R v Howell - [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

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.
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.
Police subsequently searched his vehicle which was parked nearby and located a second package. This package was almost identical to the package located in the bush and contained 83.3 grams of substance containing methylamphetamine. Of the total of 166.4 grams of substance, 133.3 grams was pure methylamphetamine. The street value of the drug was estimated to be up to $100,000.
It was conceded by counsel for the Director and accepted by the Judge that the appellant’s offending could not be characterised as part of a course of conduct but was limited to acting as a courier on a once off basis. The Judge also accepted that the appellant had agreed to act as a courier on this occasion in order to discharge a debt of approximately $5,000 accrued after having purchased drugs for his own use.
The appellant’s personal circumstances
At the time of the offending, the appellant was 25 years of age. He is now 26. He has no relevant prior convictions.
The appellant had an unhappy upbringing. His father was strict and physically punished him. He suffered bullying and struggled to engage at school and left when he was in Year 11. Since leaving school, the appellant has had limited employment. He has primarily been a carer, both for his father and for his mother.
The appellant cared for his father, who suffered from cancer, dementia and diabetes, for approximately three years until his death. Following the death of his father, the appellant became the full time sole carer for his mother. He did so for approximately three years until he was remanded in custody. His mother suffers from significant health issues including, in particular, frontotemporal dementia. The appellant lived with his mother and made financial contributions to her mortgage from his carer’s allowance. His mother has been extremely dependent on his assistance. The appellant also supported his brother and his brother’s business after he was diagnosed with thyroid cancer.
The appellant used methylamphetamine recreationally for a number of years. This use increased after the death of his father. From around 2015, the appellant became increasingly reliant on methylamphetamine. The Judge accepted that the appellant had become addicted to methylamphetamine and, as a result, incurred the $5,000 debt in the period shortly preceding the offending.
Following his arrest in November 2016, the appellant managed to cease his drug use. He consulted with his general practitioner in December 2016 and was referred to a psychologist for treatment for anxiety, stress, depression and substance abuse, with mixed episodes of paranoia and reactivity. The appellant has regularly attended a psychologist, Peter Stroud, for counselling since 5 January 2017. Mr Stroud’s assessment was that the appellant was suffering from an adjustment disorder with mixed anxiety and depression, being both chronic and significant. He attributed this to a stress response syndrome, along with an inability to develop a suitable career path and positive lifestyle, caused by the appellant’s history of stress and past trauma since childhood.
Mr Stroud considers that the appellant has a positive prognosis but that this is dependent upon ongoing therapy for a period of at least 12 months, the management of the situation regarding his mother and the maintenance of ongoing supportive relationships.
Before being remanded in custody, the appellant attended every counselling session and engaged positively in the sessions. He continued to see his general practitioner on a regular basis. Satisfactory urine analysis tests conducted over a period of five months while the appellant was on home detention bail support a finding that he had abstained from drug use during this time.
The Judge had before him a number of testimonials as to the appellant’s commitment to rehabilitation, and in particular, to addressing his drug addiction, and as to his continued care for his mother while on home detention. The appellant continues to have the support of his partner and his family.
The Judge’s approach to sentence
The Judge summarised the circumstances of the offending. His Honour accepted that the appellant had become reliant on methylamphetamine in the period preceding the offending and that the offence was committed in order to discharge a personal drug debt.
The Judge acknowledged the difficult personal circumstances of the appellant, in particular his reliance on methylamphetamine, his psychological issues, his efforts at rehabilitation since his arrest and his support of his mother. His Honour found that the appellant had reasonable prospects of rehabilitation.
In imposing the sentence, the Judge emphasised the seriousness of the offending and the need for deterrence in relation to offending of this nature.
[T]he sentencing process is not all about you. Couriers are an important link in the chain of distribution and the sale of illicit drugs and the deterrence of others is ordinarily the paramount consideration in fixing sentence for crimes such as yours. Moreover, you were carrying a significant amount. It had the potential to cause significant social harm and by agreeing to act as a courier, you undertook the risk that you might wind up carrying a substantial amount.
The Judge began with a starting point of six years imprisonment. His Honour allowed a reduction of 30 per cent on account of the appellant’s plea of guilty, resulting in a head sentence of four years, two months and two weeks. A non-parole period of two years and two months was provisionally fixed. The Judge then reduced both the head sentence and the non-parole period by one month. This was intended to take into account one week that the appellant had spent in custody and eight months the appellant had spent on home detention bail whilst on remand and prior to being returned to custody following submissions on sentence on 21 July 2017.[4]
[4] The Judge backdated his sentence to 21 July 2017.
The Judge formed the view that there was not good reason to suspend the sentence and that it would not be appropriate to order that the sentence be served on home detention, due to the seriousness of the offending and the need for deterrence.
Appeal ground 1 – manifest excess
The appellant contended that the head sentence (and as a consequence the non-parole period) imposed by the Judge is manifestly excessive. It was submitted that a starting point of six years is manifestly excessive for an offence with a maximum penalty of 10 years imprisonment, given the circumstances of the offending and the personal circumstances of the appellant.
The appellant contended that the circumstances of the offending were such that it should be regarded as being at the lower end of the scale of seriousness, even after taking into account the quantity of methylamphetamine involved. Counsel submitted that the Judge erred in adopting a starting point towards the top of the range identified by this Court in R v Young[5] for offenders who, unlike the appellant, are not addicts and who are motivated by profit.
[5] [2016] SASCFC 102; (2016) 126 SASR 41.
The appellant further contended that the starting point of six years was too high given the appellant’s immediate and demonstrable efforts at rehabilitation following his arrest, particularly in the context of his addiction and other personal circumstances. The appellant relied on the remarks of Kourakis CJ in Young[6] regarding first offenders and rehabilitation, and the approach of this Court towards rehabilitation as a relevant consideration in R v Hunter,[7] R v Best[8] and R v Kong.[9] The appellant contended that his personal circumstances, in particular his role as sole carer for his mother and his psychological issues, are relevant to the question of rehabilitation and should have carried significant weight in the Judge’s determination of an appropriate sentence.
[6] [2016] SASCFC 102; (2016) 126 SASR 41.
[7] [2017] SASCFC 97.
[8] [2017] SASCFC 55.
[9] [2013] SASCFC 15; (2013) 115 SASR 425.
The respondent contended that the sentence imposed by the Judge is appropriate in the context of the significant quantity and value of methylamphetamine involved in the offending, the appellant’s financial motivation and the need for general deterrence.
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).
The accepted limited basis upon which the appellant fell to be sentenced was that the appellant acted as a courier on a single occasion, in order to discharge a debt accrued due to his methylamphetamine addiction. The appellant is not to be characterised as a street dealer in the sense addressed by the Full Court in Young although he shares a number of those features. Specifically the appellant is not to be sentenced against a background of dealing. On the other hand, the quantity involved was substantially greater than the quantities typically found in street dealing.[15] An important consideration is the role engaged in by the appellant in the drug distribution enterprise at hand. In Young, the Chief Justice also had this to say.[16]
The features relevant to assessing the seriousness of a defendant’s trafficking offending and the extent of proportionate punishment include the quantity, purity and varieties of the drug or drugs involved; the defendant’s position in the drug trafficking hierarchy; the defendant’s role in the trafficking (eg principal/sole trader, courier, handler, assistant etc); the level of reward the defendant may be expected to have received as a result of the trafficking; whether the trafficking was undertaken solely for profit or solely to support a drug addiction or a combination; whether the offending was an isolated transaction or part of a course of conduct and in the latter case the period over which the defendant undertook the trafficking. The relevance of these features follow from the legislature’s prescription of relevant factors in section 44 of the Act.
These features in practice tend to overlap or be complementary. For example, a person who is higher in the drug trafficking hierarchy might be expected to be trafficking in drugs of a higher purity than someone lower in the hierarchy; at the level of a retailer, defendants are usually sole traders, whereas at the level of a distributor defendants are often couriers, handlers, assistants etc; and the higher a person’s level in the drug trafficking hierarchy, the greater will be the quantities and rewards that may be expected.
[15] But bearing in mind that one rarely has knowledge when sentencing a street dealer of the full extent of their prior offending as to either volume of sales or the quantity sold over time.
[16] [2016] SASCFC 102; (2016) 126 SASR 41 at [216]-[217].

The appellant served as a courier for an isolated event. The trafficking can be characterised as undertaken for profit and to support a drug habit in combination. However, the reward was modest. The appellant plainly was at or was very much towards the low end of the trafficking hierarchy. As against these matters, the quantity of the drug and its level of purity substantially exacerbate the seriousness of the offending.
Whilst the discussion and sentencing guidance in Young is of great assistance it is not possible to apply the guidance as to sentencing street offenders directly to the particular circumstances of this case. Nevertheless, we are satisfied that the salient features of the present offending place it in company with the type of offending in Young said to warrant a starting point towards the low end of the range there indicated of four to seven years imprisonment.
In considering the question of manifest excess, the appellant’s favourable personal circumstances are also an important consideration. The appellant is a young man with no prior convictions relating to drugs. His role as sole carer for his mother, and the hardship that his mother would suffer as a result of his imprisonment, are significant. The appellant spent approximately eight months on home detention bail without incident while awaiting sentencing. During that time, he demonstrated a commitment to rehabilitation and to addressing his drug addiction with the help of his doctor, his psychologist and his family. His treating psychologist considers that he has a positive prognosis for rehabilitation with continued treatment. The need for personal deterrence is greatly reduced.
In Young, Kourakis CJ made the following remarks regarding the consideration to be given to rehabilitation when sentencing for drug offences.[17]
There will be relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders.
[17] [2016] SASCFC 102; (2016) 126 SASR 41 at [67] (Kourakis CJ, with whom Vanstone and Stanley JJ agreed).
This case raises the consideration referred to in R v Hunter.[18] In both the offender had made real progress towards rehabilitation as at the time of sentence which progress was liable to be interrupted and put at risk by a lengthy prison sentence. In Hunter,[19] Nicholson J (with whose reasons Peek and Stanley JJ agreed) made observations which it is unnecessary to repeat here concerning the importance in such cases of distinguishing (favourably to an offender) between proved actual rehabilitation as against prospective positive prospects for rehabilitation.
[18] [2017] SASCFC 97.
[19] [2017] SASCFC 97 at [61].
Taking into account the matters relevant to the question of manifest excess referred to above, a starting point of imprisonment for six years was unreasonably too high. Given the nature of the offending and the appellant’s personal circumstances, this starting point was outside the range available to the Judge. The head sentence is manifestly excessive. Given that the appeal was allowed on this ground, it is not necessary to consider the remaining grounds of appeal.
Resentencing
A starting point of four years and six months is appropriate. That is to be reduced to three years and two months for the plea of guilty (a discount of almost 30 per cent in accordance with section 10C of the Criminal Law (Sentencing) Act 1988).
Following his arrest, the appellant spent one week on remand. The appellant then served approximately eight months on home detention bail from 10 November 2016 until 21 July 2017 when he was taken into custody following submissions on sentence. As at the time of resentencing, the appellant had served further time in custody of approximately five months. A further reduction of seven months in total on account of time in custody and on home detention bail is appropriate.
For these reasons the Court imposed a new head sentence of two years and seven months with a non-parole period of 15 months to commence at the date of resentencing, 19 December 2017.
Upon consideration of the appellant’s personal circumstances including, in particular, his prior record, his actual progress towards rehabilitation and the fact that he had already spent more than five months in custody, the Court came to the view that there was good reason to suspend the sentence imposed by this Court on the conditions set out earlier in these reasons.