(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Hinton)
30 June 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
This is an appeal against conviction and sentence.
Following a trial by jury the appellant was found guilty, by majority verdict, of one count of trafficking in a controlled substance, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984. The appellant was sentenced to a term of imprisonment of four years with a non-parole period of 19 months.
On 23 September 2014 police searched the appellant’s home and located 8.28g of mixed methylampethamine contained in a small clear tub found within a toolbox inside a cupboard. On a shelf adjacent to the methylamphetamine police found a ‘tick list’ containing the appellant’s fingerprint on the unmarked side of the ‘tick list,’ and at least one fingerprint belonging to a friend of the appellant on the side of the ‘tick list’ with the names and figures written on it. The prosecution ran their case that the appellant was in possession of the methylamphetamine irrespective of the involvement, one way or the other, of his friend.
Central to the District Court trial was the issue of possession.
The appellant’s grounds of appeal against conviction alleged imperfect directions given to the jury by the trial judge.
Whether the directions given by the trial judge disclosed error.
Whether the sentencing discretion miscarried.
The appellant proffered 5 grounds of appeal against sentence:
1. That the sentencing remarks are inadequate.
2. That the judge erred in failing to find that good reason existed to suspend the sentence.
3. That the judge erred in his consideration of whether a home detention sentence was appropriate.
4. That the judge erred in not ordering the sentence of imprisonment be served on home detention.
5. That the sentence imposed is manifestly excessive.
Held, per Stanley J (Nicholson and Hinton JJ agreeing):
1. The directions that Doyle CJ found were required in R v GNN are not to be given in every case where possession is an issue (at [16]).
2. The trial judge’s directions in this case were sufficient (at [18], [19], [29]).
3. Appeal against conviction dismissed (at [70]).
4. Failure to give reasons for sentence may amount to an error justifying the setting aside of that sentence (at [36], [40]).
5. Whether, in the circumstances, the reasons given in the sentencing remarks are so inadequate as to constitute an error need not be decided given my view that the judge has fallen into error in the approach he has taken to sentencing the applicant for the trafficking offence (at [57]).
6. The sentencing judge erred in perceiving that he was constrained to impose a term of imprisonment in the range identified by…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Saleh [2017] SASCFC 75
Case
[2017] SASCFC 75
Decision Date
CaseChat Overview and Summary
The appellant, R v Saleh, was convicted by a jury of trafficking methylamphetamine contrary to the Controlled Substances Act 1984 (SA). The appellant was sentenced to four years imprisonment with a non-parole period of 19 months. The conviction followed the discovery of 8.28 grams of methylamphetamine in a toolbox within the appellant's residence, along with a "tick list" containing names and figures. While the appellant conceded the tick list was consistent with drug dealing, there was no forensic evidence directly linking him or his associate, Mr [V], to the drugs themselves. The prosecution's case was that the appellant possessed the drugs, either for his own sale or by storing them for another knowing they would be sold.
The appeal raised two grounds concerning the trial judge's directions to the jury. The first ground argued that the directions on possession were inadequate, failing to instruct the jury that they must exclude the possibility that the appellant merely acquiesced to Mr [V] hiding the drugs without intending to exercise custody or control. The second ground contended that the judge failed to direct the jury that if they were not satisfied beyond reasonable doubt of the appellant's possession for trafficking, the prosecution must prove beyond reasonable doubt that the appellant stored the drugs for someone else, knowing they were to be sold or that their sale was contemplated.
The Court dismissed the appeal against conviction, finding the directions on possession to be adequate. However, the appeal against sentence was allowed. The Court resentenced the appellant to two years and three months imprisonment with a non-parole period of 14 months. This sentence was suspended and ordered to be served by way of home detention, with the sentence and non-parole period backdated to 12 May 2017.
Orders
Orders of the court
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Background
Background to the litigation
Following a trial by jury, the appellant was found guilty, by majority verdict, of one count of trafficking methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA). The appellant was sentenced to a term of imprisonment of four years with a non-parole period of 19 months.Factual background On 23 September 2014 police undertook a search of the residence occupied by the appellant, his wife and infant child. When police entered the premises, they were present together with the appellant’s brother. The brother was permitted to leave the house. Police found a clear plastic tub containing 8.28 grams of mixed methylamphetamine inside a toolbox located on the bottom shelf of a hallway cupboard. On another shelf of the same cupboard police found a folded piece of paper with a number of names and figures written on one side that the appellant conceded was consistent with it being a tick list. There was evidence that the author of the tick list was likely to have been a friend of the appellant, Mr [V]. Fingerprint evidence was called. The expert evidence was that there were a number of fingerprints found on the tick list. On the side of the paper without writing there was one fingerprint consistent with the appellant’s fingerprint and, on the other side, there were two fingerprints, one being identical to Mr [V’s] fingerprint and the second fingerprint being consistent with Mr [V’s] fingerprint. There was also evidence of telephone intercepts between the appellant and Mr [V]. There were extensive text messages and phone calls between the two in the period between 27 August 2013 and 6 November 2014. Those communications did not evidence involvement in drug trafficking by the appellant. Based on agreed facts, however, there was a high probability that Mr [V] had been involved in selling methylamphetamine on his own account. There was no forensic evidence that linked either the appellant or Mr [V] to the tub of methylamphetamine found in the appellant’s house. At trial, the issue was whether the drugs were in the possession of the appellant, either solely or jointly with Mr [V]. The prosecution case was that the appellant was in possession of the methylamphetamine found in his house, either on the basis that he intended to sell the drugs himself or that he was taking part in the process of sale by storing the drugs for another person, knowing they would be sold. Grounds of appeal on conviction There are two grounds of appeal. Ground 1 complains that the directions on possession were inadequate and that it was necessary for the judge to give a direction in the terms that were found to be required in R v GNN[1] that, in order to convict the appellant, the jury would have to exclude the possibility that he had merely acquiesced in Mr [V] hiding the methylamphetamine in his hallway cupboard without any intention to exercise custody or control over the drugs. [1] [2000] SASC 447, (2000) 78 SASR 293. Ground 2 complains that the judge failed to direct the jury, that if they were not satisfied beyond reasonable doubt that the appellant was in possession of the drugs, to prove trafficking, the prosecution had to prove beyond reasonable doubt that the appellant stored the drugs for someone else, knowing that they were to be sold or at least that it was in contemplation that they would be sold. In these circumstances, there was no statutory presumption that he was storing the drugs for that purpose, and they would have to be satisfied of that fact beyond reasonable doubt. The judge should have directed the jury accordingly. The directions in relation to possession
Evidence
Evidence Before The Court
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Decision
Reasons for decision
STANLEY J
(dissent)
The Court has received a home detention inquiry report that was prepared in June of this year. It was prepared for the purposes of bail. It is nonetheless relevant to the question of whether the Court should make an order pursuant to s 33BB of the Sentencing Act. The report finds that the proposed residence is suitable. I am satisfied that the residence is suitable and available for the detention of the applicant and the applicant will be properly maintained and cared for while detained in his residence. In the circumstances I am satisfied that it is appropriate that the applicant serve his sentence on home detention. Conclusion I would dismiss the appeal against conviction. I would allow the appeal against sentence. I would set aside the sentence. I would resentence the applicant to a term of imprisonment of two years and three months. I would impose a non-parole period of 14 months. I would suspend the sentence and order that the applicant serve the sentence on home detention pursuant to s 33BB of the Sentencing Act. The sentence and non-parole period are backdated to commence on 12 May 2017. NICHOLSON J: I agree with the orders proposed by Stanley J for the reasons his Honour has given. HINTON J: I agree that the appeal against conviction should be dismissed and that the appeal against sentence be allowed for the reasons given by Stanley J.