R v Moran - [2010] SASC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MORAN
[2010] SASC 66
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Layton)
25 March 2010
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - OTHER SUBSTANCES AND OFFENCES INVOLVING MULTIPLE SUBSTANCES OR OFFENCES
Respondent pleaded guilty to seven offences involving taking part in the sale of methylamphetamine and ecstasy, and possessing methylamphetamine and ecstasy for the purposes of sale - respondent addicted to methylamphetamine at the time of the offences - respondent took steps to rehabilitate prior to sentence - respondent sentenced to imprisonment for 20 months, with a non-parole period fixed at 12 months - sentence of imprisonment wholly suspended upon respondent entering into a bond to be of good behaviour - application for permission to appeal against sentence by Director of Public Prosecutions.
HELD: offences serious and prevalent - respondent's addiction does not reduce the seriousness of offending - offending is of a seriousness and of a kind that should ordinarily attract a sentence of imprisonment for five years, reflecting the need for general deterrence - permission to appeal granted, appeal allowed, head sentence of imprisonment for four years imposed, non-parole period of two years six months fixed - decision of sentencing Judge to suspend sentence was erroneous, but having regard to the time that had lapsed since the respondent was sentenced, and the rehabilitative steps taken by her, sentence imposed by the Court on appeal suspended.
Controlled Substances Act 1984 (SA) s 32(1)(d), s 32(1)(e); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38(1), referred to.
R v Mangelsdorf (1995) 66 SASR 60, applied.

R v MORAN
[2010] SASC 66
Court of Criminal Appeal: Doyle CJ, Bleby and Layton JJ

DOYLE CJ: Ms Moran pleaded guilty in the District Court to two counts of taking part in the sale of methylamphetamine, and three counts of taking part in the sale of the drug commonly known as ecstasy. The offence charged in each case was against s 32(1)(d) of the Controlled Substances Act 1984 (SA) (“the CSA”) as it stood at the relevant time. Ms Moran was also charged with one count of possessing methylamphetamine for sale, and one count of possessing ecstasy for sale, each an offence against s 32(1)(e) of the CSA at the relevant time. Each of the seven offences carried a maximum penalty of imprisonment for 25 years or a fine of $200,000, or both.
The District Court Judge imposed a head sentence of imprisonment for 20 months, and fixed a non-parole period of 12 months. The Judge suspended the sentence of imprisonment that he imposed.
The Director of Public Prosecutions has applied for permission to appeal against the sentence imposed, complaining that the term of imprisonment is manifestly inadequate, and that the decision to suspend the sentence was erroneous.
Background
A police operation was established which had as its focus the sale of drugs at an Adelaide nightclub. The operation involved the interception of communications to and from the mobile phone of a person suspected of involvement in the sale of drugs. As a result of those telephone interceptions, police formed the view that Ms Moran was involved in the sale of drugs. Police intercepted communications to and from the mobile phone of Ms Moran.
On 17 March 2007 police went to Ms Moran’s unit. She and her then partner Mr Carneiro were present, along with others including two of Ms Moran’s children. Ms Moran produced a bag containing seven tablets. When analysed, the tablets were found to contain 0.41 grams of ecstasy. Her possession of these tablets was the subject of the charge of possessing ecstasy for the purpose of sale. Police found a bag containing a white crystalline substance in the bathroom. When analysed, the crystalline substance was found to contain 4.69 grams of methylamphetamine. This is the subject of the charge of possessing methylamphetamine for the purposes of sale.
The other counts were based on intercepted telephone messages. The quantities and money involved indicate that she was selling to drug users in small quantities, as one would expect.
Electronic scales, small resealable plastic bags and notebooks with entries consistent with the carrying on of a substantial drug supply enterprise were also found in the unit. Equipment for using methylamphetamine was also located by police.
Ms Moran pleaded guilty to the charges against her on what was to be the first day of the trial.
The Judge briefly summarised the circumstances of the offences. He said that he sentenced Ms Moran on the basis that she was the principal of the drug dealing business being carried on at her unit. Mr Carneiro helped her by taking telephone calls and messages. The Judge said that the offences were “serious”, and were committed against a background of commercial dealing in methylamphetamine. These findings were irresistible.
Ms Moran was 37 years of age at the time that she was sentenced. At the time of the offences she was addicted to methylamphetamine and had been for some time. She used the proceeds of sale of the drugs to buy drugs for her own use, and for other purposes. She had no relevant criminal history.
Ms Moran had a happy childhood, and maintains a close bond with her parents. She has four children from a previous marriage of 13 years. She had subsequently formed a relationship with Mr Carneiro. One of her children, a daughter aged 16 years, was residing with Ms Moran at the time of sentence. There was evidence that she was having trouble coping with the possibility of Ms Moran going to gaol. She had a poor relationship with her father. Subject to that, it was not suggested that Ms Moran’s daughter would face particular hardship if Ms Moran were to be sentenced to a period of imprisonment. At the time that Ms Moran was sentenced, her daughter was at school in year 11. Her eldest son has moved out of home, and two of her sons spend time living both at their father’s residence and with Ms Moran.
Ms Moran worked as a homemaker during her previous marriage. After the breakdown of her marriage, she obtained work as a security officer. She ceased that employment in 2006 as a result of a knee injury. This, and the commencement of her relationship with Mr Carneiro, appears to have precipitated her drug addiction. The relationship with Mr Carneiro was marked by violence.
After her apprehension in March 2007, and with the help of a general practitioner and a psychiatrist, Ms Moran stopped using drugs other than intermittently in the months following her arrest. She had not used drugs in the twelve months prior to sentencing. She suffered from anxiety, which appears to have been managed with the use of prescription medication.
She underwent training as a truck driver, and commenced employment in that capacity in July 2009 after having worked for two months on a voluntary basis to gain experience. Apart from one brief period in custody, she has been on bail since she was arrested. She has ceased contact with Mr Carneiro. The Judge accepted that Ms Moran had “made great steps to turn [her] life around.”
A psychologist whose report was tendered concluded that “[i]f Ms Moran is able to maintain her present high level of motivation to abstain from substance abuse and eschew contact with individuals associated with the drug subculture she should have a reasonable prognosis”. The Judge considered that there was a “reasonable chance” Ms Moran would not reoffend.
Exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the Judge imposed a single sentence of imprisonment in respect of all of the offences. He adopted a starting point of two years’ imprisonment. After taking into account the pleas of guilty, which, as the Judge said, came at the “last minute”, the Judge imposed a head sentence of imprisonment for 20 months, and fixed a non-parole period of 12 months. Notwithstanding his characterisation of the offences as serious, the Judge considered that there was “good reason” for the purposes of s 38(1) of the Act to suspend the sentence of imprisonment that he imposed. He said:
For 37 years you have led a blameless life. After an unhappy marriage it seems you dropped your bundle and turned to serious drugs but you have made a real effort to turn your life around and you are continuing to do so.
He suspended the sentence upon Ms Moran entering a bond in the amount of $100 to be of good behaviour for two years, and to be under the supervision of a community corrections officer whose directions relating to medical treatment and treatment for drug abuse Ms Moran was to obey.
Consideration of application by the Director of Public Prosecutions
The offences are of a serious kind. The maximum penalty for each count; imprisonment for 25 years or a fine of $200,000 or both, speaks for itself. Parliament has made clear its intention that those who trade in illicit drugs must be punished, and that the punishment must be one that will deter others.
The social costs and evils that result from the illicit drug trade are well known.
The particular offences are serious. The type of dealing in which Ms Moran was involved, namely, frequent sales of small quantities of drugs to users, sustains the drug trade. The courts must impose sentences which give effect to the need to deter others from engaging in this conduct.
The offences to which Ms Moran pleaded guilty were committed against a background of trading in drugs. As the Judge said, Ms Moran was the principal. Mr Carneiro was her assistant.
The offending conduct is of a prevalent kind. The trade in illicit drugs continues, despite the efforts of the police and others, and despite sentences of imprisonment imposed by the courts.
The circumstance that Ms Moran was addicted to drugs does not reduce the seriousness of the offending. Her addiction, and the consequent need for money, may explain the offending, but they cannot excuse it.
This is offending of a seriousness, and of a kind, that should ordinarily attract a sentence of imprisonment for about five years, subject to the circumstances of the particular case and to any reduction for a plea of guilty. The guidance given by this Court in R v Mangelsdorf (1995) 66 SASR 60 at 72 continues to apply. Sentencing judges and magistrates should continue to adhere to the approach to sentencing indicated by that case.
It is important that sentencing courts are mindful of the continuing need for general deterrence to be considered, when sentencing for offences such as these.
There are some mitigating circumstances. Apart from two traffic offences, Ms Moran has committed no other offences. Her offending arises out of her own addiction, as I have already said, but that cannot count for much at all. To put it bluntly she has chosen to sell illicit drugs to enable her to fund her own addiction. The Judge accepted that Ms Moran has made real efforts to overcome her addiction. The Judge found that there was a “reasonable chance” that she would not offend again. She pleaded guilty, although late in the piece.
I consider that a sentence of imprisonment for four years, with a non-parole period fixed at two years six months, is an appropriate sentence. It reflects the mitigating circumstances, and allows a reduction of 20 per cent for the late plea of guilty. It reflects also the fact that this is an appeal by the Director of Public Prosecutions, and the tendency of the Court in such cases to impose a sentence at the lower end of the range. But for that latter factor, the sentence might have been more.
With all respect to the Judge, I consider that his approach reflects an error of principle. The sentence that he proposed as a starting point, before a reduction for the plea of guilty, does not observe the standard or approach established by Mangelsdorf. The sentence imposed does not adequately reflect the seriousness of the offences or the need for general deterrence.
The error is such that it is appropriate to grant to the Director permission to appeal. It is appropriate to do so because the sentence reflects an error of principle, and because the sentence is so low that it should not be permitted to stand.
It is not enough to identify the error but to allow the sentence to stand. There is no good reason not to correct the error, subject to what follows.
I consider that the Judge also erred in deciding to suspend the sentence. The discretion vested in the sentencing Judge was a wide one. But the matters relied on by the Judge, which are set out above, are insufficient to warrant the suspension of the sentence that is called for in this case.
However, there are reasons why I would suspend the sentence that I consider should be imposed.
It is now a little more than six months since Ms Moran was sentenced. She has been at liberty since then. When sentenced, she had already made substantial progress towards rehabilitation. She had obtained employment. In these circumstances, the difficulty that her daughter would face, were Ms Moran to be imprisoned, is a factor.
It is most unusual to suspend a sentence as significant as the sentence that I would impose. But, in all the circumstances, and bearing in mind that on an appeal by the Director the Court tends towards leniency, I would follow the course followed by the District Court Judge.
Orders
I would grant permission to appeal, allow the appeal and set aside the sentence imposed by the District Court.
Exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) I would impose a single sentence of imprisonment for four years. In relation to that sentence I would fix a non-parole period of two years six months.
I would order that the sentence be suspended upon Ms Moran entering into a bond in the sum of $100 to be of good behaviour for a period of one year six months. Conditions of the bond are that she is to be under the supervision of a Community Corrections Officer for a period of one year six months, and that she comply with the lawful directions of the Community Corrections Officer with respect to medical treatment and treatment for drug abuse, giving credit for the period of the bond already served.
BLEBY J: I agree that current sentencing principles, both statutory and common law, require that the Court, in sentencing for cases like this, must give very great weight to general deterrence. Insufficient weight was given to that in this case such as to warrant interference with and review of the sentence on a prosecution appeal. I therefore agree with the Chief Justice and, in the circumstances of this case, with the orders that he proposes.
It is easy to understand the lack of personal control which is associated with serious addiction to drugs. Sentencing policies should welcome and encourage drug free rehabilitation when it occurs. But the evil of this type of offending is profiting from inflicting potential harm, misery and addiction on others. Unless extensive and convincing research indicates otherwise, deterrent penalties must, for the time being, remain society’s principal weapon against this type of offending.
LAYTON J: I agree with the proposed orders of the Chief Justice and with his reasons.