R v JONES

[2015] SASCFC 137

Supreme Court of South Australia

(Court of Criminal Appeal)

R v JONES

[2015] SASCFC 137

Judgment of The Court of Criminal Appeal

(The Honourable Acting Chief Justice Gray, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)

18 September 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - SENTENCING METHODS

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE - OTHER MATTERS

Appeal against sentence. The appellant was sentenced to a term of imprisonment of two years six months with a non-parole period of six months for one count of cultivating controlled plants for sale and one count of trafficking in cocaine. The sentence was not suspended.

The appellant appeals on the basis that the sentencing Judge erred with respect to the factual basis of the pleas, and this amounted to an error in the Judge’s sentencing discretion not to suspend. Appeal dismissed.

Held by David AJ (Gray ACJ and Kelly J agreeing) (dismissing the appeal):

1. There was no error in the trial Judge’s approach or assessment of the facts.

2. The head sentence is appropriate.

3. The exercise of discretion to suspend the sentence has not miscarried.

Controlled Substances Act 1984 (SA) s 4(1), s 33B(3), s 32(3), referred to.

R v JONES
[2015] SASCFC 137

Court of Criminal Appeal:  Gray ACJ, Kelly J and David AJ

1. GRAY ACJ:          I would dismiss the appeal.  I agree with the reasons of David AJ.

2. KELLY J:             I would dismiss the appeal.  I agree with the reasons of David AJ.

3. DAVID AJ:            This is an appeal against sentence.

4. The appellant pleaded guilty in the District Court to one count of cultivating controlled plants for sale and one count of trafficking in cocaine pursuant to section 33B(3) and section 32(3) of the Controlled Substances Act 1984 (SA). The maximum penalty in relation to each offence is a term of imprisonment for 10 years or a fine of $50,000 or both.

5. The sentencing Judge imposed a term of imprisonment of two years six months with a non-parole period of six months.  He declined to suspend the sentence.

6. In his Amended Grounds of Appeal the appellant contends that the sentencing Judge erred with respect to the factual basis of the pleas, in imposing a manifestly excessive sentence and in failing to suspend that sentence.  In argument before this Court the issue has been refined to the proposition that the factual basis of the pleas was incorrect and this amounted to an error in the Judge’s sentencing discretion not to suspend.  There now appears to be no argument about the severity of the head sentence.

   Background facts

7. Police attended at the appellant’s home address on 31 January 2013 and searched his premises.  He showed police to a shed in the rear yard where five cannabis plants and 10 seedlings were being grown in hydroponic conditions behind a false wall which the appellant admitted to setting up.

8. In the main bedroom, which the appellant shared with his wife, police found two balls of powder containing cocaine, sealed with duct tape.  They also found two devices for sniffing cocaine in a jewellery box on the appellant’s dressing table.  Those devices contained cocaine residue.  When the appellant was searched $500 was found in his shorts and $370 in his wallet.  A further $2,600 was located in a biscuit tin in the kitchen area.

9. Each of the balls of cocaine weighed approximately 27 grams or one ounce and contained a cocaine purity of approximately 40 per cent.  It was undisputed that at 45 per cent purity each ball would have amounted to about 27 or 28 street deals worth between $10,800 – $19,600.

10. It was also undisputed that nothing was located which indicated evidence of drug transactions other than that already described above.

    District Court Hearing

11. The appellant pleaded guilty to both charges, but maintained he did not have an intention to sell either drug for monetary profit. He said he was a heavy user of both drugs and would “barter” both drugs with friends and associates as necessary. Section 4(1) of the Controlled Substances Act 1984 (SA) provides the following definitions:

    “Traffic” in a controlled drug means:

    (a)     sell the drug; or

    (b)     have possession of the drug intending to sell it; or

    (c)     take part in the process of the drug

    “Sell” means sell, barter or exchange, offer or agree to sell, barter or exchange or expose for sale, barter or exchange.

12. Although the Crown did not accept the factual basis asserted by the appellant pleas were still entered on both counts because of the above definitions.  The sentencing Judge then proceeded to a Disputed Facts Hearing.

    Disputed Facts Hearing

13. The appellant gave evidence and called two witnesses of character.  In his evidence he said that he was 42 years of age and is an electrician running his own business.  In 2013 at the time of the offending his wife was also working.  He said he has been smoking cannabis since his early twenties and using cocaine since his early thirties.

14. In January 2012 the appellant’s wife received a payout of approximately $130,000 as a result of a motor vehicle accident.  Although she handled the banking he said he had access to that money because his wife had moved it into a joint account.

15. Because of the availability of the payout money the appellant says that his cocaine habit escalated and by 2013 he was using eight to 10 grams of cocaine per week which cost him about $10,000 per month.  He gave evidence that about “half” or $5,000 per month would come from his wife’s payout and the other $5,000 from cash which he received from his electricity business.  By 31 January 2013 there was only about $20,000 of his wife’s $130,000 payout remaining.  The appellant says that some of this money was used to fund his cocaine habit and some (although he could not say how much) was used to fund the couple’s wedding in Noosa in 2012 and costs associated with that wedding.

16. The appellant gave further evidence that despite this depletion in her payout his wife never directly asked him if he was taking out money from their joint account or whether he was spending money on cocaine.  He gave evidence that his wife “just knew” about his habit but would not pressure him about money and “turned a blind eye”.

17. The appellant said in evidence that he funded his cocaine habit through payout monies and cash from his business, and not through selling any of the cocaine to defray costs.  He said the same source of money was used in relation to any cannabis he purchased from time to time.  His pleas of guilty were on the basis that he would share the cocaine and the cannabis with friends on the understanding that at some stage in the future they would reciprocate in a form of bartering.

    The Judge’s Reasons

18. The sentencing Judge did not believe the appellant on the topic of the source of funds used to purchase drugs.  He did not accept that his wife made no inquiries about the diminution of her payout monies and he was not impressed with the appellant’s demeanour.  In his reasons he said that on the objective facts he drew the inference that:

    With regard to the cocaine, I must thus sentence you on the basis of the inferences which can be drawn from the objectively established facts and notwithstanding that I accept that you were applying some of your income towards your cocaine habit, I am satisfied beyond reasonable doubt from the amounts that you were spending that you must have been selling in order to finance your own habit and that you were intending to sell at least some of the cocaine which is the subject of the trafficking charge in order to do so.

    You will thus be sentenced on the basis that you intended to use some of the relevant cocaine yourself, that you intended to sell at least some of it in order to defray some of your costs and that you contemplated bartering some of it with your friends.

    The cannabis is another matter altogether. There is not much of it and it is not beyond the realms of possibility that you and your wife would have used some of it yourselves and that you would have bartered the balance if your friends needed some, and you will be sentenced on this basis in relation to the cannabis which was growing in the shed, including the seedlings.

19. The sentencing Judge also took into account the fact that the appellant had no previous convictions and had done good works in the community by joining the country fire service and coaching sport.  He also took into account that the appellant had undertaken counselling and had remained drug free since his arrest.  He sentenced the appellant for a period of two and a half years imprisonment as a head sentence for the cocaine offence reducing it from three years because of his plea of guilty.  He also sentenced him for a period of 18 months imprisonment for the cannabis offence reducing that from two years, also for his plea of guilty. He ordered that the sentences be served concurrently.  He set a non-parole period of six months.  He ruled that he could not find good reason to suspend that sentence.

    Appeal

20. Ms Powell QC for the appellant concedes, quite properly, that neither the head sentence nor the non-parole periods were manifestly excessive.  She argues that the sentencing Judge erred in refusing to accept the appellant’s evidence as to the basis of the pleas and therefore the discretion whether to suspend the sentence or not had miscarried.

21. Her main argument is that the issue of whether the appellant’s wife knew or did not know he was spending her money on cocaine was in fact a side issue.  She argues that the Judge’s findings on that topic were based upon mere speculation and involved dangerously general conclusions about how a married couple might share their income.  She argued that that is an erroneous basis to make findings on that topic which impinged upon the appellant’s credibility.  That being so, she argues that the Judge sentenced the appellant on an incorrect basis and consequently his discretion has miscarried.

22. In assessing the credibility of the appellant the trial Judge had to weigh the evidence that he gave against other objective facts.  In particular, the continual costs of the cocaine and the continual use of it plus the dwindling of his wife’s payout monies whilst his addiction was still ongoing.  In doing that and also in his assessment of the appellant’s evidence I can find no error in the way he has approached and assessed the matter.

23. I add further that there appears to be little difference between the appellant’s assertions of bartering and the Judge’s finding of limited sale of cocaine to defray costs.  The fact is that substantial amounts of cocaine were being moved around whether by barter or sale.

24. In my view the head sentence is appropriate, the non-parole period is merciful and the exercise of the discretion whether to suspend or not has not miscarried.

25. I would dismiss the appeal.