R v Constant (No 2)

[2017] SASCFC 36

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CONSTANT (No 2)

[2017] SASCFC 36

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Justice Hinton)

27 April 2017

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IMPORT-EXPORT OFFENCES

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES

The applicant pleaded guilty to six counts of attempting to import a marketable quantity of a border controlled precursor contrary to ss 11.1(1) and 307.12(1) of the Criminal Code (Cth). In committing those offences, the applicant also contravened a suspended sentence bond imposed in respect of an earlier offence of trafficking in a relatively small quantity of a controlled drug.

The penalty imposed in relation to the Commonwealth offences was manifestly excessive and was set aside. The Court ordered that the applicant serve the non-parole period of the revoked suspended sentence, such non-parole period having been reduced to four months. The applicant was granted bail on the Commonwealth offences, effective upon her completing her sentence under the revoked and reduced suspended sentence.

Re-sentencing for the Commonwealth offences. 

Held per the Court:

1.  A period of imprisonment is not required for the purposes of specific deterrence or to protect the community.

2.  The applicant is sentenced to imprisonment for 13 months. The starting sentence of 16 months is reduced by two months on account of her willingness to facilitate the course of justice, and a further one month in view of the fact that she spent a week in custody upon her arrest and thereafter three months on home detention bail.

3.  The applicant is to be released forthwith on the applicant giving security by a recognizance in the sum of $100 with conditions.

Criminal Code Act 1995 (Cth) s 11.1, s 307.12; Crimes Act 1914 (Cth) s 16A; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Nguyen (2010) 205 A Crim R 106, considered.

R v CONSTANT (No 2)
[2017] SASCFC 36

Court of Criminal Appeal: Nicholson, Lovell and Hinton JJ

THE COURT:

1. These remarks should be read together with the reasons this Court delivered on 15 August 2016 for the orders made on 29 July 2016 granting Ms Constant permission to appeal against sentence and allowing that appeal.[1]

   [1]    R v Constant (2016) 126 SASR 1.

2. The consequence of our orders of 29 July 2016 was that Ms Constant served the non-parole period of the revoked suspended sentence, such non-parole period having been reduced to four months. That left the Court in the position where it was required to re-sentence Ms Constant for the six counts of attempting to import a marketable quantity of a border controlled precursor (the Commonwealth offences), committed contrary to section 307.12(1) and section 11.1(1) of the Criminal Code (Cth).

3. On 15 August 2016 we adjourned sentencing of Ms Constant on the Commonwealth offences to 14 March 2017. We did so to give Ms Constant the opportunity to continue to demonstrate her commitment to her rehabilitation. For that same purpose Ms Constant was granted bail on the Commonwealth offences, effective upon her being released after serving the non-parole period under the revoked and reduced suspended sentence.

4. Today we sentence Ms Constant afresh for the Commonwealth offences.

5. Ms Constant has served the reduced sentence we imposed for the suspended sentence bond. We say no more about it, save in two respects – first, we bear in mind that committing the Commonwealth offences whilst subject of a suspended sentence bond aggravates her criminality. Second, in sentencing her today we take into account the sobering effect that her four months in prison has had upon her.

6. Ms Constant gave birth to her second daughter in October 2016 after being released on parole and on bail in August 2016.

7. Since being released she has resumed her relationship with Mr Banks. That has not been easy on account of Mr Banks finding work in New South Wales. It has meant that they have worked to keep their relationship alive despite their separation. It has also meant that their daughters have been separated. Ms Constant has remained in this State living with her mother and the new baby. One consequence of Ms Constant’s imprisonment was that Mr Banks became M’s primary caregiver and attachment figure. Ms Constant and Mr Banks thought it was best for M that M remain with Mr Banks. Periodically, as means permit, Mr Banks and M have travelled back to South Australia to spend time with Ms Constant and the baby.

8. Mr Banks’ employment in New South Wales allows for him to provide for his family. Once these matters are resolved it is Ms Constant’s and Mr Banks’ intention that Ms Constant and the baby move to New South Wales where they will live as a family.

9. As mentioned since August 2016 Ms Constant has been on bail and on parole. She will be on parole until May 2017. She has been subject to supervision by Community Corrections Officers. We were provided with a progress report from Ms Constant’s current Community Corrections Officer. That report includes a quotation from departmental records in which on 8 February 2017 Ms Constant’s former Community Corrections Officer noted:

   Ms Constant has displayed very good weekly reporting compliance and has maintained contact with her Community Corrections Officer at all times. She has maintained abstinence from illicit drug use, with negative results to both urine and breath tests conducted.

10. That same officer advised the author of the report:

    … when [Mr Banks] and [M] relocated interstate due to him securing employment we had done quite a bit of work on [Ms Constant’s] applc (sic) for transfer of parole. We then became aware that [Ms Constant] was not even able to submit that applc (sic) due to her pending Supreme Court appeal. Even in those circumstances she accepted it and remained focused upon her parole requirements even though her family was in effect split in half. They have continued to make it work despite such barriers.

11. The report also indicates that since August 2016 Ms Constant has been advised that in that time she has been subject to five drug tests conducted at random. Each has returned a negative result. She has also undertaken three sessions of Alcohol and Other Drug Relapse Prevention counselling. Her counsellor reports:

    [Ms Constant] attended all scheduled appointments punctually. During sessions, [Ms Constant] engaged with the content, contributed openly in regard to her history of substance use and was consistently respectful. [Ms Constant] continuously demonstrated her knowledge of the negative impacts of substance use and crime – on herself, on others, and on the wider community.

12. Ms Constant’s positive progress has resulted in her supervision being relaxed from weekly appointments to fortnightly. In bringing her Progress Report to a close her current Community Corrections Officer reports:

    Despite [Ms Constant’s] partner ([Mr Banks’]) and daughter ([M’s]) need to relocate interstate for employment purposes, and also recent concerns in respect of their youngest daughter’s … health, Ms Constant has continued to impress with her ongoing commitment to meeting her obligations to the conditions of both the Parole Order and the Bail Agreement for which she remains under supervision.

13. We also received a further report from Ms Black in preparation for which Ms Black interviewed Ms Constant and Mr Banks in the company of their two daughters.

14. Ms Black advised that Mr Banks was now M’s primary attachment figure. She noted that M displayed symptoms of separation anxiety in regard to Mr Banks, a likely consequence of her separation from Ms Constant when Ms Constant was imprisoned during a critical phase in M’s development of attachment relationships. Ms Black also noted that Ms Constant and Mr Banks had changed their custody arrangements to prioritise M’s need for stability. Despite this and the separation of the family Ms Constant and M continued to share a positive and affectionate relationship. M was observed to initiate “interactions with Ms Constant, shared eye contact, and appeared comfortable in close physical proximity to her”. Obviously it is in M’s best interests that she maintain her relationship with her mother and ideally for the two of them not to be separated. The same may be said in relation to the younger child, although Ms Black notes specifically:

    [The baby] is just about to enter the critical phase of attachment development, which begins around 6 months of age. The foundations for healthy attachment are developed from birth through consistent, positive parenting, including the parent’s ability to anticipate and meet a child’s needs. Observations of Ms Constant and [the baby] indicated that Ms Constant had been providing [the baby] with the parenting necessary for the development of a healthy attachment relationship.

15. Lastly, Ms Black noted that Ms Constant exhibited symptoms of anxiety associated with the risk of her return to custody.

16. The Commonwealth Director provided us with an updated comparative sentencing schedule for the offence of importing a marketable quantity of a border controlled precursor. We have had regard to the additional cases referred to in that schedule[2] in addition to those to which we were previously referred.

    [2]    R v Mallett [2015] SASCFC 49; R v Tranter (No 2);R v Compton (2014) 119 SASR 480; R v Cheema [2014] VCC 2110; R v Toi Thi Nguyen (DCCRM-12-274, 5 May 2014); R v Williams and Turner (DCCRM-11-2288, 1 October 2013).

17. Section 16A(1) of the Crimes Act 1914 (Cth) obliges us to impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Ms Constant’s offending is serious. It was premeditated and calculated. It involved a course of conduct over a 10 month period. Its consequences for the community are grave. Her explanation and motivation is understandable, but no excuse. Despite our conclusion that Ms Constant’s offending occupies the lower end of the range of seriousness for offending of this type, general deterrence and the principles collected in R v Nguyen have the consequence that imprisonment is the only appropriate sentence.[3] We bear in mind the aggravating effect of the fact that the offences were committed whilst Ms Constant was serving a bond for drug offences and after she first received a seizure notice in January 2013.

    [3] (2010) 205 A Crim R 106 at [70]-[72] (Johnson J with whom Macfarlan JA and RA Hulme J agreed).

18. A lot has happened, however, since Ms Constant was arrested. We are satisfied that a period of imprisonment is not required for the purposes of specific deterrence or to protect the community from Ms Constant. In arriving at these conclusions we are satisfied that Ms Constant has taken significant and hopefully lasting steps in rehabilitating herself. We bear in mind her cooperation with her Community Corrections Officers and the commitment she has shown to proving that she has changed. We are impressed by the maturity she has now shown. We bear in mind her commitment to her young family. We bear in mind her contrition and her willingness to facilitate the course of justice evident in her pleas of guilty. We bear in mind the sobering effect that having served four months in prison will have had upon her.

19. Ms Constant’s progress whilst on parole and bail bears out the observations we previously made that motherhood “is one area in life where the applicant is intent upon, and so far proven capable of, making a difference”[4] and that the “applicant’s rehabilitation, in the main has been achieved through motherhood”.[5]

    [4]   R v Constant (2016) 126 SASR 1 at [92].

    [5]   R v Constant (2016) 126 SASR 1 at [100].

20. Utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA), we impose one sentence for all six Commonwealth offences. We sentence Ms Constant to imprisonment for 16 months. We reduce that sentence by two months on account of Ms Constant’s willingness to facilitate the course of justice, and a further one month in view of the fact that she spent a week in custody upon her arrest and thereafter three months on home detention bail. We order that Ms Constant be released forthwith upon her giving security by a recognizance in the sum of $100 that she will:

    i.be of good behaviour for a period of eighteen months being the term of the recognizance;

    ii.be under the supervision of an officer of the Department for Correctional Services for a period of four months commencing as of the date of the recognizance;

    iii.during the period that she is under supervision, obey any and all lawful directions given to her by the said officer of the Department for Correctional Services including that she undertake any further sessions of Alcohol and Other Drug Relapse Prevention counselling;

    iv.during the period that she is under supervision, not leave the State for any reason except in accordance with the written permission of the Chief Executive Officer of the Department for Correctional Services;

    v.report within two working days of today to the offices of the Department for Correctional Services at 220 Commercial Road, Port Adelaide SA 5015 (Ph: 08 8440 3600).

21. We make plain that in requiring that Ms Constant be subject to supervision for four months, our intent is that, in addition to the period she has spent on bail/parole, she will have the benefit of supervision in the community for approximately 12 months. We expect that during the remaining four months, at the direction of her Community Corrections Officer, she will undertake any further sessions of Alcohol and Other Drug Relapse Prevention counselling considered appropriate.