R v Peel
[2009] SASC 280
•9 September 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PEEL
[2009] SASC 280
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice White)
9 September 2009
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
Appellant pleaded guilty to offences of trafficking in a controlled drug and possession of a controlled drug - sentenced to three years imprisonment with a non-parole period of 12 months - appeal against sentencing Judge's decision not to suspend the sentence - appellant 19 years old at time of offending - sentencing Judge considered his rehabilitation prospects to be excellent.
Whether Judge erred in sentencing on the basis that the appellant dealt in both cocaine and ecstasy - whether Judge erred in concluding that the appellant sold drugs to other drug dealers - whether Judge erred in his use of evidence of uncharged offending - whether Judge's misunderstanding about the duration of the offending warrants interference with the sentence - whether change in penalty regime contained in s 32 of the Controlled Substances Act material to suspension decision.
Held: Judge erred in sentencing on the basis that the appellant dealt in both cocaine and ecstasy - appropriate for the Court to re-sentence the appellant - appropriate to suspend sentence of imprisonment.
Controlled Substances Act 1984 (SA) s 32, s 33; Criminal Law (Sentencing) Act 1988 (SA) s 10; Controlled Substances (General) Regulations 2000 (SA) reg 6, referred to.
R v Gjoka (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Doyle CJ, Olsson and Lander JJ, 1 July 1997, Judgment No S6211); R v Mangelsdorf (1995) 66 SASR 60; R v Reiner (1974) 8 SASR 102; Markarian v The Queen (2005) 228 CLR 357, applied.
R v Taddeo (1993) 67 A Crim R 338; R v Godfrey (1993) 69 A Crim R 318; R v Eggers [2006] SASC 174; R v Fowler (2006) 243 LSJS 285; R v Kane [2003] SASC 237; R v Stevens [2008] SASC 170, considered.
R v PEEL
[2009] SASC 280Court of Criminal Appeal: Bleby, Gray and White JJ
BLEBY AND WHITE JJ: The appellant pleaded guilty to two offences: trafficking in a controlled drug;[1] and possession of a controlled drug.[2] The drug involved in each offence was ecstasy (3,4-methylenedioxymethylamphetamine). A District Court Judge imposed a single sentence of imprisonment for three years with a non-parole period of 12 months. He declined to suspend that sentence.
[1] Contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
[2] Contrary to s 33L(1)(a) of the Controlled Substances Act 1984 (SA).
The appellant appeals against the decision not to suspend the sentence. He accepts that the head sentence and the non-parole period were appropriate.
The offences were committed on 12 and 13 June 2008 respectively, about three weeks after the appellant’s 19th birthday.
Late on 12 June 2008, following the arrest of another person in a separate investigation, the police obtained the appellant’s name and mobile telephone number. Using the pretence that they were interested in purchasing drugs, the police arranged to meet the appellant in the car park of a fast food outlet at Morphett Vale. The messages which passed between the appellant and the police preceding the meeting make it plain that the appellant expected to sell to his caller 10 tablets of ecstasy for a total price of $200. At the car park the appellant had 40 ecstasy tablets in his possession. A search of his room at his parents’ home, shortly after midnight, revealed a further 24 ecstasy tablets together with some portions of broken tablets.
The possession of the 40 ecstasy tablets was the subject of the first offence, as the appellant accepted that he had intended to sell them. The tablets found in his room were the subject of the second offence, as the prosecution accepted that the appellant had possession of them for his own personal use only.
At the time of the arrest, the police also seized the appellant’s mobile telephone. Later, they analysed the SMS messages (over 1,000) commencing on 21 May 2009 which were recorded on that telephone. The analysis indicated that the appellant had been engaged in selling ecstasy in the period from 21 May 2009 to 12 June 2009.
As already noted, the appellant had just turned 19 years of age at the time of the offending. He comes from a close family, and in June 2008 was still residing at home with his mother, father and an older sister. The appellant left school part way through Year 10 in order to commence as a trades’ assistant in commercial painting. He did that for approximately two years and later worked in the hospitality industry. A reference from one employer spoke well of the appellant. That employer had continued to provide work to the appellant even after becoming aware of the charges which he faced. The sentencing Judge accepted that the appellant has a strong work ethic and good employment prospects.
Since the offending (and before his imprisonment), the appellant has formed a relationship with a 23 year old school teacher. The Judge accepted that this girlfriend is a supportive and a stabilising influence for him.
The appellant commenced using ecstasy in September or October 2007. The Judge accepted that he had commenced low level selling of ecstasy in order to finance his own usage.
Although the appellant had had two prior court appearances, they were for unrelated matters and do not, of themselves, suggest that he was not a person of good character.
The Judge accepted that the appellant was genuinely contrite; that he had ceased altogether his use of drugs; that he was avoiding contact with the peer group in which he had been exposed to drug usage; that his arrest and prosecution had been salutary; and that his prospects of a successful rehabilitation were excellent. These factors led the Judge to impose a shorter than normal non-parole period.
The Judge’s Sentencing Approach
The Judge described the sentencing task as “a most difficult case”. The decision not to suspend the sentence “was not an easy decision” on the Judge’s part. He considered that the sentence need not reflect elements of personal deterrence but regarded general deterrence as “a paramount” consideration. That was because the SMS messages indicated the appellant’s “quite extensive” involvement in the sale of drugs. The Judge considered that, viewed against the background of the previous trading, the appellant’s offending was so serious that it outweighed other considerations pointing in favour of suspension.
Submissions on Appeal
Permission to appeal was granted by a judge of this Court on the ground that the sentencing Judge failed to give sufficient weight to the appellant’s personal circumstances in determining whether the sentence ought to be suspended. At the hearing of the appeal the appellant sought permission to appeal on the further ground that the sentencing Judge erred in declining to suspend the sentence as a result of giving undue weight to other uncharged offending. The Court indicated that it would hear argument on this ground and would rule on the application in the course of deciding the appeal.
In elaborating on the additional ground the appellant submitted that the Judge made a number of errors in his approach to sentencing. First, that the Judge had sentenced on the basis that, in addition to selling ecstasy, the appellant had also occasionally dealt in cocaine, when there was insufficient evidence to support that conclusion. Secondly, it was submitted that the Judge had wrongly regarded the appellant as having been engaged in the sale of ecstasy to other street level dealers. Thirdly, that the Judge had inappropriately treated his previous dealings in ecstasy as aggravating the offence of trafficking in that drug on 12 June 2008, with the effect that he had been sentenced for offences other than the two offences to which he had pleaded guilty. Finally, it was said that the Judge had been wrong in thinking that the SMS messages related to a 32 day period (1 May 2008 to 1 June 2008), when in fact they related to a 22 day period (21 May 2008 to 12 June 2008).
The aspects of the Judge’s sentencing remarks upon which the appellant relied are as follows:
Importantly, the offending surrounding Count 1 was not an isolated involvement with the drug. This offence was but part of an ongoing commercial involvement in this drug and sometimes cocaine. Although you cannot be sentenced for other offending with which you have not been charged and pleaded guilty, the degree of leniency that the Court is able to extend to you is reduced because this cannot be viewed as isolated offending. …
…
What is of great concern to me is the extent of your dealings prior to your arrest. It was not as if there was a conscious decision for you to become involved on an isolated occasion. There were numerous other occasions and you decided to keep going to support your own expensive habit.
As I touched upon previously, the extent of your SMS messages from your mobile phone is quite large from 1 May 2008 to 1 June 2008. They show, to some extent, not only that you were a street trader, but also a supplier to others who were minded to deal like you. You were not a small-time dealer, it was quite extensive.
…
… [Y]our offending is very serious having regard to the previous dealing against which this offending must be viewed, and general deterrence is very important.
…
[I]n my view your offending was too serious to suspend the inevitable period of imprisonment. [Emphasis added]
Consideration
The penalty regime
Section 32(3) of the Controlled Substances Act, the offence the subject of count 1, is one of three new offences created by the amended s 32 which took effect on 3 December 2007. Section 32 now relevantly provides:
32—Trafficking
(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.
…
…
Under the previous section, for trafficking in ecstasy, other than involving children or in a school zone, there were, in theory, two offences. When the amount involved equalled or was in excess of the prescribed amount, the maximum penalty was imprisonment for life or a fine of $500,000 or both. When it was less than the prescribed amount the maximum penalty was 25 years imprisonment or $200,000 fine or both. However, there was no amount prescribed for a drug of dependence. Therefore it was the latter maximum penalty which applied.
The greater of the two sets of penalties mentioned above now applies to an offence against sub-s (1), which relates to a “large commercial quantity” of a drug (in the case of ecstasy, 0.75kgs when the drug is pure and 1kg when the drug is mixed).[3] The lesser of the two sets of penalties mentioned above is the penalty now prescribed for an offence against sub-s (2). A “commercial quantity” of ecstasy for the purposes of sub-s (2) is 0.1kg (pure) and 0.5kg (mixed).[4] Subsection (3) applies to quantities of less than 0.1kg or than 0.5kg respectively.
[3] Controlled Substances (General) Regulations 2000 (SA), reg 6 and Schedule 1, Part 1.
[4] Ibid.
The maximum penalty for trafficking in the quantity with which the appellant was charged was reduced upon the amended section taking effect to ten years imprisonment or $50,000 fine or both. Previous decisions of this Court relating to trafficking in drugs of this nature must therefore be read with some caution when applied to offences under sub-s (3).
The maximum penalty for count 2 is two years imprisonment or a $2,000 fine or both. That penalty did not change with the amendments which took effect on 3 December 2007.
Commerciality
The Judge described the offence in count 1 as being “part of an ongoing commercial involvement”. Since the introduction of s 32 of the Act in its present form the use of the adjective “commercial” has a particular connotation relating to offences against s 32(1) and (2). A “large commercial quantity” and a “commercial quantity” of a drug are defined terms for the more serious trafficking offences prescribed by sub-ss (1) and (2) respectively. The offence under sub-s (3), of which the appellant was guilty, merely requires proof of trafficking in a controlled drug. It is a new lower level offence than existed under the repealed s 32.
Although the Judge referred to the appellant’s offending in count 1 as being “part of an ongoing commercial involvement”, we do not consider that he was intending to indicate that either the offending itself or the uncharged acts amounted to trafficking in a commercial quantity of ecstasy. He was referring merely to the commercial nature of the appellant’s activities. They were indeed commercial activities in the buying and selling of ecstasy for whatever reason. However, in order to avoid possible confusion in relation to the amended s 32, such a descriptor, unless clearly qualified, is better reserved for offences under sub-s (1) and (2).
As mentioned above, sub-s (3), under which the appellant was charged, is a new lower level offence carrying a lesser penalty than the equivalent offence under the repealed section. That fact has some bearing on the consideration of this appeal.
Dealing in Cocaine?
The passages in the sentencing remarks which we have emphasised indicate that the appellant was sentenced on the basis that his previous drug dealing did involve cocaine. That is because the Judge had identified occasional cocaine dealing as comprising part of the appellant’s previous dealing in drugs. The appellant had not acknowledged that he had dealt in cocaine and, in our opinion, the necessary evidence to support a conclusion that he had had an occasional commercial involvement with cocaine was lacking.
It seems that the Judge relied upon an opinion in the deposition of Detective Sergeant Dewar concerning the arrangements and transactions in which the appellant was involved as revealed by the SMS messages. In relation to the drug cocaine, the Sergeant said:
There is also a small number of messages, which I believe relate to the purchase and sale of cocaine.
It can be seen that Detective Sergeant Dewar’s opinion about the appellant’s involvement in cocaine was derived entirely from the analysis of the SMS messages.
On the hearing of the appeal, the respondent accepted that there were only two messages which could possibly indicate such an involvement. Both were incoming messages. On 24 May 2008 the appellant received a message which included the words “How much for a g of coke?”. On 31 May 2008, a message from a different caller included the words “I didn’t buy ne charles just gettin lines of peg” (the word “Charles” is commonly used as a substitute for cocaine). Any response which the appellant may have provided to either message was not recorded.
In our opinion, the two incoming calls provide no more than a basis for suspicion of possible involvement by the appellant in cocaine dealing but do not warrant the conclusion made by the sentencing Judge that the appellant did in fact occasionally involve himself in commercial dealings with cocaine. That is particularly so as the messages identified by the respondent were only two in more than 1,000 messages.
If the Judge’s misunderstanding about the effect of the evidence concerning previous involvement in cocaine formed only part of the explanation why the appellant was not entitled to leniency on the ground that his offending comprised an isolated act, we would not regard the mistake as material. The evidence of involvement in the sale of ecstasy during the period commencing on 21 May 2008 indicated, by itself, that leniency could not be granted on the basis that the offending was isolated. That was so whether or not the appellant had been involved in dealing in cocaine.
However, as previously noted, the Judge’s assessment of the seriousness of the appellant’s offending on 12 and 13 June 2008 was based, in part, on his understanding that they were committed in a context of dealing by the appellant in both ecstasy and cocaine. That mistake was material, as it did influence the Judge’s approach to sentencing.
Street Level Dealing
We consider that the submission that the Judge had wrongly regarded the appellant as engaged in the sale of ecstasy to other street level dealers should not be upheld.
The close analysis of the incoming SMS calls made in the respondent’s supplementary submissions indicates the strength of the circumstantial evidence that the appellant was engaged in the sale of ecstasy to other street dealers. It is not necessary to repeat the detail of that analysis. It is sufficient to note that the volumes of ecstasy sought by some callers, the amounts of money involved, and the frequency and repetition of some calls provide a clear indication that the appellant was, on occasion, selling to other street level dealers. In addition, some callers referred specifically to the sales of ecstasy which they expected to make or which they had already made.
A transcript of the SMS calls was attached to one of the declarations which was before the Judge for the purpose of sentencing. The Judge was asked by the prosecutor to give particular attention to the transcript of the SMS calls.
In our opinion, the evidence well justified the Judge’s conclusion that the appellant was not only a street dealer, but also a supplier to others engaged in the street trade. This does not mean that the appellant should be regarded as having been at a high level in the drug selling hierarchy. Our impression of the evidence is that he was a low level dealer, selling sometimes directly to users and sometimes to those who in turn sold to users. He was shown to have been engaged in the activity for only a relatively short time.
Sentencing for Uncharged Offending?
We do not consider that the Judge made the third error attributed to him by the appellant, namely, treating the previous dealing in ecstasy as aggravating the offence of trafficking committed on 12 June 2008 or, alternatively, sentencing for offences other than that with which the appellant was charged.
It is axiomatic that the appellant was to be sentenced only for the two offences with which he was charged and, absent any request that any other offending be taken into account or that the two offences be regarded as representative offences, not for any other offending.[5] Nevertheless, evidence that offending has occurred in the course of continuing conduct is relevant to the sentencing decision in a number of ways. First, the charged offences may take their colour from, and their character be affected by, the context in which they were committed.[6] In the present case, the offence of trafficking in a controlled drug was properly understood to be an incident in the course of continuing commercial dealing in ecstasy, and not an isolated offence.[7] The previous offending disclosed by the SMS messages indicated a degree of persistence by the appellant in criminal conduct on 12 June 2008 despite the opportunities he had to reflect upon its wrongfulness.
[5] R v Taddeo (1993) 67 A Crim R 338 at 339; R v Godfrey (1993) 69 A Crim R 318 at 332-3.
[6] Taddeo at 339.
[7] Taddeo at 339; Godfrey at 322-3; R v Mangelsdorf (1995) 66 SASR 60 at 69.
Secondly, the fact that the appellant had engaged in criminal conduct over a period of some 22 days before 12 June 2008, meant that he could not, as at 12 June 2008, be regarded as having an unblemished character.
It is also to be noted that s 10(1)(c) of the Criminal Law (Sentencing) Act 1988 provides that when an offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character, the sentencing court should have regard to that course of conduct.
To say that the previous conduct of the appellant was relevant in the ways earlier identified is not to say that the appellant was to be punished for the earlier conduct. It is to say only that the earlier conduct was relevant to the assessment of the appellant’s culpability in the two offences for which he was being sentenced. The previous offending disclosed by the SMS messages could not be used in order to increase what would otherwise be a proper sentence for the offences committed on 12 and 13 June 2008. It was, however, relevant to the consideration of any leniency to be afforded to the appellant,[8] and to the consideration of whether the sentence imposed should be suspended. This is the point which the Judge was making when he said that the appellant’s earlier conduct meant that he was not entitled to the degree of leniency which may have been appropriate if the offending conduct was isolated, and that his offending had to be regarded seriously having regard to his previous dealing.
[8] R v Reiner (1974) 8 SASR 102 at 105. See also R v Eggers [2006] SASC 174 at [24].
As was observed by Bray CJ in R v Reiner, when there is no fixed normal penalty, the distinction between refraining from reducing a sentence so as to extend leniency, and increasing a sentence because of the circumstances in which the offence was committed, may sometimes be quite fine.[9] But in the present case, apart from the Judge’s misunderstanding as to the appellant’s involvement in the sale of cocaine, we do not consider that it can be said that the Judge had regard to, or made use of, the appellant’s previous conduct in an inappropriate way. In particular, we would reject the submission that the Judge “crossed the line” by sentencing the appellant for the uncharged conduct.
[9] R v Reiner (1974) 8 SASR 102 at 105. See also R v Godfrey (1993) 69 A Crim R 318 at 332-3.
The Mistake as to the Period of the Uncharged Conduct
Finally, it is apparent that the Judge misunderstood both the commencing and concluding dates of the conduct revealed by the SMS messages. Contrary to the belief of the Judge, the SMS messages commenced on 21 May 2008 and not 1 May 2008. Further, the appellant’s conduct continued until 12 June 2008 when he was arrested and not 1 June 2008 as the Judge thought. The effect is that the Judge regarded the appellant as having engaged in the offending conduct for a period which was eight days longer than was justified by the evidence. However, this is a minor error and, in our opinion, the appellant was correct when he conceded that, by itself, it would not have warranted this Court interfering with the sentence which was imposed.
In summary, the appellant has succeeded in establishing two factual errors in the Judge’s reasons for sentence, but we regard only one as likely to have influenced the Judge’s approach to the decision concerning suspension. That is sufficient to indicate that this Court should reconsider the sentence.[10]
[10] Markarian v The Queen [2005] HCA 25 at [25]; (2005) 228 CLR 357 at 370-1.
Procedural Fairness
A question was raised during the hearing of the appeal as to a possible denial of procedural fairness to the appellant resulting in the Judge’s conclusion concerning the commercial nature of the appellant’s dealings in ecstasy and sometimes cocaine. The matter was touched on only briefly in submissions.
In the circumstances we do not consider it necessary to venture into that field. To do so would require a closer examination of some matters which were not the subject of full argument.
We are satisfied that, for whatever reason, the Judge made the errors which we have identified, at least one of which warrants the setting aside of the sentence and the re-sentencing of the appellant by this Court. Had that not been so the question of procedural fairness would have to have been more closely examined.
Reconsideration of Decision Concerning Suspension
The approach of this Court to the suspension of sentences of imprisonment imposed for offences involving, or committed against a background of, buying and selling drugs is well known. In R v Mangelsdorf Doyle CJ (with whom Prior and Williams JJ agreed) said:
In relation to the decision to suspend, one also needs to bear in mind the seriousness of the present offence. As I have already remarked in these reasons, this Court has consistently said that suspension of a sentence of imprisonment is inappropriate in the case of the possession of cannabis for sale when that takes place against a background of substantial involvement in cannabis trading. In my opinion, that is the case here, in the sense that the quantity of cannabis indicated an intention to engage in substantial trading. The Court has, on a number of occasions, revoked orders for suspension made in such cases, despite the considerations which tell against doing so on an appeal by the Director of Public Prosecutions against sentence.[11]
It will be noted that in this passage the Chief Justice was referring to a context of substantial involvement in cannabis trading. However, a similar approach is applied in relation to other drugs. In R v Gjoka[12] Doyle CJ said:
The power to suspend a sentence is conferred by s 38 of the Sentencing Act. The Court may suspend a sentence “… if it thinks that good reasons exists for doing so”. That is the statutory criterion, and that is the test to be applied.
Nevertheless, it is appropriate for this Court in particular cases to determine … that the nature or gravity of an offence is such that suspension will not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it will be very difficult to justify suspension.
[11] (1995) 66 SASR 60 at 75.
[12] Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Doyle CJ, Olsson and Lander JJ, 1 July 1997, Judgment No S6211.
The approach to suspension stated by the Chief Justice in Mangelsdorf and in Gjoka has been followed in a number of subsequent decisions.[13]
[13] For example, R v Fowler [2006] SASC 18; (2006) 243 LSJS 285; R v Kane [2003] SASC 237; R v Stevens [2008] SASC 170.
The authorities indicate that the seriousness of the offending, Parliament’s evident intention that heavy penalties should be imposed for drug dealing, and the need for general deterrence should be prominent in decisions about suspension. However, there are other features which may also be important in a particular case.
In the present case, the youth of the appellant is an important factor. He was just 19 years of age when he committed the offences and not quite 20 years of age when sentenced. His youthfulness, and the immaturity associated with it, were as relevant to the decision concerning suspension as they were to the fixing of the head sentence and of the non-parole period. It is a serious matter to require one so young to be held in custody in an adult prison. In addition, as the sentencing Judge found, the prospects of a successful rehabilitation were excellent, there was genuine contrition and there was no need for the appellant to serve the sentence in custody for the purposes of personal deterrence. A period in custody has the potential to detract from the appellant’s rehabilitation.
We have been concerned whether the submission that the appellant had not been engaged in the sale of ecstasy to other street level dealers detracted from the appellant’s full acceptance of responsibility for his conduct and, in turn, brought into question the extent of his contrition as found by the Judge. These were important considerations in the Judge’s assessment that the appellant had excellent prospects for a successful rehabilitation. However, we are prepared to proceed on the basis that the submission that the appellant was not engaged in the sale of ecstasy to other dealers was not made on the specific instructions of the appellant and was made by counsel at a time when the detailed analysis of the SMS messages made by the respondent in the supplementary submissions had not been undertaken. That only occurred as a result of a request by this Court for the purpose of re-sentencing, should that become appropriate.
The different sentencing regime for this offence is relevant. So is the fact that the appellant was only charged with one offence, against a background of a relatively short proven period of selling, and at a relatively low level in order to maintain his habit.
When regard is had particularly to the appellant’s youth and to the matters relating to his rehabilitation which we mentioned earlier, our opinion is that despite the evident seriousness of the appellant’s offending, the need for general deterrence, and the general approach to suspension in cases of the present kind referred to in the authorities, this was one of those rare cases in which there was good reason to suspend the sentence and the Judge erred in not doing so.
It is appropriate that this Court re-sentence the appellant. On the re‑sentence concerning suspension there is now the additional fact that the appellant has served 16 weeks in custody. His service of that period adds to the deterrent effect of the head sentence and non-parole period.
Conclusion
In summary, we consider that error in the Judge’s approach to sentencing has been shown and that this Court should re-sentence the appellant. We would grant permission to the appellant to amend his notice of appeal in the way noted earlier in these reasons, grant permission to appeal in respect of that amended ground and we would allow the appeal. In order to make proper allowance for the time served in custody, we would set aside the whole of the sentence imposed by the sentencing Judge. Both the head sentence and the non-parole period should be reduced to reflect the period which the appellant has spent in custody. In lieu of the sentence imposed by the Judge, we would impose a sentence of imprisonment for two years and eight months and fix a non-parole period of 36 weeks with both the sentence and the non-parole period to commence as of today’s date. We would suspend the sentence upon the appellant entering into a bond in the sum of $300 to be of good behaviour for a period of two years. It will be a condition of the bond that the appellant be subject to the supervision of a Community Corrections Officer and that he carry out 80 hours of community service.
GRAY J.
This is an appeal against sentence.
Background
The defendant and appellant, Matthew Sinclair Peel, pleaded guilty in the District Court to the offences of trafficking in a controlled drug[14] and possession of a controlled drug.[15]
[14] Controlled Substances Act 1984 (SA) section 32(3).
[15] Controlled Substances Act 1984 (SA) section 33L(1)(a). The maximum penalty for the offence of trafficking is $50,000.00 or imprisonment for 10 years or both. The maximum penalty for the offence of possession is $2,000.00 or imprisonment for two years or both.
On 20 May 2009, a District Court Judge sentenced the defendant pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), to the one sentence with respect to both offences. The Judge fixed a notional head sentence of four years imprisonment, but then made a reduction to three years on account of the defendant’s pleas of guilty. A non-parole period of 12 months was fixed. The Judge declined to exercise his discretion to suspend the sentence.
On 13 July 2009 permission to appeal against sentence was granted,[16] on the ground that the sentencing Judge failed to give sufficient weight to the defendant’s personal circumstances in determining whether the sentence ought to be suspended. On the hearing of the appeal leave was sought by the defendant to add the further ground of appeal, that the Judge erred in declining to suspend the sentence as a result of giving undue weight to other uncharged offending.
[16] Pursuant to Criminal Law Consolidation Act 1935 (SA) section 352(1).
Circumstances of the Offending
The facts giving rise to the charge of the offence of trafficking in a controlled drug concerned events occurring late in the evening of 12 June 2008. The defendant was invited by SMS messages sent by undercover police, to attend a car park in Reynella with a view to selling 10 ecstasy tablets. The defendant advised by SMS that the total cost would be $200. When the defendant arrived at the car park, he was arrested and found to be in possession of a total of 40 ecstasy tablets.
Immediately after the defendant’s arrest, the police searched his home. The result of this search gave rise to the possession charge. In the defendant’s bedroom, the police located approximately 24 tablets, and some portions of tablets. It was accepted that the defendant possessed all of those tablets for personal use.
The Defendant’s Antecedents
With respect to the defendant’s personal antecedents, the Judge observed:
I say something about your personal circumstances. As mentioned, you will be 20 years next week. You were born in Adelaide and still reside with your parents and older sister. Your parents are hardworking decent people who obviously remain supportive of you despite the seriousness of your offending. You have a loyal and supportive girlfriend who works as a teacher. You left school halfway through year 10. You have now realised that was a mistake. The short-term attraction of money was more attractive than seeing out your schooling. Having said that, I accept that you have a strong work ethic having worked for a number of businesses, including your father’s.
You are presently employed in residential construction as a builder’s assistant. You wish to remain in that industry, hopefully in general construction, as a carpenter undertaking an apprenticeship.
You began experimenting with ecstasy in September/October, 2007. You were using the drug recreationally and enjoyed a new group of friends. You took risks without fully recognising where that would take you. Drug taking became your priority to the detriment of your relationships with your family and employer. You are no longer a user and have initiated your own rehabilitation by staying away from the wrong peer group. It was submitted that the prospects were excellent for your ongoing rehabilitation. Being arrested and charged was a very sobering event.
It is said that you started dealing with the drug to support your own habit. You were a heavy user for a couple of months prior to your arrest and a user for about a year before that. ...
When addressing the possible suspension of sentence, the Judge concluded:
Yours is a most difficult case. On the one hand, some of the important considerations are your pleas, your age now and at the time of the offending, your good antecedents and positive prospects for rehabilitation, including work. All point towards suspension of your sentence. On the other hand, your offending is very serious having regard to the previous dealing against which this offending must be viewed, and general deterrence is very important.
…
In my view, this offending is simply too serious to suspend the inevitable period of imprisonment. But for your plea, I would have imposed a sentence of four years, but that is reduced to three years having regard to your pleas and contrition. Your personal circumstances and factors in your favour call for a shorter than normal non-parole period. I fix a non-parole period of 12 months. Both the head sentence and non-parole period are to date from today.
Issues on Appeal
On appeal there was no challenge to the head sentence. The issue in dispute was whether that sentence should have been suspended.
Counsel for the defendant submitted that the sentencing remarks revealed that the Judge had sentenced the defendant on an incorrect understanding of the circumstances of the offending; on erroneous findings as to matters of aggravation and failed to give sufficient weight to the defendant’s young age, his prior good record, his strong family support and his excellent prospects for rehabilitation. It was argued that the Judge’s exercise of discretion miscarried, that he failed to have regard to relevant factors and took into account matters of aggravation that had not been alleged or established beyond reasonable doubt. It was claimed that there had been a denial of procedural fairness. It was submitted that this Court should re-exercise the discretion and suspend the sentence of imprisonment imposed. It was pointed out that by the time of the hearing of the appeal, the defendant had spent approximately two months in custody.
Alleged Aggravation
With respect to alleged uncharged offending, the Judge commented:
Importantly, the offending surrounding count 1 was not an isolated involvement with the drug. This offence was but part of an ongoing commercial involvement in this drug and sometimes cocaine. Although you cannot be sentenced for other offending with which you have not been charged and pleaded guilty, the degree of leniency that the Court is able to extend to you is reduced because this cannot be viewed as isolated offending. I will return to this shortly.
…
… What is of great concern to me is the extent of your dealings prior to your arrest. It was not as if there was a conscious decision for you to become involved on an isolated occasion. There were numerous other occasions and you decided to keep going to support your own expensive habit.
As I touched upon previously, the extent of your SMS messages from your mobile phone is quite large from 1 May, 2008 to 1 June, 2008. They show, to some extent, not only that you were a street trader, but also a supplier to others who were minded to deal like you. You were not a small-time dealer, it was quite extensive.
(emphasis added)
Counsel for the defendant submitted that it had not been part of the prosecution case that the defendant was commercially dealing in cocaine or was something more than a small time dealer acting as a middleman to other dealers. It was said that the Judge had arrived at these findings without notice to the defendant that such findings were under consideration and without giving the defendant an opportunity to be heard. It was said that this gave rise to a serious want of procedural fairness. It was further submitted that the Judge treated his findings on these two circumstances as matters of aggravation and this contributed to his conclusion that the defendant’s offending was “very serious” and “simply too serious to suspend”. It was contended that as these two findings were matters of aggravation, they had to be established beyond reasonable doubt.
Counsel submitted that the defendant did not accept that he had had any such involvement with cocaine and did not accept that he was any more than a street dealer in relation to ecstasy. It was said that the declarations before the Court did not establish any such involvement beyond reasonable doubt.
In Anderson[17] members of the High Court expressly confirmed that circumstances of aggravation must be admitted or proved beyond reasonable doubt. Where circumstances of aggravation are alleged, but not proved beyond reasonable doubt, the Court when sentencing, must act on a version of the facts which, within the bounds of reasonable possibility, are most favourable to the accused.[18]
[17] Anderson v The Queen (1993) 177 CLR 520.
[18] R v Maitland [1963] SASR 332 (Mayo, Travers and Hogarth JJ).
In Olbrich[19] Gleeson CJ and Gaudron, Hayne and Callinan JJ, discussed the onus and standard of proof in sentencing.[20] In that respect they observed:[21]
Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)
In the proceedings before the primary judge in this case, the prosecution did not submit that the sentence to be imposed on the respondent (a fifty-eight year old first offender who pleaded guilty to importing more than 1.1 kg of heroin) should be increased beyond what otherwise would be called for by those facts because the appellation "principal" could be attached to him. Rather, the respondent submitted that the sentence otherwise to be imposed on him should be mitigated because he was "a courier". The respondent bore the burden of proving this fact. The judge was not persuaded of it.
As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge
"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."
(footnotes omitted)
[19] R v Olbrich (1999) 199 CLR 270.
[20] See also R v Spong (2008) 100 SASR 55 at 64-67 (Gray J).
[21] R v Olbrich (1999) 199 CLR 270 at [25] – [27].
In Godfrey[22] Duggan J confirmed that a sentence cannot include any element of punishment for uncharged offences, and went on to say:[23]
…However findings made as a result of a disputed facts hearing cannot be used as a basis for punishing an offender for offences not charged: Reiner (1974) 8 SASR 102; H (1981) 3 A Crim R 53. See also the cases cited in Current Sentencing Practice, Vol 2, p 110212f. Conduct amounting to the commission of other similar offences can only provide a basis for increasing the sentence if the accused is found guilty of those offences at trial, pleads guilty to them, asks for them to be taken into account in fixing penalty, or agrees that counts in the information are to be regarded as representative offences.
This is not to say that the sentencing judge cannot take into account the context and surrounding circumstances of the crime charged. It may be that in a particular case the court will be required to consider whether it is entitled to extend leniency on the basis that it is dealing with an isolated offence. But it cannot increase the sentence by reason of a finding on a disputed facts hearing that offences not admitted or asked to be taken into account have in fact been committed. To do this would be to deprive the accused of a proper trial on those counts. The line between the two situations will sometimes be a thin one…
(emphasis added)
[22] R vGodfrey (1993) 69 A Crim R 318.
[23] R v Godfrey (1993) 69 A Crim R 318 at 322-323.
At the time of sentencing submissions, the prosecution did not expressly invite the sentencing Judge to proceed on the basis that the defendant had an ongoing commercial involvement in cocaine. The defendant was not put on notice that the Judge would consider such a finding and was not heard on that issue. The defendant was entitled to be heard and in the circumstances he was denied procedural fairness.
On the hearing of the appeal, the prosecutor could only point to two SMS messages from a third party suggesting a possible involvement with cocaine by the defendant. These messages fell well short of establishing any commercial dealing in that drug. The finding of a commercial dealing in cocaine was not open on the declarations. This finding of the Judge was a matter that he took into account in reaching the conclusion that the defendant’s conduct was so serious that the sentence of imprisonment could not be suspended. For this reason it is necessary for this Court to consider the question of suspension afresh.
The prosecution did not submit to the Judge that the defendant was more than a small time dealer. Had the prosecutor proposed to seek a finding that the defendant was more than a small time dealer and was in effect acting as a middleman or wholesaler, it was incumbent upon him to put the defendant on notice. Equally, if the Judge was considering making such a finding, the defendant should have been put on notice and given the opportunity to be heard. It is axiomatic that in these circumstances a want of procedural fairness arose.
The Judge, as earlier observed, treated the defendant as something more than a street dealer. He treated the defendant as a middleman, dealing both with consumers and those who supplied to consumers. The consideration of the defendant as a middleman was a matter of aggravation, as a dealer at this level may expect a heavier sentence. The substance of the defendant’s submissions to the Judge at the time of sentencing was that he was dealing in ecstasy to raise money to provide for his own habit, and his actions did not have any further commercial purpose.
On the hearing of the appeal, the SMS records were examined in detail and both counsel provided written submissions as to their effect. A review of the records allows the conclusion that the defendant was trading extensively with ecstasy. The records also raise at least the possibility that the defendant was more than a low-level street trader merely seeking to meet the expenses of his own habit.
As earlier observed the Judge’s failure to accord the defendant procedural fairness and mistaken view that the depositions established commercial dealings in relation to cocaine require this Court to reconsider the appropriateness of the sentence imposed.
Reconsideration
As the sentencing Judge pointed out, the personal antecedents of the defendant provided a clear and strong basis for the suspension of the term of imprisonment. He had not long turned 19 at the time of the offending. He did not appear to have a full appreciation of the seriousness of his conduct. He was a first time offender. He lived at home and had strong family support. He had a stable and supportive relationship with his girlfriend, a schoolteacher some three to four years his senior. He had a strong work ethic and worked in the building industry and intended to undertake an apprenticeship. His family and friends continue to provide him with strong support. As the Judge concluded, there was no need for personal deterrence. The defendant had acted to rehabilitate himself. He had stopped using any form of illicit substance. In short, his future prospects were excellent. He had learned his lesson.
The defendant’s offending was undoubtedly serious. He was involved in a dealing in ecstasy and the head sentence imposed by the Judge was appropriate. It is relevant to note that the defendant has now served more than three months of that sentence. This period of imprisonment will no doubt be a salutary lesson.
In my opinion, having regard to all the circumstances outlined above, this is a case where there is good reason to suspend the sentence of imprisonment.
As the defendant has now served 16 weeks in custody I consider that it is necessary to make a reduction from the head sentence imposed by the sentencing Judge and to the non-parole period that he fixed to have regard to that time. Otherwise there would in effect be an increase in the head sentence imposed. In making an adjustment it is to be noted that as at the day of the pronouncement of this appeal the defendant has spent 16 weeks in custody.
Conclusion
I would grant leave as sought to amend the grounds of appeal. I would allow the appeal. I would set aside the sentence imposed by the District Court Judge. I would sentence the defendant to a term of imprisonment of two years and 36 weeks. I fix a non-parole period of 36 weeks. I would suspend the sentence of imprisonment on the defendant’s entry into a supervised three-year good behaviour bond.
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