R v KOULIOUBAS

[2012] SASCFC 49

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KOULIOUBAS

[2012] SASCFC 49

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Kelly)

2 May 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - FAILURE TO EXERCISE DISCRETION

Appeal against sentence – appellant pleaded guilty to one count of supplying a controlled drug (methylamphetamine) and sentenced to one year and eight months imprisonment with a non-parole period of six months – appellant was serving a two year good behaviour bond with supervision conditions for a previous drug conviction at the time of sentencing for the present charge – appellant attended a drug rehabilitation clinic as an in-patient and was completing a follow up regime with a psychiatrist – whether the sentence was manifestly excessive – whether the sentencing Judge erred in placing too much emphasis on general and personal deterrence and gave insufficient weight to the appellant’s personal circumstances – whether the sentencing Judge erred in failing to suspend the term of imprisonment imposed.

Held: (Kelly J, Doyle CJ and Anderson J concurring): appeal dismissed – possession of methylamphetamine for supply is a serious offence – appellant committed offence while on bail for a previous offence of trafficking in methylamphetamine – appellant’s response to supervision under previous suspended sentence bond was poor, attendances at drug rehabilitation clinic belated and did not indicate a genuine commitment to rehabilitation – sentence not outside range available – no error in approach of sentencing Judge – appeal dismissed.

Controlled Substances Act 1984 (SA) s 33I(1)(b), referred to.
R v Proom (2003) 85 SASR 120, applied.
R v Gibbons (1998) 72 SASR 408; R v Urbanski (2010) 108 SASR 369, distinguished.

R v KOULIOUBAS
[2012] SASCFC 49

Court of Criminal Appeal:   Doyle CJ, Anderson and Kelly JJ

1. DOYLE CJ.          I would dismiss the appeal against sentence.  I agree with the reasons given by Kelly J for so deciding.

2. ANDERSON J.     I agree that the appeal against sentence should be dismissed for the reasons given by Kelly J.

   KELLY J.

   Introduction

3. This is an appeal against a sentence imposed in the District Court on 21 February 2012. The appellant pleaded guilty to one count of supplying methylamphetamine, a controlled drug, contrary to s 33I(1)(b) of the Controlled Substances Act 1984 (SA). The District Court Judge sentenced the appellant to a term of imprisonment of one year and eight months and imposed a non-parole period of six months. She declined to suspend the sentence of imprisonment.

4. A Judge of this Court granted permission to appeal on two grounds; first that the head sentence imposed by the sentencing Judge is manifestly excessive and second, that the sentencing Judge erred in the exercise of the discretion to suspend the sentence by placing too great an emphasis on principles of deterrence and by giving insufficient weight to matters personal to the appellant, in particular, to the appellant’s efforts to rehabilitate under a suspended sentence regime put in place by another Judge in March 2011.  

   Relevant Background

5. The appellant is a 27 year old single woman who has had an ongoing addition to drugs since the age of about 16.  On 11 November 2010 the appellant was found in her unit in possession of 10.71 grams of methylamphetamine, of which 2.71 grams was pure methylamphetamine.  The appellant pleaded guilty on the basis that the drugs found in her possession were to be used by her for her own personal use but that she would have supplied a quantity of the drug to any of her friends who asked. 

6. At the time of offending the appellant was on bail for an offence of trafficking in a controlled drug committed on 18 November 2008.  The offending in respect of that matter involved a total of 49.5 grams of methylamphetamine located in various containers at the appellant’s home.  The appellant subsequently pleaded guilty to the offence of trafficking and was sentenced by another Judge of the District Court on 16 March 2011.  The sentencing Judge imposed a head sentence of two years and 10 months with a non-parole period of 15 months.  The sentence was suspended on the appellant agreeing to enter into a bond, terms of which included that the appellant was to be under the supervision of a community corrections officer for a period of two years and that she was to undertake such counselling and drug rehabilitation programs as directed by the correctional services officer assigned to her. 

7. In April 2011, and again in July 2011, the appellant failed two random drug tests carried out under the provisions of the suspended sentence bond imposed by the District Court Judge in March 2011.

8. The appellant first appeared before the sentencing Judge in relation to the current charge on 10 November 2011 at which time the matter was adjourned pending the obtaining by the appellant’s counsel of a psychological report and a pre-sentence report prior to any submissions being made.  During the course of exchanges between the learned sentencing Judge and counsel then acting for the appellant, the learned sentencing Judge issued a stern warning to the appellant to the effect that if she did not wish to be in gaol in the new year she had better get her life into order specifically by abstaining from drug use. 

9. In December 2011 the appellant saw a psychologist, Ms Maine.  In January 2012 the appellant admitted herself to Warinilla, a drug and alcohol clinic, for a period of six days.  Whilst in the Warinilla clinic she saw a psychiatrist and was due to follow up with that psychiatrist six weeks after discharge on 16 January 2012.  She was also prescribed some new medication, modafinil, which she was required to take for a period of six weeks from January 2012. 

10. On 13 February 2012 the sentencing Judge heard submissions and the appellant was sentenced on 21 February 2012. 

    Complaint on Appeal

11. The appellant’s main complaint on appeal is that the sentencing Judge did not place sufficient weight on the fact that by the time the appellant came to be sentenced in February 2012 the appellant was undergoing treatment for her drug addiction, had been an in-patient at Warinilla the previous month, and was to follow up seeing a psychiatrist as part of the rehabilitation regime set in place.  She was also prescribed a new medication, namely the modafinil, which she was required to take for a period of six weeks after discharge from Warinilla clinic. 

12. It was argued that the sentencing Judge placed too much emphasis on general and personal deterrence and not enough on the current personal circumstances of the appellant.  There was a further complaint that both the head sentence and the non-parole period were manifestly excessive. 

13. The appellant’s counsel pointed to all of the material before the sentencing Judge, including the report of the psychologist, Ms Farrin, of 13 January 2012, and a pre-sentence report of 18 January 2012. 

14. The report of the psychologist was quite positive with regard to the appellant’s progress towards rehabilitation.  However, the opinion of the psychologist is to some extent undermined by the fact that the psychologist does not appear to have appreciated that the appellant had been sentenced for the earlier offending as recently as 16 March 2011, that is, less than 10 months prior to the writing of the report.  In that time the appellant failed two random drug tests, failed to follow up on counselling recommended for her by the correctional services supervising officer, and admitted to consuming methylamphetamine as recently as 27 November 2011, some 10 days after appearing for the first time in the District Court on this matter.

15. The pre-sentence report written by the correctional services officer appears to be a more realistic appraisal of the true position with regard to the appellant at the time of her appearance again in the District Court in November 2011.  The writer of that report expressed the view that the appellant had not yet demonstrated the will and capacity to meaningfully address substance abuse issues during the course of the bond.

16. It is unsurprising against that background that the sentencing Judge entertained some reservations about the psychologist’s assessment of the appellant’s progress towards rehabilitation.  The appellant had had over nine months to demonstrate a genuine commitment to rehabilitation prior to her sentencing for the second offence and she had not done so.  All of the matters relied upon by the appellant’s counsel on this appeal to support the argument that the sentencing Judge accorded too little weight to the prospects of rehabilitation were belated attendances by the appellant at the Warinilla drug clinic and other associated health professionals at the eleventh hour. 

17. In light of the events which transpired after the appellant’s sentencing before the other District Court Judge in March 2011 it is unsurprising that the Judge approached that evidence with a high degree of caution.  It is plain from the sentencing remarks that her Honour appreciated the full import of the sentencing regime set in place by the other District Court Judge on 16 March 2011.  She could have, in the exercise of the discretion available to her, determined to give the appellant one more opportunity to demonstrate that she was capable of complying with the terms of a bond, however, in my view, it cannot seriously be suggested that it was not open to the sentencing Judge to refuse to suspend the sentence. 

18. The offence of possession of methylamphetamine for supply is a serious one.  Sale or supply of methylamphetamine is equally harmful to others.  The remarks of Doyle CJ in R v Proom[1] apply with equal force to the circumstances of the appellant in this case:

    Addiction to drugs may indicate that assurances by an offender of a desire to be rehabilitated are unreliable, or must at least be treated with caution, and sadly may mean that even a genuine wish to rehabilitate may have to be treated with caution. In the worst case, if there is no reason to think that the addiction will be broken, there will be no basis for leniency by reference to the prospect of rehabilitation.

    Finally, there is the obvious point that sentencing involves the balancing of a whole range of factors. When considerations of deterrence predominate, or require greater weight, there is less scope for leniency on the basis of addiction.

    [1]    R v Proom (2003) 85 SASR 120 at [50]-[51].

19. The appellant committed the current offence whilst on bail for the earlier offence of trafficking in methylamphetamine.  In these circumstances in my view it cannot be said that it was not open to the sentencing Judge to refuse to suspend the sentence she imposed.

20. The appellant also complained that both the head sentence of one year and eight months and the non-parole period of six months were manifestly excessive.  It was submitted that in light of the facts that, the appellant had no prior convictions on the date when this offence was committed, the quantity of drug was relatively small (2.71 grams of pure methylamphetamine), and the appellant was to be sentenced on the basis of supply only, the appellant’s offending should be placed at the lowest end of the scale for offending of this type. 

21. In making that submission the appellant relied on two authorities, R v Gibbons,[2] decided in 1998 when a different sentencing regime for drug related offences was in place, and another more recent case R v Urbanski.[3]  In this matter which involved a case of possession of ecstasy for supply Gray J remarked in passing that in the circumstances of that particular case a starting point for sentence of nine months imprisonment was at the upper end of the scale. [4]  The facts in Urbanski were quite unusual.  There a young man who had been trying to enter a dance venue in Adelaide while carrying 18 ecstasy tablets in his pocket pleaded guilty to possession of ecstasy for supply on the basis that he had purchased the tablets from another man who was with him and that he was carrying them into the dance venue intending to return nine of them to his companion.  There was a real issue in that case as to whether possession of the ecstasy in those circumstances did in fact amount to possession for supply within the meaning of the legislation.  It was in the context of assessing the offender’s moral culpability in those circumstances that Gray J made the remark that the starting point of nine months was at the upper level.

    [2]    R v Gibbons (1998) 72 SASR 408.

    [3]    R v Urbanski (2010) 108 SASR 369.

    [4]    R v Urbanski (2010) 108 SASR 369 at [106].

22. In my view neither of the authorities referred to by the appellant have much relevance to the circumstances of the appellant in this matter.  It needs to be borne in mind that the appellant committed this offence whilst on bail for an offence of trafficking in methylamphetamine, her response to supervision after being given a suspended sentence was poor, and she made no genuine attempts to comply with the terms of the bond by entering into rehabilitation until the eleventh hour. 

23. In these circumstances I consider that the head sentence imposed by the sentencing Judge was moderate.  The non-parole period was certainly merciful.  Nor do I consider that it was not open to the Judge to impose an immediate custodial sentence.  The appellant has not demonstrated any error on the part of the sentencing Judge which would justify the intervention of this Court. 

24. For these reasons I would dismiss the appeal.