R v Le
[2001] SASC 28
•14 February 2001
R v LE
[2001] SASC 28
Court of Criminal Appeal: Doyle CJ, Duggan and Williams JJ
1................ DOYLE CJ (ex tempore). The appellant pleaded guilty to a charge of selling heroin, contrary to s 32(1)(c) of the Controlled Substances Act.
The appellant sold a small quantity of heroin to an undercover police officer. The substance was found to contain heroin, but the sample was not suitable for accurate quantification of the amount of heroin.
The maximum penalty for this offence is a fine of $200,000 or imprisonment for 25 years or both.
The offence is a very serious one. The Judge imposed a head sentence of five years and six months imprisonment. But for a late plea of guilty, he would have imposed a sentence of six years imprisonment. He fixed a non-parole period of three years.
The appellant claims that the sentence is excessive.
The appellant originally pleaded not guilty. After a decision by the Judge not to exclude important prosecution evidence, the appellant pleaded guilty. The Judge deducted six months for the late plea. No criticism can be made of that.
The appellant was addicted to heroin. He sold heroin to support his addiction. He was sentenced on the basis that he was a street trader. This was not disputed. Accordingly, he could not be sentenced on the basis that the sale was an isolated transaction.
The appellant was almost 19 years of age at the time of the offence. He was born in Vietnam and came to Australia in 1992, aged 13, with his father. His background is unexceptional. He left school during year 12 and started a course in electronic engineering. My impression is that this was some kind of practical or trade course. He did not complete the course. He worked for a while in a restaurant and then was unemployed for sometime. He says that he would like to resume his studies and become a motor mechanic or electrical engineer.
The Judge accepted that he had not consumed heroin for about eight months and so was prepared to accept that the appellant was trying to rehabilitate himself.
A psychologist’s report was tendered. There are only two things that call for comment. His intellectual level was assessed as being probably in the low average range. The psychologist concluded that if the appellant was given adequate support and received adequate drug rehabilitation counselling, his prospects of reform were fair. There is no reason to doubt that assessment.
The appellant has no prior convictions. The significant features of the case are the appellant’s youth, the fact that he has no prior convictions and the fact that he has never been in prison before. The small quantity of heroin sold is not a significant factor. Most street trading seems to be in very small quantities and there is every reason to think that retailers make sure that that is so.
I consider that the appellant’s intellectual capacity is not a basis in itself for lenience. There is no reason to think that the appellant was not fully aware of what he was doing. He appears well able to function in the community.
The Judge referred to previous decisions of this Court, in particular R v Mangelsdorf (1995) 66 SASR 60 and R v C (1998) 72 SASR 391. These cases establish that for a street retailer of heroin the starting point is a sentence in the range between five and seven years. He took as his starting point six years. In general terms, the Judge’s approach was correct. When he came to the non-parole period, he said that he was able to be more lenient than usual because of the appellant’s relative youth and previous good record.
It is important to bear in mind that the approach established by the cases referred to is not a rigid or inflexible standard. It may well be appropriate for most cases, indeed it probably will, but the fact remains that all material matters have to be taken into account in arriving at the appropriate sentence.
I made this point in R v Gjoka (Unreported, 1 July 1997, Judgment No S6211). As I said there, the standard is not intended to be precise.
In my opinion, the appellant’s youth, and to a much lesser extent, the fact that he has no previous convictions, should have been considered in relation to the head sentence as well as in relation to the non-parole period. Both are mitigating factors and both should be taken into account. The Judge made no reference to either matter when considering the head sentence, and his sentencing remarks suggest that he took the view that the only relevant factor was the late plea of guilty. In my opinion, he erred in that respect. The appellant’s youth was an important mitigating factor.
I consider that in the circumstances of the case, the head sentence is excessive. In my opinion, an appropriate starting point is five years. I will take off five months for the late plea of guilty, arriving at a head sentence of four years, seven months. The five months I have taken off is one twelfth of the head sentence, the same proportion as the Judge deducted.
Fixing an appropriate non-parole period is more difficult. The fixing of the non-parole period must also take into account the factors relevant to fixing a head sentence. The non-parole period fixed by the Judge was just over one half of the head sentence. It took particular account of the appellant’s youth. A non-parole period which was just over one half of the head sentence that I have fixed would not adequately serve the punitive and deterrent requirements in the present case, bearing in mind the seriousness of the offence. Under those circumstances, I would fix the same non-parole period as did the Judge, one of three years.
In my opinion, the appellant should serve that period at least to satisfy the requirements of punishment and deterrence. Rehabilitation cannot be the only factor taken into account.
For those reasons, I would allow the appeal and set aside the sentence imposed by the District Court. I would impose a sentence of imprisonment for four years, seven months, and fix a non-parole period of three years. I would order that the sentence and non-parole period be backdated to 22 August 2000, the day when the appellant was taken into custody.
21.............. DUGGAN J:...... I agree that the appeal should be allowed for the reasons given by the Chief Justice. I also agree with the orders proposed by the Chief Justice.
22.............. WILLIAMS J:... I agree.
23.............. DOYLE CJ:....... The order of the Court is:
1...... Appeal allowed.
2.Set aside the sentence imposed by the District Court.
3...... Substitute a sentence of imprisonment for four years, seven months.
4.Fix a non-parole period of three years.
5...... Order that the sentence and non-parole period commence on 22 August 2000.
2
0