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 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.
Police then asked Mr Couper about text messages on the mobile phone that they had taken from his house. They asked whether anyone had contacted him on his phone requesting that he sell ecstasy to them. Mr Couper admitted that people did contact him for that reason.
Police released Mr Couper. As a result of examining the text messages on Mr Couper’s phone, they went to the house of a person with whom Mr Couper worked. The workmate told the police that he was in possession of ten ecstasy tablets. He said that he had acquired the tablets from Mr Couper a few days prior to being contacted by the police. This gave rise to the third count of trafficking in a controlled drug. Police again interviewed Mr Couper. He denied allegations put to him by police that he had sold the ecstasy tablets to his work colleague. Shortly after, Mr Couper admitted that he had sold the tablets to his workmate, after having been contacted by the workmate.
As a result of examining the messages on Mr Couper’s mobile phone police went to another address. They suspected that a person to whom Mr Couper had sold ecstasy tablets lived at the address. Police found a small bag containing powder, which police believed to be a crushed ecstasy tablet. In the subsequent interview with police Mr Couper denied having attended the address identified in the relevant text message. Again, however, Mr Couper admitted shortly after that he had gone to the address on the relevant date, which was a few days prior to his contact with police, and had sold six ecstasy tablets to another workmate. He said that he had done so after the workmate had contacted him for that purpose. In a statement that was later obtained from the workmate, the workmate confirmed that he had contacted Mr Couper by text message asking to buy ecstasy tablets from him. He confirmed that he had bought six tablets from Mr Couper. This gave rise to the fourth count of trafficking in a controlled drug.
The sentencing Judge said that Mr Couper was “engaged in a deliberate, illegal, commercial enterprise”.
The Judge summarised Mr Couper’s personal circumstances. Mr Couper was 25 years old at the time of the offences. The Judge noted that a report of a psychologist indicated that Mr Couper had been diagnosed with depression at the age of 18. Mr Couper took antidepressants for about two years, but decided to stop taking them. He did not receive any further treatment for his condition. He started taking drugs about the same time that he had been diagnosed with depression. He started to sell drugs two years prior to the commission of the offences to fund his drug taking.
The report indicated that the death of Mr Couper’s older brother was a “shattering event”. Mr Couper was 22 years old when his brother died. The report noted, however, that Mr Couper’s depression and use of drugs predated the death of his brother. It concluded that the death did not trigger Mr Couper’s drug use or depression, but may have exacerbated both conditions. The psychologist noted that the death may have given rise to a ‘defeatist attitude’ in Mr Couper, which may have contributed to his selling drugs. Other than that, the Judge did not consider that the report disclosed anything out of the ordinary. The Judge noted that the psychologist diagnosed Mr Couper as suffering from a number of conditions, including major depression, generalised anxiety disorder, and substance dependence. The report also said:
Mr Couper’s past and personality disorders would probably make it harder for him to rehabilitate regarding substance abuse and the selling of drugs but with intensive therapy and enough insight and motivation from Mr Couper’s side, it would be possible for him to change his behaviour.
With regard to Mr Couper re-offending; there might be a slim chance that he would fall into his old behavioural pattern but it is my opinion that Mr Couper learnt his lesson, he suffers from severe anxiety as a result of this process. Therefore he would not want to go through this experience again and would probably avoid selling drugs for a very long time.
Emphasis in original
The Judge considered two references tendered on behalf of Mr Couper. One was from a workplace supervisor, who indicated that, notwithstanding the charges against Mr Couper, he was a valued employee. Another was from Drug and Alcohol Services SA. This indicated that Mr Couper had voluntarily attended eight appointments with the aim of making changes to his drug and alcohol use. It recorded that Mr Couper had abstained from taking drugs and had made changes to his alcohol use.
The Judge accepted that Mr Couper had cooperated with the police, saying that his “cooperation extended beyond making admissions.”
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.
There is no basis for saying that the Judge overlooked these matters. Did he give them sufficient weight?
Several times recently I have had cause to refer to a statement of the principle that guides and governs this Court in a case like this. In Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Gleeson CJ, Gummow, Hayne and Callinan JJ said at [25]:
[25]As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King(1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
This Court can interfere only if the sentencing Judge is shown to have made an error. His remarks disclose no error of principle. There is no indication of any mistake of fact, or of a failure to take into account any material circumstance. The question remains of whether the result is “unreasonable or plainly unjust”.
I consider that the head sentence is within an appropriate range. To some it may appear heavy for a young first offender. But these are serious and prevalent offences. The reduction for the plea of guilty was within an appropriate range also.
However, on reflection I consider that the non-parole period is unreasonably high.
Mr Couper’s prospects of rehabilitation are good. He will benefit if he has a significant period on parole and under supervision. The Judge’s order will allow only a relatively short period of nine months on parole. It is desirable that Mr Couper be able to return to the work force as soon as possible, subject to the need to impose an adequate penalty. The proportion of the non-parole period to the head sentence is relatively high for a young first offender. I am persuaded that the Judge must have had insufficient regard to these aspects of the case. The non-parole period is unreasonable. I would reduce the non-parole period to 12 months.
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.