R v Keut
[2021] SASCA 39
•21 May 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v KEUT
[2021] SASCA 39
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
21 May 2021
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING MDMA (ECSTASY)
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
Application by the South Australian Director of Public Prosecutions for permission to appeal against sentence.
The respondent pleaded guilty to trafficking a controlled drug (MDMA), contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The respondent accepted that the offending was not isolated and that there was a background of some limited trading to support his drug habit. The Crown case was strong, in that it included the discovery of various indicia of trafficking in addition to the evidence of text messages consistent with the respondent being involved in the sale of MDMA.
The sentencing judge fixed a starting point for the head sentence of two years. He reduced that by 25 per cent for the guilty plea and gave a further reduction of seven days to account for time spent in custody. This resulted in a head sentence of one year, five months and 24 days. He fixed a non-parole period of 10 months. The sentence was backdated to commence on 11 January 2021.
The primary issue on appeal was whether the head sentence and non-parole period imposed are manifestly inadequate.
Held (by the Court), granting permission to appeal and allowing the appeal:
1. The respondent’s circumstances were not such as to attract a sentence outside of the range articulated in R v Young. The sentence is manifestly inadequate.
2. The sentence is set aside.
3. From a starting point of four years, a head sentence of two years, 11 months and 23 days is imposed, after a 25 per cent discount for the guilty plea and reductions for time spent in custody. The sentence is to operate from 11 January 2021. A non-parole period of one year and six months is imposed.
Controlled Substances Act 1984 (SA) ss 32(3), 44; Sentencing Act 2017 (SA) s 40(3); Criminal Procedure Act 1921 (SA) s 110(3), referred to.
R v Young (2016) 126 SASR 41, applied.
Everett v The Queen (1994) 181 CLR 295; R v Buttigieg (2020) 352 FLR 170; R v Rombola [2020] SASCFC 76; R v Maroroa [2020] SASCFC 68; R v Nemer (2003) 87 SASR 1; R v Osenkowski (1982) 30 SASR 212, considered.
R v KEUT
[2021] SASCA 39
Court of Appeal – Criminal: Kelly P, Doyle and Bleby JJA
THE COURT: This is an application by the Director of Public Prosecutions for permission to appeal against the sentence imposed upon the respondent.
The primary issue raised is whether the starting point, ultimate head sentence and non-parole period imposed by the sentencing judge for an offence of trafficking a controlled drug (MDMA), contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (‘Controlled Substances Act’), are manifestly inadequate. The maximum penalty for this offence is $50,000 or imprisonment for 10 years, or both.
The sentencing judge fixed a starting point for the head sentence of two years. He reduced that by 25 per cent for the guilty plea and gave a further reduction of seven days to account for time spent in custody. This resulted in a head sentence of one year, five months and 24 days. He fixed a non-parole period of 10 months. The sentence was backdated to commence on 11 January 2021.
The associated question arising is whether the Court should grant the Director permission to appeal in any event.
Factual background
On 29 May 2020 at about 4:45 am, police observed and ran checks on a Toyota sedan travelling south on Old Belair Road, Belair. The checks revealed the respondent to be the registered owner of the vehicle and that he was disqualified from holding a driver’s licence. Police stopped the vehicle. Following their initial engagement with the respondent, they arrested him for driving disqualified and providing false details.
The police located a glass ice pipe in the left pocket of the respondent’s pants and a mobile phone in the other pocket. They found another ice pipe in the driver’s door and a backpack in the front passenger foot well. The respondent confirmed the backpack belonged to him. Inside the backpack they found:
·a press seal bag with 13.1 grams of rock material (containing 10.1 grams of pure MDMA);
·a small bud of suspected cannabis;
·three plastic sandwich bags with a total of 71.2 grams of dry female cannabis head in a pocket at the rear of the backpack;
·a set of digital scales;
·a mobile phone; and
·a glasses case containing an ice pipe
The police further found in the car a tub containing a number of phone parts, together with three intact mobile phones, a small plastic bag of suspected cannabis, a small bag with suspected remnants of methamphetamine, a small bottle containing a liquid substance suspected to be GHB and an international Chinese driver’s licence. The iPhone in the respondent’s pants pocket was analysed and found to contain text messages from January 2019 to May 2020 which were consistent with the respondent being involved in the sale of MDMA.
The respondent was arrested and remanded in custody on 29 May 2020. He remained in custody until 5 June 2020, when he was released on home detention bail. He returned to custody on 5 August 2020 after he was sentenced to imprisonment for eight days for failing to comply with a bail agreement, having returned a positive urinalysis for a variety of drugs. On 24 September 2020, he was sentenced to five months’ imprisonment for a number of driving and dishonesty offences. That sentence was backdated to 12 August 2020.
The respondent was born in 1979 in Cambodia. He came to Australia in 1982 at the age of three when he fled Cambodia with his mother and two older siblings. His sister had disappeared during the reign of the Khmer Rouge in the late 1970s and his father had died in a plane crash. He attended high school until Year 10. From the age of 14, he was effectively responsible for caring for himself and in 1996 commenced work as a kitchen hand. In 1999, he became employed as a die caster, in which occupation he worked for 10 years. His counsel had submitted that once he was released from custody, there was employment available to him as a trade assistant or a steel fixer and that he was confident of obtaining employment on his release.
The respondent has an antecedent history dating back to 1995. This includes a considerable number of driving related offences, estreatment of bail, failing to comply with bail agreement, one count of cultivating up to a prescribed number of cannabis plants, possession of prescribed equipment, possession of a controlled drug (not cannabis) and possessing equipment to use with a controlled drug (not cannabis).
The respondent accepted that the present offending was not isolated and that there was a background of some limited trading to support his drug habit. He conceded that he has had a problem with drugs for the previous four years or thereabouts, from about the time that he lost his employment. He submitted that since his time in custody he has managed to remain drug free and has been engaged in educational programs within the prison system.
The Crown case was strong, in that it included the discovery of various indicia of trafficking in addition to the evidence of the text messages consistent with the respondent being involved in the sale of MDMA.
The street value of the MDMA in the respondent’s possession was somewhere between $1,310 and $2,620.
The prosecution had submitted that a term of imprisonment was warranted. The respondent had been dealt with leniently in respect of his previous limited drug offending. Perhaps more important to this submission was the quantity of MDMA seized and the importance of personal deterrence, noting the respondent’s issues with substance abuse and his poor history of compliance with bail and reporting obligations.
The sentence
The respondent pleaded guilty within four weeks of his committal appearance. This entitled him to a discount of up to 25 per cent from his head sentence.[1]
[1] Sentencing Act 2017 (SA) s 40(3)(b)(ii); Criminal Procedure Act 1921 (SA) s 110(3).
The sentencing judge gave express consideration, in accordance with his obligation under s 44 of the Controlled Substances Act, to the nature and quantity of the substance involved in the commission of the offences, the respondent’s personal circumstances, his motive and the financial gain that would likely have accrued to him from the offending. He had regard to the approach to harm mandated by s 44. The judge concluded that the respondent’s offending had arisen out of his drug addiction and that he did not consider him to be ‘an occasional or social user who was engaged in street trading primarily to fund a comfortable or hedonistic lifestyle’.[2] He concluded that the respondent was engaged in low level trafficking.
[2] R v Young (2016) 126 SASR 41 at [65] (Kourakis CJ, Vanstone and Stanley JJ agreeing).
The judge made specific reference to the statements made by the Chief Justice in R v Young[3] (‘Young’) to the effect that sentences in the range of four to seven years are the appropriate starting point for offenders who are motivated to a greater or lesser degree by profit.[4] He noted that the Chief Justice had also said that the offending of a street dealer whose addiction had left him or her largely impoverished and who traded in very small amounts just to feed their addiction was at the lower end of the scale of objective seriousness.
[3] R v Young (2016) 126 SASR 41.
[4] R v Young (2016) 126 SASR 41 at [66] (Kourakis CJ, Vanstone and Stanley JJ agreeing).
The judge further noted the need to impose a substantial deterrent penalty in cases of this type and expressed that he had considered the respondent’s prospects of rehabilitation and his risk of recidivism. While recognising that the offending was at the lower end of the scale, he also expressed his regard to the requirement of general deterrence.
The appeal
There is an immediate and apparent difficulty with the starting point for the head sentence being two years. Notwithstanding that the judge traversed, correctly, the matters for consideration that applied in respect of an offence of this nature and of this offender, and had express regard to the range established in Young, he does not appear to have explained why he chose a starting point that was half of the bottom end of that range. With regard to Young, he said:[5]
Kourakis CJ said in R v Young (2016) 126 SASR 41 that sentences in the range of 4-7 years is the appropriate starting point for offenders who are motivated to a greater or lesser degree by profit. The Chief Justice also said that the offending of a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction is at the lower end of the scale of objective seriousness.
[5] Sentencing Remarks at 4.
It is possible that the judge regarded the second category so described in the above passage as not falling within the class of offenders to whom the four to seven-year range applies. However, it could not be said that this was clearly his approach.
There will be cases where a person who meets the description of ‘a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction’ can be appropriately sentenced to a period of imprisonment for a period of less than four years. However, this description does not necessarily remove a case from the range articulated in Young.
First, the fact that the proceeds of sale of low-level street dealings are predominantly used to satisfy a defendant’s addiction does not mean that the offender is not motivated by profit. What profit there is may be deployed in a vicious cycle of addiction, but it is still profit. It may fairly be said that such a dealer is motivated, to use the Chief Justice’s language, ‘to a lesser extent’ by profit. That will ordinarily have an ameliorating impact on the sentence to be imposed within the range.
Secondly, the Chief Justice explained the general nature of the window for imposing a sentence outside of the range:[6]
There will be relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders.
[6] R v Young (2016) 126 SASR 41 at [67] (Kourakis CJ, Vanstone and Stanley JJ agreeing).
Depending on all of the circumstances, then, an addicted street dealer may well find themselves being sentenced within the four to seven-year range, or there may be reason to sentence them to imprisonment for less than four years.
The respondent’s circumstances were not such as to attract a sentence outside of the range articulated in Young. His drug dealing was low level. It was accepted that his dealing was funding his addiction. He had been addicted, according to his counsel’s submissions, for some four years. He had been dealing, based on the objective evidence in his phone, for over a year. He had been given an opportunity to demonstrate his rehabilitation when he was placed on home detention bail. His breach of bail, subsequent to his arrest, by returning the positive urinalysis result, spoke against him having been working to overcome his addiction.
However, there was nothing to suggest that he had engaged in any further drug dealing during this time. Further, it appears that he has remained drug-free since he returned to prison.
While the respondent’s personal circumstances invite sympathy and some optimism for his rehabilitation, this was not a case that warranted departure from the range articulated in Young, and certainly not by such a dramatic reduction. The sentence is manifestly inadequate.
Permission to appeal
The principles governing when the prosecution will be given permission to appeal against sentence are well understood.[7] It is not necessary to set them out at length again here. This Court has considered and re-stated them recently.[8] Where the complaint is one of manifest inadequacy, the Court may grant permission to appeal to rectify the sentence as a matter of principle, but the Crown must show sufficiently strong reasons of public policy for intervening in the face of the strong public interest in not twice-vexing the respondent.[9]
[7] Everett v The Queen (1994) 181 CLR 295 at 299-300 (Brennan, Deane, Dawson and Gaudron JJ).
[8] See, e.g., R v Buttigieg (2020) 352 FLR 170 at [39] (Lovell J, Kourakis CJ and Nicholson J agreeing); R v Rombola [2020] SASCFC 76 at [28]-[35] (Bleby J, Blue and Stanley JJ agreeing).
[9] R v Maroroa [2020] SASCFC 68 at [97] (Nicholson J); R v Rombola [2020] SASCFC 76 at [33] (Bleby J, Blue and Stanley JJ agreeing).
In this case, the starting point arrived at by the judge was two years’ imprisonment. There is no contest that the offending was at the lower end of the scale of offending of this nature. However, for the reasons given above, there was nothing about the offending or the respondent’s personal circumstances that warranted the starting point being so far removed from the bottom end of the range of penalties articulated in Young.
Setting a starting point of half the bottom end of the established range has resulted in a sentence that is so low as to shock the public conscience. There are considerable, if not exact, parallels between this appeal and the matter of R v Rombola.[10] This is not an appropriate case for the Court to grant permission to appeal but exercise its residual discretion nevertheless to dismiss the appeal.[11] The discrepancy between the sentence imposed and the applicable range requires intervention to maintain the standard for this type of offending. Permission should be granted, the appeal allowed, and the respondent resentenced. It is not necessary to consider separately the adequacy of the non-parole period.
[10] R v Rombola [2020] SASCFC 76.
[11] R v Nemer (2003) 87 SASR 1 at [24] (Doyle CJ); R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ).
Resentencing
Having regard to the matters that were before the sentencing judge and, in particular, the judge’s conclusion that the offending arose out of the respondent’s addiction and comprised low-level street trafficking, there is no basis for departing from the judge’s conclusion that this offending was at the lower end of the scale of objective seriousness. Further, the respondent has reasonable prospects of rehabilitation, as is evidenced by his having remained drug-free since he returned to prison in August 2020.
We impose a head sentence of four years’ imprisonment. We reduce that by 25 per cent for the plea of guilty, to three years. We further reduce that by seven days for time spent in custody prior to sentencing, making a head sentence of two years, eleven months and 23 days. The sentence is backdated to commence on 11 January 2021.
There was no complaint about the other orders made by the sentencing judge or the penalties he imposed in respect of other offences at the same time. We would not interfere with those orders or penalties. Like the sentencing judge, we direct that the sentence imposed in respect of the offences the subject of file DCCRM 21-293 be served concurrently with the sentence we have imposed in respect of the offending the subject of DCCRM 20-1897.
The respondent’s personal history and prospects, as related above, which we infer motivated the sentencing judge to impose the sentence that he did, do give cause to think that he would benefit from a merciful non-parole period. We fix a non-parole period of one year and six months.
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