R v Healey

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HEALEY
[2010] SASCFC 64
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Peek)
30 November 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY
Application for permission to appeal against sentence by DPP – respondent pleaded guilty to one count of trafficking a controlled drug, one count of possession of a controlled drug and one count of possession of a controlled drug for supply – offending was a one-off event – sentencing Judge imposed fines and declined to record convictions – whether sentence was manifestly inadequate by not recording convictions.
Held: sentencing Judge’s decision to decline to record convictions was within sentencing discretion – appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(3), s 33L(1)(a), s 33L(1)(b); Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
R v Mangelsdorf (1995) 66 SASR 60; R v Fowler (2006) 243 LSJS 285; Everett v R (1994) 181 CLR 295, applied.

R v HEALEY
[2010] SASCFC 64
Court of Criminal Appeal: Doyle CJ, David and Peek JJ

DOYLE CJ: I agree with the orders proposed by David J and with his reasons.
DAVID J: This is an application by the Director of Public Prosecutions (“the applicant”) for permission to appeal against sentence. In particular, it is said that the sentencing Judge was wrong not to record convictions.
The respondent pleaded guilty in the District Court to three offences contrary to the Controlled Substances Act 1984 (SA) (“the Act”). The three counts were:
1Trafficking in a controlled drug (MDMA or ecstasy) contrary to s 32(3) of the Act. The maximum penalty for this offence was a fine of $50,000 or imprisonment for 10 years or both.
2Simple possession of a controlled drug (MDMA or ecstasy and methylamphetamine) contrary to s 33L(1)(a) of the Act. The maximum penalty for this offence was a fine of $20,000 or imprisonment for two years or both.
3Possession of a controlled drug (lysergic acid diethylamide or LSD) for supply contrary to s 33L(1)(b) of the Act. The maximum penalty for this offence was a fine of $50,000 or imprisonment for 10 years or both.
The sentencing Judge imposed the following penalties: a fine of $600 in respect of count 1, a fine of $300 in respect of count 2, and a fine of $1,000 in respect of count 3. The sentencing Judge, having imposed fines, declined to record convictions on any of the counts pursuant to s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”).
The applicant now seeks permission to appeal against that sentence on the basis that it is manifestly inadequate and, in particular, the argument focuses on the sentencing Judge’s failure to impose convictions.
The offending
On the evening of 24 August 2008 the respondent sold an ecstasy tablet to a friend in exchange for $50. Approximately half of the $50 was paid to her as her share in a taxi fare. The sale was therefore for $25. That sale was the subject of count 1. On being detected, she was found to be in possession of three tablets containing methylamphetamine. The possession of those tablets was the subject of count 2. She was also possession of a quantity of lysergic acid diethylamide (“LSD”) which she had for supply. The possession of that drug was the subject of count 3.
It was accepted, both before the sentencing Judge and this Court, that the respondent was a drug user not a drug dealer, and the offending was not part of a course of conduct. It was treated by the learned sentencing Judge as a one-off event. In relation to count 3, the respondent pleaded guilty on the basis that the LSD which she possessed may have been supplied to friends or acquaintances if asked to do so.
It is clear that the offending was at the lower end of the scale of criminality and there is no dispute that the total value of the drugs she had in her possession was between $150 and $225. No aspect of commerciality was alleged. She was not a street dealer who often carry small quantities for obvious reasons.
Personal circumstances of the respondent
At the time of the offending the respondent was 36 years of age and was the mother of two teenage children. She cares for both children. She is estranged from the father of the children and that relationship was characterised by violence towards her. She was sexually assaulted in 2008 and, as a result, commenced using drugs and was clearly suffering from a post-traumatic stress disorder. The sentencing Judge accepted that, as a result of her illness and looking after two children, she turned to drugs and her problems reached their peak when these offences occurred. She was, at that stage, in a relationship with another drug user but she held a job of considerable responsibility with a bank.
On the undisputed material presented to the sentencing Judge, the bank was aware of the respondent’s offending however it is unlikely that she would receive any further promotions whilst employed by them.
At the time of sentencing the respondent seemed to be coping with her problems and had stopped using drugs. She has no previous criminal history.
The Judge’s sentencing remarks
The sentencing Judge dealt with the matter pursuant to s 16 of the Sentencing Act which provides:
16—Imposition of penalty without conviction
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii)the fact that the offence was trifling; or
(iii)any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
His Honour said in sentencing:
Given your pleas of guilty, your lack of any criminal record whatsoever and the high regard with which you are held in your employment and in the community, in all the circumstances, I think I can deal with your offending by way of fines. That being the case, and being also of the opinion that you are unlikely to commit such an offence again, and having regard to your character and antecedents, I have, with some hesitation, decided that good reason exists for not recording convictions. The Full Court has made it clear that the recording of a conviction may have serious adverse impacts on a defendant, particularly in relation to employment and future prospects of employment, and that such considerations as this have been regarded as fundamental when considering whether to exercise the discretion pursuant to s.16 of the Sentencing Act.
The sentencing Judge then went on to impose fines on each count without recording convictions.
Appeal
The applicant now argues that not recording convictions fails to maintain adequate standards of punishment for offences which include the drugs ecstasy and LSD. The applicant concedes that the offending was at the lower end of the scale of criminality and that there was no commercial aspect. Nevertheless, the applicant argues that the nature of offending is such that the drug addiction and personal circumstances of the offender may assume less importance because of the deterrence aspect of sentencing, which should be uppermost in the Judge’s mind.[1]
[1] R v Mangelsdorf (1995) 66 SASR 60 at 66; R v Fowler (2006) 243 LSJS 285 at [24].
It is to be noted that the applicant properly and fairly concedes that if a fine was an appropriate sentence then, in the circumstances of this case, the sentencing Judge had the power to consider whether good reason existed for not recording convictions. The applicant argues, however, that in fact to do so was an error.
It is also to be noted that the applicant conceded that, as long as convictions were recorded, the suspension of any term of imprisonment would not be inappropriate.
Counsel for the respondent argued that, in the special circumstances of this case, not recording convictions was well within the Judge’s proper sentencing discretion. He pointed out the circumstances personal to the respondent, her present success at rehabilitation and her lack of any criminal history. He also emphasised the nature of the offending.
Conclusion
In my view, it is unnecessary in this case to deal with the well-settled authorities concerning prosecution appeals on sentence. The Court should grant permission to appeal against sentence to the prosecution only in rare and exceptional circumstances.[2] Permission to appeal can be granted to establish a principle of sentencing law or to establish or maintain adequate sentencing standards for a particular offence or kind of offence. It may also be granted to correct a sentence which is so inadequate that it amounts to an error in principle.
[2] Everett v R (1994) 181 CLR 295 at 299-300.
Declining to record convictions for offences involving trafficking in such drugs as LSD and ecstasy is rare. There should be no encouragement by this Court to condone the use and dissemination of such dangerous drugs, even to a limited extent, in the community. For that reason alone, I am of the view that it is appropriate that permission should be granted to the applicant to appeal against the penalty imposed by the sentencing Judge.
However, I consider that in this case the sentencing Judge’s decision not to record convictions was within his sentencing discretion. A combination of the low order of criminality and the respondent’s personal circumstances including her lack of criminal convictions, her illnesses, her addiction, and the fact that she is gainfully employed and on a path to rehabilitation are matters that allowed the sentencing Judge to properly exercise the discretion in the way he did.
I would dismiss the appeal.
PEEK J: I agree with the orders proposed by David J and with his reasons.

[2010] SASCFC 64

30 November 2010

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Sentencing