R v Fowler
[2006] SASC 18
•1 February 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FOWLER
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Gray and The Honourable Justice Layton)
1 February 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - OTHER MATTERS
Applicant convicted of one count of possessing methylamphetamine for sale and one count of possessing cannabis – single sentence of 30 months with non-parole period of 15 months imposed – whether trial judge erred in not suspending sentence - held that the test for suspension of a sentence of imprisonment is whether there exists “good reason” to suspend – no error demonstrated - whether sentence manifestly excessive – held that sentence not manifestly excessive.
Criminal Law (Sentencing) Act 1988 s 38(1), referred to.
R v Osenkowski (1982) 30 SASR 212; Elliott v Harris (No 2) (1976) 13 SASR 516; Wood v Samuels (1974) 8 SASR 465; Ware v Betts (1987) 134 LSJS 212; R v Regan [2003] SASC 287; R v Cane [2003] SASC 237; Dinsdale v R (2001) 175 ALR 315; R v Pham [2003] SASC 386; R v Manglesdorf (1995) 66 SASR 60; R v Gjoka (Unreported) Court of Criminal Appeal, 1 July 1997, Judgment No S6211; House v R (1936) 55 CLR 499; R v Harris (2001) 122 A Crim R 241; Vartzokas v Zanker (1989) 51 SASR 277; R v Jarrett (1992) 58 SASR 457; R v Wacyk (1996) 66 SASR 530; R v Hill [2005] SASC 380; R v Famiglietti [2005] SASC 489; Bohdan Weiss v The Queen [2005] HCA 81; Ogden Industries Pty Ltd v Lucas [1970] AC 113; Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390, considered.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Whether trial judge erred in failing to consider time spent in custody - held that trial judge failed to consider time spent in custody - appeal allowed in part by reducing the sentence by 1 month and non-parole period by 1 month, but otherwise appeal dismissed.
R v FOWLER
[2006] SASC 18Court of Criminal Appeal: Perry, Gray and Layton JJ
PERRY J. The appellant appeals by leave against the sentence imposed upon her in the District Court after a trial by judge alone when she was convicted on one count of possessing methylamphetamine for sale and one count of producing cannabis.
The maximum penalty for possessing methylamphetamine for sale is imprisonment for 25 years or a fine of $200,000 or both. The maximum penalty for the cannabis offence is a fine of $2,000 or imprisonment for 2 years or both.
Exercising his powers pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, the sentencing judge imposed a single sentence, being a sentence of imprisonment for 30 months, against which he fixed a non-parole period of 15 months.
It is from that sentence that the appeal is brought.
Prosecution for the offences arose out of the attendance by police officers on 16 November 2003 at two addresses owned by the appellant at Elizabeth North.
In the bedroom of one of the premises, being premises in which the appellant resided, the police officers found a number of plastic bags containing white powder, which, on analysis, was found to contain 0.54 grams of methylamphetamine.
Also in the bedroom were a number of other small plastic bags, some of which contained traces of methylamphetamine, a quantity of cutting agents, syringes and spoons used for the administration of methylamphetamine, and financial records of drug transactions.
The quantity of methylamphetamine found in the bedroom of that house was the subject of the first count.
At the appellant’s other house at Elizabeth, police officers found three cannabis plants being grown hydroponically. The sentencing judge found that the appellant was involved with others in growing those plants. They are the subject of the second count.
The appellant maintained her innocence on both charges after the conviction had been entered by the trial judge, and throughout the sentencing process.
The appellant has just turned 32 years of age. Her parents separated while she was still in her infancy. She then had a disturbed upbringing, punctuated by an incident when she was sexually assaulted at the age of 13 by an adult man.
Notwithstanding these difficulties, she eventually completed a nursing degree at Flinders University, and worked as a nurse at a number of hospitals.
More recently the appellant was subjected to physical and emotional abuse by a man with whom she was having a relationship.
The appellant has a history of drug abuse. After a period during which she used cannabis, she was introduced to amphetamine at the age of about 17. At first she used in small amounts, but the level of intake increased substantially under the stress of her relationship.
Although separated from her former partner, she continues to suffer from depression, low self-esteem and a feeling of vulnerability associated with a concern that she may be further physically attacked by him.
According to the psychological report of Dr Allen Fugler, which was before the sentencing judge, she had ceased using drugs by the time of his examination of her in August 2005.
This was the appellant’s first appearance in court with respect to a drug offence, but she has a record of relatively minor offences, largely traffic offences, dating from 1992.
The sentencing judge described the offending with respect to methylamphetamine as serious. In the course of his sentencing remarks he said:
As I think it is likely that you will attempt to change your lifestyle in the future, I shall fix a lower non-parole period than usual. Your counsel has asked me to suspend any term of imprisonment. I have given that most anxious consideration but I am of the view that there are no good reasons to suspend the sentence.
The appellant advances three grounds of appeal, namely:
·That the sentence was manifestly excessive.
·That the trial judge failed to take into account time already spent in custody and on home detention bail.
·That the trial judge erred in not suspending the term of imprisonment.
In his submissions on the hearing of the appeal, Mr Ian White, who appeared for the appellant, put at the forefront of his argument his contention that the sentencing judge erred in failing to suspend the sentence.
He referred to R v Osenkowski,[1] where King CJ said:
There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
[1] (1982) 30 SASR 212 at 212-213.
He further submitted that the suspension of the sentence of imprisonment is not a “soft option”. It remains a sentence of imprisonment and a deterrent.[2]
[2] Citing Elliott v Harris (No 2) (1976) 13 SASR 516; Wood v Samuels (1974) 8 SASR 465; Ware v Betts (1987) 134 LSJS 212; R v Regan [2003] SASC 287 and R v Cane [2003] SASC 237 at par [40].
He submitted that in considering the question of suspension, the court must revisit all of the circumstances to which its attention may have been directed in determining the sentence to be suspended. That exercise will include a consideration of those matters relevant to the offence, as well as those personal to the offender.[3]
[3] Dinsdale v R (2001) 175 ALR 315 at 336 par [85] per Kirby J.
Furthermore, “good reason” to suspend within the meaning of s 38(1) of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”)may be apparent from a combination of circumstances.[4]
[4] See R v Pham [2003] SASC 386 per Perry J at par [49]-[50].
It must be accepted, however, that in cases where general deterrence is a major factor in the sentencing process, there is less room for allowance for personal or idiosyncratic factors relevant to the question of suspension.
Mr Petracarro, who appeared for the Crown, cited R v Manglesdorf,[5] where Doyle CJ (with whom Prior and Williams JJ concurred) said[6] with reference to a conviction for possession for sale of drugs, including “middle range” drugs, which expression includes methylamphetamine:
The court has … made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in drugs dealt with by s 32.
[5] (1995) 66 SASR 60 at 63.
[6] Ibid at 63.
Later in the same case, Doyle CJ observed:[7]
In relation to the decision to suspend, one also needs to bear in mind the seriousness of the present offence. As I have already remarked in these reasons, this Court has consistently said that suspension of a sentence of imprisonment is inappropriate in the case of the possession of cannabis for sale when that takes place against a background of substantial involvement in cannabis trading. In my opinion, that is the case here, in the sense that the quantity of cannabis indicated an intention to engage in substantial trading. The court has, on a number of occasions, revoked orders for suspension made in such cases, despite the considerations which tell against doing so on an appeal by the Director of Public Prosecutions against sentence. (emphasis added)
[7] Ibid at 75.
Later, in the case of R v Gjoka,[8] Doyle CJ (with whom Olsson and Lander JJ concurred) repeated the remarks which he had made in Manglesdorf. He added:[9]
The power to suspend a sentence is conferred by s 38 of the Sentencing Act. The court may suspend a sentence “… if it thinks that good reason exists for doing so”. That is the statutory criterion, and that is the test to be applied.
Nevertheless, it is appropriate for this Court in particular cases to determine, as it did in Manglesdorf (supra), that the nature or gravity of an offence is such that suspension will not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it will be very difficult to justify suspension. (emphasis added)
[8] (Unreported) Court of Criminal Appeal, 1 July 1997, judgment No S6211.
[9] Ibid at 4.
I agree with the comments of Gray and Layton JJ to the effect that the test for suspension is as prescribed in the statute, namely, whether the court “thinks that good reason exists for doing so”.
With respect to them, I do not consider that Doyle CJ in Manglesdorf meant to suggest otherwise. I do not think that there was an “exceptional circumstances” test as discussed in Manglesdorf.
Neither do I agree that Doyle CJ is Gjoka “qualified” his remarks in Manglesdorf. Rather, he simply explained that it was wrong to interpret his comments in Manglesdorf as suggesting a test of “exceptional circumstances”. The test is whether there is “good reason” to suspend.
Doyle CJ made it clear in Gjoka, that that is the only test.
But the question whether “good reason” exists, is not to be considered in the abstract, divorced from the other circumstances of the case. Those circumstances include the objective seriousness of the offending.
The import of the remarks of Doyle CJ in Manglesdorf and Gjoka (concurred in by four other members of the court) is that the objective seriousness of drug offences, particularly those involving commercial dealing, and the need for penalties in such cases to reflect a substantial allowance for general deterrence, will ordinarily outweigh circumstances which otherwise might justify suspension.
To approach the matter with such considerations in mind, in no way subverts the statutory test. It is to do no more than make the essentially pragmatic observation that there is a class of offending which is so serious, that suspension of the sentence in cases falling within the class, is unlikely to be justified often.
There is not an “exceptional circumstances” test “as discussed in Manglesdorf”. There is only one test. But in the case of certain serious categories of offending, its successful application in favour of the defendant will be uncommon. A sentencing court does not fall into error, if it recognises the practical reality of that observation.
Mr Petracarro contended that there was nothing “truly exceptional” about the circumstances put forward on behalf of the appellant to justify suspension of the term of imprisonment involved.
It might have been more accurate to say that, bearing in mind the objective seriousness of the offending, as emphasised in cases such as Manglesdorf and Gjoka, it could not be said that there was “good reason” to suspend.
In any event, the question whether or not to suspend was entirely a matter for the discretion of the sentencing judge. This Court will only interfere with the exercise of the discretion if error in the sense identified in House v R[10] is demonstrated.
[10] 55 CLR 499.
When the Court pressed Mr White to identify what he submitted amounted to good reason to suspend within the meaning of s 38 of the Sentencing Act, he identified several factors, namely, the appellant’s unfortunate background; that she did not have any relevantly significant history of prior offending; that she was a good prospect for rehabilitation; and that she had spent one month in custody before coming up for sentence.
I doubt whether those matters, even in combination, could amount to “good reason” within the meaning of the statutory provision, as they are typical of so many cases of this kind.
In any event, in my view, it has not been demonstrated that the magistrate erred in exercising his discretion against suspension.
As for the other two grounds of appeal, Mr White quite properly did not strongly contest the length of the head sentence and non-parole period. In my view, they were well within the appropriate range of penalties for this offending, and could not be said to be manifestly excessive.
However, I think the appellant’s complaint that the trial judge erred in failing to take into account time spent in custody and on home detention bail is well founded, at least as to the time spent in custody. The appellant was taken into custody on 8 February 2005 and was released on bail on 7 March 2005.
The sentencing judge did not refer to the one month spent in custody. The fact that he imposed a sentence of a round figure of 30 months imprisonment suggests that he did not take it into account.
In all the circumstances, I would allow the appeal for the limited purpose of reducing the head sentence and the non-parole period by one month.
GRAY and LAYTON JJ.
At the hearing of this appeal, counsel for the Crown submitted that the sentencing judge was correct in his decision not to suspend the sentence of imprisonment. Counsel submitted that the circumstances of the case were not “rare and exceptional” and, as such, suspension was unjustified.
Counsel for the Crown drew attention to the observations of Doyle CJ in Manglesdorf.[11] Counsel submitted that Manglesdorf established that the test to be applied by a sentencing judge, when considering the discretion to suspend a sentence of imprisonment imposed in respect of those engaged in commercial activity with respect to drugs, is whether the circumstances of the case are “rare and exceptional” so as to justify suspension.
[11] R v Manglesdorf (1995) 66 SASR 60.
Pursuant to section 38 of the Criminal Law (Sentencing) Act 1988 (SA), the judge had power to suspend the sentence, if he thought that good reason existed for doing so. The statutory provision confers on the court a power that can be exercised in a wide range of circumstances. Section 38(1) provides:
Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
The courts have repeatedly and consistently emphasised that a suspended sentence is a very real punishment. An early enunciation was that of Bray CJ in Elliott v Harris (No 2),[12] where his Honour stated: [13]
So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no wpunishment.
Over the ensuing decades, these remarks have been adopted, applied, reaffirmed and echoed on numerous occasions.[14]
[12] Elliott v Harris (No 2) (1976) 13 SASR 516.
[13] Elliott v Harris (No 2) (1976) 13 SASR 516 at 527.
[14] See for example R v Harris (2001) 122 A Crim R 241 at [42]-[48] (Gray J); Vartzokas v Zanker (1989) 51 SASR 277 at 279 (King CJ); R v Jarrett (1992) 58 SASR 457 at 459 (King CJ); R v Regan [2003] SASC 287 at [24], [27].
As earlier observed, counsel for the prosecution referred to Manglesdorf in support of his submission. Reliance was placed on the remarks of Doyle CJ, where he concluded that for offending involving commercial activity with respect to drugs:[15]
The court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32.
[15] R v Manglesdorf (1995) 66 SASR 60 at 63.
In Gjoka,[16] Doyle CJ qualified his remarks in Manglesdorf by observing:
The power to suspend a sentence is conferred by s38 of the Sentencing Act. The court may suspend a sentence “…if it thinks that good reason exists for doing so”. That is the statutory criterion, and that is the test to be applied.
Nevertheless, it is appropriate for this Court in particular cases to determine, as it did in Manglesdorf, that the nature or gravity of an offence is such that suspension will not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it will be very difficult to justify suspension.
[16] R v Gjoka (unreported, Court of Criminal Appeal, SA, No S6211 of 1997, 1 July 1997).
The correct test to be applied by a sentencing judge when considering whether or not to suspend a sentence of imprisonment has been discussed in a number of recent decisions.[17]
[17] Rv Wacyk (1996) 66 SASR 530, R v Hill [2005] SASC 380 at [45]-[51], R v Famiglietti [2005] SASC 489 at [29]-[39].
There is a substantial and important difference between the “exceptional circumstances” test as discussed in Manglesdorf and the “good reason” test to draw from the wording of the statute. The “good reason” test established by the legislature requires the sentencing judge to consider all of the circumstances of the instant case and make an assessment as to whether those circumstances give rise to good reason to suspend the sentence.
On the other hand, the “exceptional circumstances” test implies that a sentencing judge ought to compare the circumstances of the instant case with other cases and determine whether there are aspects of the instant case that set it apart from the other cases and thereby justify an exercise of the discretion to suspend. This may lead the court to be asked to first consider what the common or typical features of drug trafficking cases are and then compare such features with the case at bar to decide whether such circumstances may be characterised as “exceptional” before considering then whether to suspend. Such an approach would require the fulfilment of conditions which contradict the statutory requirement. In this way, the “exceptional circumstances” test represents a significant departure from the test set down by Parliament.
It is a well-established principle of statutory construction that it is the words of the statute that ultimately govern and not the many subsequent judicial expositions of that meaning which have sought to express the operation of the provision.[18] This principle was discussed by the Privy Council in Ogden Industries Pty Ltd v Lucas,[19] where Lord Upjohn, delivering the advice of the Judicial Committee, observed:[20]
It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must be aware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself.
No doubt a decision on particular words binds inferior courts on the construction of those words on similar facts but beyond that the observations of judges on the construction of statutes may be of the greatest help and guidance but are entitled to no more than respect and cannot absolve the court from its duty of exercising an independent judgment.
Windeyer J expressed the principle in similar terms in Damjanovic & Sons Pty Ltd v Commonwealth:[21]
[R]easoning by analogy is a rather different process in the development of the common law from its use in the interpretation and application of a statute or of the Constitution…. The process [interpreting and applying a statute] is then one of deduction and subsumption, rather than of imperfect induction. The words of the enactment provide the major premise. The result is not, or ought not to be, the establishment of any secondary principle embodied in new words, but at most the provision of an illustration of the effect in a new setting of the original principle expressed in the original words.
[18] Bohdan Weiss v The Queen [2005] HCA 81.
[19] Ogden Industries Pty Ltd v Lucas [1970] AC 113.
[20] Ogden Industries Pty Ltd v Lucas [1970] AC 113 at 127.
[21] Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390 at 408-409.
Properly understood, Doyle CJ’s remarks in Manglesdorf were intended to convey that in certain cases, particularly those involving drug-trafficking crimes, general deterrence can be expected to weigh so heavily in the balance of the sentencing judge’s discretion, it will be an exceptional case where good reason can exist to justify suspending a term of imprisonment. Doyle CJ made this clear in Gjoka by concluding, “[good reason] is the statutory criterion, and that is the test to be applied”. The remarks in Manglesdorf do not fetter the sentencing judge’s discretion. The submission of counsel for the prosecution that Manglesdorf is authority for a principle that, in relation to drug-trafficking offences, a custodial sentence can only be suspended in truly exceptional cases is incorrect.
The test for suspension established by the legislature is whether, in the discretion of the court, good reason exists to suspend. This is the test to be applied by a sentencing judge in the exercise of the discretion to suspend a sentence of imprisonment. To state that, in addition to there being good reason to suspend, a case must also be rare or exceptional before suspension will be justified is to add a gloss to the words of the statute.
Otherwise, with respect to the appeal, we agree with the reasons of Perry J. In particular, we agree that it was open to the sentencing judge not to “think that good reason exists” to suspend the sentence.
This appeal should be allowed for the limited purpose proposed by Perry J.
39
16
1