R v Pfeiler - [2007] SASC 352

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PFEILER
[2007] SASC 352
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Layton)
17 September 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
Appeal against sentence - conviction, possession of drug of dependence and prohibited substance - whether Judge overlooked prosecution submission that information given to appellant at late stage was reason for late guilty plea - whether Judge erred in failing to reduce sentence on same grounds as if plea were entered early.
Held: Judge did not take sufficient account of guilty plea - appeal allowed - sentence reduced.
Controlled Substances Act 1984 (SA) s 32; Summary Offences Act 1953 (SA) s 6; Criminal Law Consolidation Act 1935 (SA) s 364, referred to.

R v PFEILER
[2007] SASC 352
Court of Criminal Appeal: Doyle CJ, Nyland and Layton JJ

DOYLE CJ (ex tempore): This is an appeal against a sentence imposed by the District Court. A single judge has granted permission to appeal.
Mr Pfeiler pleaded guilty in the District Court to a charge of possessing methylamphetamine for sale contrary to s 32(1)(b) of the Controlled Substances Act1984. He pleaded guilty also to a count of hindering the police and a count of resisting the police in the execution of their duty, each count being contrary to s 6(2) of the Summary Offences Act 1953 (SA).
The maximum penalty on the charge of possessing for sale is a fine of $500,000 or imprisonment for life, or both. On each of the other counts the maximum punishment is a fine of $2,500 or six months imprisonment.
Mr Pfeiler was arrested by police in circumstances that indicated that he was engaged in selling methylamphetamine. When the police arrested him they found that he had five bags of methylamphetamine in his possession. The quantity of powder amounted to about 20 grams, the quantity of pure methylamphetamine being in excess of 3 grams.
The Judge found that the offence was committed in the context of selling drugs on a business-like basis. There could be no suggestion that this was an isolated offence.
Mr Pfeiler was 40 years of age when sentenced. In the past he has committed a number of offences, most of which are fairly minor and, as the Judge said, of no particular relevance. However, in 1990 he was convicted of possessing cannabis and producing cannabis and was fined $150. More significantly, in June 2001 he was convicted of producing cannabis and on two counts of possessing amphetamines for sale and on two counts of possessing cannabis for sale. For these offences he was sentenced to imprisonment by a Judge of the District Court for four years, a non-parole period of two years being fixed.
At the time he committed the offences now in question he was on parole in respect of those earlier offences. That is a matter of aggravation and indicates that Mr Pfeiler has failed to learn from his previous conviction and imprisonment.
Mr Pfeiler pleaded guilty on the morning on which his trial was due to commence. However, immediately before he pleaded guilty the prosecutor informed the Judge that only that morning he had provided certain further information to counsel for Mr Pfeiler which, I infer, must have strengthened the prosecution case. The prosecutor told the Judge that assuming Mr Pfeiler pleaded guilty, in the prosecutor’s submission he should receive the same reduction as he would have got had the information in question been available at an earlier time, because without the further material that had been produced that morning, Mr Pfeiler was not in a position to obtain complete advice on his position. I will return to that matter.
In his sentencing remarks the Judge referred to all relevant aspects of Mr Pfeiler’s background. He had a somewhat troubled history involving a number of family difficulties and problems with his children. However, it cannot be said that the Judge overlooked any of these matters. The Judge noted that Mr Pfeiler had participated in drug rehabilitation and other rehabilitation programs and appeared to have done well in them. However, as the Judge noted, the unfortunate fact was that Mr Pfeiler had returned to a course of offending involving drugs.
Quite rightly, the Judge said that he had to emphasise deterrence and that he was influenced by the fact that Mr Pfeiler was on parole when he committed the offences. The Judge said that he would have imposed a period of imprisonment of six years. He deducted six months for the plea of guilty and a further year to take into account time spent by Mr Pfeiler in custody. That led him to a head sentence of four years and six months imprisonment, which sentence was imposed in respect of all three offences.
My opinion is that the sentence that the Judge imposed was an appropriate one and in arguing the appeal Mr Ibbotson did not criticise the starting point.
Mr Pfeiler’s previous offending meant that he could not be extended the lenience that his background might otherwise have justified. I agree with that approach.
Because Mr Pfeiler committed the offences while on parole, he was liable to serve the unexpired balance of his previous sentence, which was a period of one year, one month and one day. The Judge directed that the sentence that he imposed be served at the expiry of that sentence. That meant that adding together the two periods in question, Mr Pfeiler was liable to serve a total period of five years, seven months and one day. The Judge had to fix a non-parole period in relation to that combined period. He fixed a non-parole period of three years and three months. In my opinion, in all the circumstances, that was a moderate non-parole period. The Judge declined to suspend the sentence. In the circumstances that was clearly the right decision.
If there was nothing more to the matter, the appeal would have to be dismissed. This was an appropriate sentencing approach.
However, it appears that the Judge may have overlooked what the prosecutor put to him when Mr Pfeiler entered his plea of guilty. In his sentencing remarks the Judge makes no reference to the submission by the prosecutor. He simply says that the plea was entered ‘very late in the piece’. He said that he would have deducted considerably more if Mr Pfeiler had pleaded guilty earlier.
The possibility of the Judge having overlooked the matter is enhanced by the fact that the prosecutor made his statement on 30 April 2007 and nothing more was said about the matter when the Judge heard the sentencing submissions on 13 June 2007. Counsel did not remind the Judge. With the passage of time, it may have slipped the Judge’s mind. Of course the Judge was not bound by the concession made by the prosecutor. However, ordinarily a court will allow greater reduction than the Judge allowed for a plea of guilty if entered relatively early in the piece. On the other hand, it has to be borne in mind that the circumstances of the plea of guilty do not suggest that contrition and remorse were significant factors in entering a plea of guilty. It seems to be the case that Mr Pfeiler agreed to plead guilty only when it became apparent that the prosecution case was much stronger than he thought. Nevertheless, had the plea of guilty been entered at an earlier stage, when the prosecutor might have been expected to put forward the whole prosecution case, it is likely that a greater deduction would have been made.
Accordingly, in the particular circumstances, I consider that the appeal should be allowed but solely for the purpose of making a further reduction by way of allowance for the guilty plea. In cases of this kind it has been the practice for the court to make an appropriate adjustment to the sentence. But, apart from that, for the purpose of sentencing the appellant afresh, I would take the same approach as did the Judge. His approach was an appropriate one and is one that I am content to follow.
Accordingly, I would allow the appeal. To rectify the error it is necessary to quash the sentence passed at trial.
As the sentence imposed by the District Court is being quashed, it may be that the unexpired balance of the previous sentence now begins to be served only as from this day. That being so, and on that assumption, it is necessary to allow for the period for which Mr Pfeiler has been in custody since he was sentenced by the District Court Judge. That is a period close enough to three months. On that account, it is appropriate to make a further reduction in the sentence, that is, I would deduct six months extra on account of the plea and three months for time served. The sentence that I would impose becomes one of imprisonment for three years, nine months, making a total period to be served of four years, 10 months and one day, with effect from today.
In relation to that period, I would fix a single non-parole period of two years, 10 months, also effective from today.
In the particular circumstances, it is not appropriate to make a direction under s 364(3) of the Criminal Law Consolidation Act. The effect of the order that I propose is that full allowances be made for the time during which Mr Pfeiler has been in prison while waiting for his sentence to be finally determined. Accordingly, there is no need to make a direction to counter the effect of s 364(3), which would otherwise, that is, absent a direction, have the effect of making the sentence run as from the date of this Court’s decision. For those reasons I would make the orders that I propose.
NYLAND J: I agree that the appeal should be allowed for the reasons expressed by the Chief Justice and I agree with the orders proposed.
LAYTON J: I agree that the appeal should be allowed and I agree with the reasons given by the Chief Justice. I also express that the Judge may have overlooked not only the concession made by the prosecution as to the plea of guilty but also the remorse and contrition expressed by the appellant, but I agree with the sentencing outcome given by the Chief Justice.
DOYLE CJ: Accordingly, the orders of the Court are as follows:
1.That the appeal be allowed.
2.That the sentence imposed by the District Court be set aside.
3.That on the three counts on the information, a single sentence of imprisonment be imposed pursuant to s 18A of the Criminal Law (Sentencing) Act; namely, imprisonment for three years, nine months.
4.That the sentence of imprisonment operate from the expiry of the balance sentence of imprisonment of one year, one month, one day which Mr Pfeiler is liable to serve.
5.That in relation to the combined periods of imprisonment, namely, four years, 10 months, one day, a non-parole period be fixed of two years, 10 months, which non-parole period takes effect from today, 17 September 2007.