R v McIntosh
[2017] SASCFC 87
•27 July 2017
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 The King (1936) 55 CLR 499; R v Nemer (2003) 87 SASR 168; R v Mangelsdorf (1995) 66 SASR 60; Adams v The Queen (2008) 234 CLR 143; Police v Cadd (1997) 69 SASR 150; R v King (1988) 48 SASR 555; R v Pham (2015) 256 CLR 550; Markarian v The Queen (2005) 228 CLR 357; R v Hicks (1987) 45 SASR 270, considered.
R v MCINTOSH
[2017] SASCFC 87Court of Criminal Appeal: Peek, Nicholson and Hinton JJ
PEEK J. I would refuse permission to appeal. I agree with the reasons of Hinton J.
NICHOLSON J. I would refuse permission to appeal and I agree with the reasons given by Hinton J.
HINTON J.
Introduction
The respondent in this matter, Hayden McIntosh, pleaded guilty in the Magistrates Court to 32 counts of trafficking in a controlled drug (the trafficking offences). Those offences were committed between 16 April 2016 and 1 June 2016.
In committing the trafficking offences the respondent contravened the terms of a bond he entered into on 21 July 2015 as varied on 9 March 2016. Compliance with the terms of 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.
Consequent upon the respondent pleading guilty to the trafficking offences, the Director of Public Prosecutions applied for the enforcement of the breached bond.
The respondent was sentenced in the District Court on 30 March 2017. In addition to sentencing the respondent for the trafficking offences and dealing with the application to enforce the bond, the sentencing Judge was also required to sentence the respondent for the unrelated offence of possessing prescribed equipment which was called up from the Magistrates Court in order that all of the respondent’s matters may be finalised.
Pursuant to s 58(1)(d) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) the Judge revoked the suspension of the sentence imposed on 21 July 2015 and ordered that it be carried into effect. He then sentenced the respondent to a period of imprisonment of four years and three months for the trafficking offences to be served cumulative upon the revoked suspended sentence. The judge dismissed the possess prescribed equipment charge without conviction. The consequence of the orders made was that a total head sentence of five years imprisonment was imposed upon the respondent. In relation to that head sentence the Judge imposed a non-parole period of two years and nine months imprisonment. The head sentence and non-parole period were ordered to commence on 9 June 2016, the date that the respondent was taken into custody.
The Director seeks permission to appeal against the sentence imposed for the trafficking offences pursuant to s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). He contends that the sentence and non-parole period imposed in relation to the trafficking offences were not only manifestly inadequate, but so far below the appropriate sentence range as to warrant intervention by this Court.
I would refuse permission to appeal. My reasons follow.
Crown appeals against sentence
The principles governing consideration by this Court of a Crown appeal against sentence such as that provided for by 352(1)(a)(iii) CLCA have long been settled by the High Court. In Everett v The Queen (Everett) Brennan, Deane, Dawson and Gaudron JJ said:[1]
Section 401(2)(c) of the Tasmanian Criminal Code confers upon the Court of Criminal Appeal jurisdiction to grant leave to the Attorney-General to appeal against sentence. Such a jurisdiction has become commonplace throughout this country and the common law world. Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified”. In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick C.J. in Griffiths v. The Queen:
“an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick C.J. saw as constituting “error in point of principle”.
(footnotes omitted).
[1] (1994) 181 CLR 295 at 299-300.
These principles have recently been reaffirmed by the High Court.[2]
[2] Green v The Queen (2011) 244 CLR 462; CMB v Attorney-General (NSW) (2015) 256 CLR 346.
Prior to Everett, King CJ in R v Osenkowski (Osenkowski),[3] like Barwick CJ in Griffiths v The Queen (Griffiths),[4] gave content to the “rare and exceptional” standard. He said:[5]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
[3] (1982) 30 SASR 212.
[4] (1977) 137 CLR 293 at 310, see also at 327 (Jacobs J, Stephen J agreeing), at 329-330 (Murphy J).
[5] R v Osenkowski (1982) 30 SASR 212 at 212-213.
The rationale underpinning the “rare and exceptional” test was identified in Lacey v Attorney-General (Qld) by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ who said:[6]
The exceptional character of the Crown appeal against sentence had been recognised by the Council of Judges in England in its recommendations to the Lord Chancellor in 1892. That character was acknowledged in Williams [No 2] by Dixon J, who described such appeals as “a marked departure from the principles theretofore governing the exercise of penal jurisdiction”. In Griffiths, Barwick CJ said that an appeal by the Attorney-General: “should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.” That statement was endorsed by Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen. In endorsing it, their Honours expressly included in the notion of a “matter of principle” manifest inadequacy or inconsistency in sentencing standards.
The treatment of Crown appeals against sentence as “exceptional” indicated a judicial concern that criminal statutes should not be construed so as to facilitate the erosion of common law protection against double jeopardy. This was reflective of a wider resistance to the construction of statutes, absent clear language, so as to infringe upon fundamental common law principles, rights and freedoms. …
The influence, on Crown appeals against sentence, of the common law rule against double jeopardy was reflected in the observation by Deane J in Rohde v Director of Public Prosecutionsthat such an appeal “infringes the essential rationale of the traditional common law rule against double jeopardy in the administration of criminal justice in a manner comparable to a conferral of a prosecution right of appeal against a trial acquittal”. …
(footnotes omitted).
[6] (2011) 242 CLR 573 at [16]-[18].
As a statement of a fundamental common law freedom the rule against double jeopardy is jealously guarded by the judiciary. In Pearce v The Queen, McHugh, Hayne and Callinan JJ quoted with approval Black J’s succinct statement of the content of the fundamental freedom in Green v United States.[7] Black J said:[8]
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
[7] (1998) 194 CLR 610 at [10].
[8] Green v United States 355 US 184 (1957) at 187-188.
To similar effect in Cullen v The King, Rand J, sitting in the Supreme Court of Canada, articulated the nature of that fundamental freedom as follows:[9]
At the foundation of the criminal law lies the cardinal principle that no man shall be placed in jeopardy twice for the same matter and the reasons underlying that principle are grounded in deep social instincts. It is the supreme invasion of the rights of an individual to subject him by the physical power of the community to a test which may mean the loss of his liberty or his life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy…
[9] Cullen v The King [1949] SCR 658 at 668.
Accepting this, the content of the rare and exceptional test as articulated by King CJ in Osenkowski and Barwick CJ in Griffiths exemplify categories of case where strong reasons of public policy outweigh the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State.[10] Thus, on a Crown appeal against sentence the Director must establish error in the House v The King[11] sense and, in addition, persuade the Court that there exists such strong reasons of public policy which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed. Only then will permission be granted.[12]
[10] R v Koch [2015] SASCFC 31 at [23] (Parker J, Kourakis CJ and Bampton J agreeing).
[11] (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
[12] It is to be noted that s 340 of the Criminal Law Consolidation Act1935 (SA) does not apply to the question of permission to appeal; see R v Kong (2013) 115 SASR 425 and the cases referred to therein.
In this case the Director does not assert that any error of principle has been committed. Rather, he contends that the head sentence and non-parole period imposed were manifestly inadequate. So inadequate, he contends that “to allow the sentence to stand would shake public confidence in the administration of justice”.[13]
[13] R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ); see also R v Kong (2013) 115 SASR 425 at [49] (The Court); Green v The Queen (2011) 244 CLR 462 at [42] (French CJ, Crennan and Kiefel JJ).
The offending
On 14 April 2016 police began an investigation into the drug trafficking activities of the respondent. The investigation was part of a broader operation conducted by police into the illicit trade in methamphetamine in Mount Gambier. The Court was advised that that operation resulted in the arrest of 10 people who occupied different levels in the hierarchy of a particular distribution network.
Between 14 April 2016 and 9 June 2016, a 56 day period, police intercepted telephone calls made and received by the respondent on his mobile telephone. The trafficking offences with which the respondent was charged reflect the sale of methamphetamine arranged by the respondent over the phone. The physical transaction would take place at the respondent’s home or a nearby bus stop. On occasions the respondent accepted sexual services in payment for methamphetamine.
The respondent used a code in his conversations with his customers. In one call with an undercover operative the respondent advised the operative not to disclose information over the phone, but to use code words for the quantity desired. In other calls he advised callers that he did not discuss things on the phone. The intercepts further revealed that the respondent had approximately 20 ongoing customers and was able to engage others to assist him in his business, in particular, to travel frequently to Adelaide to purchase drugs for him.
The table below summarises the trafficking offences to which the respondent pleaded guilty.
22 Count
23 Date
24 Quantity and/or Price (if known)
25 1.
26 16/4/16
27 3.5g of methamphetamine
28 2.
29 19/4/16
30 3.5g of methamphetamine for $1000
31 3.
32 23/4/16
33 1.75g of methamphetamine for $500
34 4.
35 24/4/16 to 27/4/16
36 28g (1 ounce) of methamphetamine
37 5.
38 25/4/16 to 28/4/16
39 1.75g of methamphetamine
40 6.
41 27/4/16
42 1.75g of methamphetamine for $550
43 7.
44 27/4/16 to 30/4/16
45 3.25g of methamphetamine for $800
46 8.
47 2/5/16
48 0.5g of methamphetamine for $200
49 9.
50 6/5/16
51 1.75g of methamphetamine
52 10.
53 8/5/16
54 3.5g of methamphetamine
55 11.
56 9/5/16
57 Unknown quantity for sexual services
58 12.
59 9/5/16
60 0.25g of methamphetamine on credit
61 13.
62 10/5/16
63 1.75g of methamphetamine
64 14.
65 10/5/16
66 Methamphetamine for $150
67 15.
68 9/5/16 to 12/5/16
69 3.5g of methamphetamine
70 16.
71 11/5/16
72 0.5g of methamphetamine for $250
73 17.
74 12/5/16
75 1.75g of methamphetamine
76 18.
77 12/5/16
78 0.5g of methamphetamine for $150
79 19.
80 11/15/16 to 14/5/16
81 0.2g of methamphetamine for $200
82 20.
83 13/5/16
84 3.5g of methamphetamine
85 21.
86 13/5/16
87 28g of methamphetamine (1 ounce)
88 22.
89 19/5/16
90 3.5g of methamphetamine
91 23.
92 21/5/16
93 0.5g of methamphetamine
94 24.
95 23/5/16
96 1.75g of methamphetamine for 2 ounces of cannabis
97 25.
98 25/5/16
99 0.1g of methamphetamine
100 26.
101 24/5/16 to 27/5/16
102 14g of methamphetamine (1/2 ounce) for $1500
103 27.
104 26/5/16
105 1.75g of methamphetamine for $550
106 28.
107 26/5/16 to 29/5/16
108 14g (1/2 ounce) of methamphetamine
109 29.
110 27/5/16
111 0.1g of methamphetamine on credit
112 30.
113 31/5/16
114 7g of methamphetamine for $1500.
115 31.
116 31/5/16
117 3.13g of methamphetamine
118 32.
119 1/6/16
120 0.1g of methamphetamine for $100
The telephone intercepts indicated that the respondent’s trade in drugs was established prior to the commission of the first offence with which he was charged. That his offending was part of an ongoing commercial enterprise was also borne out by “tick lists” located by police upon searching his home.
The dollar amount obtained by the respondent from selling the methamphetamine was between $20,000 and $30,000. If on-sold in “point” form, between $50,000 and $100,000 could have been realised. The sums of money recorded in the two “tick lists” totalled approximately $52,900.
The respondent’s personal circumstances
At the time he was sentenced the respondent was 43 years of age. He was born in Portland but has lived in Mount Gambier since he was very young. He has two young daughters by a relationship that ended approximately five to six years ago. His parents also live in Mount Gambier. They do not agree with his offending, but are committed to supporting him. Since his incarceration his parents and daughters have visited him regularly.
The sentencing Judge was provided with a report prepared in September 2014 by Dr W B Blakemore, a psychiatrist. As will be seen below, this report had previously been provided to the District Court upon sentencing the respondent in 2015.
The report tells of the respondent having suffered a significant work injury in 2011 that required surgery in 2012 and has left him with significant ongoing back pain. He has been unable to return to work and could do little around home. The report also reveals that it was after sustaining the back injury and going from being a very active person to doing little, that the respondent’s long term relationship broke down. It is against this background that the respondent was diagnosed by Dr Blakemore as suffering a chronic adjustment disorder with depressed mood.
As at the time of the report the respondent did not take any prescription medication for his pain. He was, however, a chronic user of cannabis and had used that drug for over 25 years. Cannabis did help relax him and with the pain he experienced. During that same period he had used methamphetamine from time to time. The report indicates that the respondent was consulting a psychiatrist, but who and for how long he had the benefit of a psychiatrist’s input we do not know.
The respondent left school in year 10. Until injuring his back he enjoyed a very good employment record. As mentioned he went from being very busy, working long hours, to having nothing to do. All of his work and leisure activities have gone by the way. The respondent reported that it was an effort even to clean the house. He may require further treatment.
Prior to his incarceration he lived alone relying upon benefits to sustain him financially. He reported that he did not have many friends and tended to stay home watching television. That said, he did commence a new relationship but it did not last, leaving him lacking in confidence.
Prior to his back injury the respondent’s involvement with the criminal justice system was very minor.
Since injuring his back the respondent’s mental health has suffered. Dr Blakemore considered it likely that he had a pre-existing low grade depression that had been exacerbated by his injury. His drug usage assisted not only with his pain but his depression. Dr Blakemore expressed the opinion that the key to treating the respondent’s depression was treating his back and managing his pain so that he could return to the workforce.
The respondent was taken into custody on 9 June 2016. He has found prison life difficult and fraught. It has, however, brought with it the advantage that he has remained drug free for the longest time that he could remember and has brought him closer to his daughters.
The July 2015 bond
As mentioned the respondent was sentenced on 21 July 2015 to nine months and three weeks imprisonment suspended upon him entering into a bond to be of good behaviour for three years. That sentence was imposed after he pleaded guilty to one count of taking part in the sale of a controlled drug, contrary to s 32 of the Controlled Substances Act 1984 (SA).
The circumstances of the offending were summarised by the sentencing Judge as follows:
On 3 November 2014, police saw you acting in a suspicious manner in Commercial Street at Mount Gambier. They apprehended you and located a quantity of methylamphetamine, a large amount of cash and a mobile phone. The large amount of cash did not come from the proceeds of sale of drugs but rather from a payment from WorkCover in respect of a back injury from which you suffer. The mobile phone indicated, however, that this was not an isolated case of possession of illicit drugs but rather they were indicia that you had been selling some drugs.
Dr Blakemore’s report was provided to the Judge. After recounting the personal circumstances of the respondent much in the same terms as above, the sentencing Judge said:
There is enough publicity in the media these days as to the terrible effects that the drug methylamphetamine is having, particularly in our country communities, and I regard the offence as a very serious one because you were not only using this dangerous drug but distributing it to other members of the community, albeit to pay for your own habit. Further, I note that your offending has been committed whilst subject to a three-month suspended sentence imposed in the Magistrates Court in December 2013 for selling a controlled drug.
Having regard to those matters, it was with some scepticism that I came to consider the question of whether it would be appropriate to suspend any sentence of imprisonment that I must impose upon you for this offence. Your counsel has also mentioned that you have two children of a young age and have recently had a painful split with your partner. Your counsel in his earnest submission to me says that the drug offending is the direct result of a workplace injury. He says that you are now aware that if you are to have any sort of meaningful relationship with your children, you need to get off drugs and that you are prepared to make a concerted effort to do so.
As he put to me, and I quote: “He hasn’t had a District Court suspended sentence, he hasn’t had a suspended sentence involving supervision which requires him to undertake drug rehabilitation and screening. This is his last chance. It is Last Chance Café; if he breaches that, he knows he goes in.”
I propose to give you that last chance. I propose to give you a suspended sentence with supervision and assistance. You should clearly understand that while one can have sympathy for your predicament with ongoing pain consequent upon a severe back injury, the fact of the matter is that these drugs cause huge suffering in the community and persons who peddle them, whatever their personal reasons might be, should understand that they cannot be permitted to cause such great harm in the community with impunity.
The Judge ordered that for 18 months of the three year bond the respondent was to be subject of supervision by a Community Corrections Officer and to obey all directions given by that officer, including attending for psychological, psychiatric or medical assessment and treatment.
After the respondent signed the bond, the Judge said:
I can tell you now, Mr McIntosh, the only reason that you got that bond is because I really do think that your back might have been what caused or precipitated your involvement in these drugs, but next time too bad about your back. A judge will have to think more of the community who has to suffer by the use by certain individuals of this type of drug. So understand that I think this is probably Last Chance Café. See you later.
The bond was amended on 9 March 2016 after the respondent returned a positive result for the presence of illicit drugs in his urine. In the course of the amendment the sentence suspended was altered to 9 months.
The respondent’s antecedents
Prior to 2013 the respondent’s involvement with the criminal justice system was limited and is of no relevance to determining the appropriate sentence to be imposed for the trafficking offences.
In December 2013, however, he was convicted and sentenced for the offences of selling a controlled drug and possessing equipment for cannabis use or preparation. For the former offence he was sentenced to three months imprisonment suspended upon him entering into a bond in the sum of $200 to be of good behaviour for 12 months. With respect to the latter offence he was fined $100. The charges were laid after the police attended the respondent’s home on 18 October 2013 and located six bags of cannabis with a combined weight of approximately 334 grams.
In May 2014 he was convicted, fined and had his licence disqualified for three counts of driving whilst there were drugs in his blood. These offences were committed on 4, 6 and 8 March 2014. Whilst these offences were committed in breach of the bond imposed in December 2013, no application was made to enforce the bond.
In June 2015 the respondent was once more convicted of driving whilst there were drugs in his blood. He was also convicted of a number of driving related offences and contravening a term of an intervention order. These offences were committed in late 2014/early 2015. The respondent was fined a total of $1,900, save in relation to the breach of the intervention order. In relation to that offence he entered into a bond in the sum of $200 to be of good behaviour for six months.
The respondent was next before the courts for the basic offence of selling a controlled drug. It was this offence that was subject of the July 2015 bond to which reference has been made above. It was committed on 3 November 2014 in breach of the bond that the respondent entered into in December 2013. Again, enforcement action was not taken.
The respondent’s antecedents are consistent with a greater intensity of involvement in drug taking, the drug trade and offending arising in the wake of his sustaining the work injury to which reference has been made.
The sentence subject of this appeal
In sentencing the respondent for the trafficking offences the Judge commenced by describing the gravity of the offending and the respondent’s personal circumstances much in the same way as set out above. He accepted that the respondent’s drug-related offending since 2013 was triggered by the consequences of his work injury. The Judge noted that the respondent wished to remain drug free, desired to help others with their own drug problems, and intended to devote himself to his relationship with his children. The Judge reminded the respondent, however, that the courts are obliged to impose deterrent sentences for operations of the kind in which the respondent was involved, “involving such an insidious, addictive, harmful and socially damaging drug, which is too prevalent in this region.”
The Judge found no proper grounds to excuse the breach of the suspended sentence bond. Accordingly, the suspension was revoked and the sentence of nine months imprisonment ordered to be carried into effect.
The Judge then turned to sentence the respondent for the trafficking offences. He considered six years imprisonment as the appropriate starting point for all 32 offences. That period was reduced on account of the respondent’s guilty pleas by 21 months, being close to the 30% maximum discount to which the respondent was entitled.
As mentioned the Judge dismissed the possessing prescribed equipment charge without conviction.
The Judge then turned to fix a non-parole period. He said:
… Because of the past offending you have lost nearly everything. To your credit you have managed to resurrect and enhance the relationship with your children and you have expressed a desire not to return to the world of drugs when you are released. In this endeavour you have the support of their mother, your parents and your sister. The chances of successful rehabilitation will however, depend entirely on whether or not you can manage to put the drugs behind you.
In the combined circumstances a non-parole period of two years and nine months is set. The offences are far too serious to consider suspension, or to warrant a home detention disposition. The sentence will commence from 9 June 2016, when you were taken into custody.
The submissions made on appeal
Counsel for the Director commenced her submissions with the contention that the starting point of six years imprisonment was manifestly inadequate in circumstances where the applicant alleges that the respondent fell into the category of a persistent and recidivist street dealer and, as such, fell to be sentenced above the range of four to seven years referred to in R v Young.[14] That submission she attempted to make good by referring to two factors in particular. First, the circumstances of the offending, and, second, the respondent’s history of offending. With respect to the first contention counsel submitted that this was not a case of what might be described as a low level street dealer dealing in small amounts to support a habit. The trafficking offences were committed over a 56 day period against a background of an established commercial enterprise. It was conceded that some of the counts might be described as street deals in that small amounts were supplied to end users, but a number of the counts to which the respondent pleaded guilty demonstrated that he was able to facilitate much larger transactions. Counts 4, 21, 26 and 28 were nominated as illustrating the point. Those counts showed that the respondent was purchasing large amounts of methylamphetamine for which he had the capital or credit and an established customer base. Further, his business was successful enough for him to employ a courier.
[14] (2016) 126 SASR 41.
Counsel emphasised the quantity traded during the 56 day period and its street value if sold in point form. She also referred to the tick lists as indicative of the ongoing commercial nature of the enterprise.
Counsel then turned to the respondent’s history of offending. She submitted that he was not someone to whom leniency could be extended. In this regard she referred to his previous convictions for drug related offending and, in particular, that in 2013 the respondent had received the benefit of a suspended sentence bond for a trafficking offence. She pointed out that the respondent had breached that bond on a number of occasions and, in particular, by the 2015 trafficking offence.
Counsel also referred to the respondent having breached the bond imposed for the 2014 trafficking offence by testing positive to carboxy-THC/creatinine, amphetamine and methamphetamine on 11 November 2015 after being given a formal direction by his Community Corrections Officer to abstain from drug use. Prior to being given that formal direction, he had tested positive to methamphetamine, amphetamine and carboxy-THC/creatinine on two other occasions, namely, 22 July 2015 and 16 September 2015. On 9 March 2016 the Court excused the breach and varied the terms of the bond to extend the period of supervision. Thus the breach had been excused only one month before the first of the trafficking offences was committed.
Counsel emphasised that the respondent had not responded to leniency in the past and had committed the trafficking offences in breach of the bond and whilst he was on bail. Counsel brought her submissions to a close by repeating that the respondent was a recidivist offender to whom the range in R v Young did not apply and in relation to whom the starting point of six years was manifestly inadequate.
Counsel for the respondent emphasised that the respondent had never served an immediate custodial sentence. In those circumstances a starting point of six years imprisonment was a significant penalty. He also emphasised the personal circumstances of the respondent and, in particular, that his offending was largely the product of his work place injury which exacerbated his depression and had left him constantly in pain. Counsel alluded to the fact that the respondent’s drug offending coincided with the loss not only of his employment, but of his relationship and the consequential change in his family dynamic.
During the course of argument it became apparent that the same factors were operating on those occasions when the respondent had previously been sentenced for trafficking in drugs and received the benefit of suspended sentences of imprisonment. The point was made that where the bond imposed in June 2015 contemplated supervision and, if necessary, the benefit of psychological, psychiatric and medical assessment, the respondent had not received any such assistance.
R v Young and sentencing for drug trafficking
In R v Young[15] a five member bench of this Court sat to consider whether it was necessary to refine the guidance given in R v Mangelsdorf[16] in the light of the amendments made to the Controlled Substances Act 1984 (SA) by the Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA) (the Amendment Act). The new trafficking offences created by the Amendment Act adopted a quantity based penalty regime. For methamphetamine the regime is as follows:
[15] (2016) 126 SASR 41.
[16] (1995) 66 SASR 60.
Lge Commercial Qty Commercial Qty Trafficking Pure Mixed Pure Mixed Pure Mixed (Max Pen: $500,000 or imprisonment for life, or both) (Max Pen: Basic Offence - $200,000 or 25 years imprisonment or both;
Aggravated offence - $500,000 or imprisonment for life, or both)
(Max Pen: Basic Offence - $50,000 or 10 years imprisonment or both;
Aggravated offence - $75,000 or imprisonment for 15 years, or both)
750 gms 1000 gms 100 gms 500 gms - 2 gms
In Adams v The Queen Gleeson CJ, Hayne, Crennan and Kiefel JJ said of the same approach as adopted by the Customs Act 1901 (Cth) and the Commonwealth Criminal Code:[17]
This legislative approach, which recognises the financial rewards available from dealing in illicit drugs, thus differentiates between various narcotic substances in designating the trafficable and commercial quantities, but applies the same penalty regime to the quantities so designated. It may be contrasted with legislation in New Zealand and Canada, which grades drugs according to a legislative perception of their harmfulness, and prescribes penalties based on harmfulness rather than quantities. (The Court was informed that in each of those jurisdictions MDMA falls within the most serious class of drugs).
(footnotes omitted.)
[17] (2008) 234 CLR 143 at [3].
Thus the seriousness of an offence relating to a particular drug is not determined by a consideration of how harmful that drug is in comparison with others. The harmfulness of one drug in comparison to another is determined by Parliament in its assessment of the maximum penalty applicable to varying quantities of the different drugs.[18] Accordingly:[19]
The Amendment Act requires differentiation between the sentences imposed on drug traffickers according to the degree of commerciality of their involvement defined by reference to the prescribed minimum amounts. The base trafficking category primarily applies to offenders directly supplying or dealing very proximately with the end user. Sentencing guidance has in the past, been anchored to the concept of a ‘user-dealer’ or a person who deals at ‘street level’ but those terms have not been closely defined. The emphasis on the degree of commerciality introduced by the Amendment Act calls for some distinction between drug addicted offenders who make little or no profit above that needed to support their own habit and offenders who may take drugs but who traffic largely to support an indulgent lifestyle.
[18] Adams v The Queen (2008) 238 CLR 143 at [4]-[10] (Gleeson CJ, Hayne, Crennan and Kiefel JJ); see also s 44(2) CSA.
[19] R v Young (2016) 126 SASR 41 at [7] (Kourakis CJ, Vanstone and Stanley JJ agreeing).
As to street level dealers, in R v Young the Chief Justice said:[20]
The offending of a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction is at the lower end of the scale of objective seriousness. Other street dealers may not use at all or may be only occasional or social users who engage in street trading primarily to fund a comfortable, usually hedonistic, lifestyle. Other street-level dealers, motivated by profit alone, may sell drugs directly to the end user but not use drugs at all.
Sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit.
[20] (2016) 126 SASR 41 at [65]-[66].
It is important to emphasise that the range identified in R v Young is a guide. In Police v Cadd, Doyle CJ explained the important function served by guides such as that set in R v Young as follows:[21]
The function of establishing appropriate standards is an important aspect of ensuring, as best one can, that adequate standards of punishment are observed. Establishing appropriate standards also tends to ensure that there is such consistency of approach as is achievable in a system in which the appropriate sentence depends upon, in part, the circumstances of the individual case and of the individual offender, and a system in which sentencing is as individualised as it is in our system.
[21] Police v Cadd (1997) 69 SASR 150 at 166.
And, in R v King, Cox J said:[22]
… In a word, this case is about sentencing standards, but it is important, I think, to bear in mind that when a standard is created, either by the cumulative force of individual sentences or by a deliberate act of policy on the part of the Full Court, there is nothing rigid about it. Such standards are general guides to those who have to sentence in the future, with certain tolerances built into or implied by the range to cater for particular cases. The terms of approximation in which such standards are usually expressed — “about” and “of the order of” and “suggest” and so on — are not merely conventional. … It follows that a particular sentence will not necessarily represent a departure from the standard because it is outside the usual or nominal range; before one could make that judgment it would be necessary to look at all of the circumstances of the case. Those circumstances will include, but of course not be confined to, the questions whether or not the offences charged are multiple or single and whether the defendant is a first offender with respect to the particular crime charged. That is not to undermine the established standard but simply to acknowledge that no two cases, not even two “standard” cases, are the same. …
[22] (1988) 48 SASR 555 at 557-558.
That is not to say that only cursory regard may be had to a standard range set by this Court. As the Chief Justice explained in R v Young:[23]
… historical sentencing patterns cannot fix the boundaries within which future judges must, or even ought, to sentence. Nonetheless, judges of busy sentencing courts accumulate institutional experience in maintaining accepted relativities in sentencing ranges both between offences of different kinds and between different offences of the same kind by reference to the objective seriousness of the offence and the personal circumstances of the offender. Moreover, when those sentencing ranges are considered by a Court of Criminal Appeal, and approved or revised in the course of determining whether the particular sentence under appeal is manifestly excessive, or manifestly inadequate, the resulting judgment will often identify a range of sentences which provides useful guidance to sentencing courts. If a later sentence is informed by that guidance, even if having regard to all of the circumstances it falls, for good reason, outside of the identified range, it is less likely to be set aside for error on appeal. Consistency and certainty in the administration of the criminal law is thereby enhanced.
[23] (2016) 126 SASR 41 at [26].
Whilst the legislative approach in relation to the drug trafficking offences differentiates between substances by designating trafficable and commercial quantities and applies the same penalty regime to the quantities so designated, it does not require that the weight of the substance be treated as the chief factor in fixing sentence.[24] In setting a standard for street level dealing reflecting the objective factors to be found in the ordinary case, the Court of Criminal Appeal had regard to the particular drug, the quantities in which it is ordinarily traded, common reasons frequently encountered for engaging in trading in that drug, and the place in the drug trade hierarchy that the dealer occupied.[25] Those same factors are to be considered in the individual case of the street level trafficker, bearing in mind the guide set in R v Young. In fact, consideration of those factors may indicate that the guide is of no application to the particular case.
[24] Adams v The Queen (2008) 234 CLR 143 at [3] (Gleeson CJ, Hayne, Crennan and Kiefel JJ); R v Pham (2015) 256 CLR 550 at [36]-[37] (French CJ, Keane and Nettle JJ), at [45] (Bell and Gageler JJ); R v Kong (2013) 115 SASR 425 at [86]-[87] (The Court).
[25] R v Young (2016) 126 SASR 41 at [38] (Kourakis CJ).
I emphasise that this is not to suggest that all other relevant factors may be ignored. Clearly they cannot. Sentencing is an individualised task requiring the determination of the appropriate penalty in the individual case having regard to all relevant factors.[26] In undertaking this task one relevant factor worth specific mention is the importance of general deterrence in sentencing for drug offences. Relevantly, in R v Kong, the Court said:[27]
There continues to be concern about the prevalence of drug abuse in our community. Since Mangelsdorf, the variety of illicit drugs available has increased. Twenty years ago, heroin was a primary concern and was considered to be the most harmful of illicit drugs. The position has changed with the promotion of methylamphetamine and the availability of a variety of illicit drugs, all of which are addictive and have very harmful effects. Research and knowledge about the effects of drugs known as “speed” and “ice” has developed. The so-called party drugs are readily available. The manufacture and importation of drugs is prevalent. The abuse of illicit drugs causes great social harm. The treatment and the management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, nor surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers.
There is a recognition that, in addition to penal penalties, it is necessary to assist addicts and to provide rehabilitation programs. Rehabilitation is an important part of the sentencing process.
The range of penalties for drug offences must recognise that there is a concern in the community about the effect of illicit drug consumption, particularly upon the younger generation. Further, many of those who are involved at the higher end of drug trafficking are also involved in other criminal conduct. Many crimes of violence are committed in a background of drug offending. It follows that this Court should give guidance as to the range of penalties that might apply to drug offending.
[26] Markarian v The Queen (2005) 228 CLR 357 at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[27] R v Kong (2013) 115 SASR 425 at [90]-[92].
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.
I have no doubt that the respondent’s work injury marks the point in his life when he was first confronted by significant challenges. I have no doubt that his injury resulted in his loss of employment and contributed to the breakdown in his relationship. I have no doubt that his ongoing pain continues to present challenges for him. But on the other hand he was expressly given one last chance and warned of the consequences. He was extended leniency. He did not respond.
Having regard to the maximum penalty – 10 years imprisonment and/or a fine of $50,000 – which, it must be recalled, applies to each of the 32 offences, to the fact that the respondent is a persistent recidivist offender, to his non-response to leniency in the past, to the stark warning he received and ignored, to the fact that his offending was part of an ongoing commercial enterprise not voluntarily ceased, to the ordinary range for the street level trafficker, to the fact that he is more than a street level trafficker, and to the scourge that methamphetamine has brought to our community, I consider the Judge’s starting point of six years imprisonment manifestly inadequate.
Counts 4, 21, 26 and 28, in a context of an ongoing commercial enterprise and bearing in mind the respondent’s criminal history, could each individually have attracted starting points of between two and three years imprisonment. That in itself demonstrates the inadequacy of the starting point in this case.
In my view a starting point of eight years imprisonment was warranted. In arriving at this conclusion I have not ignored the fact that the respondent’s back injury means that his time in prison will be more onerous than would otherwise be the case, that he has not had the benefit of a lengthy and concerted period of supervision with attendant psychological, psychiatric and medical assistance, and that he has never served a sentence of imprisonment before.
I do not think the non-parole period as a proportion of the head sentence indicative of error. Good reason exists for the respondent to have the benefit of a lengthy period on parole.
The question arises, are there strong reasons of public policy which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed?
A finding that a sentence is manifestly inadequate is a finding that the sentence does not properly serve the purposes of punishment. Punishment is imposed on behalf of the community in the interests of the community. A sentence that does not properly serve the purposes of punishment does not properly serve the interests of the community. Accepting this, the principles applicable to Crown appeals against sentence are premised on the assumption that the community will accept sentences that do not properly serve its interests to a point. As indicated above, the outer marker of that point is reached where the community’s concern for the respondent being twice vexed pales in comparison to the community’s interest in the error being corrected.
In R v Hicks, King CJ observed:[29]
… When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating. …
[29] (1987) 45 SASR 270 at 273.
Not dissimilarly, when a person is told that he or she will be imprisoned for so many years only to be taken back to Court and told that the sentence might be increased, the resultant anxiety caused to the offender and his or her family can be devastating.
The community’s interest in a sentencing error being corrected may be particular to the respondent or may be more general in focus. In the latter situation the argument often made is that correction is necessary to maintain adequate standards of punishment. That is the argument made in this case.
In my view a starting point of eight years imprisonment is in keeping with what fell from the Chief Justice in R v Young – “[s]entences approaching the 10 year maximum for the base trafficking offence must be reserved for … persistent or recidivist street dealers.”[30] Put slightly differently, the starting point nominated by the Judge in this case is not in keeping with the standard as expressed in R v Young. But, of course, any sentence that is manifestly inadequate is one that is inconsistent with the appropriate standard. If it is necessary to interfere in this case to maintain adequate standards of punishment, bearing in mind the assumption on which the principles applicable to Crown appeals are premised, the question arises, what is it about this sentence that threatens standards? That it is manifestly inadequate is not of itself enough. No submission is made that it is the product of an idiosyncratic approach. No submission is made to the effect that it is one of a number of sentences for this type of offending that is manifestly inadequate. No submission is made that this sentence will send some sort of signal to other judges in the future. The strong reason of public policy justifying interference must be located solely in the inadequacy of the sentence. It is simply too low.
[30] (2016) 126 SASR 41 at [68].
Why is this case not an aberration that the community will tolerate? In my view, although not without some doubt, it is.
The respondent has never served a custodial sentence. I accept that his resolve to remain free of crime and the drug trade was weakened by his circumstances, his adjustment disorder and depression. It is in this context that the seemingly ineffective deterrent effect of the 2015 sentence must be viewed.
I note that the respondent did not get the benefit of psychiatric, psychological or medical assistance as part of being supervised by the Department for Correctional Services. With the pressures he faced it is unfortunate that this did not occur.
True it is that he could have sought out psychiatric, psychological and other assistance for himself, and it appears that at one point he did have the assistance of a psychiatrist. But I do not think that much can be expected of a person who suffers constant and ongoing back pain, an adjustment disorder and depression and, who in the past has, it appears, resorted to cannabis and methamphetamine to cope.
In these circumstances the sentence imposed may be characterised as merciful. I bear in mind King CJ’s admonition in Osenkowski.[31] The circumstances also suggest that this is the sort of case where not to interfere will not undermine public confidence in the administration of justice.
[31] R v Osenkowski (1982) 30 SASR 212 at 212-213.
The respondent was taken into custody on 9 June 2016. He pleaded guilty in the Magistrates Court on 8 August 2016. He asked to be sentenced at the earliest possible opportunity by the District Court, but his sentencing was delayed on the application of the Director. The delay had no consequence for the charges faced by the respondent, nor does it appear that it lead in any way to a greater understanding of his role in the network. All it meant was that the respondent remained in a state of limbo, anxious and eager to learn his fate. To finally know how long he was to serve would have eased his anxiety and insecurity and allowed him to begin to plan as he had wished to do for some months. In the circumstances, I am not persuaded that there exists strong reasons of public policy outweighing the public interest in the respondent not being twice vexed.
Conclusion
I would refuse permission to appeal.
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