R v Scarpantoni

Case [2013] SASCFC 120

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SCARPANTONI

[2013] SASCFC 120

Judgment of The Court of Criminal Appeal

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

6 November 2013

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PRODUCTION OR CULTIVATION

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

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

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - PARITY BETWEEN CO-OFFENDERS - OTHER MATTERS

Appeal against conviction and sentence. The defendant was convicted of manufacturing a large commercial quantity of methylamphetamine for sale contrary to s 33(1) of the Controlled Substances Act 1984 (SA). He was sentenced to 25 years’ imprisonment, cumulative on an unexpired parole period of two years four months and three days’ imprisonment. The Judge fixed a non-parole period of 20 years’ imprisonment. Police raided a warehouse in which they located a clandestine laboratory inside a shipping container. Chemical reactions consistent with the extraction of pseudoephedrine were occurring. Two men were found at the premises and both pleaded guilty to manufacturing a large commercial quantity of a controlled drug for sale and were sentenced prior to the defendant’s trial. The prosecution case relied on a number of items of circumstantial evidence including evidence of the purchase of items used in the laboratory, bank statements, DNA located on a respirator, and intercepted telephone calls. The defendant gave innocent explanations for each piece of circumstantial evidence. He was sentenced on the basis that he was a “principal” of the operation and that his involvement was greater than that of the two men found by police at the laboratory.

Whether an element of the offence Created by s 33(1) of the Controlled Substances Act 1984 (SA) is that an accused intended to manufacture a large commercial quantity of a controlled drug. Whether the jury was adequately directed as to the burden of proof. Whether a telephone intercept evidence was inadmissible on the basis that the statutory requirements for its admission had not been met. Whether the head sentence and non-parole period were manifestly excessive. Whether the Judge erred in characterising the defendant as a “principal” of the drug operation. Whether there was a marked disparity between the sentences imposed on the co-offenders such as to give rise to a justifiable grievance.

Held (dismissing the appeals):

1 In order to establish an offence pursuant to s 33(1) of the Controlled Substances Act 1984 (SA), it is not necessary for the prosecution to establish that an offender knew or was reckless with respect to the quantity of a controlled drug (per Kourakis CJ and Sulan J, Vanstone J agreeing).

2  There was no error in the Judge’s directions as…

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R v Scarpantoni [2013] SASCFC 120
Case
[2013] SASCFC 120
Decision Date

CaseChat Overview and Summary

In R v Scarpantoni, the Supreme Court of South Australia considered appeals against convictions for drug offences and the sentences imposed. The primary dispute concerned the admissibility of intercepted telephone communications and the interpretation of provisions within the Controlled Substances Act 1984 (SA) and the Telecommunications (Interception and Access) Act 1979 (Cth).

The legal issues before the court included whether the prosecution was required to prove knowledge or recklessness regarding the quantity of a controlled drug for an offence under s 33(1) of the Controlled Substances Act 1984 (SA). The court also had to determine if the trial judge’s directions on the burden of proof and the handling of the defendant’s evidence were erroneous. Furthermore, the court was asked to consider whether the notification requirements under s 47(a) of the Telecommunications (Interception and Access) Act 1979 (Cth) were satisfied by the actions taken by the police in relation to a warrant, and if not, whether the intercepted evidence was admissible under s 75 of that Act. Finally, the court reviewed the severity of the sentences imposed.

The court held that knowledge or recklessness as to the quantity of the controlled drug was not an element of the offence under s 33(1) of the Controlled Substances Act 1984 (SA). It was also found that the trial judge’s directions and conduct were not in error and, in fact, may have benefited the defendant. Regarding the telecommunications legislation, the court determined that the notification requirement in s 47(a) was satisfied by complying with s 60(1)(c), and the requirement to send a certified copy under s 60(1)(d) was a separate obligation. The court found that despite the serious nature of the offending, the sentence of 15 years imprisonment with a non-parole period of 11 years was at the lower end of the appropriate range for such offences, particularly given the lack of evidence on certain aggravating factors. Consequently, the appeals were dismissed.

Orders

Orders of the court

Held (dismissing the appeals):

1 In order to establish an offence pursuant to s 33(1) of the Controlled Substances Act 1984 (SA), it is not necessary for the prosecution to establish that an offender knew or was reckless with respect to the quantity of a controlled drug (per Kourakis CJ and Sulan J, Vanstone J agreeing).

2 There was no error in the Judge’s directions as to the burden of proof. There was no error in approach of the Judge in reading out excerpts of the defendant’s evidence. There was some advantage to the defendant in the Judge dealing with the matter in the way in which he did (per Kourakis CJ and Sulan J, Vanstone J agreeing).

3 The requirement in s 47(a) of the Telecommunications (Interception and Access) Act 1979 (Cth) to notify the Managing Director of a carrier of the issue of a warrant is satisfied by complying with s 60(1)(c). The s 60(1)(d) requirement to send a certified copy of the warrant is a separate requirement and is not part of the “notification” referred to in s 47(a) (Per Kourakis CJ and Sulan J, Vanstone J agreeing).

4 Although the defendant’s conduct was extremely serious, there was no evidence that he was the sole financier of the operation, the amount of money he invested into the operation or the profit he stood to receive, the extent, if any, to which the operation was part of a wider criminal enterprise, whether the directly imported the pseudoephedrine from overseas or as to the intended destination of the methylamphetamine that was to be produced. The sentence imposed on the defendant was outside the appropriate range for offending of this type.

5 The sentence imposed of 15 years’ imprisonment with a non-parole period of 11 years’ imprisonment is at the lowest end of the range for offending of this type (per Vanstone J).

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 75 of the Act is the saving provision. It allows intercepted material to be given in evidence where there is a non-substantial defect or irregularity in connection with the warrant:75 Giving information in evidence where defect in connection with warrant(1) Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant (other than a warrant under section 11A, 11B or 11C), a person may give information obtained by the interception in evidence in an exempt proceeding, being a proceeding in a court or before a tribunal, body, authority or person, if the court, tribunal, body, authority or person, as the case may be, is satisfied that:(a) but for an irregularity, the interception would not have constituted a contravention of subsection 7(1); and(b) in all the circumstances, the irregularity should be disregarded.(2) A reference in subsection (1) to an irregularity is a reference to a defect or irregularity (other than a substantial defect or irregularity):(a) in, or in connection with the issue of, a document purporting to be a warrant; or(b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.The irregularity Evidence was given on the voir dire by Detective Senior Sergeant Lange, Officer in Charge of the SA Police Telecommunications Section, who had overall responsibility for the telephone intercept activities. It was stated that the warrant to intercept and record the defendant’s phone calls was issued on 11 May 2010. On the same day SA Police sent a “service enabling notification” to the Managing Director of the carrier, attaching the warrant in question and notifying the carrier of its issue. The trial Judge found that this satisfied the notice requirement under s 60(1)(c) of the Act. On 13 May 2010, two certified copies of the warrant were obtained from the Deputy Commissioner. The certified copy was sent to the carrier by registered post on 21 May 2010. Detective Lange gave evidence that the certified copy of the warrant was sent to the carrier by registered mail and a record and postal receipt were kept. However, police did not seek a confirmation from the carrier that the warrant had in fact been received. On 28 October 2010, SA Police contacted the carrier to seek the provision of an evidentiary certificate in relation to the telephone intercept. They were informed that the carrier had not received the certified copy of the warrant. SA Police were advised that the carrier had changed its address and that the address previously given by the carrier was no longer used. Detective Lange said that notwithstanding the envelope in which the certified copy of the warrant was sent had the sender’s address, nothing was returned as undeliverable. A further certified copy of the warrant was sent to the carrier on 4 November 2010. The carrier then provided the requested evidentiary certificate. Discussion The issue raised on the voir dire, and that the defendant seeks again to agitate, is whether in these circumstances, s 60(1)(d) had been breached. If that question is answered in the affirmative, two further issues fall to be determined. First, whether the interception was therefore not authorised by s 47 and, if not, whether evidence of the calls is inadmissible or could be admitted pursuant to s 75.

Decision

Reasons for decision

KOURAKIS CJ

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Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ

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