R v Hoffman - [2017] SASCFC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOFFMAN
[2017] SASCFC 15
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
3 March 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING MDMA (ECSTASY)
Appeal against sentence. The appellant pleaded guilty to one count of supplying a controlled substance contrary to section 33I of the Controlled Substances Act 1984. He was sentenced in the District Court to imprisonment for seven months suspended upon entering into a bond to be of good behaviour for 18 months. Whether sentenced on an erroneous factual basis - whether a term of imprisonment should have been ordered - whether a conviction should have been recorded - whether the sentence was manifestly excessive.
Held per Nicholson J (Kourakis CJ and Parker J agreeing):
1. Appeal allowed.
2. The District Court sentence set aside.
3. The appellant resentenced to a term of imprisonment for three months with a conviction recorded but with the term suspended upon entering into a bond to be of good behaviour for 13 months containing the same conditions as those in the original bond ordered by the District Court Judge.
Controlled Substances Act 1984 s 33I, s 44; Criminal Law (Sentencing) Act 1988 s 10, s 10C, s 11, s 15, s 16, s 39; Criminal Law Consolidation Act 1935 s 353; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 reg 13, referred to.
House v The King (1936) 55 CLR 499; R v Urbanski [2010] SASCFC 57, (2010) 108 SASR 369; R v Crump [2010] SASC 51; R v Becker [2005] SASC 186, (2005) 91 SASR 498; R v Nozuhur [2013] SASCFC 81, considered.

R v HOFFMAN
[2017] SASCFC 15
Court of Criminal Appeal: Kourakis CJ, Nicholson and Parker JJ
KOURAKIS CJ.

I agree with Nicholson J.
NICHOLSON J.
Introduction
Matthew John Hoffman, after pleading guilty to one count of supplying a controlled drug contrary to section 33I of the Controlled Substances Act 1984, was sentenced in the District Court to a term of imprisonment for seven months which sentence was suspended upon his entering into a bond to be of good behaviour for 18 months. The maximum penalty for this offence is imprisonment for ten years, a fine of $50,000 or both. The Judge arrived at the seven month term after starting at imprisonment for 12 months and then applying a 40 per cent discount[1] on account of the appellant’s early plea of guilty. There was some debate during submissions as to the appropriate level of discount given the circumstances of the plea. However, there has been no challenge on appeal by the Director to the level of discount provided by the Judge.
[1] According to section 10C of the Criminal Law (Sentencing) Act 1988 an offender in appropriate circumstances may be entitled to a discount of “up to 40 per cent” but not more. A reduction from 12 months to seven months represents a discount of 41.66 per cent and, strictly, is outside the discretion available under section 10C. However, and given the manner by which I would propose to dispose of this appeal, nothing turns on this.
The appellant has raised four grounds of appeal to the effect that the Judge erred: in imposing a sentence of imprisonment; in recording a conviction; in sentencing the appellant on an incorrect factual basis; and by imposing a sentence that was manifestly excessive in all of the circumstances. A single Judge of this Court granted permission to appeal on the ground alleging an incorrect factual basis (ground 3) and referred all other grounds to this Court for the permission question to be considered at the same time as the hearing of an appeal.
For the reasons that follow I would allow the appeal on the basis of ground 3 and, as such, do not find it necessary to deal specifically with the other grounds of appeal. I would resentence the appellant. However, in doing so and like the Judge, I would impose a prison term albeit one less than that ordered by the Judge, I would order the recording of a conviction and I would suspend the prison term I would impose upon the appellant entering into a fresh bond to be of good behaviour with the same terms and conditions as are contained in the bond entered into in the District Court.
Circumstances of the offending
The circumstances of the offending as recorded in the sentencing remarks, were as follows. On 31 December 2014, the appellant was in the HQ nightclub and a member of the public made a complaint to a crowd controller that the appellant was dealing in drugs. The appellant was escorted away by security and seen to drop a container. The container contained four pink capsules. A further two pink and three white tablets were in a press-sealed bag found in the appellant’s pocket. The capsules weighed in total 1.68 grams and contained 0.09 grams of 3,4-Methylenedioxymethamphetamine (MDMA, commonly known as ecstasy). The tablets weighed in total 0.19 grams and also contained some MDMA.
The Judge in the sentencing remarks described the basis of the plea of guilty in the following terms.
You have now pleaded guilty on the basis that you obtained the tablets earlier in the night to distribute amongst two of your friends.
However, the factual basis of the plea put during submissions by the appellant’s counsel and not challenged by counsel for the Director was as follows.
The matter involves or relates to [the appellant] purchasing 11[2] ecstasy tablets primarily for himself – well, initially for himself, but he agrees that he supplied two to a friend at a nightclub. That’s what this case is about, that’s the extent of his criminality.
[2] The Judge recorded in the sentencing remarks a total of nine capsules and tablets whereas both counsel for the appellant and counsel for the DPP during submissions referred to 11 tablets being in the appellant’s possession which is consistent with the appellant’s admission during his recorded interview by the police. The gravamen of the offence is the supply of two tablets to another person at the nightclub and, as such, whether or not he was in possession of nine tablets or 11 tablets is of no practical moment.
Appeal ground 3 – incorrect factual basis
The language used by the Judge is at best ambiguous. However, the more straightforward and natural meaning of the language used is that at the time the appellant obtained all of the tablets earlier that night he had an intention to distribute, that is supply, all or at least some of them to others. If that was in fact the basis upon which the Judge sentenced it was a basis not supported by the evidence and a basis inconsistent with that put to the Judge by counsel for the appellant without challenge by counsel for the Director. The basis of the plea of guilty was that at the time the ecstasy was purchased it was purchased for personal use without any intention to supply the drug to any other person. The intention to supply arose at a later time, spontaneously it would appear, when asked to do so by a friend.
It may be that the Judge in fact sentenced on a proper basis notwithstanding the language used in the sentencing remarks. Nevertheless, on the face of the sentencing remarks, the sentencing Judge sentenced having regard to an erroneous factual position.[3] The basis upon which the Judge, apparently, sentenced was materially more serious than the correct basis.
[3] House v The King (1936) 55 CLR 499.
In other circumstances, perhaps those involving a larger quantity of drug and a larger amount supplied or trafficked, the precise moment when an intention to supply or to traffic arose may not have a material impact on the ultimate sentence imposed. Each case will of course need to be determined on its own facts in this respect. However, given the nature of the offending in this matter and the fact that it is towards the low end of the range of seriousness for this type of offending, I am not satisfied that the error of fact did not have a material impact on the ultimate sentence imposed. Appeal ground 3 has been made out. Further, in my view, a sentence different from and less severe than that imposed by the Judge is appropriate.[4] Accordingly, I would allow the appeal, set aside the District Court sentence and proceed to resentence the appellant.
[4] See section 353(4) of the Criminal Law Consolidation Act 1935.
The personal circumstances of the appellant
The appellant is now almost 26 and was 23 when he committed the offence. He has no prior convictions and would appear to be a person who is otherwise of good character. He has a good work history and has worked on a fulltime basis for a majority of his adult life. He has a supporting family. After leaving school, he managed to obtain work in the oil and gas industry at a very high salary. However, in early 2014 he suffered an injury to his ankle when working on an oil rig and as a consequence was unable to work. He commenced receiving income maintenance payments at a very high level from WorkCover. During the period he was on WorkCover with little to do and still with a substantial income he developed an addiction to ecstasy. Prior to being arrested he voluntarily sought medical help for this drug addiction. He continued to see a medical practitioner for drug counselling until May 2015 which was the date upon which WorkCover payments and medical support ceased. It was submitted to the sentencing Judge and not challenged by the Director that as at the date of sentence the appellant had successfully rehabilitated himself from his addiction. The Judge sentenced on this basis.
Resentencing
The appellant submits that the offending, given its level of objective seriousness, and the personal circumstances of the appellant are such as to render the imposition of a prison term and the recording of a conviction inappropriate. Rather, it is submitted that the appellant should have been sentenced by the Judge and should now be resentenced by requiring him to enter into a bond to be of good behaviour and without recording a conviction, pursuant to section 39 of the Criminal Law (Sentencing) Act 1988. Section 39 is in the following terms.
39—Discharge without sentence on defendant entering into bond
(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(ab)   to comply with the other conditions (if any) included in the bond; and
(b)     if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a)However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2)Where a defendant is discharged under this section—
(a)     no fresh prosecution may be commenced in respect of the offence; and
(b)     the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
Each of the alternative discretions available under section 39 is dependent on a finding by the court that there is good reason, inter alia, to proceed without imposing a penalty. In addition to section 39, sections 15 and 16 of the Criminal Law (Sentencing) Act also provide a discretion to refrain from recording a conviction.
Section 15 empowers a court in prescribed circumstances to discharge an offender without imposing a penalty and with or without recording a conviction. However, section 15 requires a finding that the offence was “so trifling that it is inappropriate to impose any penalty”. Such a finding could not be made in the present circumstances nor was it submitted on behalf of the appellant that it should be.
By way of contrast, section 16 empowers a court, in prescribed circumstances, to impose a penalty but without recording a conviction. However, in order to do so the court must first decide to impose a fine or a sentence of community service or both. In other words, the power to refrain from recording a conviction provided for in section 16 cannot be deployed in circumstances where the court has determined to impose a prison term, suspended or otherwise.
Notwithstanding that the appellant has submitted that a bond of the type envisaged under section 39 would be an appropriate sentence, it would be open to this Court to proceed pursuant to section 16 in the event that a fine or a sentence of community service or both was thought to be an appropriate penalty.
The first question to be considered is whether or not a sentence of imprisonment should be imposed for, if so, there would be no scope to proceed under section 39 nor would the power to proceed under section 15 or section 16 be enlivened. Accordingly, the question of whether or not a conviction should be recorded will turn in the first instance on whether or not a term of imprisonment is ordered.
Section 11 of the Criminal Law (Sentencing) Act provides that imprisonment is not to be imposed except in particular circumstances.
11—Imprisonment not to be imposed except in certain circumstances
(1)A sentence of imprisonment may only be imposed—
(a) if, in the opinion of the court—
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b) if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in section 10.
(2)This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence.
It is readily apparent that none of the circumstances set out in section 11(1)(a)(i), (ii) and (iii) apply in this case. The question before the court is whether, according to section 11(1)(a)(iv):
any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence.
Further, section 11(1)(b) also requires the court to have regard to the question of whether a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law as stated in section 10 of the Criminal Law (Sentencing) Act. In this respect, one such policy is that set out in section 10(2)(a) – the need to protect the safety of the community. Nevertheless, this is really only a restatement of an important common law consideration to be taken into account at all stages of a sentencing process.
The other statutory provision relevant to sentencing in this case is section 44(1) of the Controlled Substances Act 1984 which is in the following terms.
(1)In determining the penalty to be imposed on a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration—
(a)     subject to subsection (2), the nature of the substance or goods involved in the commission of the offence; and
(b)     the quantity of the substance or goods involved in the commission of the offence; and
(c)     the personal circumstances of the convicted person (being a natural person), including the circumstances relating to the person's use (if at all) of any controlled drug; and
(d)     in the case of an offence against Part 5 Division 2 or 3—
(i)the commercial or other motives of the convicted person in committing the offence; and
(ii)the financial gain that is likely to have accrued to the convicted person as a result of the commission of the offence (but this is not to be taken into consideration if that financial gain is the subject of an application under the Criminal Assets Confiscation Act 2005); and
(da)   in the case of an offence against section 33F, 33H or 33I—whether the offence occurred within a school zone or at or near any prescribed place; and
(e)     any other relevant factor.
Paragraphs (a) to (c) expressly state matters to which this Court is to have regard in any event. Paragraph (da) provides that in the present case (involving an offence against section 33I) a relevant consideration is whether the offence occurred “near any prescribed place”. The HQ nightclub is a prescribed place for this purpose.[5] This fact increases the objective seriousness of the offence and has a bearing on the weight to be given to the need for a sentence that promotes general deterrence.
[5]    Regulation 13 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA).
In the appellant’s submissions a number of factors have been identified as militating against the need to record a conviction. In my view, these factors are also relevant to the question of whether, in all of the circumstances, a sentence other than imprisonment would be inappropriate. The appellant identified the following such factors:
(i)The offence itself was at the lower end of seriousness.
(ii)The appellant is a young man.
(iii)The appellant had no prior convictions.
(iv)The experience of being taken into custody and interviewed by the police and being charged with trafficking[6] in a controlled drug acted as a significant lesson to him.
(v)The appellant had demonstrated contrition when first arrested and continued to do so by attempting to plead guilty and by his actual guilty plea when accepted by the Director.
(vi)The appellant had taken steps to deal with his drug addition – he had successfully rehabilitated himself. He sought drug counselling not to carry favour of the sentencing court but of a genuine desire to rid himself of a drug addiction.
(vii)A conviction (I would interpolate, also a term of imprisonment) has a real potential to handicap the appellant from gaining employment.
(viii)The appellant was unlikely to reoffend. Further he is likely to make a contribution to society and be a law abiding citizen.
I accept that these factors are important to the questions whether imprisonment should be imposed and whether or not a conviction ought be imposed. I accept that they have substantial weight. However, there are countervailing considerations including, in particular, the following.
[6] The appellant was originally charged with trafficking but, ultimately, a plea to supply was accepted by the Director in satisfaction of the Information.
First, whilst the circumstances of the offence puts it towards the lower end of seriousness for this type of offence, it is still a serious offence both as charged and as committed. It is at the lower end of seriousness because of the number of tablets involved. Nevertheless, the supply of a controlled drug to another person is the gravamen of the offence and the act of supply is itself a serious matter independently of how many tablets might be supplied. The offence itself is a serious one for the reasons that follow but also as indicated by the maximum penalty of ten years imprisonment.

Whilst mere supply does not have an element of commerciality about it such as to give rise to the more serious offence of trafficking it still involves a deliberate action of putting at risk the person receiving the supply.
The Court cannot ignore the well understood position that so called “party drugs”, whether ecstasy or something else, can cause serious harm and even death to a recipient. It is rarely, if at all, possible for the person who has acquired such a drug and who goes on to supply it to another to have a sufficient understanding of the composition and strength of the drug that has been acquired.[7] It is notorious, that the simple supply of an unknown drug in this way has caused on occasion death or serious injury to a consumer. It is for this reason that, even though in the present case the question of personal deterrence may not loom large as a sentencing consideration, the question of general deterrence does.
[7] The appellant indicated during his recorded interview with police that he didn’t really know what was in the tablets/capsules – “honestly you never know ... what’s in a pill”.
Further, the courts cannot ignore the fact that in recent times the use of and the supply amongst friends of so called “party drugs” has been on the increase. The community, particularly this component of the community, must understand that the sharing of such drugs is not to be considered in the same way as sharing alcohol by buying a round of drinks or supplying a bottle to the table. Alcohol has its own vices but a single drink, unlike a single tablet, does not in the ordinary course of events have the potential to cause serious harm or death. The community should realise that the courts must treat the supply of even small quantities of drugs such as ecstasy seriously with the imposition of condign, that is, an appropriate or fitting and deserved, punishment.
A second feature of the offending in this case of significance is that it occurred in a prescribed place, the HQ nightclub. This increases the need for a sentence that will encourage general deterrence. It is in environments such as this one where such drugs are passed around more readily. It is in such environments where, perhaps because of the amounts of alcohol consumed or the circumstances generally, those present might act more carelessly than otherwise and be prepared to take or be induced to take risks they otherwise might not take.
A third feature of the offending which has not been mentioned to this point is that, whilst the appellant has no prior convictions, he is not in practical terms a first time offender. The evidence before the Judge was to the effect that the appellant had supplied such drugs to others on earlier occasions and this was conceded by the appellant. The Judge in the sentencing remarks observed as follows.
I received some telephone records that show that you were speaking with other people in relation to supplying drugs. In the circumstances I am satisfied beyond reasonable doubt that your offending was not isolated offending. You also spoke in your record of interview about having supplied drugs on other occasions to other people. You went on to say that you never did it in exchange for money.
You are not to be sentenced by me for any other offending but what it does mean is that I cannot extend leniency to you that I could have if this was an isolated occasion.
The finding has not been challenged and as such, as the Judge indicated, there is no scope for leniency on the basis that this was a one-off or isolated occasion.
Ultimately, I accept the submission of counsel for the Director to the following effect.
Supplying a controlled drug is a serious offence. The potential dangers and adverse effects of the drug ecstasy are well known.[8] There is a clear legislative intention to punish severely those who supply drugs to others, whether or not there is any financial gain. The impacts of drugs on users and on the community generally remain the same whether the drug is sold or supplied.[9] An appropriate penalty had to reflect the seriousness of the offending, the maximum penalty and the need for personal and general deterrence.
[8] R v Urbanski [2010] SASCFC 57; (2010) 108 SASR 369 per Gray J at [98], see the summary in the appendix to the judgment of Kourakis J in R v Crump [2010] SASC 51 at [86] and [92]. See also R v Becker [2005] SASC 186; (2005) 91 SASR 498 at [64].
[9] R v Nozuhur [2013] SASCFC 81 per Gray J at [26].
Having weighed the various and many considerations favourable to the appellant against the seriousness of the offending and the need for general deterrence as explained above, I am satisfied that both a prison term and the recording of a conviction is appropriate in this case. However, the factors personal to the appellant indicate that a lenient approach to the starting point should be adopted. In my view, the Judge’s starting point of 12 months was too severe and likely to have been manifestly excessive although it is not necessary to form a concluded view in this respect.
I would start with a term of imprisonment for five months and after allowing the discount of 40 per cent for the plea of guilty reduce that term to three months. Like the Judge, I would suspend the term of imprisonment upon the appellant entering into a bond to be of good behaviour on the same terms and conditions as imposed by the Judge. However, the appellant has now been subject to the District Court bond for almost five months. As a consequence, the new bond should be for a period of 13 months rather than the original 18 months. Given that the District Court sentence is to be set aside, the original bond must also be set aside and a fresh bond entered into.
I add, that I am not, in any event, persuaded in the circumstances of this case by the argument that a conviction should not be recorded because of the potential prejudice to the appellant’s future employment prospects. It is not necessary to develop this issue other than to observe the following. It is apparent that even where a conviction is not recorded for an offender, the offender history report still will record the offence, that it was committed and the penalty imposed. Further, modern employment practices when investigating the background of a potential employee are such that a more expansive disclosure, over and above whether the applicant has any “convictions”, is often requested. As such, the typical submission that the recording of a conviction is likely to have negative consequences for employment prospects is likely, in many cases, to be given less weight than previously has been the case.
Conclusion
I would make the following orders:
(i)the appeal be allowed;
(ii)the District Court sentence be set aside;
(iii)the appellant be resentenced to a term of imprisonment for three months with a conviction recorded but with the term suspended upon entering into a bond to be of good behaviour for 13 months containing the same conditions as those in the original bond ordered by the District Court Judge.
PARKER J.
I agree with Nicholson J.