R v Stevens - [2008] SASC 170

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STEVENS
[2008] SASC 170
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Anderson)
3 July 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
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
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
Application by Director of Public Prosecutions for permission to appeal against sentence - respondent pleaded guilty to two charges of possessing methylamphetamine for sale, five charges of selling methylamphetamine and a charge of producing cannabis - occasions of sale not isolated incidents but part of a course of conduct - single head sentence imposed of imprisonment for three years with a non-parole period of 18 months - sentence suspended - whether sentence manifestly inadequate - whether sentencing judge erred in deciding to suspend sentence.
Held: Judge erred in suspending sentence by giving too much weight to respondent's personal circumstances and inadequate weight to circumstances of offence and requirement of deterrence - moderate head sentence and non-parole period justified - permission to appeal granted, appeal allowed and order suspending sentence set aside.
Criminal Law (Sentencing) Act 1988 38(1), referred to.
R v Mangelsdorf (1995) 66 SASR 60; R v Ford (2008) 100 SASR 94; Dinsdale v The Queen (2000) 202 CLR 321; Police v Cadd & Ors (1997) 69 SASR 150; R v Sladic (2005) 92 SASR 36; R v Becker (2005) 91 SASR 498; Everett v The Queen (1994) 181 CLR 295, considered.

R v STEVENS
[2008] SASC 170
Court of Criminal Appeal: Doyle CJ, Duggan and Anderson JJ

DOYLE CJ and ANDERSON J: We agree with the orders proposed by Duggan J and with his reasons. We emphasise the following aspects of the matter. The respondent was employed in a responsible position as a security officer at a nightclub. There is a known problem with, and reason for concern about, the availability of drugs at such venues. Cases coming before the courts indicate that the use of methylamphetamine is increasing and that nightclubs have become a source for this drug. When it becomes known to the public that someone in a responsible position at such a venue is a willing source for the purchase of drugs, there is cause for substantial concern. As well, the present offences were committed against a background of regular dealing in drugs.
The circumstances of this case make it important that the aspect of public deterrence is emphasised in the sentence imposed. It would send the wrong message to the public, and to those involved in the management of nightclubs, if the suspended sentence was allowed to stand.
In the circumstances of this case we consider that the public interest requires that the element of public deterrence take precedence over factors personal to the respondent.
DUGGAN J: The Director of Public Prosecutions has applied for permission to appeal against a sentence imposed on the respondent in the District Court.
The respondent pleaded guilty to two charges of possessing methylamphetamine for sale, five charges of selling methylamphetamine and a charge of producing cannabis. One penalty was imposed for all offences. The sentencing judge imposed a head sentence of imprisonment for three years with a non-parole period of 18 months. The sentence was suspended upon the respondent entering into a bond in the sum of $200 to be of good behaviour for two years, to undertake any counselling which might be recommended and to perform 250 hours of community service.
The Director of Public Prosecutions applies for permission to appeal on the ground that the learned sentencing judge erred in the exercise of her discretion to suspend the sentence. There is also a complaint that the head sentence and the non-parole period are manifestly inadequate. However, the focus of the argument on the hearing of the appeal was on the decision to suspend the sentence.
The respondent was employed as a security officer in a nightclub at the time of the alleged offences. In December 2006 the Covert Investigation Section of the South Australian Police Force commenced an undercover operation involving in part, an investigation of the respondent. During the operation telephone calls and text messages to and from the respondent’s telephone were intercepted. The transcripts of a large number of these calls were tendered at the sentencing hearing. The transcripts cover a period from late December 2006 to early March 2007.
On 10 December 2006 an undercover police officer approached the respondent while he was working at the Rapture nightclub in the city. She asked the respondent if she could buy drugs from him and he said that he could not arrange anything then, but he gave the officer his telephone number.
The officer rang the respondent on 13 December 2006 and the respondent arranged to meet her at the Highbury Tavern on 14 December. The meeting took place and the respondent sold her a quantity of methylamphetamine.
There were four further purchases of methylamphetamine arranged between the officer and the respondent. They took place at Highbury on 20 December 2006 and 10 January 2007 and at the respondent’s home at Hope Valley on 8 and 21February 2007. The weight of the methylamphetamine on the five occasions was 0.04g, 0.05g, 0.05g, 0.09g and 0.03g respectively. The price was $100 on each occasion. The five charges of selling methylamphetamine relate to these occasions.
The respondent did not take any objection to the evidence of the telephone interceptions which disclose that he was involved in selling drugs to various people. The sentencing judge used this evidence as material which established that the five occasions upon which the respondent sold methylamphetamine were not isolated incidents. She sentenced the respondent on the basis that he was involved in drug dealing as part of a course of conduct over a period of months. The use of the evidence for this purpose has not been challenged by counsel for the respondent. On the hearing of the appeal it was also conceded by counsel for the respondent that the evidence was relevant to the issue of suspension of the sentence. However, it was acknowledged throughout that the respondent could not be sentenced in respect of the uncharged acts or receive a higher penalty because of them.
On 27 March 2007 police officers conducted a search of a house at Hope Valley which was occupied by the respondent and a man named Spyrou. They found quantities of methylamphetamine in four locations at the house. The total weight of the methylamphetamine was 0.34g. The respondent was charged jointly with Spyrou with possessing methylamphetamine in respect of two of these samples. Spyrou was charged with being in sole possession of the remaining two samples.
The police also found four cannabis plants growing in a cellar of the house. The entrance to the cellar was concealed in a wardrobe in a spare room. The respondent and Spyrou were charged jointly with possessing the cannabis plants. Other items found in the house include two sets of scales which contained traces of methylamphetamine.
The learned sentencing judge was urged to suspend the respondent’s sentence by reason of his personal circumstances. Her Honour accepted this submission and placed particular reliance on the respondent’s youth, his employment and rehabilitation, the fact that he had no previous convictions and the support which he had received from his family and friends. I will comment on these aspects in due course, but before doing so it is appropriate to summarise the respondent’s background.
The respondent was 22 years of age at the time of the offending. His parents separated when he was 8 years of age and an acrimonious divorce followed. This resulted in the respondent being brought up in an unsatisfactory and unpleasant environment. Despite this, the respondent completed year 12 and worked in various occupations, including a job as a security officer at the Adelaide Airport. He was successful in an application to join the Royal Australian Air Force, but this offer of a career was withdrawn when it became known that he was charged with the present offences.
According to Dr Fugler, who was asked by the defence to prepare a psychological report, the respondent began using cannabis at the age of 13. He was suspended from high school on several occasions for using dexamphetamine. He started taking methylamphetamine at the age of 18 when he began frequenting nightclubs.
The respondent told Dr Fugler that he sold methylamphetamine in order to help pay for the drugs which he consumed. Dr Fugler estimated that the respondent’s intellectual functioning was within the average range and that there were no obvious symptoms of psychiatric or neurological impairment.
The sentencing judge received oral evidence and references which emphasised the good qualities of the respondent. Counsel for the respondent stressed the fact that the respondent had no previous convictions. He placed particular emphasis on events which had taken place since the respondent was charged. He said that the respondent had been drug free during this time and that he had commenced an apprenticeship in September 2007. His employer spoke highly of him.
The sentencing judge acknowledged the seriousness of the offending. She referred to the cases of R v Mangelsdorf[1] and R v Ford[2] and acknowledged that considerations of general and personal deterrence must predominate in the case of this type of offending. When summarising the personal circumstances of the respondent she said:
I have regard to the factors which favour suspension. I refer in particular, to your youth, your rehabilitation, your employment and your support from family and friends. Like Mr Spyrou, you are indeed fortunate that so many members of the community are prepared to place their faith in your efforts to turn your life around and to believe that you have much to offer the community in the future if you were to be given a second chance. I must say, having heard your employer give evidence, I can well understand why. Like Mr Spyrou, you ought to be truly grateful for their efforts on your behalf.
I have been very impressed by all that I have read about you, as I was about Mr Spyrou. It has convinced me that when weighing up the matters both for and against suspension, you ought to be given one last chance to turn your life around. In my view, your efforts at your own rehabilitation ought to be supported. Therefore, despite the seriousness of your offending, I find that the combination of factors to which I have referred persuade me that good reason does exist to suspend the sentence which I have imposed…
[1] (1995) 66 SASR 60
[2] (2008) 100 SASR 94
Mr Pearce QC, for the Director of Public Prosecutions, argued that although the sentencing judge referred to the seriousness of the offences, she failed to give adequate weight to this consideration and, in addition, gave too much weight to the personal circumstances of the respondent.
Mr Cuthbertson QC, for the respondent, argued that the suspension of the sentence was within the proper exercise of the Judge’s discretion. He stressed the factors relied upon by the Judge in the decision to suspend the sentence, in particular the testimonials from those who know the respondent and the fact that the respondent had made attempts to rehabilitate himself.
A court may suspend a sentence of imprisonment “if it thinks that good reason exists for doing so”.[3] The assessment to be undertaken at this stage of the sentencing process was described by Kirby J in Dinsdale v The Queen.[4] Although the legislation in Dinsdale is not on all fours with the legislation in the present case, the comments made by Kirby J are nevertheless applicable to the process required under the South Australian legislation. His Honour said:[5]
Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy. On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of "all the circumstances". This necessitates the attribution of "double weight" to all of the factors relevant both to the offence and to the offender — whether aggravating or mitigating — which may influence the decision whether to suspend the term of imprisonment.
Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the "complete discretion" which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss.[6]
[3] Criminal Law (Sentencing) Act 1988 s 38(1)
[4] (2000) 202 CLR 321
[5] Ibid at [85] – [86] (footnotes omitted)
[6] See also Police v Cadd and Others (1997) 69 SASR 150 at 168, 173; and R v Ford at [51]f
When the circumstances of the offending are considered, particularly in relation to the methylamphetamine charges, the seriousness of the respondent’s conduct is readily apparent. Over a period of months he was willing and able to supply methylamphetamine to a person who was a complete stranger when he first encountered her. As has been pointed out, the offences involving the undercover officer were not isolated incidents. The respondent must have been aware of the detrimental effects of using methylamphetamine, having developed a habit for consuming the drug himself since being introduced to it in a nightclub environment.
The importance of general deterrence in a case such as the present is also self-evident. In South Australia the courts treat methylamphetamine as a “middle range drug”. The history of this categorisation is referred to in R v Sladic[7] where a possible reclassification of drugs for sentencing purposes was raised.[8] Methylamphetamine has been placed in a higher category for sentencing purposes in Western Australia, Queensland, the United Kingdom, Canada and New Zealand.[9]
[7] (2005) 92 SASR 36
[8] See also R v Ford at [32]f; and R v Becker (2005) 91 SASR 498
[9] R v Ford at [37]f
Whatever the appropriate classification for methylamphetamine, the courts can take judicial notice of the fact that the use of this drug has increased considerably in recent years; that the drug is not difficult to manufacture; that there is a potential for significant profit in selling it; and that younger members of the community are particularly at risk in the light of the ready availability of the drug at entertainment venues which they frequent.
As has been pointed out, the importance of deterrence and the seriousness of the offending in this case are to be considered against the personal circumstances of the respondent in determining whether there is good reason to suspend the sentence. I return, therefore, to the matters which the sentencing judge identified as constituting good reason for this purpose.
The respondent’s youth is a relevant factor but, in the case of offences such as these, it is not a determinative consideration. Rehabilitation is also relevant and weight must be given to it in this case, but it should also be borne in mind that the rehabilitation claimed for the respondent did not commence until after he had been arrested and while he was on bail awaiting the sentencing hearing in this matter. The same applies to the apprenticeship which the respondent embarked upon after his arrest. The court must look carefully at the consequences of interrupting an apprenticeship. However, there was no clear evidence that the serving of the sentence would prevent a resumption of the respondent’s apprenticeship.
It is important to have regard to the fact that the appellant has no previous convictions. On the other hand, the continuous nature of the offences is a factor which must also be considered. The support of the respondent’s family and friends and the evidence of his good character are other relevant factors but, again, the character evidence must be considered alongside an admitted lengthy history of drug taking.
I have borne in mind the limited circumstances in which appellate courts will intervene in prosecution appeals against sentence.[10] 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.
[10] Everett v The Queen (1994) 181 CLR 295
The error in sentencing is of such a nature as to call for the intervention of this Court in accordance with the principles discussed in Everett v The Queen[11]. I do not regard it as enough to grant permission to appeal but allow the sentence to stand. In order to maintain proper sentencing standards it is necessary to allow the appeal and substitute a sentence which gives adequate weight to general and personal deterrence in drug dealing cases.
[11] Ibid
I would grant permission to appeal, allow the appeal and set aside the order that the sentence be suspended. In my view the personal circumstances of the respondent justify the moderate head sentence and the non-parole period which is half the length of the head sentence. I would not interfere with these components of the sentence.