R v Couch - [2008] SASC 207

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COUCH
[2008] SASC 207
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Anderson)
29 July 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - IN MINOR QUANTITIES OR FOR PERSONAL USE
Appeal against sentence imposed by the District Court - appellant found guilty by jury of unlawful possession of methylamphetamine - judge imposed a sentence of imprisonment of 4 months which he suspended upon appellant entering into a bond - whether sentence manifestly excessive - whether time spent in custody properly taken into account.
Held: having regard to the circumstances of the offending and the appellant's background the sentence was appropriate, even though severe - appeal dismissed.
Controlled Substances Act 1984 (SA) s 31(1)(a), s 31(2)(b), s 32(1)(e) and s 33L(1)(a), referred to.

R v COUCH
[2008] SASC 207
Court of Criminal Appeal: Doyle CJ, Duggan and Anderson JJ

DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons given by Anderson J. There is nothing that I wish to add.
DUGGAN J: I agree that the appeal should be dismissed for the reasons given by Anderson J.
ANDERSON J:
Introduction
This is an appeal against a sentence imposed by a District Court judge. On 6 September 2006 the appellant was found guilty by a jury of unlawful possession of methylamphetamine contrary to s 31(1)(a) of the Controlled Substances Act 1984 (the Act). That section has since been replaced by s 33L(1)(a). The appellant was acquitted by the jury of the charge of possessing methylamphetamine for sale contrary to s 32(1)(e) of the Act. The offence took place on 1 March 2004 when police found the appellant in possession of 5.97 grams of a crystal substance. He was arrested at that time. He was then aged 41. I will refer to the offence for which he was convicted as the possession offence.
The offence of unlawful possession carried a maximum penalty of 2 years imprisonment or a $2,000 fine or both pursuant to s 31(2)(b) of the Act, which was the relevant section at the time of the offence.
The sentencing judge imposed a sentence of imprisonment of 4 months, which he suspended upon the appellant entering into a bond.
The ground of appeal is that the sentence imposed was in the circumstances manifestly excessive. It was submitted that at the date he was sentenced the appellant had already served 4 months and 7 days in custody on remand and that to impose a further period of imprisonment was excessive.
However, the time spent in custody was not all related to this offence. The appellant was arrested and charged for the current offending on 1 March…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Couch

Details

AGLC: R v Couch [2008] SASC 207
Case: [2008] SASC 207
Decision Date: 29 July 2008

CaseChat Overview and Summary

The case of R v Couch involved an appeal against a sentence imposed by the District Court, where the appellant was found guilty by a jury of unlawful possession of methylamphetamine. The appeal focused on the appropriateness of the sentence, which was imprisonment for 4 months, suspended upon the appellant entering into a bond. The central legal issues included whether the sentence was manifestly excessive and whether the time spent in custody had been properly taken into account.

The court examined the nature of the offence and the circumstances surrounding the appellant's possession of methylamphetamine. The appellant had 5.97 grams of methylamphetamine crystal in his possession, of which 3.97 grams was pure. The appellant claimed that he had purchased the drug for personal use and on behalf of two friends, suggesting he only possessed one third of the total amount. The sentencing judge considered the appellant's long history of drug use, which progressed from ingestion and injection to smoking the drug. Given the appellant's background, the judge imposed a 4-month sentence, which was then suspended.

In the appeal, it was argued that the sentence was excessively harsh due to the time the appellant had already spent in custody. The appellant's counsel submitted that the sentence should have been discounted because the appellant had offered to plead guilty to a more serious offence before the trial. The court concluded that the sentence was not manifestly excessive, considering the appellant's history of non-compliance with previous court orders and his inability to benefit from community supervision. The court emphasised the seriousness of the offence, given the "club" arrangement that facilitated the quick distribution of large quantities of drugs.

Ultimately, the court found that the sentence was appropriate given the appellant's history and the nature of the offence. The court dismissed the appeal, affirming that the sentence was not manifestly excessive and was indeed appropriate.

Orders

Orders of the court

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Background

Background to the litigation

On 25 February 2008 the court heard submissions on sentence for the current offending and sentence was given on 3 March 2008. The appellant remained in custody from 7 February 2008 until 3 March 2008.Background The circumstances of the offending are such that the jury must have found that the version of events given by the appellant in his evidence was a reasonable possibility. Found in the appellant’s possession was 5.97 grams of methylamphetamine crystal, of which 3.97 grams was pure. The version given by the appellant was that although he purchased the methylamphetamine, he did so on his own behalf and for two friends because it was less expensive. He said that he was addicted to methylamphetamine and that the purchase was made on the basis that it was for their respective personal use. In other words, he claimed that he was only purchasing one third of the total amount for himself. The sentencing judge dealt with the matter on the basis that the appellant was an amphetamine user of many years who had progressed from ingesting and injecting the drug to smoking it. The judge said that the appellant’s share of the amount purchased was to be smoked and that that was the reason why the drug was purchased in such a high concentration. The sentencing judge referred to the appellant’s background which involved him being introduced to drugs by his father, who was a truck driver. The appellant does not have a long history of previous drug offences. In September 2002 he was arrested and charged with taking part in the manufacture of amphetamines. He was sentenced to 17 months imprisonment with a non-parole period of 9 months, to operate from 2 March 2004. When sentencing for the current offence the sentencing judge took into account the time already spent in custody, and sentenced the appellant to 4 months imprisonment. The judge then suspended the sentence.Arguments on appeal Ms David for the appellant argued that the sentence was manifestly excessive because of the time the appellant had already spent in custody. As indicated, the sentencing judge had regard to that factor when imposing the sentence. Ms David conceded that there was an overlap in the time spent in custody because some of the time was counted as time serving another sentence, as explained earlier. Ms David submitted that some discount should have been allowed by the judge because the appellant had offered to plead guilty to a more serious offence than the one for which he was convicted prior to the trial. She submitted that if such a discount was applied, it made the judge’s starting point 10 or 11 months as against a maximum of 2 years imprisonment. In my view, it was more likely 6 or 7 months, for the reasons already given. Ms David also produced a schedule showing District Court sentences over an 8 year period for this type of offence, namely, simple possession. The point she made was that there was no term of imprisonment imposed in the matters referred to in her schedule. It is my view that the schedule is of limited assistance, as Ms David accepted. She submitted that it should be rare, in any event, to impose a term of imprisonment for such an offence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Courts in South Australia consider methylamphetamine to be a “middle range” drug. It is a drug of increasing prevalence and, as I have said, the “club” arrangement for purchasing the drug facilitated its quick distribution by a dealer anxious to move it on.Conclusion In those circumstances it is not possible to conclude that the sentence imposed was manifestly excessive. It is my view that it was in fact appropriate, even though severe. Because of the circumstances of the offending and having regard to the appellant’s background and inability to comply with previous orders, it is my view that the sentencing judge was correct in imposing the additional period of imprisonment. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Mr Norman for the Director of Public Prosecutions submitted that it was the group arrangement which made this a serious offence. He emphasised the swift movement of large quantities of drugs through the “club” method. He submitted that both the quantity and purity of the drug were significant matters. Mr Norman emphasised that the appellant had previously been sentenced for 17 months for manufacturing the same drug.Sentencing considerations The pre-sentence report prepared for the 2002 offence of taking part in the manufacture of methylamphetamines reveals that the appellant had stated that he had been using amphetamines for approximately seven years at a cost of about $1,000 per week. The report indicates that the appellant has a poor history of complying with community service orders and bail conditions. As indicated earlier, he did not appear when he was due to be sentenced. The pre-sentence report prepared for this offending confirms the appellant’s record in failing to comply with conditions imposed under bonds. He has actually served one period of 40 days in prison for breach of a community service order. While on parole the appellant has similarly breached conditions of reporting and has used drugs contrary to the terms of his parole. The author of the pre-sentence report says:The defendant’s history of responding to community based supervision is on the whole poor with breaches or cancellations recorded against a number of orders over the past decade. The parole period, albeit that it was some two and a half years ago, is perhaps the most useful guide to Mr Couch’s potential response to community supervision. The defendant’s ongoing use of amphetamine drugs over the years and also through the short period of parole in 2005 has been a major reason why he has not been able to benefit from previous periods of community supervision. Departmental records show that Mr Couch has previously identified a lack of stable employment and poor peer associations as significant risk factors in connection with his use of drugs. It may be self evident to say that unless he makes a determined effort to address those and other negative issues he could again easily relapse into drug use and into offending to support his use. When the appellant’s background is examined, it is apparent that the judge would have had little confidence in imposing a community service order, given that the appellant has disregarded and breached such orders in the past. He has also breached bail in the past, and the offence for which he was convicted was a breach of his parole. In those circumstances it is not difficult to see how the sentencing judge reasoned in relation to the options which he had available. It is clear that this was a serious offence. The “club” arrangement, which was for the three persons, including the appellant, to purchase drugs for their own use, enabled larger quantities of drugs to be distributed quickly. The sentencing judge referred to the methylamphetamine as a “substantial quantity”. He clearly regarded the offending as serious but still exercised his discretion to suspend the sentence because he considered that good reason existed for the suspension.