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 four drug offences.[5] As to the Magistrates Court offences, the Judge took into account the appellant’s pleas of guilty and determined that the appropriate sentence was eight months’ imprisonment, to be served cumulatively on the three years’ sentence. He also ordered that the appellant be disqualified from holding or obtaining a driver’s licence for 12 months. Having regard to the period of unexpired parole, the total sentence was five years, three months and 21 days, and the Judge set a non-parole period of three years and five months.
[5] Criminal Law (Sentencing) Act 1988 (SA) s 18A.
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.
Mr Graham, who appeared for the appellant, submits that the purity and, therefore, the value of the brown paste containing methylamphetamine was very low and that the Judge failed to have sufficient regard to that fact. The sentencing Judge referred to the quantity of the drug and its quality. Counsel for the Director of Public Prosecutions (“the DPP”) accepts that the purity of the drug was low, at the most 4 per cent, or as low as 2 per cent.
In R v Mahasay and R v Pereira,[6] McKechnie J, with whom Templeman and Wheeler JJ agreed, observed:[7]
If a person is found in possession of a quantity of prohibited drugs of high purity it may lead to an inference about that person’s involvement in the commercial distribution of the drug. Correspondingly, if a person is in possession of a quantity of drugs of very low purity, it may lead to an inference that the person is fairly low down within a drug conspiracy.
In Wong (at [67]), Gaudron, Gummow and Hayne JJ posed the question:
But is weight generally the chief factor to be taken into account in fixing a sentence?
And they answered the question at [68] and [69]. In Wong, their Honours regarded the selection of the weight of narcotic as the chief factor to be taken into account in fixing a sentence as representing a departure from fundamental principle. That, of course, was a case where they were dealing with a guideline judgment of the Court of Criminal Appeal of New south Wales, which had purported to regard weight as an important principle.
In my opinion, the purity of the drug is in this respect similar to the weight of the drug in Wong and the comments can be equally applied. Purity may give an indication of the level of an offender within a criminal hierarchy: see Vogel v The Queen [2002] WASCA 261 at [5] and [7] per Wheeler J.
Street purity is generally regarded as between 6 and 8%: Marker v The Queen [2002] WASCA 282 at [87] per Anderson J.
[6] (2002) 135 A Crim R 232, 234.
[7] Ibid 234, [10] – [14].
Although the comments of McKechnie J related to the position in Western Australia, they are apposite to the situation in South Australia. I accept that the purity of the drug is relevant to lead to an inference about a person’s involvement in the commercial distribution of it. In this case, the appellant was sentenced as a relatively low-level street dealer. In my view, that was consistent with the purity of the drug found in the appellant’s possession. The question is, therefore, whether the sentence was within the range for a typical low-level street dealer.
In R v Papadopolous,[8] the appellant was in possession for sale of methylamphetamine of high purity containing 4 grams. It had the potential value of $80,000. He was sentenced to five years’ imprisonment. Duggan J, with whom David J agreed, considered five years’ imprisonment was within the range for that offending. It was accepted that some of the drug was for personal use, but the majority of it was intended for sale.
[8] [2010] SASCFC 30.
In R v Day,[9] the defendant was regarded as a mid-level dealer. In that case, the weight of methylamphetamine was 11 grams out of a total substance of 1.5 kilograms. The purity was low. In addition, the defendant had 32.1 grams of MDMA, or ecstasy. Sulan J, with whom Doyle CJ and White J agreed, considered that a starting point of seven years’ imprisonment for a mid-range dealer with that quantity of drugs was appropriate.
[9] [2009] SASC 84.
In my view, the sentence of three years’ imprisonment was well within the range of sentences for trafficking in methylamphetamine, even at a low level.
As to the submission that the sentencing Judge took into account that the prescription drugs were for sale when the charge was that he was simply in possession, I refer to the comments of the sentencing Judge of which complaint is made:
It is true that some of the tablets found in your possession could be consistent with self medication for your problems, but significantly there was the evidence of Detective Brevet Sergeant Bentley that these prescription drugs have a black market value when sold with illicit drugs such as amphetamines. Although you have these physical ailments, they can be managed in the prison environment; indeed, they have been since you were taken into custody in February last year.
Counsel for the DPP submits that there is no offence of possession of a prescription drug for sale. At the trial, there was evidence that the prescription drugs have a black market value, if sold in conjunction with methylamphetamine. The sentencing Judge was merely referring to that evidence.
The appellant’s evidence that the prescription drugs were for use by members of his family was rejected. The suggestion that the prescription drugs may have been for his own benefit was also rejected.
The drugs were found in press sealed bags similarly packed to the methylamphetamine. The Judge’s comment was justified.
It is submitted that, because it was an aggravating factor of the offending if the prescriptions drugs were held for sale, the Judge should have concluded that those drugs were in the possession of the appellant for sale beyond reasonable doubt. It is submitted that he did not do so. It is submitted that the Judge was in error in that regard.
The jury rejected the defence case. In my view, it was open to the Judge to make a finding, if such finding were made, that the prescription drugs were for sale. Nevertheless, even if the Judge was in error in so concluding, in my view the final sentence was not manifestly excessive and was well within the range for this type of offending.
There is no complaint in respect of the sentence imposed for the Magistrates Court offending. In my view, having regard to the totality of the offending and having regard to the appellant’s antecedence, there is no basis to conclude that the sentence was manifestly excessive.
I would dismiss the appeal.
ANDERSON J. I would dismiss the appeal for the reasons given by Sulan J.
PEEK J. I would dismiss the appeal for the reasons given by Sulan J.