R v Ivic
[2006] SASC 8
•19 January 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v IVIC
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Anderson)
19 January 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE - DISCRETION OF COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
Crown application for leave to appeal against sentence – respondent sentenced to imprisonment for two years six months suspended upon entry into good behaviour bond in respect of one count of possessing methylamphetamine for sale, one count of possessing cannabis for sale and one count of unlawful possession – leave to appeal sought on grounds that sentence imposed was manifestly inadequate; the exercise of discretion to suspend miscarried and the judge erred in reducing the head sentence by six months on account of the personal circumstances of the respondent.
Consideration of the nature of Crown appeals – consideration of whether irrelevant considerations were taken into account - Discussion of principles regarding discretion to suspend sentences pursuant to section 38 of the Criminal Law (Sentencing) Act 1988 (SA).
Held: Application for leave to appeal granted – appeal allowed - judge erred by taking into account irrelevant considerations and by reducing the head sentence on account of respondent’s personal circumstances – respondent sentenced to three years imprisonment - non-parole period of 18 months – sentence not suspended.
Controlled Substances Act 1984 (SA) s 32(1)(1)(e); Summary Offences Act 1953 (SA) s 41; Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(c), s 10(1)(n), s 18A and s 38; Criminal Law Consolidation Act 1935 (SA) s 353, referred to.
Police v John (1995) 79 A Crim R 338 ; R v Burtt (1987) 139 LSJS 235; R v Nguyen [2005] SASC 329; R v Taddeo (1993) 67 A Crim R 338 ; R v Manglesdorf (1995) 66 SASR 60 ; R v Tran (2000) 211 LSJS 479 ; R v Proom (2003) 85 SASR 120 ; R v Di Maria (1996) 67 SASR 466 ; Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; R v Errigo (2005) 92 SASR 562 ; R v Nemer (2003) 87 SASR 168; R v Famiglietti [2005] SASC 489 ; R v Penno (2004) 236 LSJS 457; R v Carpentieri (2001) 81 SASR 164; Bates v Police (1997) 70 SASR 66; Neill v Police [1999] SASC 270; R v Clarke [1996] 2 VR 520; Dinsdale v The Queen (2000) 202 CLR 321; R v Walker (1981) 27 SASR 315, considered.
R v IVIC
[2006] SASC 8Court of Criminal Appeal: Gray, Vanstone and Anderson JJ
GRAY J
Introduction
This is a Crown application for leave to appeal against sentence.
On 30 May 2005, the respondent, Dianna Maria Ivic, pleaded guilty to one count of possessing methylamphetamine for sale,[1] the maximum penalty for which is a fine of $200,000 or 25 years imprisonment or both; one count of possessing cannabis for sale,[2] which carries a maximum penalty of a $2,000 fine or two years imprisonment or both, and one count of unlawful possession,[3] the maximum penalty in respect of which is $10,000 or two years imprisonment.
[1] Controlled Substances Act 1984 (SA), section 32(1)(e).
[2] Controlled Substances Act 1984 (SA), section 32(1)(e).
[3] Summary Offences Act 1953 (SA), section 41.
On 11 August 2005, the respondent was sentenced by a judge of the District Court to the one sentence of imprisonment for two years and six months for all of the offending. The sentence was suspended upon the respondent’s entry into a bond to be of good behaviour for a period of three years.
The Crown applies for leave on the ground that the sentence imposed was manifestly inadequate; the exercise of the sentencing judge’s discretion to suspend the sentence miscarried and the judge erred in reducing the head sentence by six months on account of the personal circumstances of the respondent.
Circumstances of the offending
On 31 August 2004 at about 10.45am, police observed the respondent approaching, in her vehicle, two people standing adjacent to the intersection of Cross Road and Marion Road, South Plympton. As she drew alongside the couple, the man approached the driver’s side of the respondent’s vehicle. The respondent stopped her car. At this point, the police moved their car to intercept the respondent. The man walked away and the respondent drove off. The police followed and stopped the respondent a short distance away.
The respondent denied being in possession of any drugs and declined to answer any police questions other than to provide her personal details.
The police conducted a search of the car and located 61 deal bags containing a total of 70.73 grams of powder of which 11.58 grams was methylamphetamine. They also located 13 deal bags containing a total of 22.5 grams of cannabis, $581.10 cash, numerous empty deal bags, a notebook with names in it and a knife.
The respondent became involved in the drug trade when she became acquainted with a man who she was too afraid to name. In exchange for her becoming a street dealer, the man offered to help her out of financial problems that she was experiencing. The sentencing judge characterised the operation in which the respondent was involved as “low-level street dealing of methylamphetamine and cannabis”.
Personal antecedents
At the time of apprehension, the respondent was 39 years old. She has a 12-year-old son. The sentencing judge summarised the respondent’s personal antecedents:
Your life has been marked by difficulties. Your father fled Yugoslavia in the 50s for political reasons. Your parents married in Australia. Your parents separated when you were six months old. You have never known your father. You were brought up by your mother and her family. Your mother remarried when you were in your teens and you did not feel accepted by your stepfather. You were not close to the two more recent children your mother had by your stepfather. You left school after completing Year 12 and worked in the shop run by your mother and stepfather.
You had a long relationship with the father of your son. His name is Mr John Penko. You met him in 1986 and did not separate until 2003, despite his being physically and mentally abusive towards you. I am told you put up with this abuse to provide the male figure for your son which you yourself had missed as a child. You regret staying with him for so long and it seems he was a significant contributor to the desperate financial situation you were in before your offending. He was addicted to heroin and his need for money was impossibly disruptive in your life. He spent all the family income on drugs and ran up debts. When you eventually broke away from him, you yourself were left with debts of about $20,000.
Criminal antecedents
The sentencing judge recounted the respondent’s criminal history:
You have previous convictions, although none is drug-related and there are none since 1996. I am told that all but the first two were committed during the course of the relationship with, and to an extent influenced by, Mr John Penko. As mentioned earlier, you met him in 1986. Before that, on 16 January 1985, when you were 19, you committed two offences, one of larceny by a servant, for which you were fined in the Port Adelaide Magistrates Court, and false imprisonment, for which you were sentenced in the Supreme Court to a suspended 18 month prison sentence with a 9 month non-parole period.
In 1989 when you were 24, you received a 15 month suspended sentence in the Adelaide Magistrates Court for building break with intent to commit a felony. On 1 June 1992, you received a six month suspended sentence in the Adelaide Magistrates Court for receiving. On 30 March 1994, you committed four offences of attempting false pretences. No convictions were recorded on those counts and you were ordered to do 200 hours of community service. Your most recent offence was in 1996, some eight years before your current offending. On 22 November 1996, you were fined $600 in the Elizabeth Magistrates Court for assist offender.
While your record of offending disentitles you to the leniency of a first offender, and it must be said some of those offences were serious, they were different in nature from your present offending and the last was quite some time ago. Importantly, I accept that they were, for the most part, committed at a time when you were subject to abusive and manipulative treatment at the hands of your then partner Mr Penko.
The sentence
The sentencing judge proceeded pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to sentence the respondent to the one sentence in respect of all three offences. The judge identified as a starting point a head sentence of four years imprisonment, which he reduced to three years on account of the respondent’s guilty plea. He further reduced the head sentence to two years and six months imprisonment on account of other mitigating factors, which he described in the following terms:
Notwithstanding the seriousness of the offending, including its purely commercial nature, I think there are mitigating factors in the circumstances giving rise to you succumbing to this criminal activity. In the desperate financial circumstances you found yourself in after the breakdown of the relationship with Mr Penko, it must have been difficult to avoid making the wrong decision to take part in the selling of drugs as a way of getting out of your troubles. At the very least, the relationship you then entered made it more likely you would make the wrong decision. For those reasons, I further reduce the head sentence to two and a half years.
The sentencing judge then fixed a non-parole period of 18 months. The judge exercised his discretion to suspend the sentence upon the respondent’s entry into a bond in the sum of $1000 to be of good behaviour for three years.
The sentencing judge recognised the serious nature of the offending and acknowledged that this Court has previously said that general deterrence is to be a primary consideration when sentencing for drug-related offences. He also took into account the respondent’s criminal antecedents and acknowledged that her criminal history disentitled her to the leniency of a first offender.
The sentencing judge accepted the submissions put on behalf of the respondent that this offending, as well as much of the respondent’s previous offending, was largely motivated by difficult financial circumstances arising from the respondent’s relationship with her ex-partner, Mr Penko:
I also accept that, as a result of that relationship, you were in a very difficult financial position and vulnerable to pressure to offend to extricate yourself. I mentioned that there may have been some pressure on you to take the course of offending that you took. I was told that the unnamed man employing you to sell drugs had told you he would pay off your debts if you began to act as his agent. Thus it seems you were not being offered an opportunity gradually to reduce your debt as you earned money from drug dealing, but, rather, you were being offered freedom from your debts immediately upon starting to work for him. I am willing to accept that scenario and to accept that that may have made the proposal more difficult to resist given your financial difficulties.
The judge characterised the respondent’s role in the drug-trafficking enterprise as subordinate. However, he went on to acknowledge, “The courts have said that the role of subordinates is essential to the trade that Parliament so strongly disapproves”.
The Appeal
Prosecution submissions
Counsel for the prosecution submitted that the starting point of four years imprisonment identified by the sentencing judge failed to reflect the seriousness of the offences and therefore failed to maintain adequate sentencing standards. Counsel further submitted that suspension of the sentence was inappropriate in the circumstances and that the judge erred in giving too much weight to the respondent’s personal circumstances and in placing too little importance on the nature and seriousness of the offending. In particular it was suggested that the judge placed too much emphasis on the fact that the respondent had engaged in the drug trade to repay debts that she had incurred as a result of her association with her ex-partner. At the hearing of the appeal, counsel for the prosecution conceded that a reduction to the head sentence in the order of 25 percent on account of the respondent’s guilty plea was open to the sentencing Judge and that accordingly the prosecution did not take issue with this reduction.
Counsel submitted that the judge’s approach is at odds with authority where this Court has previously held that selling drugs to offset debts is not a mitigating factor.[4] Furthermore, counsel contended that the judge, in determining the appropriate sentence, ought to have had regard to the fact that the offending was part of a course of conduct.[5]
[4] Police v John (1995) 79 A Crim R 338 at 511-12; R v Burtt (1987) 139 LSJS 235; R v Nguyen [2005] SASC 329 at [24].
[5] Criminal Law (Sentencing) Act 1988 (SA), section 10(1)(c); R v Taddeo (1993) 67 A Crim R 338 at 339; R v Manglesdorf (1995) 66 SASR 60 at 69.
Counsel for the prosecution drew the Court’s attention to authorities in support of the proposition that in sentencing for drug offences involving commerciality, the question of deterrence is a paramount consideration. So important is deterrence, it was said, that often less weight will be given to the personal circumstances than might otherwise be the case. Counsel submitted that in such circumstances, there is less scope for leniency.[6] Counsel contended that a sentencing judge must take great care before exercising the discretion to suspend terms of imprisonment. It was said that the discretion could only be properly exercised in the rare case where the factors pointing towards suspension significantly outweigh the ordinary need for deterrence to predominate.
[6] R v Manglesdorf (1995) 66 SASR 60 at 66; R v Tran (2000) 211 LSJS 479 at [29]; R v Proom (2003) 85 SASR 120 at [43], [51]; R v Di Maria (1996) 67 SASR 466 at 476; R v Nguyen [2005] SASC 329 at [35]-[37].
In relation to the emphasis that the sentencing judge placed on the respondent’s son as a reason for suspending the sentence, counsel submitted that appropriate, alternative arrangements for his care are available and that there was no suggestion before the sentencing judge that the son would not have received adequate care or that any unusual or intolerable hardship would arise if these arrangements were implemented.
Respondent’s submissions
Counsel for the respondent submitted that, as the sentence imposed by the sentencing judge was within the range open to him and that the decision to suspend was a correct exercise of his discretion pursuant to section 38 of the Criminal Law (Sentencing) Act, leave to appeal should be refused.
Counsel for the respondent contended that the sentencing judge correctly took into account the numerous mitigating factors that arose in respect of the respondent, including that:
-The respondent is a single mother of a 12-year-old son who is achieving academically at school and who is about to make the transition to secondary school. The child’s father is an entirely unsuitable parent, having regard to the relationship that previously existed between him and the respondent and his addiction to heroin.
-The respondent has significant medical difficulties and is in receipt of a disability support pension.
-The respondent was entitled to the full benefit of her plea of guilty to each charge.
-There was no evidence of an actual trade in the drugs the subject of each charge.
-Although the respondent has a criminal history involving numerous dishonesty offences, the last offence occurred some 12 years prior to the subject offending. Those previous offences were, generally, committed during a period of the respondent’s life when she was subject to abusive and manipulative treatment at the hands of her ex-partner.
-There was no evidence before the sentencing judge to substantiate the value of the drugs in the respondent’s possession.
-The respondent committed the offences against a background of substantial debt that she had inherited following the break up of her relationship with her ex-partner. In desperate financial circumstances, the respondent succumbed to the temptation of this criminal activity at the behest of an unidentified male at a time when she was clearly extremely vulnerable.
-The respondent was contrite, remorseful, understood the seriousness of her offending and is therefore unlikely to reoffend.
Counsel contended that, in light of these factors, the sentence imposed and the decision to suspend were entirely appropriate.
Crown Appeals
The principles in relation to granting leave to appeal to the prosecution are well established. A prosecution appeal against sentence may only be justified in the rare and exceptional case. This is because it puts in jeopardy the liberty of an offender for a second time. In accordance with the authority laid down by the High Court in Everett v The Queen[7] and as applied by this Court in Police v Cadd,[8] an appellate court should only intervene in circumstances described in the following terms:[9]
The function of the Court of Criminal Appeal of a State is to supervise the exercise of sentencing powers by magistrates, by the District Court or its equivalent and by judges of the Supreme Court. A Court of Criminal Appeal of a State is not concerned only with errors of principle, but also with maintaining an appropriate degree of uniformity of sentencing and maintaining adequate sentences.
[7] Everett v The Queen (1994) 181 CLR 295.
[8] Police v Cadd (1997) 69 SASR 150.
[9] Police v Cadd (1997) 69 SASR 150 at 159.
When considering a Crown appeal against sentence it is necessary for the Crown to establish an identifiable error in the sentencing process. Where error is identified it may be necessary for the appellate court to re-sentence the defendant. Circumstances may arise in which an error in the sentencing process is established, however, the final sentence imposed remains appropriate. Such circumstances may arise, for example, where further material is provided to the appellate court during re-sentencing. In such a case, error of sentencing principle will be established, however, the appeal against sentence will necessarily be dismissed.
It is not sufficient for the prosecution to establish that an error has been made. Leave to appeal will be granted only if doing so would serve some wider purpose, such as giving the Court an opportunity to establish a relevant principle, or to establish or maintain adequate standards of sentencing. Alternatively, the Court will intervene if the sentence is so far below the appropriate range that the sentence reflects an error of principle, and is one that would “shock the public conscience” or would shake public confidence in the administration of justice were it to stand.[10]
[10] R v Errigo (2005) 92 SASR 562 at [17] (Doyle CJ with whom Bleby and Gray JJ agreed); R v Nemer (2003) 87 SASR 168.
Manifestly inadequate
As earlier observed, the sentencing judge placed particular emphasis on the fact that the underlying motivation for the respondent’s offending was the financial difficulties that she faced. The judge included these difficulties in his list of mitigating factors.
This Court recently considered the impact of indebtedness as a motivating factor for offending in Nguyen,[11] where the Court took the view that Nguyen’s involvement in the drug trade as a means of paying off debts was not a mitigating factor. In his reasons for judgment, Bleby J cited[12] the following passage of King CJ in Burtt:[13]
It seems to me, however, that the weight which can be given to this factor as extenuating the crimes or mitigating the punishment, must be very limited. The respondent’s story amounts to saying that he gambled with money which he did not have and that, being unable to pay the gambling debt, he was subjected to pressure. Many people are under pressures of various kinds arising out of their habits or associations, to commit crime. It seems to me that the courts must be extremely cautious about accepting the existence of such pressures as a factor in mitigation of penalty for crime, especially for serious crime. The criminal law exists for the protection of the community. One of its purposes is to apply pressures, called deterrents, to those tempted to commit crime which will act as a counter to whatever pressures may be tempting such persons in the direction of crime. Many people who mix in criminal circles or who engage in undesirable habits, find themselves under great pressure to commit crime. It important that the sanctions of the criminal law operate to deter such people.
Whilst the present circumstances can be distinguished from those in both Burtt and Nguyen given that the respondent’s indebtedness did not arise from her own gambling addiction but rather from her relationship with her ex-partner, the principle extracted from Burtt and adopted in Nguyen is nonetheless applicable to this case. By considering the respondent’s motivation for offending, namely her indebtedness, as a mitigating factor, the sentencing judge fell into error.
[11] R v Nguyen [2005] SASC 329.
[12] R v Nguyen [2005] SASC 329 at [25].
[13] R v Burtt (1987) 139 LSJS 235 at 236.
Having already reduced the head sentence that he considered appropriate from four years to three years imprisonment on account of the respondent’s guilty plea, the sentencing judge further reduced the sentence by six months on account of what the judge considered to be mitigating factors. This demonstrates an error in sentencing approach.
The mitigating factors identified by the sentencing judge are, in general terms, the circumstances that gave rise to the offending. The appropriate course to be followed by a sentencing judge is to take such factors into account when determining an appropriate starting point for the sentence. By further reducing the sentence specifically on account of these factors, the judge, in effect, considered them twice, first in fixing the appropriate starting point of four years and for a second time in reducing the sentence by a further six months. The judge erred in so doing.
Discretion to suspend
Pursuant to section 38 of the Criminal Law (Sentencing) Act, the judge had power to suspend the sentence, if he thought that good reason existed for doing so.[14] The statutory provision confers on the court a power that can be exercised in a wide range of circumstances.
[14] R v Famiglietti [2005] SASC 489 at [29]-[39].
In his sentencing remarks, the judge outlined the factors that he considered to amount to good reason to suspend the sentence:
There remains the question of whether the sentence should be suspended. To suspend in circumstances of this sort of offending is the exceptional course. There must be good reason to take that exceptional course. Several factors together lead me to take it: the circumstances that led you to offend, the role you took, the extent to which your son relies on your care, your health and the prospects of your not reoffending.
The first factor identified by the judge as contributing to good reason to suspend the sentence was the circumstances that led the respondent to offend. Those circumstances were, in effect, the financial difficulties that the respondent was experiencing. As already observed, engaging in the drug trade as a means of alleviating indebtedness is not a mitigating factor.
The second factor identified by the judge as giving rise to good reason to suspend the sentence was the role that the respondent took in the drug-trading enterprise. The judge characterised her role as that of a low-level street dealer. The respondent was involved in hand-selling methylamphetamine and cannabis on the street. This is serious criminal conduct.
The third factor identified by the judge was the respondent’s dependent son. In the course of his remarks, the sentencing judge referred to section 10(1)(n) of the Criminal Law (Sentencing) Act, which requires a court when sentencing to have regard to the probable effects on dependants of any sentence under consideration.
The principles with respect to when a court may take into account the impact of a custodial sentence on the dependent children of a defendant are well established. In Penno,[15] this Court discussed the application of section 10(1)(n), where I observed:[16]
As some degree of hardship will invariably be suffered by dependants of a defendant upon imprisonment, hardship to those dependants will not generally be taken into account in a defendant’s favour except in extreme or extra-ordinary circumstances. In other words, the hardship must be of such a serious character as to call for a merciful approach to sentencing. This principle was confirmed by this court in R v Carpentieri,[17] Bates v Police[18] and Neill v Police [19].
[15] R v Penno (2004) 236 LSJS 457.
[16] R v Penno (2004) 236 LSJS 457 at [46] (Gray J with whom Nyland J agreed) (footnotes original).
[17] R v Carpentieri (2001) 81 SASR 164.
[18] Bates v Police (1997) 70 SASR 66.
[19] Neill v Police [1999] SASC 270.
When considering the probable effect that imprisonment will have on a defendant’s dependent child, the starting point is the acknowledgment that imprisonment of a child’s parent will invariably affect the child. The question for the court is therefore whether the particular circumstances of a case are such that the effect on the child of the imprisonment of their parent will be greater than might ordinarily be expected.
There is no evidence to suggest that the respondent’s son would suffer exceptionally if the respondent were to be imprisoned. On the contrary, during submissions the sentencing judge was informed that, at the time of sentencing, the son was living with his father and that if that arrangement became unsuitable, the boy could live with the respondent’s sister or stepfather. There was no indication that the boy’s schooling would be interrupted or adversely affected. Having thrived in what must have been a relatively tumultuous home environment during his childhood, the boy has displayed a capacity to cope well with adverse circumstances.
In these circumstances, the sentencing judge erred in placing too much weight on the impact that a custodial sentence would have on the respondent’s son.
Finally, the judge concluded that the respondent was unlikely to reoffend and that this, combined with the other factors outlined above, amounted to good reason to suspend the sentence. The sentencing judge erred in so concluding. There was no evidence before the sentencing judge to support this conclusion. Moreover, in light of the respondent’s criminal antecedents, there was no basis for reaching this conclusion.
Re-sentence
Having concluded that the sentencing judge erred in a number of respects, it is appropriate to reconsider the sentence imposed by the sentencing judge. Pursuant to section 353 of the Criminal Law Consolidation Act 1935 (SA), this Court has the power to set aside a sentence on appeal and to re-sentence the offender. Section 353(4) provides:
Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a) if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b) in any other case—dismiss the appeal.
But for the additional reduction of six months that the sentencing judge made on account of “mitigating factors”, the head sentence imposed by the sentencing judge was not inappropriate being at the lowest end of the range for offending of this nature identified in Manglesdorf. As this is a Crown appeal, it is appropriate for this Court to impose a substituted sentence towards the lower end of the range of available sentences. As was observed in R v Clarke:[20]
When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
A head sentence of three years should be imposed. I would fix a non-parole period of 18 months. I conclude that, in all of the circumstances, no good reason exists to suspend the sentence of imprisonment.
[20] R v Clarke [1996] 2 VR 520 at 522 as approved by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at [62]
Conclusion
I would grant leave to appeal. I would allow the appeal. I would set aside the sentence imposed by the sentencing judge. I would order that the respondent be sentenced to three years imprisonment. I would fix a non-parole period of 18 months. I would not suspend the sentence.
VANSTONE J: The Director of Public Prosecutions seeks leave to appeal against a sentence handed down in the District Court. The facts of the three offences are set out in the judgment of Gray J, which I have had the advantage of reading in draft.
At the time of sentencing, in August 2005, the respondent was 40 years of age. Her record of criminal offending shows a number of serious offences committed between 1985 and 1996. Three of those attracted sentences of imprisonment, which were suspended.
The offence of possessing methylamphetamine for sale was a serious one of its kind. As Gray J has observed, the respondent was found with about 70 grams of powder, containing over 11 grams of methylamphetamine, divided between 61 small bags. All the offences occurred against a background of the respondent working for another person as a street seller. Her counsel told the learned sentencing judge she assumed that role from another person, taking over that person’s customer base. Since s 18A Criminal Law (Sentencing) Act 1988 was employed to impose one sentence for all three offences, the sentence had to reflect the total criminal conduct involved. In my opinion, to find, as the judge did, that the offending amounted to “low level street dealing of methylamphetamine and cannabis” rather understated the position.
I agree with Gray J that in reducing the sentence on account of the fact that the respondent had sold drugs to extricate herself from her financial difficulties, the judge fell into error. Indeed, in my view there were no compelling circumstances of mitigation such as to justify departure from the range of sentences customarily applied for comparable crimes. The pleas of guilty rightly earned credit, but they were not entered until more than four months after the respondent’s first arraignment in the District Court and after some four directions hearings had taken place.
I consider that having regard to the matters I have identified, a final head sentence of about five years was called for.
Furthermore, I do not consider the sentence should have been suspended. The very fact that the respondent previously had the benefit of suspended sentences supports that view: R v Mangelsdorf; R v Perry; R v Richards (1995) 66 SASR 60, 74-75; R v Walker (1981) 27 SASR 315, 319. Additionally, the seriousness of the offending tended very much against suspension.
The question remains whether the proper purposes of prosecution appeals would be served by now recalling the sentence and requiring the respondent to serve an increased sentence. This court has, over a number of years, shown a reluctance to interfere with the suspension of a sentence by which a court has held out to an offender that good behaviour will mean that there will be no requirement to serve the prison term. The respondent is now five months into the term of her bond and hopefully the process of rehabilitation has well and truly commenced. Therefore, in this case, I do not think the court should interfere. I do not consider that the standards of sentencing applicable to crimes such as the respondent’s are in doubt. In Mangelsdorf, to which reference has already been made, this court undertook an extensive review of the appropriate sentencing standards for serious drug offences. Since that time many such cases have come to this court, either as appeals by prisoners, or as applications for leave to appeal by the Director. Although most recently those have generally related to heroin rather than methylamphetamine or amphetamine offences, as the Chief Justice observed in Mangelsdorf (at 68) such cases are relevant to consideration of sentences for what have been called “middle range drugs”.
In my view it is sufficient in terms of meeting the proper purposes of prosecution appeals to simply indicate that the sentence imposed in this case was indeed significantly less than was appropriate and that its suspension was not justified.
Accordingly, I would grant leave to appeal, but I would dismiss the appeal.
ANDERSON J I have read the draft reasons of Gray J and Vanstone J. I find myself in agreement with both of their Honours but on different aspects. Because of the difference in their conclusions, I will briefly state my reasons for increasing the sentence imposed, but at the same time, revoking the order made by the learned sentencing Judge for suspension of the term of imprisonment.
The facts are set out in the reasons of Gray J, and likewise his Honour summarises the arguments put to this court on appeal.
It is my view, for the reasons stated by Gray J, that the sentencing Judge erred in his acceptance of the respondent’s indebtedness as being a relevant mitigating factor. That error resulted in the reduction of the head sentence by six months and should be corrected.
It is my view that the starting point for the head sentence should be not less than five years. I say this because of the gravity of the offending. It was a serious case of street dealing by the respondent in significant quantities of both methylamphetamine and cannabis.
As to the question of suspension, I have had considerable difficulty in reaching a conclusion. I have weighed up the seriousness of the conduct against all the various mitigating factors and the issue of double jeopardy. I believe, like Gray J, that the learned Judge has overemphasised the effects of a sentence of imprisonment upon the respondent’s dependant son. I agree also that the trial Judge’s characterisation of the role the respondent played minimises her culpability. It was a much more serious role than that of a “low-level” street dealer because of the quantities found in her possession and the fact that she admitted that she was systematically selling the drugs.
What has troubled me most about revoking the order for suspension is the obvious harshness in requiring the respondent, at this point, to commence to serve a sentence of imprisonment. However, I have come to the conclusion that any unfairness to the respondent is outweighed in this case by the deterrent aspect required in sentencing for offences of this type.
I have already indicated my view as to what head sentence I consider would have been appropriate. Kirby J in R v Dinsdale (2000) 202 CLR 321 said at [62], after dealing generally with Crown appeals and the question of double jeopardy:
The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate “tinkering” with sentences. (footnote omitted).
Therefore, although I believe the sentence should have been higher, I would agree with Gray J and impose a reduced sentence of three years after reduction for the guilty plea because it is at the lower end of the range of available sentences.
I would grant leave to appeal. I would allow the appeal. I would set aside the sentence imposed by the sentencing Judge. I would order that the respondent should serve a term of imprisonment. For the reasons already given, I believe that the head sentence, after reduction for the guilty plea, should be three years. In the circumstances of the respondent having already completed five months into the term of her bond, I would impose a non-parole period of eighteen months.
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