R v KANGA

[2016] SASCFC 29

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KANGA

[2016] SASCFC 29

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice S Doyle)

21 March 2016

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

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

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES

Appeal against sentence. On 24 September 2015 the appellant pleaded guilty to two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The plea was entered to an Information dated 15 September 2015. The Information on count 1 charged the appellant with trafficking in MDMA, and on count 2 with trafficking in Alpha-PVP. The Information alleged that the offending occurred on 8 April 2015 at Tranmere. The appellant had previously been charged on an Information dated 17 June 2015 with one count of trafficking in a controlled drug, namely, ecstasy, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).

The sentencing Judge imposed a sentence of imprisonment of two years and two months after allowing a discount of 30 per cent for the guilty pleas and an additional 10 per cent for the appellant’s assistance to police.  He fixed a 12-month non-parole period.   

The appellant appealed on the grounds that the sentencing Judge erred in failing to suspend the sentence and that the sentencing Judge proceeded on the erroneous basis that the maximum discount to which the appellant was entitled pursuant to s 10C of the Criminal Law (Sentencing) Act 1988 (SA) was 30 per cent.

Held per the Court, allowing the appeal:

1. An appellate court 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 [6]).

2.  The real issue on resentencing is whether factors personal to the appellant should lead the court to suspend that sentence of imprisonment (at [12]).

3.  Appeal allowed (at [17]).

Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 18A, s 38(1), referred to.
R v McPhee [2014] SASCFC 107; R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; R v Levy (2015) 122 SASR 445; R v O'Toole [2013] SASCFC 18, considered.

R v KANGA
[2016] SASCFC 29

Court of Criminal Appeal:  Blue, Stanley and Doyle JJ

THE COURT:

Introduction

1. This is an appeal against sentence. On 24 September 2015 the appellant pleaded guilty to two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (“the CSA”). The plea was entered to an Information dated 15 September 2015. The Information by count 1 charged the appellant with trafficking in MDMA and by count 2 with trafficking in Alpha-PVP. The Information alleged that the offending occurred on 8 April 2015 at Tranmere. The Information was laid in substitution for an earlier Information dated 17 June 2015 charging one count of trafficking in a controlled drug, namely ecstasy, contrary to s 32(3) of the CSA.  The reason why the new Information was laid was that the 36 tablets found in the appellant’s possession were originally believed to be ecstasy but subsequent testing established that 19 tablets were ecstasy and 17 tablets were Alpha-PVP.  

2. The Judge imposed a sentence of imprisonment of two years and two months after allowing a discount of 30 per cent for the guilty pleas and an additional 10 per cent for the appellant’s assistance to police.  He fixed a 12 month non-parole period.   

3. There are two grounds of appeal. First, that the sentencing Judge erred in failing to suspend the sentence. Second, that the sentencing Judge proceeded on the erroneous basis that the maximum available discount pursuant to s 10C of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) was 30 per cent.

4. At the hearing of the appeal, we allowed the appeal, set aside the sentence and resentenced the appellant to imprisonment for two years and two months with a non-parole period of 12 months commencing on 10 December 2015.  We suspended the sentence upon the appellant entering into a bond to be of good behaviour for two years from 19 February 2016.

   Approach on appeal

5. The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[1] where Doyle CJ (with whom Layton and Kourakis JJ agreed) said:[2]

   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 [2005] HCA 25; (2005) 228 CLR 357 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 (1936) 55 CLR 499 at 504-505, 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".

   [1] [2009] SASC 346, (2009) 266 LSJS 283.

   [2] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.

6. An appellate court 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[3] does the appeal court have the power to quash the sentence passed below.  As was said in R v Kreutzer[4] by Kourakis CJ,[5]  if the error identified by the Full Court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed.  If the error identified by the Full Court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable.  On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed.  In such a case, it will dismiss the appeal.

   [3] (1936) 55 CLR 499 at 504-505.

   [4] [2013] SASCFC 130, (2013) 118 SASR 211.

   [5] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.

   Conduct of the appeal

7. When the appeal came on for hearing before us, Mr Illingworth, counsel for the Director of Public Prosecutions, conceded that the sentencing Judge had been misled into believing that the maximum available discount for the pleas of guilty was 30 per cent.  In fact, in relation to count 2 on the fresh Information filed on 15 September 2015, the maximum available discount was 40 per cent.  Mr Illingworth accepted that in proceeding as the Judge did, to sentence on the basis that the maximum available discount was only 30 per cent constituted a process error. 

8. As a result, we were satisfied that there was a miscarriage of justice, the discretion to resentence was enlivened and it was open to the Court to exercise the sentencing discretion afresh. Mr Illingworth did not oppose the suspension of any term of imprisonment imposed by the Court upon resentencing. Mr Stratton-Smith, counsel for the appellant, did not put any submission against this Court imposing the same sentence and non-parole period, contending that such a sentence should be suspended upon the appellant entering into a bond to be of good behaviour. In the circumstances, we were satisfied that it was appropriate to resentence on that basis, utilising s 18A of the Sentencing Act.

   Resentencing

9. The circumstances of the offending were that the appellant was apprehended by police with four other young males in a motor vehicle parked in the car park of a recreation ground in Tranmere.  The occupants were smoking cannabis.  Upon searching the motor vehicle and its occupants, police found a sealed plastic bag containing 36 tablets.  They were subsequently analysed, 17 tablets were found to contain Alpha-PVP and 19 tablets were found to contain MDMA.  The appellant was trafficking in these drugs to finance his own drug use.  There was evidence that on this day he had made arrangements to sell 15 of the tablets for $230.  Other text messages indicated that this trafficking was not an isolated event. 

10. In accordance with the approach taken by this Court in R v Levy,[6] a term of imprisonment should be imposed for this offending.  Kourakis CJ, with whom Stanley J agreed, said that street level dealing in methylamphetamine would usually attract a sentence of imprisonment in the range of four to seven years.  The offending here was at the lower end of the scale of seriousness for trafficking offences and the appellant was 18 years old with no prior convictions and good prospects of rehabilitation.  Like the sentencing Judge, we consider that a notional starting point of three years and six months is appropriate.  Utilising s 18A, we would impose a single sentence in respect of both counts. 

    [6] [2015] SASCFC 27, (2015) 122 SASR 445.

11. The maximum available discount in respect of count 1 is 30 per cent and in respect of count 2 is 40 per cent.  However, as was noted in R v McPhee,[7] it is relevant that both counts arose from the same incident, and that the appellant had an opportunity to consider his position from the time he was originally charged.  It is clear that, if the appellant had been charged on the original Information with trafficking in ecstasy and Alpha-PVP, and not just ecstasy, he would not have pleaded guilty within the requisite time to be eligible for a maximum 40 per cent discount.  In these circumstances, it is appropriate to allow a discount of 30 per cent to reflect the pleas of guilty.  We allow a discount of 10 per cent for the appellant’s cooperation with police.  We would therefore impose a single sentence of two years and two months imprisonment. 

    [7] [2014] SASCFC 107 at [53].

12. The real issue on resentencing is whether factors personal to the appellant should lead the Court to suspend that sentence of imprisonment. 

13. Section 38(1) of the Sentencing Act provides:

    (1)Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—

    (a)     to be of good behaviour; and

    (b)     to comply with the other conditions (if any) of the bond.

14. In R v O’Toole[8] Peek J, with whom Sulan J agreed, said:[9]

    This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences.  The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.  It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.  The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.

    [Citation omitted].

    [8] [2013] SASCFC 18.

    [9] [2013] SASCFC 18 at [50].

15. The appellant was born on 3 December 1996.  He was 18 years and four months of age at the time the offence was committed.  He was 19 years of age when sentenced.  He has no prior convictions and the sentencing Judge received testimonials to his good character.  His offending is out of character.  He has had a sound and stable upbringing.   He has stopped using drugs.  He has a supportive family.  He has moved back into the family home and obtained employment.  He is shortly to commence university studies in nursing and social work.  He is committed to sport and is a successful junior tennis player.  His prospects for rehabilitation are good. 

16. Frequently it will be the case that notwithstanding these factors the nature of the offending is such that the need for general deterrence outweighs the personal factors that might incline a court to suspend a term of imprisonment.  This is not such a case.  The appellant’s youth, his obvious remorse, demonstrated by his changed behaviour, his early plea and his cooperation with law enforcement authorities, when added to the positive prospects for his rehabilitation, lead us to decide that good reason exists in this case to suspend the term of imprisonment that this offending must attract.  The prospect of successful rehabilitation and deterrence from further offending would be better achieved by a suspended rather than a custodial term of imprisonment. 

    Conclusion

17. We allow the appeal.  We set aside the sentence imposed.  We resentence the appellant to a term of imprisonment for two years and two months with a non-parole period of 12 months, suspended upon the appellant entering into a bond to be of good behaviour for two years from 19 February 2016.  It is a condition of that bond that the appellant comply with all reasonable directions of his community corrections officer including as to drug testing.