R v Pierpoint No. Sccrm-03-128

[2003] SASC 331

R v PIERPOINT
[2003] SASC 331

Full Court:      Doyle CJ, Prior and Vanstone JJ (Ex tempore)

1. DOYLE CJ:          The appellant pleaded guilty in the District Court to nine offences charged on two different informations.  Each offence related to a drug of dependence or a prohibited substance under the Controlled Substances Act 1984 (SA). It is not necessary to go into the details.

2. The judge imposed a single sentence of imprisonment for eight years and 10 months. He fixed a nonparole period of four years. Before doing so the judge indicated the sentence that the judge considered to be appropriate for each offence or for certain groups of offences. In the circumstances this was an appropriate way to proceed. Had the judge not done so, it would have been very difficult to tell how particular offences affected the ultimate outcome. Having gone through that process, the judge arrived at an accumulated period of imprisonment for 12 years. Having regard to considerations of totality, the judge reduced that period of imprisonment to ten years. The sentence was further reduced by one year and two months to reflect time that the appellant spent in custody and on home detention. In that way the judge arriving at the final result of imprisonment for eight years, 10 months, in relation to which the nonparole period of four years was fixed.

3. In the course of his sentencing remarks, the judge referred to one of the offences as an offence of processing cannabis resin for sale. In fact, the appellant pleaded not guilty to a charge of possessing cannabis resin for sale but guilty of possession. That plea was accepted by the Director of Public Prosecutions in satisfaction of the greater charge. For this particular offence and for an offence of possessing methylamphetamine for sale, the judge indicated that the appropriate sentence was imprisonment for two years, six months; each sentence to be concurrent, but the concurrent sentences of two years six months to be cumulative upon sentences for other offences.

4. It is clear that the judge made a slip.  He imposed a sentence for the offence of possessing cannabis resin for sale when the sentence imposed should have been for the significantly less serious offence of simple possession of cannabis resin. There is no doubt that offence would, standing alone, attract a lesser sentence than the offence of possessing cannabis resin for sale. It attracted a maximum penalty of a fine of $500. To that extent the judge’s reasons indicated he erred. 

5. The question remains whether this Court should interfere.  It is arguable that the slip made by the judge made no difference to the end result. This is arguable when one bears in mind that the erroneous sentence was made concurrent with another sentence and no criticism could be made of the decision to impose a sentence of imprisonment for two years six months on the other offence.  It is also arguable that the error has not caused any injustice when one takes into account the final reduction on account of considerations of totality.

6. So, looking at the matter as a whole, it might be said that this particular offence paid no particular part in the final order. Nevertheless, one cannot say with complete confidence that the error had no effect on the final outcome, even though I doubt whether it did. The error might have affected the extent to which the judge thought it appropriate to reduce the overall sentence, having regard to considerations of totality.

7. Accordingly, bearing in mind that an error has been demonstrated, I would allow the appeal. I would set aside the sentence imposed by the judge and I would substitute a sentence of imprisonment for eight years and fix a nonparole period of three years, six months. That order reflects an approach to each offence which is the same as that taken by the District Court judge, but which notionally attributes to the offence of simple possession of cannabis resin a conviction without any separate penalty. That then results in an overall reduction of the penalty imposed by the judge reflecting the fact that there is now one less offence that attracts a sentence of imprisonment.

8. In the circumstances, I do not think it necessary to be any more precise about the means of arriving at the end result.

9. On that basis I would order that the appeal be allowed and that the sentence imposed by the District Court judge be set aside. I would substitute a single sentence of imprisonment for eight years and fix, in relation to that sentence of imprisonment, a nonparole period of three years, six months.

10. Accordingly, the orders of the court will be as indicated by me.

11. PRIOR J:              I agree.

12. VANSTONE J:     I too agree.