R v HENSEL

[2010] SASCFC 78

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HENSEL

[2010] SASCFC 78

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice David)

24 December 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence – appellant pleaded guilty in the Adelaide Magistrates Court to one count of trafficking in a controlled drug (ecstasy) – sentencing Judge imposed a sentence of imprisonment for two years and six months with a non-parole period of 12 months unsuspended – whether judge erred in finding that the appellant was holding himself out as a seller of various drugs – whether Judge erred in not suspending the sentence.

Held: Judge entitled to infer that appellant was holding himself out as a seller of drugs other than ecstasy and in any case the finding is of little significance – Judge did not err in failing to suspend the sentence – appeal dismissed.

R v HENSEL
[2010] SASCFC 78

Court of Criminal Appeal:       Duggan, Vanstone and David JJ

1. DUGGAN J:         I agree that the appeal against sentence should be dismissed for the reasons given by David J.

2. VANSTONE J:     I would dismiss the appeal for the reasons given by David J.

3. DAVID J:              The appellant pleaded guilty in the Adelaide Magistrates Court to one offence of trafficking in a controlled drug.  The drug involved was ecstasy (3-4 methylenedioxymethylamphetamine).  He was committed to the District Court for sentence and a District Court Judge (“the sentencing Judge”) imposed a sentence of imprisonment for two years and six months with a non‑parole period of 12 months.  The sentencing Judge declined to suspend that sentence.

4. The appellant appeals, complaining of the decision not to suspend the sentence.  He accepts that the head sentence and the non-parole period were appropriate.

5. The maximum penalty is a fine of $50,000 or imprisonment for 10 years, or both.

   The offending

6. On 18 July 2009 the appellant was standing next to a car in Light Square, Adelaide in the company of other males including the owner of the car, Mr Hey.  Police approached the appellant with a drug detection dog.  The drug detection dog gave a positive indication to the appellant and he was searched.  55 ecstasy tablets were located on the appellant in his groin area and one ecstasy tablet was located in a small plastic bag in his shirt pocket.  The 56 ecstasy tablets form the basis of the charge to which the appellant pleaded guilty. 

7. The basis of fact upon which the appellant was sentenced, about which there was no dispute, was that some of the tablets were intended for sale, some were to be given away to close friends, and some were for personal use. He admitted that he purchased the tablets for $16.50 each, and sold some of them for $30 each.

8. When the appellant was searched he was found in possession of a mobile telephone, the memory of which contained numerous texts which had been sent to the appellant in the two and a half weeks prior to his arrest.  A number of these texts contained references to drugs.  It was agreed at sentence that between 30 June 2009 and 18 July 2009 the appellant had on some days sold ecstasy tablets to persons within his extended circle of friends.  Also during that two and a half week period he had consumed a significant amount of ecstasy himself.  That behaviour was not the subject of any charge but was taken into account as background material to indicate that the offence to which the appellant pleaded guilty was not an isolated occasion.  A transcript of the text messages from people attempting to obtain ecstasy from the appellant during that period of time was tendered at sentencing submissions.

   Personal circumstances of the appellant

9. At the time of the offence the appellant had just turned 19 years of age.  He was aged 20 when sentenced.  He had no relevant prior offending.  From the time of his arrest he ceased using ecstasy or associating with people in the drug scene and he pleaded guilty at the earliest possible opportunity in the Magistrates Court.  It is to be noted that the sentencing Judge gave him significant credit for that very early plea of guilty by reducing his head sentence from a notional term of four years to two years and six months.

10. The appellant had completed high school and had an excellent work record.  The offending by the appellant occurred during a short period of time when he was a heavy user of ecstasy.

    Appeal

11. As amended there were two grounds of appeal, namely:

    1.The learned sentencing Judge erred in failing to suspend the sentence.

    2.The learned sentencing Judge erred in finding that the Appellant was holding himself out as a seller of various drugs.

    Ground 2

12. I will deal with the second ground first.

13. When describing the background behaviour of the appellant in his sentencing remarks, the sentencing Judge said:

    I am also satisfied that you were holding yourself out as a seller of various drugs. This is plain from all the circumstances, particularly including a schedule of text messages from your phone tendered to this court. You are not to be penalised for uncharged acts.   However, this provides a background to the offence of which you are charged that this was not an isolated incident but part of a trafficking business.

14. Counsel for the appellant argues that the Judge erred in finding that the appellant was holding himself out as a seller of various drugs.  He submits that, on looking at the transcript of the text messages tendered to the sentencing Judge, there is no basis for coming to that view.  He argues that the only inference to be drawn from those text messages was that he was holding himself out as a seller of ecstasy but not any other variety of drugs.  However, there is reference in the text messages that on 15 July 2009 a message asks “Hey bud, possible to get any Charlie by fri night?”.  A later message from the same person said “Ok cheers bud! save a 100 worth if you can mate”.  The Judge could infer, as he obviously did, that that was a reference to cocaine, as a result of which it could be further inferred that the appellant was holding himself out as a supplier of cocaine as well as ecstasy.  However, if that inference could not be drawn by the sentencing Judge in my view it makes no difference to the sentence itself.  Whether, by way of background and not the actual offending, the appellant was holding himself out as a supplier of ecstasy plus other drugs or ecstasy alone was of little or no significance in the context of this case.  It was merely a description of his background behaviour for two and a half weeks leading up to his arrest.

15. I would therefore dismiss that ground of appeal.

    Ground 1

16. Ground 1 is set out above.  Counsel for the appellant now argues that a combination of the very early plea of guilty, the appellant’s good record, his age at the time and his determination to rehabilitate himself as described by his counsel are all matters which, even if no mistake has been made in the sentencing process, nevertheless the decision not to suspend the sentence amounts to appealable error.

17. There is a great deal of substance in those submissions.  However, the sentencing Judge was concerned, quite rightly, with the trafficking of a serious drug such as ecstasy on the street.  Although it is agreed that it was not done purely for profit, nevertheless profit was made and that profit on the appellant’s submissions financed his habit.  The sentencing Judge was concerned that this offence was not isolated, that street level trafficking of ecstasy is serious and prevalent and, of course, that the drug is harmful and the effect of drug trafficking in the community is serious.

18. In my view his discretion not to suspend the sentence has not been exercised erroneously even though a different sentencing Judge may have taken a more lenient view.

19. I would dismiss this ground of appeal.

    Conclusion

20. I would dismiss the appeal.