R v Turner - [2016] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TURNER
[2016] SASCFC 61
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Blue)
18 May 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING MDMA (ECSTASY)
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appeal against sentence.
On 14 May 2015 the appellant pleaded guilty at committal in the Magistrates Court to one count of trafficking in a controlled drug, namely MDMA, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
The Judge imposed a sentence of imprisonment for two years and nine months reduced from a starting point of four years due to the appellant’s guilty plea, and fixed a non-parole period of twelve months. The Judge declined to suspend the sentence.
The appellant appealed on the grounds that the head sentence and the non-parole period were manifestly excessive having regard to the amount of money and drugs involved and that the Judge erred in failing to suspend the sentence.
Held per Kourakis CJ (Kelly J agreeing), dismissing the appeal:
1.   An appellant court can only interfere with an exercise of the discretion to suspend, or not suspend, if no reasonable court could have exercised it in the same way as the Judge.
2.   There was no material put before the sentencing Judge which required a lower starting point.
3.   The sentencing Judge did not err in failing to suspend the sentence.
Held per Blue J, dismissing the appeal:
1.   The starting point of imprisonment for four years is not manifestly excessive (at [53]).
2.   It was open to the Judge to conclude that these were not good reason to suspend the sentence (at [55] to [57]).
Criminal Law Consolidation Act 1935 (SA) ss 48, 168; Controlled Substances Act 1984 (SA) ss 32, 44; Summary Offences Act 1953 (SA) s 41; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Weatherill [2015] SASCFC 113; House v King (1936) 55 CLR 499; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58, considered.

R v TURNER
[2016] SASCFC 61
Court of Criminal Appeal: Kourakis CJ, Kelly and Blue JJ

KOURAKIS CJ: This is an appeal against a sentence. On 14 May 2015 the appellant pleaded guilty at committal in the Magistrates Court to one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA). On 4 August 2015 the appellant was sentenced in the District Court to a head sentence of two years and nine months after a reduction from a starting point of four years. That reduction is in fact slightly more than the allowable statutory reduction of a maximum of 30 percent. A non-parole period of 12 months was imposed.
The appellant complains that the head sentence and the non-parole period are manifestly excessive.
The offending
The appellant was found in a car park on Morphett Street, Adelaide, at about midnight on 23 August 2014. Police officers and a drug detection dog approached the appellant who then ran away. When eventually detained by the police officers, the appellant claimed that he ran away because he was scared of the dog.
On searching the appellant the police found two bags containing approximately 20 pills, later identified as MDMA or ecstasy, and a set of car keys to an adjacent vehicle. The pills weighed 5.85 grams, and had a purity of 11.6%. The drug bags were decorated with a logo of a stylised female shape. Money in the sum of $330 was also found on the appellant. Beneath the driver’s seat of the car the police found two more empty bags of the same description as the ones found in the appellant’s pocket. More of those bags and electronic scales were found at the appellant’s residence.
An examination of the appellant’s phone revealed text messages between the appellant and eleven people, whose numbers are recorded in the appellant’s phone directory, which mentioned pills or made other coded references to drugs. The text messages were sent over a period of eleven days but they indicate earlier involvement in drug trading and an awareness that the drugs supplied by the appellant would be distributed to others beyond his direct contacts. Messages sent to four different people in the first three days of that period read:
Yeah always no good ;) got roundies I’m trying to move on :)
You lads need any rounds ??
You know anyone chasin pills brother ?
First things first ima need roll ups
When he was first interviewed by police the appellant claimed that he had bought the pills for his own personal use. In sentencing submissions his counsel claimed that the appellant mainly sold the drugs to personal associates in order to support his own drug use.
The learned sentencing Judge found that the appellant was a street level dealer, retailing drugs to drug users.
Personal Circumstances
The appellant is 26 years of age. He was born in Darwin and resided variously with his mother, father and a grandparent at one time or another. At the age of 14 he was abandoned by all family members and was in State care for some time. He has supported himself since then. The appellant lived in Western Australia for a period of time before returning to South Australia with his partner.
The appellant has an extensive work history, having left school on the completion of year 10. He has been regarded highly by his employers. While in Western Australia the appellant completed two and a half years of a spray-painting apprenticeship before returning to South Australia. As a result of this offending, the appellant lost his most recent employment because it required a police clearance.
At the age of 19 or 20 the appellant suffered an injury through a serious bike accident that continues to cause discomfort for which he does not take medication.
The appellant has two children, aged one and two at the time of sentencing, with his ex-partner, with whom he resided on returning to South Australia. After the relationship ended, the appellant had much less contact with his children. The appellant put to the Judge that this was, in part, a reason for his recreational drug use. There was no suggestion in the sentencing material that the appellant was addicted to ecstasy.
Nonetheless the appellant now has a good relationship with his children, having made suitable arrangements with his ex-partner for their care. He had commenced a new relationship at the time of sentencing. The appellant and his father maintain a positive, amicable relationship.
The appellant’s counsel submitted that he had stopped taking drugs and had turned his life around. The appellant claimed that he had no desire to return to drug taking as he now saw it as a personal impediment and detrimental to his employment prospects. He had disassociated himself from the people in his life that encouraged or took part in his drug use.
The appellant does not have a prior conviction for drug trading. However, leaving aside offending as a youth, the appellant has a number of convictions for property damage and a bad traffic offence record; he has several offences of driving whilst disqualified or suspended. In March 2010 the appellant breached a bond imposed on a suspension of a sentence of imprisonment for property damage offences by driving whilst disqualified. In December 2014 he failed to comply with a bail agreement, probably entered into after his apprehension for these offences.
The Appeal
The appellant does not rely on any express error in the reasons of the Judge. The appellant submits that the head sentence, and as a result also the non-parole period, is manifestly excessive having regard to:
·the amount of money and drugs involved;
·the supply of the drugs mainly to friends;
·the absence of substantial pecuniary gain;
·the limited period over which the offending occurred.
I accept that the amount of drug found in the appellant’s possession was relatively small but the actual amount of a drug found in a street trader’s possession will vary depending on his or her trading circumstances. The evidence here illustrates how that might be so because empty bags of a kind used by the appellant to store drugs were found under the seat of his car. The weight that can be given to the relatively low quantity of drugs found on the appellant at the time he happened to be apprehended is therefore limited.
Equally there is very little reason to differentiate greatly between supply to friends and supply to strangers. The health risks and social harm are not materially different. In any event, there is no clear bright line between friends, acquaintances and customers in the drug trade.
As to the absence of any substantial pecuniary gain, again the appellant can only be sentenced on the basis of the offence charged. The extent and degree of the appellant’s drug trading, and profit, before the offence charged is relevant only to show that the offence was not isolated and to inform the assessment of his prospects for rehabilitation on the one hand and the need for personal deterrence on the other. In any event the appellant admits that he traded commercially, intending to make a profit to fund his own drug taking. The period of time over which the appellant traded is also relevant only as a contextual consideration which informs the relative scope for rehabilitation or need for deterrence. The bags and scales found at the appellant’s home, his telephone directory, and the text messages found on his phone do not allow a finding that the offence was isolated. Indeed it is plain that the appellant traded in ecstasy for a period longer than eleven days before his apprehension.
Section 44 of the CSA provides:
44—Matters to be considered when court fixes penalty
(1) In determining the penalty to be imposed on a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration—
(a)subject to subsection (2), the nature of the substance or goods involved in the commission of the offence; and
(b)the quantity of the substance or goods involved in the commission of the offence; and
(c)the personal circumstances of the convicted person (being a natural person), including the circumstances relating to the person's use (if at all) of any controlled drug; and
(d)in the case of an offence against Part 5 Division 2 or 3—
(i)the commercial or other motives of the convicted person in committing the offence; and
(ii)the financial gain that is likely to have accrued to the convicted person as a result of the commission of the offence (but this is not to be taken into consideration if that financial gain is the subject of an application under the Criminal Assets Confiscation Act 2005); and
…
(e)any other relevant factor.
(2) 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 controlled drugs are all categorised equally as very harmful.
The direction in s 44(2) of the CSA is limited to the degree of personal harm to a user’s physical or psychological health. It does not preclude a court from differentiating between drugs having regard to their prevalence and social disruption. These are matters of which courts have knowledge and experience through the sentencing for offences against the CSA specifically and other crimes more generally. There is some reason to suspect that the social harm caused by drugs like ecstasy is not as great as amphetamine. On the other hand drugs like ecstasy have been responsible for the tragic deaths of too many of our youth and there is reason to think that the use of the drug is very prevalent.
The maximum penalty for this offending is ten years’ imprisonment. The starting point of four years is at the lower end of the range of penalties sanctioned on many occasions by this Court for street traders of illicit drugs in the context of a course of commercial trading. Shorter sentences will be warranted for isolated offences committed by persons of otherwise good character. The starting point by the Judge may have been higher than that which another Judge would have selected. However, there was no material put before the Judge which required a materially different starting point.
The decision of this Court in R v Weatherill[1] is substantially below the range for street trading established by the decisions of this Court and must be taken to reflect the strongly mitigating personal circumstances of the offender in that case. I refer in particular to the absence of any prior convictions and that offender’s course of study. The decision in Weatherill does not revise downwards the sentencing range applicable to street traders of ecstasy.
[1] [2015] SASCFC 113.
In complaining that the Judge erred in failing to suspend the sentence, the appellant does not rely on any express error. The appellant claims that the failure to suspend is manifestly unreasonable having regard to the appellant’s:
·youth and the absence of earlier convictions for drug trading;
·employment and strong prospects of future employment;
·family support; and
·changed approach to drug taking.
The mitigating circumstances on which the appellant relies are not such as to render the Judge’s decision not to suspend plainly unreasonable. I observe here that, consistent with the decision in House v The King,[2] an appeal court can only interfere with an exercise of the discretion to suspend, or not suspend, if no reasonable court could have exercised it in the same way as the Judge. The expression ‘wrongful exercise of the sentencing discretion’ should be understood in that way.
[2] (1936) 55 CLR 499.
The factors to which the appellant points are entitled to proper weight by a sentencing judge but they did not dictate a favourable exercise of the discretion. In particular, many offenders against the CSA are young. A secure employment history and family support are not unusual and many offenders claim a post-arrest redemption. As much as these factors are entitled to weight, and even though in some cases a combination of factors of this kind may carry decisive weight, they must be balanced against the needs for general deterrence.
It was not unreasonable or plainly unjust to decline to suspend the sentence of imprisonment having regard to all of the objective and personal circumstances of the offending.
The appeal must be dismissed.
KELLY J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
BLUE J:
This is an appeal against sentence.
On 23 August 2014 at the TAFE car park on Morphett Street, Adelaide, the appellant, Mark James Turner, was found in possession of 20 tablets that weighed 5.85 grams and contained 0.68 grams of 3, 4-methylenedioxy methylamphetamine (MDMA or ecstasy) and $330 cash. The defendant was arrested and charged with one count of trafficking in a controlled drug[3] and one count of being in possession of $330 cash reasonably suspected of having been obtained by unlawful means.[4]
[3] Controlled Substances Act 1984 (SA) s 32(3).
[4] Summary Offences Act 1953 (SA) s 41(1).
The appellant pleaded guilty in the Magistrates Court and was committed for sentence to the District Court. A Judge imposed a single sentence[5] of imprisonment for two years and nine months, reduced by just over 30 per cent on account of the respondent’s guilty pleas, with a non-parole period of 12 months.
[5] Criminal Law (Sentencing) Act 1988 (SA) s 18A.
The appellant appeals against the sentence on two grounds:
1.The head sentence, and consequentially the non-parole period, were manifestly excessive.
2.The Judge erred by failing to suspend the sentence.
Factual circumstances
On 23 August 2014, at just after midnight, police on patrol inside the TAFE SA car park on Morphett Street Adelaide observed the appellant in company with another male standing next to the appellant’s motor vehicle. The appellant ran away from the police before being apprehended. The police found in the appellant’s pocket a small plastic bag that contained within it two resealable bags with a distinctive logo, each containing 10 tablets. The police found similar empty resealable bags with the same distinctive logo in the appellant’s vehicle and later at his home. The police also found $330 in cash in the appellant’s wallet.
The police seized the defendant’s mobile telephone and later found a series of text messages passing between the appellant and 11 other persons over the previous 10 days relating to the supply of pills by the appellant to them. The text messages indicated that the appellant was offering to supply pills for approximately $100 for five pills or $170 or $180 for 10 pills.
The appellant was arrested and interviewed by the police. He admitted that the pills were illicit drugs, said that he did not know what they were and denied that he sold drugs. The appellant was charged with trafficking and unlawful possession and released on bail.
On 14 May 2015, the appellant pleaded guilty in the Magistrates Court to the charges and was committed for trial. By his plea and later submissions by his counsel, the appellant admitted that he was intending to sell the tablets found in his possession and that the $330 cash found in his possession was the proceeds of previous drug sales.
As at August 2014, the appellant was employed full-time by a glazier business undertaking labouring and dispatch work. He used ecstasy when partying on weekends but not during the week when he was working. He was not addicted to it.
The appellant was born in May 1989. He had an unsettled childhood living variously with his mother, father and grandfather. He left home at the age of 14 and left school after completing year 10. He worked at Subway and in a sawmill before undertaking two and a half years of an automotive spray-painting apprenticeship, which he did not complete. He then worked as a process worker for 18 months, a car part maker for 12 months, in the glazier business for 12 months and as a fish processor for four months. He was in receipt of a Newstart Allowance at the time of sentencing in July 2015.
The appellant was living with his partner, with whom they had two children, born in 2013 and 2014. The relationship ended and his partner moved out of the house, taking the children with her. Following this, the appellant started taking drugs. The appellant was spending time with his children at weekends.
By the time of sentencing in July 2015, the appellant had stopped taking illicit drugs.
The appellant has several previous convictions, although none of them involved drugs. In May 2009, he was sentenced in the Magistrates Court for theft, deceiving another to benefit self and unlawful possession when, without a conviction being recorded, he was placed on a bond to be of good behaviour for 12 months. In August 2009, he was sentenced in the Magistrates Court for damaging property, marking graffiti, disorderly behaviour and breach of the May 2009 bond. He was sentenced to imprisonment for one month, which was suspended on his entering into a bond to be of good behaviour for 18 months. In September 2010, he was sentenced in the Magistrates Court in Western Australia for damaging property, when he was fined $500. In August 2012 and May 2013, he was sentenced in the Magistrates Court for two separate breaches of the August 2009 bond, no further penalty being imposed beyond estreatment of the bond.

The appellant also has several convictions between 2006 and 2013 for various driving offences, including driving in a manner dangerous to the public, driving while under the influence of alcohol, driving with excess blood alcohol, driving on three occasions under disqualification and driving on two occasions without due care.
The sentencing remarks
The Judge summarised the circumstances of the offending and the appellant’s personal circumstances. The Judge then said:
The Court turns to the issue of penalty. Drug trafficking is a serious crime. The law recognises that the drug you are selling is very harmful and indeed every week this court sees the enormous direct and indirect harm that drugs do to the lives of those who take them, and the havoc that those affected by drugs wreak throughout the community.
For this reason the Supreme Court has rightly pronounced on many occasions the importance of personal and general deterrence in matters of street level drug trafficking. Indeed, you apprehended with these drugs in the early hours of the morning adjacent Hindley Street, an area where in the court’s experience street-level drug trafficking is unfortunately notoriously present. On the other hand, the court must have full regard to the important matters urged on your behalf, including the issue of rehabilitation, and indeed the court has full regard to all of those matters which have been urged on it on your behalf by your counsel.
The Judge announced the head sentence. The Judge then said:
In the totality of the circumstances, the seriousness of the offending and, in particular, the need to deter others from street level trafficking this very harmful drug outweighs the albeit important matters urged by your counsel, such that there is not good reason to suspend the sentence. However, in light of all the matters put by your counsel, there will be a significantly shorter than usual non-parole period of 12 months.
Manifest excess
The maximum penalty for trafficking in ecstasy is imprisonment for 10 years and the maximum penalty for unlawful possession is imprisonment for two years.
The appellant contends that a starting point of imprisonment for four years is manifestly excessive. The appellant points to the amount of money and drugs involved, the fact that the offending involved supply mainly to friends and acquaintances, the absence of a substantial pecuniary gain and the limited period over which the offending occurred.
Section 44(1) of the Controlled Substances Act provides:
44—Matters to be considered when court fixes penalty
(1)In determining the penalty to be imposed on a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration—
(a)     subject to subsection (2), the nature of the substance or goods involved in the commission of the offence; and
(b)     the quantity of the substance or goods involved in the commission of the offence; and
(c)     the personal circumstances of the convicted person (being a natural person), including the circumstances relating to the person's use (if at all) of any controlled drug; and
(d)     in the case of an offence against Part 5 Division 2 or 3—
(i)the commercial or other motives of the convicted person in committing the offence; and
(ii)the financial gain that is likely to have accrued to the convicted person as a result of the commission of the offence (but this is not to be taken into consideration if that financial gain is the subject of an application under the Criminal Assets Confiscation Act 2005); and
(da)   in the case of an offence against section 33F, 33H or 33I—whether the offence occurred within a school zone or at or near any prescribed place; and
(e)     any other relevant factor.
(2)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 controlled drugs are all categorised equally as very harmful.
As at August 2014, the prescribed trafficable quantity of ecstasy was two grams and the prescribed commercial quantity was 500 grams. The quantity found in the appellant’s possession on 23 August 2014 was just under six grams. This is to be taken into account under paragraph (b) of subsection 44(1). While the appellant was only to be punished for trafficking of that quantity on that date, it is to be seen in the context that this was part of a course of conduct involving ongoing commercial trafficking by the appellant.
The fact that the appellant was a user of ecstasy is to be taken into account under paragraph (c), although he was not addicted to ecstasy and it is not suggested that his trafficking was compelled by a need to support a drug addiction.
The fact that the appellant had commercial motives for committing the trafficking offence is to be taken into account under paragraph (d)(i). The fact that the financial gain likely to have accrued from the appellant’s selling the tablets would have been in the order of $400 is to be taken into account under paragraph (d)(ii). Again, while the appellant was only to be punished for trafficking of the quantity of just under six grams on 23 August 2014, it is to be seen in the context that this was part of a course of conduct involving ongoing commercial trafficking by the appellant.
The Judge was called upon to sentence the appellant not only for the offence of trafficking committed on 23 August 2014 but also for the unlawful possession of the cash found in his possession being the proceeds of previous drug sales.
It was relevant that the appellant had no previous convictions relating to drugs. However, the appellant did have several previous convictions for dishonesty offences and had previously been afforded leniency, including being placed on bonds, the conditions of which he breached. The appellant was not entitled to expect the same leniency as if he had no previous convictions at all.
While another Judge may well have imposed a lesser sentence of imprisonment, it cannot be said that a starting point of imprisonment for four years for the offences of trafficking and unlawful possession was “unreasonable or plainly unjust" such that the sentence imposed “fall[s] outside the range of sentences which could have been imposed if proper principles had been applied”.[6]
[6] Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, (2014) 253 CLR 58 at [26] per French CJ, Hayne, Kiefel and Bell JJ.
The first ground of appeal is not established.
Good reason to suspend
The appellant contends that the Judge erred in not concluding that there was “good reason” to suspend the sentence of imprisonment imposed. Like the length of a term of imprisonment, the question whether there is good reason to suspend a sentence of imprisonment involves a discretionary judgment.[7]
[7] R v Garrett [2005] SASC 58 at [26] per White J (with whom Debelle and Besanko JJ agreed).
The appellant contends that his relative youth, antecedents, employment history, family commitments and cessation of drug use amounted to good reason to suspend the sentence of imprisonment. The Judge referred to and had regard to each of these matters. The appellant does not contend that the Judge failed to take into account a relevant factor.
It cannot be concluded that the outcome of the exercise of the Judge’s discretion is such that error must be inferred or that the result is unreasonable or plainly unjust. It was open to the Judge to conclude that, given the objective seriousness of the offences, there was not good reason to suspend the sentence of imprisonment.
The second ground of appeal is not established.
Conclusion
I would dismiss the appeal.