R v Mallett

[2015] SASCFC 49

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MALLETT

[2015] SASCFC 49

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Stanley)

17 April 2015

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

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - GENERAL PRINCIPLES

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - RELEVANT MATTERS - DEGREE OF PARTICIPATION

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES

Appeal against sentence.

The appellant was convicted following a trial by jury of four counts of importing a border controlled precursor contrary to s 307.12 of the Criminal Code 1995 (Cth). On 30 January 2014, the sentencing Judge sentenced the appellant for these offences, and for the offences of assault, exceeding the speed limit, and two counts of driving while disqualified. The sentencing Judge also revoked three previous suspended sentences.

The appellant was sentenced to an effective head sentence of 10 years' imprisonment with a non-parole period of seven years. In addition, the sentencing Judge imposed a five year disqualification from holding or obtaining a driver's licence.

Whether the sentences and non-parole periods imposed were manifestly excessive. Whether the length of the period of licence disqualification was manifestly excessive.

Held per Kelly J; Blue J; Stanley J (allowing the appeal);

1.  It was a relevant consideration that much of the offending for which the sentencing Judge revoked the appellant’s suspended sentence bonds arose out of the same circumstances and during a period of time contemporaneous with the offences of importing a border controlled precursor. Moreover, at least two of the episodes of offending for which the appellant received suspended sentences were offences of a very similar character to the Commonwealth offences.

2.  The approach of the sentencing Judge miscarried with respect to the issue of totality.

3.  The sentence imposed was manifestly excessive. The effective head sentence of 10 years and the non-parole period of seven years was, in all of the circumstances, a crushing sentence.

4.  For the Commonwealth offending, the appellant is resentenced to imprisonment for five years and six months, with a non-parole period of two years and six months.  The head sentence and non-parole period for the Commonwealth offences is to commence at the expiration of the non-parole period of three years imposed by the learned sentencing Judge for the combined State offences.

5.  The appellant is resentenced to a period of licence disqualification of 18 months.

Criminal Code 1995 (Cth) s 307.12; Crimes Act 1914 (Cth) s 16B, s 19(1)(b), referred to.
R v Tranter (No 2); R v Compton (2014) 119 SASR 480, distinguished.

WORDS AND PHRASES CONSIDERED/DEFINED

"manifest excess", "totality"

R v MALLETT
[2015] SASCFC 49

Court of Criminal Appeal:   Kelly, Blue and Stanley JJ

KELLY J.

Introduction

1. This is an appeal against a sentence imposed in the District Court on 30 January 2014.  On that day the appellant, Sean Matthew Mallett, was sentenced for a number of offences against State and Commonwealth law to an effective total head sentence of 10 years imprisonment with a non-parole period of seven years, and disqualified from holding a driver’s licence for five years. The appellant appeals against that sentence on the ground that the sentence, non-parole period and licence disqualification period imposed were manifestly excessive.

2. On appeal the appellant’s main complaints are that the sentencing Judge fell into error in assessing the appellant’s prospects of rehabilitation as poor, and wrongly characterised the Commonwealth offending as at the upper end of the scale.  As a result, the appellant contends that the sentence and non-parole period arrived at by the Judge are manifestly excessive. 

   Background

   The Commonwealth Offending

3. The appellant was convicted by a jury of four counts of importing a marketable quantity of a border controlled precursor contrary to s 307.12 of the Criminal Code 1995 (Cth) (together, the “Commonwealth offences”). The appellant was acquitted of a fifth count.

4. The circumstances giving rise to those convictions were that between May 2010 and late December 2010, the appellant imported eight parcels from Canada and the United Kingdom containing tablet and capsule medications.

5. The amount of pure pseudoephedrine that could have been extracted from the eight parcels was a total of 404.34 grams.  This amount could produce a methylamphetamine yield of approximately 80 per cent (323.47 grams). 

6. At the time of the offending, methylamphetamine was selling for between $50 and $100 per point (a point being 0.1 grams).  On this calculation, 3,234.7 points could be sold for $161,735 to $323,470. 

7. There was evidence that the appellant was involved in the manufacture of pseudoephedrine in that glassware and other equipment commonly used in the production of illicit drugs were located at his address on 3 May 2010 (one month prior to the Commonwealth offending) and 31 May 2011 (six months after the Commonwealth offending) during the execution of search warrants.

8. Evidence from internet chat logs and a payment system set up by the appellant demonstrated that the importation was part of a business venture where financial reward was the goal.  The logs also demonstrated that the appellant was keen to substantially increase the volume of the drugs being imported for sale.

   The State Offending

9. On 30 January 2014 the appellant was also sentenced in respect of a number of State offences.  These offences included an assault at Parafield Gardens on 8 October 2012, exceeding the speed limit and driving while disqualified at North Adelaide on 4 June 2013, and driving while disqualified at Adelaide on 30 June 2013 (together, “the latter State offences”).

10. Prior to the Commonwealth offences and the latter State offences, the appellant was already the subject of three suspended sentence bonds in respect of three sets of State offences (together, “the earlier State offences”). Those bonds were breached as a result of the Commonwealth and the latter State offences.  The first bond had been entered into before a District Court Judge on 16 July 2010 in respect of an 18 month sentence with a 12 month non-parole period. The second had been entered into before the same District Court Judge on 16 February 2012 in respect of a two years and seven month sentence with a non‑parole period of two years.  The third bond had been entered into before another District Court Judge on 15 November 2012 in respect of a three month and 25 day sentence (reduced from six months for time served in custody).  Upon sentencing for the Commonwealth offences and the latter State offences, the sentencing Judge revoked all three suspended sentences and ordered that they be served cumulatively, resulting in sentences totalling four years, four months and 25 days, with a non-parole period of three years (together, the “revoked bond sentences”).

11. In respect of the latter State offences, for the assault by the appellant on 8 October 2012, and the offence of exceeding the speed limit on 4 June 2013, the sentencing Judge recorded convictions without penalty. For the first offence of driving while disqualified on 4 June 2013, the sentencing Judge sentenced the appellant to imprisonment for one month, to be served concurrently with the revoked bond sentences and imposed a licence disqualification for six months. For the second offence of driving while disqualified on 30 June 2013, the sentencing Judge sentenced the appellant to imprisonment for three months to be served concurrently with the sentence imposed for drive disqualified on 4 June 2013 and the revoked bond sentences, and imposed a licence disqualification for five years to run concurrently with the other period of disqualification.

12. The only complaint on appeal about the sentences imposed for the latter State offences is that the five year licence disqualification period is too high.  The appellant submits that the Judge should have taken into account that the appellant was required to serve a period of imprisonment as well as the licence disqualification when imposing that five year disqualification period. 

    The Judge’s Approach

13. For the Commonwealth offences, the sentencing Judge imposed a single penalty of seven years imprisonment and fixed a non-parole period of four years. 

14. The effect of the Judge’s sentencing was that the sentences for the earlier and latter State offences (together, the “combined State sentences”), totalled four years, four months and 25 days, and commenced on 23 July 2013. The non‑parole period for the combined State sentences also commenced from that date. As a consequence of s 19(1)(b) of the Crimes Act 1914 (Cth) (“the Crimes Act”), the head sentence and the non-parole period imposed in respect of the Commonwealth offences could not commence until the expiration of the combined State sentences non-parole period, which date was 23 July 2016. Consistent with this, the Judge ordered that the Commonwealth head sentence of seven years and the non-parole period fixed at four years were to commence at the expiration of the combined State sentences non-parole period.

15. This caused an overlap of the head sentences for the combined State sentences and the Commonwealth offences of one year, four months and 25 days, due to the Commonwealth head sentence commencing at the end of the non‑parole period, not the head sentence, imposed for the combined State offences.

16. When the overall effect of that sentencing is analysed, it can be seen that the Judge imposed an effective head sentence of 10 years and an effective non‑parole period of seven years. This amounts to a ratio of 70 per cent of the head sentence.

17. His Honour addressed the issue of totality.  At the conclusion of the sentencing remarks his Honour stated:

    I have considered the aspect of totality, both for the State sentences and the Commonwealth sentence taken individually and at the end of the whole sentencing process and packaging. I do not see any sufficient reason to make any reduction on account of totality.

18. In addition, his Honour imposed a disqualification from holding or obtaining a driver’s licence for five years, commencing upon the appellant’s release from custody.

    Analysis

19. There were a number of complexities which needed to be grappled with in sentencing the appellant. 

20. Those complexities were further compounded by the fact that the trial of the appellant for some offences did not take place until well after he was dealt with for some of the later offences, which meant that none of the District Court Judges who sentenced the appellant during the relevant period had the benefit of the whole picture.  That is nobody’s fault and is not intended as a criticism. Nevertheless, it was one of the significant complexities facing the sentencing Judge when it came time to sentence the appellant for the Commonwealth offences. 

21. Although the Commonwealth offending for which the appellant had to be sentenced involved separate incursions into criminal offending, it cannot be denied that the appellant’s offending over the 10 months from March 2010 to January 2011 arose out of substantially the same factual matrix.  Further, the Commonwealth offences were committed within a timeframe which was, broadly speaking, contemporaneous with the commission of the bulk of the State offences. 

22. That is demonstrated in the chronology set out below:

    115 August 2008 – aggravated serious criminal trespass in a place of residence, giving rise to the first suspended sentence;

    25 March 2010 – possess a controlled drug for supply (methylamphetamine), cultivate not more than prescribed number of cannabis plants, and possess prescribed equipment, giving rise to the second suspended sentence;

    331 May 2010 to 22 June 2010 – importing a marketable quantity of a border controlled precursor, namely tablet medication containing approximately 62 grams of pseudoephedrine, being the first count of the Commonwealth offences;

    46 August 2010 to 9 September 2010 – importing a marketable quantity of a border controlled precursor, namely capsules containing approximately 6.4 grams of pseudoephedrine, being the second count of the Commonwealth offences;

    58 October 2010 to 7 November 2010 – importing a marketable quantity of a border controlled precursor, namely tablets containing approximately 118 grams of pseudoephedrine, being the third count of the Commonwealth offences;

    68 October 2010 to 26 December 2010 – importing a marketable quantity of a border controlled precursor, namely tablets containing approximately 216 grams of pseudoephedrine, being the fourth count of the Commonwealth offences;

    718 January 2011 – possess a prescribed quantity of a controlled precursor and possess a controlled drug, giving rise to the third suspended sentence;

    88 October 2012 – assault;

    94 June 2013 – exceed speed and drive disqualified; and

    1030 June 2013 – drive disqualified.

23. The point for present purposes is that much of the offending in respect of which the Judge revoked the bonds and imposed custodial sentences arose out of the same circumstances and during a period of time contemporaneous with the Commonwealth offending.  Moreover, at least two of the episodes of that offending, being the offences of possessing methylamphetamine and cultivating cannabis on 5 March 2010, and also the offences of possession of a controlled precursor and possession of a controlled drug on 18 January 2011, were offences of a very similar character to the Commonwealth offences.

24. For each of the latter State offences, the Judge imposed minimal fines or penalties, and made those sentences concurrent with the revoked bond sentences. 

25. The Judge was required, when sentencing for the Commonwealth offences, to have regard to the revoked bond sentences.[1] 

    [1]    Crimes Act 1914 (Cth) s 16B.

26. He was also required to take into account the principle of totality.

27. In assessing whether there has been any error in the approach of the Judge to the question of totality, it needs to be borne in mind that by virtue of the sentence imposed, the appellant is now required to serve a total effective head sentence of 10 years, with a non-parole period of seven years.  Prior to this period of offending, the appellant had never served any significant term of imprisonment.  Nor prior to this same period had he been involved in any really significant transgression of the criminal law. 

28. While (apart from the complaint concerning the imposition of the five year licence disqualification) there was no complaint, nor could there be, that the combined State sentences were manifestly excessive, it is nevertheless an important consideration that two of the revoked bond offences involved very similar offending to the Commonwealth offences and were committed in a similar timeframe.

29. Had one Judge sentenced for all of those offences, it is likely that there would have been a degree of concurrency between the sentences for the revoked bond offending of a similar kind and the sentences for the Commonwealth offences of a similar kind, especially in respect of those committed in the same time period.  In this respect, I accept the appellant’s submission that this offending can be characterised as effectively one episode arising out of the same circumstances.  For these reasons, the effective head sentence of 10 years and the non-parole period of seven years which represents 70 per cent of that head sentence is, in all of the circumstances, a crushing sentence.  

30. For these reasons, the approach of the Judge with respect to the issue of totality has miscarried, and it is necessary for this Court to sentence afresh.

    Resentencing

31. In resentencing, the principle of totality can properly be taken into account by lowering the starting point for the head sentence for the Commonwealth offences.

32. During argument on appeal, the Court was referred to comparative sentencing statistics.  Noting the limitations of using such statistics, it is nevertheless a broadly instructive exercise in determining an appropriate starting point for the head sentences for the Commonwealth offences. In R v Tranter (No 2); R v Compton,[2] the appellant had been found guilty of attempting to import a marketable quantity of a border controlled precursor, after he collected a crate containing substituted pseudoephedrine, transported that crate, and removed the substituted pseudoephedrine. He appealed to this Court against his sentence of five years imprisonment with a non-parole period of three years, which sentence was set aside, and a head sentence of four years and six months imprisonment with a non-parole period of two years and nine months imposed.  However the circumstances here are relevantly different to the circumstances confronting the Court in Tranter.  Here the appellant’s offending was of a more extensive nature, as he was engaged in multiple aspects of importation, not only in conduct which occurred after the substance had arrived in Australia and been substituted.

    [2] (2014) 119 SASR 480.

33. For these reasons the appellant’s offending is properly to be characterised as in a serious category of offending of this kind.  I would impose a head sentence of five years and six months in respect of the Commonwealth offences.  Recognising that, as the appellant’s counsel submitted, the appellant’s prospects of rehabilitation are not necessarily as bleak as the sentencing Judge seems to have thought, I would impose a non-parole period of two years and six months. 

34. In relation to the earlier and latter State offences, consistent with the approach of the sentencing Judge, I would direct that there be a conviction recorded but no further penalty imposed for the offences of assault and exceeding the speed limit. I would also direct that there be no change to the head sentences or non-parole periods imposed for each of the revoked bond sentences, or the head sentences imposed for each of the latter State offences. I would order that the sentences imposed for the revoked bond sentences be served cumulatively. I would order that the sentences for the latter State offences be served concurrently with each other, and also with the revoked bond sentences.

    Licence disqualification

35. I turn to consider the complaint concerning the imposition of a five year period of disqualification from holding or obtaining a driver’s licence.  The first observation I make is that, although custodial sentences were imposed for both counts of driving disqualified, those sentences were to be served concurrently with the revoked bond sentences.  The appellant was therefore not required to serve any additional term of imprisonment in respect of that offending.  In my view an order disqualifying the appellant from holding a licence for some period of time was appropriate particularly against the background of the appellant’s past criminal history which included not only that he has twice defied a Court order of disqualification but that he has also breached three separate suspended sentence bonds. 

36. However, I accept that in all of the circumstances a period of five years is unduly harsh.  In my view, requiring the appellant to serve an 18 month period of disqualification would properly reflect the need to provide adequate deterrence given that the appellant has in the past exhibited disregard if not outright contempt for State laws.

    Conclusion

1. I would set aside the sentence for the Commonwealth offending.  I would resentence the appellant to imprisonment for five years and six months and fix a non-parole period of two years and six months. 

2. I would direct that the head sentence and the non-parole period for the Commonwealth offences commence at the expiration of the non-parole period of three years imposed for the combined State offences, consistent with s 19(1)(b) of the Crimes Act.

3. I would set aside the licence disqualification for five years.  I would direct that the appellant be disqualified from holding or obtaining a driver’s licence for 18 months to commence upon the appellant’s release from custody.

4. BLUE J:                I agree.

5. STANLEY J:        I would allow the appeal.  I agree with the orders proposed by Kelly J and with her Honour’s reasons.