R v CONSTANTINOU - [2005] SASC 466

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CONSTANTINOU
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice White)
14 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeal against sentence - appellant pleaded guilty to possessing a controlled substance for sale - appellant sentenced to a head sentence of two years and three months with twelve months non-parole - sentencing judge refused to suspend the sentence - whether good reason existed to suspend the sentence - whether forfeiture orders ought to have been considered in sentencing the appellant - held: good reason existed to suspend the sentence - appeal allowed.
Controlled Substances Act 1982 s 32(1)(e), referred to.
Dinsdale v R (2000) 202 CLR 321, applied.

R v CONSTANTINOU
[2005] SASC 466
Court of Criminal Appeal: Doyle CJ, Sulan and White JJ

DOYLE CJ: I agree with the reasons given by Sulan J for the orders that the Court made on the hearing of the appeal. There is nothing that I wish to add to those reasons.
SULAN J: This is an appeal against sentence. The appellant was committed for sentence to the District Court, having pleaded guilty in the Magistrates Court to possessing a controlled substance for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984. The appellant had in his possession thirty seven ecstasy tablets, and one tablet containing methylamphetamine. He was sentenced to two years and three months imprisonment, with a non-parole period of twelve months. But for his plea of guilty, the sentencing judge would have imposed a sentence of three years imprisonment. The sole ground of appeal is that the sentence should have been suspended.
On 23 November 2005, having heard argument, the Court allowed the appeal and varied the sentence of the District Court by ordering that the sentence of imprisonment be suspended. The appellant entered into a bond in the sum of $500 to be of good behaviour for two years, and to be under the supervision of a probation officer for a period of twelve months. The Court further ordered that the drugs be forfeited, and that the sum of $745 seized from the appellant be forfeited. The appellant entered into the bond. The Court indicated that it would publish its reasons for the decision at a later time.
Facts
At about 11.30 p.m. on 18 February 2005, the appellant was parked illegally in his car with three other men when police approached the car. One of the officers smelt cannabis and the car was, therefore, searched. The officers found a bag belonging to the appellant with 37 tablets found to contain ecstasy, and one tablet found to contain methylamphetamine. The total quantity of ecstasy found was 2.41 grams. He also had in his possession $745 in cash.
The sentencing judge accepted that the appellant had purchased 40 tablets the night before, and paid $20 per tablet. The judge concluded that the appellant intended to use some of the tablets himself, and to sell some for $40 per tablet to people who were known to him, or had been introduced to him. At the time that the police spoke to the appellant, the appellant had sold two tablets to two of the men in the car.
The sentencing judge concluded that the appellant, a first offender who was eighteen years and six months at the time of the offence, was an immature man who did not appreciate the seriousness of his conduct. At the time he was sentenced, the appellant was nineteen years of age. He had had an unsettled childhood, his parents having separated when he was an infant. His relationship with his father had not been particularly happy in his early days although, as he grew older, it had improved. At the time of being sentenced, the appellant was employed by his father. That work was still available to him.
The appellant had a good relationship with his mother and his siblings, who had supported him throughout, and continued to support him. Since his arrest and release on bail he had been training to work in the hospitality industry, which he intended to pursue.
Dr White, a psychologist, observed that the appellant was of borderline range of intelligence, and that his non-verbal abilities were extremely poor, and his problem-solving abilities were equivalent to those of a person aged ten years. The sentencing judge had regard to Dr White’s report, and accepted that the offending was naïve, and that the appellant had acted in that way to promote himself with his peers, which demonstrated his immaturity.
The sentencing judge noted that the appellant had referred himself to the Offenders’ Aid and Rehabilitation Services, and had undertaken alcohol and drug counselling. The appellant commenced using cannabis at the age of sixteen and had also used amphetamines and ecstasy. He had maintained regular contact with the services, he had been motivated to address his problems, and he had decreased his drug use.
The sentencing judge considered the question of suspending the sentence. He concluded that it is only in exceptional circumstances that a term of imprisonment is to be suspended for what he regarded as serious offending. He concluded that there was nothing exceptional in the appellant’s case, and he declined to suspend the sentence. Having regard to the appellant’s youth and good character, and having regard to the family support which was available to the appellant upon his return into the community, and the positive steps he had already taken, the sentencing judge imposed a lower than usual non-parole period of twelve months. He fixed a head sentence of two years and three months, after taking into consideration the appellant’s plea of guilty.
The appeal
Before an appellate court will interfere with a sentencing judge’s exercise of his or her discretion, it must appear that there has been some error made by the judge, either in acting upon a wrong principle, or by allowing extraneous or irrelevant matters to affect the judge, or that the judge has made a mistake of fact, or that the judge did not take into account some material consideration. If an appellate court concludes that a sentence is unreasonable or plainly unjust, the court may infer that there has been a failure to properly exercise the discretion and, in those circumstances, the court will interfere.[1]
[1] Dinsdale v R (2000) 202 CLR 321 at 324, 325 and 329
The appellant’s counsel submitted that the sentencing judge failed to give sufficient weight to the appellant’s youth, his mental age and abilities, his lack of prior criminal record, his efforts to rehabilitate himself and, in particular, his attendance at the Offenders’ Aid and Rehabilitation Service, and to his family support network. His counsel submitted that the sentencing judge failed to have sufficient regard to the circumstances of the offending, namely, that this was low‑level dealing in drugs to friends and acquaintances, with a relatively small amount of the drug, and in circumstances where a relatively small profit was to be gained by the appellant. The appellant’s counsel conceded that the offending was serious, but submitted that the sentencing judge placed too much weight upon the seriousness of the offence and upon general deterrence in concluding that good reason did not exist to suspend the sentence.
It was submitted that, in the circumstances of this case, the best long-term protection for the community was the rehabilitation of the appellant, who had taken substantial steps towards his rehabilitation. The appellant’s prospects for the future were very positive.
The appellant’s counsel further submitted that the sentencing judge had failed to have regard to the fact that he had forfeited $745, and that the drugs for which he had paid about $1545 had been forfeited. There is no merit in that argument. A sentencing court cannot have regard to the value of the drugs forfeited. The possession of the drugs was illegal. Those who choose to purchase drugs for resale or for their own use cannot expect to be given consideration for any financial detriment they suffer from forfeiture of the illegal substance. Insofar as the cash of $745 is concerned, it is of little significance in considering the appropriate penalty that could be imposed, having regard to the maximum penalty for this offending of 25 years imprisonment and a fine of $200,000.
Suspension of the sentence
Offences of possessing prohibited drugs for sale will almost invariably result in an immediate custodial sentence. However, in some cases it may be appropriate to suspend the sentence. It is always difficult for sentencing judges to ensure that sentences give effect to the intention of the legislature that, on the one hand, sentences for this type of offending are severe and act as a deterrent to others and, on the other hand, that the personal circumstances of the offender, including the prospects of rehabilitation, are given sufficient weight. The appellate court is reluctant to interfere with the exercise of a sentencing judge’s discretion not to suspend a sentence.
In this case, the judge failed to give sufficient weight to the combined effect or weight of the mitigating circumstances when taken together. I refer to the appellant’s youth, his mental age and abilities, his immaturity, his lack of a prior criminal record, and the steps he had taken towards his own rehabilitation. The appellant had strong support from his family. He had continuing employment. As a consequence of his arrest, it is clear that the appellant had received an enormous shock and had realised for the first time the seriousness of his offending and the need to obtain professional assistance. He had sought assistance, and his prognosis for rehabilitation is good. He is a young man with a low intelligence and a consequent failure to appreciate the seriousness of his conduct.
The judge’s approach was too stringent. He paid too much attention to a search for exceptional circumstances and insufficient attention to the combined effect of the circumstances I have identified. It follows that the Court determined that a merciful approach could be taken in his case.
In the special circumstances of this case, the Court concluded that the sentencing judge was in error, and good reason existed to suspend the sentence. The appeal was allowed insofar as the Court determined to suspend the sentence.
WHITE J: I agree with the reasons of Sulan J.