R v Robins - [2016] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROBINS
[2016] SASCFC 55
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Nicholson)
13 May 2016
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against sentence. The appellant pleaded guilty to one count of trafficking in a large commercial quantity of a controlled drug (count one) and one count of trafficking in a controlled drug (count two) contrary to s 32 of the Controlled Substances Act 1984 (SA).
The appellant was sentenced after a disputed facts hearing to three years and seven months imprisonment for count one, and one year, nine months and two weeks imprisonment for count two, to be served concurrently. The sentencing Judge fixed a non-parole period of two years and six months. The sentence was not suspended.
Whether the sentencing Judge erred by providing inadequate reasons for the sentence imposed. Whether the sentencing Judge erred in failing to find good reason to suspend the sentence of imprisonment such that the sentencing discretion has miscarried.
Held per Kelly J (allowing the appeal) (Stanley and Nicholson JJ agreeing):
1.       The sentencing Judge, as a matter of sound sentencing practice, should have dealt with the main submission advanced to him during sentencing submissions, namely that the term of imprisonment should be suspended. It is necessary for this Court to exercise the sentencing discretion afresh.
2.       There is no reason to depart from the head sentences imposed by the sentencing Judge. The appellant is sentenced to three years and seven months imprisonment for count one and one year, nine months and two weeks imprisonment for count two, to be served concurrently.
3.       Good reason does not exist to suspend the appellant’s sentence of imprisonment. The mitigating factors in sentencing can be appropriately reflected by setting a lower non-parole period of two years.
Controlled Substances Act 1984 (SA) s 32(1), s 32(3); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA), referred to.
R, JM v Police (2012) 113 SASR 9; R v Kong (2013) 115 SASR 425, applied.
Harvey v Police [2002] SASC 362, considered.

R v ROBINS
[2016] SASCFC 55
Court of Criminal Appeal: Kelly, Stanley and Nicholson JJ
KELLY J.

This is an appeal against sentence. The appellant pleaded guilty to one count of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (the Act), and to a further count of trafficking in a controlled drug contrary to s 32(3) of the Act. The respective maximum penalties for those offences are life imprisonment or a fine of $500,000 or both, and 10 years imprisonment or a fine of $50,000 or both.
The appellant pleaded guilty on 2 February 2015 on what was scheduled to be the first day of his trial. The appellant was eventually sentenced after a disputed facts hearing to three years and seven months imprisonment for the first count of trafficking, and one year, nine months and two weeks imprisonment for the second count, to be served concurrently. The sentencing Judge imposed a non-parole period of two years and six months. The sentence was not suspended and commenced the day of sentencing, 10 August 2015.
The appellant appealed on three grounds. First, that the Judge erred by providing inadequate reasons for the sentence imposed; second, that the head sentence and non-parole period in respect of count one are manifestly excessive; and third, that in failing to find good reason to suspend the sentence of imprisonment the sentencing discretion has miscarried.
A single Judge granted permission in respect of the first and third grounds and refused permission in respect of the second ground. In this Court the appellant argues only grounds 1 and 3. Before turning to the merits of the appeal it is convenient to set out the facts which gave rise to the charges and the Judge’s findings which formed the factual basis for sentence.
Background
On the morning of Thursday 15 August 2013, police deployed a drug detector dog inside a freight shed at Berrimah in the Northern Territory. The dog responded to a box being held in the dangerous goods holding area. That box had the following details upon it “To: J.S. Autos, Darwin from L & M Electrical, pick up from Darwin Depot”.
Police searched inside the box and found a 30 litre plastic drum wrapped with bubble wrap and inside it a large resealable bag and 19 PVC pipes sealed with duct tape. Inside the bag and the PVC pipes were a variety of pills containing a variety of substances. The appellant was arrested on 16 August 2013. He initially denied sending the package.
The first count related to 6,863 pills totalling 1.689 kilograms containing 5‑methoxy-N,N-diallyltryptamine (DNT). The second count related to 1,474 pills containing various other drugs including DNT, ketamine, 1‑benzylpiperazine, and 1-(3-Trifluoromethylphenyl)piperazine, the total weight of which was 433.96 grams.
There were approximately 11,960 other pills containing body building substances or caffeine which were not part of the charged conduct.
The appellant entered guilty pleas to both counts on the basis that he was to receive a very small benefit in the sum of $100 for his role and that he was reckless as to the contents of the parcel being controlled substances. The Crown did not accept that factual basis and the matter proceeded to a disputed facts hearing which took place on 17 March 2015.
During that hearing the appellant gave evidence. He said that at the time of the offending he was working for Veolia as a truck driver based in the Cooper Basin at Moomba. He claimed to have met a man he knew as “Victor” about 10 years prior to the offending at a buck’s party in the city. The appellant said Victor had offered to fix a vehicle for him and the appellant gave Victor his address. The appellant and Victor became friends, although the appellant did not have a working phone number for Victor and was not sure of his last name.
The appellant had previously sent a number of packages for Victor which contained camping and four-wheel drive accessories, straps, boat covers and elastic straps. These parcels had been packaged by the appellant and sent in his own name free of charge through contacts he had at Toll Transport.
He said that the package the subject of the current charges was brought to the appellant’s home by Victor who was acting in a manner which raised some suspicion on the part of the appellant. While the appellant stayed inside Victor wrapped the package in the backyard using bubble wrap that the appellant said he had coincidentally purchased to wrap and move a refrigerator. The appellant considered that at worst the package might contain steroids as he believed that Victor was establishing a gym in Darwin. However, late in submissions before the sentencing Judge the appellant acknowledged through his counsel that he had been reckless as to the contents of the package. The appellant said he had put the package in his motor vehicle and had forgotten about it for two days before he arranged for the package to be shipped. He received two $50 notes from Victor as payment.
Material provided by SAPOL demonstrated that a man named Victor was known to Northern Territory Police in relation to the manufacture of methylamphetamine.
The sentencing Judge published reasons for sentence. He rejected the appellant’s evidence about the circumstances in which he had met Victor, the purchase of the bubble wrap used, and the value of the benefit the appellant was to receive.
He found that in all probability the appellant was acting on behalf of, or in conjunction with someone else. He found that the appellant’s role was to assist in the transportation of the drugs by using his contacts at Toll Transport. The Judge did not sentence the appellant on the basis that he sourced the drugs or that he would be responsible for their eventual distribution in the Northern Territory.
The appeal
Ground 1: Did the sentencing Judge err by providing inadequate reasons for the sentence that was imposed
On appeal counsel for the appellant identified a number of main factors as to why, in all of the circumstances, the failure of the sentencing Judge to mention the issue of suspension amounts to an error. These included, first, that during sentencing submissions the only sentencing option effectively advocated for by counsel for the appellant was the suspension of the sentence; second, at the time of sentencing the appellant was a 56 year old man who had never before been imprisoned or convicted of any serious offence; third, although the appellant’s offences were in a serious category his role in the trafficking placed his overall offending in a lower category of seriousness for an offence of this nature and therefore suspension was a live option; and fourth, there was a period of approximately three and a half months between the date when submissions were finalised and the date when the sentence was actually passed. Counsel for the appellant contended that in light of these factors, and in the absence of any reference at all in the sentencing remarks to the issue of suspension, this Court cannot carry out its appellate function to review whether or not the exercise of the discretion was in error or indeed whether the discretion was exercised at all.
To my mind, there is merit in this submission. Although in this case the offences for which the appellant was to be sentenced were in a serious category, indeed one of them attracted a maximum penalty of life imprisonment, by virtue of the factors mentioned it was by no means inevitable that the appellant would receive an immediate sentence of imprisonment without serious consideration being given to whether good reason existed to suspend the sentence. This is underscored by the fact that counsel for the respondent fairly conceded on appeal that had the discretion been exercised in favour of suspension it is unlikely that any prosecution appeal would have followed.
The appellant was 56 years old when he was sentenced. He had never before been convicted of any drug offending or any other serious offending. He had never before been imprisoned. The appellant did plead guilty, albeit on the day of trial, however he had a good work history, character referees who spoke highly of him, and he had demonstrated a willingness to cooperate with the authorities regardless of whether the information provided was utilised. These were all circumstances which militated in favour of, not against, suspending the term of imprisonment. In these circumstances it could hardly be said that it was inevitable that the appellant would be sentenced to an immediate term of imprisonment.
Against this background there is a real question as to whether, in these circumstances, the sentencing Judge’s failure to mention the issue of suspension at all amounts to an appealable error.
Generally speaking any court must give adequate reasons for its decision. It is well established that a failure to provide adequate reasons when delivering a verdict is an error of law. The principle is less clear in relation to the approach to be adopted with regard to the imposition of a sentence. A review of some decisions of this Court that deal with the issue of the failure to provide adequate reasons when sentencing demonstrates that it has on occasion been held to be an error of law, but on other occasions that approach has not been universally adopted. In Harvey v Police[1] Doyle CJ stated:[2]
… Again, in my respectful opinion, when a substantial sentence of imprisonment is imposed it is appropriate to give brief reasons why imprisonment is an appropriate response and why no lesser sentence would be appropriate. This is a strong case and in the particular circumstances, in my opinion, the failure to do so is not indicative of error.
[1] [2002] SASC 362.
[2] Harvey v Police [2002] SASC 362 at [31].
In Harvey the Court was dealing with the failure of a Magistrate to give adequate reasons for imposing a sentence of imprisonment. Chief Justice Doyle held that as there were strong reasons for imposing the sentence that was imposed, the Magistrate’s failure to mention why no lesser sentence was appropriate was not an error.
In R, JM v Police[3] Doyle CJ (with whom David and Blue JJ agreed) said:[4]
There is a further complaint that the judge’s reasons are inadequate. They do not deal with this particular submission. The reasons are brief, and to the point. However, I agree that as a matter of sound sentencing practice the judge should have dealt with what was the main submission advanced to him. However, as the argument that the judge erred has no reasonable prospect of success, it is not appropriate to set aside the sentence imposed, with a view to resentencing.
[3] (2012) 113 SASR 9.
[4] R, JM v Police (2012) 113 SASR 9 at [23].
I have reached a similar conclusion to Doyle CJ in R, JM. I consider that in all of the circumstances here the sentencing Judge, as a matter of sound sentencing practice, should have dealt with the main submission advanced to him during sentencing submissions, namely that the term of imprisonment should be suspended.
I do not intend by these remarks to state that it is an error in all cases for a sentencing Judge to fail to explicitly mention the issue of suspension. It will depend on the circumstances in each case and in particular whether suspension was or was not a real and live option. It will also depend whether, in all of the circumstances, it is so obvious that a suspended sentence is not appropriate that the Judge does not need to mention it. However for the reasons I have stated, I consider that the Judge’s omission to say anything about the issue of suspension, in the light of the submissions made at the sentencing hearing, has given rise to a legitimate grievance on the part of the appellant.
For this reason I consider that there has been an error which justifies the intervention of this Court. Accordingly, I do not propose to consider the remaining appeal ground as it is necessary for this Court to exercise the entire sentencing discretion afresh.
Resentencing
As this Court has stated on many occasions, there is no particular formula for determining, in any particular case, whether good reason exists to suspend a sentence of imprisonment. The factors which the Court will take into account differ from case to case. The issue must be determined in light of all of the circumstances including the objective seriousness of the offending, the offender’s role in the offending and all of the potentially mitigating factors.
Even taking into account the role the appellant played, in this case there is no doubt that his offending was serious. In R v Kong[5] this Court stated:[6]
… Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, nor (sic) surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers.
[5] (2013) 115 SASR 425.
[6] R v Kong (2013) 115 SASR 425 at [90].
The appellant chose to give evidence on the disputed fact hearing. His evidence was not accepted by the sentencing Judge. Accordingly he falls to be sentenced as a courier who arranged and helped to facilitate the transportation of drugs to Darwin by using innocent third parties. It is also obvious that the appellant assisted in packaging the drugs. Thus in my view the appellant’s role was important in moving the drugs from South Australia to the Northern Territory.
The number of pills found containing a controlled drug was significantly above that required to constitute a “large commercial quantity” as prescribed by the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA), notwithstanding that the drugs fell into that category by virtue of the number of pills, rather than weight. Indeed it was noted by the prosecutor in sentencing submissions that such a large quantity of pills was not often seen.
Additionally, I cannot overlook the fact that the appellant’s plea was entered late, on the day of trial, and his evidence on oath was disbelieved. These are factors which militate against a finding that there was genuine remorse and contrition on the part of the appellant.
The maximum penalty for trafficking in a large commercial quantity of a controlled drug is life imprisonment or a fine of $500,000 or both. This penalty reflects the gravity of the offence. It is necessary in sentencing the appellant to give effect to the need for both general and personal deterrence, and to the fact that had this shipment succeeded there was a huge potential for harm to the community in which those drugs would have been distributed.
It is true that the appellant, who is now 57 years old, has not previously been imprisoned for any serious offence, and certainly not for any drug offence. His family background and his good work history are also matters which must be thrown into the scales.
Even taking into account these mitigating factors I do not accept that there are good reasons to suspend the appellant’s sentence of imprisonment. The appellant has not challenged the overall head sentence and non-parole period arrived at during this appeal. Nor in exercising the sentencing discretion afresh do I consider that there is any reason to depart from the head sentences imposed by the Judge. However, the mitigating factors can appropriately be reflected in the setting of a lower non-parole period. I would in exercising the sentencing discretion afresh impose a head sentence for the first count of three years and seven months imprisonment which takes into account the discount of 10 per cent applicable for the appellant’s guilty plea. For the second count, the offence of trafficking in a controlled drug, I would impose a sentence of one year, nine months and two weeks which takes into account the applicable discount of 10 per cent, to be served concurrently with the sentence for the first count. I would fix a non-parole period of two years and backdate both the head sentence and the non‑parole period to commence on 10 August 2015.
STANLEY J. I would allow the appeal. I agree with the orders proposed by Kelly J and with her reasons.
NICHOLSON J. I agree with Kelly J.