R v Clifford

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLIFFORD
[2010] SASCFC 10
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice David)
2 August 2010
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - INTELLECTUALLY HANDICAPPED OFFENDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against sentence – appellant pleaded guilty to trafficking in a controlled drug – sentencing judge imposed three years' imprisonment with non-parole period of 12 months – whether sentencing judge erred in failing to suspend the sentence – whether sentencing judge placed excessive reliance on general deterrence in light of appellant's mental impairment – whether personal factors so substantial in cumulative effect that decision not to suspend was unjust.
HELD: appeal dismissed – sentencing judge correctly applied two step approach when considering length of sentence and whether to suspend – factors personal to the appellant properly taken into account – cumulative effect of personal factors not so significant that failure to suspend was unjust – in considering the impact of the mental impairment on the appellant's thought processes and capacity to appreciate significance of offending, the decision not to suspend was not unjust – the sentencing Judge gave effect to matters personal to appellant by fixing low non-parole period – no error in the sentencing process established.
Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 38(1), referred to.
R v Wiskich (2000) 207 LSJS 431; Mason-Stuart v The Queen (1993) 61 SASR 204; Hansen v R [1995] SASC 4984; Dinsdale v The Queen (2000) 202 CLR 321, discussed.

R v CLIFFORD
[2010] SASCFC 10
Court of Criminal Appeal: Duggan, Anderson and David JJ

DUGGAN J: The appellant pleaded guilty to trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (“the CSA”). He was sentenced to imprisonment for three years with a non‑parole period of 12 months. Permission to appeal against the sentence was granted by a single Judge of this Court.
The sole ground of appeal asserts that the sentencing Judge erred in failing to suspend the sentence. The argument put forward on the hearing of the appeal was that, given the personal circumstances of the appellant, the sentencing Judge placed too much reliance on general deterrence when considering whether to suspend the sentence.
The circumstances of the offence are not in dispute. The appellant came under the notice of a security officer at a nightclub in Hindley Street in the early hours of 16 February 2008 when he was observed receiving money from another patron. When searched, the appellant was found to be in possession of 74 tablets containing the drug methylenedioxymethamphetamine (“MDMA”) commonly known as ecstasy. Most of the tablets were contained in 9 bags. The tablets weighed 17.82grams and contained 3.3grams of pure MDMA. They had a retail value of between $1,110 and $3,700. The appellant was also in possession of $1,090.
When sentencing the appellant, the sentencing Judge summarised a series of text messages which were on the appellant’s mobile telephone. He said:
Text messages from your phone were recorded for the period 14 January 2008 to 16 February 2008. Between the dates 25 January 2008 and 15 February 2008 there are numerous references to ‘roundies’ ‘pills’ ‘gear’ ‘lolls’ and a number of comments indicating that you were actively trading drugs. For example, on 4 February 2008 ‘Need 3’. 11 February 2008 ‘Need that 25’. On 13 February 2008 ‘After 300 good gear. Can you help out. Also after good E can you help. Last we got from you not so good’. And 15 February 2008 ‘Pills, we want a 10 pack’. There are many other references which, particularly in the light of the evidence of officer Dewar, plainly reflect the ongoing trafficking of controlled drugs on your part.
You cannot be penalised for any of this trafficking as you have not been charged with it. However, it does indicate that the offence to which you pleaded guilty was not an isolated event, and that your comment to police that this was your first lot of drugs was plainly untrue.
The appellant had no previous convictions prior to the commission of the offence. However, he was sentenced for another offence between being charged and sentenced for the present matter. He was on bail for the present offence at that time. On that occasion he was found in possession of 10 tablets of MDMA. He was charged with simple possession and was discharged without a conviction being recorded. The sentencing Judge in that case was unaware that the appellant was on bail in relation to the present offence at the time the second offence was committed.
The appellant’s submissions before the sentencing Judge and this Court placed particular emphasis on the significance of a mental impairment from which the appellant suffers. The mental impairment was caused by the appellant being struck by a motor vehicle on 29 July 1989 when he was six years of age.
By the time the appellant was 10 years of age his parents were concerned that his personality had changed and he was becoming aggressive and slow in his thinking.
In a report dated 30 August 2002 Dr Coyte, a psychiatrist, reported that the appellant had suffered a personality change as a result of extreme brain damage caused by the accident. He said the personality change resulted in disinhibition and aggressive behaviour. He prescribed antipsychotic medication at a low dose.
On 24 January 2003 Dr Buckley, a consultant physician, reported on the effect of the brain injury:
As a result, [the appellant] has consequent physical, cognitive and behavioural deficits. His physical deficits are those of minor neurological findings of hemiparesis, and slightly impaired running balance, his cognitive deficits are of an IQ in the average to low average range with slowed information processing, and his behavioural deficits are those most pervasive and consistent with frontal lobe impairment with poor impulse control and lack of ordinary social inhibitions.
As a result, he is so severely affected that his quality of life, should he be required to live independently of family or carers, would be very poor and he would suffer great risk in terms of exploitation by others and vulnerability to misuse of drugs and alcohol.
The appellant had difficulty coping at school and was teased because of his slow manner of talking. Since leaving school he has not been employed.
The most recent reports on the appellant were prepared for the purposes of this case. Dr Balfour, a psychologist, conducted neuropsychological tests and reported on the results of the Wechsler are Adult Intelligence Scale – Third Edition (“WAIS-III”). He wrote:
The results of the WAIS-III indicate that [the appellant’s] level of intelligence is in the low-average range (i.e., his general level of intelligence is on the 18^th percent of the general population for his age group (25-29 years), or his Full Scale IQ is 86 and in the 82 to 90 IQ range at the 95% confidence interval).
In his summary of the results of the appellant’s neurocognitive testing Dr Balfour said:
[The appellant] was orientated to time, place and person. He did not exhibit evidence of severe memory impairments. His immediate and short-term memory functioning are commensurate with his estimated level of intellectual functioning. There is no significant difference between his ability to learn verbal and non‑verbal information. His long-term memory for remote events was relatively intact. He is a reasonable personal historian. He did not exhibit evidence of a drawing or constructional apraxia. He did not exhibit evidence of a receptive or expressive aphasia. However, the delivery of his speech was somewhat slow and monotonal. His performance on a confrontational naming task was normal (i.e., no evidence of a nominal aphasia).
[The appellant’s] conceptual functioning was largely commensurate with his estimated premorbid level of intelligence. His ability for abstraction, and forward planning were relatively intact. He exhibits some deficits in social judgement and self-regulation.
[The appellant’s] main area of cognitive deficit was his slow speed for information processing. However, I do not believe this is severe.
[The appellant] clearly suffered a severe traumatic brain injury at the age of 6 years. I note that he was assessed by Mr Mark Reid, neuropsychologist, whose main finding was of “some evidence of mild slowing in information processing ability”.
The findings of the current assessment are that [the appellant’s] level of cognitive impairment caused by his traumatic brain injury is only in the mild to moderate range of severity. In particular, I was unable to find any evidence of significant memory impairment suggestive of an amnestic disorder.
Dr Cayley, a consulting psychologist, reported on the appellant on 21 April 2010. She stated in her report:
[The appellant] remains a very vulnerable individual who is at considerable risk of exploitation by others. While tests of cognitive ability suggest adequate functioning in many of the domains assessed, this does not translate to an ability to operate as an independent adult in the community. On meeting with [the appellant] for the first time, it would be apparent to the majority of individuals that he has impaired functioning, and it is not surprising that his mother reports that he has been “talked into” expensive mobile phone and internet contracts.
In R v Wiskich,[1] Martin J conducted an extensive review of authorities in various jurisdictions which examined the task of a sentencing court in cases where the offender was suffering from mental impairment or disorder short of mental incompetence to commit the offence charged.
[1] (2000) 207 LSJS 431.
One of the cases referred to by Martin J was Mason-Stuart v The Queen[2] in which this Court reduced a non‑parole period in a rape case. King CJ commented:[3]
There are, however, special features associated with this matter. The appellant is 20 years of age. He sustained brain damage before birth and the damage which he then sustained has had a severe stunting effect upon his physical growth and upon his mental capacity. He is of low average intelligence. He is able to function in the community and, indeed, has held down a job but his capacity to appreciate the nature of inter-personal relationships and sexual relationships and to appreciate the consequences of his actions, appears to be impaired. His stunted growth and impaired intellect combine to make him a rather pathetic individual.
It can fairly be said, therefore, that there is a substantial degree of diminished responsibility.
…
It is a problem of reconciling the mercy which ought to be shown to a person whose subjective moral responsibility is low, with the need to protect the public from this sort of act of which the appellant was guilty. The importance of fixing a sentence which is proportionate to the gravity of the crime and which operates as a deterrent to other members of the public, is considerably less when the court is dealing with a person of diminished responsibility than it otherwise would be.
[2] (1993) 61 SASR 204.
[3] (1993) 61 SASR 204 at 205.
In the later case of Hansen v R[4] the sentence and non‑parole period of the appellant, who was charged with three counts of unlawful sexual intercourse, were reduced by reason of his intellectual retardation. King CJ said:[5]
The complication in the case is the state of intelligence and health of the appellant. The appellant sustained brain damage in an accident as a child. In consequence of that, he is, himself, of low intelligence, being described as intellectually retarded with an intelligence quotient of 70. He, therefore, is in the lowest 2% of the population so far as intelligence is concerned. In addition to that, as a consequence of that early accident, he is an epileptic and is subject to frequent epileptic seizures.
The extent to which a court will mitigate a sentence which would otherwise be appropriate by reason of diminished responsibility arising from intellectual retardation must depend upon the circumstances of the case. In some cases, it will be of little significance and R v Clausen (1981) 95 LSJS 194 is an example of such a case. In other cases, it will have the result that the aspect of general deterrence, although not to be ignored, will play a smaller part in the sentencing process than it would in the case of a person of normal intelligence.
There are other cases in which it can be said that the degree of intellectual retardation is such that the offender is not a fit subject for exemplary punishment at all and the aspect of general deterrence should be put aside. Such a case was Mason Stuart v The Queen (1993) 61 SASR 204.
The present appellant, as I have said, is intellectually retarded, but not so intellectually retarded that he had no appreciation of the seriousness of the conduct in which he engaged.
The report of the psychologist, Mr Fugler, which was before the sentencing judge, shows that the appellant understood that the girl was too young for sexual attentions of this kind and understood the criminality of his conduct. Nevertheless, the report also shows that his sexual knowledge is limited and that there is a lack of clarity to his level of understanding with respect to the wrongfulness of his offending behaviour.
In such a case, it seems to me that the aspect of general deterrence, although not to be completely ignored, should play a smaller part than it would in the case of a man of normal intelligence.
There is the further aspect that an intellectually retarded person of the type of the present appellant, and particularly one afflicted with epilepsy, is likely to suffer far more from the experience of imprisonment than a person who is free of those detriments. That is a factor which the court must bear in mind in assessing the appropriate punishment – and I cite the case of R v Smith (1987) 44 SASR 587.
[4] [1995] SASC 4984.
[5] [1995] SASC 4984.
After completing his analysis of the relevant authorities in Wiskich, Martin J said:[6]
In sentencing persons suffering from mental disorders it is important to bear in mind the general observations of Gleeson CJ in Engert to which I have already referred. The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
[6] (2000) 207 LSJS 431 at 457-458.
In the present matter the sentencing Judge heard extensive submissions on the appellant’s medical condition. Mason-Stuart v The Queen and other cases referred to by Martin J in Wiskich were discussed in the course of sentencing submissions.
In his sentencing remarks the sentencing Judge referred to the opinions of Drs Cayley and Balfour. He noted that the comments of other medical practitioners were summarised in Dr Cayley’s report. He said he took these matters into account in fixing “a considerably shorter than usual non‑parole period”. His Honour continued:
I now turn to the issue of suspension. I take into account everything put on your behalf. In the final analysis your offending is too serious, the offence too prevalent, and the consequent need for general deterrence too great to outweigh[7] the significant personal matters that have been put on your behalf. Accordingly, the sentence of imprisonment will not be suspended.
The sentence of the court is three years imprisonment with a non-parole period of 12 months. I order that sentence be taken to have commenced on 14 May 2010.
[7] It appears that His Honour intended to say “to great to be outweighed by”.
Section 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) permits a court to suspend a sentence of imprisonment “if it thinks that good reason exists for doing so”.
In Dinsdale v The Queen,[8] Kirby J described the two step approach which should be taken by a sentencing court when considering whether to suspend a term of imprisonment. Kirby J referred to the necessity, after deciding that imprisonment was appropriate, to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender.[9]
[8] (2000) 202 CLR 321.
[9] (2000) 202 CLR 321 at [85].
It was submitted that the sentencing Judge failed to follow this approach and, in particular, that he should have reconsidered the matters set out in s 10 of the Act which are to be considered by a court in sentencing an offender.
It is important for a judge to explain in remarks on sentencing the Judge’s assessment of the offender and the offending. It is also appropriate for the Judge’s remarks to contain sufficient detail to enable review by an appellate court. But this is not to say that a sentencing judge is required to retrace in precise detail the steps which were taken to reach the sentencing decision.
In the present case it is clear that the Judge followed the two step approach referred to in Dinsdale. He made it clear that when considering whether to suspend the sentence he was taking into account all that had been put on the appellant’s behalf. He referred to “the significant personal matters”. This was a clear reference to the matters which he had taken into account when fixing the term of imprisonment and the non‑parole period. The sentencing remarks do not disclose any error.
I would also reject the appellant’s argument that the factors put to the Court in support of suspension were so substantial in their cumulative effect that the decision not to suspend the sentence was unnecessary or unjust.

The mental impairment of the appellant was an important consideration to take into account. However, as Martin J said in Wiskich, the Court was required to determine the impact of the impairment on the appellant’s thought processes and his capacity to appreciate the significance of the offending.
There is no suggestion that the appellant in the present case was unaware that he was committing a serious criminal offence. His conduct was not isolated or unplanned. He had obviously purchased the drugs elsewhere and decided to sell them at a venue at which he was likely to find a market. The quantity of drugs and the amount of money in his possession were not insignificant.
The sentencing Judge gave effect to the matters personal to the appellant by fixing a non‑parole which was significantly lower than would otherwise have been the case.
In my view no error in the sentencing process has been established.
I would dismiss the appeal against sentence.
ANDERSON J: I agree that the appeal should be dismissed. I agree with the reasons of Duggan J.
DAVID J: I agree the appeal should be dismissed for the reasons given by Duggan J.

[2010] SASCFC 10

2 August 2010

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