R v Clift - [2010] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLIFT
[2010] SASC 79
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)
31 March 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
Appeal against sentence - appellant pleaded guilty to a number of offences including a breach of bond for which a sentence had been suspended - whether trafficking offence at lower end of scale on account of weight of drug - submission not put to sentencing Judge - defendant appropriately categorised as more than a street trader - sentence for unlawful possession of large quantity of money close to maximum penalty but reflected serious nature of crime - cumulative sentences - each sentence within appropriate range - sentence did not require reduction on account of principle of totality - no error shown in approach by sentencing Judge - appeal dismissed.
Firearms Act 1977 s 11(1); Summary Offences Act 1953 s 41(1); Controlled Substances Act 1984 s 32(1), referred to.
R v Rossi (1988) 142 LSJS 451; R v Randall-Smith (2008) 100 SASR 326; R v B, RWK (2005) 91 SASR 200, considered.

R v CLIFT
[2010] SASC 79
Court of Criminal Appeal: Nyland, Gray and Vanstone JJ

NYLAND and GRAY JJ: This is an appeal against sentence. The defendant and appellant, Guy Anthony Clift, pleaded guilty in the Magistrates Court and was committed for sentence to the District Court for the following offences:
·Two counts of possessing a Class H firearm without a licence, contrary to the provisions of section 11(1) Firearms Act 1977 (SA). The maximum penalty prescribed for this offence is imprisonment for seven years or a fine of $35,000.00.
·One count of unlawful possession contrary to the provisions of section 41(1) Summary Offences Act 1953 (SA). The maximum penalty for that offence is imprisonment for two years or a fine of $10,000.00.
·One count of trafficking in a large commercial quantity of a controlled drug contrary to the provisions of section 32(1) Controlled Substances Act 1984 (SA). The maximum penalty for that offence is imprisonment for life or a fine of $500,000.00 or both.
At the time of committing these offences, the defendant was subject to a suspended sentence bond of four months. That bond related to offending for which the defendant was sentenced on 7 August 2006 in the Adelaide Magistrates Court. At that time, a sentence of four months imprisonment was imposed for the offences of producing a controlled substance, possess a dangerous article, possess or use body armour without approval, fail to secure ammunition in a locked container, failure to comply with regulations, possess prescription drug and unlawful possession. That sentence was suspended upon the defendant entering into a bond to be of good behaviour for a period of 18 months. The defendant admitted the breach of that bond occasioned as a result of the commission of the firearms offences referred to above.
The circumstances relating to the present offences are as follows. On 7 January 2008 police attended at the defendant’s home. In the course of a search of those premises, they located two firearms. A semi-automatic hand gun was found hidden in a cavity above the fireplace in one of the rooms. The firearm was wrapped in heat-sealed plastic. The other firearm was a semi-automatic hand gun. That was located in the centre console of the defendant’s vehicle. Both firearms were loaded and in each case the serial numbers had been obliterated. The defendant did not hold a Firearms Licence.
The charge of unlawful possession arose out of a search conducted by the police of the defendant’s mother’s home on 6 March 2008. During the search the police located a sports bag which contained $274,300.00 in cash. The bag was hidden in a storage area under the stairs.
The trafficking offence arose out of a further search which also took place on 6 March 2008. The police attended at the home of the defendant’s sister. In a sports bag hidden in a wardrobe the police located three sealed plastic bags containing tablets, which later analysis confirmed to be ecstasy.
According to the written summary of the prosecution case which was provided to the sentencing Judge, an analysis of the tablets revealed that the plastic bags contained a total of 5,384 tablets, all of which contained methylenedioxymethamphetamine (MDMA or ecstasy). The total weight of the tablets was 1302.5 grams. The total weight of pure MDMA was 165.4 grams.
According to a statement from the prosecution witness, Peter Dewar, ecstasy tablets are sold at between $15 to $50 per tablet, depending on the volume sold. The price could be as low as $8 to $12 per tablet for the purchase of large quantities of over 5,000 tablets. On that basis, counsel for the prosecution submitted that if the tablets were sold at a relatively low price to the end user of $20 per tablet, their total value would be about $100,000.00, and if sold at the highest price of $50 per tablet they would be valued at about $270,000.00.
In the course of submissions, the sentencing Judge was provided with a Statement of Agreed Facts which recorded the following:
The [defendant] was a member of The Rebels Motor Cycle Club.
The [defendant] was the Sergeant-at-Arms of the Southside Chapter of the Rebels.
The [defendant] subsequently became President of the Southside Chapter of the Rebels and was the President at the time of his offending.
The [defendant] was a heavy user of methylamphetamine.
He bought methylamphetamine in large quantities. On one occasion he was dealing in over one thousand pills.
He would use some of the methylamphetamine.
The [defendant] would sell the remainder of the methylamphetamine. He therefore engaged in a commercial enterprise.
As part of the commercial enterprise in methylamphetamine, the [defendant] would from time to time cut the methylamphetamine for sale.
The Judge was provided with a report dated 16 May 2009 of Mr Allen Fugler, a psychologist. The defendant told Mr Fugler that he and his family had been subject to threats of serious harm and that he had secured the firearms for their protection. The defendant maintained that he intended to sell the ecstasy tablets to raise sufficient funds to transfer his family and himself interstate in order to avoid the threats that he had been experiencing. The defendant also told Mr Fugler that he had been present during a confrontation between members of two motorcycle clubs some years before in which five members were shot and three of them killed, including the defendant’s closest friend. He described a number of symptoms which Mr Fugler thought were consistent with a stress disorder.
The defendant maintained that the money which was the subject of the unlawful possession charge was not his. He claimed it was held on behalf of other people but was not prepared to name them. The defendant did not give evidence about the source of those funds, nor the reasons for holding the firearms.
The sentencing Judge had regard to all of those matters. As far as the firearms were concerned, the Judge indicated that he proposed to sentence the defendant on the basis that he was satisfied that the defendant had the firearms for reasons arising out of his drug trafficking activities as well as for the purpose of protecting himself and his family from those who were threatening him. In relation to the money, the Judge considered that there was no explanation consistent with honest possession. The only conclusion reasonably and rationally open was that the money was the proceeds of thefts, drug trafficking or both. The Judge indicated that in the circumstances, the fact that the defendant was the treasurer of his local branch of the Rebels gave rise to the inference to the exclusion of all other possibilities that he was holding the money in his capacity as treasurer.
The Judge had regard to the fact that the defendant was a heavy user of methylamphetamine. He was satisfied that the defendant had access to significant quantities of ecstasy. He observed that although the defendant was not at the very top of the hierarchy of the commercial network concerned, he was much more than a mere street trader. The Judge considered that this had to be reflected in the sentence ultimately imposed.
At the date of sentencing, the defendant was age 35. The Judge had regard to the defendant’s personal circumstances, which included his difficult upbringing. The Judge accepted that the defendant was devoted to his children and was mindful of the hardship that would be caused to the defendant’s family by the imposition of a custodial sentence. The Judge noted that although the defendant’s imprisonment might cause greater hardship than would ordinarily be the case, he did not regard the defendant’s circumstances to be so compelling as to be regarded as exceptional. The Judge ultimately concluded that general deterrence must predominate in fixing the sentence for the defendant’s crimes.
The Judge imposed one sentence of two years and seven months imprisonment with respect to the two firearms offences. He indicated that but for the pleas of guilty the sentence would have been three years and six months. That sentence was to be served cumulatively upon the sentence of four months, which was activated as a result of the revocation of the order for suspension of the sentence imposed in the Magistrates Court on 7 August 2006.
For the crime of unlawful possession, the defendant was sentenced to imprisonment for 15 months, that sentence having been reduced from 20 months to reflect the plea of guilty. That was made cumulative on the sentence for the firearms offences.
For the crime of trafficking, the Judge ordered that the defendant be imprisoned for seven years and six months. The Judge indicated that but for the defendant’s plea of guilty, he would have imposed a term of imprisonment of 10 years. That sentence was ordered to be served cumulatively on the other sentences. That resulted in a total sentence of eleven years and eight months. The Judge then fixed a non-parole period of seven years and four months. He indicated that he had reduced the non-parole period below what would otherwise have been fixed in order to reflect the defendant’s change in attitude and his current prospects. The defendant had been in custody since 6 March 2008. As a consequence, the Judge reduced the sentence and the non-parole period by one year, nine months and eleven days to make allowance for time already served.
The defendant has appealed against that sentence on the single ground that the sentence is manifestly excessive. In submitting that the sentence imposed with respect to the trafficking charge was manifestly excessive, counsel for the defendant referred to the relevant statutory provisions and regulations in force at the time of the defendant’s offending, which prescribed the quantity of a controlled drug required to bring it within the definition of “large commercial quantity”. In the case of MDMA, this was 0.75 kilograms for the drug in its pure form or 1.00 kilogram for any mixture containing the drug. The total weight of the pure MDMA the subject of the trafficking charge in this case was 165.4 grams, an amount less than that prescribed for MDMA in its pure form. In addition, the quantity of the drug in its mixed form was 1302.5 grams, just over the prescribed amount for the drug in its mixed form. On that basis, counsel for the defendant submitted that the offence should be regarded as being at the lower end of the scale for a trafficking offence under section 32(1) Controlled Substances Act 1984. This submission was not, however, put to the sentencing Judge. It was not disputed that the defendant had been correctly charged pursuant to section 32(1). Counsel for the defendant further acknowledged that the sentencing Judge had not made any factual errors with respect to the amount of tablets, the weight of the drugs, nor their value or maximum penalty. In view of the quantity of drugs found in the possession of the defendant, we consider that the Judge appropriately categorised the defendant as more than a mere street trader. Bearing in mind the maximum penalty applicable to this offence we do not consider that the sentence of seven years and six months after discount for the plea of guilty can be regarded as outside the range of appropriate penalties for this offence.
No issue was taken with respect to the penalty imposed in relation to the firearms offences. However, counsel for the defendant was critical of the sentence imposed with respect to the unlawful possession charge. In respect of that offence, the Judge indicated that before discounting for the plea of guilty, the starting point of that sentence was 20 months imprisonment. Counsel for the defendant pointed out that this penalty was only four months short of the applicable maximum penalty of two years.
Although this sentence is close to the maximum penalty it is not surprising that the Judge treated this as a serious example of an offence of this type. The amount of money involved was substantial. In view of the defendant’s refusal to provide any explanation as to the honest possession of that money, together with the agreed facts as to the defendant’s position in the Rebels Motor Cycle Club the Judge was entitled to draw the inference that the defendant was holding the money in his capacity as treasurer of that club and that the money was the proceeds of thefts, drug trafficking or both. The defendant’s criminal history included prior convictions for unlawful possession, one of which formed part of the group of offending for which the defendant was sentenced on 7 August 2006 and for which he received a suspended sentence. In our opinion, the sentence with respect to this offence reflected the serious nature of this crime.
The defendant further complained that the sentencing Judge had fallen into error by ordering that the sentences be made cumulative on each other before he identified the separate sentence for each of those offences. In addition it was submitted that, having made an order for those sentences to be served cumulatively, the Judge failed to have any or sufficient regard to the principle of totality.
In this case the sentencing Judge was dealing with three discrete offences, each of which was serious example of its kind. In those circumstances it is understandable that he decided to approach the matter by accumulating each sentence which he considered appropriate to the relevant offence. Although the sentences imposed for the individual offences are, in our opinion, within the appropriate range, it is nevertheless necessary to consider whether having accumulated those sentences the Judge failed to take any or sufficient account of the principle of totality. The principle of totality referred to by King CJ in Rossi:[1]
… enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.
[1] R v Rossi (1988) 142 LSJS 451 at 453.
The principle of totality has been the subject of discussion in a number of other cases which are summarised in Randall-Smith. [2]
[2] R v Randall-Smith (2008) 100 SASR 326 at 353-355 [103]-[108] (Gray and Layton JJ).
In this case the Judge did not refer to the principle of totality in his sentencing remarks, but that does not mean that he overlooked it. The total sentence imposed by the Judge reflected penalties for serious criminal misconduct. It included a sentence for a crime for which the maximum penalty provided by Parliament is life imprisonment. The Judge was, however, prepared to take a merciful approach to the non-parole period by reducing it below what otherwise would have been the case in order to reflect the defendant’s apparent change in attitude and his current prospects. In this case we do not consider that the sentence required reduction on account of totality. As Doyle CJ said in B, RWK: [3]
… The sentence in question cannot be regarded as a crushing sentence. That is often an indicator that a sentence should be reduced by applying the totality principle. The totality principle cannot be invoked, as there is a tendency to do, as a routine argument for a further reduction in what is otherwise an appropriate sentence. The totality principle is one that will apply in relatively infrequent circumstances.
[3] R v B, RWK (2005) 91 SASR 200 at 203 [16].
We are not persuaded that there is any basis upon which to interfere with the sentence imposed by the Judge. We would dismiss the appeal.
VANSTONE J: I agree that the appeal should be dismissed. No error has been shown in the approach of the learned sentencing Judge to the sentence. The sentence was within the range available for crimes of this nature.