R v Kikidis

[2012] SASCFC 3

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KIKIDIS

[2012] SASCFC 3

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Kourakis)

11 January 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE

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

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

Appeal against sentence – appellant pleaded guilty to two counts of trafficking methylamphetamine contrary to s 32(3) Controlled Substances Act 1984 – second offence committed whilst on bail for first offence – application to withdraw guilty plea to first offence – application to withdraw plea subsequently withdrawn - appellant sentenced to 3 years 7 months imprisonment with a non-parole period of 15 months – no reduction in sentence for guilty plea – sentencing judge fixed lower than usual non-parole period to minimise appellant’s separation from her children.

Whether appellant should have received reduction in sentence for guilty plea to first offence – whether to admit fresh evidence of psychological reports – whether sentencing judge erred in failing to suspend sentence – whether indication given that sentence would be suspended – whether insufficient regard had to effect on appellant’s children.

Held: appeal dismissed – sentencing judge reasonably refused to reduce sentence in light of circumstances surrounding plea of guilt – fresh evidence would not have added anything to material before the sentencing judge – no sentencing indication given that sentence would be suspended – sentencing judge had regard to welfare of children in fixing a low non-parole period.

Criminal Law Consolidation Act 1935 (SA) 353(4), 359; Criminal Law Sentencing Act 1988 (SA) 18A; Controlled Substances Act 1984 (SA) 32(3), 44(2); Correctional Services Act 1982 (SA) 37A, referred to.
Cameron v The Queen (2009) 209 CLR 339; R v C 89 SASR 270; R v Dorning (1981) 27 SASR 481; R v Brain (1999) 74 SASR 92; Spargo v Greatorex (1992) 59 SASR 1; R v Cramp (2010) 106 SASR 304; R v Nicholls [2011] SASCFC 81; R v Taylor [1958] VR 285; R v Buckskin [2010] SASC 138; R v Wilton (1981) 28 SASR 362; R v Wirth (1976) 14 SASR 291; Hoare v The Queen (1989) 167 CLR 348; R v Symonds [1999] SASC 217; R v Copeland No 2 (2010) 108 SASR 398, considered.

R v KIKIDIS
[2012] SASCFC 3

Court or Criminal Appeal:      Doyle CJ, Vanstone and Kourakis JJ

1. DOYLE CJ:          I agree with the reasons given by Kourakis J.  For those reasons I would refuse permission to appeal on the grounds on which the single Judge refused permission to appeal, the application for permission being renewed before this Court.  For those same reasons I would dismiss the appeal against conviction on the grounds on which permission to appeal has been given.  There is nothing that I wish to add to the reasons of Kourakis J.

2. VANSTONE J:     I agree that the application for permission to appeal on several grounds should be refused and that the appeal should be dismissed.  I agree with the reasons of Kourakis J.

3. KOURAKIS J:       The appellant was sentenced in the District Court to a single sentence of imprisonment of 3 years and 7 months with a non-parole period of 15 months for two offences of trafficking in a controlled drug, namely methylamphetamine.  The maximum penalty for each of those offences is 10 years imprisonment and/or a fine of $50,000.

4. The appellant’s amended notice of appeal against her sentence comprises nine grounds.  A Judge of this Court granted permission to appeal on only two of those grounds, grounds six and nine.  The first of those grounds complains that the single Judge (the Judge) erred in failing to reduce the sentence on account of the appellant’s guilty plea to the first trafficking offence.  The other ground asks this Court to set aside the sentence having regard to further evidence of the psychological condition of the appellant and her children, which the appellant contends should be received on the appeal.  On the appeal the appellant pursued her application for permission to appeal on the other seven grounds, and yet another ground, which was formulated during the course of argument.  Permission to appeal on the last mentioned ground was refused during the hearing of the appeal.

5. I would dismiss the appeal on the first mentioned ground because the appellant’s guilty plea was entered on the first day of the trial and because the appellant then made a protracted attempt to withdraw it.  I would dismiss the   second mentioned, further evidence, ground because the psychological reports tendered to this Court do not reveal any material circumstances beyond those which were known to, or within the contemplation of the Judge.  I would also refuse permission to appeal on the remaining grounds.

6. My reasons follow.

   The Offences

7. On 6 April 2009 police searched the appellant’s home and found a crisp packet in a kitchen cupboard containing 42.86 grams of a crystalline paste of which 3.21 grams was methylamphetamine. Police also found another bag containing 4.41 grams of powder of which 0.01 grams was methylamphetamine with the remainder being a cutting agent.  The appellant was not at home at the time but returned whilst police were still there.  I will refer to that offence as the first offence. 

8. The appellant was released on bail after her arrest on the first offence.  On  2 December 2009, shortly after she had been committed for trial on the first offence, the police again searched her home.  They there found a man, H, in possession of a large quantity of drugs.  A separate smaller quantity of about 1.75 grams of powder, of which 1.5 grams was methylamphetamine, was found in the rumpus room of her home.  The appellant eventually pleaded guilty to trafficking that drug.  I will refer to that offence as the second offence.

   The Proceedings

9. The trial of the first offence was listed for 11 August 2010.  On that day the appellant changed her plea to guilty.  The allocutus was read and an antecedent report was received.  Subsequently, the appellant changed legal representation and an application was made to withdraw her guilty plea.  Directions hearings relating to the change of plea were held on 28 September 2010 and 5, 6, and 20 October 2010.  The application was heard, but not concluded, on 3 and 25 November 2010.  Evidence was adduced and submissions made on that application.  After the hearing on 25 November 2010 the appellant again changed her legal representation.  Further directions hearings were held on 1 and 9 December 2010, 25 January 2011, and 25 February 2011. 

10. On 28 February 2011 the appellant’s counsel indicated that her application to withdraw the guilty plea would itself be withdrawn.  Sentencing submissions were listed for 4 March 2011 but did not proceed on that date.  More directions hearings were held pending the trial on the charge of the second offence which had been listed in June 2011.  The trial was not reached on that day and was     re-listed for hearing in January 2012.  The Judge decided to proceed to sentence the appellant on the first offence without waiting any longer for the outcome of the trial of the second offence.

11. Submissions on the first offence were made on 20 June 2011.  The appellant’s counsel submitted that she had been a user of methylamphetamine and that “some of the drugs that she was in possession of would have been sold in order to fund her own habit.”  The appellant’s counsel also conceded that the first offence was not “a solitary incident.”  He admitted that the appellant had sold the drug “to support her own habit.”  The sentencing submissions were then adjourned.

12. On 4 July 2011 the appellant pleaded guilty to the second offence of trafficking in a controlled drug before the same Judge.  The appellant admitted possession of the 1.75 grams found in her house.  In the course of submissions, it was admitted that the appellant would have “cut” some of that quantity and sold it in order to support her own habit.  The prosecution accepted that the quantity was possessed for the combined purpose of use and sale.

    Antecedents

13. The appellant’s personal circumstances were described in the course of submissions as follows. 

14. The appellant was 34 years of age.  She was the fifth of thirteen children.  Her childhood was marred by the gambling addictions of both of her parents and the drunken violence of her father.  The appellant was left to raise the youngest members of her family until she left home at age 15.  She found work in a city retail store where she worked until she was 21.

15. The appellant was 21 when she met her husband and the father of her two eldest children.  She left him when she was 26 because his ongoing violence towards her.  Between the ages of 26 and 29 the appellant managed a retail clothing store at Elizabeth.  When the appellant fell pregnant to her then partner he left her and denied paternity.  The pregnancy was a difficult one and the appellant was unable to continue working after the second trimester.

16. The appellant’s elder children were aged 11 and 9 and her youngest child was aged 4 when sentencing submissions were made.  The Judge was told that as a result of the appellant’s arrest her elder two children had been placed in the care of their father.  The Judge was informed that there were no family members who could care for the appellant’s youngest child but that she would be cared for by a family friend.  The Judge specifically asked counsel if there was anything more he wished to say on the matter of the care of children but nothing more was put.

17. In 2007 the appellant was discharged on a bond without conviction for producing cannabis and dishonestly taking property.  The offences were committed in September 2005.  The cannabis was grown for her personal use.  At about the same time the appellant started to “dabble” in methylamphetamine.

    The Appeal

18. The Judge expressly refused to reduce the sentence which she considered appropriate for the first offence on account of the appellant’s very late plea of guilty.  The appellant complains that it was unreasonable to deny her any reduction, notwithstanding the tortuous history of the proceedings and the manifest absence of any remorse, because her plea nonetheless obviated the need for a trial. 

19. This ground is without substance.  The primary rationale for mitigating the penalty imposed upon a plea of guilty is that the plea manifests contrition and a willingness to facilitate the administration of justice.[1]  Insofar as the utilitarian justification is an independent reason to mitigate the penalty, it has no weight in this case.  The prosecution would have been a short one.  Indeed, if the matter had proceeded to trial it may have used less of the District Court’s resources than the appellant’s subsequently abandoned application to withdraw her guilty plea. 

    [1]    Cameron v The Queen (2009) 209 CLR 339

20. On this ground the appellant also complains that she was denied procedural fairness because the Judge did not intimate that she might be denied any credit at all for her guilty plea.  That submission, too, is misconceived.  The extent of the credit which the appellant deserved for pleading guilty was obviously in issue.  Procedural fairness does not require a judge to intimate, and invite submissions on, how he or she is contemplating deciding an issue.  In light of the history to which I have referred, it could not reasonably have been assumed that the sentence for the first offence would still be reduced, at least in some small way, from what was otherwise appropriate.

21. The second mentioned ground of appeal relies on the admission of further sentencing material pursuant to the power conferred on this Court by s 359 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The material comprises reports of psychological assessments of the appellant and her children. The report on the appellant sets out the personal history, which, by and large, had been adumbrated in sentencing submissions. The report also contains the results of psychometric testing. The psychologist’s diagnosis was that the appellant was dependent on amphetamines at the time of the offence and, at the time of the report, was suffering an adjustment disorder with depressed mood caused by her imprisonment and separation from her children. The psychologist identified the suicide of the appellant’s friend and the appellant’s history of abusive relationships as contributing causes to her addiction. It was common ground, before the Judge, that the appellant was heavily addicted to amphetamines. Even though the appellant’s counsel emphasised the part played by the suicide of the appellant’s friend, the other contributing factor identified by the psychologist is commonly encountered in sentencing for drug related, and other, offences. It would not have been overlooked by the Judge. The appellant’s present depressed condition, is the not unexpected, consequence of her imprisonment and separation from her children.

22. The reports on the children were prepared by another psychologist.  They revealed that the eldest two children, K and M, continue to reside with their father.  The reports revealed that the appellant’s youngest child, J, was cared for by one of the appellant’s long term female friends for about two months after her imprisonment, but is now cared for by a man, with whom the appellant had formed a relationship in the year before she was sentenced, and his mother.  The psychologist reported that J had reverted to enuresis and displayed other symptoms of significant psychological distress over the separation from her mother.

23. The psychologist’s reports explained the need for children who are distressed to be supported by “their primary attachment figure,” whom the appellant was for all three of her children.  The importance to the children of maternal care hardly needs expert confirmation and plainly exercised the mind of the Judge.  The reports revealed that the children ruminated over the loss of their mother and were often tearful and distressed.  They had not bonded with their father in a way which could substitute for their mother’s care.  The psychologist opined that their separation from the appellant would “undermine their development and result in impaired developmental outcomes” but he did not elaborate on those outcomes. 

24. The scope of the statutory power[2] to receive further evidence in criminal appeals was comprehensively considered by Doyle CJ in R v C.[3]Importantly, the power is ancillary to the appellate jurisdiction of the Full Court and an appeal against sentence brought pursuant to s 353(4) of the CLCA is by way of a rehearing in which an error in the exercise of the sentencing discretion must be established.[4]

    [2] Section 359 of the Criminal Law Consolidation Act 1935.

    [3] (2004) 89 SASR 270, 273 – 288 [4] – [34].

    [4]    R v C (2004) 89 SASR 270, 274 [11] per Doyle CJ.

25. It is clear enough that in exercising the discretion to admit further evidence the Full Court must have regard to two broad considerations: the public interest in the finality of litigation which demands that parties take all reasonable steps to put all material evidence before the sentencing court and the likelihood that further material would have had an important influence on the result of the case.[5]  In my view, on an appeal against sentence the further evidence must at the very least substantially alter the relative weight of the material which was before the sentencing judge.  Surprisingly, in my view, it appears to be an open question whether, if received, the further evidence is to be treated as relevant material, which the sentencing court, ex hypothesi, failed to have regard to, allowing the Full Court to resentence, or whether the question is only whether, when measured against the material before the sentencing court and the further evidence, the sentence is manifestly excessive. [6]

    [5]    R v Dorning (1981) 27 SASR 481, 485.

    [6]    R v C (2004) 89 SASR 270, 279 [32]; R v Brain (1999) 74 SASR 92, 105 – 107 [92] – [93].

26. I would not admit the further evidence tendered by the appellant relating to her own psychological state because it fails to satisfy both of the broad conditions for admission to which I have referred.  First, there is no reason why a psychological assessment could not have been put before the Judge.  Secondly, and more importantly, it does not add anything useful to the material placed before the Judge in the course of submissions.

27. In one sense, the psychological assessment of the children’s reaction to the appellant’s incarceration could not have been put before the Judge because the appellant had not yet been imprisoned.  However, that circumstance could not, of itself, justify the admission of the evidence because the routine receipt of such evidence would subvert the sentencing process.  Moreover, a report on the likely affect on the children’s mental states and development could have been provided for sentencing purposes.

28. More importantly, again, the condition of the children reflects the materialisation of the anticipated effect on their welfare about which the Judge was clearly concerned.

29. Evidence of the effectuation of contingencies which were within the contemplation of the sentencing court will not, generally, be admitted on appeal against sentence.  There is here an analogy with appeals against awards of damages.  Evidence is admitted on an appeal against the award of damages only when the further evidence falsifies an assumption, or radically changes the contemplated circumstances, on which the award was based.[7]

    [7]    Spargo v Greatorex (1992) 59 SASR 1, 16 – 20.

    Permission to Appeal

30. I would refuse permission to appeal on the remaining grounds of the amended notice of appeal because they are not reasonably arguable.  I summarise my reasons for so holding alongside an abbreviated reference to each of those grounds:

    Manifestly Excessive (Ground 1)

31. The maximum penalty of imprisonment for each offence is ten years.  The sentences imposed are at the lower end of the range.  The serious, insidious and detrimental health and social effects of methylamphetamine demand sentences which act as strong deterrents.[8] 

    [8]    R v Cramp (2010) 106 SASR 304; R v Nicholls [2011] SASCFC 81; s 44(2) of the Controlled Substances Act 1998.

    Failure to Suspend (Ground 2)

32. The many submissions in support of this ground may be grouped into two broad alleged errors.  The first is that insufficient weight was given to the appellant’s personal circumstances and too much weight was given to the need for general deterrence.  The relative weight given to sentencing factors is within discretion of the sentencing judge unless the product of the judge’s consideration is plainly unjust.[9]  An immediate custodial sentence was close to inevitable given the scale of the appellant’s offending and the commission of the second offence whilst she was on bail for the first offence.  The decision not to suspend was more than justified.

    [9]    R v Taylor [1958] VR 285, 289, reproduced and approved in R v C (2004) SASR 270, 274 [10].

33. The second of the alleged errors is that the Judge intimated in the course of the sentencing proceedings that she would suspend any sentence of imprisonment which she would impose.  This error was also put in support of the manifestly excessive ground but, logically, it could not have any bearing on that ground.  The short answer to the appellant’s contention is that the Judge gave no such intimation. 

1. In the course of submissions on the first offence, before it was known that the appellant would plead guilty to the second offence, the Judge expressed a tentative view that the question of suspension of any imprisonment imposed for the first offence was finely balanced.  Later, the Judge indicated that if the second offence was an instance of the course of conduct associated with the first offence which the appellant had admitted, the overall criminality for which the appellant would be sentenced would not be much changed if she were to plead guilty to the second offence.  After those comments were made, the appellant intimated a plea of guilty to the second offence, and arranged for the matter to be brought on before the Judge for that purpose.  However, before the appellant pleaded guilty, the Judge, who by then had perused the police statements filed with respect to the second offence, made it clear that on the face of those statements, the second offence did not appear to be part of the same course of conduct as the first offence.  Notwithstanding that warning the appellant proceeded to plead guilty to the second offence.

2. In my view, all of the matters raised by the Judge reasonably arose from the material before her and were properly raised for the purpose of identifying the pertinent sentencing issues and managing the informations brought against the appellant in the District Court.  They were not, on even the widest definition, sentencing intimations.  That it has been suggested that the Judge’s comments were sentencing indications serves to illustrate the hyper-sensitivity with which such matters must be broached.

   Insufficient Regard to Applicant’s Circumstances (Ground 3)

3. I repeat my comments with respect to Grounds 1 and 2.  In particular, I wish to emphasise that it is not a ground of error on which this Court can intervene that the sentencing judge gave a matter relatively more or less weight than the members of the Full Court would have accorded it.

   Insufficient Regard to the Effect on the Children (Ground 4)

4. It is plain that the Judge carefully weighed the effect of imprisonment on the children, both on the question of suspension and the length of the term; she expressly fixed a lower non-parole period than would have otherwise been the case out of her concern for their welfare.  It is a necessary and intended consequence of imprisonment that the confinement and separation it brings about will be difficult to bear.  The collateral suffering that imprisonment causes to child dependents is always a relevant matter in sentencing offenders, but only in exceptional cases will it justify a sentence which is so lenient that it falls outside what is otherwise a proper sentence.[10]  Sadly, the effects on the appellant’s children are, by and large, what must be expected.  The denial of their mother’s love and care will distress them but they will otherwise be well cared for during the appellant’s incarceration, albeit not by their mother.

   [10]   R v Buckskin [2010] SASC 138; R v Wilton (1981) 28 SASR 362; R v Wirth (1976) 14 SASR 291.

5. Moreover, the Judge did have regard to the welfare of the children and fixed a low non-parole period for that reason.  It is not the function of this Court on appeal to adjust sentences to reflect the weight it would give the relevant matters.  I also observe that the appellant may be eligible for an administrative release before her non-parole period expires.[11]  Even though it is generally not permissible to fix a sentence by reference to anticipated executive decisions,[12] where the submission is that there should be an exceptional departure from what is an otherwise appropriate sentence because of the possible effects of the sentence on dependents, it is in my view permissible to do so.[13]

   [11] Section 37A of the Correctional Services Act 1982 (SA).

   [12]   Hoare v The Queen (1989) 167 CLR 348, 364 - 365.

   [13]   R v Wirth (1976) 14 SASR 291, 294 and 296.

   No Course of Conduct (Ground 5)

6. The appellant complains that the Judge imposed sentence on the basis that the offences were part of a course of conduct.  As I have already recorded the appellant’s counsel below made precisely that concession in the course of sentencing submissions.  The effect of that concession was that the appellant did not, and could not, claim as a matter of mitigation that the first offence was a single, isolated, aberration.  No greater particularity about the course of conduct was required for that purpose.  The appellant was not being sentenced for that course of conduct, nor was it being treated as an aggravating circumstance.  The concession was sufficient to properly deny the appellant the leniency she might otherwise have received.  When it came to a consideration of the second offence there could be no suggestion that it was an isolated offence. 

   Totality (Ground 7)

7. The sentence was a moderate one reached by accumulating the two relatively short sentences the Judge would have imposed if she had sentenced for each offence separately.  There was no real risk that the sentence fixed in that way would be disproportionate to the offending for which the appellant was to be punished or that it would be crushing.[14]  It was not an error to fail to expressly address the question nor was the sentence, in the result, manifestly excessive.

   [14]   R v Symonds [1999] SASC 217.

   Section 18A (Ground 8)

8. The appellant’s complaint is that the Judge should not have used s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) to impose one sentence when the sentence she did impose was simply the sum of the two sentences she would have imposed cumulatively but for the facility offered by that section.

9. Contrary to one of the implied premises of that argument, it was a purpose, indeed the primary purpose, of the enactment of s 18A to free judges and correctional authorities from the burdensome arithmetic of calculating the net effect of a numerous individual sentences.[15]  The provision is most beneficial when many individual sentences would otherwise be imposed, but there is no reason why it can not be employed in simpler sentencing cases.

   [15]   R v Copeland No 2 (2010) 108 SASR 398, 422 [93] per Kourakis J citing the Second Reading Speech on the introduction of the Bill to enact s 18A of the Sentencing Act. South Australia, Parliamentary Debates, Legislate Council, 12 February 1992, 2663 (The Honourable CJ Sumner, Attorney-General).

10. The other implied premise in the appellant’s submission is that utilising s 18A of the Sentencing Act, without reference to the discrete sentence which might have been imposed might, in some way, produce a lower sentence than one arrived at by fixing individual sentences for the same offences and making them wholly, or in part, cumulative or concurrent.  The premise is very obviously fallacious.  Whichever procedural device is used the result must be exactly the same.

    Sentencing Intimation (Ground 10)

11. This ground was formulated during the course of the submissions.  Permission was refused.  It was refused for the same reasons given in [35] above.