R v Clift

[2014] SASCFC 35

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CLIFT

[2014] SASCFC 35

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)

10 April 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY

Appeal against sentence.  The defendant pleaded guilty to the offences of trafficking in a large commercial quantity of cannabis, possession of ecstasy for the purposes of supply and money laundering.  The sentencing Judge fixed the one sentence in respect of the two drug offences of imprisonment for five years and three months.  The Judge fixed a sentence in respect of the offence of money laundering of imprisonment for two years and two months.  The Judge allowed a period of partial concurrency in the sentences of five months, leading to a total head sentence of seven years.  The Judge fixed a non-parole period of four years and two months.  The defendant said that the offending had occurred in circumstances where he was under financial pressure as a result of medical problems.  The defendant had no prior convictions for drug offending.

Whether the Judge erred in failing to provide an explanation for the conclusion that there was to be partial concurrency of five months only.  Whether the Judge erred in failing to address or give adequate weight to the defendant’s good prospects of rehabilitation.  Whether the overall sentence was manifestly excessive.

Held per the Court (allowing the appeal):

(1)  The Judge did not have proper regard to the issue of rehabilitation.  If the Judge did have regard to the rehabilitation, he did not give adequate weight to the defendant’s good prospects.

(2)  Partial concurrency of five months was wholly inadequate. The offences were closely connected.

(3)  If a judge determines to make a sentence partially concurrent with another sentence, it is incumbent upon the judge to give reasons for his or her decision.

(4)  In all the circumstances, the final sentence imposed was manifestly excessive, both in respect of the overall term of imprisonment and the non-parole period.

(5)  Defendant resentenced to one sentence of six years’ imprisonment for all offending.  Non-parole period of three years fixed.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Dorning (1981) 27 SASR 481, discussed.
R v Copeland (No 2) (2010) 108 SASR 398; R v Ravet [2011] SASCFC 67; R v Bagnato (2011) 112 SASR 39; R v Belczacki (2012) 112 SASR 95, considered.

R v CLIFT
[2014] SASCFC 35

Court of Criminal Appeal:       Gray, Sulan and Peek JJ

GRAY and SULAN JJ.

1. This is an appeal against sentence.

2. The defendant and appellant, David Peter Clift, committed the offences of trafficking in a large commercial quantity of cannabis, possession of ecstasy for the purposes of supply and money laundering.  He was found in possession of about nine kilograms of cannabis, bagged into one pound lots, 26 ecstasy tablets and $330,990.00 in cash.  Other indicia of drug trafficking were located at the defendant’s premises.  Evidence before the Court established that the cannabis, if sold in one pound lots, could have realised at least about $55,000.00.

3. The defendant entered early pleas of guilty.  He said that he had been approached by two men asking if they could use his premises as a safe house for the storage of cannabis and cash.  The ecstasy was partly for the defendant’s own use and partly for supply to his partner.  The defendant acknowledged that on two earlier occasions in the weeks leading to his arrest, he had allowed his premises to be used for similar purposes.

4. The defendant’s explanation of his involvement in the offending was that he was under financial pressure and was to be paid $100.00 for each pound of cannabis stored.  The financial pressure came from the difficulties he was under in meeting his mortgage commitments on his property.  These difficulties had arisen because he had suffered a possible stroke, had been unable to continue in his pre-injury employment and, after some five months off work, he had returned to work with reduced capacity which, in turn, had led to a loss of income and to his financial difficulties. 

5. The sentencing Judge fixed the one sentence in respect of the two drug offences of imprisonment for five years and three months.  In arriving at this sentence, the Judge made a reduction of one year and nine months on account of the defendant’s pleas of guilty and contrition.  The Judge directed that this sentence commence on 21 November 2013.

6. The Judge fixed a sentence in respect of the offence of money laundering of imprisonment for two years and two months.  In arriving at this sentence, the Judge made a reduction of nine months on account of the defendant’s plea of guilty and contrition, and a further reduction of one month on account of time spent in custody and on home detention bail.  The Judge directed that this sentence commence on 21 September 2018.

7. The Judge noted that the defendant would face a total term of imprisonment of seven years.  The Judge then fixed a non-parole period of four years and two months, commencing on 21 November 2013.

8. The Judge made no mention of concurrency in his sentencing remarks.  However, it is evident from the fixing of a total head sentence of seven years that he had allowed a period of concurrency in the sentences of five months.  In the report by the Judge prepared for administrative purposes, the Judge noted that he had imposed a sentence in respect of the money laundering to be served partially cumulative upon the other sentence.

9. In the course of the Judge’s sentencing remarks, he noted that the defendant had a number of summary convictions, mainly for vehicle and traffic offences.  He had no convictions for drug offending.  When addressing the defendant’s personal antecedents, the Judge noted his age of 47 years, his good work history and productive life.  The Judge noted the defendant’s medical history of a stroke and the loss of work capacity that he had suffered as consequence of a loss of self-esteem.  The Judge noted that the defendant had developed a state of despondency to the point where he was susceptible to the influence of others.  The Judge also noted that there were a number of references from people who spoke well of the defendant.  However, notwithstanding the Judge’s reference to these matters, the Judge’s remarks do not go on to address their impact on the need for personal deterrence and the defendant’s prospects for rehabilitation.

10. Counsel for the defendant submitted that the approach taken by the Judge allowed the conclusion that he had erred in two respects. First, it was said that no explanation at all was provided for the conclusion that there was to be partial concurrency of five months only. Secondly, the defendant submitted that the Judge had failed to address or give weight to the defendant’s very good prospects of rehabilitation. Finally, it was submitted that the overall sentence was manifestly excessive and, in particular, that the defendant’s personal antecedents and prior record of no relevant offending should have led to the fixing of a substantially shorter non-parole period. Counsel further submitted that, in substance, the defendant’s offending occurred at the same time and should have led to the imposition of the one sentence for all offending and the utilisation in that respect of the powers of the Court under section 18A of the Criminal Law (Sentencing) Act 1988 (SA).

11. Counsel for the Director submitted that there was no identified error on the part of the Judge and that, having regard to the serious nature of the offending, the individual sentences and the overall sentence were well within the discretion of the Judge.  It was pointed out that a substantial amount of cannabis had been seized and that it was packaged ready for sale.  The money laundering offence was said to be particularly serious having regard to the fact that more than $300,000.00 cash was located on the premises.  It was said that the offence of possession of ecstasy with intent to supply represented a separate and distinct incursion into criminal behaviour.  Emphasis was placed on the maximum penalties faced by the defendant and it was submitted that Parliament intended offending such as the defendant’s to be treated very seriously. 

12. Counsel for the Director accepted that there was no ready explanation for the decision of the Judge to order partial concurrency to the extent only of five months.  It was acknowledged that there was no explanation in the remarks for the Judge’s approach in this respect, but it was contended that that lack of explanation did not allow the conclusion that the Judge had erred.  Counsel for the Director also accepted that the Judge had not explicitly addressed the topic of rehabilitation.  However, it was pointed out that the Judge had expressly identified the matters of the defendant’s age, good work history, good reputation and health problems, causing a state of mind that made him more susceptible to the undue influence of others.  It was argued that these references indicated that the Judge was considering rehabilitation and had appropriate regard to all relevant matters. 

13. In our view, having regard to the defendant’s age, his personal antecedents as outlined above, his relationship with his partner and the support provided by his partner and others, allows the conclusion that his prospects for rehabilitation are good.  Mr Fugler, in his report before the Court, noted that although the defendant was not clinically depressed, he had as a consequence of his medical condition suffered a significant loss of self-esteem and had been relevantly despondent at the time of the offending.  Mr Fugler expressed the view that if the defendant is able to resist the approaches of those engaged in the drug trade, he has good prospects of not reoffending.  We do not consider that the Judge had proper regard to the issue of rehabilitation.  His Honour makes no reference to this question in his remarks.  If it is to be inferred that the Judge did have regard to the defendant’s rehabilitation, we would draw the conclusion that he did not give the defendant’s good prospects adequate weight. 

14. We also consider that the Judge erred in his approach to partial concurrency in the two sentences that he imposed.  The Judge was entitled to construct the two sentences in the way that he did, however, he did not give any reasons for making only five months of the sentence concurrent.  If a judge determines to make a sentence partially concurrent with another sentence, it is incumbent upon the judge to give reasons for that decision.  Although sentencing remarks do not require a judge to deal with every submission of counsel, they should permit an appellate court to understand the approach of the judge and to be satisfied that sufficient weight has been given to competing factors required to be considered in arriving at the final sentence.[1]  We consider the partial concurrency of five months to be wholly inadequate and indicative of error.  The offences were clearly connected.  The defendant was warehousing the drugs and holding the monies for others who were involved in large scale dealing in drugs.  The offence of money laundering was so closely connected to the other offending that it required a greater overlap in the two sentences.

    [1]    R v Copeland (No 2) (2010) 108 SASR 398, [29]; R v Ravet [2011] SASCFC 67, [43]-[45].

15. In all the circumstances, the final sentence imposed was manifestly excessive, both in respect of the overall term of imprisonment and the length of the non-parole period.  As a consequence, we consider that this Court should re-sentence the defendant.  In doing so, we treat all of the defendant’s offending as part of the one course of conduct.  We recognise that the offence concerning the possession and supply of ecstasy was different in character to the other offending.  Notwithstanding this difference, we would impose the one sentence of six years’ imprisonment for all of the defendant’s offending.  In arriving at that sentence, we have made a reduction of two years on account of the defendant’s pleas of guilty and contrition.  When fixing a non-parole period, we consider that particular weight should be given to the defendant’s personal antecedents and, in particular, his prospects for rehabilitation.  We would fix a non-parole period of three years. 

    Conclusion

16. We would allow the appeal and set aside the sentence imposed in the District Court.  We would resentence the defendant in respect of all offending to the one sentence of imprisonment for a period of six years.  We would fix a non-parole period of three years.  The head sentence and non-parole period should commence on 21 November 2013.

17. PEEK J.   I have had the advantage of reading the plurality judgment and I gratefully adopt the statement of facts.

18. The statements of witnesses in the appeal book depose that on 9 January 2013 police applied for drug warrants on the basis that occupants of the premises at 27 Welby Avenue Salisbury East were suspected of being involved in the cultivation of cannabis.  Police officers raided those premises on that same day and found large amounts of cannabis and cash and a smaller quantity of the drug ecstasy.  The appellant was arrested.

19. The witness statements concerning the events of that day make clear that the appellant was arrested for serious drug charges based on the finding of the drugs and a charge of unlawful possession of the amount of $330,990 in cash which was considered by the police to be related to dealings in the drugs.

20. A copy of the original charges as laid does not appear in the appeal book but on 9 July 2013 a fresh superseding Information (being the Information now before the Court was laid) and, as later amended, appears as follows:

    1.On the 19^th (sic) day of January 2013 at SALISBURY EAST in the said State, did traffic in a large commercial quantity of a controlled drug, namely Cannabis.

    Section 32(1) of the Controlled Substances Act, 1984.

    This is a major indictable offence.

    2.On the 19^th (sic) day of January 2013 at SALISBURY EAST in the said State, possessed a controlled drug, namely Ecstasy intending to supply the drug to another person.

    Section 33I(1) of the Controlled Substances Act, 1984.

    This is a major indictable offence.

    3.On the 19^th (sic) day of January 2013 at SALISBURY EAST in the said State, engaged directly or indirectly in a transaction involving property, namely $330,990 cash, knowing that property to be tainted property.

    Section 138(1) of the Criminal Law Consolidation Act, 1935.

    This is a major indictable offence.

21. Inexplicably, an incorrect date of 19 January 2013 (rather than 9 January 2013) was laid in each of the counts (to which the appellant formally pleaded in the Magistrates Court) and was in turn transposed into the formal committal for sentence (which formed the basis of his sentencing in the District Court).

22. Count 3 is rather opaque on its face in that it refrains from averring whether the appellant engaged “directly” or “indirectly”; it does not particularise what is the transaction charged (other than by reference to an incorrect date and to the amount of $330,990 in cash); and it does not particularise why the cash is said to be “tainted property”.

23. However, it was apparent from the police witness statements, the submissions before the Judge, and the juxtaposition of the cannabis and the cash in time and place, that the transaction(s) referred to in count 3 substantially, if not totally, overlapped the cannabis transaction(s) charged as trafficking in count 1. 

24. For many years the principle of concurrency (or partial concurrency) applicable to such cases has been recognised in South Australia.  Thus in R v Dorning, Walters, Zelling and Williams JJ stated:[2]

    The general principle is that where offences arise out of the one course of criminal conduct or activity and are truly connected with each other, the sentences should be concurrent.   (Emphasis added)

    [2] (1981) 27 SASR 481, 482. In R v Bagnato (2011) 112 SASR 39, 57-62, I traced the history of the doctrine, focussing only on the last 50 years or so.

25. If a judicial officer simply imposes wholly cumulative sentences for each of a number of “truly connected offences”, that process may demonstrate error in sentencing principle and of itself give rise to a re-sentencing by an appeal court.  Turning to the present case, I agree that an error in sentencing principle is immediately demonstrated: the Judge has failed properly to address the doctrine of concurrency.  A re-sentencing is therefore necessary.

26. As to the appropriate head sentence, I would usually be in favour of fixing notional sentences for each offence and then using s 18A Criminal Law Sentencing Act 1988 to fix a total sentence incorporating the desired degree of concurrency.[3]  However, in the present case, the Judge did fix two separate sentences and the grounds of appeal complain of the total of the sentences because of lack of (sufficient) concurrency rather than the individual sentences themselves.  In the circumstances, I am prepared to join in the order as to a head sentence of six years since I consider that it reflects an appropriate measure of concurrency in the circumstances.

    [3]    For example, see R v Bagnato (2011) 112 SASR 39, 92-93; R v Belczacki (2012) 112 SASR 95, 114-115.

27. As to the non-parole period, the appellant was entitled to a resentencing as to the non-parole period because there was to be a resentencing in relation to head sentence.  The plurality judgment proposes a non-parole period which is 50 per cent of the new head sentence.  I respectfully agree that that is an appropriate percentage in light of the factors referred to and I have nothing to add in that regard.  Accordingly, I also join with the order of the plurality in relation to the non-parole period.