R v Stubberfield - [2005] SASC 383

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STUBBERFIELD
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Vanstone and The Honourable Justice Layton)
30 September 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Appeal by offender against sentence of two years and two months not suspended for three counts of selling methyl amphetamine - whether approach of sentencing judge to suspension of sentence in error - whether sentence excessive - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 38, referred to.
Landers v Police (2002) 131 A Crim R 59, applied.
R v Wilton (1981) 28 SASR 362; R v Palliaer (1984) 35 SASR 569; R v P (1992) 111 ALR 54; R v Taddeo (1993) 67 A Crim R 338; R v Mangelsdorf (1995) 66 SASR 60; R v Gjoka (unreported, Court of Criminal Appeal (SA), 1 July 1997, No S6211), considered.

R v STUBBERFIELD
[2005] SASC 383
Court of Criminal Appeal: Debelle, Vanstone and Layton JJ

DEBELLE J: This is an appeal by leave against sentence.
The appellant pleaded guilty to three counts of having knowingly sold methyl amphetamine. The offences were committed at Woodville West on 7 July, 8 July and 10 July 2003. The offending on 7 July 2003 was committed with two others, a Mr Brunt and a Ms Cowin.
The appellant was sentenced to imprisonment for two years and two months. A non‑parole period of one year was fixed. Both the head sentence and the non‑parole period commenced on the day on which the appellant was sentenced, 6 July 2004. The appellant was sentenced at the same time as Brunt and Cowin, who were also charged with these and other offences.
The grounds of appeal are that the sentencing judge erred in not suspending the term of imprisonment and that he erred in considering the question of suspension before fixing a term of imprisonment.
Each of the offences involved an undercover operative. The first count on which the appellant was charged jointly with Brunt and Cowin, involved an undercover operative contacting Brunt by mobile telephone and arranging to purchase methyl amphetamine at Cowin’s house. When at the house, the undercover operative was directed to speak to “Stubbie”, who was the appellant. The appellant gave the operative a plastic bag containing white paste and took $250 in payment. The paste supplied contained 0.03 grams of methyl amphetamine.
The second count involved a different undercover operative. She came to the same premises in Woodville West where she told the appellant that she was looking for Cowin. Stubberfield told her to come back later. Later that afternoon, he took her into Cowin’s bedroom and took out a set of scales and some bags. He then produced a plastic bag containing a white paste and measured some out and re‑bagged it. He gave her one of the two bags and she paid him $50. The plastic bag contained a substance which included 0.01 grams of methyl amphetamine.
The third count involved the same operative as the second count. The appellant produced two small plastic bags and placed them on a table. The operative handed the appellant a fifty dollar note and took one bag. The amount of methyl amphetamine purchased on that occasion was 0.01 grams.
The appellant was aged 37 years when he committed these offences. He has had a relatively uneventful and settled childhood and schooling. In his late twenties he dropped out of the workforce to take on the role as a single parent of his son. He has effectively been a single parent for all of his son’s nine years. The boy’s mother has made no effort to re‑establish a new relationship with him.
The appellant began using amphetamines on a recreational basis in his late twenties. He began to use them heavily in early 1998. He spent some months in a drug rehabilitation facility but returned to using the drug.
He became homeless when he needed to support his drug habit. He accepted an offer by the co‑defendant Cowin, an old friend, to board at her house. He became involved in this offending as he felt some obligation to Cowin for providing him a place in which to live.
It seems the appellant’s part in this offending was to assist Ms Cowin and others to manage their drug dealing. It seems he did not make any profit himself from the offending. The only gain from these dealings was an occasional free sample of amphetamine and the certainty of being able to sustain his own supply. He knew that he was acting unlawfully and it was likely that he would incur a substantial penalty if apprehended.
Since his arrest the appellant has attempted to address his drug problem by ceasing to use them but has lapsed back into use from time to time.
After referring to the circumstances of the offending and the appellant’s personal circumstances, the sentencing judge turned to the question of penalty. He said:
I consider that a sentence of imprisonment for your offending is appropriate and warranted. I have considered whether to suspend that sentence. Whilst your own involvement was not significant, you were nonetheless involved in what you knew to be commercial drug dealing. You facilitated some of that dealing. I am not satisfied that the probabilities are that you simply handed over drugs when Ms Cowin was not at the home. Accordingly, I am not satisfied that sufficiently good reason exists to suspend your sentence of imprisonment. I shall, however, reflect the matters favourable to you in your head sentence and non‑parole period.
It was submitted that the sentencing judge erred twice in those remarks. The first was that the judge had not considered the question of suspension after determining the appropriate sentence. The second was that the judge had failed to find that the probabilities were that he simply handed over drugs when Ms Cowin was not at the home. I deal first with this latter contention.
It is plain that the appellant was engaging in commercial dealing with these drugs. The benefit to him was to ensure a certainty of supply for himself. Although that was his only reward, it was still a significant benefit to him. The dealing had a commercial character in that it meant that the appellant did not have to spend money to purchase the drug for himself. The appellant was in effect acting as Cowin’s agent in the offending the subject of the second and third counts. He was standing in her shoes when Cowin was not at home by agreeing to sell the drug, providing the required amount of the drug and taking the money as payment for it and he was rewarded for that. The judge’s finding is to that effect. He is doing no more than stating the appellant’s offending was not simply that of being a conduit for Cowin and handing over drugs for which the sale had already been arranged. The finding is entirely consistent with the evidence.
It is scarcely necessary to reiterate that s 32 of the Controlled Substances Act imposes severe penalties and, in particular, severe penalties for commercial dealing in drugs: see generally R v Mangelsdorf (1995) 66 SASR 60 at 63. Parliament expects the Courts to impose penalties which will deter people from engaging in commercial activity with respect to prohibited substances. The maximum penalty for this offence is 25 years imprisonment and a fine of $200,000.
One consequence of the stern view taken of this kind of offending is that when the offence involves commercial dealing in drugs, a suspended sentence would not in most cases be justified: R v Mangelsdorf at 63; R v Gjoka (unreported, Court of Criminal Appeal, 1 July 1997, Judgment No S6211). Suspension of a sentence will rarely be ordered even if the offending concerns a drug in the middle range of seriousness such as methyl amphetamine. Where a mature person has deliberately engaged in commercial dealing in drugs, he is not entitled to the leniency which might be claimed for youth: R v Taddeo (1993) 67 A Crim R 338 at 339.
It is against that background that the question of suspension must be considered. There is nothing about the course of offending nor in the personal circumstances of the appellant which required that this sentence be suspended. This was a commercial dealing in drugs by a mature man who knew that he was acting unlawfully and also knew that, if apprehended, he would be liable to a severe penalty. The appellant has a history of prior offending, much of which relates to motor vehicle offences. However, he has been found guilty of minor offences in relation to cannabis. This will, however, be the first occasion upon which the appellant will be required to serve a period of imprisonment. The fact that this will create difficulties for his son is not, I think, a sufficient reason to suspend the sentence.
Given this conclusion, it is not necessary to consider at length the second ground of appeal that the sentencing judge erred in considering the question whether to suspend the sentence before fixing the term of imprisonment. It is not entirely clear whether the judge did proceed in that way. In a report to this Court the judge had no clear recollection.
It is well settled that the correct approach to sentencing when the issue of suspension might arise is to consider first the length of the sentence which is appropriate and then, having determined the sentence, to consider whether it is appropriate to suspend the sentence: R v Wilton (1981) 28 SASR 362 at 367; R v Palliaer (1984) 35 SASR 569; R v P (1992) 111 ALR 54. Even if the sentencing judge did not proceed in accord with that principle, there is no ground for interfering with the decision not to suspend.
It has not been demonstrated that the sentencing judge has erred in any relevant respect in the exercise of his sentencing discretion. As counsel for the appellant properly acknowledged, the question whether the sentence should be suspended was finely balanced. There is no justification for this Court to interfere with the sentence. For these reasons I would dismiss the appeal.
VANSTONE J: I agree that the appeal should be dismissed and with the reasons given by Debelle J.
LAYTON J: The appeal in this matter is dependent upon the approach used by the sentencing Judge in his sentencing remarks in which he stated:
I consider that a sentence of imprisonment for your offending is appropriate and warranted. I have considered whether to suspend that sentence. Whilst your own involvement was not significant, you were nonetheless involved in what you knew to be commercial drug dealing. You facilitated some of that dealing. I am not satisfied that the probabilities are that you simply handed over drugs when Ms Cowin was not at the home. Accordingly, I am not satisfied that sufficiently good reason exists to suspend your sentence of imprisonment. I shall, however, reflect the matters favourable to you in your head sentence and non-parole period.
In the next paragraph the sentencing Judge fixes the period of imprisonment and the non-parole period and states:
But for your pleas of guilty I would have sentenced you to imprisonment for three years. I reduce that to imprisonment for two years and two months to take account of your early pleas, the time you spent in custody in August 2003 and your time on home detention bail since then. I fix a non-parole period of imprisonment for one year, taking account of those matters to which I have just referred.
The grounds of appeal are twofold, namely that the learned sentencing Judge erred in not suspending the term of imprisonment and secondly erred in considering the question of suspension prior to fixing a term of imprisonment.
At the hearing of the appeal it was conceded by the DPP that the sentencing Judge had erred in his “approach” to sentencing in that he had failed to fix the term of imprisonment before then considering suspension. Whilst this concession was made by the DPP, at the same time the DPP submitted that although it was an error in “approach” it was not an error in “principle”. It was said not to be an error in principle because the sentencing Judge:
… determined there would be imprisonment, he then went on to say why he couldn't suspend that term of imprisonment and then said that he would take matters put in mitigation into account in setting the head sentence and non-parole period. In my submission that evidences no error. It might have been preferable had he done it the other way around …
I do not agree with the submission of the DPP. An ordinary reading of the sentencing remarks when one looks at the two paragraphs indicates a two-fold error which goes to principle and not simply to form. The first is that it is clear from the sentencing remarks that the sentencing Judge articulates the specific term of imprisonment only after he decides that there is no “sufficiently good reason” to suspend. Secondly, the words used and their context namely, “[a]ccordingly, I am not satisfied that sufficiently good reason exists to suspend your sentence of imprisonment. I shall, however, reflect the matters favorable to you in your head sentence and non-parole.” This explicitly indicates that the Judge was not prepared to suspend the sentence of imprisonment and instead would fix a head sentence and non-parole period to reflect his view that the involvement of the appellant was “not significant”. This is reinforced when the Judge immediately after setting out the term of imprisonment and the non‑parole period states that it is “…taking account of those matters to which I have just referred.” This links the failure to suspend with the consequential lowering of the head sentence and non-parole period.
When considering whether a correct approach has been taken by a sentencing Judge, the remarks of the sentencing Judge provide the guide[1] and are assumed to demonstrate the reasoning process followed in arriving at the sentence.[2] In my view the sentencing remarks disclose that an error has occurred and its importance is demonstrated by the explicit wording of s 38 of the Criminal Law (Sentencing) Act 1988 and the following cases.
[1] R v Kissner (1993) 69 A Crim R 83, 89.
[2] In the report by letter dated 4 August 2005, Judge Muecke was unable to remember whether he decided on the term of imprisonment before or after the decision to suspend.
In Landers v Police,[3] Gray J reviewed the authorities in relation to this issue. The relevant portion of his Honour’s reasons, at [12] – [16] is set out below and I have added highlighting in italics for emphasis:
The magistrate's decision to not suspend the sentence appears to have been made following his decision to imprison, but before he had decided upon a term of imprisonment. This approach does not accord with proper sentencing practices.
Initially, a decision should have been made as to whether it was appropriate to order imprisonment. If it was decided that imprisonment was appropriate, a decision as to the length of the custodial sentence should then have been made. Once that term had been fixed, the issue of suspension could properly be addressed. In R v Wilton [(1981) 28 SASR 362 at 367] King CJ, (Mitchell and Williams JJ agreeing), when dealing with the co-offenders, said:
"The correct approach to the sentencing of these co-offenders was for the sentencing judge to consider first the length of the sentence of imprisonment which was appropriate to each offender. In doing so, it was relevant to consider, among other things, the proper proportion which the sentences should bear to one another in the light of the respective degrees of culpability of the co-offenders and their respective circumstances. Having determined the length of the sentences, the learned judge ought to have applied his mind to the offenders individually and ought to have considered in relation to each offender whether he was of opinion that, having regard to the matters mentioned in the section or any of them, it was expedient to suspend the sentence. In that latter process, considerations of disparity have no part."
These principles were applied in Palliaer [(1984) 35 SASR 569 at 571] where Mitchell CJ said:
“In my opinion the learned sentencing judge did err in his approach to sentencing. The proper approach was to decide first whether there was any appropriate alternative to imposing a sentence of imprisonment; if the answer to that was in the negative then to decide what was the proper term of imprisonment to be imposed; and then, and only then, to decide whether it would be appropriate or inappropriate to suspend the term of imprisonment. The procedure which should be adopted by a sentencing judge who has decided that the offence requires a sentence of imprisonment, where there are two or more offenders, was expressed by King CJ, in reasons with which the other members of the Court agreed, in Wilton.”
When considering this issue in P [(1992) 111 ALR 541] the Full Federal Court said:
“There is little by way of judicial authority on the precise question of when a suspended sentence of imprisonment is appropriate. DA Thomas Principles of Sentencing (1982) discusses the principles which are applied in the English Court of Criminal Appeal, mostly in unreported decisions. The making of an order for suspension does not justify the imposition of a sentence of imprisonment when an immediate sentence of imprisonment would be wrong in principle. The proper length of the term should be fixed having regard to all relevant factors, and the suspension does not justify a term longer than that appropriate for an immediate sentence. As Thomas observes, all factors which are relevant to sentence should be taken into account before deciding that a sentence of imprisonment is appropriate and what the length of the term should be. In considering whether or not the term so fixed should be suspended the sentencing judge must either give double weight to some factors for which the judge has previously made allowance or look for new factors which are not relevant to the factors already considered. Nevertheless the exercise must be undertaken. In undertaking it, the judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of the mercy to which King CJ referred in Osenkowski… or for some other sufficient reason should have this particular avenue opened to him, provided the conditions of the suspension are observed.” (emphasis added)
[3] (2002) 131 A Crim R 59.
In the case before Gray J, the magistrate concluded that imprisonment was appropriate but failed to determine the question of the length of the term of imprisonment before addressing the issue of suspension. Justice Gray concluded that this was at odds with correct sentencing practice and that it led to a material risk that erroneous matters were considered when the magistrate declined to suspend.
In this case, I consider that as a consequence of the failure by the sentencing Judge to follow the correct sentencing principle, there is a material risk that his Honour fell into error in his reasons for rejecting suspension. First, because of the previously referred to juxtaposition of declining to suspend but instead to reflect the favourable factors in the head sentence and the non-parole period. But in addition it is to be noted that in the passage of the sentencing remarks at which the sentencing Judge declines to suspend, he refers only to matters which are concerned with the circumstances of the offence and not the personal circumstances of the appellant; the latter being the prime consideration as to whether good reason exists to suspend what would otherwise be an appropriate imprisonment sentence. At no point in the sentencing remarks does the sentencing Judge articulate the relevant personal matters to which he has had regard in deciding to decline a suspension of the sentence. Therefore it is not merely an error in the order or form in which the sentencing Judge has expressed his reasons, but a failure to articulate any personal circumstances relevant to the exercise of his discretion to refuse to suspend.

In my view these matters demonstrate an error by the sentencing Judge and I would allow the appeal on that basis and then re-sentence the appellant.
Role of appellant in relation to the sales
I consider that there is also a second error in the approach of the sentencing Judge which appears in the same paragraph discussed above when the Judge indicated:
I'm not satisfied that the probabilities are that you simply handed over drugs when Ms Cowin was not at home.
In my view this statement demonstrates an error of fact having regard to the undisputed facts and submissions made before the sentencing Judge, as to the role of the appellant in each of the three sales which are the subject of the three separate Counts.
The error of fact was twofold; first that the sentencing Judge was wrong in rejecting the submission of the appellant that his sole role in relation to Count three was to hand over the drug as agent for Ms Cowin - particularly in the absence of there being a dispute by the DPP on that submission made before him and in the absence of a disputed facts hearing on that point. Second, that the sentencing Judge was in error in treating the appellant’s submissions as though the same submission had also been made on his behalf in relation to the other two counts namely Counts four and five. Neither the facts nor the submissions made on behalf of the appellant on these two counts suggested this characterisation of the role of the appellant.
The rejection by the sentencing Judge of this submission, was directly linked to the Judge concluding that there was no good reason to suspend sentence. This is particularly evident as immediately after referring to this his Honour stated “[a]ccordingly, I am not satisfied that sufficiently good reason exists to suspend your sentence of imprisonment.”
I will now expand upon why the statement amounted to an error of fact by the sentencing Judge.
Count Three
This Count involved two other co-accused namely Mr Brunt and Ms Cowin. The undisputed facts were correctly summarised by Counsel for the appellant and submitted to the sentencing Judge:
First in time is 7 July 2003. This is the matter in which Mr Stubberfield’s involvement appears confined to when he hands over the amount of drugs to the male undercover operative, D5, in exchange for $250.
The reason he has got the drugs is because Ms Cowin wasn’t even expected to be at the address at that time. It was just, ‘Here they are when he comes. Collect the money for me’ and that’s indeed what he did. He handed the money straight back. He didn’t make any profit for himself.
He was merely, essentially, the agent for Ms Cowin and I think your Honour can read from the pre-sentence report that there were reasons he felt obliged to do that… She helped him out in a crisis when he needed somewhere to live. He was very grateful for that.
That’s not to suggest that he was inveigled into that. At the time it didn’t really seem much of an incursion into criminality to simply hand something over, collect something and hand it on to the other person. (emphasis added)
The DPP put no submission in opposition to the above submissions made on behalf of the appellant. In particular it was not submitted by the DPP that counsel for the appellant was incorrect in stating that the role of the appellant in relation to the sale in this Count, was simply to hand something over, collect something and hand on to the other person as an agent.
In that situation, it was an error for the sentencing Judge to have simply rejected the submissions made by the appellant as to his role, which was clearly consistent with the factual material before him and which was not contested by the DPP. The appellant was entitled to have the most favourable position of his role accepted by the sentencing Judge. In addition I consider that the sentencing Judge was wrong in rejecting the appellant's explanation of his role in the absence of having a disputed facts hearing on that contention.
Count Four
This Count involves another undercover agent who is female and is known as U26. It involves three phone calls and two attendances.
The appellant's submissions accurately summarise the involvement of the appellant in the following terms:
The sequence goes: attendance one at 2.42 in which she makes the inquiries about Ms Cowin.
Mr Stubberfield, on my instructions, has an attractive youngish woman on the doorstep of where he is residing and he wants to help her out so he gives her his mobile phone number. She rings at 4.25. Ms Cowin isn’t back. The undercover operative suggests ringing back in a few minutes to which Mr Stubberfield suggests ‘Give it half an hour, 30 minutes’.
Then at 4.54, she rings again. He explains that he hasn’t heard anything from Ms Cowin and says ‘Let me see if I can get something’. The undercover operative doesn’t push Mr Stubberfield but then there is a further call at 5.11 at which Mr Stubberfield says ‘I’m just contemplating if I can go and get you something right now myself’ and then later, a final attendance at 5.55 in which during their conversation Mr Stubberfield says at line 51 ‘I’ve got to get some anyway. She is-expletive-taking too long’.
On my instructions, the impression you very clearly get is that this is a case of Mr Stubberfield having some empathy with a fellow addict who is waiting and has been waiting for the best part of the afternoon, just as he has been waiting the best part of the afternoon to ‘get on’ or to have Ms Cowin return with the drugs and they can all partake.
He was also, he says, attracted to the undercover operative. She was attractive and indeed, all of their dealings were characterised by polite conversation. They seem quite friendly.
That’s not to say that Mr Stubberfield was essentially pressured or offered any inducements but his involvement on that particular day was ‘She is in the same position as I am. I’ll help her out’, so what he does, he goes to another source from which he has obtained amounts of amphetamines for himself and buys another point for the undercover operative and then, when she turns up, he simply divvies them up, takes the money that he has actually spent to obtain the extra point and gives it to her and she is on her way.[4]
[4] Transcript, 3 June 2005, AB 263, line 34, 264, line 35.
In addition to these submissions, counsel for the appellant submitted there had been "a degree of persistence in the female undercover operative’s calling, although it is never so much as pressuring and there is never any inducement, but it is somewhat persistent."[5] It was also submitted that the appellant did not make any profit out of the sale.
[5] AB 266 lines 1 - 4.
Counsel for the DPP before the sentencing Judge submitted that:
It is the Crown's submission that this demonstrates an ability to source and supply amphetamine. It is accepted that U26 attended at the house seeking out Ms Cowin, however, Mr Stubberfield stepped in to assist with the sale when Ms Cowin was not available.[6]
[6] AB 278-279.
It is clear from the facts and submissions which were made to the sentencing Judge, there was no suggestion that in this transaction the appellant had acted as an agent of Ms Cowin or indeed that he had “simply handed over drugs when Ms Cowin was not at home”. Instead it was common ground from both the submissions of counsel for the appellant and the DPP, that the appellant had “stepped in” to assist with the sale when Ms Cowin was not available. Further, there was no contrary submission put by the DPP to the submissions that the “stepping in” arose out of circumstances of the persistence by the undercover agent; that she was asking for Ms Cowin; that the appellant felt sorry for her because he had empathy with a fellow addict; that the appellant also found her attractive and he was trying to help her out by selling half of the methylamphetamine which he had gone out and purchased when Ms Cowin was not available.
This should have been the role on which the Judge should have sentenced the appellant in relation to Count four and not on the basis that he rejected an explanation given by the appellant which was not proffered.
Count Five
This Count also involves the same undercover agent as Count four and occurred two days later. In relation to this Count, counsel for the appellant submitted to the sentencing Judge that this was similar offending to the earlier Count four involving the same agent. The DPP's submissions to the sentencing Judge with regard to this Count was again that the actions demonstrated an ability of the appellant to source drugs for sale. There was otherwise no dispute as to the characterisation of the conduct. It was also submitted by the DPP that “we're not submitting that he was involved to the extent of Mr Brunt or Ms Cowin or Ms Penrose.”[7]
[7] AB 279 lines 35-37.
In summary on all of the counts, the difference between the submissions put by the appellant and those of the DPP was in relation to whether the appellant had profited by the sales and not as to the explanation given by the appellant as to the role or the reason for his involvement in the three sales.
The appellant submitted that there had been no financial profit and the money went straight back to the person from whom he had obtained the drugs.[8] The only benefit he had received was an occasional sample from Ms Cowin, and the ability to get a supply and pay for drugs for his own use; and further that he felt obliged to assist Ms Cowin for giving him a place for himself and his son to live.
[8] AB 264.
The DPP did not accept the appellant’s submissions that he had “gained no reward” in relation to his involvement in the commercial transactions. Specifically the submission of the DPP on this topic was:
It is the Crown submission that Mr Stubberfield would have gained some form of reward for his efforts and involvement…We cannot accept that he gained no reward. Certainly involved in commercial transactions, at the very least.
It is the Crown submission Mr Stubberfield was involved in the distribution and sale of drugs as revealed by the declarations. The sales involved the handing over of sums of money of up to $250 on occasions. There is, in the Crown submission, an inference that someone involved in such sales would stand to make some form of gain.
Whilst we cannot accept that he did not expect to receive a monetary reward, it is a matter for the court as to whether he received some other reward. That doesn’t seem to have been addressed.[9]
[9] AB 279-280.
On this aspect the sentencing Judge accepted the appellant’s submissions and found that there was a benefit but not a profit.[10]
[10] AB290.
In conclusion on this point, the above matters indicate that although the sentencing Judge accepted the appellant’s submissions that he did not make a financial profit for his offending, the Judge did not correctly characterise the role of the appellant in relation to the offences and he made an error of fact. The sentencing Judge failed to accept the appellant’s undisputed and clearly plausible submissions that he was acting as an agent and simply handing over the drugs with regard to Count three and that with regard to Counts four and five, he was not acting as an agent but instead he had stepped in to assist with the sales when Ms Cowin was not available in the circumstances discussed above. Therefore on the undisputed facts, but for the unavailability of Ms Cowin the appellant would not have been involved in these Counts either as Ms Cowin’s agent or in “stepping in” for her.
In my opinion the error of fact led the sentencing Judge into wrongly concluding that there was no good reason to suspend the sentence. The rejection by the Judge of the submission of the appellant as he characterised it, also begs the question as to what conduct the Judge took into account in relation to the conduct of the appellant on all counts. The sentencing Judge did not indicate what role he considered the appellant had performed when he stated he was “involved in…drug dealing” and that he had “… facilitated some of that dealing.”[11]
[11] AB 290.
For these reasons therefore I consider that there was an error by the sentencing Judge and that there should be a re-sentencing.
Re-sentencing
Counsel for the respondent argued that this was a case which fell within that category of offences described in R v Mangelsdorf[12] where suspension of a term of imprisonment will only be appropriate in “exceptional circumstances”. I am not satisfied that the offences committed by the appellant can properly be described in this way. The appellant has no history of commercial dealing or “street trading”. Although the offences took place within the context of what was clearly a commercial operation on the part of the two co-accused, the sentencing Judge acknowledged that the appellant did not stand to make any commercial profit from his involvement but would only gain a limited benefit.
[12] (1995) 66 SASR 60.
In my view this was a case where good reason existed for the suspension of the sentence of imprisonment, in the context of the low level of his involvement in the sales of small amounts of drugs to undercover agents. There has been no prior offending of a similar nature. Most important is the very special relationship and dependence of his 10 year old son for whom he has been the sole parent. The Pre-Sentence report which describes the relationship in the following words:
…my observation was that the attachment bond is a mutual one. Imprisonment in such a situation would certainly cause a significant rupture in the relationship and could contribute to the boy experiencing longer-term emotional and psychological damage. Information contained in departmental supervision case notes suggests that the boy is already demonstrating some distress when confronted with the prospect of his father being imprisoned.
The Pre-Sentence report also refers to attempts by the appellant to rehabilitate himself since the time of the offending. In short the Pre-Sentence report recommends that an individual plan be developed to assist the appellant to prevent drug relapse and practical help with housing and employment.
I would therefore allow the appeal and order that the sentence of imprisonment be reduced from two years and two months to two years. The offences with which he is charged are serious and I have taken account of the early pleas and the time already spent in custody. I would fix a non-parole period of nine months, making allowance for time spent in custody. I find that good reason exists to suspend the sentence of imprisonment in all the circumstances, upon the appellant entering into a bond of $200 to be of good behaviour for three years on conditions.