R v Spyrou - [2008] SASC 209

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SPYROU
[2008] SASC 209
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Anderson)
31 July 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - POWERS OF APPELLATE COURT
Appeal by Director of Public Prosecutions for permission to appeal against sentence – no challenge to head sentence or non-parole period – whether decision by District Court Judge to suspend sentence was in error – respondent jointly charged with three offences contrary to s 32(1)(a) and s 32(1)(e) of the Controlled Substances Act 1984 (SA) and separately charged with two offences contrary to s 32(1)(e) – respondent pleaded guilty – whether factors personal to the respondent were given more weight than was proper – whether the need for deterrence is sufficient for appeal court to interfere with sentence.
Held: Permission to appeal granted and suspended sentence set aside – suspended sentence fails to reflect an adequate standard of punishment – maintenance of the proper standard of punishment requires court to intervene – not a case where it is sufficient for court to note error but leave sentence to stand.
Controlled Substances Act 1984 (SA) s 32(1)(a), s 32(1)(c), s 32(1)(e), referred to.
Dinsdale v The Queen (2000) 202 CLR 321, applied.
R v Stevens [2008] SASC 170, considered.

R v SPYROU
[2008] SASC 209
Court of Criminal Appeal: Doyle CJ, Duggan and Anderson JJ

DOYLE CJ: The Director of Public Prosecutions has applied for permission to appeal against a sentence imposed on Mr Spyrou by the District Court.
The Director does not challenge the head sentence or the non-parole period that the Judge imposed. The Director submits that the Judge’s decision to suspend the sentence is wrong, and that the error is one that calls for a grant of permission to appeal and an order setting aside the order suspending the sentence.
Mr Spyrou was jointly charged with Mr Stevens with three offences. Each of them was charged separately with some additional offences. Each of them was sentenced at the same time by the same Judge. The Judge suspended the sentence that she imposed on each of them. The Director appealed against the sentence imposed on Mr Stevens, and this Court allowed that appeal, and set aside the order suspending the sentence imposed on Mr Stevens: R v Stevens [2008] SASC 170. As the circumstances of Mr Spyrou’s offending are closely linked to those of Mr Stevens’ offending, and as the sentencing considerations in each case are similar, it will be necessary from time to time to refer to the sentencing of Mr Stevens, and to the Director’s appeal against that sentence.
Mr Spyrou pleaded guilty to five offences.
On 27 March 2007 the police went to a house owned and occupied by Mr Spyrou. Mr Stevens was living there at the time.
The police found a plastic bag containing 0.04 grams of methylamphetamine in the refrigerator in the house, and another plastic bag containing 0.03 grams of methylamphetamine in the kitchen pantry. Mr Spyrou and Mr Stevens were jointly charged with possessing methylamphetamine for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA) (“the CSA”), in respect of each of these quantities of methylamphetamine.
The police found four cannabis plants growing in the cellar of the house. Mr Spyrou and Mr Stevens were jointly charged as a result of this with producing cannabis contrary to s 32(1)(a) of the CSA.
The police found a plastic bag containing 0.22 grams of methylamphetamine in the bedroom occupied by Mr Spyrou, and they also found three plastic bags containing in all 0.05 grams of methylamphetamine in Mr Spyrou’s wallet. As a result of this he was charged with two further counts of possessing methylamphetamine for sale contrary to s 32(1)(e) of the CSA. Mr Stevens was not charged with these offences.
Mr Stevens was also charged with five counts of selling methylamphetamine contrary to s 32(1)(c) of the CSA. These offences were committed in December 2006, January and February 2007. Mr Spyrou was not charged with these offences, nor was he charged with any other offences involving an actual sale.
The prosecution case against Mr Spyrou and Mr Stevens included transcripts of intercepted telephone conversations and text messages involving Mr Spyrou and Mr Stevens, and passing between each of them and other persons. The transcripts relating to Mr Stevens cover a period from December 2006 to March 2007. The transcripts relating to Mr Spyrou cover a period from 16 February 2007 to 28 March 2007. The transcripts establish that during the relevant period Mr Spyrou and Mr Stevens were selling methylamphetamine to other persons. Each of them was sentenced on the basis that the offences charged were not isolated instances of offending involving methylamphetamine. To the contrary, the telephone conversations and text messages establish that the offences charged were part of a pattern of selling drugs over a period of time. Mr Spyrou and Mr Stevens were cooperative with the police. Each of them pleaded guilty at an early stage.
The maximum penalty for each offence of possessing methylamphetamine for sale was imprisonment for 25 years or a fine of $200,000 or both. The maximum penalty for the offence of producing cannabis was imprisonment for two years or a fine of $2,000 or both.
The Judge noted that each of Mr Stevens and Mr Spyrou had pleaded guilty at the first available opportunity. She indicated that she had reduced the sentence that otherwise would have been imposed by 30 per cent on that account.
The Judge imposed a single sentence of imprisonment on Mr Spyrou. She sentenced him to imprisonment for two years and two months, and fixed a non‑parole period of 14 months. She ordered that the sentence be suspended.
The Judge imposed a single sentence of imprisonment on Mr Stevens. She sentenced him to imprisonment for three years, and fixed a non-parole period of 18 months. She suspended that sentence of imprisonment.
On the Director’s appeal against the sentence imposed on Mr Stevens, the Court did not interfere with the head sentence or non-parole period, but set aside the order suspending the sentence of imprisonment. In light of that decision, the Director no longer challenges the head sentence or non-parole period imposed on Mr Spyrou, confining his challenge now to the Judge’s decision to suspend the sentence imposed on Mr Spyrou.
The District Court Judge noted the seriousness of the offences, referring to the substantial maximum penalties prescribed by Parliament. She noted that considerations of general and personal deterrence must predominate for offending of the kind in question, particularly as there was a commercial aspect to the offending.
There were, however, mitigating circumstances which influenced the Judge’s decision.
Mr Spyrou was 31 years of age. He had no previous convictions of any kind. The Judge was told, and appears to have accepted, that Mr Spyrou had become heavily involved in using methylamphetamine after returning to Adelaide from an overseas trip, some ten months before he was arrested. His use of drugs stretched back some ten years. His involvement with methylamphetamine was linked to his social involvement in nightclubs in Adelaide. Mr Spyrou had become a heavy user of methylamphetamine, and was selling methylamphetamine to help finance his own purchases.
Mr Spyrou had completed a hairdressing apprenticeship under his father, who worked as a hairdresser. Mr Spyrou had worked continuously in the hairdressing business since about 1994. Prior to the offending he had made plans to set up his own business, and the day after his arrest had opened his own business. The Judge was told that Mr Spyrou had invested borrowed money of $70,000 in the business, in which he employed two hairdressers and two apprentices. He had kept the business going after his arrest.
The Judge was told that as a result of being charged with the offences in question, Mr Spyrou had realised that he had to change his ways. He had sought medical advice, and had stopped using illicit drugs. A report from a psychologist who had treated Mr Spyrou was tendered to the Judge. The report summarises the efforts that Mr Spyrou had made to change his ways, and to break free from the environment in which he had begun using drugs. The Judge was told that since his arrest Mr Spyrou had committed himself to his business, and that he had no intention of resuming the use of illicit drugs.
A substantial number of references from friends and business associates were tendered. The general effect of these references if that Mr Spyrou is well regarded by those who know him, and that his offending is out of character as far as they are concerned.
In short, there was material before the Judge to support a finding that as a result of being charged, Mr Spyrou had changed his ways. The Judge was obviously impressed by what Mr Spyrou had done.
After deciding upon the head sentence and non-parole period, the Judge turned to the question of suspension of Mr Spyrou’s sentence. She referred to Mr Spyrou’s substantial investment in his business, a business which would probably fail if he went to prison. She noted that his home was at risk of being confiscated, although the Court has been told that confiscation proceedings have since been discontinued. She referred to the character references and to the efforts that Mr Spyrou had made to rehabilitate himself. The Judge then said:
I weigh up those matters favouring suspension against the factors which militate against suspension. These are serious offences. Considerations of general and personal deterrence must predominate. I have regard to the statutory policy and the maximum penalties prescribed by parliament. I have regard to the amount of the drug involved and the fact that you have been involved in both methylamphetamine and cannabis. This is not isolated offending and you have been a drug user. Your previous drug addiction may explain your offending but does not mitigate its level of seriousness.
Having weighed up all of these factors, however, I am of the view that you are at a turning point in your life. If you were to be given one last chance to be a contributing member of the community and your rehabilitation was supported, in my view, you are unlikely to offend again. Therefore, having regard to the combination of circumstances to which I have referred, I find that good reason does exist to suspend the sentence which I have imposed. Accordingly, I direct that the sentence I have imposed be suspended on the following conditions …
Mr Stevens’ circumstances were similar. He was 22 years of age. He had no prior offences. He cooperated with the police. He had good prospects of employment. His counsel tendered a substantial body of material demonstrating that Mr Stevens was well regarded by those who knew him. The Judge’s decision to suspend his sentence was reached on much the same basis as her decision to suspend the sentence imposed on Mr Spyrou.
The reasons of the Court for setting aside the order suspending the sentence of imprisonment imposed on Mr Stevens were given by Duggan J. Anderson J and I agreed with those reasons: R v Stevens at [1]. Duggan J noted that a sentence of imprisonment can be suspended if there is good reason to do so. He referred to observations by Kirby J in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [85]-[86] where Kirby J made the point that when deciding whether there is good reason to suspend a sentence of imprisonment, it will usually be necessary for the Court to consider again all of the circumstances of the offence and all of the circumstances personal to the offender. Duggan J noted the importance of general deterrence in dealing with Mr Stevens. The reasons for that were that the use of methylamphetamine has increased considerably, that there is a potential for significant profit in selling it, and that younger members of the community are at risk because methylamphetamine is readily available for sale at nightclubs and other entertainment venues: R v Stevens at [25]. Those observations apply to the case of Mr Spyrou.
Duggan J agreed that Mr Stevens’ youth was a relevant factor, as was his rehabilitation. The absence of previous convictions was also a relevant matter, as was the support of Mr Stevens’ family and friends, a comment which applies also to Mr Spyrou. Duggan J concluded at [29]:
[29]I have borne in mind the limited circumstances in which appellate courts will intervene in prosecution appeals against sentence: Everett v The Queen (1994) 181 CLR 295. I do not suggest that a suspended sentence is never appropriate in a case involving the sale of drugs. However, it is my view that the overemphasis on the personal circumstances of the respondent and the corresponding failure to take adequate account of the requirement of deterrence in a matter such as this, which led to the suspension of the sentence, have resulted in a penalty which falls far short of what is appropriate in the circumstances.
Mr Spyrou’s case must be considered on its merits. However, I have referred to the observations made by Duggan J when dealing with the appeal against Mr Stevens’ sentence, because of the close links between the two cases.
Although Mr Spyrou was 31 years of age, somewhat older than Mr Stevens, he is still relatively young. He has no prior record of offending. As my earlier summary indicates, he has been gainfully employed so far. The prospects of him changing his ways, and rehabilitating himself, are good. There are circumstances that support some lenience, and there are matters that can be identified as supporting a decision to suspend a sentence.
On the other hand, the Court has to consider the seriousness of the offending, the nature of the offending, and the prevalence of the particular form of offending that is involved here.
There are some circumstances particular to Mr Spyrou that warrant consideration when deciding whether or not the Judge erred in suspending the sentence. Mr Spyrou was not charged or convicted with any offences involving the sale of methylamphetamine. But he was charged on additional counts of possession for sale. Unlike Mr Stevens, he was not working at a nightclub as a security officer, and so was not a person in a position of responsibility. On the other hand, the intercepted telephone conversations and messages disclose a background of dealing in methylamphetamine. The offending cannot be regarded as isolated offending conduct. In my opinion, there is no significant difference in the seriousness of Mr Spyrou’s offending compared with that of Mr Stevens.
At the risk of unduly labouring the point, I emphasise that cases coming before the courts indicate that the use of methylamphetamine is increasing. It is being sold and supplied to people using nightclubs. The harmful effects of its use (or misuse) are well known. The prevalence of the illegal trade in methylamphetamine is a serious social problem. For this reason, individual and general deterrence is an important aspect of sentencing in a case like this.
I consider that in the case of Mr Spyrou, as in the case of Mr Stevens, the sentencing Judge has given too much weight to circumstances personal to Mr Spyrou. I acknowledge that they are entitled to some weight. But in my opinion the Judge has given too much weight to the circumstances personal to Mr Spyrou, and has failed to give proper weight to the seriousness of the kind of offending with which she was dealing. The sentence and the non-parole period were merciful. But the decision to suspend the sentence has resulted in a penalty which falls well short of what is required in the circumstances.
A sentencing judge will naturally be reluctant to require a sentence of imprisonment to be served by a person whose circumstances are similar to those of Mr Spyrou. But unfortunately there are occasions, and this is one of them, when the duty of the Court to recognise the seriousness of the offending conduct, and the need for deterrence, will outweigh what in other circumstances might amount to a proper reason to suspend the sentence of imprisonment. For the same reasons as were given by Duggan J in R v Stevens, the Judge has erred in sentencing Mr Spyrou.
I would grant permission to appeal. The sentence fails to reflect an adequate standard of punishment. That is why it is appropriate to grant permission to appeal. This is more than a case of mere error. I would allow the appeal. I would do so because the maintenance of a proper standard of punishment requires the Court to intervene. This is not a case in which it is enough for the Court to note the error, but to leave the sentence stand.
I would set aside the order suspending the sentence of imprisonment. As there would be no challenge to the head sentence and non-parole period, there is no reason to interfere with either of them.
Conclusions
I would grant permission to appeal, allow the appeal, and set aside the order suspending the sentence of imprisonment imposed by the District Court.
DUGGAN J: I would grant permission to appeal, allow the appeal and set aside the order for suspension of imprisonment. I agree with the reasons prepared by the Chief Justice.
ANDERSON J: I agree with the orders proposed by the Chief Justice and I agree with his reasons.