R v Dunstan No. Sccrm-98-108 Judgment No. S6751

[1998] SASC 6751

R v DUNSTAN

Court of Criminal Appeal
Coram: Perry, Williams and Bleby JJ

Williams J:

This is an appeal against sentence imposed in the District Court on 9 April 1998.  The appellant was charged with administering methylamphetamine, on 11 April 1997, to a person whom I will refer to as D, a child of the age of 15 years.  The appellant came before the Adelaide Magistrates Court and was committed to appear in the District Court on 21 July 1997.  He failed to appear.  A warrant was issued for his arrest, and he was brought before the District Court on 12 February 1998.  A guilty plea was entered on 15 February 1998.  The appellant was sentenced to imprisonment for seven years six months, and was also required to serve eleven months twelve days, being the balance of an unexpired sentence, making in all the term of eight years five months twelve days.  Upon this head sentence the sentencing Judge fixed a non-parole period of four years six months.  Leave to appeal was granted on 19 May 1998.  The grounds of appeal are that the total head sentence and the non-parole period were, in all the circumstances manifestly excessive.  The offence occurred in a motel room on Marion Road.  The appellant, aged 31, had formed a platonic association with D, whom the sentencing judge described as a ‘street kid’.  The appellant described D as being like a little sister.  The appellant knew her age, because he admitted to the police that D had so informed him.  The appellant purchased some amphetamine and then left a message for D to join him.  D brought her own syringe, and the appellant complied with D's request that he administer the amphetamine to her, using her own syringe.  Afterwards the appellant made full confession when  confronted by the police.  The sentencing judge noted the appellant's failure to appear in the District Court when first called upon, and he took the view that the appellant had not pleaded guilty at the earliest opportunity in these circumstances.  Nevertheless, the sentencing Judge allowed some discount for the plea.  The sentencing Judge had regard to the appellant's personal circumstances and noted, in particular, that the appellant:

1. had never had the opportunity to develop normally;

1. had been abused a relatively early stage by his mother, who had a psychological deficit;

1. had limited work skills, having held a series of many short term unskilled jobs;

1. had a history of substance abuse in order to help him deal with feelings of social isolation, frustration and low self-esteem;

1. had a criminal history spanning 13 years, including periods of imprisonment.

The maximum penalty for the offence of administering methylamphetamine to a child, under s32(1)(c) of the Controlled Substances Act, is a penalty of: "A fine not exceeding $400,000, or imprisonment for a term not exceeding 30 years, or both". The sentencing Judge said that having regard to the intention of Parliament, he regarded the offending as serious, notwithstanding the consent of D. The appellant now argues that the sentencing Judge erred by:

(a)     using a starting point for sentencing that was too high in the circumstances and

(b)     placing too great an emphasis on his previous history. 

Counsel, in effect, argued that the appellant's prior history must be balanced against his very poor and dysfunctional background, which was amply evidenced by the reports before the court.  I would observe in passing that the suggestion by counsel that there should have been a discount by the sentencing Judge in the region of 20% by reason of the plea of guilty is, in my view, unsustainable.  It seems to me that in the circumstances any justifiable discount would have been far less than 20%.  Counsel for the Director of Public Prosecutions acknowledges that this sentence was heavy, but submits that a substantial sentence of imprisonment was required to give proper weight consideration to personal and general deterrence.  The Director points to the following matters:

1. the maximum penalty prescribed for the offence;

1. the appellant's extensive criminal history, which included drug-related offences;

1. the substantial age difference between the appellant, aged 31 years, and the complainant aged 15 years;

1. the appellant's supply of the drug which he administered to the complainant;

1. the fact that the offence was committed whilst the appellant was subject to parole. 

This lastmentioned aspect of the matter is of particular concern.  The appellant had been sentenced to imprisonment for two and a half years in May 1996, in respect of a larceny offence, and was on parole in respect of this offending at the relevant time.  It is true that there is no suggestion of profit involved in the appellant's offending, and there is no suggestion that the appellant was seeking to exploit D sexually.  However, the gravamen of the offence is the administration of a drug to a person of a class which Parliament is seeking to protect.  It seems to me that the appellant has gone out of his way to flout the law.  The fact that the child was already living on the street does not lessen the need for her protection.  The child was vulnerable.  The appellant took a motel room and provided a place in which he committed this offence. 

The sentence undoubtedly, so far as the head sentence is concerned, was a heavy one, but in my view not outside the permissible range in the circumstances.  The non-parole period was quite modest, having regard to the appellant's antecedents and his prospects of rehabilitation in the light of his propensity to re-offend.  I am not persuaded by the arguments which have been ably put on behalf of the appellant's counsel.  In my opinion it has not been demonstrated that the sentence is manifestly excessive and, in the circumstances, I would dismiss the appeal against sentence. 

PERRY J:  This is, having regard to the statutory penalty, a very serious offence.  There was virtually nothing in the case by way of mitigating circumstances.   Although the appellant made a spontaneous confession when apprehended by the police, they had raided the motel room and he was caught virtually red-handed. 

The discount for the late plea of guilty could only be minimal, having regard to the fact that the appellant only pleaded guilty after being arrested on a warrant, following which he was returned to South Australia from interstate. 

True it is that the learned sentencing judge presumably sentenced on the footing that the victim pressured the appellant both to supply and administer the drug, but he only had to say "no".  He had, after all, invited her to the room in the first place, in circumstances which suggested that there could hardly have been any other reason to do so, other than to give to her an opportunity to share in the drug which he had obtained. 

The sentence is a severe one, but I agree with my brother Williams that the appellant has not discharged the onus of demonstrating that it is manifestly excessive. 
I would dismiss the appeal.

BLEBY J:  I agree with the reasons which have been given by my brethren in this matter, and for those reasons I too would dismiss the appeal. 

PERRY J:  The order of the court is that the appeal be dismissed.