R v MCKAY - [2012] SASCFC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MCKAY
[2012] SASCFC 59
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Kelly)
30 May 2012
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 - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES - IMPOSITION OF SECOND CUMULATIVE SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE - OTHER MATTERS
Application for permission to appeal against sentence – respondent was found guilty by a jury of trafficking a controlled substance (methylamphetamine) – at the time of the offence the respondent was subject to a suspended custodial sentence for two previous convictions of possessing a controlled substance for sale (ecstasy) – the sentencing Judge revoked the suspended sentence (three years and six months with a non-parole period of two years) and imposed a new sentence of two years to be served cumulatively on the earlier sentence – the total sentence was five years imprisonment with a non-parole period of 18 months – the Director of Public Prosecutions applies for permission to appeal on the ground that the non-parole period of 18 months is manifestly inadequate given the seriousness of the offending and it is so disproportionate to the head sentence that it requires intervention – the Director also contends the Judge erred as a matter of sentencing principle in failing to review and extend the non-parole period of two years attached to the head sentence for the revoked suspended sentence – whether non-parole period is manifestly inadequate – whether an error of sentencing principle is present
Held (Kelly J, Gray and David JJ concurring): Permission to appeal granted – appeal allowed – sentence set aside – under s 32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA) the only option open to a sentencing judge is to review and extend a revoked non-parole period unless special circumstances exist under s 58(4) of the Act – the issue of special circumstances under s 58(4) not properly canvassed or considered – remitted for resentencing.
Criminal Law (Sentencing) Act 1988 (SA) s 32(1)(b), s 58, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; R v Shepperbottom (2001) 121 A Crim R 69, considered.

R v MCKAY
[2012] SASCFC 59
Court of Criminal Appeal: Gray, David and Kelly JJ
GRAY J.

I would grant permission to appeal and allow the appeal. I agree with the reasons of Kelly J and with the orders proposed.
DAVID J.
I would allow the appeal for the reasons given by Kelly J. I also agree with the orders she proposes.
KELLY J.
Introduction
This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed by a District Court Judge on 13 January 2012.
The respondent was found guilty after a trial by jury of one count of trafficking in methylamphetamine, a controlled drug. At the time of the commission of the offence the respondent was subject to a suspended sentence bond following his conviction after trial for two counts of possessing ecstasy for sale. The suspended sentence of three years and six months and non-parole period of two years imposed for that offending was suspended upon the respondent entering into a bond to be of good behaviour for two years.
Prosecution Appeals
The constraints which apply in the case of applications for permission to appeal by the prosecution are well known. Permission to appeal by the prosecution should only be granted in rare and exceptional circumstances.[1] Permission to appeal should only be granted to the prosecution in order to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, or to correct a sentence which is so manifestly inadequate that it amounts to an error of principle.[2]
[1] Everett v The Queen (1994) 181 CLR 295 at 299-300.
[2] Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168.
Permission should not be granted to the Director simply for the purpose of correcting an error, even a clear error. Permission should only be granted when it is necessary to do so to establish a principle or to ensure that adequate sentencing standards are maintained. It is not always necessary to correct an error to achieve this purpose.[3]
[3] R v Shepperbottom (2001) 121 A Crim R 69 per Doyle CJ at [3].
The Director applies for permission to appeal on two grounds. The first ground is that the sentence of 18 months imposed for the offence of trafficking in methylamphetamine is manifestly inadequate as it fails to reflect the seriousness of offending and the need for both personal and general deterrence in light of the respondent’s prior offending. The second ground is that in imposing an overall non-parole period of 18 months in respect of the overall head sentence of five years, the sentencing Judge erred, as a matter of sentencing principle, in failing to review and extend the non-parole period that originally attached to the revoked suspended sentence. It was submitted that the non-parole period of 18 months also failed to adequately reflect the seriousness of the offending and is so disproportionate to the overall head sentence of five years that this Court should intervene.
The respondent opposes the application for permission arguing that although the sentence of 18 months was at the lower end of the range of penalties available to the sentencing Judge, it was appropriate given that the current offending was primarily for personal use. It was isolated offending and although it might be regarded as lenient it is not manifestly inadequate.
Relevant Facts
In November 2008 the police went to the respondent’s house and found methylamphetamine, a pipe and three plastic bags hidden in the respondent’s underwear. Methylamphetamine was detected on the respondent’s hands and fingernails.
Telephone intercepts led at trial indicated that on the day prior to the search the respondent agreed to purchase 3.5 grams of methylamphetamine for $1,300. In an intercepted telephone conversation the respondent asked the seller to carry some of the debt until the respondent was able to sell part of the 3.5 grams he was going to purchase. Other telephone intercepts led established that the respondent had had previous contact over time with his supplier of drugs and had sought to purchase a similar amount of illicit drugs.
At the relevant time the maximum penalty for trafficking in methylamphetamine was a fine of $50,000 or 10 years imprisonment, or both.
Sentencing Process
The applicant has identified what is said to be an error in the sentencing process which in itself calls for the intervention of this Court. It is necessary to summarise briefly what happened during sentencing.
The learned sentencing Judge first needed to consider whether the sentence imposed by another District Court Judge in respect of the earlier offending should be revoked. It was open to the sentencing Judge, if he considered the failure to comply with the bond was trivial or if there were proper grounds to refrain from revoking the suspended sentence.[4] His Honour did not consider that there were proper grounds and therefore revoked the suspended sentence of three years and six months. It was open to the sentencing Judge, if he considered that there were special circumstances justifying it, to reduce the term of the suspended sentence imposed by the earlier District Court Judge. However his Honour did not refer to s 58(4)(a) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). Nevertheless, he did in fact reduce the non-parole period in respect of the cumulative sentence of five years to 18 months.
[4] Criminal Law (Sentencing) Act 1988 (SA) s 58(3).
It seems plain from the transcript of proceedings that his Honour mistakenly thought he could proceed in that way. His Honour specifically raised with counsel for the Director his intention to adopt a lower than usual non-parole period. He said:[5]
So, won’t the option of revoking the suspended sentence, accumulating the term of imprisonment I might impose but ordering a very – well, merciful non-parole period of quite a short period to allow for a very lengthy period subject to a suspended sentence might be an option. Do you have any comment about that?
[5] Transcript of sentencing submissions 13 December 2011 at 25.
In response the prosecutor drew his Honour’s attention to the previous drug offences and then said:[6]
In relation to the non-parole period that your Honour may set, your Honour is not bound by the non-parole period of two years that was imposed by his Honour Judge Lovell. I submit that your Honour can consider all of the matters afresh and set whatever non-parole period your Honour deems appropriate.
HIS HONOUR:    I was considering the option of a shorter non-parole period than that to reflect the matters that Mr Prendergast put.
PROSECUTOR:   For the reasons I have already put about your Honour should be guarded when your Honour sets a non-parole period, that would be my submission on that point.
[6]    Transcript of sentencing submissions 13 December 2011 at 26.
Thus it can be seen that his Honour was not reminded that under the provisions of s 32(1)(b) of the Sentencing Act, the only option was to review and extend the non-parole period, absent special circumstances within the context of s 58(4) of the Sentencing Act.
This is the error of principle identified by the applicant which is said to require appellate intervention.
The respondent on the other hand submits that, notwithstanding the acknowledged error of principle, this Court should not intervene as to resentence the respondent now will expose the respondent to double jeopardy by reason only of an error on the part of the prosecution and the sentencing Judge. It is submitted that in these circumstances this Court should be slow to interfere in the sentence. Counsel for the respondent relied on the remarks of Doyle CJ in R v Nemer:[7]
But sometimes the manner in which the prosecution has conducted itself in the sentencing proceedings will have an effect on the conduct of those proceedings such that it would be unfair to allow the prosecution to change its approach on appeal. The court must always be mindful of considerations of fairness arising out of the manner in which the hearing is conducted. Likewise, the manner in which the prosecution has put its case may be a factor in deciding whether to grant leave to the Director to appeal.
[7] R v Nemer (2003) 87 SASR 168 at [30].
The applicant, whilst candidly acknowledging that the submission of the prosecutor led the sentencing Judge into error, submits that the error is of such magnitude that this Court must interfere because the learned sentencing Judge in fact had no power to impose the sentence which he did. It is submitted, in effect, that the sentence imposed by the learned sentencing Judge is not authorised by law.
In my view the applicant’s submission should be accepted. In R v Shepperbottom[8] the Court dealt with a similar but not identical situation. In that case the issue was whether the sentence was so low as to justify intervention on the basis that it was necessary to do so to maintain an adequate standard of punishment. However the provisions of s 32(1)(b) of the Sentencing Act were also considered. Concluding that the error did justify the Court’s intervention Doyle CJ held that the failure of the sentencing Judge to review and extend the non-parole period did amount to an error of law:[9]
In my opinion the departure from the required sentencing standard is significant, but of itself not, perhaps, enough to call for the grant of leave to appeal.
The fact that the sentence is not one authorised by law is sufficient, in my opinion, to support a grant of leave to appeal, and to cause the court to intervene.
The court should do so even though the Prosecutor failed to bring to the judge's attention that the sentencing standard the judge contemplated was too low, or that the judge was obliged to extend the non-parole period. In some cases a failure by the Prosecutor to bring a relevant matter to the judge's attention will be a reason to refuse to grant leave to appeal. In the present case that failure is outweighed by the need to maintain adequate standards, and by the fact that the sentence is not one authorised by law.
[8] R v Shepperbottom (2001) 121 A Crim R 69.
[9] R v Shepperbottom (2001) 121 A Crim R 69 at [40]-[42].
Those remarks apply with equal force to the facts of the present case.
However, I accept the submission made by counsel for the respondent that had not the prosecution made the concession it did before the sentencing Judge, his Honour may have gone on to consider whether it was necessary to specifically refer to and deal with the issue of “special circumstances” in the context of s 58(4) of the Sentencing Act. It does not appear from the transcript of proceedings before his Honour, or from his Honour’s sentencing remarks, that that issue was properly canvassed. In those circumstances the respondent has been deprived of the ability to put matters to the sentencing Judge which might well be material to the determination of that question.
In the circumstances I consider that the interests of justice will best be served in this matter if this Court acknowledges the error of principle and returns the matter for final disposition to the sentencing Judge to sentence the respondent after hearing further submissions from both parties. This will enable the respondent to put whatever submissions he sees fit to the sentencing Judge which might affect the issue of special circumstances under s 58(4) of the Sentencing Act. It will enable that issue to be properly and thoroughly canvassed before the same sentencing Judge who appears to have formed a favourable view of the respondent’s prospects of rehabilitation. It will also give the respondent the opportunity to put forward any further material relevant to that particular topic, in particular any events which have occurred since the date he was sentenced in January 2012.
For these reasons I would grant the applicant permission to appeal. I would allow the appeal and set aside the sentence imposed in the District Court. I would remit the matter back to the District Court before the same sentencing Judge for his Honour to hear any further submissions and determine a sentence according to law.