R v Weatherill

[2015] SASCFC 113

Supreme Court of South Australia

(Court of Criminal Appeal)

R v WEATHERILL

[2015] SASCFC 113

Reasons for Decision of The Court of Criminal Appeal

(The Honourable Acting Chief Justice Gray, The Honourable Justice Vanstone and The Honourable Auxilliary Justice David)

17 August 2015

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

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES

Appeal against sentence following plea of guilty to trafficking in MDMA - police searched the appellant's home and found 156 ecstasy tablets and $1,385 in cash - appellant sentenced on the basis that he purchased tablets and then sold them to friends, using the profits to fund his own drug use - the appellant is a 27 year old man with no prior convictions and good employment history - the appellant was sentenced to imprisonment for three years, with a non-parole period of 15 months - whether sentence manifestly excessive.

Held per the Court (allowing the appeal) - appeal allowed and sentence set aside -sentence was manifestly excessive - appropriate starting point before discount for plea was two to two and a half years imprisonment - new sentence fixed at one year and five months after discount of 30 per cent for early plea and taking off the two months served pending appeal - given the appellant's good prospects of rehabilitation, sentence suspended upon the appellant entering into a bond in the sum of $100 to be of good behavior for a period of three years.

Controlled Substances Act 1984 (SA) s 32, referred to.

R v WEATHERILL
[2015] SASCFC 113

Court of Criminal Appeal:  Gray ACJ, Vanstone J and David AJ

1. THE COURT:  The appellant pleaded guilty in the Magistrates Court to trafficking in a controlled drug, namely MDMA (ecstasy).  A police search of his home found some 156 ecstasy tablets together with $1,385 in cash.  The total weight of the substance was about 45 grams and that contained just over 4 grams of pure MDMA.  Evidence before the sentencing judge suggested that the tablets were worth about $2,500 to $3,000 if sold in small quantities.  He was sentenced on the basis that he purchased the drugs and then sold them to his friends with the profits funding his own drug use.

2. The judge took a starting point of about 4 years and 5 months and gave the appropriate discount of 30 per cent on account of the early plea of guilty.  He fixed a head sentence of 3 years imprisonment and a non-parole period of 15 months.  He then considered whether there was good reason to suspend and found that the seriousness of the offending and the need to reflect personal and general deterrence outweighed the matters put on behalf of the appellant.

3. The appellant is a 27 year old man.  At the time of his offending he was about half way through a degree course in engineering at the Adelaide University.  He had a good employment history in the hospitality industry.  He had not previously been convicted for any offence.

4. The maximum penalty for this offence is a fine of $50,000 or 10 years imprisonment or both: s 32(3) of the Controlled Substances Act 1984 (SA). The basis upon which the appellant was sentenced was that the single count represented a course of conduct extending back over the six weeks preceding arrest. The appellant’s conduct came to police attention because of his dealings with another man who was more heavily involved in the illicit drug industry. About ten persons were arrested following that police investigation.

5. It was put to the sentencing judge that the appellant enjoyed good prospects of rehabilitation, particularly having regard to the fact that his role in this offence was restricted to supplying friends, that he had strong family support and that his future was promising.  It was submitted that he was contrite and embarrassed by what had occurred.

6. We consider the complaint that the head sentence is manifestly excessive is made out.  In our judgment this offending was at the lower end of the scale of offending encompassed by the maximum penalty we have mentioned.  The offending was confined to the appellant’s own friendship group and was designed to subsidise his own drug habit.  In our view the starting point used by the judge of 4 years and 5 months was appropriate to an offence of greater seriousness.  A head sentence of two to two and a half years, before discount for the plea, was indicated.  That is the only ground upon which we would allow the appeal.  The other matters relied upon by the appellant’s counsel are, in our opinion, matters of expression only and are not indicative of error.

7. We would allow the appeal and set aside the sentence.  In fixing a different sentence we would take a starting point of two years and three months.  We would apply a discount of 30 per cent, giving a term of one year and seven months.  Against that term we would fix a non-parole period of ten months.  In the appellant’s good prospects of rehabilitation we find there is good reason to suspend the sentence.  In light of that we would deduct from both the head sentence and the non-parole period a period of two months, being the period already served.  That leaves a sentence to be imposed of one year and five months imprisonment with a non-parole period of eight months.

8. We would suspend the sentence upon the appellant entering into a bond in the sum of $100 to be of good behaviour for a period of three years.  As a term of that bond we would require the appellant to be under the supervision of a community corrections officer for the first year of that period.