusion can be drawn that the defendant has been genuinely pursuing rehabilitation for more than six months in an effort to deal with her homelessness and problems with drugs.
-The defendant has undertaken significant steps toward rehabilitation and it might be expected that, with the assistance of further psychological sessions and the support of Baptist Case, that rehabilitation will continue.
The above factors allow the conclusion that there was good reason and, in fact, very good reason to suspend the sentence of imprisonment. These factors outweigh the competing considerations identified by the Judge. It is significant that the immediate custodial sentence imposed by the Judge would completely disrupt the treatment programs being undertaken by the defendant. The Judge appears to have overlooked the significance of this factor.
In Bright v Police,[3] Gray J considered the suspension of a term of imprisonment in the context of a defendant taking real steps toward overcoming her gambling addiction. Gray J observed:[4]
Where a defendant has pleaded, or been found, guilty of an offence, and in sentencing submissions has submitted that his or her addiction or personality disorder is a relevant factor in sentencing, the sentence imposed by the court cannot be passed on a basis that is inconsistent with the conclusion that the defendant is criminally responsible for the crime.   However, as earlier observed, in my view the Magistrate failed to have adequate regard to the fact that the defendant’s progress in overcoming the major cause of her offending – her gambling addiction – has resulted in a substantially reduced need for deterrence when determining an appropriate sentence. The entering into a suspended term of imprisonment, on the entering into a good behaviour bond with appropriate conditions, will allow the defendant to continue her treatment toward recovery from her gambling addiction, while at the same time marking the seriousness of her crime.
[3]    Bright v Police (2008) 101 SASR 519.
[4]    Bright v Police (2008) 101 SASR 519, 527-8.
The rehabilitation prospects of a young offender are an important consideration when determining an appropriate sentence. As discussed above, the defendant in the present proceeding has taken significant steps toward her rehabilitation and is well on the path to being rehabilitated. In our view, she should be encouraged to pursue the course of rehabilitation. It is commendable that she, given her background, has already made substantial progress. We consider it to be an important matter in the interests of the defendant and in the interests of the community that her course of rehabilitation not be interrupted. As Debelle J observed in Kane:[5]
It is a very serious matter to sentence a person of such youth to imprisonment. In my view, the judge’s exercise of the sentencing discretion in relation to the issue of suspension of this sentence has miscarried. It is appropriate for this Court to reconsider the exercise of that discretion.
I repeat. The appellant was a young man of 19 years with no relevant prior record. In this case, the court was not having to consider whether there were any prospects of rehabilitation. Instead, the appellant had demonstrated his capacity to reform himself.
... It is all too rare an event for a person who has offended in this way to have demonstrated actual rehabilitation as opposed to prospects of rehabilitation.
...
Whilst there is plainly a need for general deterrence, that general deterrence should in the appropriate case yield in my view where there is actual as opposed to mere prospects of rehabilitation. At the end of the day it is this appellant’s youth at the time of the offending, as well as the actual rehabilitation, which he has undertaken which, in all the circumstances, call for this sentence to be suspended.
[5] R v Kane [2003] SASC 237, [15]-[17], [20].

In our view, the Judge failed to have proper regard to the circumstances giving rise to there being good reason to suspend and erred in his conclusion that considerations of general deterrence meant that there was not good reason to suspend. We consider the sentence should have been suspended.
Conclusion
For these reasons, we allowed the appeal, resentenced the defendant to a term of imprisonment of two years and six months with a non-parole period of 10 months and suspended that sentence on the defendant’s entry into a good behaviour bond.