R v SMITH

[2012] SASCFC 77

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Permission to Appeal)

R v SMITH

[2012] SASCFC 77

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Vanstone and The Honourable Justice Peek)

26 June 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE

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

DPP appeal against sentence – Respondent pleaded guilty to offence of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) Controlled Substances Act – sentencing Judge imposed sentence of 24 months with a non-parole period of 12 months which was suspended – whether prosecution has discharged onus of showing permission to appeal should be granted – whether sentencing Judge erred by sentencing Respondent on an incorrect factual basis – whether sentence was manifestly inadequate – whether decision to suspend sentence was erroneous.

Held:  Permission to appeal granted.  Sentence imposed did not adequately reflect seriousness of Respondent’s offending – Respondent knew drug had substantial value and was to  be sold in illicit circumstances – head sentence and non-parole period manifestly inadequate – decision to suspend was in error – sentence set aside – Respondent sentenced to six years imprisonment with a non-parole period of three years which was not suspended.

Controlled Substances Act 1984 (SA) 32(1), 32, 44(2); Criminal Law Consolidation Act 1935 (SA) 340, referred to.
R v Mangelsdorf and Ors (1995) 66 SASR 60, discussed.
Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Belcher (1981) 27 SASR 46; R v Rocco (1985) 37 SASR 515; R v Wilson (1990) 158 LSJS 134; R v Harris (1992) 59 SASR 300; R v Santalab (1993) (Unreported, Court of Criminal Appeal, SA, No S4055, 20 July 1993), considered.

R v SMITH
[2012] SASCFC 77

Court of Criminal Appeal:  Nyland, Vanstone and Peek JJ

1. NYLAND J: The Director of Public Prosecutions seeks permission to appeal against a sentence imposed by a Judge of the District Court. The respondent pleaded guilty to the offence of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (“CSA”). The drug concerned was 3, 4 – methylenedioxymethcathinone (“3, 4-MDMC”). The total quantity of the drug was 8.14 kilograms in a powdered form. That was capable of being converted into in excess of 25,000 ‘substitute ecstasy’ tablets/capsules with a minimum commercial value of about $94,000. However, depending on how it was sold, it had the potential to realise in excess of $1,000,000. The maximum penalty for this offence is a fine of $500,000 or imprisonment for life or both.

2. The Respondent was sentenced on the undisputed factual basis that he was not engaged in the processing or marketing of the drug, but that he was holding the drug for others in the knowledge that the drug was intended for marketing.  The Judge sentenced the Respondent to be imprisoned for 24 months with a non-parole period of 12 months.  He suspended that sentence upon the Respondent entering into a good behaviour bond for a period of three years. 

3. The Director has applied for permission to appeal against that sentence on the following grounds:

   ·The learned sentencing Judge erred in imposing a sentence that was, in all the circumstances, manifestly inadequate, both with respect to the head sentence and non-parole period, having regard to the seriousness of the subject offending.

   ·The learned sentencing Judge erred in suspending the period of imprisonment.

   ·

   The learned sentencing Judge erred in finding as a matter of fact that

   
   

   “There is no evidence he knew anything about the drug, how it was to be marketed or what its value was”.

   Circumstances of offending

4. At the time of the offence the Respondent was aged 24 years.  On 2 March 2011 members of the South Australian Police Drug Investigating Branch attended at the Respondent’s residential address at Salisbury East.  The Respondent was the only occupant of the house who was present at that time.  During the search of the premises, police located 5.23kg of 3,4-MDMC in powder form in a plastic rubbish bag inside a luggage carrier bag in a cupboard in a nursery/bedroom.  They also located 2.91kg of 3,4-MDMC in powder form.   That was contained in two separate plastic rubbish bags weighing 1.42kg and 1.49kg respectively, inside a suitcase under a cot in the same room.  In addition, police located a quantity of dimethyl sulphone, a ‘cutting agent’ for illicit drugs, as well as electric stick blenders and grinders with a chalk-like residue on them, digital scales and vacuum seal rolls. 

5. When interviewed by police at the scene the Respondent admitted he was residing at the premises but declined to answer any questions in relation to the items found. 

6. In sentencing the Respondent the Judge referred to the Respondent’s good work history and two character references which had been provided.  The Respondent had some prior convictions but none for drug offences.  He had been the user of methylamphetamine since the age of 18.  The Judge referred to the submission of counsel for the Respondent that the Respondent’s role in the offending was that of a “lackey” and that he had no idea what the powder was, although he believed it to be methylamphetamine.  The Judge said:

   In fact, what the men provided you was not methylamphetamine, but you never realised that what the men had given you was a different drug. 

7. The Judge indicated that he would have fixed a sentence of imprisonment of 32 months but as a  result of the plea of guilty that was reduced to 24 months.  The Judge described the question of suspension of the sentence to be “borderline”, bearing in mind the value of the drug, no matter how calculated, was substantial and that general deterrence was important.  The Judge then said:

   On the other hand, there is no evidence that you knew anything about the drug, how it was to be marketed or what its value was.  I accept that you were, to use your own description, ‘a lackey’.

8. The Judge mentioned that, apart from the drug provided to the Respondent for his own use, there was no evidence of any financial reward actually being received by the Respondent, although he noted there was a vague agreement for financial compensation. He then decided there was good reason to suspend the sentence as the Respondent had voluntarily taken steps to deal with his own addiction, was in sound employment and had support from family and friends, which provided prospects for rehabilitation and would enable the Respondent to become a productive member of the community.

   Director’s submission

9. On the hearing of the application, Mr Kimber SC acknowledged that leave to appeal against a sentence should only be granted to the prosecution in a “rare and exceptional case”[1] and that it is insufficient for a grant of leave for the prosecution simply to demonstrate that an error has occurred.  Leave to appeal should only be granted if the allowing of the appeal would “advance some wider purpose” such as:[2]

giving the Court an opportunity to establish a principle of sentencing law;

or

to establish or maintain an adequate standard of sentence for a particular type of offence.

[1]    Everett v The Queen (1994) 181 CLR 295 at 299.

[2]    R v Nemer (2003) 87 SASR 168 at 172 per Doyle CJ.

1. Mr Kimber submitted that in this case the sentence imposed by the District Court Judge failed to maintain adequate standards of sentencing for the offence of trafficking in a large quantity of a controlled drug and did not adequately recognise the relevant maximum penalty and standards that had been identified for such offending.  Further, the Judge had made a factual error when he observed that there was no evidence that the Respondent knew anything about the drug, how it was to be marketed or what its value was.  In any event the decision to suspend the Respondent’s sentence must have been the product of an emphasis on the Respondent’s personal circumstances in the face of extremely serious commercial drug offending.  This resulted in a penalty which fell far short of what was appropriate, given the seriousness of the offence. 

   R v Mangelsdorf and Ors[3]

   [3] (1995) 66 SASR 60.

2. In R v Mangelsdorf and Ors the Court considered three cases concerning offences committed against (what was then) s 32 CSA. In each case the application was made on the ground that the sentence imposed failed to maintain an adequate standard for the crime involved. Mangelsdorf had been convicted upon his plea of guilty of possessing heroin for sale. The other two cases concerned the drugs LSD, cannabis and cannabis resin. In his reasons Doyle CJ (at 62) referred to “widespread community concern about the harm done to users of such drugs” and later said (at 63):

   This Court has established standards for the punishment of crimes of the type dealt with by the judges in the cases the subject of the present application. The court has referred time and time again to the severe penalties imposed by s 32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s 32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs. The court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32.

3. Doyle CJ went on to refer to a number of cases which established a sentencing standard for those who have engaged in the trading of the drugs dealt with by s 32. In R v Belcher,[4] a sentence of seven years imprisonment for possessing heroin for sale imposed on a person with no prior convictions and of apparent good character was held not to be outside the normal sentencing range.  In R v Rocco,[5] the Court referred to sentences for “street traders” in heroin which ranged from four years to seven years imprisonment, some of which had been imposed on persons with no prior convictions.  In R v Wilson,[6] a sentence of six years imprisonment for the possession of heroin for sale was held to be within an appropriate range.  In R v Harris,[7] the Court described a sentence of six years and six months imprisonment for the offence of possessing heroin for sale as “quite a moderate sentence”.[8]

   [4] (1981) 27 SASR 46.

   [5] (1985) 37 SASR 515.

   [6] (1990) 158 LSJS 134.

   [7] (1992) 59 SASR 300.

   [8] Ibid at 301.

4. Doyle CJ also referred to the decision R v Santalab.[9] In that case the offences were committed in the course of a business of selling heroin, which had extended over a period of at least nine months.  On appeal, Santalab was dealt with as a drug dealer involved in a substantial commercial enterprise which went beyond street trading.  After receiving a benefit for a plea of guilty, he had his sentence increased from seven years to 12 years.  Doyle CJ said that this was a reminder of the fact that “very heavy sentences can be expected by those whose offence goes beyond street trading”.[10]

   [9]    (1993) (Unreported, Court of Criminal Appeal, SA, No S4055, 20 July 1993).

   [10]   Ibid at 65.

5. Later in his reasons Doyle CJ said:[11]

   In my opinion, a lesser sentence than the standards of punishment established by the cases referred to will be justified only by circumstances which are out of the ordinary.  In the case of street trading offences, it is clear that matters such as previous good character, addiction and detection with relatively small quantities of the drugs are not matters out of the ordinary.  It is also necessary to bear in mind that the importance of deterrence in such cases will often lead to less weight being given to circumstances personal to the offender than otherwise might be given. 

   [11]   Ibid at 66.

6. And further:[12]

   The court has emphasised that Parliament clearly expects the courts to impose sentences which are likely to deter people from engaging in commercial activity with respect to this drug [cannabis] the seriousness of the offence, its prevalence, and the importance to be given to deterrence all combine to lead to the conclusion that ordinarily a sentence of imprisonment for such offences is to be expected, the duration of the sentence reflecting the quantity involved and hence the applicable statutory maximum.

   [12]   Ibid at 68.

7. When the Court considered the sentence in Mangelsdorf,[13] the quantity of heroin found in the possession of the defendant attracted a maximum penalty of a fine not exceeding $200,000 or imprisonment for 25 years or both.   Since that time, Parliament has increased penalties as a result of which, as earlier indicated, the maximum penalty is now a fine of $500,000 or imprisonment for life or both.  Although the Court in Mangelsdorf was primarily concerned with a sentencing standard in relation to heroin, s 44(2) CSA now provides that:

   In determining the penalty to be imposed in respect of a summary or indictable offence against Part 5 involving a controlled drug other than cannabis, cannabis resin or cannabis oil, the degree of physical or other harm generally associated with the consumption of that particular type of controlled drug, as compared with other types of controlled drugs, is not a relevant consideration and the court must determine the penalty on the basis that the controlled drugs are all categorised equally as very harmful.

   [13] (1995) 66 SASR 60.

8. Mr Kimber submitted that as a result of the increase in penalties the sentencing range identified by Doyle CJ in Mangelsdorf should correspondingly increase.  The starting point for the head sentence in this case should therefore have been something more than seven years.  Accordingly, both the head sentence and non-parole period fixed by the sentencing Judge were manifestly inadequate and, together with the decision to suspend, resulted in a penalty far short of what was appropriate. 

   Conclusion

9. In my opinion the sentence imposed by the District Court Judge did not adequately reflect the seriousness of the Respondent’s offending.  The Respondent was found in possession of a substantial quantity of an illegal drug.   He may not have known exactly what the drug was, but the fact that he may have been mistaken as to the actual drug in his possession in no way lessens his culpability.  He may not have been engaged in the processing or marketing of the drug, but he did know that it was intended to be sold in illicit circumstances and he must have known that it had a substantial value, regardless of how it was eventually sold, and with that knowledge allowed his premises to be used for the preparation and storage of it.

10. Those matters required the court to impose a sentence which reflected the seriousness of the offending and to act as a deterrent to those who are minded to become involved in commercial drug trading.  The head sentence and non-parole periods were therefore manifestly inadequate and the decision to suspend was erroneous.  In my opinion, the Director of Public Prosecutions has discharged the onus of showing that permission to appeal should be granted.  As a result, it is necessary for this Court to fix an appropriate sentence.[14]  Although this was a substantial drug enterprise, the Respondent appears to have played a relatively passive role in it.  He did not bring the drugs to his house, nor was he to be involved in their distribution.  The prosecution accepted that the Respondent’s role was limited to that of holding the drugs for others with the knowledge of their later use.  At the time of sentence, the Respondent was 24 years of age.  He is now 25.  He has no relevant prior offences and has a good work history.  He has a young daughter with another child on the way.  He has strong family support and he pleaded guilty at a relatively early date. 

    [14]   Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must -

    (a)impose the sentence that should have been imposed in the first instance; and

    (b)order that the sentence -

    (i)   will be taken to have come into effect on a date before the date of the order; or

    (ii)  will take effect on a date on or after the date of the order.

11. Taking into account all the circumstances, I consider the starting point for this sentence should be a head sentence of eight years.  Consistent with the approach of the District Court Judge I would allow a discount of 25 per cent with respect to the plea of guilty and would reflect the positive features relating to the Respondent’s rehabilitation in the fixing of the non-parole period.  I consider that the appropriate sentence should be imprisonment for a period of six years and I would fix a non-parole period of three years.  I would not make an order for suspension of sentence.  I would therefore make the following orders:

    (1)Grant permission to appeal to the Director of Public Prosecutions.

    (2)Allow the appeal.

    (3)Set aside the sentence imposed by the District Court Judge.

    (4)In its place impose a sentence of imprisonment of six years with a non-parole period of three years.

    (5)Order that the Respondent forthwith surrender and that the sentence and non-parole period commence from the date upon which the Respondent is taken into custody. 

12. VANSTONE J:     I agree with the orders proposed by Nyland J and with the reasons she has written.

13. PEEK J.   I agree with the orders proposed by Nyland J and with her reasons