R v Faber

Case [2020] SASCFC 49

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v FABER

[2020] SASCFC 49

Judgment of The Court of Criminal Appeal

(The Honourable Justice Bampton, The Honourable Justice Parker and The Honourable Justice Livesey)

9 June 2020

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - IMPORT-EXPORT OFFENCES

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - POSSESSION

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

Application for permission to appeal by Commonwealth Director of Public Prosecutions against sentence imposed in the District Court – where the respondent was found guilty of importing a marketable quantity of a border controlled drug (MDMA) contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth) (‘the Code’) and pleaded guilty to possessing a controlled drug (ketamine) contrary to s 308.1(1) of the Code – the respondent was sentenced to a head sentence of four years, two months and 13 days and a non-parole period of 16 months – whether the sentence imposed is manifestly inadequate.

Held (per Bampton J, Parker and Livesey JJ agreeing): the head sentence for the importation offence is not manifestly inadequate – the non-parole period imposed is manifestly inadequate – having regard to the circumstances that would produce an injustice if the appeal is allowed, permission to appeal refused.

Criminal Code Act 1995 (Cth) s 302, s 307, s 308; Criminal Code Regulations 2002 (Cth) reg 5D; Crimes Act 1914 (Cth) s 16A; Judiciary Act 1903 (Cth) s 68(2), s 80; Criminal Procedure Act 1921 (SA) s 150, s 157(1)(a)(iii), s 158(7); Criminal Law Consolidation Act 1935 (SA) s 150; Criminal Procedure Act 2009 (Vic) s 287; Correctional Services Act 1982 (SA) s 37A, referred to.
Green v The Queen (2011) 244 CLR 462; R v Kong [2013] SASCFC 15, applied.
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; R v Buttigieg [2020] SASCFC 38; Director of Public Prosecutions (Cth) v KMD (2015) 254 A Crim R 244; Ludwig v The Queen [2015] VSCA 35, discussed.
R v Pham (2015) 256 CLR 550; Wong v The Queen (2001) 207 CLR 584; R v Chen & Ors (2002) 130 A Crim R 300; R v Stanbouli [2003] NSWCCA 355; R v Nguyen; R v Pham (2010) 205 A Crim R 106; R v Pang (1999) 105 A Crim R 474; Everett v The Queen (1994) 181 CLR 295; R v V, AJ [2012] SASCFC 10; Pham v The Queen (2014) 244 A Crim R 252; Director of Public Prosecutions (Vic) v Holder (2014) 41 VR 467; Adams v The Queen (2008) 234 CLR 143; Dunning v State of Tasmania [2018] TASCCA 21; Matthews v The Queen (2014) 44 VR 280; R v Gjoni [2012] SASCFC 48; R v Faehrmann, Moore & Price-Austin (2014) 118 SASR 549, considered.

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R v Faber [2020] SASCFC 49
Case
[2020] SASCFC 49
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CaseChat Overview and Summary

The Commonwealth Director of Public Prosecutions sought permission to appeal against the sentence imposed on the respondent, Mr Faber, in the District Court. Mr Faber had been found guilty of importing a marketable quantity of MDMA and had pleaded guilty to possessing ketamine. The District Court had imposed a head sentence of four years, two months, and 13 days, with a non-parole period of 16 months. The Director contended that both the head sentence and the non-parole period were manifestly inadequate.

The Full Court of the Supreme Court of South Australia was required to determine whether the sentence imposed was manifestly inadequate, specifically considering the head sentence for the importation offence and the non-parole period. The Court also had to consider the principles applicable to Crown appeals against sentence, including the residual discretion to refuse an appeal even if manifest inadequacy is found, particularly where allowing the appeal would produce an injustice.

The Court, per Bampton J, with Parker and Livesey JJ agreeing, found that the head sentence for the importation offence was not manifestly inadequate, noting it was at the lower end of the available range and comparable to sentences in similar cases. However, the Court determined that the non-parole period of 16 months, representing approximately 30 per cent of the total head sentence, was manifestly inadequate. Despite this finding of inadequacy, permission to appeal was refused. This decision was based on the principle that appellate courts possess a residual discretion to refuse a Crown appeal if allowing it would produce an injustice, considering factors such as the imminent or past release of the respondent and the effect of re-sentencing on rehabilitation. The Court concluded that in this instance, the guidance afforded to sentencing judges by allowing the appeal would come at too high a cost in terms of justice to the individual.

Orders

Orders of the court

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Background

Background to the litigation

The Director seeks permission to appeal on the grounds that the sentence imposed for the importation offence and the non-parole period are manifestly inadequate.Background to the offending The prosecution led evidence during Mr Faber’s District Court trial that on 20 March 2017 a parcel with a tracking number (“the parcel”) was posted from France. The parcel recorded the sender’s name as Andre Parmentier and the addressee’s name as Merlin Faber of Klemzig, South Australia. The parcel was declared as containing an Encrypt external hard disc, Dell XPS Alienware 4 TB 2 TB. Upon the parcel’s arrival in Melbourne on 26 March 2017, Australian Border Force officers selected the parcel for further examination. Upon examination, the parcel was found to contain two silver foil packets, each labelled “Alienware High Performance Gaming System”. These packets contained beige crystals weighing 502.4 grams. Analysis by the National Measurement Institute of the crystals revealed that they contained 390.8 grams of pure MDMA (“the MDMA”). On 29 March 2017, the Australian Federal Police (“the AFP”) removed the MDMA, replaced it with a legal substance, and arranged for the parcel to be delivered by Australia Post. At approximately 11.20 am on 30 March 2017, an Australia Post employee attended at Mr Faber’s address to deliver the parcel containing the substituted substance. Mr Faber answered the door and the following conversation with the Australia Post employee took place:AUS POST:I have a parcel for Merlin Faber.FABER:That’s my housemate. AUS POST:Well I’ll need your name to put in the scanner cause you can’t sign as someone else.FABER:Actually I’m Merlin.AUS POST:Sign here.Mr Faber signed for the parcel and upon taking delivery placed it in a Nintendo bag in the doorway of a bedroom of the house. He then made three phone calls using his mobile phone to numbers associated with a person named Nick Zacharia. Later that morning, on 30 March 2017, the AFP executed a search warrant at Mr Faber’s address. Upon searching the premises, the AFP seized the following items:(i)the Nintendo bag containing the parcel delivered by Australia Post;(ii)a small monkey backpack found in a wardrobe in Mr Faber’s bedroom.The monkey backpack contained two sealable bags containing white powder, small sealable bags, scales, empty gelatine capsules, and MDMA in a sealable plastic bag within a plastic sealable food container. Trace amounts of MDMA and ketamine were located on the scales, as well as Mr Faber’s fingerprint. The white powder in the two sealable bags weighed 65 grams. It was analysed by the National Measurement Institute and found to contain 44.8 grams of pure ketamine. Mr Faber’s phone was also seized and upon analysis revealed that he had exchanged text messages in August 2015, October 2016, and November 2016, the contents of which were indicative of him engaging in the sale of illicit drugs. It was the prosecution case that Mr Faber performed a principal role in the importation of the MDMA by paying $2,500 to finance the importation to a man named Nick Zacharia, and providing his name and address for the importation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for Mr Faber made reference to this Court’s decisions in R v Gjoni[21] and R v Faehrmann, Moore & Price-Austin,[22] in which far more extensive material was placed before the Court in terms of the comparative analysis. It was submitted that the Court needs to be very cautious dealing with comparative analysis and that, when analysed, the schedule contained a small sample of three comparative cases of offending to Mr Faber’s. It was contended that the cocaine cases are 100 per cent commercial and whilst Mr Faber acknowledged that he received less than the offenders in Dunning, Matthews, and Ludwig, he argued that he was a better candidate for mercy and he committed an offence which was far more isolated in the sense that it was unaccompanied by a background of commercial drug transactions.[21] [2012] SASCFC 48.[22] (2014) 118 SASR 549.Conclusion The sentence imposed for the importation offence is at the lower end of the available range. When compared with the cases in the schedule, in particular, the case of Ludwig, I am of the view that the head sentence of three years and nine months for the importation offence is not so low as to be manifestly inadequate. It is when the non-parole period of 16 months is considered against the total head sentence comprising the concurrent sentences for the importation offence and the possession offence that the question of whether the sentence falls outside the range of sentences available to the sentencing Judge arises. The non-parole period of 16 months is approximately 30 per cent of the resulting head sentence of four years, two months, and 13 days. The Judge found that Mr Faber had engaged in a minor way in the sale of illicit drugs prior to committing the importation offence and that none of the usual indicia of trafficking were present in his home. Mr Faber is a first-time offender. He removed himself from drug use after his arrest and he has good prospects for rehabilitation. It must be acknowledged the quantity of MDMA imported and his principal role in facilitating and taking delivery of it required a significant sentence reflecting the need for personal and general deterrence. Having regard to these matters, I am of the view that, whilst there were matters personal to Mr Faber that may justify a lower non-parole period, the non‑parole period imposed was manifestly inadequate. In Green v The Queen, French CJ, Crennan and Kiefel JJ said that a primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals which:[23]… is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.Their Honours explained that circumstances may combine to produce injustice if a Crown appeal is allowed:[24]… They includedelay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.[23] Green v The Queen (2011) 244 CLR 462 at [36].[24] Green v The Queen (2011) 244 CLR 462 at [43].

Ratio Decidendi

Legal Principle Established

The Director further contended that if the Court grants permission, the Court will not have regard to presumed anxiety and distress when assessing whether the sentence imposed at first instance is manifestly inadequate. What reveals manifest inadequacy is a consideration of all the matters that are relevant to fixing the sentence. As presumed anxiety and distress is not relevant to fixing a federal sentence, such consideration is inapplicable to the determination of manifest inadequacy in the appeal.Consideration of the application for permission to appeal In determining this appeal, the Court exercises federal jurisdiction pursuant to s 68(2) of the Judiciary Act, which picks up and applies s 150, s 157(1)(a)(iii), and s 158(7) of the Criminal Procedure Act 1921 (SA). Pursuant to s 157(1)(a)(iii), the Director may appeal the sentence imposed on Mr Faber with permission of the Full Court. Upon the grant of permission, s 158(7) provides the Court power to resentence:(7)… on an appeal against sentence, the Full Court must— (a) if it thinks that the sentence is affected by error such that the defendant should be re-sentenced— (i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or (ii)quash the sentence passed at the trial and remit the matter to the court of trial for re-sentencing; or (b) in any other case—dismiss the appeal.(Emphasis added) Section 150 provides that in allowing an appeal against sentence:Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must— (a)impose the sentence that should have been imposed in the first instance; and (b)order that the sentence— (i) will be taken to have come into effect on a date before the date of the order; or(ii) will take effect on a date on or after the date of the order.” Appellate courts have had regard to the principle of double jeopardy in considering:·whether permission should be granted to the prosecution to appeal;·whether a prosecution appeal should be allowed; and·upon quashing a sentence imposed at first instance the sentence to be imposed in resentencing. Section 150 of the Criminal Law Consolidation Act 1935 (SA), as did its predecessor s 340, precludes the Court from having regard to double jeopardy when resentencing. The authorities of this Court concerning s 340 have referred to s 340 as not precluding the application of double jeopardy in considering whether permission should be granted to the prosecution to appeal and if upon a grant of permission whether to allow the appeal in the exercise of the Court’s residual discretion.[9][9] R v V, AJ [2012] SASCFC 10 at [22].Bui v DPP (Cth) The High Court in Bui held that s 16A does not accommodate the principle of double jeopardy in relation to a successful Commonwealth appeal against a federal sentence. The High Court said:[10]Section 16A does not accommodate the “principle” which the appellant seeks to introduce. The appellant submitted that this principle was one of the “other matters” which “the court must take into account” in determining sentence and that it was a matter that operated as an automatic “discount” on the sentence that would otherwise be imposed. Application of an automatic discount would not be consistent with the requirement of s 16A(1) that a sentence be appropriate in its severity in all the circumstances of the case. And to read s 16A in the manner submitted by the appellant would be to gloss the text impermissibly by introducing a notion for which there is no textual foundation. It would go well beyond giving relevant content to any of the expressions found in the section.Moreover, the terms of s 16A, in particular those of sub-s (2), are addressed to matters affecting sentencing which are to be applied by all courts exercising federal jurisdiction upon sentencing. Those terms draw no distinction between the matters to be taken into account by a sentencing court at first instance or by a court on appeal. It has nothing to say about particular matters which an appeal court alone may take into account when considering re-sentencing. No warrant is therefore provided for interpreting s 16A as encompassing concepts addressed only to an appellate court, such as notions derived from the rule against double jeopardy.(Footnote omitted)[10] (2012) 244 CLR 638 at [19]-[20].