R v Palmer - [2016] SASCFC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PALMER
[2016] SASCFC 34
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Doyle)
24 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES
Appeal against sentence. The appellant was sentenced to a term of four years and three months imprisonment for an offence of trafficking in methylamphetamine contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The Judge fixed a non-parole period of two years and nine months. The appellant pleaded guilty. He was entitled to a discount of up to 30 per cent pursuant to s 10C(2)(b) of the Criminal Law (Sentencing) Act 1988 (SA). The sentencing Judge reduced the notional head sentence for the plea of guilty by “almost 30 per cent”.
The appellant appeals, by permission, against his sentence of imprisonment for 4 years and 3 months with a non-parole period of two years and nine months on the grounds that the head sentence and the non-parole period are manifestly excessive and that the sentencing Judge erred in not giving the appellant the full 30 per cent discount for his plea of guilty.
Held per Stanley J (Kourakis CJ and Doyle J agreeing):
1. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence . Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below at [17]).
2. Sentencing judges in utilising s10C of the Criminal Law (Sentencing) Act 1988 (SA) should adopt a utilitarian approach by giving the maximum discount available for a guilty plea pursuant to the provision unless good reason exists not to do so (at [19]).
3. To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing judge (at [21]).
4. The fixing of a non-parole period serves a different function from the setting of a head sentence (at [26]).
6. The head sentence imposed was not manifestly excessive (at [22]).
7. The non-parole period imposed was manifestly excessive (at [27]).
Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 10C(2)(b), referred to.
R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; R v McPhee [2014] SASCFC 107; R v Dwyer (2015) 121 SASR 587; R v Nguyen [2015] SASCFC 40; R v McPartland and Polkinghorne (2014) 120 SASR 69; Hili v The Queen (2010) 242 CLR 520; R v Levy (2015) 122 SASR 445; R v Creed (1985) 37 SASR 566; R v Stewart (1984) 35 SASR 477; R v Winters [1997] SASC 6230; R v Miller (2000) 76 SASR 151; R v Shrestha (1991) 173 CLR 48; Bugmy v The Queen (1990) 169 CLR 525; R v Moyle (1996) 186 LSJS 462; R v Miller (2000) 76 SASR 151; R v Niesen [2015] SASCFC 165; The Queen v Morse (1979) 23 SASR 98, considered.

R v PALMER
[2016] SASCFC 34
Court of Criminal Appeal: Kourakis CJ, Stanley and Doyle JJ

KOURAKIS CJ:
I would dismiss the appeal against the head sentence but allow the appeal against the non-parole period for the reasons given by Stanley J.

For the following reasons, I would join in fixing a non-parole period of two years, one month and two weeks.
The non-parole period is a very important part of a sentence of imprisonment. Of course the starting point of the determination of the non-parole period is the head sentence. The head sentence is therefore the primary determinant of the non-parole period. However, the fixing of the non-parole period is a different discretionary exercise to fixing the head sentence, even though it is informed largely by the same considerations, and therefore warrants separate consideration.
The purpose of fixing a non-parole period is to determine the optimum time at which the defendant will respond to parole and make the most of the opportunity it allows for rehabilitation after serving the minimum period necessary to meet the punitive and protective purposes of punishment. It is for that reason that relatively more weight is given to rehabilitation in fixing the non-parole period.
Nonetheless the discretion demands a balancing of the competing sentencing objectives. A judge’s prediction about an offender’s future behaviour is not the determinative criterion. Indeed judges neither have a crystal ball nor any special intelligence with which to make such predictions. The need for punishment and protection will generally result in non-parole periods of between one half and three quarters of the head sentence. Where in that range, or in special cases where outside that range, the non-parole period is fixed will depend on a realistic balancing of positive and negative indications of the offender’s prospects of rehabilitation. That balancing does not necessarily entail the making of a prediction. This is a fraught area. There is a real risk of heuristic error by judges who, for one reason or another, believe they have gained an intuitive understanding of the psychology of the defendants they are sentencing. The safer course is to fix a lower or higher proportion by reference to the usual range depending on whether the offender has relatively poor or good indications for rehabilitation. That assessment must be based largely on factors like the offender’s antecedents, previous responses to community corrections orders, degree of contrition and demonstrated willingness and capacity to overcome criminogenic factors.
In this case the Judge gave no reason for fixing the proportion he did. The appellant’s offending history and past alcohol and drug abuse are poor indicators for rehabilitation. On the other hand his:
·long abstinence from using illicit drugs;
·employment record after moving to Whyalla;
·age;
·supportive family; and
·attempt to establish himself financially
are positive indicators.
Importantly the appellant has not been sentenced to prison before and has therefore not had the benefit of supervision on parole. Recidivists who have not reformed after a period on parole are less likely to receive a non-parole period close to the lower end of the range both because personal deterrence will demand greater weight and because the Court will have less confidence in their prospects for rehabilitation. On the other hand, in the absence of any high risk factors, an offender who has not previously been supervised on parole is more likely to be given the benefit of serving a greater proportion of his or her sentence on parole.
On balance, the appellent’s circumstances warrant a relatively early opportunity to resume his rehabilitative path under parole supervision.
STANLEY J:
Introduction
This is an appeal against sentence.
The appellant was sentenced to a term of four years and three months imprisonment for an offence of trafficking in methylamphetamine contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (“the CSA”). The Judge fixed a non-parole period of two years and nine months.
The appellant pleaded guilty. He was entitled to a discount of up to 30 per cent pursuant to s 10C(2)(b) of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).
The sentencing Judge reduced the notional head sentence for the plea of guilty by “almost 30 per cent”. The appellant complains that the head sentence and the non-parole period are manifestly excessive and that the sentencing Judge erred in not giving the appellant the full 30 per cent discount for his plea of guilty.
Circumstances of the offending
On 10 March 2015 the appellant was arrested at the Whyalla Stateliner Bus Terminal. His arrest occurred shortly after he alighted from the Adelaide bus. Police searched him and found in his possession $3,400 cash, 12 grams of paste containing 7.83 grams of methylamphetamine, 2.92 grams of crystals containing 2.18 grams of methylamphetamine and rock material containing cocaine, as well as other illicit substances including cannabis. The street value of the methylamphetamine exceeded $7,200. The appellant’s offending was not isolated. There was evidence that he had been trafficking in methylamphetamine and other drugs for some time before his arrest. The appellant had acquired the drugs in Adelaide. The appellant’s intentions were to supply some of the methylamphetamine and other drugs to street dealers and to sell some directly to his own customers in Whyalla.
Appellant’s personal circumstances
The appellant is 39 years of age. He was previously addicted to cannabis, heroin and ice but had overcome his addictions some years prior to this offending. He has not used illicit drugs for some five years. In the past he has also abused alcohol. He has prior convictions for, inter alia, possession of cannabis, possessing equipment to administer cannabis, taking part in the sale of a controlled substance, possession of a controlled drug not cannabis, and possession of a prescription drug not being a drug of dependence. In addition, he has longstanding convictions for offensive weapons, firearms and violence offences. Previously, however, he has not served a term of imprisonment.
In 2011 the appellant decided to relocate to Whyalla to make a new start and to escape the drug scene in Adelaide. This proved successful. He obtained employment in the mining industry where he was subjected to a strict regime of regular alcohol and drug testing. He purchased two houses in Whyalla. Unfortunately in January 2015 he lost his driver’s licence due to an accumulation of demerit points. He disclosed this to his employer. As a result he was unable to work in the mining industry for the six-month period of his disqualification. He was granted leave without pay. He was unable to find any other work and was not entitled to Centrelink benefits. He was without any income and in these circumstances resorted to drug trafficking to survive financially.
A psychologist, Mr Richard Balfour, assessed the appellant as being intelligent, with a good work ethic and a supportive family. He considered the appellant is clearly motivated to rehabilitate himself and that if given the opportunity to participate in a comprehensive rehabilitation program he will be able to reintegrate his life and become a productive member of the community.
Approach on appeal
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[1] where Doyle CJ said:[2]
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]:
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”.
[1] [2009] SASC 346, (2009) 266 LSJS 283.
[2] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288 – 289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[3] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer[4] by Kourakis CJ,[5]if the error identified by the Full Court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the Full Court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[3] [1936] HCA 40, (1936) 55 CLR 499 at 504 - 505.
[4] [2013] SASCFC 130, (2013) 118 SASR 211.
[5] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214 – 215.
It is convenient to address first the appellant’s complaint concerning the discount given for the guilty plea.
Discount for the guilty plea
The appellant complains that the Judge failed to explain why he did not give the appellant the full 30 per cent discount for his guilty plea permitted by s 10C of the Sentencing Act. In R v Niesen[6] Nicholson and Lovell JJ said that it was preferable, and in many cases, highly desirable for a sentencing judge to nominate a starting point before making the reduction required by s 10C.[7] The Judge did not disclose the starting point in this case. However, by a process of arithmetic extrapolation it is obvious that the notional starting point for the sentence imposed was six years. Accordingly, the ultimate head sentence of four years and three months represents a discount of something over 29 per cent. Pursuant to s 10C of the Sentencing Act the appellant was entitled to a reduction in his sentence for his guilty plea of up to 30 per cent. In the recent past this Court has emphasised that sentencing judges in utilising s 10C should adopt a utilitarian approach by giving the maximum discount available for a guilty plea pursuant to the provision unless good reason exists not to do so.[8]In that event it is incumbent upon a sentencing judge to provide adequate reasons for not giving the maximum discount available. In this case, the Judge said that he would allow a discount of “almost 30 per cent” for the plea of guilty. In these circumstances no further explanation was required. I am satisfied that the Judge intended to impose a sentence fixed in years and months. Had the Judge imposed a sentence of four years and two months that would have represented an impermissible discount of more than 30 per cent. The practical effect of imposing a sentence of four years and three months was to give a discount of as close to 30 per cent as could be achieved within the sentencing parameters adopted by the Judge. No further explanation was required. In this context I note that neither the terms of s 10C nor the authorities of McPhee, Dwyer and Nguyen require a sentencing judge to give the maximum discount prescribed by s 10C. There is no error disclosed.
[6] [2015] SASCFC 165.
[7] [2015] SASCFC 165 at [76].
[8] R v McPhee [2014] SASCFC 107; R v Dwyer [2015] SASCFC 12, (2015) 121 SASR 587 and R v Nguyen [2015] SASCFC 40.
Manifestly excessive?
I turn to consider the ground that the head sentence and non-parole period are manifestly excessive. In The Queen v Morse[9] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[10]
[9] (1979) 23 SASR 98.
[10] (1979) 23 SASR 98 at 99.
To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing Judge.[11]In Hili v The Queen[12] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[13]
… appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
[Citations omitted].
[11] R v McPartland and Polkinghorne [2014] SASCFC 84 at [15], (2014) 120 SASR 69 at 77 – 78.
[12] [2010] HCA 45, (2010) 242 CLR 520.
[13] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 538 – 539.
Head sentence
The maximum sentence for contravention of s 32(3) of the CSA is 10 years imprisonment or a fine of $50,000 or both. In my view the notional starting point of six years, while substantial, is within the range of four to seven years established by this Court in R v Levy[14] for trafficking in methylamphetamine by street dealers. Indeed, while some of this offending can conveniently be characterised as street dealing it also involved offending in the nature of supply to street dealers. It was committed for financial reasons, not to support an addiction. Considerations of deterrence, both specific and general, had to weigh heavily in fixing an appropriate sentence. It is not a matter of whether it is a sentence this Court would have imposed but rather whether it is within the range of available sentences for offending of this kind by this offender. In my view, the sentence imposed is within the available range. It is not manifestly excessive.
[14] [2015] SASCFC 27, (2015) 122 SASR 445.
Non-parole period
In R v Creed[15] King CJ, with whom Cox and Olsson JJ agreed, said:[16]
In fixing a non-parole period, as in fixing a head sentence, a judge has to bear in mind the purposes for which sentences are imposed. The non-parole period, no less than the head sentence, must reflect the basic consideration of justice that the punishment should fit the crime, having regard both to the offence and the offender, and it must reflect the community's sense of justice, what in some of the cases is called “the moral sense of the community”. For that reason alone the non-parole period, no less than the head sentence, should be properly proportionate to the gravity of the crime.
[15] (1985) 37 SASR 566.
[16] (1985) 37 SASR 566 at 568.

In R v Stewart[17] King CJ said:[18]
Having considered what is the minimum term of imprisonment which is required to meet the punitive and protective purposes of punishment I must then consider whether parole is appropriate on other grounds. That involves a consideration of the likelihood of the applicant responding to parole. I must consider what prospects there are of his rehabilitation by means of parole and what prospects there are of his observing the terms of parole, responding to it and leading a good and useful life in consequence.
[17] (1984) 35 SASR 477.
[18] (1984) 35 SASR 477 at 479.
In R v Winters[19] Doyle CJ, with whom Matheson and Olsson JJ agreed, considered the observations of King CJ in Stewart. He said:
I do not suggest that what King CJ there said is exhaustive of the matters that require consideration. However, as I have already said, these passages conveniently summarise the approach to be taken.
It is clear from what his Honour said, that in fixing a non-parole period the Court must continue to bear in mind and give appropriate weight to the purposes for which punishment is imposed. That was recognised by the High Court in Power v The Queen (1974) 131 CLR 623 and more recently affirmed by the High Court in Bugmy v The Queen (1990) 169 CLR 525. As was said by Mason CJ and McHugh J (at 531):
“... It follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.”
This is so, even though the purpose of the parole system is directed towards rehabilitation: The Queen v Shrestha (1991) 173 CLR 48 at 69.
[19] [1997] SASC 6230.
The fixing of a non-parole period serves a different function from the setting of a head sentence. In R v Miller[20] Doyle CJ observed that in accordance with what was said by the High Court in R v Shrestha,[21] in fixing a non-parole period it is appropriate to give greater weight to rehabilitation than would be the case in fixing the head sentence. This recognises the different purpose to be served by the fixing of a non-parole period as against a head sentence[22] and the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.[23]
[20] [2000] SASC 16 at [42], (2000) 76 SASR 151 at 160.
[21] [1991] HCA 26, (1991) 173 CLR 48 at 68 – 69.
[22] Bugmy v The Queen [1990] HCA 18, (1990) 169 CLR 525 at 531; R v Moyle (1996) 186 LSJS 462 at 465.
[23] R v Miller [2000] SASC 16 at [42], (2000) 76 SASR 151 at 160.
The non-parole period of two years and nine months represents about two‑thirds of the head sentence imposed. The sentencing Judge gave no reasons for fixing the non-parole period. In my view, the non-parole period fixed by the Judge is high given the appellant’s reasonable prospects for rehabilitation and the fact that this is the first term of imprisonment he has served. The sentencing Judge may have had sound reasons for fixing a non-parole period of nearly two‑thirds of the head sentence. Unfortunately, if he did, he has failed to explain those reasons. I consider that a non-parole period of this length exceeds what, on any view, is reasonably required for the punitive and protective purposes of punishing this offender given the prospects for his rehabilitation. In the absence of any explanation I consider that the non-parole period is outside the range of available sentences for offending of this type by this offender. I consider it manifestly excessive.
I would set aside the non-parole period fixed by the Judge and in lieu thereof fix a non-parole period of two years, one month and two weeks.
Conclusion
I would allow the appeal. I would set aside the non-parole period fixed by the Judge and in lieu thereof fix a non-parole period of two years, one month and two weeks.
DOYLE J: I would allow the appeal. I agree with the reasons of Stanley J, and the orders he has proposed.