R v Levy

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LEVY
[2015] SASCFC 27
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
26 March 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
The appellant was convicted of two counts of trafficking in a controlled drug, methylamphetamine, in the District Court of South Australia. In a search of the appellant’s home the police discovered 10.64 grams of powder containing methylamphetamine, 5.2 grams of the powder was pure methylamphetamine. The appellant’s home further contained paraphernalia likely associated with the cutting and sale of the drug. The value of the drugs was estimated to be between $4,320 to $9,150, or if diluted and sold in street level packages up to $42,500.
The appellant was sentenced for a period of six years, to be served cumulatively on a sentence period of four years, seven months and 21 days imprisonment for previous drug related offences. Non-parole period of seven years was fixed for the entire cumulative sentence. The learned Trial Judge in his sentencing remarks considered the appellant to be at a level above the average street dealer. The appellant appealed the sentence to this court.
Held per Kourakis CJ (Stanley J agreeing):
(1) The sentencing range for the street trade of heroin as set out R v Mangelsdorf is applicable to the street trade of methylamphetamine. The sentence does not ordinarily fluctuate with the quantity of the drug found in the possession of the street dealer.
(2) Section 44(2) of the Controlled Substances Act 1984 (SA) requires the court to treat all drugs, other than cannabis, to be equally harmful. This should be understood as applying to the physiological consequences on persons who consume the drug.
(3) The learned Trial Judge erred in finding that the appellant operated on a level above that of the average street dealer. The head sentence and non-parole period were not manifestly excessive.
(4) Appeal allowed. The appellant is resentenced to the same head sentence with a non-parole period of six years.
Per Gray J (allowing the appeal):
(1) The Judge should have afforded the appellant the opportunity to be heard before sentencing in respect of a matter of aggravation.
(2) The evidence did not establish that the appellant was operating at a level above the average street dealer. The prosecutor did not seek a finding that the appellant was operating at a level above the average street dealer. The Judge should have afforded the appellant the opportunity to be heard before making a finding in those terms.
(3) A report received from Drug and Alcohol Services should be received as fresh evidence as it is in the interests of justice for this Court to consider the report.
(4) The Judge placed undue weight on the appellant’s history and insufficient weight on the appellant’s prospects of rehabilitation.
(5) The Judge failed to have regard to the appellant’s time spent on strict home detention bail and substantial compliance with the terms of her bail agreement.
(6) The overall sentence of imprisonment of 10 years and 21 days is crushing. The Judge failed to have regard to the totality principle.
(7) The appellant should be resentenced to a period of imprisonment of eight years, one month and 21 days, with a non-parole period of four years.
Controlled Substances Act 1984 (SA) s 32(2), s 44, referred to.
R v Mangelsdorf (1995) 37 SASR 60; R v Kong [2013] SASCFC 15, applied.
R v Rocco (1985) 37 SASR 515; R v Wilson (1990) 158 LSJS 134; R v Levy [2014] SASCFC 114; R v Levy [2014] SADC 101, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"street level dealer", "street dealer", "street trade", "methylamphetamine", "quantity of substance"

R v LEVY
[2015] SASCFC 27
Court of Criminal Appeal: Kourakis CJ, Gray and Stanley JJ
KOURAKIS CJ:
Pleading background and sentence

On 20 May 2014, the appellant pleaded not guilty to two counts of trafficking in a controlled drug,[1] namely methylamphetamine. The maximum penalty for that offence is a fine of $50,000 or 10 years imprisonment or both. Following a trial by judge alone, the appellant was convicted on 6 June 2014. She was sentenced on 5 September 2014 to six years imprisonment to be served cumulatively upon an existing unexpired parole period of four years, seven months and 21 days imprisonment for previous offending. A non-parole period of seven years was fixed. The sentence commenced on 12 June 2014.
[1] Controlled Substances Act 1984 (SA), s 32(3).
The appellant’s application to a single Judge for permission to appeal against conviction on each count was dismissed, as was a subsequent appeal to the Court of Criminal Appeal on the same basis.
The appellant was granted permission to appeal against sentence. The appellant contends that her sentence was manifestly excessive and that the sentencing Judge erred in law and in fact.
I would allow the appeal on the ground that the Judge wrongly found that the appellant’s role in the trafficking of the methylamphetamine was more than that of a street dealer. On the resentencing of the appellant I would impose the same head sentence but reduce the non-parole period to six years. My reasons follow.
Factual circumstances
On 5 July 2012, police maintained observations of the appellant’s unit at 4/61 Buller Terrace, Alberton. The appellant was at the time serving the parole portion of a sentence of eight years and six months imposed for offences of possessing amphetamines for sale. After observing a vehicle leave the premises, police stopped it and identified the driver as a Mr Hughes. Inside Mr Hughes’ wallet, police found a small amount of methylamphetamine in a small press-seal bag. Police seized a set of house keys located inside Mr Hughes’ vehicle, which were found to fit the door of the appellant’s unit. Police subsequently searched the appellant’s unit. During the search police located six press-seal bags containing a total of 6.1 grams of powder, comprising 2.06 grams of pure methylamphetamine, inside a silver cigarette tin (count 1). A further nine press‑seal bags containing 4.49 grams of powder, comprising 2.63 grams of pure methylamphetamine, were found inside a matchbox (count 2). I will refer to the offending covered by both counts as the 2012 offences.
The police also located a number of other items commonly associated with trading in drugs including:
·17 unused press-seal bags inside an ornamental box in the lounge room, and a further 128 unused press-seal bags in shoe box on the lounge room floor.
·A calculator, mortar and pestle, and a marble chopping board all on a coffee table in the lounge room (suggested as a “cutting area”).
·Underneath the coffee table in the “cutting area”, a functioning set of scales capable of measure to one hundredth of a gram, containing traces of methylamphetamine on the weighing surface. A DNA profile matching the appellant, likelihood of 50 billion to one, was found on the buttons.
·Four unused syringes in a blue cooler bag in the appellant’s bedroom.
·Four mobile phones, three of which were operational.
·A blue pencil case on the lounge room floor containing $4,675 in cash.
·$545 cash in a white “Guess” brand wallet also containing the appellant’s driver’s licence.
·A second matchbox containing a press seal bag, inside it a further three press-seal bags each containing a brown paste, analysed to contain methylamphetamine. Another press-seal bag in the matchbox contained a cream paste, found to contain methylamphetamine.
·A white cylindrical plastic tube with a screw-on cap containing four press-seal bags, within which further press-seal bags containing cream paste found to contain methylamphetamine.
·A gold coloured paper envelope containing a press-seal bag containing a cream paste found to contain methylamphetamine.
The total weight of powder containing methylamphetamine was 10.64 grams, 5.2 grams of which was pure methylamphetamine. The overall average purity was 49.97 per cent, which is unusually high. The price of the methylamphetamine the subject of the two counts was estimated to be between $4,320 and $9,150; however if it was further diluted and sold in street level “point” or “taste” sized packages its potential value was up to $42,500.
The appellant was the sole lessee of the unit and was the only person present when the police arrived. In her interview with police, the appellant noted that all the items in her unit were her belongings. The appellant conceded that the drug paraphernalia was likely to be hers but claimed that it was a relic of her past drug dealing. The appellant further claimed she knew nothing about the existence of methylamphetamine in her home, but, inconsistently ascribed similar reasons for its presence in her unit as the paraphernalia.
The appellant admitted using methylamphetamine and admitted that frozen urine samples found in her freezer were stored by her in order to evade the drug testing which was a condition of her parole.
Personal circumstances
The appellant was born in South Africa in 1966 and moved to Australia with her family when she was six years old. The appellant’s parents divorced and her mother later remarried. The appellant eventually lost contact with her sister, who now resides in Darwin.
The appellant had a difficult time in school, attending at least seven different schools. She was sexually abused from the age of 15 by a person close to her family. As a result of the appellant’s difficult home life, she ran away from home. When she was 17 the appellant fell pregnant to her boyfriend. He was violent and encouraged her to experiment with illicit drugs, which led to the appellant’s addiction.
Antecedents
The appellant has an extensive offending history dating back to 1981, including motor vehicle offences, assault, dishonesty, property damage, drug offending and failures to comply with bail agreements and estreatment of bail.
In the District Court, in December 2000, the appellant was sentenced to imprisonment for five years with a non-parole period of two years for offences of possessing amphetamine for sale (x5) and unlawful possession.
In September 2003, police conducted a search of the appellant’s home and located in the lounge room a total of 6.27 grams of methylamphetamine and 6.13 grams of methylamphetamine in paste form (the 2003 offences). Drug paraphernalia including scales (with methylamphetamine residue) and mobile phones were also located. At that time, the appellant was on parole with an unexpired balance of one year, six months and 23 days. The appellant was charged on two counts of possessing methylamphetamine for sale but was released on bail.
In August 2005, whilst on bail for the 2003 offences, police stopped the appellant for speeding leading to a search of her car that uncovered 25.7grams of methylamphetamine paste of which 8.17 grams was pure methylamphetamine (the 2005 offence). Syringes and a large amount of cash were also located. The appellant was remanded in custody from 15 August 2005 until 3 April 2006 when she was released on home detention bail. The appellant remained on home detention until 3 September 2007 when she was convicted on one count of possessing methylamphetamine for sale following a trial before Judge Lovell.
Following her conviction of the 2005 offence the appellant pleaded guilty to the 2003 offences before Judge Millsteed. He remanded the appellant over to be sentenced by Judge Lovell. On 5 September 2008, Judge Lovell sentenced the appellant on both the 2005 offence and the 2003 offences. His Honour sentenced the appellant to a head sentence of eight years, six months and 23 days imprisonment, inclusive of unexpired parole for both the 2003 and 2005 offending. The appellant received a non-parole period of three years and six months.
The appellant was placed under home detention on the sentences imposed by Judge Lovell on 27 October 2011 and later released on parole. She committed the 2012 offences soon thereafter.
On 3 August 2012 the appellant was granted home detention bail on the 2012 offences. The appellant breached that bail agreement, on 20 November 2012, by substituting a urine sample. On 27 November 2012 she again breached her bail by drinking alcohol. On 12 December 2013 she was placed on bail without home detention conditions.
The appellant was referred for counselling through the Police Drug Diversion Initiative, on 20 January 2014, after drugs were found in her car by police. The appellant denied that the drugs were for her use. The appellant voluntarily undertook further counselling through the diversion programme from January to April 2014. A report from her counsellor spoke favourably of her commitment to overcome her addiction. The appellant has also contributed her artistic talents to the work of Seeds of Affinity, an organisation dedicated to supporting the rehabilitation of women prisoners.
Sentencing remarks
The Judge’s sentencing remarks extend over six pages. The first one and half pages deal with the appellant’s earlier drug offending. After recording that the appellant was released on parole on 16 May 2012, the Judge continued:
It is plain that notwithstanding all of this, and your parole supervision, you had no intention whatsoever of complying with the conditions of your release on parole.
Such was your determination to continue taking methylamphetamine, you then stored and froze quantities of your own urine to enable you to dishonestly submit that clean urine when you resumed taking methylamphetamine and were to undergo further testing. The aim was to deceive Corrections and the Parole Board.
You must have, almost immediately, decided to recommence trafficking methylamphetamine as when police attended and searched your unit at Alberton on 5 July 2012, less than two months after your most recent parole release, they located 15 press‑seal bags containing 10.64g of powder containing 5.2g of pure methylamphetamine.
The Judge assessed the level of the appellant’s involvement of the methylamphetamine trade as follows:
I find on the basis of the evidence at trial, including the expert police evidence about the methylamphetamine trade, that while some of the methylamphetamine located was likely to support your own addiction the majority of it was for sale. You stood to make a considerable sum of money on this occasion, no doubt to support yourself and also your ongoing drug use.
The significant packaged quantities and the unusually high purity of nearly 50% pure methylamphetamine indicate that you were likely selling those bagged amounts to street level dealers who would likely cut the drug again for sale in the usual point one of a gram ‘street deals’. You were accordingly a level above the average ‘street level dealer’. I find that proved beyond reasonable doubt.
Submissions on appeal
The appellant appeals on the ground that the sentence was manifestly excessive. The particulars were as follows:
1.A sentence of six years for a quantity of methylamphetamine totalling 10.64 grams is indicative of error, taking into account also the circumstances of the offending and the personal circumstances of the appellant.
2.The non-parole period of seven years was manifestly excessive taking into account the personal circumstances of the appellant.
3.The Learned Sentencing Judge gave undue emphasis in sentencing to the appellant’s criminal antecedents.
4.The Learned Sentencing Judge gave inadequate weight to the appellant’s history of addiction.
5.There was inadequate weight given to the appellant’s attempts to overcome her long term addiction.
6.The Learned Sentencing Judge erred when he stated “regrettably, you have abused every past opportunity given to you to do that” [ie: to rehabilitate yourself.]
7.The Learned Sentencing Judge erred in finding beyond reasonable doubt that she was to be sentenced at “a level above the average street level dealer”.
8.The Learned Sentencing Judge erred in failing to give any, or adequate, consideration to the requirements contained in section 44 of the Controlled Substances Act 1984.
Discussion
In R v Mangelsdorf,[2] Doyle CJ reviewed the sentences imposed for street dealers of heroin and concluded that the range of sentences for the generality of cases of street dealing was between four and seven years. That review showed that the offending covered by that standard included offences by persons who had not previously been convicted of drug trading. Moreover, the standard did not ordinarily fluctuate with the quantity of heroin found in the possession of the street dealer. In particular Doyle CJ referred to the remarks of White J in R v Rocco[3] in which White J observed that the penalty for heroin street traders does not normally fluctuate with the quantity. The reasons why it should not are, as Doyle CJ observed, well known to those who have dealt with drug cases. The reasons given by White J were:
Street traders and their immediate suppliers are likely, in the nature of things, to possess only relatively small quantities of heroin. Suppliers are not prepared to part with great quantities in case street traders fail to pay them. In any event, suppliers prefer to carry relatively small quantities on each occasion in case they are detected, in which case they can plead the smallness of their operation. For their part, street traders cannot afford to buy or cannot get credit for larger quantities of heroin. And it also suits them to have small quantities in case they are detected. Street traders addicted to heroin commonly require $1000-$1200 per week to buy the amount of heroin required to sustain their addiction on a continuous basis – one half of the weekly purchase usually being consumed in purer form, the other half usually being diluted and sold to others in order to raise the purchase price for the next week’s supply. Thus it is that offenders are rarely detected with larger quantities of heroin. It is quite fortuitous whether the street trader is detected early in the week when he has 10 to 20grams or late in the week when he has 2 or 3grams. The penalty for heroin street traders does not normally fluctuate with the quantity.[4]
[2] (1995) 66 SASR 60.
[3] R v Rocco (1985) 37 SASR 515.
[4] R v Rocco (1985) 37 SASR 515 at 517.
Leaving aside the reference to precise dollar amounts and weights applicable to heroin nearly 30 years ago the modus operandi to which White J referred remains a relevant consideration. The cases also showed that addiction provided little or no basis for leniency because “the drug trade flourishes because suppliers of drugs are able to find people like the appellant who are prepared to engage in the trade at the lower levels and in that way to entice other people into the same type of drug dependence and misery which has been experienced by the appellant himself”.[5] Doyle CJ concluded that the judgments he surveyed “adequately indicate the standard which has been set by this Court for offences involving heroin which can be described as street trading, a description which is not precise, but has often been employed by the Court”.[6]
[5] R v Wilson (1990) 158 LSJS 134 at 135 per King CJ.
[6] R v Mangelsdorf (1995) 66 SASR 60 at 66.

For present purposes it is appropriate to apply the range identified for heroin street dealers to dealers in methylamphetamine. Indeed having regard to the prevalence of methylamphetamine, and it’s devastating effects on individuals and the community, there is some reason to impose a more severe sentencing standard. The requirement in s 44(2) of the Controlled Substances Act 1984 (SA) (CSA) to treat all drugs, other than cannabis, as equally harmful should be understood as applying to their physiological consequences on persons who take or are addicted to them. So much is clear from the phrase “physical or other harm generally associated with the consumption of”. The prescription in s 44(2) of the CSA does not preclude the Court adjusting penalties to deal with the increasing prevalence of particular drugs and their consequential social damage. Be that as it may no submission to that effect has been made by the Director of Public Prosecutions and it need not be further considered.
The maximum penalty applicable to the offending in Mangelsdorf was $200,000 or imprisonment for 25 years. Since then a gradated scale of maximum penalties which varies in accordance with the quantity of drug in the possession of the offender has been legislated. The penalty hierarchy is set out in tabular form in R v Kong.[7]
[7] R v Kong [2013] SASCFC 15 at [69].
The judgment of this Court in Kong was that the ultimate effect of the statutory hierarchy of penalties was to increase the broad penalty ranges across all of the categories considered in Mangelsdorf.[8] It was not the intention of Parliament to reduce the sentencing standard for street trading set in Mangelsdorf in reference to the happenstance of how far into a trading venture an offender is when apprehended. I earlier referred to the reported observations of this Court about the limited relevance of the weight of the drug found on a street trader.[9]
[8] R v Kong [2013] SASCFC 15 at [89].
[9] R v Mangelsdorf (1995) 66 SASR 60 at 64.
In the context of the notorious methods of operation of street traders Parliament could not have intended to abrogate, and substantially reduce, the standard applicable to street traders when it introduced a scale of penalties which varied according to the quantity of drug in the possession of the dealer. The converse is the case. The higher maximum penalties for larger amounts will generally result in sentences at the higher end, or above, of the standard identified in Mangelsdorf. The appellant contends that the Judge failed to have regard to the considerations specified in s 44(1) of the CSA. The Judge plainly did have regard to each of the prescribed considerations. The requirement to have regard to the quantity of the drug does not, for the reasons which I have explained, abrogate the Mangelsdorf standard. Ground 8 must be dismissed.
Having regard to the standard set in Mangelsdorf and to the appellant’s poor record and persistent offending, it cannot be said that a sentence of six years was manifestly excessive. Ground 1 must be dismissed.
The non-parole period of seven years is about two-thirds of the head sentence. That is a relatively high proportion especially having regard to the fact that four years and seven months of the sentence was unexpired parole. However, again the appellant’s prior record and the extent to which she was prepared to go to evade the drug testing to which she was subjected, give little hope for rehabilitation. The non-parole period is not manifestly excessive. Ground 2 must be dismissed.
I accept that the passages from the sentencing remarks seem to suggest a degree of freedom of choice on the part of the appellant, to continue to take methylamphetamine or not, which an addict simply does not have. However, these are matters of emphasis and weight rather than legal or factual error. The weight to be given to the matters particularised in grounds 3, 4, 5 and 6 were within the discretion of the Judge.
On the other hand, I accept that the Judge erred in finding that the appellant operated at “a level above the average street level dealer”. To sentence the appellant on that basis the Judge had to be satisfied of that fact beyond reasonable doubt. The purity of the drugs found did not support that conclusion. A street level dealer might still be expected to buy a drug in a concentrated form from a supplier higher in the drug trading hierarchy before cutting it down to sell at street level. There was no evidence to show that the quantity of methylamphetamine found in the appellant’s possession or its value was inconsistent with the operations of a street level dealer of methylamphetamine in 2012. Ground 7 is made out. That factual error vitiates the sentence imposed below and requires this Court to resentence the appellant.
Even though not the subject of a ground of appeal, the appellant also complained in the course of submissions that the Judge erred by failing to take into account the long period of time spent by the appellant on home detention bail. The respondent did not claim any forensic prejudice in responding to that ground. A sentencing judge has a wide discretion as to whether and to what extent to allow for time on home detention bail. There were strong reasons in this case not to give the appellant much credit for this period of time. However, such was the length of time the appellant spent on home detention I am satisfied that the Judge’s failure to mention it at all shows that he did not take it into account.
The appellant tendered before this Court a report from the Drug and Alcohol Services of South Australia dated 13 November 2012 and a letter from a psychologist Mr Ireland dated 27 November 2012. Given my conclusion that the sentence must be set aside for error, it is not necessary to consider whether the reports should be received as further evidence on the appeal. However it is appropriate to have regard to those reports for the purposes of sentencing. I have had regard to the reports which show that the appellant received counselling from a social worker at the Drug and Alcohol Services of South Australia in 2012. The report of Mr Ireland confirmed that he saw Miss Levy pursuant to a mental health care plan prepared by her general practitioner. Mr Ireland reported that Miss Levy displayed evidence of moderate anxiety and depression.
Accepting that the appellant was a street level dealer and giving the appellant’s home detention some weight, it is in my view not possible to fix any lesser head sentence than that fixed by the Judge. However in the exercise of my discretion, and whilst accepting that the non-parole period fixed by the Judge was not manifestly excessive, I would fix a lesser non-parole period. I therefore allow the appeal for the purpose only of setting aside the non-parole period fixed by the Judge. I would fix in its place a non-parole period of six years to commence on 12 June 2014.
GRAY J.
This is an appeal against sentence.
On 6 June 2014, following a trial by Judge alone in the District Court, the defendant and appellant, Michelle Levy, was found guilty of two counts of trafficking in a controlled drug, namely, methylamphetamine.
On 5 September 2014, the defendant was sentenced. The Judge imposed one sentence in relation to both offences pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of six years’ imprisonment. The sentence was ordered to be served cumulatively upon an unexpired period of parole of four years, seven months and 21 days, giving a total sentence of 10 years, seven months and 21 days. The Judge fixed a non-parole period of seven years in relation to this total term of imprisonment. The sentence was backdated to commence on 12 June 2014, the date on which the defendant was remanded in custody. The Judge further ordered that the drugs and paraphernalia seized by police be forfeited. In relation to an amount of $5,220.00 cash that was also seized, the Judge ordered that half of this amount be forfeited and that the remainder be paid to the defendant.
On 30 October 2014, the defendant was refused permission to appeal against conviction.[10]
[10] R v Levy [2014] SASCFC 114.
Background
Shortly after 5.30 pm on 5 July 2012, police attended the vicinity of the defendant’s home at Buller Terrace, Alberton. They observed a vehicle leaving the premises. The vehicle was followed and pulled over several streets away. The occupant of the vehicle was found to possess a small amount of methylamphetamine, equivalent to two quantities known as a “point” in a single press-seal bag. He also had keys to the defendant’s house.
At around 6.05 pm, police entered the defendant’s premises unannounced. A thorough search of the premises was undertaken. In a cigarette style tin, police located two bundles comprising six press-seal bags, each containing a substance later analysed to be powder containing methylamphetamine. These six bags were the subject of the first count of trafficking methylamphetamine. Nine further press-sealed bags were located, each containing a paste later analysed to contain methylamphetamine. These nine bags were the subject of the second count of trafficking in methylamphetamine. The police also located other items, including unused press-seal bags, electronic scales later found to contain traces of methylamphetamine, four unused syringes and $5,220.00 in cash.
The 15 bags that were sent for analysis contained a total of 10.64 grams of substance containing 5.2 grams of pure methylamphetamine. There was evidence that, if sold in the format and packaging in which the methylamphetamine was located, it was worth between $4,320.00 and $9,150.00. If the substance were cut and broken down for sale into the typical street level quantity, the value could have been up to $42,500.00.
When questioned, the defendant told police that the methylamphetamine and paraphernalia were left over from earlier drug dealing activities, and that she had not realised that they continued to be in her possession. The defendant told police that she was still using methylamphetamine, having last used the drug a couple of days earlier.
Sentencing
The Judge outlined the defendant’s history of methylamphetamine trafficking offences.
In September 1999, the defendant committed four counts of possession of drugs for sale and one count of unlawful possession of money. On 31 January 2000, while on home detention bail for that offending, the defendant committed a further offence of possessing methylamphetamine for sale. In respect of both sets of offending, the defendant was sentenced to a total of five years’ imprisonment with a non-parole period of two years.
On 8 September 2003, when on parole for the earlier offending, the defendant committed two further offences of possessing methylamphetamine for sale. On 13 August 2005, while on bail for the 2003 offending, the defendant committed the further offence of possessing methylamphetamine for sale. In relation to the 2003 and 2005 offending, the defendant was sentenced to a total period of seven years’ imprisonment, to be served cumulative upon a period of unexpired parole. A non-parole period of three years and six months was fixed. The defendant was released on home detention bail on 27 October 2011. As earlier noted, the offences the subject of the present appeal occurred on 5 July 2012.
The Judge referred to letters and references tendered on behalf of the defendant and observed:
Whilst the court hopes that you will live up to the optimism expressed in these documents, much of it has been said before and on those occasions you demonstrated no real commitment to giving up drugs or ceasing to associate with the drug world. Indeed, on your most recent parole release you took active steps to conceal your planned ongoing drug use from detection by freezing quantities of your own urine.
So while the court has given close consideration to the important issue of rehabilitation and the positives others have expressed, regrettably, there can be little confidence that you will ultimately seriously pursue it, nor that leniency or extended future supervision will be effective in achieving it. Indeed the opposite is likely, you having abused your parole release so comprehensively in the past.
That is a matter of great regret because the court always looks to see whether there are ways that the court can support a person to leave their drug past behind. Regrettably, you have abused every past opportunity given to you to do that.
The Judge addressed the defendant’s personal antecedents as follows:
Born in South Africa you immigrated to Australia at the age of six. Your mother divorced and remarried and, unfortunately, you were abused by your stepfather who was eventually prosecuted.
You ran away from home and began associating with a bad group of peers, becoming pregnant at 17. There were problems with your partner. He was violent and also encouraged your illegal drug use.
After attending a number of schools where you were often a truant you left school and since then you have been largely unemployed. You have undertaken occasional work over time.
From the age of 17 you have used many types of illicit drugs, mainly cannabis and amphetamine, and have continued to do so since that time.
You have embarked on a series of unsatisfactory relationships. Your counsel mentioned that you had a long-term and manipulative relationship with one man, punctuated by drug abuse and other negative effects on you from that relationship.
You eventually lost custody of your daughter, no doubt due to your drug taking and consequent lifestyle.
Your counsel reminded the court you are now 48 years old. He told the court that since your parole release you have had problems with an ex partner harassing you. You have also found it difficult to work while on initial home detention release, due to the restrictions inherent in home detention.
He stressed that you have established a positive connection with your current counsellor and wanted to put your best foot forward by helping help women who have been released from prison through the Seeds of Affinity program. You hope to return to that when circumstances permit.
You also have some artistic ability and it is hoped that you may be able to make something of that as a positive in the future.
The Judge concluded that while some of the methylamphetamine that was located was likely to have been intended to be used to support the defendant’s own addiction, the majority was for sale.
In imposing the earlier referred to sentence, the Judge observed:
The court has close regard to everything put and tendered on your behalf, including your drug addiction, your difficult history and the many issues outlined in previous sentencing remarks, submissions, references and other documents.
In all the circumstances, unfortunately the sentence must now reflect the seriousness of your current crime in light of your relentless and ongoing offending, the fact that you were on parole for similar offending, and your complete lack of remorse or responsibility.
General deterrence and in particular considerable personal deterrence must now assume a primary role in any sentence. Also, given the persistence of your trafficking in this very harmful drug to the South Australian community, protection of the community must also be a relevant consideration.
I do balance that with the very important matters that your counsel has comprehensively urged on your behalf.
The Appeal
The primary submission of the defendant was that the District Court Judge had made demonstrable errors when sentencing. It was said that these errors underscored the further submission of the defendant that both the head sentence and non-parole period were manifestly excessive.
The Judge, in his earlier reasons for verdict,[11] concluded that there was a very strong circumstantial case against the defendant on each count of trafficking in methylamphetamine. The Judge, in particular, drew attention to the quantities of methylamphetamine in the six bags the subject of count one, noting the total weight of the powder to be 6.15 grams, containing 2.66 grams of pure methylamphetamine. The nine bags the subject of count two contained a total weight of 4.49 grams of powder, containing 2.63 grams of pure methylamphetamine. The Judge also referred to the presence of unused press-seal bags, mobile phones, small electronic scales and cash, primarily in $50.00 notes and totalling a little more than $5,000.00. The Judge considered that, in these circumstances, the defendant was engaged in trafficking. The Judge also made reference to a body of evidence that indicated that the defendant was at the time a user of methylamphetamine.
[11] R v Levy [2014] SADC 101.
These factors led the Judge to conclude in his reasons for verdict:
I have carefully considered all the matters pointed to by defence counsel throughout the case, and the defence case itself, and notwithstanding all such matters, I conclude beyond reasonable doubt that in relation to each count the only rational inference that can be drawn is that the accused was knowingly in possession of the methylamphetamine located by police, knew it was methylamphetamine, and intended to sell at least some of it.
In coming to these conclusions I have not needed to have regard to the presumption established by section 32(5) of the Controlled Substances Act 1984 that upon proof of possession of a trafficable quantity of at least two grams of mixed substance containing methylamphetamine, an intention to sell is presumed in the absence of proof to the contrary. For the sake of completeness I indicate that in relation to each count, for all the preceding reasons, I find proven beyond reasonable doubt in relation to each separate count that the accused was knowingly in possession of at least two grams of mixed substance containing methylamphetamine. For completeness I indicate that having closely considered all the evidence, I find it is not proved on the balance of probabilities in either case that the accused did not possess an intention to sell at least some of it.
[Emphasis added.]
Counsel for the defendant on the appeal submitted that it was clear that the District Court Judge, when sentencing, proceeded on the basis that the defendant was trafficking in methylamphetamine at a level above the average street level dealer. In the course of his sentencing remarks, the Judge reasoned:
I find on the basis of the evidence at trial, including the expert police evidence about the methylamphetamine trade, that while some of the methylamphetamine located was likely to support your own addiction the majority of it was for sale. You stood to make a considerable sum of money on this occasion, no doubt to support yourself and also your ongoing drug use.
The significant packaged quantities and the unusually high purity of nearly 50% pure methylamphetamine indicate that you were likely selling those bagged amounts to street level dealers who would likely cut the drug again for sale in the usual point one of a gram ‘street deals’. You were accordingly a level above the average ‘street level dealer’. I find that proven beyond reasonable doubt.
[Emphasis added.]
It was submitted that the prosecutor had not sought such a finding and that the Judge had given no notice to the defendant that he was contemplating making such a finding. As a consequence, the defendant had no opportunity to make any submission on this important matter.
It is well settled that a Judge should not sentence in respect of a matter of aggravation without giving a defendant notice of that possibility and allowing the defendant the opportunity to be heard. It was accepted by the Crown that no such opportunity was offered to the defendant in the present proceeding.
The Judge, in the course of his reasons for verdict, summarised the evidence of the police as follows:
The prosecution also called expert evidence from Detective Brevet Sergeant Lea. He was an officer with a great deal of experience and training in the investigation and analysis of the traffic in illicit drugs. He gave evidence of the ways methylamphetamine is commonly used, traded, packaged and priced. He also gave evidence of the commonly observed practices of those who traffic the drug, and what are commonly found as indicia that a person is trafficking, i.e. selling, methylamphetamine.
He said that methylamphetamine is sold by weight, with the common weights and the terminology associated with them being .1 of a gram comprising a “point” deal, 1 gram being called just that, 3.5 grams being an eighth of a gram comprising an “eight ball”, 28 grams an “ounce”, and 454 grams a “pound”.
He said typically at street level the drug is sold in .1 gram “points”. 1.75 grams could be sold, for example, and referred to, as half an “eight ball”. It is typically sold at street level in quite a diluted state, typically at around 10% purity.
He said the price can vary with many factors, including supply and demand and purity. At the time the accused was apprehended he said prices for the various weights located were as follows:
Half a “point” deal         $20-$50
A “point” deal             $50-$100
A “half gram”             $200-$500
A gram  $400-$800
A “half eight ball”         $600-$1200
[Emphasis added.]
It is to be accepted that the Judge’s conclusion that the defendant would be using the drugs partly for her personal use and partly for sale was established by the evidence.

The evidence, as recorded by the Judge, speaks about commonly observed practices of those who traffic in drugs and of typical street level drug trading. Counsel appearing for the Director of Public Prosecutions on the appeal acknowledged that street level dealing can include different levels of trafficking. It is significant that the prosecution did not seek a finding from the Judge that the defendant was trafficking at a level above the average street level dealer. The Judge was in error to proceed in the manner that he did without hearing from the defendant. The evidence before the Judge and his findings in his reasons for verdict did not justify the conclusion that it was established beyond reasonable doubt that the defendant was trafficking at a higher level than that of a street dealer.
The Judge commenced his sentencing remarks with a detailed account of the defendant’s prior offending. A reading of those remarks suggests that the Judge may have placed undue emphasis on that history. The defendant’s criminal antecedents precluded the leniency that might be afforded to a first offender. It is of relevance that the Judge referring to the earlier offending did not record that the sentences were imposed under a different sentencing regime. In respect of the earlier offending, the defendant faced a maximum sentence of 25 years’ imprisonment. By contrast, the present offending exposed the defendant to a maximum sentence of 10 years’ imprisonment in relation to each charge.
Having referred to the defendant’s prior offending and to the fact that the present offending was in breach of the defendant’s parole, the Judge remarked:
The submissions made on your behalf are, again, disconcertingly similar to those made on previous occasions. Ms Collins has again provided a reference. Other references were also provided.
These attest to the support you have given those persons and the positives they see in you. In January this year you were referred by way of a drug diversion notice to counselling at Uniting Communities who say you have engaged with them positively. You have also engaged with a group called Seeds of Affinity, a group that supports women released from prison in various ways.
Whilst the court hopes that you will live up to the optimism expressed in these documents, much of it has been said before and on those occasions you demonstrated no real commitment to giving up drugs or ceasing to associate with the drug world. Indeed, on your most recent parole release you took active steps to conceal your planned ongoing drug use from detection by freezing quantities of your own urine.
So while the court has given close consideration to the important issue of rehabilitation and the positives others have expressed, regrettably, there can be little confidence that you will ultimately seriously pursue it, nor that leniency or extended future supervision will be effective in achieving it. Indeed the opposite is likely, you having abused your parole release so comprehensively in the past.
That is a matter of great regret because the court always looks to see whether there are ways that the court can support a person to leave their drug past behind. Regrettably, you have abused every past opportunity given to you to do that.
Later in his remarks, the Judge made repeated references to what he viewed as the “relentless and ongoing” offending by the defendant.
The present offending occurred in July 2012. On 3 August 2012, the defendant was released on bail on strict conditions of home detention bail with electronic monitoring. Subject to three relatively minor matters, it appears that the defendant has avoided further offending for more than 16 months. Two of those matters occurred in November 2012, when the defendant breached her conditions of bail in regard to urine testing. On one occasion, the sample of urine was compromised, and on the other, alcohol was detected. The Court, in respect of both offences, convicted the defendant but discharged her without penalty. The remaining matter occurred more than 12 months later in January 2014 when the defendant was stopped by the police while driving and drugs were located in the vehicle. The defendant claimed that the drugs belonged to another person. The police determined that it was appropriate, rather than to charge the defendant with any offence, to refer her for assessment under the police drug diversion initiative.
A report before the Court from the drug and alcohol counsellor of the Police Drug Diversion Initiative Clinic at Port Adelaide Uniting Communities evidenced that the defendant was attending counselling sessions to support her in her commitment to remaining “clean”. The author wrote of the defendant’s positive progress and the availability of counselling and support as long as she continued with her path of rehabilitation.
Counsel for the defendant sought to place fresh evidence before this Court of a report received from Drug and Alcohol Services of South Australia of 30 November 2012 attesting to the defendant’s ongoing attendances for counselling and her positive attitude towards rehabilitation. In particular, the report speaks favourably of her prospects for rehabilitation and notes her need for continuing support in her efforts to continue with drug abstinence. I consider that it is in the interests of justice that this report be received.
Undoubtedly, the defendant’s offending is very serious. However, the evidence before the Court did suggest that the defendant had demonstrated a positive attitude toward rehabilitation. The evidence before the Judge established that during the period from July 2012 until sentencing, the defendant had made a real effort toward rehabilitation. It is significant that these matters were barely addressed in the sentencing remarks and, when alluded to, were referred to in entirely negative terms.
As noted above, the defendant spent a lengthy period on strict home detention bail and, subject to two minor breaches in November 2012 for which she has been dealt with, appears to have complied with the terms of bail. The defendant had undergone a significant deprivation of her liberty for a period of some 16 months. The Judge made no reference at all to this circumstance. Counsel for the Director submitted that this could be explained as the matter was only referred to briefly during sentencing submissions. In the ordinary course, one would expect an allowance to be made on account of such a lengthy term of strict home detention bail. In my view, the Judge did not give consideration to this issue and, in particular, failed to exercise his discretion to make an allowance on this account.
It is not uncommon for a judge when sentencing to make an allowance for a period of one third to one half of the time spent on home detention bail. In this case, an allowance in the order of six months would have been appropriate – that is, the otherwise sentence should have been reduced by six months.
As earlier noted, the Judge imposed a sentence of six years’ imprisonment in respect of the two counts. Although there were two counts, they involved one course of offending and, as such, it might be observed that the Judge imposed 60 per cent of the maximum term of imprisonment available. The Judge was then obliged to direct that this sentence be served on the completion of the period of unexpired parole of four years, seven months and 21 days. This led to a total term of imprisonment of 10 years, seven months and 21 days. There was nothing in the sentencing remarks to suggest that the Judge had regard to the principle of totality. In my view, regard should have been had to that principle as, on the face of it, an overall sentence of 10 years, seven months and 21 days could be viewed as crushing.
I am left in no doubt that when regard is had to all the above matters, the sentencing discretion of the Judge miscarried. The Judge’s finding concerning the level at which the defendant trafficked without according the defendant natural justice, the failure to have regard at all to time spent on home detention bail, the failure to have proper regard to the evidence of rehabilitation over a period of more than one year before sentencing and the failure to address totality are all errors of sentencing principle that have contributed to the imposition of a manifestly excessive sentence.
Conclusion
This Court, in my view, should resentence the defendant. The Court should recognise the prevalence of the use of methylamphetamine in the community and recognise the harm and suffering it causes. The Court should proceed on the basis that the defendant is not entitled to the leniency that would be afforded to a first offender. The Court should proceed on the basis that a portion of the drugs was for personal use and a portion for trafficking at a street dealer level, but that the exact proportions used for each purpose cannot be determined. There is a need for the sentence to, insofar as it may do so, deter others. However, it is to be recognised that the general deterrence of addicts is problematic. The Court should proceed in this case on the basis that the defendant has reached an age, namely 48 years, at which she is likely to have reconsidered the consequences of her earlier addiction and has taken steps toward rehabilitation. It would appear that her positive approach to rehabilitation has been recognised by the drug and alcohol counsellor of the Police Drug Diversion Initiative Clinic.
I would commence with a head sentence of five years’ imprisonment for the subject offending, but following reflection on the total period of imprisonment that the defendant would then face of nine years, seven months and 21 days, I would reach the conclusion that the overall term would be crushing. I would reduce the sentence to one of four years’ imprisonment. I would make an allowance of six months on account of the time spent on home detention bail, leading to a sentence of three years and six months. That sentence is to be served at the conclusion of the unexpired period of parole of four years, seven months and 21 days. As a consequence, the defendant would face a total period of imprisonment of eight years, one month and 21 days. When regard is had to the personal circumstances of the defendant and, in particular, to her evident prospects of rehabilitation, I would fix a non-parole period of four years.
STANLEY J: I agree that the appeal should be allowed and the sentence set aside. I agree with the sentence proposed by the Chief Justice, the orders he proposes and his reasons.

[2015] SASCFC 27

26 March 2015

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Sentencing

Appeal

Charge

Natural Justice

Procedural Fairness