R v Sladic
[2005] SASC 210
•10 June 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v SLADIC
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Layton)
10 June 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - FRESH EVIDENCE - GENERAL PRINCIPLES
Appeal against sentence - appellant and co-offender pleaded guilty to two counts of knowingly taking part in the sale of methylamphetamine - sentenced to head sentence of three and a half years imprisonment, non parole period of two and a half years.
Appellant appeals on grounds that the head sentence and non parole period were manifestly excessive; that further evidence should be admitted on appeal and that the sentence should have been suspended.
Discussion of nature of middle range drugs and possible reclassification of drugs for sentencing purposes – discussion of different approaches for calculating reductions on notional head sentence –consideration of whether judge was in error in reducing sentence having regard to police involvement – discussion of parity of sentence between the two offenders – consideration of appellant’s personal circumstances – whether sentence should be suspended.
Admission of fresh evidence on appeal considered – discussion of section 359 Criminal Law Consolidation Act – application for leave to introduce further evidence refused – appeal dismissed.
Controlled Substances Act 1984 (SA) 32(1)(d); 32(5)(B(b)(ii); Criminal Law (Sentencing) Act 1988 (SA) 18A; 10(1); 38(1); Criminal Law Consolidation Act 1935 (SA) 353(4); 359, referred to.
R v Mangelsdorf (1995) 66 SASR 60; Markarian v R (2005) 215 ALR 213; R v McGowan (1986) 42 SASR 580; R v Penno [2004] SASC 354; R v Campanella (2004) 90 SASR 1; R v Becker [2005] SASC 186; R v Williscroft [1975] VR 292; R v Thompson (1975) 11 SASR 217; R v Pearce (1980) 91 LSJS 443; R v Cronn & Bladon (1983) 34 SASR 555; R v Plaister & Graham [2001] SASC 383; Bellissimo v The Queen (1996) 84 A Crim R 465; AB v R (1999) 198 CLR 111; Wong v R (2001) 207 CLR 584; R v C (2004) 89 SASR 270; R v Smith (1987) 44 SASR 587; R v Dorning (1981) 27 SASR 481; R v Malesevic (1999) 204 LSJS 32; R v Perre (1997) 194 LSJS 363; Dinsdale v The Queen (2000) 202 CLR 321; R v Morabito [2003] SASC 388; The Queen v Haydon (2001) 80 SASR 560; R v Mandica, Spakianos & Spakianos (1980) 24 SASR 394; R v Jurkovic (1981) 6 A Crim R 215; Johnson v R (2004) 78 ALJR 616; R v Mill (1988) 166 CLR 59; R v Khim [2002] SASC 343; R v Power [2003] SASC 288; Moorhead v Police (1999) 202 LSJS 488; R v Bryant 10 Dec 1990 SACCA Decision Number s 2685; R v Wirth (1976) 14 SASR 291; R v Gjoka 1 July 1997 SACCA Decision Number S 6211; R v Lainas (1989) 50 SASR 461; R v Taouk (1992) 65 A Crim R 387; R v Lau (2002) 136 A Crim R 495, considered.
R v SLADIC
[2005] SASC 210Court of Criminal Appeal Gray, Sulan and Layton JJ
THE COURT
This is an appeal against sentence.
Background
The appellant and his co-offender, Marzilli, pleaded guilty to two counts of knowingly taking part in the sale of methylamphetamine, a drug of dependence, contrary to section 32(1)(d) of the Controlled Substances Act1984. The pleas were entered on 28 May 2004. Both men were committed to the District Court and were sentenced on 28 January 2005. The maximum penalty for each offence is imprisonment for 25 years and/or a fine of $200,000.[1]
[1] Section 32 (5) B (b) (ii).
The appellant and Marzilli were each sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). The learned sentencing judge, after identifying in each case a notional starting point for the sentence of six years, made a reduction of one quarter for the early pleas, and then made a further reduction of one year by reason of pressure and inducement from the police. The result was that each offender received the one head sentence of three and a half years’ imprisonment. In each case a non-parole period of two and a half years was fixed. Only the appellant has appealed.
At the hearing of the appeal, counsel for the appellant contended that the head sentence and non-parole period were too high, that further evidence should be admitted on appeal and that the sentence should have been suspended.
In the course of argument, two further issues emerged: the nature of middle-range drugs and the manner of the making of reductions when determining the head sentence.
Counsel for the appellant further submitted that the judge inappropriately sentenced the two offenders on an identical basis. It was said that the appellant’s sentence should have been less than Marzilli’s, predominantly by reason of his young age and personal circumstances.
The Offending
The first offence occurred on 26 August 2003 and involved the appellant and Marzilli taking part in a sale of 3.82 grams of paste, containing .62 grams of methylamphetamine. The sale was made to an undercover police officer (“the operative”) at an Adelaide hotel. This quantity constituted a sample of the drug which was to be sold.
The offence on 27 August 2003 occurred when the appellant and Marzilli took part in the sale of 440 grams of moist paste which, when dried, weighed 418.3 grams and contained 73.4 grams of methylamphetamine, to the operative at the Adelaide Airport.
On 14 August 2003, the operative contacted the appellant. He told the appellant that a person identified as John had told him to contact him. The appellant, in the course of the conversation, told the operative he could get up to two or three pounds of “the gear”. They spoke about price. The operative told the appellant he would contact him later. The appellant said he could provide a sample.
Some days later, the appellant text-messaged the operative, asking what was going on. The operative responded by telephone that he was interstate and would contact the appellant the following week.
On 22 August 2003, the operative telephoned the appellant who arranged to provide a sample at the airport on 26 August 2003. At or about this time, Marzilli, who had a significant gambling debt, was approached by a third person known to both himself and the appellant, who asked him to deliver a parcel. Marzilli was told that in return for the delivery his gambling debts would be reduced by $2000, but that if he did not deliver the parcel, his gambling debts would increase by five per cent per month. Marzilli agreed to deliver the parcel.
The appellant telephoned the operative on 26 August 2003. The operative said he wanted one pound. The operative met the appellant at the Austral Hotel and was introduced to Marzilli. At Marzilli’s suggestion, the operative told Marzilli that he wanted a pound, but wanted to inspect the sample. The operative and the appellant went to the toilet, where the appellant handed 3.82 grams of paste which contained .62 grams of methylamphetamine to the operative. The operative and appellant returned and the operative told Marzilli that he wanted to have someone look at the sample. Marzilli said that he could be paid in denominations of fives or tens.
On 27 August 2003, the appellant and the operative spoke on their mobile phones on fourteen occasions, discussing details about the quality, price and the delivery of the drugs. The operative was placing pressure on the appellant to finalise the deal. It was agreed that the price was $42,000, and the sale was to take place that evening at the airport.
That day, Marzilli collected a parcel from Gouger Street. He was aware that the parcel contained drugs but was unaware of the quantity. That evening, the operative observed Marzilli driving into the car park at the airport. The operative approached him and sat in the vehicle. Marzilli indicated a plastic bag which was on the floor. The operative looked at the contents of the bag and then left, ostensibly to get the agreed $42,000. The operative then observed Marzilli in his vehicle and the appellant in another vehicle driving away. At that point the operative approached and arrested Marzilli.
The appellant was spoken to by police later that evening. He admitted having been involved in the sale of methylamphetamine, but denied having arranged for drugs to be at the airport. Marzilli declined to answer questions.
Sentencing basis for each offender
The judge sentenced Marzilli on the basis that he was a courier who had been put under pressure by a third-party. Marzilli was not prepared to identify the third-party because of threats which had been made against his wife.
In the case of the appellant, the judge accepted that his involvement was that of a middle man facilitator. The judge took the view that although initially the appellant showed a willingness to be involved, later he displayed some reluctance but was unable to extricate himself.
The judge accepted that a discount should be allowed to both offenders because the detection of the offences involved a degree of covert pressure and inducement from the police operative.
Personal Circumstances of the Appellant
The appellant at the time of the offences was 20 years of age and of good character. He was a first offender. He was considered by a psychologist to be immature, however, there was no evidence that he suffered from any psychological illness. At the time of the offending, he had debts of about $8000. He was to receive $1000 for his role.
Since leaving school the appellant had worked as a tiler. He had lived in Melbourne with his parents. Four months prior to the commission of the offences, he moved to Adelaide. Since committing these offences and whilst on bail, he returned to live with his parents who, he claimed, were financially and physically reliant upon him. The appellant's mother had been in ill health and faced major spinal surgery. The parents were not solely dependent upon the appellant, as there were two other children who lived in Melbourne.
Personal Circumstances of Marzilli
Marzilli was 28 years of age, married with no relevant previous convictions at the time of sentence. He has always been gainfully employed. At the time of sentencing he owned a truck and worked as a driver with SA Taxi Trucks. He and his wife own their home on which there is a substantial mortgage. Marzilli and his wife earned reasonable incomes. During the past 18 months he and his wife had participated in an IVF program but unfortunately stressful miscarriages had occurred. Unbeknown to his wife, Marzilli owed $5,000 in gambling debts. He has never used drugs.
The judge accepted that Marzilli was contrite, and that he had not had a full realisation of the seriousness of his conduct.
The Head Sentence
Middle Range Drugs
In challenging the head sentence, counsel for the appellant argued that the notional starting point in accordance with Mangelsdorf[2] for cases involving a “middle range drug” should be within the range of four to five years: see also Plaister & Graham.[3]It was submitted that the notional starting point for the head sentence should have been within this range and not six years.
[2] R v Mangelsdorf (1995) 66 SASR 60.
[3] R v Plaister & Graham [2001] SASC 383.
The history of the categorisation of the drug family of methylamphetamine as being “middle range,” in this State commences with the decision in Pearce[4], in 1980. The Court described a drug of the same family as methylamphetamine as in the middle range of seriousness. In 1983, in Cronn & Bladon[5], King CJ adopted this classification and concluded that methylamphetamine and drugs of the same family should be regarded as in the middle range of drugs.[6]
[4] R v Pearce(1980) 91 LSJS 443
[5] R v Cronn & Bladon (1983) 34 SASR 555 at 556.
[6] See also R v Perre (1997) 194 LSJS 363 at 366.
It was in accordance with these authorities that the judge took a similar approach when he described methylamphetamine as a “middle-range drug”.
This Court has not undertaken the review of the classification of methylamphetamine that has occurred in Western Australia. In that State, the Court has reclassified methylamphetamine as a drug in the higher range of seriousness.[7] In Mangelsdorf the Court addressed the established standards for punishment of drug offences. The previous standards were sought to be reinforced. Doyle CJ observed[8]:
In the matters heard by us the Director of Public Prosecutions did not ask the court to review the standards which it has established, with a view to increasing them. The frequency with which offences involving trading in heroin, and indeed in other drugs, come before the courts make me think that it may be necessary to do so in the future.
In the absence of an authoritative review, in this State methylamphetamine should continue to be considered as a “middle-range drug”.
[7]Bellissimo v The Queen (1996) 84 A Crim R 465. In Belissimo, the Full Court of Western Australia accepted the sentencing judge’s conclusion that use of amphetamine-based drugs by young people was growing and the effects upon users of the drugs are more likely to result in antisocial conduct, causing harm to others. The use of the drug has led to other serious criminal conduct. The Court concluded that the drug fell into the category of the “higher range of seriousness in the hierarchy of drugs” and that the previous sentencing decisions were no longer a safe guide to the level of sentencing for its use.
[8](1995) 66 SASR 60 at 66.
Recently in Becker[9] this Court observed[10]:
Since the decision in Mangelsdorf, there have been considerable advances in knowledge of the effect of various drugs upon human behaviour. There is some evidence about the effect of marijuana upon the human brain. Some research suggests that there is a relationship between heavy use of marijuana and schizophrenia in young people. There has been the introduction of so-called “designer drugs”. Their use as recreational drugs has become more common. The long and short-term effect of these drugs on human behaviour has been the subject of a number of studies. It may be that it is time to reconsider the classification of drugs referred to in Mangelsdorf. The time may have come, in the appropriate case, for the Director to consider whether expert evidence should be called to inform the sentencing court of recent research as to the effect of various popular drugs upon users.
[9] R v Becker [2005] SASC 186.
[10] [2005] SASC 186 at [64].
We again draw attention to the question of the possible reclassification of drugs for sentencing purposes.
The gravity of the offending
It is apposite to note at the outset that in relation to sentencing for dealing in drugs, general deterrence is the primary consideration.[11]
[11] R v Thompson (1975) 11 SASR 217; R v Williscroft [1975] VR 292 at 298-9; R v Mangelsdorf (1995) 66 SASR 60, the Court considered offences committed against the Controlled Substances Act 1984 (SA) determining ‘our system of criminal justice proceeds on the premise that sentences do have a deterrent effect.’
It is also important to reiterate that any expressed range of sentences is not intended to be precise.[12] In Mangelsdorf, the Court considered sentences imposed in the District Court upon separate offenders. Each was concerned with different offences, drugs and circumstances.
[12] R v Gjoka 1 July 1997 SACCA Decision Number S6211.
Doyle CJ, with whom other members of the Court agreed, when dealing with the drug LSD, said that dealing in middle-range drugs would ordinarily attract a sentence of about four or five years’ imprisonment. He observed that no actual trading had occurred.[13]
[13] (1995) 66 SASR 60 at 72.
The decision of Manglesdorf did not set a tariff for drug offences. The Chief Justice was simply indicating a range from which sentencing judges may take some guidance.
In the recent decision of the High Court in Markarian[14] in a joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ, their Honours discussed the approach which an appeal court should adopt in considering an appeal against sentence. Their Honours said[15]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v R, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy". [footnote omitted]
[14] Markarian v R (2005) 215 ALR 213 – see also Dinsdale v The Queen (2000) 202 CLR 321.
[15] (2005) 215 ALR 213 at [25].
The court reaffirmed their decisions in AB[16] and Wong[17] in which the High Court stated that the task of a sentencer is to take account of all of the relevant factors and to arrive at a result. The matters which a sentencing judge must consider will often require the sentence to balance difficult and conflicting factors.
[16] AB v R (1999) 198 CLR 111.
[17] Wong v R (2001) 207 CLR 584.
The issue for our consideration is whether the sentencing judge has fallen into error, or if no specific error can be demonstrated, whether the sentence was manifestly excessive.
The appellant has been convicted of two serious drug offences. Although they were part of one overall transaction, it cannot be said that a starting point of six years was manifestly excessive.
Manifestly excessive
The appellant's submission as to why the head sentence was manifestly excessive involved two separate arguments. The personal circumstances of the appellant, including an allowance made for police pressure and inducement, were said to demonstrate that the sentence was excessive. It was further contended that there was a lack of parity between the sentences of the two offenders who, it was claimed, were both sentenced on an identical basis.
The appellant pointed to his personal circumstances. They included his youth, his unblemished record, his early pleas, his contrition and remorse, his good character, his support for his family, and his stable personal relationship.
The sentencing judge accepted these factors. The judge also concluded that the appellant did not appreciate the seriousness of what he was doing. The judge acknowledged that the appellant was only to receive a modest amount for his involvement in the crimes. He accepted that the appellant was immature, and his reluctance to continue with the offending conduct.
The judge adequately identified all relevant personal factors. There is nothing in those personal factors which suggests that this appellant should, on the basis of personal factors, be treated as outside the “ordinary case”. Further, as earlier observed, general deterrence rather than personal deterrence was a primary consideration when sentencing for this offending.[18] No error has been revealed in the judge’s approach.
Further Evidence
[18] R v Thompson (1975) 11 SASR 217; R v Williscroft [1975] VR 292 at 298-9; R v Mangelsdorf (1995) 66 SASR 60; R v Morabito [2003] SASC 388 at [25].
There was one further argument raised by the appellant as to personal circumstances. It was contended that further evidence should be received on appeal. This further evidence related to family dependency on the appellant and was said to be relevant to both the head sentence and the issue of suspension. Counsel for the appellant sought leave to introduce further evidence addressing the current state of health of the appellant’s mother.
Section 353(4) of the Criminal Law Consolidation Act 1935 (SA) authorises the Court on appeal to set aside a sentence and re-sentence the accused.[19] In exercising these powers, section 359 permits the Court to receive further evidence on appeal.[20]
[19] Section 353
(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;
[20] Section 359 Supplemental Powers of the Full Court.
As indicated earlier, it was submitted to the sentencing judge that the appellant was the sole breadwinner for his parents and that his mother, due to her ill health, relied on the appellant for financial, emotional and physical support. The judge accepted that the appellant’s mother was in ill health. He also accepted that throughout the 17-month period whilst the appellant was on bail, he had provided financial, emotional and physical support to his parents.[21]
[21] Criminal Law (Sentencing) Act 1988 Section 10 (1):
A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(n) the probable effect any sentence under consideration would have on dependants of the defendant;
(o) any other relevant matter.
Fresh evidence may be admitted on an appeal when it sheds new light on the material before the sentencing judge, or when there was a relevant fact or relevant facts in existence at the time of sentencing which had not been brought to the attention of the sentencing judge and a satisfactory explanation has been proffered for the failure to have informed the sentencing judge of the facts.[22]
[22] R v Penno [2004] SASC 354 at [39] and [42] per Gray J; R v C (2004) 89 SASR 270; R v Smith (1987) 44 SASR 587 at 588-589 per King CJ; R v Dorning (1981) 27 SASR 481 at 488.
The appellant relied on the decision of Penno in which the Court admitted a medical report evidencing that Penno’s de facto wife’s mental health had deteriorated markedly since his imprisonment, to the point that she could no longer look after their children and their business. The report was admitted on the basis that it demonstrated that Penno’s wife’s mental illness was more serious than had been thought at the time of sentencing. The report explained Penno’s partner’s mental condition so as to put it in a new light.
The information sought to be relied on by the appellant does not shed any new light on the material considered by the sentencing judge. At best, it reinforces what was already taken into account by the sentencing judge. That is to be contrasted with the circumstances in Penno, where the fresh evidence threw new light on the seriousness of Penno’s partner’s mental health and its effect on the dependent children.
The appellant’s application for leave to introduce further evidence is refused.
Police involvement
Counsel for the appellant submitted that a reduction of one year for police involvement was insufficient based on a comparison with the decision in Campanella[23] where the court allowed a reduction of two years on account of what was described as entrapment.
[23] R v Campanella (2004) 90 SASR 1.
Entrapment occurs when a person commits a crime they would not otherwise have committed were it not for the activities of an undercover police officer or agent provocateur.[24] Authorities suggest that the Court should take a common sense view of whether the person would have committed the offence but for the activities of a police informer or agent.[25]
[24] R v Lainas (1989) 50 SASR 461; R v Taouk (1992) 65 A Crim R 387; R v Lau (2002) 136 A Crim R 495; R v Campanella (2004) 90 SASR 1 at [13].
[25] R v Mandica, Spakianos & Spakianos (1980) 24 SASR 394 per King CJ; R v Jurkovic (1981) 6 A Crim R 215; TheQueen vHaydon (2001) 80 SASR 560 at [27]; R v Campanella (2004) 90 SASR 1 discusses the use of police pressure or persuasion in the commission of a crime.
In Campanella, Perry J considered the sentencing principles which may allow for a reduction to be made to account for police entrapment. He observed that there may be circumstances in which police encouragement or pressure to an offender may be no more than the encouragement or pressure that would come from another source, given the nature of the circumstances surrounding drug dealing. In such cases, the weight to be given to those circumstances in determining sentence should be the same, irrespective of whether the encouragement or pressure was applied by a police officer.
While the circumstances in Campanella fell short of undue pressure, the Court held that it was unlikely the offence would have been committed but for the inducements, encouragement and possibly pressure of a police informer. The Court allowed a reduction of two years on account of entrapment.[26] In that case the police informer was a friend of some 20 years who initiated, persuaded and pressured Campanella to become involved in an offence he might not otherwise have committed.
[26] R v Campanella (2004) 90 SASR 1 at [39].
In support of her submission, counsel for the appellant contrasted the youth, good character, family support and prospects of rehabilitation of this appellant with the absence of those characteristics in Campanella.
The circumstances of Campanella are distinguishable. Campanella was an unwilling participant in the transaction, and pressure was exerted by a friend. In the present case the undercover police officer initiated contact with the appellant by telephone. However, this in itself is not enough to reduce the criminal culpability of the appellant.[27] The sentencing judge found that the appellant initially was a willing participant. It is to be noted that it was the appellant who re-instigated contact with the operative on 20 August 2003 to propose the sale. The judge also found that, once involved, the appellant was unable to extricate himself. The only pressure applied by the operative was related to timing.
[27] R v C (1998) 72 SASR 391; R v Campanella (2004) 90 SASR 1 per Perry J.
A one-year reduction by the sentencing judge was adequate, if not generous, given that the appellant was more than a courier and was involved in progressing and arranging the transaction.
Parity of Sentence
In McGowan[28], King CJ reaffirmed the accepted principle that where two or more persons are sentenced for the same crimes, the sentences imposed should be proportionate to their respective degrees of culpability, and to the various personal factors.
[28]R v McGowan (1986) 42 SASR 580.
The respective roles of the appellant and Marzilli, although different, were not sufficient to distinguish between them when determining sentence. Both were to be paid for their involvement. However, there was no suggestion that either of them were the financiers or high-level dealers. Both had favourable antecedents.
The head sentence imposed on each was well within the sentencing discretion of the judge. This is not a case in which it can be said that there was disparity between the sentences such as to render the sentence imposed upon this appellant manifestly excessive or wrong in principle.
Calculation for reductions on notional head sentence
In the course of the hearing of the appeal, an issue arose as to the order in which the reductions of one-quarter for the pleas of guilty and of one year for police pressure and inducement should be made. This resulted in the notional head sentence of six years being first reduced by one-quarter to four and a half years, and then by a further year, resulting in the head sentence of three and a half years. It was observed by the Court that if an approach had been taken whereby the notional head sentence was first reduced by one year and then reduced by one quarter, there would have been a different outcome, namely a resultant head sentence of three years and nine months.
In Campanella, different approaches were adopted by Perry J and Mullighan J as to the order in which to make relevant deductions. In reaching his conclusion Perry J first deducted a specific number of years for the entrapment and then a specific time for the plea of guilty. Mullighan J made a reduction on a percentage basis for a plea of guilty and then further reduced that by a specific amount of time on account of entrapment.
In Malesevic[29], a similar issue arose in the context of the calculation of a non-parole period. This Court noted that a difference could occur as a consequence of whether deductions were made for time spent in custody and time on home detention bail before or after calculating the non-parole period. The court concluded[30]:
The final issue for the sentencing judge in the sentencing process is the fixation of an appropriate non-parole period, taking into account all of the circumstances relevant to that process, and also bearing in mind any time already spent in custody. As long as the judge makes proper allowance for time spent in custody, complaint cannot validly be made on the basis that the judge failed to take one approach rather than the other to the fixation of the non-parole period. The important thing is that the non-parole period reflect the gravity of the crime, as well as the other matters that should be taken into account: see R v Creed. It is permissible, and usually simpler and more convenient, to fix the non-parole period in relation to the final head sentence arrived at, rather than to fix a notional non-parole in relation to a notional head sentence, and then to make deductions from each of them.
[29] R v Malesevic (1999) 204 LSJS 32.
[30] (1999) 204 LSJS 32 at 37.
This approach has been approved by the High Court. In Johnson[31], the court considered the totality principle and multiple offences and whether it was contrary to sentencing principles to fix a sentence for each offence and determine concurrency before then reducing one of the sentences on account of the “totality principle” and then aggregating the resultant sentences into a single minimum term. It was argued that this offended the principles discussed in the case of Mill[32], where the court had expressed a preference for what should be regarded as the orthodox but not necessarily immutable practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. The court concluded[33]:
Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected.
[31] Johnson v R (2004) 78 ALJR 616.
[32] R v Mill (1988) 166 CLR 59.
[33] (2004) 78 ALJR 616 at [26].
The High Court has again reaffirmed in Markarian that it is the overall outcome which the appellate court must consider. Members of the Court said that, in general, a mathematical approach to sentencing was undesirable. Gleeson CJ, Gummow, Hayne and Callinan JJ observed[34]:
Following Wong benches of five judges in New South Wales in R v Sharma and R v Whyte and in South Australia in R v Place, have sought to state general sentencing principles to be applied in those States. In the first two of these cases the Court of Criminal Appeal of New South Wales endorsed an approach of instinctive synthesis as a general rule but also accepted as a qualification that departure from it may be justified to allow for separate consideration of the objective circumstances of the crime. On occasions intermediate courts of appeal have however refused to find error where a staged approach has been undertaken. In Place the Court of Criminal Appeal of South Australia (Doyle CJ, Prior, Lander, Martin and Gray JJ) although it rejected a staged approach in general, made it clear that a reduction of penalty for a plea of guilty should be identified. This approach, their Honours held, was in conformity with the relevant sentencing legislation of South Australia.
Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of "instinctive synthesis", as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression "instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge. [footnotes omitted]
[34] (2005) 215 ALR 213 at [38] – [39].
McHugh J repeated the view he had expressed in AB,[35] that the mathematical approach to sentencing is flawed, as the process of arriving at a sentence requires the sentencer to balance many factors which are not capable of precise calculation. He said[36]:
Unfortunately, discretionary sentencing is not capable of mathematical precision or, for that matter, approximation. At best, experienced judges will agree on a range of sentences that reasonably fit all the circumstances of the case. There is no magic number for any particular crime when a discretionary sentence has to be imposed. What Jordan CJ said in R v Geddes about the reality of the sentencing process has never been bettered and probably has never been equalled. With the passage of time, it is no longer cited as frequently as it once was. But the whole judgment repays careful study. I make no apology for setting out the crucial passage, lengthy though it is:
This throws one back upon a preliminary question as to the general principles upon which punishment should be meted out to offenders. In the nature of things there is no precise measure, except in the few cases in which the law prescribes one penalty and one penalty only. In all others, the judge must, of necessity, be guided by the facts proved in evidence in the particular case. The maximum penalty may, in some cases, afford some slight assistance, as providing some guide to the relative seriousness with which the offence is regarded in the community; but in many cases, and the present is one of them, it affords none. The function of the criminal law being the protection of the community from crime, the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others. When the facts are such as to incline the judge to leniency, the prisoner's record may be a strong factor in inducing him to act, or not to act, upon this inclination. Considerations as broad as these are, however, of little or no value in any given case. It is obviously a class of problem in solving which it is easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, and in which the only golden rule is that there is no golden rule.
The position of the judge is analogous to that of a civil jury who are called upon to award damages for a breach of contract, or a tort, in relation to goods which have no market value, and for the assessment of the value of which no generally accepted measure exists. The jury must do the best they can; and so must the judge. In applying considerations as general as these, it is necessarily not often that it can be said, with reasonable confidence, that the sentence imposed was wrong. (emphasis added) [footnotes omitted]
[35] AB v R (1999) 198 CLR 111 at 120-123.
[36] (2005) 215 ALR 213 at [65].
Ultimately, it is the final outcome rather than any predetermined approach to reductions which is relevant. If the court is satisfied that the sentencing judge has considered all relevant factors and not placed undue weight upon any one or group of factors, the appellate court will not interfere. No error has been demonstrated in this case.
Non-Parole Period
Counsel for the appellant submitted that the non-parole period of two and a half years should have been lower. Counsel emphasised the non-parole period represented a little over seventy per cent of the head sentence. This was said to be too high a proportion. There is no norm or standard that the non-parole period in “ordinary cases” should be two-thirds, or some other proportion of a head sentence. Each case is to be decided on its own facts.[37]
[37] R v Khim [2002] SASC 343; R v Power [2003] SASC 288.
In this case, a generous allowance was made for the appellant’s pleas of guilty given the overwhelming nature of the evidence against him. He was also given a significant reduction on account of police involvement. Although a non-parole period of seventy per cent of the head sentence might be regarded as at the higher end of the scale for a first offender, it was within the judge’s discretion. No error in the judge’s reasoning has been demonstrated, nor can it be said that the non-parole period was so excessive as to demonstrate error.
Suspension of Sentence
Counsel for the appellant, contended that the sentence of imprisonment should have been suspended pursuant to section 38 of the Act.[38] If there is “good reason” and the circumstances of the case call for suspension of a sentence the Court may do so.[39]
[38] Criminal Law (Sentencing) Act 1988 (SA) S 38 (1) Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence.
[39] Moorhead v Police (1999) 202 LSJS 488 per Doyle CJ.
Counsel for the appellant submitted that the personal circumstances of the appellant, including considerations of youth, prior good character, no prior convictions, evidence of remorse and his prompt pleas of guilty, support the suspension of sentence. Considerations of loss of employment and the breaking up of an established relationship were also advanced as good reasons to suspend.[40] In considering whether to suspend, the sentencing judge considered each of these factors.
[40] R v Bryant 10 Dec 1990 SACCA Decision Number S2685.
The seriousness of the offences and the role of the appellant in the sale of the methylamphetamine are considerations which the sentencing judge had to weigh against the age and other personal circumstances, including the issue of dependants, in deciding not to suspend the sentence.
The sentencing judge considered that the nature and gravity of the offence were such that suspension was not appropriate unless “exceptional circumstances” were present. In sentencing the appellant the judge did not find that there existed any exceptional circumstances which would constitute good reason to suspend sentence.
In his sentencing remarks, the judge considered the hardship to the family. There was insufficient evidence before this Court and the sentencing judge to explain why there was an inability to arrange for other family members to care for the parents. It is pertinent to note that the appellant lived in Adelaide for a period of time when the care of the parents was attended to by others. In applying the test of whether there is a “good reason” to suspend the sentence, the fact that the appellant’s parents rely on the appellant for transport and financial support is not of an exceptional nature[41] nor does the degree of hardship warrant suspension of the sentence.
[41] R v Penno [2004] SASC 354 at [46]. See also R v Wirth (1976) 14 SASR 291.
An offence involving the sale of amphetamines of the quantity involved in these offences would normally call for an immediate custodial term. No basis has been identified to justify an interference with the judge’s decision not to suspend.
Conclusion
The sentencing judge has not here been shown to have made any error of sentencing principle. He has not overlooked any relevant material. He has not had regard to any irrelevant considerations. The penalty is not out of accord with penalties imposed for middle range drug offending involving sale. The non-parole period fixed was within the judge’s sentencing discretion. The judge was entitled not to suspend the term of imprisonment. He was correct not to do so. The sentence imposed was not manifestly excessive.
The appeal is dismissed.
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