R v Cleaver - [2016] SASCFC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLEAVER
[2016] SASCFC 43
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Nicholson)
22 April 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence.
The respondent was convicted by a Judge of the District Court of two counts of trafficking in a controlled drug (Counts 1 and 2) and possessing a prescription drug (Count 3).
The Judge imposed a sentence of three years imprisonment on Counts 1 and 2, and a sentence of imprisonment of two years and four months on Count 3. The sentences were ordered to be partially concurrent, resulting in a sentence of imprisonment for three years and six months, with a non-parole period of six months.
The Director of Public Prosecutions sought leave to appeal against the sentence on the grounds that the sentences imposed for all counts were manifestly inadequate, that the Judge erred in making the sentences concurrent, and that the non-parole period was manifestly inadequate.
Held per Kourakis CJ (Kelly and Nicholson JJ agreeing), allowing the appeal:
1. The sentence imposed was manifestly inadequate.
2. The respondent’s sentence is increased to seven years imprisonment to commence on 24 June 2015, and a non-parole period of three years and six months.
Criminal Law Consolidation Act 1935 (SA) ss 48, 168, referred to.
Heuston v R (1993) 171 LSJS 479; R v Ball, Bunce and Callis (1993) 169 LSJS 293; R v Coleman (2001) 122 A Crim R 230; R v Elliott (2001) 121 A Crim R 254; R v Armstrong [2002] SASC 174; R v Siozios [2004] SASC 299; R v Smith [2005] SASC 212; R v Baltensperger (2006) 96 SASR 34; R v Sumner & Sumner [2007] SASC 376; R v Walkuski [2010] SASC 146; R v Edwards [2011] SASCFC 33; R v M, AG (2013) 116 SASR 219; R v Bondarenko [2015] SASCFC 42, considered.

R v CLEAVER
[2016] SASCFC 43
Court of Criminal Appeal: Kourakis CJ, Kelly and Nicholson JJ

KOURAKIS CJ: This is an application by the Director of Public Prosecutions (‘the Director’) seeking leave to appeal against a sentence imposed in the District Court. The respondent pleaded guilty and was convicted of trafficking in a controlled drug (Counts 1 and 3), contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and possessing a prescription drug (Count 2), contrary to s 18(3) of the Controlled Substances Act 1984 (SA).
The respondent pleaded guilty to the first offences at a time which entitled her to a discount of up to 20 per cent. The respondent pleaded guilty to the second offence at a time which entitled her to a discount of up to 30 per cent.
On 12 November 2015 the Judge imposed a sentence of three years imprisonment on Counts 1 and 2, reduced from three years and nine months, and a sentence of imprisonment of two years and four months on Count 3, reduced from three years and four months.
The sentences were ordered to be partially concurrent, resulting in a head sentence of three years and six months. The Judge fixed a non-parole period of six months.
The Director appeals on the following grounds:
1The sentence of three years for counts 1 and 2 is manifestly inadequate;
2The sentence of two years and four months for count 3 is manifestly inadequate;
3The Judge erred in making the two sentences concurrent. In the alternative, the Judge erred in making the two sentences concurrent to the extent that he did; and
4The non-parole period of six months is manifestly inadequate.
On 17 December 2015 this Court gave permission to appeal, allowed the appeal and set aside the sentence imposed in the District Court. The Court imposed instead a sentence of seven years to commence on 24 June 2015 and fixed a non-parole period of three years and six months. My reasons for joining in that order follow.
Background
The offences of trafficking in a controlled drug and possessing a prescription drug were committed on 30 September 2014, which were detected when police attended at the respondent’s home (the first offences). They found a plastic tub of which the contents were 7.6gm of a mixed weight substance which contained 6.06gm of methylamphetamine; a small bag containing 0.86gm of methylamphetamine and another tub containing 15.5gm of a mixed weight substance which contained 7.98gm of methylamphetamine. The total amount of mixed weight material was 23.96gm, containing about 16gm of pure methylamphetamine. The concentration of the mixture was therefore in the order of 67 per cent.
Police also located just under 300 tablets which were a mixture of paracetamol and dextromethorphan or levomethorphan. These were prescription drugs for which the respondent held no prescription. In the same search police also found over $17,000 in cash and other drug paraphernalia. An analysis of the respondent’s phone revealed text messages consistent with her involvement in the sale of illicit substances.
Whilst on bail for the first offences the respondent committed another offence of trafficking in a controlled drug, which was detected on 24 June 2015 when police again attended at the respondent’s home and found 5.58gm of a mixture containing 4.38gm of methylamphetamine (the second offence). The concentration of the mixture was in the order of 78 per cent. On the same occasion the police seized almost $8,000 in cash and drug paraphernalia. The Judge took into account the aggravating feature of the second offence being committed while the respondent was on bail.
The respondent was arrested for the second offence and was taken into custody. The Judge subsequently revoked bail.
The defendant’s personal circumstances
The respondent was 37 years of age at the time of sentence and the mother of two young children, who were in the care of family members.
The respondent had one relevant prior conviction for two counts of possessing a controlled substance for sale, committed in 2006, for which she was sentenced in 2008 to imprisonment for two years and two months with a non-parole period of one year and three months. The sentence was suspended upon her entering into a bond to be of good behaviour for a period of two years with supervision for one year. The Judge noted that she had generally attended to the terms of that bond. The respondent had only committed one minor driving offence since that time.
The Judge proceeded in sentencing the respondent pursuant to s 9C of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), referring to this Courts decision in R v Grose.[1]
[1] (2014) 119 SASR 92.
Justice Gray outlined the intent behind s 9C conferencing as follows:[2]
Section 9C effects a significant change by modifying the manner in which a sentencing court hears submissions regarding sentence. While s 9C may be described as procedural, its purpose and effect is substantive.
The conference is designed to enable a sentencing court to be informed of matters relevant to the sentence of an Aboriginal defendant by providing a culturally sensitive forum. An Aboriginal Justice Officer is, in conjunction with the court, in charge of the conference. The judge, in a real sense, is an observer who is to be informed through the conference. By this process, the court is better able to fashion an appropriate sentence. The conference allows the court to better engage Aboriginal defendants in the criminal justice process by assisting them to understand the consequences of criminal offending. Further, the conference engages the community of which the defendant is a member for the purposes of giving the proceeding greater legitimacy and relevance, and improving the prospects of the defendant not reoffending.
It is to be recognised that courts are limited in their capacity to address over-representation of Aboriginal people in prison, given they are necessarily reacting to criminal conduct that has already occurred. However, s 9C provides an avenue by which the court system can be more sensitive and responsive to the needs of Aboriginal people in situations where to proceed in the ordinary way risks the court not being fully apprised of all relevant factors.
(citations omitted)
[2] R v Grose (2014) 119 SASR 92 at [56]-[58].
Several persons gave evidence at the s 9C conference of the support, both financial and rehabilitative, which would be available to the respondent on her release from custody. The Judge heard from members of the respondent’s family, members of service providers who were prepared to assist Aboriginal offenders and from elders within the Aboriginal community.
The Judge took into account a significant sexual assault committed against the respondent when she was 22, the consequences of which remained untreated for many years. The respondent attributed her methylamphetamine addiction to the resulting psychological trauma. Since being in custody, the respondent has taken some steps towards rehabilitation, particularly through her attendance at fortnightly Narcotics Anonymous meetings.
Permission to appeal
The principles applicable to appeals against sentence by the Director are well established. A Court should grant permission only in the rare and exceptional case.[3] The mere demonstration of error is not sufficient to attract a grant of permission to appeal. Permission should only be granted if it is necessary to enable the Court to establish and maintain adequate standards of punishment, 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 it reflects an error of principle.[4]
[3] Everett v The Queen (1994) 181 CLR 295.
[4] The Queen v Osenkowski (1982) 30 SASR 212, 213.
A sentence which is an egregious departure from the appropriate standard such that to allow the sentence to stand would shake public confidence in the administration of justice, may warrant the grant of permission to appeal even though no general point of principle will be established by the case.[5] This was such a case and, for the reasons which follow, permission was granted to the Director to appeal.
[5] R v Nemer (2003) 87 SASR 168, 172.
Grounds 1 and 2 – Sentence
The maximum penalty for trafficking in a controlled drug (for which there were two counts) is a fine of $50,000 or imprisonment for ten years, or both. The maximum penalty for possessing a prescription drug is a fine of $10,000 or imprisonment for two years.
The well established range for offending of the kind committed by the respondent on each occasion is four to seven years. There were strong reasons to order the sentences imposed for the first offences, and for the second offence to be served cumulatively because they were separate criminal incursions into the drug trade, the second offence being committed whilst on bail for the same kind of offending. Even allowing for some modest concurrency the sentence imposed by Judge is only about one half of the lower end of the accepted range.
The Director referred to several authorities which establish the sentencing range for typical offending by street level traders.[6]
[6] R v Mangelsdorf (1995) 66 SASR 60; R v Kong (2013) 115 SASR 425.
In R v Kong[7] I explained the range established in Mangelsdorf as follows:
In Mangelsdorf, the Court was concerned with three appeals. The first related to street trading in heroin. The second related to small-scale dealing in LSD. The third related to possession of a significant quantity of cannabis for sale. Doyle CJ classified the drugs in categories of seriousness, heroin being the most serious, LSD classified as a middle-range drug, and cannabis as less serious.
The distinction between heroin and other controlled drugs (other than cannabis, cannabis resin or cannabis oil) having been abolished, all drugs, other than cannabis, are to be considered as very harmful.
Mangelsdorf was convicted of possessing heroin for sale. The quantity found in his possession was such as to attract a maximum penalty not exceeding $200,000 or imprisonment for 25 years, or both. Mangelsdorf had in his possession 15 alfoil packets each containing a taste of heroin. It was admitted that he had been involved in selling small amounts of heroin daily over a period of about two months. Doyle CJ reviewed a number of sentences for dealing in heroin. He considered that the starting range of sentence for a street dealer involved in commercial dealing in heroin should be between four and seven years’ imprisonment. In the case of persons who are involved in larger scale dealings, penalties will be increased. Doyle CJ acknowledged that each case must be considered on its merits. In certain cases, it may be appropriate for a sentencing judge to commence outside the range of sentencing standards set by the court. Sentencing judges have a discretion, and there must always be room for them to exercise that discretion having regard to the circumstances of an individual case. As King CJ pointed out in R v Osenkowski, there must always be a place for leniency which can even be extended to offenders with bad records and who commit serious offences. Nevertheless, standards of sentencing are indicated to ensure that idiosyncratic decisions of judges can be corrected.
(citations omitted)
[7] R v Kong (2013) 115 SASR 425 at [77]–79]; see also R v Levy (2015) 122 SASR 445, 450 and R v Phuong [2015] SASCFC 70 at [2] which apply that standard to amphetamine deals.
The abuse of amphetamines is the cause of great personal and social harm. The legislative introduction of a range of penalties relative to the quantity of drugs involved was not intended to reduce the penalty range identified in Mangelsdorf. It was drafted to ensure that traders higher in the drug distribution hierarchy, who are likely to be found in possession of greater quantities, receive substantially higher sentences than those on the lower end of the scale. There has been no reduction in the prevalence of, or the social harm caused by, amphetamine abuse, which would warrant a review of the Mangelsdorf range.
The Director submits that the respondent is a repeat offender with a relevant prior conviction in 2008 and emphasises the aggravating circumstance of the second offence which was committed whilst on bail. The sums of money involved in both offences, approximately $17,000 and $8,000 in cash respectively, were substantial. It exceeds the amount which a street dealer, selling merely to fund his or her own habit, would be expected to hold.
The Judge placed much weight on the respondent’s personal circumstances. Indeed, having regard to all of the information, including pre-sentence reports and information obtained during the s 9C conference, the sentencing Judge took what he accepted was the ‘unusual’ step of fixing a non-parole period of only six months for the offending.
The Judge in imposing the non-parole period stated:
That is to enable you to undergo the treatment you so clearly require, to enable you to return to the initial care of your mother, to enable you to return to providing care to your children, and to enable you to engage in rehabilitation in the hope that that will lead to you returning to leading a productive life and contributing to the community as your mother does.
In R v Reed, Justice Sulan explained when a departure from the usual sentencing range would be appropriate:[8]
... [I]t is always open to a sentencing judge to impose a merciful sentence in the appropriate case. The sentences in this case were very low. Nevertheless, there were compelling reasons to support a merciful approach. The defendant was dependent upon amphetamine, which is a highly addictive drug. His dependence was as a result of being exposed to the drug as part of a treatment program prescribed by a medical practitioner.
It is to be distinguished from the more common case of a person who has become dependent upon drugs, having always used illicit drugs illegally. Although many cases invoke sympathy because of the circumstances in which a person became addicted, those cases are to be distinguished from this case. The defendant’s increased tendency towards illicit drug taking was not initially as a result of his own choosing.
[8] R v Reed [2013] SASCFC 16 at [41] and [42].
The circumstances of this case did not justify the radical departure from the usual range and the egregiously low sentence the Judge imposed. I am sympathetic to the respondent because of the circumstances in which she became addicted, but this is all too often the case. If sentences were mitigated to reflect all addiction, the penalties would fail to provide the necessary level of general deterrence.
Moreover the respondent has a prior relevant conviction from 2008, and the second offence had the aggravating factor as it was committed whilst the respondent was on bail for the first offences. The sums of money involved were substantial and indicate trafficking above the level needed merely to support a habit. Accordingly both personal and general deterrence preclude the exceptionally low sentence imposed by the Judge.
In all of the circumstances I am satisfied that each of the sentences (and the effect of the head sentence in its totality) is so manifestly inadequate and below the appropriate standard that it is an egregiously erroneous application of principle which, if allowed to remain, would erode the proper standards of penalty for offending of this kind and shake public confidence in the administration of justice.
Ground 3 – Concurrent sentences
In the circumstances, it is unnecessary to deal separately with the Director’s complaint that the Judge erred in making the two sentences concurrent to the extent that he did. However, it is implicit in my finding that the overall sentence was manifestly inadequate, and it will appear from the structure of the sentence that was imposed on appeal that the Judge did err in this respect. I observed earlier that because the second offence was committed whilst the respondent was on bail, ordinarily, cumulative sentences would be expected. In order to reflect the respondent’s underlying addiction, and to adjust for totality, some modest level of concurrency may be allowed. However the Judge was wrong to make the sentences close to totally concurrent.
Ground 4 – Non-parole period
The Director also complains that the non-parole period is manifestly inadequate and fails to reflect established principles. Again even though it is not necessary to deal with this ground separately, I observe that a non-parole period of less than 50 per cent of the head sentence is an unusually lenient one. It was not open in this case to fix such a short non-parole period because of:
·the amount of money and quantity of drugs involved;
·the respondent’s previous failure to successfully rehabilitate whilst on parole; and
·the commission of the second offence whilst on bail.
Resentencing
I now turn to the question of resentencing.
On the first offences, I would have imposed a penalty of imprisonment for five years and five months. The respondent is entitled to a discount of up to 20 per cent in respect of that offending and, accordingly, that sentence becomes one of imprisonment for four years and four months. In respect of the second offence I would have imposed a sentence of imprisonment of six years. The sentence is at the higher end of the range even though a smaller quantity of drugs, and amount of money, were involved, because it was committed whilst on bail. The respondent was entitled to a discount of up to 30 per cent and that sentence becomes one of imprisonment for four years and three months.

There should be some partial concurrence to allow for the continuing role played by the respondent’s underlying condition and to adjust the sentence for totality.
Conclusion
For the above reasons I joined in the Court making the following orders:
·permission to appeal be granted;
·the sentence imposed in the District Court be set aside;
·we resentence the respondent to a term of imprisonment for seven years, commencing on 24 June 2015; and
·a non-parole period of three years and six months be fixed.
KELLY J: I joined in the orders made by the Court on 17 December 2015 for the reasons given by the Chief Justice.
NICHOLSON J: I joined in the orders made by the Court on 17 December 2015. I did so substantially for the reasons that have been provided by the Chief Justice. I agree that an appropriate range for the starting point with respect to each of the first offences and the second offence, in the circumstances of this offender and this offending, is four to seven years imprisonment. I also agree that only a modest level of concurrency is warranted.
However, I prefer not to characterise this appellant as a typical street level dealer. It is not necessary to do so and it may be inaccurate to do so. I agree with the Chief Justice that the amounts of cash found in the appellant’s possession exceeded amounts which a street dealer, selling mainly to fund their own habit, would be expected to hold. Obviously, the notion of a street level dealer gives rise to questions of definition. Further, whilst I recognise that recent cases in this Court have adopted the Mangelsdorf [9] range of four to seven years for a typical street level dealer as still appropriate, I would prefer to reserve my own position on the proper content and present appropriateness of such a sentencing guideline until I have had the benefit of full argument on the matter.
[9] R v Mangelsdorf (1995) 66 SASR 60.