R v Howell

Case [2018] SASCFC 12

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HOWELL

[2018] SASCFC 12

Reasons for Decision of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Doyle)

1 March 2018

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

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

Appeal against sentence.  The appellant was sentenced in the District Court having pleaded guilty to one count of trafficking in a controlled drug.  The Judge imposed a sentence of a term of imprisonment of four years, one month and two weeks, from a starting point of six years imprisonment, with a non-parole period of two years and one month.

The appellant appealed on five grounds including that the sentence imposed was manifestly excessive.

On 19 December 2017, the Court allowed the appeal and set aside the District Court sentence.  The Court ordered that the appellant be resentenced to a term of imprisonment of two years and seven months, with a non-parole period of 15 months, and ordered that the sentence be suspended.

Held per Curiam:

1.  The sentence imposed was manifestly excessive.  The starting point of six years imprisonment was unreasonably too high given the limited basis upon which the appellant fell to be sentenced and the appellant's favourable personal circumstances.

Controlled Substances Act 1984 (SA) s 32, referred to.
R v Young (2016) 126 SASR 41, discussed.
R v Hunter [2017] SASCFC 55, considered.

R v HOWELL
[2018] SASCFC 12

Court of Criminal Appeal:   Kourakis CJ, Nicholson and Doyle JJ

THE COURT

Introduction

  1. On 11 September 2017, Alexander Howell (the appellant) was sentenced in the District Court to imprisonment for four years, one month and two weeks with a non-parole period of two years and one month for a single count of trafficking in a controlled drug.[1]  A Judge of this Court granted the appellant permission to appeal on five grounds on 30 October 2017.

    [1] Contrary to s 32(3) of the Controlled Substances Act 1984, the maximum penalty for which is a fine of $50,000 or imprisonment for 10 years, or both.

  2. On 18 December 2017, the Court heard the appeal against sentence. On 19 December 2017, the Court allowed the appeal and made orders in the following terms.

    1.   Appeal allowed.

    2.   The District Court sentence is set aside.

    3.   The appellant is resentenced to imprisonment for two years and seven months with a non-parole period of 15 months.

    4.   That sentence will be suspended upon the appellant entering into a bond in the amount of $500 to be of good behaviour for two years. The conditions of the bond are to include:

    a.   that the appellant is to be supervised by a community corrections officer for the two year period of the bond;

    b.   that the appellant is to undergo such…

Continue reading R v Howell

Sign in free to access the full text

Details
AGLC
R v Howell [2018] SASCFC 12
Case
[2018] SASCFC 12
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, who had pleaded guilty to trafficking in a controlled drug, specifically methylamphetamine. The appellant was observed by police to conceal a package containing 83.1 grams of methylamphetamine in a roadside bush before being arrested. The District Court Judge imposed a sentence of imprisonment, which the appellant argued was manifestly excessive and should have been suspended or served by way of home detention, also contending that the sentencing judge failed to adequately consider his mental health conditions and their impact on his drug addiction and rehabilitation. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The central legal issues before the Full Court were whether the sentence imposed by the District Court Judge was manifestly excessive, whether the learned judge erred in failing to suspend the sentence or order it to be served by way of home detention, and whether the judge adequately considered the appellant's mental health conditions in the context of his drug addiction and rehabilitation prospects. The court was required to determine if there was any error of principle or if the sentence imposed was unreasonable or plainly unjust, applying the principles for intervening in sentencing appeals as established in *R v Jongewaard* and *House v The King*.

The Full Court reasoned that while the quantity of methylamphetamine was substantial, the appellant's role appeared to be that of a courier, and the sentencing judge had allowed reductions for the guilty plea and time served. However, the court found that the initial starting point of six years imprisonment was too high, particularly in light of the appellant's personal circumstances, including his mental health issues which were identified as causative factors in his drug addiction and relevant to his rehabilitation. The court applied the sentencing guidance for street-level drug trafficking offences, noting that sentences in the range of four to seven years are appropriate for offenders motivated by profit, but that the specific circumstances, including the appellant's personal factors, warranted a different approach.

The Full Court allowed the appeal, set aside the District Court sentence, and resentenced the appellant to imprisonment for two years and seven months, with a non-parole period of 15 months. This sentence was suspended upon the appellant entering into a bond for two years, subject to conditions including supervision by a community corrections officer and mandatory participation in drug counselling, rehabilitation programs, and other programs directed at his identified psychological problems. The forfeitures ordered by the District Court Judge were to remain in place.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 18 December 2017, the Court heard the appeal against sentence. On 19 December 2017, the Court allowed the appeal and made orders in the following terms. 1. Appeal allowed.2. The District Court sentence is set aside.3. The appellant is resentenced to imprisonment for two years and seven months with a non-parole period of 15 months.4. That sentence will be suspended upon the appellant entering into a bond in the amount of $500 to be of good behaviour for two years. The conditions of the bond are to include:a. that the appellant is to be supervised by a community corrections officer for the two year period of the bond; b. that the appellant is to undergo such drug counselling and rehabilitation programs and such other counselling and rehabilitation programs directed at the psychological problems identified in the report of Peter Stroud dated 21 June 2017 as the community corrections officer requires.5. The forfeitures ordered by the District Court Judge remain in place.These are the Court’s reasons for making those orders.Background The appellant was initially charged with two counts: trafficking in a controlled drug, and trafficking in a commercial quantity of a controlled drug.[2] On 31 May 2017, the appellant entered a plea of guilty in the Magistrates Court to the offence of trafficking in a controlled drug and was committed for sentence in the District Court. The Director of Public Prosecutions did not proceed with the second count. [2] Contrary to s 32(2) of the Controlled Substances Act 1984, the maximum penalty for which is a fine of $200,000 or imprisonment for 25 years, or both. In sentencing the appellant, the Judge began with a starting point of six years imprisonment. His Honour allowed reductions for the appellant’s plea and on account of time served in custody and on home detention bail. The Judge declined to suspend the period of imprisonment or to order that it be served by way of a home detention order. The sentence was backdated to commence 21 July 2017 when the appellant was remanded in custody. The appellant relies on the following grounds of appeal:[3]1. The sentence was manifestly excessive.2. That the sentence should have been suspended.3. The applicant should have been released on a home detention sentence.4. The learned Judge failed to consider separately whether to impose a home detention sentence having regard to any one or a combination of the following [thereafter particularised] factors.5. The learned Sentencing Judge erred in failing to have regard to the applicant’s mental health conditions in the context of the causative factors of his drug addiction and his rehabilitation. [3] The appellant’s Amended Notice of Appeal against Sentence contained an additional ground, with respect to which permission to appeal was refused by the Judge. This ground was not re-agitated in the hearing before this Court.Circumstances of the offending On 3 November 2016, the appellant was observed by police officers while walking along a street in Highbury. Upon noticing the police officers, the appellant was seen to stop beside a bush on the roadside for a few seconds before continuing to walk. Police searched the bush and found a package containing 83.1 grams of substance containing methylamphetamine. The appellant was stopped and arrested.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The respondent contended that the sentence imposed gives appropriate weight to the appellant’s role as a courier, particularly as a courier of a substantial quantity, and gives appropriate weight to the importance of general deterrence in sentencing those involved in drug trafficking. The respondent contended that the sentencing guidance outlined in Young[10] ought to be applied and that a starting point of six years is within the appropriate range for an offender who is motivated to a greater or lesser extent by profit. Counsel submitted that the quantity of methylamphetamine involved in the offending justified a sentence at the higher end of the range outlined in Young.[10] [2016] SASCFC 102; (2016) 126 SASR 41 at [66].Consideration The principles applicable in determining whether to interfere with a sentence on appeal were set out by Doyle CJ in R v Jongewaard.[11]The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen at [25]:As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".[citations omitted][11] [2009] SASC 346 at [40]. The factors to be considered in determining whether a sentence is manifestly excessive are the maximum sentence prescribed by law; the standards of sentencing customarily observed for offences of the kind in question; the seriousness of the offence committed when compared with other examples of the offence in question; and the personal circumstances of the offender.[12] Where an appeal court identifies an error of manifest excess, the Court will fix the sentence it determines ought to have been imposed.[13] [12] The Queen v Morse (1979) 23 SASR 98 at 99 (King CJ). [13] R v Kreutzer [2013] SASCFC 130; (2013) 118 SASR 211 at [10] (Kourakis CJ), R v Irvine [2016] SASCFC 104; (2016) 126 SASR 146 at [49] (Stanley J). In Young, this Court considered appropriate sentencing standards for trafficking offences committed by street-level dealers. Kourakis CJ observed the following.[14]The offending of a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction is at the lower end of the scale of objective seriousness. Other street dealers may not use at all or may be only occasional or social users who engage in street trading primarily to fund a comfortable, usually hedonistic, lifestyle. Other street-level dealers, motivated by profit alone, may sell drugs directly to the end user but not use drugs at all.Sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit.[14] [2016] SASCFC 102; (2016) 126 SASR 41 at [65]-[66] (Kourakis CJ, with whom Vanstone and Stanley JJ agreed).