R v Levy

Case [2015] SASCFC 27

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…

Continue reading R v Levy

Sign in free to access the full text

Details
AGLC
R v Levy [2015] SASCFC 27
Case
[2015] SASCFC 27
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against sentence by the defendant, R v Levy, before the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Gray and Stanley JJ. The dispute arose from the defendant's conviction for trafficking methylamphetamine. Police discovered approximately 10.64 grams of a substance containing 5.2 grams of pure methylamphetamine, packaged in 15 separate bags, along with scales, syringes, and a significant amount of cash at the defendant's residence. The potential street value of the drugs, if cut, was estimated to be up to $42,500.00.

The legal issues before the court were whether the sentencing judge had erred in their discretion, leading to a manifestly excessive sentence. Specifically, the court considered whether the judge had failed to afford the defendant natural justice in assessing the level of trafficking, neglected to account for time spent on home detention bail, inadequately considered evidence of rehabilitation, and failed to address the totality of the sentence in light of the defendant's extensive prior drug trafficking history.

The court found that the sentencing discretion had miscarried due to several errors of principle. It acknowledged the prevalence and harm of methylamphetamine use and the need for general deterrence, but also recognised that general deterrence of addicts is problematic. The court considered the defendant's age (48 years) and her apparent steps towards rehabilitation, including positive recognition from a drug and alcohol counsellor. The Chief Justice proposed a head sentence of five years, but upon reflection of the cumulative effect with prior sentences, reduced it to four years. An allowance of six months was made for time spent on home detention bail, resulting in a sentence of three years and six months, to be served consecutively to an unexpired parole period. A non-parole period of four years was fixed, taking into account the defendant's personal circumstances and rehabilitation prospects. Stanley J agreed with the Chief Justice's reasoning and proposed sentence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.