SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v MCINTOSH
[2017] SASCFC 87
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Hinton)
27 July 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - DOUBLE JEOPARDY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
Appeal against sentence imposed by a Judge of the District Court for 32 counts of trafficking in a controlled drug, namely methamphetamine.
In committing the trafficking offences the respondent contravened the terms of a bond entered into in July 2015. Compliance with the bond conditioned the suspension of a sentence of nine months imprisonment imposed on 21 July 2015 for one count of taking part in the sale of a controlled drug. Upon the respondent pleading guilty to the trafficking offences, an application to enforce the breached bond was made.
The Judge revoked suspension of the sentence imposed on 21 July 2015 and ordered it be carried into effect, to be served cumulatively with a period of imprisonment of four years and three months for the trafficking offences. A non-parole period of two years and nine months was set.
The applicant submitted that the sentence was manifestly inadequate and so far below the appropriate sentence range as to warrant intervention.
Held: Permission to appeal refused.
1. Having regard to the maximum penalty, the fact that the respondent is a persistent and recidivist trafficker, to his non-response to leniency in the past, the fact that his offending was part of an ongoing commercial enterprise not voluntarily ceased, the ordinary range for the street level trafficker and the scourge that methamphetamine has brought to the community, the Judge’s starting point of six years imprisonment was manifestly inadequate.
2. A starting point of eight years imprisonment was warranted.
3. However, there does not exist strong reasons of public policy outweighing the public interest in the respondent not being twice vexed.
Criminal Law (Sentencing) Act 1988 (SA) 58; Criminal Law Consolidation Act 1935 (SA) 340, 352; Controlled Substances Act 1984 (SA) 32, 44, referred to.
R v Young (2016) 126 SASR 41, applied.
Everett v The Queen (1994) 181 CLR 295; Green v The Queen (2011) 244 CLR 462; CMB v Attorney-General (NSW) (2015) 256 CLR 346; R v Osenkowski (1982) 30 SASR 212; Griffiths v The Queen (1977) 137 CLR 293; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Pearce v The Queen (1998) 194 CLR 610; Green v United States 355 US 184 (1957); Cullen v The King [1949] SCR 658; R v Koch [2015] SASCFC 31; R v Kong (2013) 115 SASR 425; House v…
Continue reading R v McIntosh
Sign in free to access the full text
- AGLC
- R v McIntosh [2017] SASCFC 87
- Case
- [2017] SASCFC 87
- Decision Date
CaseChat Overview and Summary
The central legal issue before the appellate court was whether the sentence imposed by the sentencing judge was so lenient as to be outside the bounds of reasonable exercise of discretion, thereby justifying intervention on a Crown appeal. This required the court to consider the principles governing Crown appeals against sentence, particularly in the context of drug trafficking offences and the sentencing considerations outlined in cases such as *R v Young*. The court also had to consider the principle of double jeopardy and whether there were strong public policy reasons to outweigh the interest in not vexing the respondent twice.
The court considered the respondent's trafficking activities, noting that while he was a user of methylamphetamine, his supply of 135 grams over 56 days indicated a level of offending beyond that of an ordinary street-level dealer whose primary motivation is to fund their own addiction. The court acknowledged that the respondent was part of an ongoing commercial network and had the capacity to supply larger amounts. However, the court also noted that the quantities traded did not definitively place him in the category of a mid-level dealer, and that the characterisation of such categories could be unhelpful. Crucially, the respondent was involved in this enterprise while on a suspended sentence bond for similar offending, having been warned that he was being given a last chance. Despite these factors, the court ultimately refused permission to appeal, finding that there were strong reasons of public policy outweighing the public interest in the respondent not being twice vexed, particularly given the delay in sentencing.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: PEEK J, NICHOLSON J, HINTON J
Lastly, in R v Young the Chief Justice alluded to the persistent and recidivist street dealer and the mid-level dealer. The Chief Justice said:[28]There will be relatively greater scope for rehabilitation in the case of a first offender [street level] dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders. Sentences approaching the 10 year maximum for the base trafficking offence must be reserved for those middle order dealers, and persistent or recidivist street dealers. [28] (2016) 126 SASR 41 at [67]-[68].Consideration The respondent supplied 135 grams of methamphetamine over 56 days. He is a persistent and recidivist trafficker. His trafficking cannot be characterised as that of an ordinary street level dealer. The quantities that he was able to supply and the revenue generated makes this plain. As a supplier his culpability is greater, and in my view considerably so, than that of the street level dealer who sells drugs to support his own addiction. As a corollary of this, his contribution to the harm methamphetamine causes to individuals and the community is greater. The sentence imposed upon him must deter others who would do the same in addition to adequately punishing the respondent for what he has done. It is difficult to say that the respondent is or borders on being a mid-level dealer. Certainly he was able to supply amounts greater than that expected of a street dealer. But having regard to the quantity threshold for trafficking (greater than 2 gms mixed but less than 500 gms), the quantities in which he traded do not allow one to conclude that he was a mid-level dealer. In fact, the characterisation of a dealer as mid-level is probably unhelpful. The category is of uncertain definition. What can be said is that he was part of an ongoing commercial network in which he frequently sold methamphetamine in street deal quantities but had the capacity to supply, and did supply, larger amounts on request. It may also be said that, but for the action of the police, the respondent would have continued trafficking. Whilst the street value of the drugs sold was not inconsiderable, there is nothing before this Court to indicate the extent to which the respondent benefitted. His motive was undoubtedly commercial, though not exclusively. He was himself a user. Specific deterrence attracted significant weight in this case. The respondent involved himself in the enterprise despite being on a suspended sentence bond for offending of the same kind. More than that, when he entered that bond in 2015 he was informed by the Judge that he was being given a last chance. It cannot be said that the respondent was left in any doubt as to the consequences that would result should he return to the drug trade. At that time, his counsel sought leniency, putting to the Court that his offending arose in circumstances where he had suffered a debilitating work injury requiring surgery and leaving him with considerable ongoing pain, that his longstanding relationship had broken down, that he had two young daughters and that prior to his injury he had lived a largely law abiding and productive life. Those same mitigating factors were put to the sentencing Judge and, indeed, to this Court.