R v MCGLYNN

[2017] SASCFC 51

Supreme Court of South Australia

(Court of Criminal Appeal)

R v MCGLYNN

[2017] SASCFC 51

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Auxiliary Justice Chivell)

18 May 2017

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  - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

Appeal against sentence – appellant was sentenced in the District Court on 9 March 2017 for one count of trafficking a controlled drug and one count of supplying a prescription medication – sentencing Judge imposed a single sentence of 19 months imprisonment with a non-parole period of 10 months – whether sentence manifestly excessive – whether Judge erred in fact.

On appeal the Director of Public Prosecutions conceded two errors of fact necessitating appellate intervention.

Held per Kelly J (Stanley J and Chivell AJ agreeing):

1.      The appeal is allowed.

2.      The sentence of the District Court Judge is set aside.

3.      The matter is remitted to the District Court for further hearing on Friday 19 May 2017 before a different Judge.

Controlled Substances Act 1984 (SA) s 32(3), s 18(1c); Criminal law (Sentencing) Act 1988 (SA) s 18A, referred to.

R v MCGLYNN
[2017] SASCFC 51

Court of Criminal Appeal:   Kelly, Stanley JJ and Chivell AJ

KELLY J.

1. The appellant appeals a sentence imposed by a District Court Judge on 9 March 2017 for one count of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) and one count of supplying a prescription medication, namely Valium, contrary to s 18(1c) of the same Act.

2. The Judge imposed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) of 19 months imprisonment with a non-parole period of 10 months.

3. The appellant now appeals on two grounds.  First that the sentence is manifestly excessive, and the second ground, a complaint that the learned sentencing Judge erred in two material respects on the facts. 

4. The appellant submitted that in particular it was not open to the Judge to conclude beyond reasonable doubt that a tick list and four mobile phones, together with other indicia of sale found in a house that the appellant shared with others, belonged to the appellant.  The appellant also submitted that since the prosecution did not allege that the appellant was anything other than a broker between a dealer and third parties, that it was not open to the sentencing Judge to sentence him on the basis that he was part of a broader and more sophisticated operation.

5. The appellant was arrested as a result of a police operation in the Riverland focused on the distribution of controlled drugs throughout the Riverland between January and December 2015. 

6. On 2 July 2015 police commenced monitoring telecommunications made from two mobile phones used by the appellant and a mobile phone used by an associate of his named Mr Threlfall.  The prosecution alleged that the appellant’s offending was part of an ongoing course of conduct of prior dealing over a period of at least three weeks as supported by the intercepted telecommunications between the appellant and Mr Threlfall and other third parties. 

7. When sentencing the learned sentencing Judge observed:

   This offending was part of a course of conduct of dealing spanning over at least three weeks prior.  Your role in the enterprise was that of a broker.  Your counsel submitted that you were a casual user of methamphetamine at the time of the offending and would refer friends to your dealer in exchange for small amounts of methylamphetamine as payment for facilitating the transactions.  I am unable to completely accept this submission. The tick list and the four mobile phones are sufficiently obvious indicia of the nature of your offending which is far broader and more sophisticated than these submissions would reflect.

8. The Judge then noted events which occurred since the arrest of the appellant.  The Judge went on:

   Although your counsel submits, and I accept, that your offending is at the lower end of the scale, it is nonetheless serious.  The sale of illicit substances is condemned by the community.  It is now very well known that drugs such as methamphetamine cause extreme social harm in the community and that is particularly so in small rural communities like those in which you reside.

9. After noting his antecedent history, which included a relevant prior conviction for selling a prescription drug and other convictions for offences of violence and dishonesty, and noting that the appellant had failed to comply with bail conditions by returning positive urine tests for methamphetamine and amphetamines, his Honour determined that an immediate custodial sentence was warranted. 

10. The starting point for the head sentence was 30 months which the Judge reduced to 27 months.  After applying credit for the time already spent in custody and some time allowed for home detention bail, he reduced the head sentence to 19 months and set a non-parole period of 10 months.  The Judge found no good reason to suspend the sentence of imprisonment. 

11. Upon the hearing of this appeal the Director of Public Prosecutions conceded that the Judge made two factual errors that necessitate the setting aside of the sentence.  The first error was said to be in the finding of the Judge that the appellant’s role was broader than that submitted by the appellant and accepted by the prosecution.  In so finding, it was accepted by the Director, that in the absence of such a challenge it was incumbent on the Judge to have given some forewarning to the appellant that his version may not be accepted, so the appellant might have had the opportunity to make an informed decision whether to support his version by giving sworn evidence or making further submissions on the issue that concerned the Judge. 

12. The second error is said to be the use that the Judge made of the finding of mobile phones and a tick list in a house occupied by the appellant in December 2015.  His Honour appears to have used that finding in reaching the conclusion that the appellant’s role was broader than that submitted by the appellant’s counsel and not disputed by the Director. 

13. The Director concedes that the evidence concerning the finding of the mobile phones and tick list was not capable of supporting an inference beyond reasonable doubt that they belonged to the appellant.

14. I would add, with the benefit of hindsight it is obvious how that error occurred.  For the purpose of sentencing the Director tendered a document entitled “Crown Factual Summary” in which the following paragraph appeared:

    Police searched the property and located digital scales, empty plastic deal bags, a tick list, four mobile phones and equipment used for the consumption of controlled drugs.

15. During submissions neither party referred to that paragraph again.  In these circumstances, in the absence of any further reference to that material, it is hardly surprising that the sentencing Judge relied upon it. 

16. Nevertheless in light of these matters it does appear that there has been an error which justifies the intervention of this Court. 

17. For these reasons I would allow the appeal and set aside the sentence of the Judge.

18. However in light of the fact that there is no certainty as to whether the appellant’s version will be accepted, in which case there will need to be a disputed fact hearing, I consider that the matter ought to be remitted to the District Court for submissions and sentence before a different Judge.  It will be a matter for the parties how they choose to conduct the proceedings, in particular what facts are submitted as relevant for the purpose of sentencing.  It will of course be for the Judge presiding to make up his or her own mind about the matter. 

19. It is for these reasons that on the hearing of the appeal the Court made the following orders:

    1The appeal is allowed.

    2The sentence of the District Court Judge is set aside.

    3The matter is remitted to the District Court for further hearing on Friday, 19 May 2017 before a different Judge.

20. STANLEY J:        I agree with the orders made on 12 May 2017 and the reasons of Kelly J for making those orders.

21. CHIVELL AJ:     I agree with the reasons of Kelly J for the orders made on 12 May 2017.