R v Irvine

Case [2016] SASCFC 104

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v IRVINE

[2016] SASCFC 104

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Stanley)

16 September 2016

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS

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

Appeal against sentence. 

On 23 January 2013 the appellant entered a plea of guilty to a charge of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). He entered pleas of not guilty to charges of possessing a class D firearm without a licence, possessing a prescribed quantity of a controlled precursor, possessing an unregistered firearm, failing to secure a class D firearm and possessing a dangerous article. In relation to those charges he was tried by a jury in the District Court. He was found guilty of all charges except the charge of possessing a dangerous article. Subsequently there was a disputed facts hearing conducted before the trial Judge in relation to the charge of trafficking in a controlled drug.

On 30 July 2015 a District Court Judge imposed a sentence of five years imprisonment for the offence of trafficking in a controlled drug.  The appellant was also sentenced to three years imprisonment for the offence of possessing a firearm without a licence, one year of imprisonment for the offence of possessing a prescribed quantity of a controlled precursor, one year of imprisonment for the offence of possessing an unregistered firearm and he was convicted without further penalty for the offence of failing to secure a firearm, all of which were to be served concurrently with the sentence imposed for trafficking in a controlled drug.  The Judge fixed a non-parole period of two years and six months. 

The appellant appeals on three grounds.  First, on the ground that the sentence imposed for the offence of trafficking in a controlled drug is manifestly excessive.  Second, on the ground that the sentencing Judge erred in not apportioning any discount for the early plea.  Third, on the ground that the sentencing Judge erred in not suspending the sentence.  

Held (per Stanley J, Kelly J agreeing)(Blue J dissenting) dismissing the appeal:

1. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below (at [49]).

2.  Where the appellant has appealed the sentence for the trafficking offence only, it falls to the Court to decide the appeal by reference solely to the sentence of five years imprisonment imposed for that offence rather than the total head sentence imposed by…

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R v Irvine [2016] SASCFC 104
Case
[2016] SASCFC 104
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CaseChat Overview and Summary

This case concerned an appeal against sentence by the appellant, who had pleaded guilty to trafficking in a controlled drug and was found guilty by a jury of possessing a firearm without a licence, possessing a prescribed quantity of a controlled precursor, possessing an unregistered firearm, and failing to secure a firearm. The sentencing Judge conducted a disputed facts hearing to determine the factual basis for sentencing the trafficking charge, ultimately finding that the appellant possessed the methylamphetamine with the intention to sell it, rather than merely storing it for another. The appellant was sentenced to five years imprisonment for trafficking, with other sentences to be served concurrently, and a non-parole period of two years and six months.

The legal issues before the appellate court were whether the sentence imposed for trafficking was manifestly excessive, whether the sentencing Judge erred in not providing a discount for an early plea, and whether the Judge erred in not suspending the sentence. The appellant argued that his evidence of holding the drugs for an unidentified dealer, with permission to use some, was not adequately considered, and that the absence of typical trafficking evidence supported his claim. The sentencing Judge, however, found the appellant's evidence unconvincing, inferring an intention to sell based on the quantity of drugs, their value, the appellant's addiction and financial difficulties, the presence of digital scales, and red phosphorus.

The appellate court allowed the appeal, setting aside the sentence for the trafficking charge. While acknowledging the appellant's personal circumstances, including addiction and gambling, and his subsequent rehabilitation efforts, the court emphasised the gravity of the offending, particularly the commercial trafficking of methylamphetamine and the possession of a firearm. The court resentenced the appellant to three years and two months imprisonment for the trafficking offence, to commence after the sentences for the other offences, and fixed a non-parole period of two years and six months for all sentences, commencing from the date of the original sentencing. The court considered deterrence to be an important factor in sentencing for serious drug offences and found no good reason to suspend the sentence of imprisonment.

Orders

Orders of the court

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Background

Background to the litigation

Police seized these items and arrested the appellant. The appellant declined to answer any questions. Disputed facts hearing The Court conducted a disputed facts hearing to establish the factual basis for sentencing for the offence of trafficking in a controlled drug. The issue was whether the appellant possessed the drug intending to sell it or whether he was taking part in the process of sale by storing, guarding or concealing it on behalf of another person. The appellant gave evidence that he was holding the methylamphetamine on behalf of an unidentified dealer on the understanding that he could use some of it. He submitted that the absence of the usual evidence associated with commercial trafficking such as tick lists, banking records and telephone activity supported his assertion that he was not engaged in the sale of the drugs. The sentencing Judge found the appellant to be a “very unimpressive witness” and his evidence in this regard “entirely unconvincing”. He considered it was inherently unlikely that a drug dealer would entrust such a large amount of methylamphetamine to one of his customers, an addict in financial trouble, with an open invitation to use some of it. He found the evidence of the quantity of the drug in the appellant’s possession, the fact that the drugs were worth somewhere between $7,000 to $18,000, the appellant’s obvious motive in selling methylamphetamine given his gambling and drug addiction, the presence of digital scales which could be used as a tool of trade of drug dealing and the presence of red phosphorous, demonstrating his interest in illegal drugs, gave rise to a strong inference to the contrary. The sentencing Judge concluded that the appellant possessed the drug with the intention of selling it. The Judge’s sentencing remarks On the basis of those findings the Judge proceeded to sentence for all offences[13] noting that the appellant had committed two serious offences, involving commercial trafficking in drugs and possession of a firearm without a licence in conjunction with that offending. The sentencing Judge noted that the appellant had previous, although less serious, convictions involving drugs. He said:[14]As to the firearms offences, I reject the submission that it is still open to sentence you on the basis that the firearm belonged to somebody else and was in your shed as storage only. The jury rejected your evidence that you did not know that the firearm was there. There is no reason why I should accept your evidence to the jury that it belonged to someone else. That is a matter in mitigation which you have not sought to prove on the balance of probabilities. Your evidence in the trial, in my view, was just as unsatisfactory as your evidence before me.Semi-automatic rifles are dangerous weapons and it is notorious that they are prohibited. There is no lawful way to possess one. There is, indeed, no lawful reason to possess one.As to your personal circumstances, I accept that at the time of these offences you were addicted to methylamphetamine and also to gambling. I accept that you committed the methylamphetamine offence partly for commercial purposes, to finance your own habit and to pay your debts, and partly for your own use of the drug. I am unable to say how much of the drug would have been used for each of these purposes, but I must take into account that you were in possession of a large quantity of the drug.There were at the time, no doubt because of your drug-taking and gambling, stresses in your relationship, and you described to the psychologist that you felt that your life was out of control.You have now been out of trouble for three years. You have given up methylamphetamine by yourself, without support. You have been employed. You have had a psychological condition from a motor vehicle accident when you were 16 and you still suffer panic attacks as a result of that. I accept that this condition may have led you to use methylamphetamine, or at least was a factor in that.You are still with your longstanding partner and your son. Your employer, your work supervisors, your partner, your friends, your mother and your stepfather have all provided references for you, and they all speak highly of you.[13] The Judge seems to have overlooked sentencing the appellant for the offence of failing to secure ammunition separately from a firearm. [14] Sentencing remarks of his Honour Judge Chivell delivered 30 July 2015 p 2.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would fix a non-parole period of two years and six months. For the reasons given by Stanley J, deterrence is an important factor in sentencing for serious drug offences. Notwithstanding the appellant’s personal circumstances, the gravity of the offending is such that there is not good reason to suspend the sentence of imprisonment.Conclusion I would allow the appeal. I would set aside the sentence imposed by the Judge for the trafficking charge. I would resentence the appellant to imprisonment for three years and two months for that charge, to commence one year and ten months after the commencement of the sentences imposed in respect of the other charges. I would fix a non-parole period in respect of all of the sentences of two years and six months to commence on 30 July 2015, being the date of commencement of the other sentences.STANLEY J:Introduction This is an appeal against sentence. On 23 January 2013 the appellant entered a plea of guilty to a charge of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (“the CSA”). He entered pleas of not guilty to charges of possessing a class D firearm without a licence, possessing a prescribed quantity of a controlled precursor, possessing an unregistered firearm, failing to secure a class D firearm and possessing a dangerous article. In relation to those charges he was tried by a jury in the District Court. He was found guilty of all charges except the charge of possessing a dangerous article. An acquittal was entered in relation to that charge. Subsequently there was a disputed facts hearing conducted before the trial Judge in relation to the charge of trafficking in a controlled drug. On 30 July 2015 a District Court Judge imposed a sentence of five years imprisonment for the offence of trafficking in a controlled drug. The appellant was also sentenced to three years imprisonment for the offence of possessing a firearm without a licence, one year of imprisonment for the offence of possessing a prescribed quantity of a controlled precursor, one year of imprisonment for the offence of possessing an unregistered firearm and he was convicted without further penalty for the offence of failing to secure a firearm, all of which were to be served concurrently with the sentence imposed for trafficking in a controlled drug. The Judge imposed a non-parole period of two years and six months. The appellant appeals on three grounds. First, on the ground that the sentence imposed for the offence of trafficking in a controlled drug is manifestly excessive. Second, on the ground that the sentencing Judge erred in not apportioning any discount for the early plea. Third, on the ground that the sentencing Judge erred in not suspending the sentence. Circumstances of the offending On 13 June 2012 police attended at the appellant’s address at Largs North. They conducted a search of his house during which they located, inside the kitchen freezer, a small tub containing crystalline paste weighing 23.8 grams containing 10.3 grams of pure methylamphetamine. Sitting on top of the fridge police found scales upon which methylamphetamine was detected. In a red esky bag police found 25 shotgun rounds, 17 shotgun shells and 614 bullets. Police also found a firearm, a small bag of cannabis seeds, a Centrelink letter addressed to the appellant, an ice pipe, a clear tub containing 585 grams of red phosphorus, a shotgun round, and a black zip-up bag containing a taser, 44 bullets and 16 shotgun rounds.

Ratio Decidendi

Legal Principle Established

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