R v Gibbons No. Ccrm-98-231 Judgment No. S6967

R v GIBBONS
[1998] SASC S6967

Court of Criminal Appeal: Cox, Prior, Olsson, JJ

COX J. In my opinion this appeal should be allowed. I agree with the order proposed by Prior J and with his Honour’s reasons.
PRIOR J: This is an appeal against a sentence imposed in the District Court.
The appellant pleaded guilty to knowingly supplying amphetamines. He was sentenced to 18 months imprisonment with a non-parole period of 10 months suspended upon his entering into a bond to be of good behaviour for two years.
In this appeal it is complained that the sentence is manifestly excessive. The sentencing judge is said to have erred in taking into account previous drug history and in imposing conditions to the bond to be of good behaviour that were inappropriate. It is also said that the trial judge erred in requiring a guarantor for the bond. On the hearing of the application for leave a further ground of appeal was added, by consent. That was that the trial judge did not accept that he was drug free. It was argued that the appellant was sentenced on a factual basis inconsistent with submissions and a report, supplied after submissions. It was argued that the trial judge was wrong to do so without giving notice of his intention to counsel.
On 8 January 1998, police entered premises then occupied by the appellant to discover, on the kitchen table, a bag, with pink piping, containing needles, mediswabs and a plastic bag of white powder which proved to be amphetamine. Cannabis was also found in the house. When interviewed, the appellant admitted to being in possession of the amphetamine. Fifty dollars, found adjacent to a small set of digital scales, was admitted by him to suggest he was involved in selling the drug. However, he said that he was simply sorting out money to pay bills and had left the money there. He said he obtained the amphetamine a few hours before at an hotel, from someone whose name he did not know. He had paid $180 for about 5 grams of the substance seized by police, using some of it for himself and giving some to another person who had just come past. That person was a person he said he had only seen but twice in his life before. The appellant told police he used 4 grams - 5 grams of amphetamine on a normal day, assuming he had sufficient funds to finance his habit. He denied purchasing 4 grams - 5 grams and then selling some of it, admitting that he knew it was an offence to possess amphetamine, but saying that he did it out of habit.
The appellant’s plea of guilty was accepted by the prosecution upon the basis that the appellant was not a regular supplier of amphetamines. It was accepted that on this one occasion an associate of the user called in and, in answer to a request, was given a taste by the appellant. Nevertheless, the court was asked to accept that the appellant was an abuser of amphetamines. He was on unemployment benefits, earning money from time to time as a music teacher.
The appellant’s plea of guilty was known to the prosecution before his appearance in the District Court on 9 June 1998. On that day the plea was affirmed and a nolle prosequi entered with respect to another count. The sentencing judge was told that whilst the appellant had used amphetamines over some 20 years for depression, pain relief and weight loss, he had discontinued his drug use. The appellant’s personal circumstances were summarised including references to his work as a volunteer for the St John Ambulance Service over seven years.
The court was asked to regard the appellant’s offending as at the absolute lowest end of the scale given that the admitted offence was nothing other than a social supply of someone already using the drug. It was said that it was not a case of the appellant seeking out or encouraging a market, or obtaining financial benefit and that the appellant’s prospects of rehabilitation were good. The sentencing judge asked for a report upon the appellant’s abstinence from drugs since apprehension and declined to sentence until he had received such a report. The report took some time.
A psychiatric report of 10 September 1998 indicated that the appellant then had a condition called parasitophobia, which is a delusional state where a person feels infested with insects. As for any report about the appellant being drug free, there was a report from a pathology service in June 1998 which indicated a urine test failed to detect signs of habitual drug abuse. There was also a report from a Community Health clinical nurse that spoke of the appellant telling her that he had attempted to obtain a drug free state between January and June 1998, with mixed results. After reference to the favourable test urinary drug screen the report spoke of the appellant displaying commitment to remaining drug free and developing his personal skills and knowledge to achieve that goal. The sentencing judge referred to the medical reports when considering whether to suspend the sentence of imprisonment he fixed as appropriate. He said that he had difficulty in being persuaded that the appellant was then drug free. His Honour said that he was not persuaded the appellant was no longer addicted to the drug and then drug free. The material supplied entitled the sentencing judge to say what he did. There is nothing in the complaint that the appellant should have been advised of this view before asserting it in his sentencing remarks, given the way the matter was left at the end of submissions on 9 June. The absolute submission of counsel was not supported by the material supplied. The trial judge’s view was, in fact, favourable to the appellant. The situation was not comparable with that which arose in R v Young[1]. In that case, the sentencing judge was found to have erred because he rejected a factual basis accepted by both sides in the course of submissions. Here, the asserted situation was not entirely confirmed by the only material relied upon.
[1] (1996) 85 A Crim R 104 at 109
Early in his sentencing remarks, the sentencing judge described the appellant’s offending as serious, saying that the extent of the seriousness with which was regarded was reflected in the penalties prescribed by Parliament for such an offence. The penalty in this case was a fine not exceeding $200000 or imprisonment for 25 years, or both. His Honour then acknowledged that “many sentencing options” were available to him. However, he said that no sentence other than a term of imprisonment was appropriate, in the appellant’s case, having regard to its seriousness as well as the prevalence of this type of offending. His Honour referred to the submission put that the offending was, in fact, “at the lowest end” of the offence and then said:
“You, of course, have had other encounters with the law, but I am prepared to disregard your record for present purposes because your prior offending is of a totally different nature.
I note however that on your own admission, you have been using the drug for many years. It seems to me therefore that your record is undoubtedly better than it should be.
I think that you are a repeat offender who has been lucky enough not to have been caught. I will not hold that against you, but I cannot give you the same credit that I would have been able to give you had you been truly a first offender in every sense of that expression.”
I think the appellant is correct in submitting that the sentence of 18 months imprisonment was manifestly excessive on the undisputed facts before the court. In imposing such a sentence of imprisonment, the sentencing judge failed to give proper weight to the fact that no commercial activity was established and no harm done or threatened to a person inexperienced with drugs. It seems to me that this was really a case of bare supply to an existing user with the suggestion that some network support was established on the facts, not sufficiently significant in these circumstances to have an element of aggravation justifying the sentence of 18 months imprisonment. I would reduce the sentence of imprisonment from 18 months to four months, notwithstanding the fact that it can be said that, by the appellant’s conduct on this day, he was supporting the illegal activity of another. This was nothing more than a one off case of social supply. The sentence imposed was too high.
That being said, I acknowledge that this was a case where, if a sentence of imprisonment was appropriate, good reason was established to suspend such a sentence given the circumstances of the offence and the appellant’s good intentions. I would find good reason to suspend, as did the trial judge, but would have to decline to contemplate the requirement for a guarantor or conditions of the kind that His Honour then imposed.
The prosecution did not dispute that it was wrong to require a guarantor in a case of this kind. To impose a condition of that kind is very oppressive for the guarantor, who could well be guaranteeing something beyond that person’s control. To require this is to expose the guarantor most unfairly to the consequences of any breach of the appellant’s bond to be of good behaviour and to “totally abstain from consuming any illicit drugs of any type save and except as may be prescribed by a legally qualified medical practitioner and ...not handle, deal with or distribute any such drugs”. In imposing that condition, I think the sentencing judge reflected more concern for the appellant’s previous use of drugs than properly punishing him for the offence to which he had pleaded guilty.
The court was informed that a condition of this kind is one often used by this particular judge. Recently, this Court has considered two cases where the same judge imposed a similar condition[2]. In Bell, a person admitting producing cannabis, possessing it for supply and possessing implements for its consumption was required, as a condition to the suspension of a sentence of imprisonment, that he abstain from consuming any illicit drug other than those that might be prescribed by a medical practitioner. Submissions put to the court on his behalf were that the appellant wanted nothing further to do with marijuana and that he would be relying on prescription drugs from then on. In the circumstances of that case there was nothing particularly onerous in imposing a condition to comply with the law with respect to drugs. However, in Laurie, the facts were very different. The appellant was a regular user of cannabis who, on the facts then before the court, was a person who simply could not, or would not observe the law. His particular personal circumstances were regarded as of significant in intervening to remove that condition. That case is by no means authority for the general proposition that conditions of this kind should never be imposed with respect to any drugs, just as Bell should not be taken as endorsing the practice as appropriate with respect to any offence involving drugs. As was pointed out, in the course of argument, conditions of this kind should not be considered appropriate where, to impose them, would frustrate the scheme identified in s39 of the Controlled Substances Act 1984 or render almost inevitable the likely breach of such a condition and the serving of a sentence said to be suspended for good reason.
[2] R v Bell (20 July 1998); R v Laurie (20 August 1998)
I would allow the appeal, set aside the sentence of imprisonment and impose a sentence of four months imprisonment suspended upon the appellant entering into a bond in the sum of $250 to be of good behaviour for 12 months. I would impose conditions as to supervision by a probation officer and an obligation to undergo such medical, psychiatric or other examination or treatment as the probation officer might require.
OLSSON J. I concur in the substance of what has been said by Prior J and the orders which he proposes. I would merely seek to emphasise that this was a simple case of the social supply of a very small quantity of amphetamines to a person who was already an established user of the drug. It could not reasonably have attracted a sentence of the severity of that actually imposed. Moreover, it seems to me that various conditions imposed by the relevant bond were not inserted as a reflection of the actual offence charged. They were clearly intended to achieve a purpose which was very much collateral to that offence. In the circumstances of this case that was, in my view, conceptually inappropriate, quite apart from the considerations expressed by Prior J, with which I agree.

JUDGMENT CITATIONS

LISTED IN ORDER OF APPEARANCE IN JUDGMENT

(1996) 85 A Crim R 104 at 109

2. R v Bell (20 July 1998); R v Laurie (20 August 1998)

[1998] SASC 6967

1 December 1998