R v Sarandoglou

[2010] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SARANDOGLOU

[2010] SASC 190

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Kourakis)

30 June 2010

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - OTHER SUBSTANCES

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA

Appellant pleaded guilty to taking part in manufacture of a drug of dependence – methylamphetamine – sentenced to 15 months’ imprisonment with a non-parole period of 12 months’ imprisonment – sentence not suspended – whether non-parole period too great a proportion of head sentence – whether sentence should have been suspended – non-parole period called for given seriousness and circumstances of offending – no error demonstrated in Judge’s decision not to suspend sentence – appeal dismissed.

Controlled Substances Act 1984 (SA) s 32(1)(b); Criminal Law Consolidation Act 1935 (SA) s 353(4), s 353(4)(a), s 353(5); Criminal Law (Sentencing) Act 1988 (SA) s 32(1), s 32(5); Correctional Services Act 1982 (SA) s 66(1), s 67, s 68, s 69, s 74, s 74AA, s 76, s 77, referred to.
The Queen v Creed (1985) 37 SASR 566; The Queen v Stewart (1984) 35 SASR 477; The Queen v Shrestha (1991) 173 CLR 48, discussed.
R v Barnett (2009) 54 MVR 283; Foley v Police [2008] SASC 338; R v Major (1998) 70 SASR 488; R v Power [2003] SASC 288; R v Matthews [2008] SASC 259; House v The King (1936) 55 CLR 499, considered.

R v SARANDOGLOU
[2010] SASC 190

Court of Criminal Appeal:  Doyle CJ, White and Kourakis JJ

1. DOYLE CJ:          Ms Sarandoglou has been granted permission to appeal against a sentence imposed by the District Court.  She appeals on the ground that the sentence is manifestly excessive.

2. Ms Sarandoglou pleaded guilty to a charge of taking part in the manufacture of a drug of dependence, namely methylamphetamine, contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) (now repealed).

3. The maximum punishment for that offence is a fine of $200,000 or imprisonment for 25 years or both.  The District Court Judge imposed a sentence of imprisonment for 15 months.  But for her plea of guilty, he would have sentenced her to imprisonment for 18 months.  The Judge fixed a non-parole period of 12 months.  The Judge declined to suspend the sentence.

4. The circumstances of the offence can be stated briefly.  Ms Sarandoglou was using equipment that she said belonged to her deceased father to extract pseudoephedrine from certain medications.  She was doing this in the company of her partner, in the unit in which she lived.  About midnight there was an explosion and a fire.  As the Judge found, the explosion was attributable to the extraction process.

5. The Judge rejected a submission that Ms Sarandoglou intended to go no further than extract pseudoephedrine, and then to trade the pseudoephedrine for amphetamines for personal use.  The Judge said that the equipment and chemicals at the unit indicated that Ms Sarandoglou intended to produce methylamphetamine.

6. The Judge also found that Ms Sarandoglou’s purpose was commercial.    The Judge found that the pseudoephedrine produced or being produced could have been used to manufacture one ounce or 24 grams of methylamphetamine.  The other chemicals on hand were sufficient to produce a further nine ounces of amphetamine, provided sufficient pseudoephedrine was obtained.  Had that further amount been produced, the whole amount might have been worth as much as about $85,000.

7. I agree with the Judge’s conclusion.

8. The offence is a serious one.  The maximum punishment indicates that.  It is a prevalent offence.  The production of methylamphetamine in home laboratories is part of a broader picture of drug trading, which has significant adverse social effects.  Cases coming before the Court indicate that Ms Sarandoglou was engaging in a method of production that is prevalent, and underpins much of the trade in methylamphetamine. 

9. Ms Sarandoglou was 32 years of age.  She has had a somewhat troubled life, but this does not explain the offending.  She had become addicted to amphetamine, and this was the reason for the offending conduct.

10. A psychologist who examined her found no psychological disorder.  He said that she had some of the dissociative problems commonly seen in persons with borderline personality disorder.  In particular, she found it very difficult to trust people.  Not surprisingly, the psychologist recommended that Ms Sarandoglou seek counselling to help her to abstain from drug use.

11. Ms Sarandoglou pleaded guilty at a late stage, when the DPP decided not to pursue charges against her partner, who was present at the unit when the explosion occurred.  Ms Sarandoglou was not prepared to admit her guilt, unless she obtained a benefit for her partner.  That explains the relatively small reduction in the sentence for the plea of guilty.

12. Ms Sarandoglou has not previously committed any serious offences.  She has committed a number of relatively minor offences.  In April of 2009 she was convicted for the offence of possessing amphetamine, and fined $300.  The offence was committed at the same time as the offence now under consideration.

13. The Judge accepted that Ms Sarandoglou had overcome her addiction.  He meant, I believe, that she had stopped taking amphetamine.  The material before the Judge indicated that Ms Sarandoglou had stopped taking the drug only a matter of months before being sentenced.  She had not sought treatment for her addiction.  One cannot be confident that the underlying addiction has been cured.  Nevertheless, the Judge accepted, or appears to have accepted, that her prospects of rehabilitation were reasonably good.

14. The offending is serious and is a form of offending that is prevalent.  The risk of injury to innocent bystanders is demonstrated by what happened.  General deterrence is of considerable importance when sentencing for this offence.  There are mitigating circumstances, to which I have referred.

15. Not surprisingly, Mr Vadasz, counsel for Ms Sarandoglou, does not complain about the head sentence.

16. The head sentence is more than merciful.  For an offence of this kind it is too low.  The head sentence should have been at least two years, even allowing for the late plea of guilty.

17. Mr Vadasz complained that the non-parole period is too great a proportion of the head sentence.  It is true that the non-parole period is a higher proportion of the head sentence than is usual.  But there is no rule of thumb when it comes to fixing a non-parole period.  In The Queen v Creed (1985) 37 SASR 566 at 569, King CJ (with whom the other members of the Court agreed) said:

    … I would wish to say that the Court does not regard a non-parole period of two-thirds, nor indeed any other proportion, of the head sentence as being the norm.  Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case.  In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part.  Nothing in the nature of a norm can be acceptable.

    The fact that the non-parole period is a higher proportion of the head sentence than usual is, of itself, of no significance.

18. The period to be served on parole is only three months.  That seems insufficient time for any supervision of Ms Sarandoglou to be beneficial.  A non‑parole period should ordinarily allow sufficient time on parole for the aim of parole, rehabilitation through a supervised and supported return to liberty, to be achieved.  That is a criticism that can fairly be made of the Judge’s order.

19. But what stands out is that the non-parole period is only 12 months.  That cannot be regarded as excessive.  For the offence in question it is very low.

20. In The Queen v Stewart (1984) 35 SASR 477 King CJ outlined the process by which a court fixes a non-parole period. He said (at 477):

    The first question which I think a judge has to ask himself on an application of this kind is:  what is the minimum time which the prisoner must spend in prison in order to satisfy the punitive and deterrent and preventive purposes of punishment?

    At 479 he said:

    An important factor to be considered by a judge in fixing a non-parole period in a case such as the present is the aspect of deterrence to other people who may be tempted to commit similar crimes. …

    …

    Having considered what is the minimum term of imprisonment which is required to meet the punitive and protective purposes of punishment I must then consider whether parole is appropriate on other grounds.  That involves a consideration of the likelihood of the applicant responding to parole. 

    Similarly, in Creed King CJ said at 568:

    In every case, but particularly in the case of serious crimes such as the present, it is necessary that the non-parole period, no less than the head sentence, operate as a deterrent to others who may be minded to commit similar crimes. … The non-parole period, no less than the head sentence, must reflect the punitive, the deterrent, and also the preventive purposes of punishment.

21. The non-parole period is to be fixed as a determinate number, or as a definite period.  It is often convenient to refer to it as a proportion of the head sentence, but it is more accurate to speak of the non-parole period as the minimum time which the prisoner must spend in prison, rather than as the proportion of the head sentence to be spent in prison.

22. In the present case a non-parole period of at least 12 months was called for, having regard to the seriousness and circumstances of the offending.  The prospect of Ms Sarandoglou not offending again is reasonably good, but that does not operate to reduce the appropriate non-parole period.

23. A shorter non-parole period cannot be justified. The circumstance that the time to be spent on parole is only three months does not require the Court to compound the difficulty presented by the low head sentence by fixing an unjustifiably low non-parole period. This is not a case that, in this respect, leads to the conclusion that “… a different sentence should have been passed”: s 353(4)(a) of the Criminal Law Consolidation Act 1935 (SA).

24. Whether the sentence should have been suspended is difficult.  The circumstance that Ms Sarandoglou has not previously been imprisoned, nor had the benefit of a suspended sentence, is relevant.  One cannot say that her offence is so serious that a suspended sentence could not be ordered.  In my opinion there is no error demonstrated in the approach taken by the Judge.  The Judge has considered all relevant factors.  It is true that the Judge referred to Ms Sarandoglou having manufactured the drug “for purely commercial purposes”.  I do not agree that this indicates that the Judge overlooked that Ms Sarandoglou would have used some of the amphetamine herself, whether she obtained it by exchange or by producing it.  No error on the part of the Judge being demonstrated, and this not being a case in which one can say that the correct exercise of the discretion required an order suspending the sentence, the submission that the Judge erred must be rejected.

    Conclusion

25. For those reasons I would dismiss the appeal against sentence.

26. WHITE J:             I agree that the appeal should be dismissed, for the reasons given by the Chief Justice.

27. KOURAKIS J: I have had the benefit of reading the reasons of the Chief Justice. I respectfully agree with the observation of the Chief Justice that the head sentence imposed is too low. Indeed, in my view it is manifestly inadequate, but the Director of Public Prosecutions has not appealed against the head sentence. In the absence of an appeal against the inadequacy of the head sentence, the only relevant question before this Court is whether the exercise of the Judge’s discretion to fix a non-parole period of 12 months for a head sentence of 15 months pursuant to s 32(1) of the Criminal Law (Sentencing) Act 1988 (the CLSA) has miscarried.

28. I am of the opinion that the discretion has miscarried because the period allowed for parole is so short that it can serve no useful purpose. The practical effect of such a short non-parole period is to deny the appellant any real opportunity for parole. That would perhaps be acceptable if there was good reason to decline to fix a non-parole period pursuant to s 32(5) of the CLSA, but in this case there is plainly no such good reason.

29. Sections 32 of the CLSA relevantly provides:

    (1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—

    (a)     if the person is not subject to an existing non-parole period—fix a non-parole period; …

    …

    (5)     The above provisions are subject to the following qualifications:

    (a)     a non-parole period may not be fixed in respect of a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than one year;

    …

    (c)     a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of—

    (i)the gravity of the offence or the circumstances surrounding the offence; or

    (ii)the criminal record of the person; or

    (iii)the behaviour of the person during any previous period of release on parole or conditional release; or

    (iv)any other circumstance.

30. It is well established that the non-parole period must reflect the minimum time which the prisoner must spend in prison in order to satisfy the punitive, deterrent and preventative purposes of punishment.[1]  It must be remembered, however, that the judicial statements to that effect to which the Chief Justice has referred were all made in cases in which where there was no issue as to the correctness of the head sentence and, in particular, no question about the manifest inadequacy of the head sentence.  In both R v Stewart[2] and R v Creed,[3] King CJ was concerned with fixing a non-parole period for mandatory life sentences imposed on convictions for murder.

    [1]    Rv Creed (1985) 37 SASR 566 at 569; R v Stewart (1984) 35 SASR 477; R v Barnett (2009) 54 MVR 283; [2009] SASC 332 at [70].

    [2] (1984) 35 SASR 477.

    [3] (1985) 37 SASR 566.

31. The purpose of fixing a non-parole period pursuant to s 32 of the CLSA is to allow for the release of a prisoner on parole pursuant to the Correctional Services Act 1982.  A prisoner who is liable to serve a period of imprisonment of less than five years must be released no later than 30 days after the day on which the non-parole period expires.[4]  Prisoners serving longer periods of imprisonment (other than a sentence of life imprisonment) must be released from prison on parole on a day specified by order of the Parole Board if the Parole Board, in its discretion, orders release on parole.[5]  Parolees must comply with extensive conditions[6] which are enforced by the Parole Board.[7]  A parolee remains on parole until the expiry of the term unless the release is cancelled or suspended before the expiry of the term.[8]

    [4]    Correctional Services Act 1982 s 66(1).

    [5]    Correctional Services Act 1982 s 67.

    [6]    Correctional Services Act 1982 s 68.

    [7]    Correctional Services Act 1982 ss 74, 74AA, 76 and 77.

    [8]    Correctional Services Act 1982 s 69.

32. The manifest purpose of parole is to promote the rehabilitation of an offender by allowing him or her to serve a part of his or her head sentence on parole in the community.  Courts are given a discretion to fix that non-parole period because it is recognised that “considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody”.[9]  The parole system operates by allowing “for a review of the offender’s case after he has actually served a significant part of the custodial sentence, for the purpose of deciding whether he should be released on parole at that stage”.[10]

    [9]    The Queen v Shrestha (1991) 173 CLR 48 at 67 per Deane, Dawson and Toohey JJ.

    [10]   The Queen vShrestha (1991) 173 CLR 48 at 67-8 per Deane, Dawson and Toohey JJ.

33. It follows that the length of time during which an offender will benefit from the opportunity to rehabilitate whilst on parole in the community is as relevant a consideration in determining the length of the non-parole period as the requirements of punishment and deterrence.  Moreover, the very proposition that the non-parole period must, “no less than the head sentence”,[11] also reflect the need for punishment, deterrence and prevention necessarily entails a proportionate relationship between the non-parole period and the head sentence.  There is an indissoluble and correlative relationship between the proportion of the head sentence spent in custody and the proportion spent on parole.  I find it conceptually impossible to conceive the period of imprisonment which is the minimum necessary for deterrence and punishment without also determining the scope to allow for parole because a view about one will necessarily affect the position taken on the other.  Moreover, the same factual circumstances will be relevant to both the head sentence and the non-parole period.

    [11]   Rv Creed (1985) 37 SASR 566 at 568 per King CJ.

34. The process which I have just described is, as I observed in Foley v Police,[12] the reason that non-parole periods are often fixed at what is sometimes called the usual proportion.[13]

    [12] [2008] SASC 338 at [17].

    [13]   R v Major (1998) 70 SASR 488 at 492 per Doyle CJ; R v Power [2003] SASC 288 at [29] per Sulan J, Doyle CJ and Besanko J agreeing; R v Matthews [2008] SASC 259 at [12]-[13] per Kelly J, Duggan and Anderson JJ agreeing.

35. In The Queen v Shrestha,[14] Deane, Dawson and Toohey JJ explained that:

    Except where it is inappropriate that a convicted person should ever be considered for release on parole, the sentencing Judge must formulate an overall sentence, including a non-parole period, at the end of which the parole authority must determine according to the circumstances which then exist, whether the offender should be released on parole.[15]  (emphasis added)

    [14] (1991) 173 CLR 48.

    [15]   The Queen vShrestha (1991) 173 CLR 48 at 69.

36. It follows that, although a non-parole period is fixed as a certain period of time, it must necessarily reflect a proper proportion of the head sentence.  To proceed on any other basis, in my respectful view, distorts the overall sentence.  If the non-parole period in this case must reflect the punitive deterrent and preventative aspects of the head sentence, the non-parole period of 12 months cannot be justified.  It cannot rationally be said that those sentencing considerations call for a head sentence of only 15 months but require a non‑parole period of 12 months.  Nor is there any aspect of the appellant’s personal circumstances which suggests that a period on parole of only three months is appropriate.  To the contrary, a period on parole of only three months is such an ineffectual period that it can properly be described as futile.  The non-parole period does not allow anything like the period of time which is required for the purposes of rehabilitation through supervision.

37. In this respect, it is important to observe that s 32 of the CLSA does not apply to sentences of imprisonment of less than 12 months. In my view, that provision recognises that a period of substantially more than three months will ordinarily be required if there is to be any prospect of achieving rehabilitation through parole. For a sentence of 12 months, eight months reflects the proportion which is often described as “the usual non-parole period”. However, where the sentence of imprisonment is as low as 12 months, there are likely to be relatively more cases where a lower than “usual” non-parole period may properly be fixed. The absence of any statutory power to fix a non-parole period for head sentences of less than 12 months is therefore a strong legislative indication that parole periods of three months or less are likely to be ineffective.

1. Sentencing courts must impose a non-parole period unless there is good reason not do so.[16]  There are no such reasons in this case.  The parole period in this case is no more than nominal; it is not in any real sense parole at all.

   [16]   Criminal Law (Sentencing) Act 1988 s 32(5).

2. I have reached the conclusion that the time allowed for parole is, in all of the circumstances, so short that the result of the Judge’s exercise of the s 32 discretion is plainly unjust and unreasonable. In the circumstances of this case, a period of six months on parole would provide a meaningful and useful opportunity to provide the rehabilitation of the appellant.

3. In my respectful opinion, the terms of s 353 (4)(a) of the Criminal Law Consolidation Act 1935 (the CLCA) do not allow this Court to dismiss this appeal on the ground that it would not have imposed a different sentence. Sections 353 of the CLCA relevantly provides:

   …

   (4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—

   (a)     if it thinks that a different sentence should have been passed—

   (i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or

   (ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or

   (b)     in any other case—dismiss the appeal.

   (5)The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.

4. Section 353(4) must be understood against the common law principle that an appeal against sentence will not be allowed unless there has been an error in the exercise of the discretion of the type identified in House v The King.[17]  In my view, it follows that sub-s (4)(a) applies only to those cases in which the Court is of the view that a House v The King error has been made and that either it should impose a different sentence to the one imposed by the sentencing Judge or it should remit the matter to the sentencing court to consider whether or not a different sentence should be passed. Section 353(4) does not, in my view, allow this Court to take the view that it will not interfere with a non-parole period because it is of the view that a higher head sentence should have been imposed. Although not expressly prohibited by sub-s (5), in my view it is implicitly prohibited.

   [17] (1936) 55 CLR 499.

5. The non-parole period imposed in this case can only be considered a proper exercise of the discretion under s 32 on the premise that a head sentence higher than 15 months should have been imposed. To proceed in that way would be inconsistent with the purpose, if not the text, of s 353(5) of the CLCA.

6. The only satisfactory way through this paradox is to accept that, where a sentence is appealed on the ground that the discretion to fix a non-parole period has miscarried and there is no cross-appeal against the head sentence, the Court must proceed on the basis that the head sentence has been fixed without error.  On that basis, and for the reasons I have given, I would hold that a different non‑parole period, and therefore overall sentence, should have been imposed.

7. I would allow the appeal.  I would set aside the non-parole period of 12 months and instead fix a non-parole period of nine months.