R v DANG - [2015] SASCFC 154

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DANG
[2015] SASCFC 154
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Nicholson)
26 October 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
The appellant was sentenced in the District Court of South Australia for 11 counts involving trafficking in methylamphetamine and heroin. Six counts were committed to the District Court from the Magistrates Court after the appellant had pleaded guilty, and five counts had been committed for trial in the District Court. The appellant pleaded guilty to those five counts before trial.
The appellant was entitled to a discount of 30 per cent for the six counts from the Magistrates Court, and a 10 per cent discount for the five counts in the District Court. At the time of sentencing, the appellant was serving a sentence of five years and three months' imprisonment with a non-parole period of two years and nine months' imprisonment for prior offending.
The sentence imposed for the 11 counts was 22 years' imprisonment, reduced to 17 years and five months' imprisonment after deductions for the guilty pleas. The principle of totality reduced the sentence further to 12 years' imprisonment. The sentence consisted of notional sentences of two years' imprisonment in respect of each of the 11 counts. This was to be served cumulatively with the sentence for the prior offending. The non-parole period was set at six years.
Held, dismissing the appeal (the Court):
1. The approach of the sentencing Judge was erroneous. The imposition of a notional sentence of two years' imprisonment for each of the 11 counts failed to give adequate consideration to the appropriate penalty for each offence, and whether the sentences should be concurrent, partially concurrent or cumulative.
2. The correct approach was to consider each group of offending separately, the six counts from the Magistrates Court and the five counts from the District Court, and impose one penalty for each group.
3. Following this approach results in the same sentence as that imposed at first instance.
The appeal is dismissed.

R v DANG
[2015] SASCFC 154
Court of Criminal Appeal: Kourakis CJ, Sulan and Nicholson JJ

THE COURT: The appellant was sentenced in the District Court for numerous offences involving trafficking in methylamphetamine and heroin. In all there were 11 counts, six of which had been committed for sentence from the Magistrates Court to the District Court (the Magistrates Court offences) after the appellant had pleaded guilty, and five of which had been committed for trial in the District Court (the District Court offences). The appellant pleaded guilty to the District Court offences prior to trial.
The sentencing of the appellant was complicated, as he was entitled to different discounts in respect of the matters to which he had pleaded guilty in the Magistrates Court as compared with the matters to which he had pleaded guilty in the District Court. The sentencing was further complicated by the circumstance that, at the time when he was sentenced, he was serving a sentence of five years and three months’ imprisonment, with a non-parole period of two years and nine months, for offences committed in June 2012 (the June 2012 offences).
The 11 offences, to which we have earlier referred, were committed between 28 November 2012 and 9 May 2013 whilst the appellant was on home detention bail in respect of the June 2012 offences.
As to the Magistrates Court offences, there were six counts involving four counts of trafficking in methylamphetamine and two counts of trafficking in heroin, committed between 21 December 2012 and 9 May 2013. The District Court offences involved five counts, four of which involved trafficking in methylamphetamine, and the fifth involved trafficking in either methylamphetamine or heroin. The 11 counts were part of a course of conduct over a period of about six months between the end of November 2012 and 9 May 2013.
By virtue of s 10C of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), the appellant was entitled to a reduction in his sentence of up to 10 per cent for the District Court offences and up to 30 per cent for the Magistrates Court offences.
The appellant had been sentenced on 8 August 2014 in the District Court for the June 2012 offences which involved trafficking in methylamphetamine and heroin, and unlawful possession of monies which were the fruits of the appellant’s dealing in drugs. The offences were committed between 2 June 2012 and 5 June 2012. The Judge sentenced the appellant to five years and three months’ imprisonment. He fixed a non-parole period of two years and nine months’ imprisonment.
In sentencing the appellant on 13 March 2015 for the Magistrates Court offences and the District Court offences, the Judge determined that it was appropriate that the sentence he imposed was to be served cumulatively on the sentence for the June 2012 offences.
The sentencing Judge observed that, at the time the appellant committed the offences the subject of the appeal, the appellant was on home detention bail for serious drug offending. The Judge observed that the appellant’s dealing in drugs developed well beyond the level where he was simply paying for his own addiction. He was not only motivated because of his addiction, but also by greed and to assist him in meeting gambling debts. The Judge took into account that the appellant had no previous convictions before the drug offending commenced.
The sentencing Judge noted that the appellant was entitled to a 30 per cent discount in relation to the Magistrates Court offences, and 10 per cent discount for the District Court offences.
The Judge imposed notional sentences of two years’ imprisonment in respect of each of the Magistrates Court offences and the District Court offences. The application of the discounts resulted in a three years and seven months’ reduction on a sentence of 12 years in respect of the Magistrates Court offences, and a one-year deduction in respect of the District Court offences on a sentence of ten years’ imprisonment. The Judge deducted four years and seven months from the total notional sentence of 22 years, resulting in a sentence of 17 years and five months’ imprisonment.
The Judge referred to the principle of totality. He said:
I am required to review the sentence and assess its totality against the overall seriousness of your offending. Having done so, I have concluded that such a sentence is out of proportion to the overall seriousness of your offending. For that reason I reduce the sentence to eight years imprisonment. I deduct 15 months for time spent in custody. That leaves six years and nine months. I order that sentence to commence at the expiration of the sentence of five years and three months which I imposed last year. That makes a total of 12 years imprisonment. I have reviewed the non-parole period pursuant to s.32 of the Sentencing Act and extend the non-parole period to six years commencing on 8 May 2013. So that is a non-parole period of six years commencing then.
The grounds of appeal are:
1.Both the head sentence and the non-parole period were manifestly excessive. (Permission granted).
2.The learned sentencing Judge erred by giving inadequate consideration to the principle of totality in light of the sentence imposed for the June 2012 offences. (Permission granted).
2B.The learned sentencing Judge erred by giving inadequate consideration to the principle of concurrency in light of the other sentence being served. (Permission to appeal is sought on this ground).
In our view, the approach of the sentencing Judge was erroneous. The application of a notional sentence of two years’ imprisonment for each of the 11 District Court and Magistrates Court offences failed to give adequate consideration to the appropriate penalty for each offence and whether the sentences for each offence should be concurrent, partially concurrent or cumulative before arriving at a final head sentence. The starting point of two years for each count was manifestly inadequate.
In our view, the correct approach was to consider each group of offending, that being the District Court offences and the Magistrates Court offences, and impose one penalty for each group, having regard to the discount applicable to that group. Having determined the penalty for each group of offending pursuant to s 18A of the Sentencing Act, the next step was to determine what amount of each sentence should be served concurrently, taking into account that the offending was a course of conduct in trafficking over a six-month period.
Arriving at an appropriate final sentence for multiple offences comprising a single course of conduct by starting with each individual offence and then applying the principles of concurrency and totality is a difficult and cumbersome process. It is further complicated in this case by the fact that the discounts for pleas of guilty vary in respect of the District Court offences and the Magistrates Court offences. Further, the offending was part of a course of conduct and should be considered as such. Nonetheless it is necessary to commence by identifying the applicable sentencing principles and standards for offences of this kind before applying them to the facts and circumstances of this case.
The first question to be considered is the approach which is to be applied to dealing in illicit drugs.
In R v Tassone,[1] this Court considered the question of whether particular illicit drugs should be classified as being in the category of middle or higher range of seriousness. The Court said:[2]
[1] [2011] SASCFC 7.
[2] [2011] SASCFC 7 at [15]-[18].
In Becker, this Court observed:
Since the decision in Mangelsdorf, there have been considerable advances in knowledge of the effect of various drugs upon human behaviour. There is some evidence about the effect of marijuana upon the human brain. Some research suggests that there is a relationship between heavy use of marijuana and schizophrenia in young people. There has been the introduction of so-called “designer drugs”. Their use as recreational drugs has become more common. The long and short-term effect of these drugs on human behaviour has been the subject of a number of studies. It may be that it is time to reconsider the classification of drugs referred to in Mangelsdorf. The time may have come, in the appropriate case, for the Director to consider whether expert evidence should be called to inform the sentencing court of recent research as to the effect of various popular drugs upon users.
In Ford, Gray J, with whom Doyle CJ agreed, said:
In Becker, in light of the increase in the use and distribution of recreational drugs (including methylamphetamine), and the considerable advances in knowledge about the effect of these drugs on human behaviour, the Court of Criminal Appeal first ruminated as to whether it was appropriate for the Director to consider whether expert evidence should be put before the sentencing court for the purpose of considering whether such drugs should be reclassified to a higher range of seriousness: (Citations omitted)
More recently, in Campbell, Sulan J considered the categorisation of drug offences as referred to in Mangelsdorf. He expressed the view that that categorisation may no longer be applicable, having regard to greater knowledge which now exists about various types of drugs which are used in the community.
On 10 September 2009, section 44 of the Act was amended by inserting subsection (2), which provides:
In determining the penalty to be imposed in respect of a summary or indictable offence against Part 5 involving a controlled drug (other than cannabis, cannabis resin or cannabis oil), the degree of physical or other harm generally associated with the consumption of that particular type of controlled drug, as compared with other types of controlled drugs, is not a relevant consideration and the court must determine the penalty on the basis that controlled drugs are all categorised equally as very harmful.
In the second reading speech, the Minister stated that the amendment sought to ensure courts treated the manufacture, sale and distribution of amphetamines, ecstasy, and similar drugs, at the upper level of the penalty range, rather than the middle. The amendment eliminates the distinction made between middle and upper-range drugs in Mangelsdorf.
(Footnotes omitted)
In R v Kong, the Court (Kourakis CJ, Sulan and David JJ) observed: [3]
There continues to be concern about the prevalence of drug abuse in our community. Since Mangelsdorf, the variety of illicit drugs available has increased. Twenty years ago, heroin was a primary concern and was considered to be the most harmful of illicit drugs. The position has changed with the promotion of methylamphetamine and the availability of a variety of illicit drugs, all of which are addictive and have very harmful effects. Research and knowledge about the effects of drugs known as ‘speed’ and ‘ice’ has developed. The so-called party drugs are readily available. The manufacture and importation of drugs is prevalent. The abuse of illicit drugs causes great social harm. The treatment and the management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, nor surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers.
[3] (2013) 115 SASR 425 at [90].
In this case, the maximum penalty for each offence is ten years’ imprisonment, or a fine of $50,000. This is a case of substantial trading. Speaking generally, the starting point for offences of this kind would fall within, or approach, a range of five to six years’ imprisonment for each offence. The appellant’s offending is aggravated because it was committed whilst on bail for similar offending.
Having regard to all relevant factors, as to the Magistrates Court offences we would commence with one sentence of seven years’ imprisonment. It is appropriate to deal with those offences together using s 18A of the Sentencing Act on the basis that the sentences for each offence should be concurrent because of the similar circumstances in which they were committed and because they attract the same percentage discount. Applying a discount of nearly 30 per cent, the sentence is four years and 11 months’ imprisonment. As to the District Court offences, we would also commence with seven years’ imprisonment. It is again appropriate to deal with the offences together and to impose concurrent sentences. Applying a discount of approximately 10 per cent, the sentence is six years and four months’ imprisonment. Again applying s 18A, the total starting point for all the offending is 11 years and three months’ imprisonment. We would reduce that sentence to eight years having regard to considerations of totality, and because the close relationship between the two groups of offences calls for a substantial degree of concurrency.
We would reduce that sentence by 15 months for time in custody, and utilise s 18A of the Sentencing Act to impose a head sentence of six years and nine months’ imprisonment, to be served cumulatively upon the sentence of five years and three months imposed for the June 2012 offences. In this respect, we would reject appeal grounds 2 and 2B, identified earlier. The total sentence is therefore 12 years’ imprisonment. We would extend the existing non-parole period to six years commencing 8 May 2013, as did the Judge. It can be seen that the sentence we would have imposed is the same sentence as that imposed by the District Court Judge.
The appeal must therefore be dismissed.