R v Potts - [2005] SASC 159

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Leave to Appeal in Private)
R v POTTS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Layton)
26 April 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for leave to appeal against sentence of imprisonment - findings made by sentencing Judge were open - sentencing Judge did not give insufficient weight to relevant factors - sentence imposed within the range - leave to appeal refused.
Supreme Court Criminal Appeal Rules 1996 r 15(8)(b), referred to.
R v Manglesdorf (1995) 66 SASR 60, considered.

R v POTTS
[2005] SASC 159
Court of Criminal Appeal Gray, Sulan and Layton JJ
GRAY J:

This is an application for leave to appeal against a sentence of imprisonment imposed by a Judge of the District Court.
A Judge of this Court refused leave to appeal. The applicant has requested that the application be considered and determined by the Full Court. The applicant did not ask the court to exercise its power under rule 15(8)(b) of the Supreme Court Criminal Appeal Rules 1996 to order that the application be listed for oral argument. Accordingly, the application has been considered on the written material available to the court.
For that purpose, the court has considered the Judge’s reasons for sentence, the application for leave to appeal and the transcript of proceedings before the sentencing Judge and the Judge who refused leave. This court has also had access to all of the material relevant to the sentencing of the applicant.
The applicant was convicted by jury verdict of possessing Ecstasy for sale. The maximum penalty for the offence is a fine not exceeding $200,000, or imprisonment for 25 years, or both. The learned sentencing Judge imprisoned the applicant for a period of two years and eight months and fixed a non-parole period of 16 months.
On 27 May 2003, police officers observed the applicant sitting in a motor vehicle in Woodson’s Lane, Adelaide. When first observed, he was alone; but the officers later saw him in the vehicle with another man standing at the driver’s window. The two were apparently in conversation.
The police officers drove around the block. When they next made observations, the applicant, Mr Potts, was still in the vehicle, but the other man had left. The police approached and spoke to Mr Potts. Mr Potts left the vehicle and finished eating a hamburger. He then put the wrapping from the hamburger into a KFC chip carton, which he placed on the dashboard of the vehicle.
Having learnt of Mr Potts’ identity, police made an enquiry that revealed there was an outstanding warrant for his arrest. They took Mr Potts to the police station in a police vehicle. Another officer followed in Mr Potts’ vehicle. To be able to see through the front windscreen, it was necessary for the officer to move the KFC carton. At that point, the officer detected that there was something in the carton aside from the hamburger wrapper.
A search of the vehicle revealed 22 Ecstasy tablets inside the KFC carton in one small plastic bag and two tablets in another bag. Mr Potts’ wallet contained $775 in cash. During a subsequent interview, Mr Potts informed the police that he could not say how the tablets came to be in his car or what they were.
At trial, Mr Potts advanced a different account. He said that he had paid $500 for the tablets and that they were for his own use. The jury by their verdict rejected his account of personal use.
The sentencing Judge proceeded on the basis that Mr Potts was a low-level street dealer who had not been selling Ecstasy for any significant length of time. The Judge sentenced against the background of some earlier dealing. However, the Judge made it clear that he was sentencing Mr Potts only in respect of the offence of possessing Ecstasy for sale, the subject of the jury verdict.
At the time of sentencing, Mr Potts was 29 years of age. He had two prior convictions for cannabis-related offences. He had not been sentenced to imprisonment on any earlier occasion.
Mr Potts was in a relationship with a young woman at the time of sentencing. He had a four-year-old son by a former partner, who had custody of the child. Mr Potts informed the sentencing Judge that he had been drug-free for over a year and had taken control of his life. It was said that generally Mr Potts had a good working record.
The sentencing Judge was unable to conclude that there was good reason to suspend the sentence of imprisonment that he intended to impose. He took the view that the offence was too serious. However, regard was had to the matters referred to earlier when fixing what the Judge described as a lower non-parole period than he otherwise would have done. He placed emphasis on Mr Potts’ prospects for rehabilitation.
The application for leave raises the following grounds:
- that the sentence imposed was manifestly excessive;
-that the learned sentencing Judge erred in not suspending the sentence of imprisonment; and
-that good reason did exist to suspend the sentence of imprisonment when having regard to the appellant’s prospects for rehabilitation, his good character and his good working record.
It was said that the sentencing Judge, in stating that “it is only very rarely that a sentence would be suspended for an offence such as yours”, had erred.
It is not surprising that the learned sentencing Judge considered the offence as serious. Commercial dealing in prohibited drugs is a serious matter. The offence is of a kind about which there is considerable community concern. The approach and remarks of the Judge are supported by R vManglesdorf[1], where Doyle CJ observed:
This Court has established standards for the punishment of crimes of the type dealt with by the judges in the cases the subject of the present application. The court has referred time and again to the severe penalties imposed by s 32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s 32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs. The court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32.
[1] (1995) 66 SASR 60 at 63
The head sentence and the non-parole period imposed by the sentencing Judge were well within the range of punishment for the offence of possessing Ecstasy for sale. The findings of fact made by the sentencing Judge were open to him and have not been challenged. The Judge has not been shown to give an insufficient weight to any factor. The sentence imposed was within the range and was an appropriate sentence.
I would refuse leave to appeal.
SULAN J: I agree that leave should be refused, for the reasons given by Gray J.
LAYTON J: I have some concerns about Judge Boylan's statement that:
"I shall sentence you on the basis that you were a fairly low-level street dealer. I do not sentence you on the basis that you had been selling ecstasy for any significant time but on the basis that for some little time before you were caught you had been selling the drug, that is, I sentence you against a background of some dealing in the drug but, of course, I sentence you only for the offence of possessing ecstasy for sale on 27 May 2003."
My concern is that there was no evidence at all of the applicant being a low-level street dealer selling ecstasy for any period of time, whether it is expressed as either “[not] for any significant time” or “for some little time”. This is juxtaposed with the final words in which the Judge indicates that he was sentencing only for the offence of possessing ecstasy for sale on 27 May 2003. There seemed to be some contradiction between the first part of His Honour's statement and the final part. If the latter was true, one questions is why say the first part at all.
This concern caused me to look carefully at all the documentation referred to by Justice Gray in his reasons, including the antecedents report, the evidence given by applicant at his trial, the reasons for the sentence of imprisonment given by the Learned Judge and the grounds on which leave is sought.
After undertaking that task I am satisfied that if the applicant is treated as a first time offender for possessing ecstasy for sale with no history of previous dealing in ecstasy, the sentence imposed by Judge Boylan was within the range, and was nonetheless an appropriate sentence in all the applicant’s circumstances for the reasons set out by Justice Gray. I therefore agree that leave to appeal should be refused.