R v PAULY

Case [2011] SASCFC 113

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PAULY

[2011] SASCFC 113

Judgment of The Court of Criminal Appeal

(The Honourable Justice White, The Honourable Justice David and The Honourable Justice Peek)

20 October 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

The respondent pleaded guilty to the offence of trafficking in a controlled drug in contravention of the Controlled Substances Act 1984 (SA) s 32(3) and was sentenced to imprisonment for 12 months, with a non-parole period of eight months - the sentence was suspended - the Director of Public Prosecutions sought permission to appeal against the sentence on the grounds of failure to maintain proper sentencing standards.

Whether sentence so low so as to fail to maintain adequate sentencing standards; whether appropriate for the Director to be granted permission to appeal; whether trial Judge's reasons were inadequate; whether the conduct of the prosecution contributed to the imposition of an inadequate sentence.

Held:  application for permission appeal refused - while the sentence imposed is unduly low, and fails to maintain proper sentencing standards for the offence of trafficking in a controlled drug, the impact on the respondent of granting permission to appeal, and the conduct of the prosecution at sentencing indicate that permission to appeal should be refused.

Criminal Law Consolidation Act 1935 (SA) s 340; Controlled Substances Act 1984 (SA) s 4, s 32; Criminal Law (Sentencing) Act 1988 (SA) s 38; Controlled Substances (General) Regulations 2000 reg 6, Sch 1, referred to.
R v Tait (1979) 46 FLR 386, applied.
Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Elliott (2001) 121 A Crim R 254; R v M [2008] SASC 348; R v Califano (2002) 222 LSJS 460; R v Holmes [2009] NTCCA 16; R v Mangelsdorf (1995) 66 SASR 60; R v Wilson (1990) 158 LSJS 134; R v Gjoka (Unreported, Supreme Court of South Australia, Doyle CJ, Olsson and Lander JJ, 1 July 1997, Judgt No S 6211, BC9702809); R v Frantzis (1996) 66 SASR 558; R v Cristol [2002] SASC 288; R v Hill [2005] SASC 380; Miller v Police [2002] SASC 387; R v Peel [2009] SASC 280; Miller v Police [2002] SASC 387; R v Peel [2009] SASC 280; R v Couper [2009] SASC 361; R v Clifford [2010] SASCFC 10; R v Nicholls [2011] SASCFC 81; R v Hicks (1984) 45 SASR 270; R v Wilton (1981) 28 SASR 362, considered.

R v PAULY
[2011] SASCFC 113

Court of Criminal Appeal:       White, David and Peek JJ

  1. WHITE J.             The respondent was sentenced in the District Court for the offence of trafficking in a controlled drug[1] committed on 12 January 2010 at Port Augusta.  A person may “traffic” in a controlled drug in three…

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R v Pauly [2011] SASCFC 113
Case
[2011] SASCFC 113
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions sought permission to appeal against a sentence imposed on the respondent, who had pleaded guilty to trafficking in a controlled drug contrary to section 32(3) of the Controlled Substances Act 1984 (SA). The respondent was sentenced to 12 months imprisonment, suspended, with a non-parole period of eight months. The grounds for the appeal were that the sentence failed to maintain proper sentencing standards. The appeal was heard by White, David, and Peek JJ of the Supreme Court of South Australia.

The court was required to determine whether the sentence imposed was unduly lenient and failed to meet appropriate sentencing standards for the offence of trafficking in a controlled drug. This involved considering the quantity and purity of the drug found, the respondent's personal circumstances, and the general principles of sentencing for drug trafficking offences, including the deterrence of commercial drug activity and the circumstances under which a prison sentence may be suspended. The court also had to consider the impact of the prosecution's conduct at first instance on the sentencing decision and whether it would be unjust to re-sentence the respondent based on evidence not fully presented or relied upon by the prosecution at the original hearing.

White J, in his reasons, acknowledged that the sentence imposed was lenient and fell below generally prevailing sentencing standards, particularly in light of Parliament's expectation that penalties for drug trafficking would deter such activity. He noted that suspension of a prison sentence for such offences is usually difficult to justify. However, White J ultimately refused permission to appeal, finding that it would be unjust to re-sentence the respondent based on evidence that the prosecution had not fully drawn to the sentencing judge's attention, and on which the respondent had not had a full opportunity to respond. This injustice arose from the Director's departure from the sentencing submissions made at first instance and the courts' aversion to exposing defendants to double jeopardy. David and Peek JJ agreed with White J's reasoning and proposed orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The policy considerations underlying the approach to prosecution appeals outlined in Everett and Nemer mean that in some cases it will be sufficient for the Court to indicate that a sentence is too low, but not to grant permission to the Director to appeal. Such a course can be appropriate when it is sufficient for the Court to identify the error and to reaffirm an appropriate sentencing standard.[6] It may also be appropriate when the conduct of the prosecution at first instance can be seen to have contributed to the imposition of an inadequate sentence.[7] However, once the Court has granted permission to appeal to the Director and is re-sentencing an offender, it is obliged to impose the sentence which should have been imposed in the first instance.[8][6] R v Elliott [2001] SASC 101 at [21]-[26], (2001) 121 A Crim R 254 at 257; R v Califano [2002] SASC 320 at [29]-[30], (2002) 222 LSJS 460 at 463-4; R v M [2008] SASC 348 at [41]; R v Holmes [2009] NTCCA 16 at [34].[7] Ibid.[8] Criminal Law Consolidation Act 1935 (SA) s 340.Background Circumstances On 12 January 2010, the respondent was 23 years old and unemployed. The police executed a search warrant at his house in Port Augusta. They found 18.14 grams of a mixture containing amphetamine. The mixture had 1.4 grams of pure amphetamine, that is, a purity of 7.7 per cent. On police estimates, the mixture, if sold by the gram, had a value of between $4,500 and $9,000. A friend of the respondent was present in the house. He also had a small quantity of amphetamine in his pocket. The Judge accepted the respondent’s submission that he had given his friend that drug in exchange for some cleaning services. The police did not find in the house any of the other typical indicia of drug dealing, such as scales, multiple small plastic bags, credit lists and large amounts of unexplained money. I have said “unexplained” because the police did locate a wad of notes but the prosecution accepted that it had been provided to the respondent by his father and was unrelated to any drug activity.The Judge’s Approach to Sentencing The Judge accepted that the respondent had a good employment history until 2008 when he had resigned from a well-paid job. It was at that time that he commenced heavy use of amphetamine. The Judge also accepted that the cessation of employment and commencement of drug use in 2008 was attributable to the acrimonious break-up of the respondent’s previous relationship. The respondent provided evidence of his attempts to re-enter the workforce, including by engaging in forms of work experience whilst he was on bail pending the resolution of the charge. The Judge accepted that he was likely to obtain employment readily once the prosecution was concluded. Counsel for the respondent submitted to the Judge that he (the respondent) had possession of the amphetamine found by the police primarily for his own use. Counsel went on to indicate that the plea of guilty had been entered on the basis that the commercial aspect of the offence lay in the respondent’s intention “on occasion [to] off load some of his product to a friend to defray some of his costs”. The supply to the friend in exchange for cleaning services was said to support this submission.

Evidence

Evidence Before The Court

It is neither necessary nor appropriate to reach a concluded view concerning the conflicting submissions about the SMS messages, for reasons which I will give shortly.Other Evidence of Drug Use Counsel for the Director also referred to other features of the evidence to indicate that the respondent’s offence could not be regarded as an isolated incursion into criminal activity, with the effect that he was not entitled to lenience on that account. This evidence included the presence of a bong and some cannabis in the respondent’s house. In addition, the police found some smashed glass in the toilet bowl which appeared to be derived from a form of pipe commonly used for illicit drugs. Counsel also referred to the respondent’s admissions about the extent of his personal drug use from which it could be inferred that he may, before 12 January 2010, have been expending up to $1,000 per day on amphetamines. The inference to be drawn, so it was submitted, was that the respondent’s commercial dealing in drugs must have been significant in order to finance this usage.Consideration of Appeal On any view, the sentence imposed in this case was very lenient and well below generally prevailing sentencing standards. This Court has referred on numerous occasions to Parliament’s expectation that courts will impose penalties which will deter people from engaging in commercial activity in relation to drugs.[12] This includes those offenders engaged in a relatively low level forms of drug distribution. As long ago as 1990, King CJ said, in relation to the offence of possession of heroin for sale:The drug trade flourishes because suppliers of drugs are able to find people like the appellant who are prepared to engage in the trade at the lower levels and in that way to entice other people into the same type of drug dependence and misery which has been experienced by the appellant himself. It is the duty of the Court, which has been made perfectly plain by the penalties prescribed by Parliament, to impose sentences which will, one hopes, deter other people from engaging in this type of conduct.[13]These remarks are equally apposite in the present case.[12] R v Mangelsdorf (1995) 66 SASR 60 at 63.[13] R v Wilson (1990) 158 LSJS 134 at 135. The authorities also indicate that it will usually be difficult for a sentencing court to find circumstances justifying suspension of a prison sentence”.[14] That is because of the seriousness of this type of offence, the approach to sentencing which this Court has indicated is appropriate, and the requirement under s 38 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) for there to be “good reason” for suspension. [14] R v Gjoka (Unreported, Supreme Court of South Australia, 1 July 1997, Jdgt No S 6211); R v Frantzis (1996) 66 SASR 558; R v Cristol [2002] SASC 288; R v Hill [2005] SASC 380 (by Besanko and Vanstone JJ); Miller v Police [2002] SASC 387. It is true that many of the authorities from which the general standards of sentences for offences of the present kind are derived were decided in the context of the former s 32 of the Controlled Substance Act 1984, which had a different penalty regime. The offence to which the respondent pleaded guilty, is one of three new offences created by the amended s 32 which came into operation on 3 December 2007. Section 32 now provides (relevantly):(1)A person who traffics in a large commercial quantity of a controlled drug is guilty of an offence.Maximum penalty: $500 000 or imprisonment for life, or both.(2)A person who traffics in a commercial quantity of a controlled drug is guilty of an offence.Maximum penalty: $200 000 or imprisonment for 25 years, or both.…(3)A person who traffics in a controlled drug is guilty of an offence.Maximum penalty: $50 000 or imprisonment for 10 years, or both.…

Decision

Reasons for decision

WHITE J
In my opinion, the principles stated in Tait should be applied in the present case. The Director now attaches considerable significance to the evidence indicating that the respondent’s offence on 12 January 2010 was not an isolated incursion into drug dealing, so that he was not entitled to any lenience. However, the prosecutor did not draw the Judge’s attention to much of this material. There would be an injustice to the respondent if this Court was now to act on the material on which counsel for the Director did not rely at sentencing. That injustice arises in part from the Director’s departure from the content of the sentencing submissions made to the Judge, and in part from the fact that the respondent was not given the opportunity before the Judge to challenge the characterisation of the SMS calls for which the Director now contends. Underlying both matters is the usual aversion of the courts to exposing defendants to forms of double jeopardy in relation to the one offence.Conclusion Although I consider that the sentence imposed by the Judge was unduly low, and did fail to maintain proper sentencing standards for the offence of trafficking in a controlled drug, I would refuse to grant permission to the Director to appeal. DAVID J: I would refuse to grant permission to the Director of Public Prosecutions to appeal. I agree with the reasons of White J. PEEK J: I agree with the orders proposed by White J and with his reasons.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

Counsel also referred to the respondent’s admissions about the extent of his personal drug use from which it could be inferred that he may, before 12 January 2010, have been expending up to $1,000 per day on amphetamines. The inference to be drawn, so it was submitted, was that the respondent’s commercial dealing in drugs must have been significant in order to finance this usage.Consideration of Appeal On any view, the sentence imposed in this case was very lenient and well below generally prevailing sentencing standards. This Court has referred on numerous occasions to Parliament’s expectation that courts will impose penalties which will deter people from engaging in commercial activity in relation to drugs.[12] This includes those offenders engaged in a relatively low level forms of drug distribution. As long ago as 1990, King CJ said, in relation to the offence of possession of heroin for sale:The drug trade flourishes because suppliers of drugs are able to find people like the appellant who are prepared to engage in the trade at the lower levels and in that way to entice other people into the same type of drug dependence and misery which has been experienced by the appellant himself. It is the duty of the Court, which has been made perfectly plain by the penalties prescribed by Parliament, to impose sentences which will, one hopes, deter other people from engaging in this type of conduct.[13]These remarks are equally apposite in the present case.[12] R v Mangelsdorf (1995) 66 SASR 60 at 63.[13] R v Wilson (1990) 158 LSJS 134 at 135. The authorities also indicate that it will usually be difficult for a sentencing court to find circumstances justifying suspension of a prison sentence”.[14] That is because of the seriousness of this type of offence, the approach to sentencing which this Court has indicated is appropriate, and the requirement under s 38 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) for there to be “good reason” for suspension. [14] R v Gjoka (Unreported, Supreme Court of South Australia, 1 July 1997, Jdgt No S 6211); R v Frantzis (1996) 66 SASR 558; R v Cristol [2002] SASC 288; R v Hill [2005] SASC 380 (by Besanko and Vanstone JJ); Miller v Police [2002] SASC 387. It is true that many of the authorities from which the general standards of sentences for offences of the present kind are derived were decided in the context of the former s 32 of the Controlled Substance Act 1984, which had a different penalty regime. The offence to which the respondent pleaded guilty, is one of three new offences created by the amended s 32 which came into operation on 3 December 2007. Section 32 now provides (relevantly):(1)A person who traffics in a large commercial quantity of a controlled drug is guilty of an offence.Maximum penalty: $500 000 or imprisonment for life, or both.(2)A person who traffics in a commercial quantity of a controlled drug is guilty of an offence.Maximum penalty: $200 000 or imprisonment for 25 years, or both.…(3)A person who traffics in a controlled drug is guilty of an offence.Maximum penalty: $50 000 or imprisonment for 10 years, or both.…