R v Owen - [2017] SASCFC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v OWEN
[2017] SASCFC 74
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Hinton)
30 June 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - FAILURE TO EXERCISE DISCRETION
Appeal against refusal to suspend sentence. The appellant pleaded guilty to two counts of trafficking in a controlled drug and one count of unlawful possession. The sentencing Judge imposed a single sentence of two years, nine months, one week and six days imprisonment, and fixed a non-parole period of twelve months. The sentence was not suspended.
On appeal, the appellant contended that the Judge erred in failing to suspend the sentence of imprisonment. The failure to suspend was challenged on two bases: that the Judge sentenced on the basis of a material misapprehension of fact as to the period of the appellant’s offending; and that, even absent any error, the failure to suspend was not open to the Judge in all the circumstances.
Held per Nicholson J (Stanley and Hinton JJ agreeing), dismissing the appeal:
1. The appellant has not established that the Judge sentenced on the basis of a material misapprehension of fact.
2. The Judge did not err in refusing to exercise the discretion to suspend.
Criminal Law (Sentencing) Act 1988 s 18A, s 38; Controlled Substances Act 1984 s 32; Summary Offences Act 1953 s 41; Correctional Services Act 1982 s 37A, referred to.
R v Jongewaard [2009] SASC 346, considered.

R v OWEN
[2017] SASCFC 74
Court of Criminal Appeal: Stanley, Nicholson and Hinton JJ
STANLEY J.

I would dismiss the appeal. I agree with the reasons of Nicholson J.
NICHOLSON J.
Introduction
On 3 February 2017, Sean Edward Owen, the appellant,[1] was sentenced to imprisonment for two years, nine months, one week and six days with a non-parole period of 12 months for two counts of trafficking in a controlled drug[2] and one count of unlawful possession.[3] A single sentence to this effect was imposed pursuant to section 18A of the Criminal Law (Sentencing) Act 1988. The sentence was not suspended and was backdated to commence 19 October 2016.
[1] A single Judge of this Court granted permission to appeal on 8 May 2017.
[2] Contrary to section 32(3) of the Controlled Substances Act 1984.
[3] Contrary to section 41(1) of the Summary Offences Act 1953.
The notice of appeal contains two grounds of appeal.
1.The learned sentencing Judge erred in failing to suspend the sentence of imprisonment.
2.The learned sentencing Judge erred in sentencing remarks by stating that I was introduced in March 2015 instead of March 2016 as was the case.
The notice of appeal was drawn by the appellant at a time when he was without representation. The second ground refers to an apparent finding by the Judge that the appellant was introduced to and became a user of and seller of methylamphetamine in March 2015 whereas it is common ground that this occurred in or shortly after March 2016. Whether or not such a factual error was made by the Judge is considered later in these reasons.
By the time of the hearing of the appeal, the appellant had secured an administrative release from custody on home detention conditions upon the exercise of the power vested in the Chief Executive of the Department for Correctional Services by section 37A of the Correctional Services Act 1982. Nevertheless, and for reasons it is unnecessary to explore here, the appellant remained keen to secure, upon a favourable outcome of the appeal, a wholly suspended prison sentence.
At the hearing of the appeal, the appellant was represented by counsel. Counsel advised the Court that ground one was pursued but that ground two, as an independent ground of appeal, was no longer pursued although it was still pressed as a particular of ground one. As I understood the appellant’s position, neither the head sentence nor the non-parole period was the subject of challenge. However, the failure to suspend was challenged on two bases. The first is that the decision had been infected by a material mistake of fact being that alluded to in ground two of the notice of appeal.[4] The second is that, even absent any mistake of fact, the discretion must have miscarried because the failure to suspend was not open to the Judge in all the circumstances.[5]
[4] That is, a process error in the sense explained in House v The King [1936] HCA 40; (1936) 55 CLR 499.
[5] That is, an outcome error in the sense explained in House v The King [1936] HCA 40; (1936) 55 CLR 499.
The basis, in brief, for the sentence imposed
The appellant was arrested on 6 June 2016. Following a search of the appellant’s person and subsequent search of the room in which he was staying, the police located the following:
(i)a number of resealable plastic bags containing, respectively, 1.5 grams, 1.7 grams, 1.5 grams, 1.7 grams, 0.8 of a gram, 0.6 of a gram and 0.8 of a gram of cannabis (total weight, 9.1 grams)[6] and a further resealable bag containing 8.8 grams of cannabis; and
(ii)a number of resealable plastic bags containing, respectively, 0.07 of a gram, 0.07 of a gram, 0.05 of a gram and 0.07 of a gram of substance which included methylamphetamine (total weight, 0.26 of a gram) and a further 16 resealable bags each containing a crystalline substance which included methylamphetamine, the majority of which each weighed approximately 0.1 of a gram with the bags in total weighing 1.38 grams; and
(iii)two bundles of cash in the amount of $780 and $1,500 respectively.
[6] The seven individual weights total only 8.6 grams. The description in the text comes from the written case summary agreed to by the parties and provided to the Judge. The case summary refers to eight bags but only lists the seven as referred to in the text.
Also located by the police were items consistent with drug trafficking including empty plastic resealable bags in different sizes, digital scales and a so-called “tick list” that referred to various amounts, presumably of methylamphetamine, together with numbers written next to each entry. Police also examined the appellant’s mobile telephone. The phone held a picture of what appeared to be a large quantity of methylamphetamine and also text messages, the contents of which were consistent with trafficking in both cannabis and methylamphetamine. The text messages dated back to 11 April 2016, that is, some eight weeks or so prior to the date of arrest.
The accused pleaded guilty to the three charges on the agreed factual basis that he intended to sell some of the seized drugs in order to finance his own habit. He conceded that the money seized by the police was the proceeds of drug trafficking. The Judge in his sentencing remarks summarised the appellant’s personal circumstances in the following terms.
You are currently 40 years of age and, although you grew up in Canberra, you spent much of your adulthood in Adelaide. You are the eldest of two children. Your parents divorced when you were 12 years old. Although you have had not much contact with your family for the past three to four years, you described your childhood as reasonably normal.
You are a qualified electrician and you have worked as such for the majority of your adult life, previously running your own business and subcontracting. Your business closed down approximately two-and-a-half years ago as a result of financial pressures. You have since been unemployed and, as a consequence of no longer having an income, you were evicted from your rental property and began living in your car in February 2015. As of March that same year, you started residing at a men's shelter whereby, and I have regard to a handwritten letter by you to the court, you were introduced to illicit drugs. You began using these with these new friends, in large part to fit in with them but also, in your words, to 'escape the situation' you were in.
Your letter expresses a great deal of remorse and contrition on your behalf and is a positive sign that you are heading in a positive direction in terms of reforming.
You have now been in custody since 6 June 2016 and you appear to have used your incarceration to make some positive steps toward turning your life around, including quitting smoking and focussing on your health and well-being. These are positive factors.
These observations are supported by a court-ordered pre-sentence report in which you appear to demonstrate insight into your offending. You mentioned the shame you feel, particularly in relation to your methylamphetamine use, and you accept full responsibility for your actions and are looking forward to living a drug-free life once you are released from custody.
You have employment lined up once you are released with a friend who runs an electrical business.
In addition, the Judge noted the appellant’s antecedent criminal history, in particular, that it included two convictions for cultivating cannabis (although without any commercial element) once in 2012 and once in 2016.
The Judge, after having explained how he had arrived at the head sentence earlier identified, went on to find in recognition of the appellant’s personal circumstances, particularly his good prospects for rehabilitation and the progress he had made to date, that a much lower than usual non-parole period of 12 months was justified. However, his Honour then observed:
In light of the seriousness of your offending, your previous history, and the importance of general deterrence there is not good reason to suspend the term of imprisonment.
Did the Judge sentence on the basis of an error of fact and if so was it material?
The complaint here derives from the language used by the Judge in his sentencing remarks when he summarised how it came about that the appellant commenced using illicit drugs. His Honour said this.
[Y]ou were evicted from your rental property and began living in your car in February 2015. As of March that same year, you started residing at a men's shelter whereby, and I have regard to a handwritten letter by you to the court, you were introduced to illicit drugs.
There is an error of fact as recorded in that passage. The appellant did start to live in his car in February 2015. However, it was March 2016 (not March that same year, that is, 2015) that the appellant started residing at the men’s shelter. Of itself, this error is of no consequence. However, the question arises whether, as the appellant contends, the Judge compounded that error by sentencing on the basis that the appellant was introduced to illicit drugs as early as March 2015 rather than in or shortly after March 2016. If his Honour had sentenced on that incorrect basis, it might be inferred that his Honour was of the view at the time of sentencing that the appellant had not only been introduced to illicit drugs some 15 months or so prior to his arrest but that he had been trading in drugs for that whole period rather than the six to eight week period being the agreed basis for sentencing.
It is further contended that the scope for leniency in the event of a background of trading for 15 months would be significantly less than the scope for leniency in the circumstances of a background of trading for six to eight weeks and that this error, if committed by the Judge, is likely to have had a material bearing on the Judge’s decision not to suspend the prison sentence.
The information before the Judge bearing on this issue was as follows.
(i)At the time of sentencing submissions on 30 November 2016, the Judge had before him the written case summary prepared by the prosecution and agreed with by the appellant. In that case summary, reference was made to the effect that the text messages indicative of street trading and found on the appellant’s telephone dated back to 11 April 2016. There is no other reference in the case summary document or in the submissions made by either counsel on 30 November 2016 referrable to the period of trading.
(ii)During the submissions heard on 20 January 2017, the Judge was informed by counsel for the appellant that the ‘venture [that is, the sale activity] had been going on for some six to eight weeks’.
(iii)During the sentencing submissions on 20 January 2017, counsel for the appellant referred to ‘an undated letter from my client addressed to your Honour’ and the Judge responded ‘Yes, I’ve read that’. The undated letter addressed to the Judge includes the following.
I was evicted from my rental property for non-payment of rent in February 2015. I lost all my possessions (everything I owned) when this happened. Since then I have lived in my car until March 2016. ... From March 2016, I stayed at a men’s shelter. In the time that I stayed there, I was exposed to illicit drugs very quickly. I formed a new circle of friends, then began to experiment with these drugs ... I started to sell a small amount to my new circle of friends to support my drug taking.
(iv)In the pre-sentence report dated 18 January 2017, it is recorded that the appellant:
[D]enied using anything other than cannabis until March 2016 when he was introduced to methylamphetamine by other residents in the men’s shelter where he was residing at the time. He stated that he both smoked and injected ‘meth’ for a period of two and a half months ...
In order to finance his own drug taking he found himself buying more than he needed and selling it to the others...
At the end of the submissions on 20 January 2017, the Judge said to the parties:
I will review the matter in detail and re-read everything tendered so I will need to adjourn the matter for sentence.
It is to be assumed that his Honour did so. It was only some 14 days later, on 3 February 2017, that the Judge delivered sentence. Furthermore, in the context of the impugned passage in the sentencing remarks (set out earlier) the Judge specifically stated that he had had regard to the appellant’s letter.
Elsewhere in his sentencing remarks the Judge referred to the text messages on the mobile phone as being consistent with trafficking in both cannabis and methylamphetamine although he did not expressly identify that they dated back to 11 April 2016. The Judge also observed (incorrectly as already noted) that it was as of March 2015 that the appellant started to reside at the men’s shelter. Apart from these veiled references, the Judge did not expressly advert to any period of background offending. In particular, there is no positive statement suggesting a 15 month period.
There is no reason to think that the Judge did not have present to his mind the information, agreed upon by both parties, as to the extent of the period of background trading. To the extent that the incorrect reference to having commenced residing in the men’s shelter in 2015 might suggest that the Judge also thought that the appellant commenced selling drugs as early as that, the language actually used by the Judge is, at best for the appellant’s case, ambiguous. In all the circumstances, the appellant has not satisfied me that the Judge in fact made the error as asserted.
In any event and on a reading of the sentencing remarks as a whole, the Judge appears to have paid little regard to the extent of the background trading as opposed to how or why it came about. The extent of background trading is a matter relevant only to the amount of leniency, if any, that might be allowed. By not emphasising the extent of the background trading the judge has, if anything, acted favourably towards the appellant with respect to the question of leniency.
Was the failure to suspend not open to the Judge in all the circumstances?
The appellant’s complaint under this heading is that the Judge committed an outcome error in the sense that the prison term imposed was manifestly excessive in all of the circumstances by reason of the failure to suspend the prison sentence. In R v Jongewaard,[7] Doyle CJ (with whose reasons Layton and Kourakis JJ (as his Honour then was) agreed) said this.
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
[25] As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
As the former Chief Justice also indicated in Jongewaard,[8] the argument that a sentencing judge has erred in failing to suspend a prison sentence ‘will succeed only if this Court is persuaded that it was not open to the Judge to find that there was not “good reason” for suspending the sentence, in exercise of the power conferred by s38(1) of the Sentencing Act’.
[7] [2009] SASC 346 at [40].
[8] R v Jongewaard [2009] SASC 346 at [42].
The appellant was found guilty of trafficking in both methylamphetamine and cannabis. The appellant can be regarded as operating at the level of a street trader in that he had a group of customers to whom he supplied small, it would appear single dose, quantities from time to time. Whilst the appellant was only to be sentenced for the offences as charged, any scope for leniency was constrained by the agreed fact that the offences were committed against a background of trafficking over a prior six to eight week period.
Further, the appellant was not a first offender although this was the first time he had been charged with a drug offence involving commerciality. On this occasion the evidence of commerciality existed albeit primarily in order to support the appellant’s own drug use. In this respect, it is of some significance to note that there was no evidence that the appellant had an addiction; his personal use of methylamphetamine was confined to the eight weeks or so between his introduction to the drug after arriving at the men’s shelter in March 2016 and the time of his arrest in June 2016. In these circumstances, leniency on the basis that the appellant was forced to sell methylamphetamine in order to fund an addiction does not appear to be justified. The appellant had entered upon a new lifestyle that he was unable to fund in the absence of some trading.
There is no doubt that the appellant’s personal circumstances engender sympathy and lend significant support to a favourable exercise of the discretion to suspend. Nevertheless, the offending was serious as the Judge’s starting point of imprisonment for four years suggests. Further, the need for sentences in this area to promote general deterrence has repeatedly been advocated by the Court of Criminal Appeal.

Accepting that the Judge sentenced the appellant on the correct factual basis of a background of trading for approximately six to eight weeks, it cannot be said that it was not open to the Judge to find that there was not good reason to suspend. It cannot be said the Judge’s refusal to suspend the sentence was “unreasonable or plainly unjust”[9] so as to fall outside the discretion available to the Judge in this respect.
[9] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.
In the context of this ground of appeal, counsel for the appellant submitted that the Judge had applied the wrong test for suspension when his Honour said:
In light of the seriousness of your offending, your previous history, and the importance of general deterrence there is not good reason to suspend the term of imprisonment.
It was submitted that the Judge was looking for reasons not to suspend rather than asking himself the proper question as required by section 38(1) of the Criminal Law (Sentencing) Act 1988 – did the Judge think ‘that good reason exists’ for suspending the sentence?
The criticism is not justified. Upon reading the sentencing remarks as a whole, the Judge had regard to the relevant considerations relating to the circumstances of the offending, the appellant’s personal circumstances and the role of deterrence and found himself not satisfied that good reason existed to suspend.
Conclusion
I am not satisfied that the Judge sentenced, including arriving at his decision not to suspend, on the basis of a material misapprehension of fact. The failure to suspend did not render the sentence as a whole manifestly excessive.
There was no error by the Judge attending the refusal to suspend the sentence imposed and I would dismiss the appeal.
HINTON J.
I agree with Nicholson J for the reasons he gives that the appeal should be dismissed.