R v Cramp

Case [2010] SASC 51

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CRAMP

[2010] SASC 51

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Kourakis)

5 March 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

Appellant pleaded guilty to drug offences charged on two separate informations - judge imposed separate sentence on each information, to be served consecutively - complains that in arriving at sentence, judge did not reduce head sentence on account of principle of totality - also complains of errors apparent on the face of the sentencing remarks and that insufficient credit was given for guilty plea on second information.

Held:  no error in failing to reduce sentence on ground of totality - fair reading of the remarks does not suggest error - discount for guilty pleas within sentencing judge's discretion - appeal dismissed.

Observations by Kourakis J as to the classification of amphetamine as a "middle-range" drug.

Controlled Substances Act 1984 s 32(3) (as amended), s 32(1)(a) (repealed), s 32(1)(3) (repealed), s 32(5)B(a)(iii) (repealed), s 32(5)B(b)(ii) (repealed); Criminal Law (Sentencing) Act 1988 s 6(b), s 18A, referred to.
R v Martin [2009] SASC 26; R v Rocco (1984) 37 SASR 515; R v Rossi (1988) 142 LSJS 451; R v White (1981) 28 SASR 9, applied.
R v B, RWK (2005) 91 SASR 200; R v Becker (2005) 91 SASR 498; R v Beresford (1972) 2 SASR 446; R v Bruce & Hollick (1998) 71 SASR 536; R v Cronn (1983) 34 SASR 555; R v E, AD (2005) 93 SASR 20; R v Faulkner (1972) 56 Cr App R 594; R v Ford (2009) 100 SASR 94; R v Holder: R v Johnston [1983] 3 NSWLR 245; Jarvis v The Queen (1993) 20 WAR 201; R v Major (1998) 70 SASR 488; R v Mangelsdorf (1995) 66 SASR 60; R v Olbrich (1999) 199 CLR 270; R v Randall-Smith & Davi (2008) 100 SASR 326; R v Sladic (2005) 92 SASR 36; R v Stevens [2008] SASC 170; R v Symonds [1999] SASC 217, considered.

R v CRAMP
[2010] SASC 51

Court of Criminal Appeal:  Vanstone, Anderson and Kourakis JJ

  1. VANSTONE J:     In my view this appeal should be dismissed.

  2. The facts relating to the sentence and the manner of approach of the learned sentencing judge are comprehensively set out in the reasons of Kourakis J, which I have had the benefit of reading.  I find nothing of any substance in any of the complaints made in support of the ground that the sentence was manifestly excessive.  In two instances they amount to focussing on a particular word used by the judge in the course of his sentencing remarks and reading it literally and out of context, so as to load it with a particular meaning said…

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R v Cramp [2010] SASC 51
Case
[2010] SASC 51
Decision Date

CaseChat Overview and Summary

The appellant in the case of R v Cramp appealed against his sentence, which was imposed following a guilty plea to drug offences on two separate informations. The judge had imposed separate sentences on each information, to be served consecutively. The appellant argued that the judge did not reduce the head sentence on account of the principle of totality and that there were errors apparent on the face of the sentencing remarks. Additionally, the appellant claimed that insufficient credit was given for the guilty plea on the second information.

The court was required to decide whether the sentence imposed was appropriate and whether the judge had correctly applied the principle of totality and the credit for a guilty plea. The court also considered whether the classification of amphetamines as a "middle range" drug was appropriate and whether there was sufficient evidence to inform the sentencing process.

The court found that the sentence was no more than condign punishment for the totality of the appellant's offending. The court noted that the appellant was trafficking in two quite different drugs and that cumulative or at least partly overlapping sentences would have been justified. The court also found that the appellant was a more significant player than suggested by the quantities alone and had reoffended whilst on bail. The court held that the judge had not erred in failing to reduce the head sentence on account of the principle of totality and that the sentence was appropriate. The court also found that there were no errors apparent on the face of the sentencing remarks and that sufficient credit had been given for the guilty plea. The court held that the classification of amphetamines as a "middle range" drug was not inappropriate and that there was sufficient evidence to inform the sentencing process. The appeal was dismissed.

The court did, however, note that it may be appropriate to review the classification of amphetamines based on the information before them in a particular case. The court emphasised the importance of expert evidence in informing the sentencing process and noted that it was unsatisfactory for a judge to perform their own research and formulate their own opinions and conclusions upon such arcane matters.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J (dissent)
In the face of these developments I would repeat, with a note of greater urgency, the view expressed in Becker[48] and in Mangelsdorf[49] that it may now be appropriate to review the classification of amphetamines.[48] (2005) 91 SASR 498 at 512-13 [64] per Gray, Sulan and Layton JJ.[49] R v Mangelsdorf (1995) 66 SASR 60 at 66-7 per Doyle CJ.Conclusion For the reasons that I have given, I would dismiss the appeal.Appendix Amphetamines occur naturally in some plants and have been the subject of human consumption from China to North Africa for thousands of years.[50] Synthetic amphetamine was first produced in 1887 and marketed commercially in 1932. It quickly became popular with students, artists, musicians and truck drivers. It has been prescribed for a wide range of conditions such as schizophrenia, seasickness, weight control, narcolepsy and attention deficit disorder. From the time of the Spanish Civil War, it has been provided to soldiers to promote alertness. Soon after the drug’s commercialisation, its adverse side affects began to be recorded. The induction of psychoses by amphetamine abuse was first recorded in 1938 and authoritatively documented in 1958. Its addictive potential was recognised in the mid 1960’s.[51][50] In China the name of the plant translated literally means “looking for trouble”.[51] Sulzer D, Sonders MS, Poulsen NW, Galli A, ‘Mechanisms of Neurotransmitter release by amphetamines: a review’, Progress in Neurobiology (2005) 75:406-433. Neuropsychological studies have documented the affects of longer term (more than three years) amphetamine use on decision making; the quality of decision making is significantly impaired and is comparable to the effects of injury to the orbital prefrontal cortex.[52] Orbitofrontal cortex dysfunction is associated with some core characteristics of borderline personality disorder, in particular impulsivity.[53] The recent use of the amphetamine MDMA, or “ecstasy”, and other drugs and alcohol has been associated with greater impulsivity.[54] Long term amphetamine abuse has also been associated with greater impulsivity,[55] and with damage to the functioning of the orbitofrontal complex.[56] Recent studies have demonstrated a link between repeated exposure to MDMA and impulsivity.[57][52] Rogers RD, Everitt BJ, Baldacchino A, Blackshaw AJ, Swainson R, Wynne K, Baker NB, Hunter J, Carthy T, Booker E, London M, Deakin JF, Sahakian BJ, Robbins TW, ‘Dissociable deficits in the decision-making cognition of chronic amphetamine abusers, opiate abusers, patient with focal damage to prefrontal cortex, and tryptophan-depleted normal volunteers: evidence for monoaminergic mechanisms’, Neuropsychopharmacology (1999) 20:322-339.[53] Berlin HA, Rolls ET, Iversen SD, ‘Borderline personality disorder, impulsivity, and the orbitofrontal cortex’, American Journal of Psychiatry (2005) 162:2360-2373; Solof PH, Meltzer CC, Becker C, Greer PJ, Kelly TM, Constantine D, ‘Impulsivity and prefrontal hypometabolism in borderline personality disorder’, Psychiatry Research (2003) 123:153-163.[54] Hanson KL, Luciana M, Sullwold K, ‘Reward-related decision-making deficits and elevated impulsivity among MDMA and other drug users’, Drug and Alcohol Dependence (2008) 96:99-110.[55] Patti I, Vanderschuren LJ, ‘The neuropharmacology of impulsive behaviour’, Trends in Pharmacological Sciences (2008) 29:192-199.[56] Crombag HS, Gorny G, Li Y, Kolb B, Robinson TE, ‘Opposite effects of amphetamine self-administration experience on dendritic spines in the medial and orbital prefrontal cortex’, Cerebral Cortex (2005) 15:341-348.[57] Morgan MJ, ‘Recreational use of “ecstasy” (MDMA) is associated with elevated impulsivity’, Neuropsycholopharmacology (1998) 19:252-264.

Ratio Decidendi

Legal Principle Established

Established by:

It can be accepted that the sentence for the 2008 offences is a relatively high proportion of the maximum given the quantities involved and the presently accepted classification of amphetamines and LSD as “middle range” drugs. However, the appellant was trafficking in two quite different drugs; cumulative or at least partly overlapping sentences would have been justified even though the possession which evidenced that trafficking was contemporaneous. Moreover, as I have observed, the appellant was a more significant player than suggested by the quantities alone who had reoffended whilst on bail. In my view the sentence was no more than condign punishment for the totality of the appellant’s offending.Reconsideration of classification of methamphetamine During the course of the appeal hearing, counsel for the appellant made reference to the case of R v Ford,[34] saying:Ms Powell:In his judgment, Gray J from page 101, paragraph 32 of the judgment, he went through the various occasions upon which this Court has made it plain that it will not undertake a reclassification of drugs such as methylamphetamine, ecstasy, fantasy and LSD from their position as a middle range drug without that being specifically a matter upon which evidence is appropriately led.All of those cases referred to by His Honour were, of course, decisions of the Court of Criminal Appeal and the ranges of penalties exposed in those various authorities cited by His Honour demonstrate that this particular sentence with which this Court is involved is a very severe sentence indeed. (emphasis added)[34] (2009) 100 SASR 94. The following exchange then took place between myself and counsel:Kourakis J: On what evidence was the original classification made?…Kourakis J:I haven’t looked at the cases for a while but my recollection was that there was no evidence.Ms Powell:I think that’s right, I don’t think there was. But, in my submission, that’s what this Court has said and presumably, unless there is an invitation to overturn this Court’s authority – and I’m not sure whether this Court comprised of three Judges could do it – that’s what the law in South Australia is. I agree, I don’t think there was any evidence called in Mangelsdorf to talk about the prevalence of the drug. (emphasis added) In light of this submission, I wish to make my view clear that, even though the appellant’s appeal has been dealt with on the basis that amphetamine is a “middle range” drug, this decision, along with other decisions of the Court of Criminal Appeal, do not stand in the way of sentencing Judges reconsidering the classification of amphetamines based on the information before them in a particular case. In R v Beresford,[35] Hogan, Bright and Wells JJ considered the problematic issue of the means by which courts might be informed of the nature of prohibited drugs. Their Honours said:But prosecutions with respect to dangerous drugs, in our view, stand altogether differently. A judge cannot begin to assess the evil or harm caused to society or to individuals by drug taking, drug handling, or drug distribution, until there are placed before him adequate details of the composition and strength of the drug in question and an authoritative and reliable description of its likely effects—long term and short term, psychological and physical. In some cases, it may be important for the judge also to be informed, in general terms, of the magnitude of the illegal operations of manufacturing or importing and supplying the dangerous drug to members of our community, and the difficulty of the control of those operations by law enforcement agencies.Plainly, evidence upon many of these topics will not infrequently be irrelevant in the proof of the charge, but when the question of sentencing arises, it will be essential for evidence of this kind to be placed before the judge. It seems to us that it is the responsibility of the prosecution, in the first instance, to lead such evidence as is in their possession and will enable the sentencing judge to form an appreciation, not only of the prisoner’s conduct, but also of the drug with which that conduct was concerned. In many cases, the presentation of such evidence will entail the calling of an expert who can offer an up-to-date evaluation of the plethora of facts and opinions emanating from doctors, scientists and social workers month by month all over the world. It is, in our view, unsatisfactory for a judge to find himself left to perform his own research and formulate his own opinions and conclusions upon such arcane matters. What we can read in books, journals and reports about drugs is no doubt useful as background and as providing the basis for suggestions for further enquiry, but it would, in our view, be entirely wrong if those readings were to take the place of sworn expert testimony, properly presented and tested.[36][35] (1972) 2 SASR 446.[36] The Queen v Beresford (1972) 2 SASR 446 at 449-50.