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 That section has since been replaced by s 33L(1)(a).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 2004. He was refused bail for this offence and remained in custody from 1 March 2004.
The appellant was sentenced on 30 November 2004 to 17 months imprisonment with a non-parole period of 9 months for the offence of taking part in the manufacture of amphetamines (“the manufacture offence”). This sentence was backdated to 2 March 2004.
The appellant was eligible for parole on 1 December 2004 on the manufacture offence, however no application for parole was made due to the appellant awaiting trial for the current offending. He was eventually granted bail on the possession offence on 10 March 2005.
The period from 1 December 2004 to 10 March 2005 amounted to 99 days in custody.
On 5 September 2006 the appellant was found guilty of the possession offence. He was remanded on bail for submissions on sentence.
On 21 September 2006 the appellant failed to attend court. A bench warrant was then ordered and bail was revoked.
The appellant was finally arrested on this bench warrant on 26 January 2008, and he spent 5 days in custody before being granted bail on 31 January 2008. The matter was adjourned to 6 February 2008 for mention. The appellant failed to attend on 6 February 2008 and a bench warrant was issued. The appellant was arrested on the bench warrant on 7 February 2008 and bail was refused.
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.
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.
In my view it was serious offending which called for a sentence which reflected both general and personal deterrence. The sentencing judge achieved this by imposing a sentence of 4 months in addition to the 4 months and 7 days already spent in custody, albeit that some of that time was for another offence and some was self-imposed.
Whilst this sentence is certainly at the high end of an available range, it is not so high as to warrant interference by this Court, in my opinion.
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.