R v NICHOLLS - [2011] SASCFC 81

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NICHOLLS
[2011] SASCFC 81
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Peek)
11 August 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION
Appeal against sentence - appellant convicted after a trial of trafficking in methylamphetamine and three counts of possessing a prescription drug - trial Judge sentenced appellant for two further offences, for which he had pleaded guilty, of possessing articles with intent to commit an offence and unlawful interference with a motor vehicle - having regard to the unexpired parole period and time spent in custody the Judge imposed a head sentence of three years, eight months and 21 days' imprisonment with a non-parole period of one year and ten months.
Whether sentence manifestly excessive - whether Judge erred in failing to take into account the limited commercial value of the drugs - whether he erred in taking into account that the prescription drugs were for sale - whether sentence within range for typical low-level street dealer.
Held: Appeal dismissed - sentence of three years' imprisonment within range of sentences for this type of offending.
Controlled Substances Act 1984 (SA) s 32(3), s 18(3); Criminal Law Consolidation Act 1935 (SA) s 270C(1), s 86A; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Mahasay; R v Pereira (2002) 135 A Crim R 232; R v Papadopolous [2010] SASCFC 30; R v Day [2009] SASC 84, considered.

R v NICHOLLS
[2011] SASCFC 81
Court of Criminal Appeal: Sulan, Anderson and Peek JJ

SULAN J: This is an appeal against sentence. The appellant was convicted after a trial of trafficking in methylamphetamine[1] and three counts of possessing a prescription drug.[2] The Judge was also requested to sentence the appellant for two further offences for which the appellant had pleaded guilty in the Magistrates Court of possessing articles with intent to commit an offence[3] and unlawful interference with a motor vehicle.[4] At the time of the offending, the appellant was on parole. The Judge was required to have regard to the unexpired period of parole of one year, seven months and 21 days on the day of the offending, which was to be served before the sentences he imposed were to take effect.
[1]    Controlled Substances Act 1984 (SA) s 32(3) – maximum penalty of $50,000 or imprisonment for 10 years, or both.
[2]    Controlled Substances Act 1984 (SA) s 18(3) – maximum penalty of $10,000 or imprisonment for two years.
[3]    Criminal Law Consolidation Act 1935 (SA) s 270C(1) – maximum penalty of five years.
[4]    Criminal Law Consolidation Act 1935 (SA) s 86A – maximum penalty of imprisonment for two years for first offence.
The Judge sentenced the appellant to one sentence of three years’ imprisonment for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Nicholls [2011] SASCFC 81
Case: [2011] SASCFC 81
Decision Date: 11 August 2011

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, who had been convicted after a trial of trafficking in methylamphetamine and three counts of possessing a prescription drug. The sentencing judge had also taken into account two further offences, for which the appellant had pleaded guilty: possessing articles with intent to commit an offence and unlawful interference with a motor vehicle. The appeal was heard by Sulan, Anderson and Peek JJ.

The central legal issues before the court were whether the sentence imposed was manifestly excessive, and whether the sentencing judge had erred in failing to consider the limited commercial value of the drugs, and in taking into account that the prescription drugs were for sale. The appellant argued that the head sentence of three years, eight months and 21 days' imprisonment, with a non-parole period of one year and ten months, was too severe, particularly in relation to the drug offences.

The court considered the appellant's submissions regarding the value of the drugs and the alleged error in treating the prescription drugs as being for sale. The appellant had been found in possession of 9.15 grams of methylamphetamine paste (0.26 grams pure) and several prescription tablets, along with items indicative of drug dealing, such as scales and resealable bags. The jury had rejected his explanations for possessing these items. The court noted the appellant's extensive criminal history, including dishonesty and motor vehicle offences, and a significant prior custodial sentence, although he had no prior drug convictions. The court also acknowledged his numerous health issues, which could be managed in custody.

The court ultimately dismissed the appeal, finding that the sentence was not manifestly excessive. The sentencing judge had properly considered all relevant factors, including the appellant's prior convictions, the nature of the offences, and the limited commercial value of the methylamphetamine. The court also found no error in the judge's consideration of the prescription drugs as being for sale, given the context of their discovery alongside the methylamphetamine and drug paraphernalia. The head sentence and non-parole period were therefore upheld.

Orders

Orders of the court

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Background

Background to the litigation

The appellant had been in custody for one year and seven months, which was then deducted from the head sentence and the non-parole period, resulting in a final sentence of three years, eight months and 21 days, and a non-parole period of one years and ten months, commencing on the day of sentence, being 24 September 2010.Background The circumstances of the offending are that in the early hours of the morning of 25 February 2009, the complainant, in respect of the offences relating to the motor vehicle, heard noises coming from the carport area of her home. She observed two people near her motor car. She contacted the police who attended and apprehended the appellant, who was hiding inside the complainant’s car. The appellant was wearing blue rubber gloves and carrying a screwdriver, two torches, two pocket knives and a pair of pliers. The vehicle had been interfered with and the engine filter removed. The police located the appellant’s car in a nearby street. The car was taken to the police station where it was searched. Police observed the screws in the centre console were loose. Upon removing them, they found a bag containing 9.15 grams of paste containing 0.26 grams of methylamphetamine. Police also found tablets, the subject of the other three counts, being two oxazepam, two ahprazolam, and eight diazepam. The drugs were contained in a resealable bag which was located in a black pouch. There were also electronic scales, 19 re‑sealable bags and a spatula found in the black pouch. The appellant pleaded not guilty to the drug offences. He claimed that the methylamphetamine belonged to a person to whom he had loaned the car. The prescriptions drugs were drugs that were prescribed for members of his family and had been put together with the methylamphetamine by his friend. The jury rejected the appellant’s explanation. The appellant was 54 years of age at the time he was sentenced. He has numerous prior convictions dating back to 1970. Most of his prior offending is for offences of dishonesty and motor vehicle offences. He has no prior convictions for drug offences. In November 2006, he received a sentence of three years, 11 months and 16 days’ imprisonment, with a non-parole period of 18 months’ imprisonment for 19 offences of breach of bail, three offences of receiving, two of false pretences, one of unlawful possession and four offences of driving whilst disqualified. The appellant suffers from numerous health problems, including reflux, diabetes, heart disease, Crohn’s disease, hypertension and anxiety. In 2006, he suffered a heart attack and a stroke. All the conditions suffered by the appellant can be adequately monitored and treated whilst he is in custody. Evidence at the trial was that the prescriptions drugs had a black market value when sold with the amphetamine. The amphetamines had a value of about $4500 to $9000. The appeal It is submitted that the sentencing Judge erred in failing to take into account the limited commercial value of the drugs. Further, that he was in error in taking into account that the prescription drugs were for sale. In the circumstances, it is submitted that the period of three years’ imprisonment for the drug offences is manifestly excessive.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J (dissent) PEEK J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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