R v Cleaver

Case [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

  1. 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).

  2. 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…

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R v Cleaver [2016] SASCFC 43
Case
[2016] SASCFC 43
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the respondent in the District Court for drug trafficking and possession offences. The respondent committed two sets of offences: the first on 30 September 2014, involving the possession of approximately 16 grams of pure methylamphetamine and a quantity of prescription drugs, along with over $17,000 in cash and drug paraphernalia; and the second on 24 June 2015, while on bail for the first offences, involving the possession of approximately 4.38 grams of methylamphetamine and nearly $8,000 in cash. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Kelly and Nicholson JJ.

The primary legal issues before the Court were whether the sentence imposed by the District Court was manifestly excessive or inadequate, and what constituted an appropriate sentence for the respondent's offending, considering her personal circumstances and prior convictions. The Court was required to determine the appropriate starting point for sentencing, the extent to which sentences for the multiple offences should run concurrently, and the impact of the respondent committing the second offence while on bail.

The Court reasoned that while the respondent's personal circumstances, including her role as a mother and her generally good behaviour since a previous suspended sentence for drug offences, were relevant, the significant quantities of methylamphetamine and cash, coupled with the commission of a further offence while on bail, warranted a substantial sentence. The Court noted that the amounts of cash found suggested an involvement beyond that of a typical street-level dealer funding their own habit. The Court ultimately allowed the appeal, set aside the District Court sentence, and imposed a new sentence of seven years imprisonment, commencing on 24 June 2015, with a non-parole period of three years and six months. This decision reflected a partial concurrence of sentences and an adjustment for totality, acknowledging the respondent's underlying condition and the nature of her offending.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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