R v Reed

Case [2013] SASCFC 16

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v REED

[2013] SASCFC 16

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice David)

28 March 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - RELEVANT MATTERS - OFFENDER'S ADDICTION

The Director of Public Prosecutions sought permission to appeal against the sentence imposed on the respondent by a Judge of the District Court on the ground that it was manifestly inadequate - the respondent pleaded guilty to various drug offences contrary to the Controlled Substances Act 1984 (SA) - the respondent was sentenced to 14 months' imprisonment and ten months' imprisonment for the trafficking in controlled substances, the terms to be served concurrently - the terms of imprisonment were suspended upon the respondent entering into a 12 month good behaviour bond - the defendant had become addicted to methylamphetamine as a result of being prescribed the stimulant medication, dexamphetamine, from a young age.

Held:  Permission to appeal refused.

Per Kourakis CJ (David J concurring):  The sentence was manifestly inadequate - it was accepted that the respondent's addiction was a mitigating factor but one that was not accorded much weight - permission to appeal refused because the grant of permission would cause undue hardship and be counterproductive in the respondent's particular case.

Per Sulan J:  The sentence, although low, was merciful - case to be distinguished from one in which a person becomes dependent upon drugs, having always used illicit drugs illegally - in circumstances where a person develops an addiction to a prescribed medication as a result of a course of medical treatment and commences purchasing and using illicit analogies of such medication, that that is a relevant factor to consider in determining the appropriate sentence - permission to appeal refused on the ground that no error had been demonstrated justifying interference by the Court.

Controlled Substances Act 1984 (SA) s 32(3), s 33B(3); Criminal Law Consolidation Act 1935 (SA) s 340, referred to.
R v Harkin (2011) 109 SASR 334, applied.
R v Nemer (2003) 87 SASR 169; Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; R v Osenkowski (1982) 30 SASR 212; Green & Quinn v The Queen (2011) 244 CLR 462; R v Godfrey (1993) 69 A Crim R 318; R v Peel [2009] SASC 280, discussed.
R v Mangelsdorf (1995) 66 SASR 60; Talbot v The Queen (1992) 34 FCR 100; Douglas v R (Unreported) Federal Court of Australia BC9507618, considered.

R v REED
[2013] SASCFC 16

Court of Criminal Appeal:  Kourakis CJ, Sulan and David JJ

  1. KOURAKIS CJ:  

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R v Reed [2013] SASCFC 16
Case
[2013] SASCFC 16
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions sought leave to appeal against the sentence imposed by the District Court on the respondent, who had pleaded guilty to various drug offences under the *Controlled Substances Act 1984* (SA). The respondent was sentenced to concurrent terms of 14 and 10 months' imprisonment, which were suspended upon entering into a 12-month good behaviour bond. The Director contended that the sentences were manifestly inadequate and that there was no good reason to suspend them.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the sentences imposed were manifestly inadequate, and whether the sentencing judge erred in suspending the custodial sentences. This required the court to consider the principles governing Crown appeals against sentence, particularly when the ground for appeal is that the sentence is manifestly inadequate, and to assess whether the sentencing judge had sufficient grounds to suspend the sentences in light of the nature and quantity of the drugs involved, and the respondent's personal circumstances.

The Court acknowledged that the respondent's addiction to methylamphetamine, stemming from a long-term prescription of dexamphetamine for ADHD, was a significant mitigating factor. However, the Court also noted the substantial quantities of methylamphetamine and cocaine found, along with evidence of trafficking and significant cash proceeds. The sentencing judge had accepted that the respondent's drug use originated from medical treatment and that he had been frank and cooperative with police. Despite these mitigating factors, the Court found that the sentencing judge had not given sufficient weight to the objective seriousness of the trafficking offences.

The Full Court granted leave to appeal, allowed the appeal, and set aside the suspended sentences. The Court resentenced the respondent to 18 months' imprisonment, with a non-parole period of 9 months, to be served cumulatively on any other sentence.

Orders

Orders of the court

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Background

Background to the litigation

The Director appeals the sentences on the grounds that they were manifestly inadequate, and that no good reason existed to suspend the sentences.Background In the early hours of the morning of 14 May 2011, the defendant was stopped by police. The police officers detected a strong smell of cannabis and observed that the defendant appeared to be under the influence of some form of drug. They searched the defendant and located a small amount of cannabis and a pipe. Police also located a lunch bag containing approximately 11 grams of a white crystalline substance which contained 6 grams of pure cocaine, approximately 23 grams of white powder which contained 3.5 grams of pure methylamphetamine, resealable bags, a set of scales and $13,015 in cash. Inside a bumbag police located $819.20 and 6 grams of pure cocaine. An amount of $470 was also located in the defendant’s wallet. Police then attended the defendant’s premises where they located an extensive hydroponic cannabis set up. They found eight mature cannabis plants, 14 small cannabis plants and approximately three kilograms of loose cannabis leaf and stalks. The defendant admitted to police that the methylamphetamine was intended for sale and the cash located in the bag was the proceeds of selling. He claimed that the cocaine was for his own use. The defendant’s personal circumstances The defendant was born in Adelaide in 1981. He is the middle of three siblings. His parents live interstate. He attended school in Adelaide. He had a normal upbringing. After leaving school at the end of year 11, the defendant worked as a labourer and held a variety of other jobs. Apart from one short period, he has remained in full employment. For the past six years he has been employed as a truck driver. His employer describes him as a respected staff member with an outstanding work ethic. The defendant is in a relationship and his partner has a four-year-old child. He supports them financially. The defendant pleaded guilty at the first arraignment. He was frank and cooperative with police. He has some minor previous convictions, but none involving drugs. The sentencing Judge accepted that the defendant’s foray into drug taking resulted from his addiction which stemmed from medical treatment which he had been receiving from a young age. The defendant was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he was in about year 9. He was prescribed dexamphetamine to treat the condition from year 9 until he finished school in year 11. He had also been introduced to cannabis and was a regular user of that drug until he ceased using drugs after his arrest in May 2011. He stopped taking the medication when he left school until he fell out of work at the age of 25. The defendant consulted a general practitioner who referred him to a psychiatrist. Again he was prescribed amphetamines. At that time, he also commenced using cocaine. The defendant continued to take the medication until the psychiatrist retired in 2010 and his script ran out, at which point he began purchasing methamphetamine illegally. When the defendant commenced to purchase drugs illegally in 2010, the cost of his habit was about $1000 per week. He then commenced selling methylamphetamine to sustain his habit.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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