R v HEY

[2011] SASCFC 99

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HEY

[2011] SASCFC 99

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Peek)

26 August 2011

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE

Appeal against sentence – appellant pleaded guilty to two counts of trafficking in a controlled drug – first offence involved 35 tablets containing methylamphetamine – appellant sentenced to three years imprisonment – whether sentence manifestly excessive – an acquaintance of the appellant was coincidentally arrested at the same time and place – acquaintance was separately sentenced to two years and six months imprisonment – whether due regard was given to parity principle – second offence involved 798 tablets containing methylamphetamine – total weight of tablets was 197.15g – second offence committed whilst appellant was on bail for first offence – sentencing Judge used a starting point of eight years and reduced to six years for plea of guilty – whether sentence manifestly excessive – sentences to be served cumulatively – whether overall sentence of nine years imprisonment with five year non-parole period was manifestly excessive – whether due regard was given to principle of totality.

Held: Appeal allowed – sentence on first offence was not manifestly excessive – acquaintance was not a co-offender – parity principle does not apply to this case – sentence on second offence was manifestly excessive – maximum sentence for offence is 10 years – starting point of eight years leaves little scope for offenders who traffic in greater quantities – appellant resentenced on second offence to five years imprisonment – appellant resentenced to a total period of imprisonment of eight years with non-parole period of four years.

Controlled Substances Act 1984 (SA) s 32; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA) Sch 1, referred to.

R v HEY
[2011] SASCFC 99

Court of Criminal Appeal: Doyle CJ, David and Peek JJ

1. DOYLE CJ:          I agree with the orders proposed by David J and with his reasons.  There is nothing that I wish to add.

2. DAVID J:              The appellant pleaded guilty in the Adelaide Magistrates Court to one offence of trafficking in a controlled drug pursuant to s 32(3) of the Controlled Substances Act 1984 (SA) (“the CSA”) (“the first offending”). The drug involved was methylamphetamine. He was committed to the District Court for sentence. Whilst on bail the appellant committed a further offence of trafficking in methylamphetamine under the same section of the CSA (“the second offending”). He pleaded guilty to that offence in the District Court and was sentenced for both offences by the same sentencing Judge.

3. The sentencing Judge imposed a head sentence of nine years imprisonment with a non-parole period of five years.  He arrived at that sentence by imposing a term of imprisonment of three years on the first offending, reduced from four years to give credit for the appellant’s early plea of guilty.  On the second offending, he set a head sentence of six years imprisonment reduced from eight years to allow for the appellant’s plea of guilty in the District Court.  He made that cumulative upon the sentence for the first offending. 

4. The appellant appeals against the severity of the sentence, arguing that it was manifestly excessive.

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

   The offending

6. The appellant was arrested by police on 18 July 2009, the day of the first offending.  He admitted to being in possession of 35 tablets containing a total of 0.06 grams of methylamphetamine.  The agreed factual basis for his plea of guilty, which he entered in the Adelaide Magistrates Court on 26 March 2010, was that the tablets were intended to be consumed for his personal use, to give to friends and some sold to recoup costs.  The arrest took place in a car park in Light Square, Adelaide when the appellant was searched by police as a result of a positive indication of drugs by a drug dog.

7. At the same time as the arrest on that occasion, an acquaintance of the appellant’s, Mr Hensel (“Hensel”), was also charged with trafficking in the drug methylenedioxymethylamphetamine (“MDMA”).  He was found to be in possession of 55 tablets containing 2.77 grams of MDMA.  He was eventually dealt with by the District Court and imprisoned for two years and six months with a non-parole period of 12 months.  It was not suggested that he was part of the same enterprise that the appellant was involved with, but coincidentally happened to be with the appellant at the time that he was arrested.

8. Whilst on bail for the first offending, the appellant was again arrested by the police on 3 November 2009 on Tapleys Hill Road, Hendon where he was found to be in possession of 798 tablets of methylamphetamine.  Those tablets weighed a total of 197.15 grams, containing eight grams of pure methylamphetamine.  The appellant pleaded guilty to the second offending in the District Court and was eventually sentenced for both offending by the same Judge on 25 May 2011. 

   Personal circumstances of the appellant

9. At the time of both offences the appellant was 19 years of age.  He had one previous relevant conviction, namely for possessing a prohibited drug, for which he was fined $500.  The appellant was born in New South Wales but moved to South Australia where he completed Year 12.  The appellant completed his apprenticeship as an electrician and indicated to the sentencing Judge that he had severed ties with friends involved in the drug industry and has a supportive partner.  Submissions were also put before the sentencing Judge that the second offending was motivated by the appellant’s necessity to repay a substantial debt to a drug dealer for previous drugs that had been supplied to the appellant.

   Appeal

10. As amended there were three grounds of appeal:

    a)That the overall sentence of nine years imprisonment with a five year non-parole period is manifestly excessive due to failure to consider totality, particularly in absence of use of S18A of the Criminal Law (Sentencing) Act 1988.

    b)That the sentence of three years imprisonment for [the first offending] is manifestly excessive due to the following:

    i.      Failure to give due regard to the principle of parity;

    ii.     Failure to give appropriate weight to assistant to SAPOL; and

    iii.    Failure to give appropriate weight to age and personal antecedents.

    c)That the sentence of six years imprisonment for [the second offending] is manifestly excessive due to the following:

    i.      Failure to give appropriate weight to assistance to SAPOL; and

    ii.     Failure to give appropriate weight to age and personal antecedents.

    Ground (b)

11. I will deal with this ground first.  The appellant argues that because Hensel received a slightly lesser sentence than the appellant, the sentencing process in relation to the first offending has miscarried.  In my view, the argument is misconceived.  Hensel was not a co-offender with the appellant and the parity principle does not apply to this case.  There was no suggestion that he was involved in the same enterprise as the appellant and it is agreed that it was just coincidental that they were arrested at the same place at the same time.  Comparisons between the sentence imposed on Hensel and the sentence imposed on the appellant are of no assistance.

12. The appellant argues faintly that some acknowledgement and benefit had to be given for attempted assistance to the police.  There is no dispute that no such assistance was given and that argument must fail.

13. In relation to the first offending, the sentencing Judge carefully weighed up the seriousness of the offending namely, that the appellant was a street dealer and the nature of the offending was continuous with the fact that he was 19 years of age and his personal circumstances.  In my view, the Judge has not erred in that process and the penalty for the first offending was not manifestly excessive.

    Ground (c)

14. Ground (c) is set out above.  I have already dealt with the argument relating to assistance and inappropriate weight being given to the age and personal antecedents of the appellant. 

15. However, there is much weight in the argument put on appeal that the sentencing Judge has erred in relation to the second offending by referring to a starting head sentence of eight years imprisonment before reducing it to six years to take into account the plea of guilty. Such a high starting point is out of proportion when considering the maximum sentence of 10 years, and the scheme of s 32 as a whole. I set out the relevant parts of s 32 of the CSA:

    32—Trafficking

    (1)A person who traffics in a large commercial quantity of a controlled drug is guilty of an offence.

    Maximum penalty: $500 000 or imprisonment for life, or both.

    (2)A person who traffics in a commercial quantity of a controlled drug is guilty of an offence.

    Maximum penalty: $200 000 or imprisonment for 25 years, or both.

    (2a)A person who, in a prescribed area, traffics in a controlled drug is guilty of an offence.

    Maximum penalty: $75 000 or imprisonment for 15 years, or both.

    (3)A person who traffics in a controlled drug is guilty of an offence.

    Maximum penalty: $50 000 or imprisonment for 10 years, or both.

16. Schedule 1, Part 2 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA) sets out the quantity of methylamphetamine which constitutes a commercial quantity for the purposes of s 32(2) of the CSA. That quantity is 500 grams mixed or 100 grams pure. As I have set out earlier, in relation to the second offending, the appellant was found in possession of 197.15 grams mixed, and eight grams of pure methylamphetamine. Therefore, the appellant possessed about 40 per cent of the maximum quantity of mixed methylamphetamine before he would have become liable to the more serious offence of trafficking in a commercial quantity of a controlled drug under s 32(2) of the CSA.

17. Although sentencing should not be a strictly arithmetic process, a starting point of eight years, when compared with a maximum sentence of 10 years, leaves very little scope for punishment of offenders who traffic in greater quantities than the appellant did in the present case, when those quantities are still insufficient to bring the offenders under s 32(2) of the CSA. That, combined with the appellant’s relative youth, indicates that the head sentence for the second offending is manifestly excessive. As a result, I would allow that ground of appeal.

18. This affects the first ground of appeal which deals with the overall sentence. 

    Resentencing

19. Bearing in mind the early pleas of guilty indicating contrition, the age and antecedents of the appellant and also taking into consideration, as the learned sentencing Judge did, that the second offending was committed whilst on bail for the first offending, I would impose a head sentence of five years imprisonment (reduced from seven years to allow for the appellant’s plea of guilty) for the second offending.  I would not alter the sentence for the first offending.  I would make the head sentences cumulative giving a total head sentence of eight years imprisonment.  I would set a non‑parole period of four years.

    Conclusion

20. I would dismiss the appeal against the sentence for the first offending.  I would allow the appeal against the sentence for the second offending.  It therefore follows that I set aside the total head sentence of nine years and the non-parole period of five years.  On resentencing for the second offending I would impose a term of five years imprisonment.  I make that cumulative on the sentence of three years for the first offending.  The total head sentence is therefore eight years.  I would set a non‑parole period of four years.

21. PEEK J:   I agree with the orders proposed by David J and with his reasons.