R v PHAM - [2014] SASCFC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v PHAM
[2014] SASCFC 95
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Nicholson)
10 September 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - FAILURE TO EXERCISE DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OTHERS
The appellant entered late pleas of guilty to one count of trafficking in a controlled drug (heroin) and one count of the unlawful possession of $3,785. The appellant was sentenced to a term of imprisonment for three years and two months with a non-parole period of one year and six months. The sentence was not suspended.
On appeal the appellant complained only about the failure to suspend and on three grounds: that inadequate consideration was given to the question of whether good reason to suspend the sentence existed; that the wrong test was applied when deciding whether the sentence should be suspended (that is, whether there was "sufficiently good reason" to suspend, as opposed to "good reason"); and, that good reason to suspend ought to have been found.
Held per Nicholson J (Vanstone and Blue JJ agreeing) appeal dismissed on all grounds.
Criminal Law Consolidation Act 1935 (SA) s353; Criminal Law (Sentencing) Act 1988 (SA) s10, s38, referred to.
House v King (1936) 55 CLR 499; Ferguson v Police [2006] SASC 196; Shrubsole v Rodriguez (1978) 18 SASR 233; R v Buckskin [2010] SASC 138; R v Carpentieri (2001) 81 SASR 164; R v Wirth (1976) 14 SASR 291; Bates v Police (1997) 70 SASR 66; Neill v Police [1999] SASC 270; R v Hinton [2002] NSWCCA 405; R v Fowler [2006] SASC 18; R v O’Toole [2013] SASCFC 18; R v Richards [2006] SASC 60; Zafry v Police [2009] SASC 191, considered.

R v PHAM
[2014] SASCFC 95
Court of Criminal Appeal: Vanstone, Blue and Nicholson JJ
VANSTONE J.

I agree that this appeal must be dismissed and I agree with the reasons written by Nicholson J.
BLUE J.
I agree with Nicholson J.
NICHOLSON J.
Introduction
The appellant, following a late plea of guilty to one count of trafficking in a controlled drug (heroin) and one count of unlawful possession, against an admitted background of street trading, was sentenced in the District Court to imprisonment for a term of three years and two months with a non-parole period of one year and six months. The sentence was not suspended.
The appellant commenced to serve both the head sentence and the non-parole period on the day of sentencing, 16 April 2014. The Judge gave credit of seven months on account of the late plea of guilty and time spent in custody and on home detention bail. The appellant makes no complaint about the length of the head sentence or the non-parole period. Only grounds four, five and six in the notice of appeal were pressed and all concerned the refusal by the Judge to suspend the sentence of imprisonment.
The decision whether to suspend a term of imprisonment calls for the exercise of a discretion. Whether the Judge erred in exercising that discretion is to be determined in accordance with the well accepted considerations laid down by the High Court in House v King.[1]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellant court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[1] (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
In this case I am not satisfied that any of the three grounds of appeal has been made out.
Ground four – the Judge gave inadequate consideration to determining whether good reason to suspend existed
The Judge commenced his sentencing remarks by describing the nature of the offending committed by both the appellant and her co-accused and a history of the proceedings as a result of which the appellant, ultimately, pleaded guilty and came to be sentenced. His Honour then described the personal circumstances of the appellant and in so doing drew, in some detail, upon a report provided by the forensic psychologist, Mr Fugler.[2] The Judge then dealt with matters relevant only to the appellant’s co-accused following which his Honour set the head sentence and the non-parole period for each. The Judge concluded his substantive remarks with the following.[3]
I am not satisfied in the case of either of you that there is sufficiently good reason to suspend those sentences of imprisonment. You are both to be commended for what you have done since this offending to try and restore your lives. But, the objective seriousness of your offending outweighs those matters favourable to you. Your sentences of imprisonment will commence today.
[2] Dated 11 February 2014; AB at 65.
[3] AB at 105.
The appellant’s principal complaint under ground four is that the Judge, having determined that imprisonment was appropriate, failed, as his Honour was obliged to do, to consider again the circumstances of the offending and the circumstances personal to the appellant so as to determine whether good reason existed to suspend the sentence.
Counsel argued that because the only reference in the sentencing remarks to the possible suspension of the sentence was in the concluding remarks (set out above) it was to be inferred that the Judge failed to undertake this necessary process.
It is true that those matters identified in s10 of the Criminal Law (Sentencing) Act 1988 (SA) relevant to the sentencing of a particular offender, ordinarily, should be considered at every stage of the process:[4] the decision whether or not to impose a term of imprisonment and, if so; the setting of the head sentence; the setting of the non-parole period; and the decision whether or not to suspend any such prison sentence. However, it is not expected that a sentencing judge will laboriously repeat all of the relevant considerations where the undertaking of each stage of the sentencing process is recorded in the sentencing remarks.
[4] Cf; R v Shrestha [1991] HCA 26, (1991) 173 CLR 48 at 68-69; R v Creed (1985) 37 SASR 566.
What is necessary, in this respect, is that the sentencing remarks, as a whole, disclose that the appropriate process has been undertaken. In this case, the Judge set out in some detail in his remarks a summary of factors relevant to sentencing. In the relatively straightforward circumstances of this case, the Judge’s penultimate sentence – “but the objective seriousness of your offending outweighs those matters favourable to you” – was sufficient to indicate that his Honour also reviewed the circumstances of the offending and of the offender in the context of his Honour’s exercise of the discretion not to suspend.
Counsel for the appellant submitted that there is an ambiguity in this penultimate sentence. Variants of the expression “the objective seriousness of the offending outweighs those matters favourable...” are commonly used as and commonly understood as shorthand referring to all of the circumstances that go to make up the objective seriousness of the offending and all of the circumstances that might be said to be favourable to an accused when considering whether or not to exercise the discretion to suspend. However, in this case, the Judge referred to this undertaking of the balancing exercise immediately after commending both the appellant and the co-accused for what they had done to try to restore their lives. Counsel submitted that it was only this to which his Honour was referring by his use of the phrase “those matters favourable to you”.
I do not accept that contention. Sentencing remarks are not to be read as if they were reasons for judgment[5] and, a fortiori, not as if they were a statute. The phrase “those matters” was not intended by the Judge to be confined to the appellant’s post-offending rehabilitation efforts that his Honour had just referred to rather than all of the matters personal to the appellant that might be seen as favourable and as referred to throughout the sentencing remarks.
[5] Shrubsole v Rodriguez (1978) 18 SASR 233 at 235.
Counsel also complained under this ground that the Judge failed to have regard to “the probable effect any sentence... would have on dependants”.[6] The appellant had the care of two young children. Her son was aged nine years at the time of sentence and her daughter was nearly three years old at the time of sentence. Both the appellant and her two young children lived with the appellant’s mother who was in remission after having been diagnosed and treated for bowel cancer. The care of the two children would, in all likelihood, fall to their grandmother if the appellant were to be imprisoned. This information had been placed before the Judge during sentencing submissions on 17 March 2014, some four weeks or so prior to sentencing, both orally[7] and by way of Mr Fugler’s report.[8] When canvassing the appellant’s personal circumstances in his remarks, the Judge referred to the appellant as being in receipt of the supporting parents pension “as you provide care for your two children”[9] and a little later referred to the appellant as being 28 years old and living with her mother.[10]
[6]    Criminal Law (Sentencing) Act 1988 s10(1)(n).
[7]    AB at 82, 84, 85 and 86.
[8]    AB at 68 and 71.
[9]    AB at 102.
[10] AB at 103.
The probable effect that an immediate term of imprisonment would have on the dependants of an accused can be an important consideration when it comes to the question of suspension. Nevertheless, it will only have a significant effect on penalty if the hardship to dependants is out of the ordinary or exceptional.[11] Furthermore, it is only one of many considerations, various of which will point in different directions. A sentencing court will act cautiously before placing substantial weight on this particular factor.
[11] R v Buckskin [2010] SASC 138 at [39] (Nyland and Gray JJ); R v Carpentieri (2001) 81 SASR 164 at 168 (Doyle CJ with whom Martin and Besanko JJ agreed).
There was nothing put before the Judge by way of evidence or submission that would support a finding that the probable effect of an immediate custodial term of imprisonment on the circumstances of and welfare of the children would, in this case, be out of the ordinary or exceptional. As such, the Judge was right to give it the weight that, apparently, he did. I am satisfied that his Honour was alive to the circumstances that the appellant, her mother and the young children would find themselves in should an immediate term of imprisonment be imposed and that his Honour properly took them into account.
Ground five – the Judge wrongly looked for sufficiently good reason rather than good reason to suspend
In support of this ground of appeal the appellant pointed to the Judge’s use of the phrase “sufficiently good reason”. It was submitted that by expressing himself in this way the Judge added an impermissible gloss to the statutory test required under s38 of the Criminal Law (Sentencing) Act 1988. Sub-section 38(1) provides, in part:
Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that... .
The authorities are replete with statements to the effect that there is only one test provided for by the statute, whether good reason exists to suspend, which admits of no qualification.[12]
[12] See for example R v O’Toole [2013] SASCFC 18 at [50] (Peek J with whom Sulan J agreed); R v Fowler [2006] SASC 18 at [58] (Gray and Layton JJ); R v Richards [2006] SASC 60 at [58]-[63] (Sulan J with whom Doyle CJ and Nyland J agreed); Ferguson v Police [2006] SASC 196 and Zafry v Police [2009] SASC 191.
The appellant submitted that the use of the word “sufficiently” served to add an impermissible gloss similar to the use of words such as “rare or exceptional” and operated, in effect, to further confine or restrict the circumstances in which suspension would be permitted.
I do not accept that the Judge placed an impermissible gloss on the relevant test. I agree with the respondent’s submission that the inclusion of the word “sufficiently” did not serve to generate a more onerous test. The Judge undertook the appropriate balancing exercise and implicit in that exercise when looking for good reason is the notion of a need to find “sufficiency”. Of the many factors relevant to the question of suspension, a number pointed against and a number pointed in favour. The Judge was merely indicating that, having undertaken the balancing exercise, he was not satisfied that good reason existed to suspend.
The impugned phrase must be read in the context of the entire paragraph dealing with suspension (as extracted above). The Judge was seeking to commend and encourage both accused for the efforts they had made since offending to try to restore their lives. Nevertheless, he had determined not to suspend their sentences. The use of the word “sufficiently” can be seen for what it is, an attempt, when speaking directly to the accused, to soften the blow. I reject the appellant’s contention that the Judge was adding and applying another requirement to the statutory test rather than simply engaging in the use of loose language which, ideally, should have been avoided.
Ground six – the Judge should have found “good reason” existed to suspend the term of imprisonment
Counsel for the appellant submitted that there was (and is) material to support the exercise of the discretion to suspend the term of imprisonment. In the written submissions of the appellant ten matters personal to the appellant and her family were listed in support of this contention. Each of these matters was the subject of sentencing submissions or referred to in Mr Fugler’s report. Most, if not all, were referred to or canvassed in the sentencing remarks either expressly or by implication. It can be accepted that there were factors of significance in favour of suspension. However, on the other side of the ledger, the offending was serious and the sentence needed to reflect, as important considerations, the need for both personal and general deterrence.
The Judge undertook the appropriate balancing exercise and it cannot be said that the decision not to suspend the sentence fell outside the available discretion.
Conclusion
I would dismiss the appeal.