R v DONKIN No. SCCRM-98-242 Judgment No. S61

[1999] SASC 61

R v DONKIN
[1999] SASC 61

COURT OF CRIMINAL APPEAL: MILLHOUSE, PRIOR AND DUGGAN JJ

1      MILLHOUSE J (ex tempore):    The appellant pleaded guilty to having in her possession methylamphetamine for sale.  She was caught by police in the car park of a chemist shop at the western end of Waymouth Street at about half past ten on the evening of Saturday, 27 December 1997.  It was 2.76 grams of pure methylamphetamine in about 20 grams of powder.  Her partner, Lisa Cook, was with her at the time.   The learned judge in his sentencing remarks said, and I go to p.102:

"Your plea has been entered on the basis that the drug which was found in your possession was predominantly for your personal use and for the use of your partner.  Only a couple of grams of it at a total value of about $100 was intended to be sold, if and when a purchaser could be found.  There had not been any actual sales. 

The money which was found in your possession was totally unrelated to any relevant transaction.  Your counsel explained that and I accept what he said as to how you came to be in possession of that money.  I sentence you on the basis of the agreed facts."

2      The appellant is a 30 year old woman.  She has a long list of previous convictions, beginning in the Children's Court in 1985.  She has been given many bonds and has breached several.  Nevertheless, the Crown Prosecutor during submissions on sentence told the learned judge the Crown was neutral regarding suspension of sentence.  The judge, having said that he was giving a discount of 25%, sentenced the appellant to 36 calendar months imprisonment with a non-parole period of 18 calendar months.  He suspended it on these conditions, to be found at pp.103 and 104 of the transcript, and I quote him:

"The conditions which I impose are these: 

1.     that during the period of the bond, you should be under the

supervision of a probation officer and shall obey all lawful

directions of that officer;

2.     that you shall attend any drug and alcohol course that you may

be directed to attend by your probation officer;

3.     that you shall attend and obtain such psychological services as you

may be directed to obtain by your probation officer;

4.     that you shall attend any loss or grief course as you may be directed

to attend by your probation officer;

5.     that you shall perform 200 hours of community service within 18

calendar months from today;" 

3 And 6 was the usual reporting condition within two days, "Finally, that you shall provide one guarantor, in the sum of $2,000, and, further, that the guarantor shall be your partner, Lisa Cook."

4      There followed in court some discussion about the guarantee.  The appellant's then counsel, and counsel today, Mr Sprod, remarking that, "It has not been my previous experience that a guarantee would accompany a bond of this sort". 

5      And his Honour said in reply to that, p.104:-

"The particular guarantor that I have in mind, as you appreciate, has featured substantially in the proceedings before me in a variety of ways".

6      I pause to say that Lisa Cook had also originally been charged but the Crown eventually had not proceeded against her.  The judge went on:-

"I think it is for that reason that I would particularly want to be the guarantor.  She is her partner, the relationship is stable.  This person appears to be in difficulty when the relationship breaks, and it is for all those reasons that I would want Lisa Cook to be the guarantor."

7      Later on he said:

"The guarantor is an inducement to make sure she will be kept on the right road and do what she is supposed to be doing". 

8      The learned judge did not give any other reason or detail for requiring the guarantee. 

9      In the pre-sentence report to him a probation officer wrote, and this is at p.85 of the transcript:-

"The most stable phases in her life have been times when she has been in relationships.  Her inability to cope with the traumatic ending with one particular relationship eight years ago, led her to adopt a drug oriented lifestyle, exacerbating her social difficulties. 

Her current relationship involves a co-offender, (relating to charges being dealt with in another court) and circumstances surrounding the subject offences have caused considerable strain upon this friendship and it is questionable whether this relationship could provide the defendant with the security she seeks". 

10     It may be that the judge thought by making the appellant's partner her guarantor it would cement their relationship, help to keep them together, even the probation officer had said it is questionable whether this relationship could provide the defendant with the security she seeks. 

11     The grounds of appeal are that the head sentence, non-parole period and the length of the bond are manifestly excessive and that the court erred in imposing a guarantee. 

12     When the appeal was called on we had a helpful and frank discussion with Mr Sprod and with Mr McEwen for the Crown, as a result of which we have been able to come to a conclusion. 

13     In the circumstances we consider the penalty of 36 calendar months with an 18 month non-parole period is too much.  I suggest reducing the term of imprisonment to 12 months with a non-parole period of six months. 

14     As for the bond I suggest that the conditions be varied as follows:

15     That during the period of the bond the appellant be under the supervision of a probation officer and obey all lawful directions of that officer and in particular undertake whatever medical, psychiatric or other examination, treatment or courses the probation officer may require.  That the appellant perform 200 hours of community service within 18 calendar months from today and the usual reporting condition that she report to the Office of the Department of Community Services within two working days of today, at the address to be provided, and shall obey all lawful directions of the officer to whom she is assigned. 

16     I also suggest that the condition that there be a guarantor be omitted.  I doubt whether such a condition, as imposed by the learned judge, would have the slightest affect on whether the women stay together.  It is a bit like trying to make people good by Act of Parliament.  If they were not to stay together then the condition could cause all sorts of difficulties. 

17     I suggest, therefore, allowing the appeal to the extent of reducing the term of imprisonment to 12 months with a 6 month non-parole period and suspended upon the appellant's being prepared to enter into a bond on the conditions which I have mentioned, the bond in the sum of $500 for 2 years.   My Brother Prior J is suggesting that the bond should start from when she was originally sentenced, provided she has been of good behaviour in the meantime.  Have you any objection to that Mr McEwen?

18     MR McEWEN:     Certainly not, and I have no indication that she has been otherwise. 

19     MILLHOUSE J:       In that case the bond will start from the date of the original sentence which was 9 October 1998. 

20     My Brother Duggan J has kindly volunteered to take the bond, in due course, in court number 2, as soon as it may be prepared, which won't be very long, and in the meantime we will adjourn to reconstitute.