R v Glover No. Sccrm-00-232

[2001] SASC 29

R v GLOVER
[2001] SASC 29

Court of Criminal Appeal:  Doyle CJ, Duggan and Williams JJ

1................ DOYLE CJ (ex tempore). This is an appeal against sentence. The appellant was convicted by a jury on one count of possessing heroin for sale, contrary to s 32(1)(e) of the Controlled Substances Act.

1. On a further count of possessing cannabis for sale, he was convicted of the alternative offence of simple possession. That further offence can be put to one side for practical purposes in considering the appeal.

2. The appellant was found in possession of 18 separately packaged “tastes” of heroin. They weighed in total 0.98 grams, of which 0.51 grams were heroin. The heroin offence attracted a maximum sentence of a fine of $200000 or a sentence of imprisonment for 25 years or both.

3. The Judge sentenced the appellant to imprisonment for six years. That was, I take it, a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act. The Judge fixed a non-parole period of three years, six months.

4. The Judge also had before him an application by the Director of Public Prosecutions to revoke a suspended sentence of 11 months imprisonment. The application for revocation was made because of the breach of a bond, on the basis of which the sentence was suspended. The Judge revoked the suspension but ordered that the sentence of 11 months be served concurrently with the sentence of six years. Accordingly, the non-parole period was fixed in relation to both sentences.

5. The sentencing Judge accepted that the appellant used heroin himself and that the appellant was selling heroin to finance his own habit.

6. The appellant was 42 years of age at the time. He had a bad record. He had a long list of offences, beginning in 1973 when he was a juvenile. None of the offences are of the highest level of seriousness, but, in combination, they constitute a depressing and bad record. There are offences of dishonesty, including burglary, vehicular offences, assaults and some minor drugs offences. The appellant has been to prison before but has not, as I read his record, served a sentence of imprisonment anywhere approaching the length of the present sentence.

7. The Judge had before him a report from a clinical forensic psychologist. In that report the opinion is expressed that Mr Glover: “[H]as a borderline personality disorder marked by unstable personal relationships, poor self-image, affective instability, impulsivity, intense anger and recurrent suicidal threats. He is depressed and bitter in relation to perceptions he was abandoned physically and emotionally by his parents and society during childhood. Antisocial behaviour and polydrug abuse have been commonplace.” The point is made in the report that Mr Glover needs long term treatment if he is to have any real chance of modifying his lifestyle and that one cannot be confident that he will seek or continue to receive that treatment.

8. There is really nothing by way of mitigation in the circumstances of the offence. Mr Glover’s personality disorder is a relevant matter but cannot amount to much by way of mitigation, bearing in mind Mr Glover’s age, his poor record and the seriousness of the offence for which he was sentenced.

9. Subject to one matter, to which I will refer in a moment, in my opinion, the head sentence was well within the appropriate range and the non‑parole period is lenient.

10. In August 1997 Mr Glover lost his right eye as a consequence of an assault. There is apparently some weakness in the remaining eye. Mr Glover is sensitive about the injury and its appearance. In submissions to the District Court Judge, counsel urged leniency on the basis that while in prison Mr Glover was at risk of sustaining an injury to the remaining eye. The point was made that the consequence of a significant injury to that eye would be devastating for Mr Glover. The further point was made that Mr Glover is naturally highly anxious about this. His continuing anxiety during the term of imprisonment that he will have to serve means that imprisonment would be more difficult for him than it would otherwise have been. As well the risk of injury to the good eye is something to be taken into account.

11. This is a matter that might well be taken into account in fixing the sentence. It might be expected to affect the non-parole period more than the head sentence. The sentencing Judge referred to it. There is nothing in his remarks to suggest that he put it to one side.

12. In my opinion it cannot be said that the sentence is manifestly excessive. The head sentence is significant, but, as I have already said, there are no significant mitigating circumstances other than the matter just referred to. The non-parole period is relatively low, being only slightly in excess of half of the head sentence. I am confident that this reflects an allowance that the Judge made on account of the matter relied upon in support of the appeal. Some Judges might have made a greater allowance. But I am unable to say, even when account is taken of this further factor, that the sentence is excessive. For those reasons, I would dismiss the appeal.

14.............. DUGGAN J:...... I agree, the appeal should be dismissed for the reasons given by the Chief Justice.

15.............. WILLIAMS J:... I agree.

16.............. DOYLE CJ:....... The order of the Court will be that the appeal will be dismissed.