R v Couper - [2009] SASC 361

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COUPER
[2009] SASC 361
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice White)
27 November 2009
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING MDMA (ECSTASY)
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant pleaded guilty to four counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) - two of the counts related to sales of a single ecstasy tablet, one of the counts involved the sale of six ecstasy tablets, and one related to the sale of ten ecstasy tablets - appellant admitted that he sold small quantities of ecstasy regularly - appellant sought assistance in relation to his use of drugs after apprehension by police - Judge imposed sentence of imprisonment for 27 months and fixed a non-parole period of 18 months - Judge declined to suspend sentence of imprisonment that he imposed - appeal against sentence.
HELD: the conduct the subject of the offences is what sustains the retail trade in illicit drugs and is serious - having regard to the prevalence and seriousness of the offences, the head sentence was within range - non-parole period unreasonably high having regard to appellant's good prospects of rehabilitation and youth - no error in Judge's decision not to suspend sentence - appeal allowed for the purpose of reducing non-parole period to 12 months.
Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Markarian v The Queen (2005) 228 CLR 357, applied.

R v COUPER
[2009] SASC 361
Court of Criminal Appeal: Doyle CJ, Bleby and White JJ

DOYLE CJ: Mr Couper pleaded guilty in the Magistrates Court to four counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The maximum penalty for this offence is a fine of $50,000 or imprisonment for 10 years, or both. He was committed for sentence in the District Court. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), a Judge of the District Court imposed a single sentence of imprisonment in respect of the four offences to which Mr Couper had pleaded guilty. He sentenced Mr Couper to imprisonment for 27 months, and fixed a non-parole period of 18 months.
Mr Couper appeals against the sentence that the Judge imposed. Mr Henchliffe, counsel for Mr Couper, argues that the Judge erred in that both the head sentence and non-parole period were manifestly excessive. He argues that, in imposing the sentence that he did, the Judge failed to give adequate weight to Mr Couper’s early pleas of guilty and to the assistance that he gave to the investigating authorities. Complaint is also made about the Judge’s…

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 Couper

Details

AGLC: R v Couper [2009] SASC 361
Case: [2009] SASC 361
Decision Date: 27 November 2009

CaseChat Overview and Summary

The appellant in this case, Mr Couper, has appealed against the sentence imposed by the District Court of South Australia for four counts of trafficking in a controlled drug. The case was heard in the Supreme Court of South Australia, where Mr Henchliffe appeared as counsel for the appellant. The primary legal issues the court was required to address were whether the head sentence and non-parole period were manifestly excessive and whether the judge erred in declining to suspend the sentence of imprisonment. The appeal hinged on the appellant's argument that the sentence was excessively harsh, particularly in relation to the non-parole period, and that the judge failed to appropriately consider the appellant's early pleas of guilty and his cooperation with authorities.

The court considered the appellant's conduct, which involved the regular sale of small quantities of ecstasy tablets, sustaining the retail trade in illicit drugs. The court noted the prevalence and seriousness of the offences and concluded that the head sentence was within the appropriate range. However, the non-parole period was deemed unreasonably high given the appellant's good prospects for rehabilitation and his youth. The court also found that there was no error in the judge's decision not to suspend the sentence, given the serious nature of the offences and the need for general deterrence. As a result, the appeal was allowed solely to reduce the non-parole period to 12 months.

In summary, the court allowed the appeal to reduce the non-parole period from 18 months to 12 months but otherwise dismissed the appeal. The sentence imposed by the District Court was set aside, and Mr Couper was re-sentenced to a single term of imprisonment of 27 months with a non-parole period of 12 months. This decision was based on the court's view that while the offending was serious, the appellant's personal circumstances, including his age, lack of prior convictions, and efforts to cease drug use, warranted a more lenient approach in terms of the non-parole period.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Mr Couper appeals against the sentence that the Judge imposed. Mr Henchliffe, counsel for Mr Couper, argues that the Judge erred in that both the head sentence and non-parole period were manifestly excessive. He argues that, in imposing the sentence that he did, the Judge failed to give adequate weight to Mr Couper’s early pleas of guilty and to the assistance that he gave to the investigating authorities. Complaint is also made about the Judge’s failure to suspend the sentence of imprisonment. Background The manager of a hotel was informed by staff that they believed that sales of drugs had taken place at the hotel the previous night. The manager viewed security footage. He copied what he considered to be the relevant footage, and gave it to the police a few days later. The police viewed the footage. They formed the view that the footage recorded the sale of drugs. As a result of enquiries that the police made, they identified the person whom they believed to have been selling the drugs to be Mr Couper. Police attended at Mr Couper’s house. They informed Mr Couper that they believed that he had been selling drugs, and asked whether he had any drugs at his house. He told the police that he had a syringe in the fridge. He allowed the police to search his house. Police located a syringe filled with clear liquid in the fridge. Mr Couper later told police that the clear liquid contained the drug commonly known as speed. Police seized a mobile phone from the house. Police asked Mr Couper whether he had sold any drugs. He told police that he sold about 20-30 tablets a month of the drug commonly known as ecstasy. He told police that the last time that he had sold ecstasy tablets was about two weeks before that day. He admitted that he took ecstasy on days that he was not working. He later said that he sold between five and 15 tablets of ecstasy a month, depending on how many he would take. He told police that he sold ecstasy tablets to support his own use of the drug. Police asked Mr Couper whether on the previous weekend he had been at the hotel from which the footage was taken. He confirmed that he had been at the hotel. The police asked Mr Couper whether he had sold an ecstasy tablet to a male person at the hotel. Mr Couper said that he did not think that he sold drugs at that time. Mr Couper was taken to a police station and shown the footage obtained from the hotel. He confirmed that he was depicted in the footage. The footage depicted a person with his wallet out approaching Mr Couper. Mr Couper can be seen reaching into his pocket, and exchanging something with the person. Police asked Mr Couper whether he had sold drugs at this time. He said that he was intoxicated when he was at the hotel, and could remember little of what happened there. The footage captured another incident involving Mr Couper. He can be seen approaching a man who he identifies as his uncle. His uncle is depicted removing his wallet from his pocket. Mr Couper gives something to his uncle, which his uncle puts into his pocket. Mr Couper’s uncle gives Mr Couper some money, which he puts into his pocket. Mr Couper conceded that it was possible that he sold his uncle an ecstasy tablet. He soon admitted that on both occasions that I have described, he sold an ecstasy table. He said that he spent the proceeds of the sales on beer. These two incidents were the subject of the first two counts of trafficking in a controlled drug.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Judge’s decision not to suspend the sentence is not indicative of error. As always, the question was whether there was good reason to suspend the sentence. It is not easy to find good reason to suspend a sentence for offending of this kind. It is serious offending, it calls for a deterrent sentence, and these circumstances call for greater weight than do the personal circumstances of the offender. Conclusion For those reasons I would allow the appeal for the purpose only of reducing the non-parole period to 12 months, and would otherwise dismiss the appeal. To achieve this result, it is necessary to set aside the sentence and to re-sentence Mr Couper. I would make the following orders:1 That the appeal against sentence be allowed.2That the sentence imposed by the District Court be set aside.3That Mr Couper be sentenced to a single sentence of imprisonment for 27 months, exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA).4That a non-parole period of 12 months be fixed.5That the head sentence and non-parole period commence on 28 September 2009, the date on which the District Court Judge sentenced Mr Couper. BLEBY J: I agree with the orders proposed by the Chief Justice and with his reasons. WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons.

Ratio Decidendi

Legal Principle Established

The Judge noted that Mr Couper did not have any relevant prior convictions. He fixed a single sentence of imprisonment in respect of the four offences. The Judge indicated that he would have imposed a sentence of imprisonment for 36 months had it not been for Mr Couper’s pleas of guilty. After taking those pleas into account, the Judge imposed a sentence of 27 months’ imprisonment. He fixed a non-parole period of 18 months. The Judge declined to suspend the sentence, having regard to the seriousness of the offending and to the importance of general deterrence. He considered that decisions of this Court had “made it clear” that suspension is “inappropriate” in a case of the type under consideration. Consideration of submissions Mr Henchliffe submits that the sentence is manifestly excessive, that the non-parole period is too high a proportion of the head sentence, and that the Judge erred in failing to suspend the sentence. As to the offences, he submits that Mr Couper was hardly engaged in a commercial enterprise, the term used by the Judge. If it was a commercial enterprise, it was at a very low level. I disagree. Mr Couper admitted to selling about 20 tablets a month, over some time. The number of sales, when taken over a period of time, becomes substantial. Mr Couper admitted having sold about 18 tablets over the course of six days, illustrating this point. And this form of selling is what sustains the retail trade in illicit drugs. It is a form of offending that is prevalent. The Judge rightly considered that the offences were serious. Mr Couper was not to be sentenced for anything other than the four offences in question. However, he was to be sentenced on the basis that his four offences were not isolated lapses into offending, and on the basis that they were offences of a prevalent kind, and were serious because of the way in which they sustain the trade in illicit drugs. This background also deprives of most of its force the submission that the offences were committed over only about six days. Mr Henchliffe also argued that the Judge undervalued Mr Couper’s openness and cooperation, once the police spoke to him. It is true that he was relatively frank. But, without going into details, his record of interview indicates an element of prevarication, until it became clear that there was no point in doing so. There is no reason to think that the Judge erred in this respect. Mr Henchliffe was on stronger ground in arguing that Mr Couper’s personal circumstances called for a more lenient approach. Mr Couper was only 25 years of age at the time. His only conviction was for a minor public order offence. He had never faced a serious charge, and had never been imprisoned. He had a good employment record. He appeared to have made a genuine effort to stop using drugs. But it has to be said that this was only after he was detected offending. His offences called for a sentence that has a deterrent effect, but there is reason to think that the prospects of rehabilitation are good, and that this should be reflected in the sentence.