R v Scroop

[2015] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SCROOP

[2015] SASCFC 79

Reasons for Decision of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)

2 June 2015

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

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

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - PLEA OF GUILTY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - FINES

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES - CONDITIONS

Appeal against sentence. The defendant pleaded guilty in the District Court to one count of manufacturing a controlled drug for sale.  The agreed factual basis concerning the defendant’s conduct was that she permitted a co-offender to manufacture at her premises but took no part in the manufacture and did not benefit financially or otherwise.  The sentencing Judge imposed a head sentence of imprisonment of five years and fixed a non-parole period of two years and eight months.  The Judge found that there was good reason to suspend the sentence and imposed a bond in the sum of $500.00 for the maximum period of three years.  The Judge also imposed a condition pursuant to the bond that the defendant be under the supervision of a community corrections officer for the full three year period and follow directions in relation to counselling and treatment.

On appeal, counsel for the defendant submitted that the defendant was well able to arrange and meet the expenses of her rehabilitation.  It was suggested that a program arranged and funded privately would be completed within 18 months.  Counsel for the defendant provided the Court with proposed bond conditions in these terms.

Whether the head sentence and the non-parole period were manifestly excessive.  Whether the Judge failed to identify the reduction made on account of the plea of guilty.  Whether the terms of the suspended sentence bond imposed by the Judge were unnecessarily onerous and manifestly excessive.

Held per Gray J (Peek and Nicholson JJ agreeing):

1.  The sentence imposed by the District Court was manifestly excessive.

2.  After allowing a reduction in the order of ten per cent on account of the defendant’s plea of guilty, a head sentence of imprisonment of two years and six months with a 15 month non-parole period, is appropriate.

3.  The defendant is in a position to pay a substantial fine.  A fine of $20,000.00 should be imposed.

4.  The term of imprisonment should be suspended upon the defendant entering into a bond to be of good behaviour for three years on terms in line with those proposed by counsel for the defendant.

Controlled Substances Act 1984 (SA) s 33(3), s 4(1) and s 4(5)(f), referred to.

R v SCROOP
[2015] SASCFC 79

Court of Criminal Appeal: Gray, Peek and Nicholson JJ.

GRAY J.

1. This was an appeal against sentence. On 2 June 2015, the Court made orders allowing the appeal.  These are my reasons.

2. On 14 October 2014, the defendant and appellant, Annette Lee Scroop, pleaded guilty to one count of manufacturing a controlled drug for sale.[1]

   [1]    Controlled Substances Act 1984 (SA) section 33(3). The maximum penalty for a basic offence is a fine of $50,000.00 or imprisonment for 10 years, or both.

3. The term “manufacture” in relation to a controlled drug includes taking part in the process of manufacture of the substance.[2]  Permitting premises to be used in the manufacturing process is defined to be within the meaning of taking part in the process.[3]

   [2]    Controlled Substances Act 1984 (SA) section 4(1).

   [3]    Controlled Substances Act 1984 (SA) section 4(5)(f).

4. On 12 March 2015, the sentencing Judge imposed a head sentence of five years of imprisonment and fixed a non-parole period of two years and eight months.  He found that there was good reason to suspend the sentence and imposed a bond in the sum of $500.00 for the maximum period of three years.  The Judge also imposed conditions pursuant to the bond that the defendant be under the supervision of a community corrections officer for the full three year period and follow the officer’s directions in relation to attendance and completion of any assessment, counselling, treatment or therapeutic programs.

5. On 19 February 2013, police searched the defendant’s premises in Beverley, South Australia.  At the rear of the property in a garage, police found a methylamphetamine laboratory set up in a bunker connected to a “mechanic’s pit” area.  There were sufficient chemicals available to permit production of between 100 and 120 grams of methylamphetamine.  Counsel for the defendant submitted that the defendant’s co-offender, Fiorino Zampogna, was the person responsible for the manufacture of the methylamphetamine.

6. The house at Beverley is owned by the defendant.  She had inherited another house from her grandfather’s estate many years earlier, had sold that property and then purchased the Beverley property.  Zampogna had commenced a relationship with the defendant in early 2012 and he lived with her at that property for the period leading up to the offence in February 2013.

7. The agreed factual basis concerning the defendant’s conduct was that she “permitted Mr Zampogna to manufacture at her premises but she took no part in the manufacture and was not to benefit financially or otherwise from his manufacture”.  

8. Counsel for the Director of Public Prosecutions informed the sentencing Judge that his office had accepted the defendant’s plea in full satisfaction of the information on the basis that her involvement in the manufacture was minor.  She did no more than allow her premises to be used for that purpose.  The prosecution further stated that the defendant’s involvement was at the lower end. 

9. The Judge accepted the factual basis for the plea and stated:

   You pleaded guilty on the basis that while you were not yourself actively involved in the manufacture and while you were not to benefit financially or otherwise from that manufacture, you permitted your premises to be used for that purpose.

   The Appeal

10. On the appeal, the defendant complained that: the head sentence of five years and the non-parole period of two years and eight months were both manifestly excessive; the remarks of the Judge did not identify what reduction was made on account of the plea of guilty; and the terms of the suspended sentence bond were unnecessarily onerous and manifestly excessive.

    The Reduction for the Plea and Manifest Excess

11. The Judge did not identify a notional starting point for the sentence nor the extent of any reduction on account of the plea.  Counsel for the defendant submitted that if it is presumed that the Judge did apply a discount for the guilty plea then the notional starting point must have been considerably more than five years’ imprisonment.  This, it was said, was a manifestly high starting point in view of the defendant’s limited role in the offence and her personal and criminal antecedents.

12. Counsel for the defendant contended that it is a well-understood matter of principle that a sentencing judge should indicate in his remarks the extent of a discount for a plea of guilty.   It was further argued that in the absence of a stated reduction there is no reason why this Court should presume that the Judge did in fact apply a discount to the sentence.  It was said to be at least open on a reading of the remarks that the Judge omitted or overlooked applying a discount on account of the defendant’s plea of guilty.  It was contended that the failure to apply a discount was an error of principle and permitted this Court to intervene and resentence.

13. In my view, there was substance to the defendant’s submission as to the reduction for the plea and the submission that the sentence was manifestly excessive having regard to the minor role played by the defendant in the offence.  It was not challenged that the defendant understood that her partner had been threatened, coerced and pressured into manufacturing methylamphetamine.  It was in these circumstances that the defendant agreed to her premises being used by Zampogna.  It was accepted that the defendant took no further part in the process and received no benefit at all.  Her criminal culpability was at the lower end. 

14. An unusual aspect of the proceeding related to the defendant’s personal antecedents.  She had received a very substantial bequest from her grandfather’s estate and she had placed a significant portion of that bequest on trust with the Public Trustee.  The defendant was in a position to pay a substantial fine.  I considered that this was a case for the imposition of a substantial fine, together with a term of imprisonment.  Such an approach would better address the need for personal and general deterrence associated with the defendant’s offending. 

15. I considered that a head sentence of two years and six months, after allowing a reduction in the order of ten per cent on account of her plea, was the appropriate sentence to be imposed.  I considered that a non-parole period of 15 months should be fixed.  I also considered that a fine of $20,000.00 should be imposed. 

    The Terms of the Bond

16. In my view, good reason existed to suspend the sentence of imprisonment.  As the sentencing Judge remarked:

    Taking into account your background, your attempt to rehabilitate and the opinions of Ms Darmenia, I find that there are good reasons to suspend the sentence and I do so upon your undertaking to enter into a bond to be of good behaviour in the sum of $500 for a period of three years. During that time you are to be under the supervision of a community corrections officer and follow their directions in relation to drug counselling and mental health treatment.

17. As noted above, complaint was made of the terms of the bond.  Counsel for the defendant submitted that the defendant was well able to arrange and meet the expenses of her rehabilitation, including with respect to her mental health and drug use.  It was suggested that a program arranged and funded privately would be completed within 18 months.  This would provide the defendant with more intensive rehabilitative treatment than would be available publicly and the public system would also be relieved of that expense.  Counsel for the Director accepted the utility of this approach provided that a community corrections officer could be satisfied that the defendant was in fact undertaking appropriate treatment.  It was against this background that the defendant proffered the following proposed bond conditions:

    -     That I will be under the supervision of an Officer of the Department for Community Corrections for a period of 18 months;

    -     That during the supervision period I will undertake a course of treatment directed towards drug rehabilitation and mental health issues with the forensic psychologist Ms Lisa Darmenia or Dr Sandra Pisaniello (or such other qualified practitioner as they shall nominate in their absence) and I will not cease treatment unless it is brought to a conclusion by the treating practitioner;

    -     That I authorise and permit my supervising Corrections Officer to contact my treating practitioner at any time during the supervision period in order to verify that I am attending treatment and complying with the recommended treatment programs;

    -     That I hereby authorise my treating practitioner to notify my supervising Community Corrections Officer if I prematurely terminate any of the recommended treatment programs.

18. The Court also required the provision of a plan as to the rehabilitative treatment so that the Court could impose an appropriate period of supervision.  

19. I considered that the terms of the good behaviour bond as proposed were appropriate and, further, would enhance the prospects of the defendant’s rehabilitation and address the need for personal deterrence. 

    Conclusion

20. On 2 June 2015, the Court made an order allowing the appeal and setting aside the sentence imposed in the District Court.  The Court sentenced the defendant to a term of imprisonment of two years and six months.  The Court fixed a non-parole period of 15 months.  The Court imposed a fine of $20,000.00.  The Court suspended the term of imprisonment on the defendant’s entry into a good behaviour bond for a period of three years on conditions in line with those set out above.

21. PEEK J.    I agree with Gray J.

22. NICHOLSON J.    I agree with Gray J.