R v De-La Cerna

[2015] SASCFC 115

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DE-LA CERNA

[2015] SASCFC 115

Judgment of The Court of Criminal Appeal

(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Bampton)

17 August 2015

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

The appellant pleaded guilty to trafficking in cannabis, trafficking in methylamphetamine, possessing a prescription drug, stating false personal details, driving a vehicle when not authorised and breaching bail – appellant was sentenced to two years’ imprisonment with a non-parole period of 11 months and was fined $250 for driving when not authorised – appellant contends that there was good reason to suspend the sentence, that the Judge failed to properly undertake the balancing act required in the exercise of his discretion and that the Judge failed to indicate the manner in which the discretion was said to have been considered and exercised.

Held:

1. The Judge had sufficient regard to all relevant matters and has not erred in not suspending the sentence.

2. It was within the Judge’s discretion to order an immediate term of imprisonment.

3. Appeal dismissed.

Controlled Substances Act 1984 (SA) s 32(4); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
House v The King (1936) 55 CLR 499; Police v Chilton (2014) 120 SASR 32, considered.

R v DE-LA CERNA
[2015] SASCFC 115

Court of Criminal Appeal: Stanley, Nicholson and Bampton JJ

1. STANLEY J.         I would dismiss the appeal.  I agree with the reasons of Bampton J. 

   NICHOLSON J.

2. I agree with Bampton J that the appeal should be dismissed and generally for the reasons she has provided.  The Judge sentenced within a few hours of hearing the submissions which addressed all of the matters complained of on appeal.  The Judge’s remarks are abbreviated.  However, all the considerations raised by the appellant and said to be in favour of suspension were either expressly referred to by the Judge in his remarks or were readily apparent from the materials placed before his Honour on the morning of the day of sentence.

3. I am satisfied that his Honour made no error in arriving at his decision not to suspend, nor can it be said that the failure to suspend was, in the circumstances, unreasonable or plainly unjust.[1]  As such, it is not necessary for me to enter the debate about whether a demonstrable failure to give appropriate weight or a demonstrable giving of inappropriate weight to a material consideration can ever amount to error in this context.

   [1]    House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

4. BAMPTON J.       This is an appeal against sentence.

5. Jovito De-La Cerna (the appellant) was committed to the District Court for sentence on one count of trafficking in cannabis and one count of trafficking in methylamphetamine.  The maximum penalty for trafficking is 10 years imprisonment or a fine of $50,000 or both.  However, trafficking in cannabis must be prosecuted, and dealt with as a summary offence,[2] in which case the maximum term of imprisonment that can be imposed is five years.[3] 

   [2]    Controlled Substances Act 1984 (SA) s 32(4).

   [3] Subject to the exception provided for in s 32(4) of the Controlled Substances Act 1984 (SA) and ss 19(3) and (5) of the Criminal Law (Sentencing) Act 1988 (SA).

6. Just prior to sentencing submissions, the appellant entered guilty pleas on four charges called up from the Magistrates Court:

   ·possess prescription drug (not being drug of dependence), maximum penalty two years imprisonment or a fine of $10,000;

   ·fail to comply with bail agreement,  maximum penalty six months imprisonment or a fine of $2,500;

   ·state false personal details, maximum penalty three months imprisonment or a fine of $1,250; and

   ·driving a vehicle when not authorised, maximum penalty a fine of $1,250.

7. The appellant was sentenced to a total sentence of two years imprisonment. A non-parole period of 11 months was fixed.

8. The appellant accepts that his offending warranted a sentence of imprisonment.  He contends that there was good reason to suspend the sentence and that the Judge failed to properly undertake the balancing act required in the exercise of his discretion and further failed to indicate in his reasons the manner in which the discretion was said to have been considered and exercised.

9. The appellant asks that the Court resentence him to a suspended term of imprisonment taking into account the time already served.

   Background

10. The circumstances giving rise to each of the offences are as follows:

    July 2012 offending

    Possess prescription drug

11. On 19 July 2012, police stopped a vehicle being driven by the appellant in Warradale.  During a search of the appellant, police located a black pencil case in his rear trouser pocket containing 10 Xanax tablets in a container.  This container also contained two glass pipes, one wooden pipe and 1.8 grams of powder.  The appellant admitted to possession of the Xanax tablets and that he did not have a prescription for them.  He stated that a friend had given them to him to help him sleep.

    Fail to comply with bail agreement

12. On 29 August 2014 at 3:06am, police attended the appellant’s bail address at Cowandilla to conduct a bail compliance check.  The appellant was on police bail for matters unrelated to this appeal.  Police spoke to the appellant’s father, who confirmed that the appellant was not residing at that address and was in fact residing at an address in Strathalbyn.  The appellant was charged with breaching his bail agreement by not being home during the curfew period and by not residing at the address stipulated in the bail agreement.

    August 2014 offending

13. At about 7:35pm on 29 August 2014, police again stopped a vehicle being driven by the appellant.  The appellant complied with a direction to submit to an alcotest which returned a negative result.

    Driving vehicle when not authorised

    State false personal details

14. When police asked the appellant to produce his licence for inspection he stated that it was in his wallet which he had left at home.  When police asked him to provide his full name, date of birth and address he gave his brother’s name and details.

15. Police checks revealed that the appellant had provided false details, using his brother’s name, date of birth and address, and that his C class driver’s licence had expired on 21 May 2012.  The police checks also revealed that the appellant was a wanted person in relation to a breach of bail matter.

16. Police again asked the appellant to confirm his personal details whereupon he gave the same false details.  Police told the appellant that he was wanted in relation to a breach of bail and that he would be arrested. 

17. One of the apprehending police officers, who had noted a cannabis smell emanating from the vehicle, asked the appellant whether he had any drugs in the vehicle.  The appellant said he did not.  The police officer then searched the vehicle.

    Trafficking in cannabis

18. During the search a black backpack emitting a strong cannabis smell was found.  A glass pipe, a white plastic shopping bag containing cannabis material and a ‘Top Gear’ metal tin were located inside the main compartment of the backpack.  Inside the Top Gear tin was a plastic resealable bag containing cannabis.  In total 189 grams of cannabis was seized.

    Traffic in methylamphetamine

19. Upon searching the appellant, police located two small plastic resealable bags containing a crystalline substance in the appellant’s right hand pocket.  In his left hand shirt pocket police found another 12 plastic resealable bags, some of which contained a crystalline substance.  One of the 14 bags seized weighed 0.95 grams and contained 0.76 grams of methylamphetamine, a purity of 80 per cent.[4]  Ten of the bags located were found on analysis to contain methylamphetamine of indeterminate quantity

    [4]    AB 95, Certificate of Analysis.

20. Police also seized an Apple iPhone and a Telstra/Nokia phone. The Nokia phone rang almost continuously during the appellant’s apprehension and police could see messages containing known drug dealing slang appearing on the iPhone screen.  As the iPhone was password protected it could not be analysed.  Analysis of the Nokia phone revealed text messages between 23 August 2014 and 29 August 2014 indicating that the appellant was actively trafficking at “street level”.  As pointed out by the respondent, the offending on 29 August 2014 was not an isolated incident. 

21. During a brief recorded interview the appellant declined to answer questions, other than admitting to having provided false details. 

    The appellant’s personal circumstances

22. At the time of sentence the appellant was 29 years old.  The Judge noted that, whilst the appellant had a somewhat tumultuous upbringing, he had some employment history.  He began using cannabis when he was about 18 and methylamphetamine when he was about 27. His addiction to methylamphetamine led him to selling drugs to support his addiction after he lost his job when his employer’s business closed.

23. The Judge was told the appellant had reflected on his life while he had been on remand and had been drug-free for some months.  It was submitted that he was willing to address his issues with drugs and seek professional assistance.  He was supported by his mother and sister, both of whom provided letters of support.

24. A letter from a former employer tendered during submissions stated that farm work was available to the appellant.

25. Sentencing submissions were supplemented by a report prepared by the psychologist, Mr Ireland, who interviewed the appellant by video link on 13 March 2015.  Mr Ireland reported that the appellant’s personality characteristics have led him to associate with antisocial individuals, to become involved in drug use and to trade in drugs to support his habit.  Mr Ireland identified the appellant’s loss of employment and the breakdown of a relationship as triggers for him using and trading in drugs.

26. Mr Ireland commented that the appellant lacked insight and awareness into how he allowed himself to get drawn into drug use and offending.  Mr Ireland stated that the appellant would benefit from being mentored and counselled by a therapist who could help him appreciate how his personality affects his decision making.  Without this assistance, Mr Ireland considered the appellant might drift back into drug use and offending when confronted with triggers such as a relationship loss or other stressors. 

27. Mr Ireland expressed the opinion that the appellant’s concerning personality characteristics appeared to be of a moderate level of intensity and not approaching the level of rigidity seen in a personality disorder. As such, Mr Ireland considered these characteristics to be more susceptible to change at this stage in the appellant’s life.

28. Mr Ireland concluded that, if the appellant were to engage in the personal awareness training and mentoring he recommended, his prognosis for rehabilitation would go from guarded to mildly positive.

29. A Pre-Sentence Report provided to the Judge indicated the appellant may meet the criteria for the Making Changes program and would benefit from a referral to DASSA for one on one drug counselling.

    The sentence

30. Sentencing submissions were heard in the morning of 1 May 2015 and the appellant was sentenced just prior to 1:00pm that day.

31. The Judge imposed a sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the CLSA) (the s 18A sentence) of two years and two months imprisonment for the trafficking offences, the offence of providing false information and breaching bail. The Judge reduced this sentence by just under 30 per cent to reflect the appellant’s guilty pleas. The appellant was sentenced to two months imprisonment for the unlawful possession of a prescription drug. The two sentences of imprisonment were ordered to be served concurrently and a fine of $250 was imposed with respect to the offence of driving a vehicle when not authorised.

32. It is to be noted that the Judge does not refer to having applied any discount to the sentence for the offence of unlawful possession of a prescription drug. The prosecutor submitted during sentencing submissions that a discount of 30 per cent was available on all files. Having regard to the fact that the Judge imposed this sentence immediately following the s 18A sentence and the fact that sentencing submissions were heard a few hours prior to sentencing, I infer that this concurrent sentence was arrived at following the application of an appropriate discount. There has been no challenge in this respect.

33. The Judge fixed a non-parole period of 13 months.  The head sentence and non-parole period were reduced by two months.  The reduction of two months took into account the 51 days the appellant had spent in custody and made an allowance of nine days for the period he had spent on home detention bail from 21 October 2014 to 28 January 2015.  The resulting sentence was two years imprisonment with a non-parole period of 11 months.

34. The Judge found no good reason to suspend the sentence of imprisonment.

    The errors in the sentencing remarks

35. The Judge stated, in error, in relation to the breach of bail, that “an offensive weapon was later found at your premises”.  The breach was in relation to a breach of a curfew and residence condition, whilst on bail for offensive weapon and false personal details charges.  It is clear at page seven of the transcript of the sentencing submissions that the appellant’s counsel informed the Court of the correct circumstances of the breach, namely that, on his instructions, the appellant was at another premises when he should have been home during his curfew times.

36. The Judge incorrectly referred to the appellant having spent 21 days, rather than 51 days, in custody.  Whilst this caused some confusion as to what the Judge had allowed for, it was conceded that there can be no complaint about the two month reduction to the sentence on account of time in custody and on home detention bail.

37. The Judge referred to the unlawful possession of a prescription drug offence having been committed on 19 July 2014 rather than 19 July 2012.

38. The sentencing remarks also refer to the head sentence and non-parole period being backdated to 28 January 2014.  This is clearly a typographical error which should read “28 January 2015”.

39. In my view, none of these errors had any material influence on the sentencing outcome.

    The appeal

40. The sole ground of appeal is that the Judge erred in failing to suspend the sentence.  The particulars relied upon are:

    a)The Judge failed to give sufficient weight to the appellant’s prospects of rehabilitation where:

    i.      The psychological report indicated that the prospects of rehabilitation were guarded to mildly positive;

    ii.     There was employment available upon release;

    iii.      The appellant had been compliant on home detention bail;

    iv.      The appellant had not previously been sentenced to a term of imprisonment;

    v.     The appellant had significant family support in the community.

    b)The Judge failed to distinguish between the two counts of trafficking in circumstances where he was acting as a Magistrate in relation to the trafficking marijuana and accordingly failed to indicate the relative seriousness of the offending.

    c)The Judge’s reasons do not indicate the manner in which the balancing act which needs to be undertaken in deciding whether there was good reason to suspend was exercised.

    Arguments on appeal

41. The appellant submitted that whilst the Judge indicated that he would sentence on the basis of the offending being low-level street offending, he failed to differentiate between the less serious nature of the summary offence of trafficking cannabis as compared with the more serious indictable offence of trafficking methylamphetamine. 

42. It was submitted that the amount of methylamphetamine was “not such a significant amount such that it would never be possible to suspend a term of imprisonment”.

43. The appellant contended that the reasons of the sentencing Judge were abbreviated and did not indicate the manner in which the discretion was exercised.  It was pointed out that he had not previously been sentenced to any immediate term of imprisonment or suspended sentence.  He had previously complied with good behaviour bonds in relation to prior offending.  He had spent some 51 days in prison and some 90 days on home detention in relation to this offending.  He had one positive urinalysis that he explained was caused by a spiked drink and no action was taken to prosecute him for a breach of home detention bail in relation to this positive drug test.

44. The respondent submitted that no error was identifiable in the sentencing process and that it was within the Judge’s discretion not to suspend the sentence.

    Analysis

45. In order for an appellate Court to interfere with the exercise of the discretion to suspend or not to suspend, the appellant must demonstrate particular error in the sentencing process or a result that is manifestly wrong.  It is not enough that this Court would have exercised the discretion differently.[5]  The Court may interfere where no particular error is identifiable if the decision of the sentencing Judge is so unreasonable or unjust as to imply that some kind of error must have affected the decision.[6] 

    [5]    House v The King (1936) 55 CLR 499, 504 - 505.

    [6]    House v The King (1936) 55 CLR 499, 505.

46. The Judge’s remarks do not elaborate on the reasons for not suspending the sentence other than to say “I have taken everything said and written about you on your behalf into account and I have given each aspect of it the significance it deserves” and later, “in all the circumstances good reason to suspend the sentence cannot be found”.  As Kourakis CJ said in Police v Chilton,[7] the weight that a Judge gives to each applicable sentencing consideration is not an appealable error as “it is in the very nature of a discretion that different judges will evaluate the considerations relevant to its exercise in different ways”.

    [7] (2014) 120 SASR 32 at [17].

47. The Judge utilised s 18A of the CLSA to impose a single sentence for the two trafficking offences in circumstances where he was clearly aware that he was sitting as a Magistrate in relation to the trafficking in cannabis offence having raised that matter in sentencing submissions. During sentencing submissions, the prosecutor sought to amend the committal for sentence record which incorrectly referred to the trafficking in cannabis offence as a major indictable offence. The Judge indicated that he would “ignore that and exercise my powers to sit as a Magistrate to deal with that count”.

48. The contention that a sentencing Judge failed to give sufficient weight to a feature of the appellant’s situation such as his prospects of rehabilitation is not a basis upon which an appellate Court can interfere with a sentence if that sentence is otherwise within the range of sentences or exercise of a discretion available to the sentencing Judge.

49. In my opinion, the Judge had sufficient regard to all relevant matters and has not erred in not suspending the sentence. He noted the appellant’s personal circumstances, his history of criminal offending, that he had spent time in custody, that he had been drug free for some months, that he was willing to seek professional assistance to address his drug use, that employment was available to him, that he had a supportive family and that he needed therapy as identified by Mr Ireland. The appellant had previous drug related convictions dealt with by way of a fine in 2006 and a good behaviour bond in 2008. The s 18A sentence imposed is indicative of the fact that the Judge sentenced, as he said he would, on the basis that the trafficking was low level street dealing.

    Conclusion

1. It was within the discretion available to the Judge in the circumstances of this case to find that there was no good reason to suspend and to order an immediate term of imprisonment.

2. I would dismiss the appeal.