R v Jones No. Sccrm-98-65 Judgment No. S6728

[1998] SASC 6728

R  v  JONES

Court of Criminal Appeal:  Doyle CJ, Olsson and Bleby JJ

DOYLE CJ

This is an appeal against sentence.

The complaint is that the head sentence and non-parole period are manifestly excessive.  It is also submitted that the sentencing judge erred in failing to suspend the sentence.

The appellant was convicted upon his plea of guilty.  He was convicted on two counts of possessing cannabis for sale.  On the first count, the maximum penalty is a fine of $2,000 or imprisonment for two years or both.  On the second count, the maximum penalty is a fine of $50,000 or imprisonment for 10 years or both.  The appellant was also convicted on his plea of guilty on certain summary matters.  First, one count of damaging property.  The maximum penalty for that is a fine of $2,000 or two years’ imprisonment.  Secondly, one count of assaulting police.  The maximum penalty is a fine of $8,000 or two years’ imprisonment.  Thirdly, one count of resisting arrest.  The maximum penalty is a fine of $2,000 or six months’ imprisonment.

The sentencing judge imposed a single sentence for the two cannabis counts.  The sentence was imprisonment for two years 11 months.  The sentencing judge allowed for the fact that the appellant had been in custody for about four months.  Accordingly, the sentence was, in effect, three years three months.  But for the plea of guilty and another matter to which I will refer later, the head sentence would have been four years six months, according to the judge.  That sentence was made cumulative, as it had to be, on an unexpired balance of parole of three years six months three days.  The sentencing judge imposed a single sentence for the summary matters.  He made allowance for the plea of guilty.  The sentence was imprisonment for four months, cumulative upon the other sentences.  The total head sentence was six years nine months three days’ imprisonment.  The sentencing judge fixed a non-parole period of three years eight months.

The circumstances of the offences were as follows.  On 26 June 1995, the appellant offered to sell some cannabis to another person at a shopping centre.  The appellant was later detained by police.  He had eight plastic bags containing cannabis in his possession.  The amount of cannabis was 54 grams.  The police then searched the appellant’s home.  There, they found 2.235 kilograms of cannabis and items indicating that the cannabis was held for sale.  As to that larger quantity, the appellant was sentenced on the following basis.  The cannabis belonged to a friend who intended to sell it in another State.  The appellant had agreed to look after it.  The friend rewarded the appellant with a small quantity of cannabis, which is the cannabis that the appellant attempted to sell at the shopping centre.  It follows that the appellant’s only involvement in relation to the larger quantity was that he was minding the cannabis for a friend, although he knew that the friend intended to sell the cannabis.  The summary offences resulted from an argument between the appellant and a woman with whom he lived.  The appellant smashed a window.  The police were called.  The appellant was affected by alcohol and by cannabis.  He became aggressive and he charged at one of the police.  No contact was actually made.  When the police moved to arrest him, he struggled and resisted.

The appellant is about 35 years old.  He has a poor record.  His offending began in 1978 when he was aged 14 years.  On my count, he has committed about 40 offences.  In 1984 he was convicted for possessing Indian hemp.  In 1993 he was convicted for possessing cannabis and for possessing amphetamines.  In 1995 he was convicted for possessing equipment to administer cannabis.  Each of these attracted a small fine only.  He was convicted for hindering police in 1981 and for assaulting police in 1982.  He has six convictions for common assault.  The offences in question were committed while the appellant was on parole for another offence.

After being charged, the appellant fled from the State.  In September 1997, he voluntarily returned and surrendered himself.  His reason for doing so was a desire to clean the slate.  He had learned that his daughter, aged 10, had been abandoned by her mother.  She needed his care.  He also wanted to establish a relationship with his natural father, with whom he had recently made contact.  This action by the appellant is an encouraging sign, and is an indication of contrition and of a desire to behave better and to avoid further offending.  As well, the appellant was clearly entitled to credit for the plea of guilty.

As I have said, the sentence for the two cannabis offences before reduction for the plea of guilty and time spent in custody, and before credit for the appellant’s voluntary return to the State, to the extent that entitled him to credit, was four years six months.  In the particular circumstances of this case, I consider that that was too heavy.  One might reasonably be a little suspicious about the claim that the cannabis was only being minded for his friend, but that was the basis of the plea and was accepted as such.  On that basis, the appellant had no interest or involvement at all in the sale, other than the fact that he was minding the cannabis.  He was to get nothing other than the small amount of cannabis that he attempted to sell.  He was to play no part in the sale, except the minding of the cannabis.  It should not be thought from this that an appellant who stores or warehouses drugs for another can expect light treatment; far from it.  But in my opinion, those special circumstances did warrant some reduction.  I consider that all of those matters in combination should have led the sentencing judge to impose a lesser sentence than he did.  I consider that the starting point should have been a sentence of three years nine months’ imprisonment.  A deduction of four months for the time in custody should be made, which would reduce the sentence to three years five months’ imprisonment.  On account of the voluntary return to the State and the plea of guilty, I would further reduce the sentence to one of two years five months’ imprisonment.  In my opinion, no criticism can be made of the sentence imposed for the summary offences.

So, on that basis, I would impose a single sentence in respect of the two cannabis offences of two years five months’ imprisonment.  That sentence is to be cumulative upon the unexpired balance of parole of three years six months three days.  The sentence of four months’ imprisonment on the summary offences should stand, and it should be cumulative upon the other sentences.  The combined head sentence, then, is six years three months three days, commencing from 31 March 1998.

In relation to that head sentence, I would fix a non-parole period of three years.  That is a relatively low non-parole period.  I consider that it is appropriate, despite the appellant’s poor record, in view of the prospects of the appellant rehabilitating himself.  There are indications that leniency in this respect will be of particular benefit to the appellant and to the community.

In my opinion, this was not an appropriate case for a suspended sentence.  I refer in particular to the seriousness of the offence of possessing cannabis for sale and to the appellant’s poor record.  Neither of those matters, of course, is decisive, but when I look at all the circumstances in combination, I am not persuaded that suspension is appropriate.  I accept that the appellant was not himself engaged in a substantial criminal enterprise, but he lent his assistance to one who was.  The indications of contrition and remorse and a desire to make a fresh start are reflected in the low non-parole period.  I do not consider it appropriate to go further than that.  Accordingly, in my opinion the appeal should be allowed and the sentence for the cannabis offences varied in the manner indicated and the other orders made as proposed by me.

OLSSON J:  I agree.

BLEBY J:  I agree.

DOYLE CJ:  Accordingly, the orders of the court are as follows: 

(1). appeal against sentence on the two convictions for possessing cannabis for sale allowed;

(2). set aside the sentence imposed by the District Court for those offences;

(3). for those offences, substitute a sentence of imprisonment for two years five months;

(4). order that that sentence be served cumulatively upon the unexpired balance of parole of three years six months three days, which period commences on 31 March 1998;

(5). dismiss the appeal against the sentence of four months’ imprisonment imposed by the District Court on the transferred complaint;

(6). order that that sentence be served cumulatively upon the sentences of two years five months’ imprisonment and three years six months three days’ imprisonment;

(7). in relation to the combined head sentence of six years three months three days’ imprisonment, fix a non-parole period of three years to commence from 31 March 1998.