R v YE

[2016] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v YE

[2016] SASCFC 82

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Bampton and The Honourable Justice Doyle)

4 August 2016

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

The appellant pleaded guilty to two counts of attempted trafficking in a controlled drug. The appellant received a 30 per cent discount in respect of both sentences on account of his early pleas of guilty. This resulted in sentences of imprisonment of two years six months and three years six months for the two offences. The sentencing judge ordered that the sentences be made partially concurrent, resulting in an overall sentence of four years three months imprisonment, with a non-parole period of two years.

The appellant appealed on the grounds that the sentence was manifestly excessive and that the sentence of imprisonment should have been suspended. In support of these grounds of appeal, the appellant contended that the sentencing judge erred by mischaracterising the offending as being more serious than a street dealer.

Held per Doyle J (Nicholson and Bampton JJ agreeing), allowing the appeal:

1.       The sentencing judge erred in characterising the appellant’s offending as being more serious than a street dealer.

2.       The sentence imposed for count 2 and the overall sentence imposed in respect of both counts were manifestly excessive.

3.       The appellant is resentenced to a single sentence of two years 10 months imprisonment, with a non-parole period of 15 months. The sentence is not suspended.

Correctional Services Act 1982 (SA) ; Criminal Law Consolidation Act 1935 (SA) s 270A; Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
House v The King (1936) 55 CLR 499; R v Mangelsdorf (1995) 66 SASR 60; R v Kong (2013) 115 SASR 425, considered.

R v YE
[2016] SASCFC 82

Court of Criminal Appeal:       Nicholson, Bampton and Doyle JJ

NICHOLSON J.

1. I agree that the appeal should be allowed for the reasons given by Doyle J and that the appellant should be resentenced in the manner proposed by Doyle J. 

2. BAMPTON J:      I agree that the appeal should be allowed for the reasons given by Doyle J.  I agree the appellant should be resentenced as proposed by Doyle J.

   DOYLE J:

3. The appellant was convicted, on his pleas of guilty, of two offences of attempted trafficking in a controlled drug contrary to s 270A of the Criminal Law Consolidation Act 1935 (SA) and s 32(3) of the Controlled Substances Act 1984 (SA).

4. The appellant received a 30 per cent discount in respect of both offences on account of his early pleas of guilty.  This resulted in sentences of imprisonment of two years six months (reduced from a starting point of three years six months) and three years six months (reduced from a starting point of five years) imprisonment for the two offences.  The Judge ordered that the sentences be made partially concurrent, resulting in an overall sentence of four years three months imprisonment.  His Honour fixed a non-parole period of two years, and declined to suspend the term of imprisonment.

5. In this appeal against his sentence, the appellant relies upon two grounds.  First, that the sentence was manifestly excessive.  Secondly, that the sentence of imprisonment should have been suspended.

   Background

6. Between November 2014 and March 2015, Australian Customs and Border Protection Services intercepted 13 parcels addressed to the appellant at the address where he lived with his parents.  The parcels each contained illicit substances.

7. This resulted in the Police attending an Australia Post Delivery Centre on 12 March 2015 to inspect a package addressed to the appellant.  Inside the package was a silver sachet containing two further sachets, one inside the other.  Inside those sachets was a brown crystalline substance which weighed 14.6g and contained 11g of pure MDMA, or ecstasy.  This was the count 1 offence of attempted trafficking in a controlled drug.

8. On 9 April 2015, the Police attended and searched the appellant’s premises.  The Police located several containers with residue of MDMA powder, and notebooks which linked the appellant to the order by post of illicit substances.

9. On 20 April 2015, the Police attended an Australia Post Delivery Centre to inspect a further package addressed to the appellant.  Inside the package were a further three packages that contained substances weighing a total of 117.82g, and containing 89.81g of pure MDMA.  This was the count 2 offence of attempted trafficking in a controlled drug.

10. The Judge found that the appellant sourced the MDMA through the darknet from various international sites, mostly in Europe.

11. There was evidence from a Police witness to the effect that the MDMA could have been worth $200 to $250 a gram.  However, the Judge accepted the appellant’s contention that he intended to sell the MDMA locally through the darknet, in bulk crystalline form and at about $130 per gram.  This would have resulted in a total of a little less than $17,000.  The Judge noted that, based on Police calculations, the quantity of MDMA in question could have been used to produce some 1,953 tablets or capsules, which at a street value of $30 per tablet could have been sold for $58,590.  The Judge said:

    Your role, however, was that of importer and wholesaler and that places you further up the ladder from the small street trader selling to end users.  You had not the slightest reason or need to commit these offences.  Essentially, you did it for the thrill and entertainment of doing so.

12. After noting the appellant’s early pleas of guilty, and entitlement to a discount of up to 30 per cent in respect of each offence, the Judge addressed the considerations relevant to the appellant’s personal circumstances.

13. The appellant was born on 14 April 1990, with the two offences straddling his 25^th birthday.  He is of above average intelligence, with no history of offending.  He was born and raised as a single child in China.  His family moved to Adelaide where he completed his primary schooling, and then attended high school.  The appellant then undertook, and completed, a degree in Mining Engineering at the University of Adelaide.  Since completing that degree he has worked as a private tutor, which involved him tutoring mainly high school students in maths, science and basic English.  By the time of his offending, this had developed to an essentially full time business. 

14. Since being arrested for the present offending, the appellant had ceased his personal recreational use of drugs and had undertaken regular therapy with a psychologist.  As explained in the report from his treating psychologist, and an additional report from a forensic psychologist, the appellant was raised in a strict family environment.  The Judge accepted that he was treated harshly in an emotional sense, and was subjected to physical punishment.  The reports made reference to the appellant having experienced bullying throughout his schooling.  This led to the appellant adopting an arrogant personality, which he thought would assist him to overcome these difficulties.  The reports also made reference to the appellant obtaining an adrenaline rush from his purchasing of drugs over the darknet.  His motivation for his offending was more the thrill of engaging in risk-taking behaviour, and a positive reinforcement and personal power, that the risks associated with his offending provided, rather than the prospect of financial reward.  To the extent that the latter was a motivation, it was so that he would have funds to display his independence.

15. A number of positive personal references were also provided to the Court.  They indicated the high regard in which the appellant was held by a range of people.

16. After referring to all of the above matters, the Judge turned to the issue of an appropriate sentence.  The Judge noted that the maximum penalty for the completed offence of trafficking in a controlled drug was $50,000 or 10 years imprisonment or both.  For an attempt to traffic a controlled drug, the sentence cannot exceed two-thirds of the maximum for the completed offence. 

17. The Judge referred to the potentially significant amounts of money that might have been made through the appellant’s activities, and the enormous harm that drugs cause to the community, with the result that general deterrence must play a significant part in the sentence to be imposed. 

18. The Judge described the offending in this case (involving attempts to import significant amounts of a harmful drug into Australia) as being serious examples of the offence in question.  The Judge added that as an importer and wholesaler, this placed the appellant above the street dealer in the scale of potential seriousness.

19. His Honour reminded himself that the appellant was only to be penalised for the offences for which he had pleaded guilty, and on the basis that his offending involved attempted rather than completed trafficking.  The relevance of the evidence of the other packages was confined to excluding the appellant from relying upon any submission in mitigation to the effect that the offences were isolated.

20. In respect of count 1, which involved 14.6g of material containing MDMA, the Judge imposed a notional head sentence of three years six months imprisonment,[1] which was reduced by 30 per cent on account of the appellant’s guilty plea to two years six months imprisonment.

    [1]    The Judge did not identify the notional starting point, but as he applied a discount of 30 per cent, and the sentence imposed was two years six months, it is to be inferred that it was three years six months imprisonment.

21. In respect of count 2, which the Judge described as the “subsequent” attempt to import 117g of material containing MDMA, the Judge imposed a notional head sentence of five years imprisonment, which was reduced by 30 per cent on account of the appellant’s guilty plea to three years six months imprisonment.

22. The Judge made the sentences partially concurrent, explaining:

    To reflect that the two offences were separate and consecutive but also part of an ongoing course of conduct, and also to reflect the overall serious level of criminality involved in attempting to import with a view to the sale, at a wholesale level, significant quantities of a very harmful drug, the two sentences will be partially concurrent.

    The sentences will therefore be partially concurrent to reflect an overall period of four years, three months imprisonment.

23. While the Judge did not say so, it can be inferred from this that his Honour made the sentence for count 2 concurrent as to one year nine months (or 50 per cent of the sentence for that offence).

24. After making a compendious reference to the matters personal to the appellant raised by his counsel, the Judge imposed a “lower than usual” non-parole period of two years.

25. The Judge declined to suspend the sentence of imprisonment.  His Honour explained:

    The court has closely considered whether there is good reason to suspend the sentences.  Regrettably, the seriousness of your offending, involving as it did consecutive attempts to traffic significant quantities of a very harmful drug at a wholesale level above that of a street dealer, seemingly just for the thrill of doing so, outweighs the matters submitted by your counsel in support of suspension, although the court has closely considered those sentencing submissions and given them the most weight the court thinks it responsibly can.

    In short, the seriousness of your offending and the importance of deterring others from this conduct in the final analysis outweighs those matters.

    Consideration

26. The appellant contends that both the terms of imprisonment and non-parole period imposed by the Judge are manifestly excessive.

27. It is, of course, necessary on an appeal against sentence to establish error in the sense required by House v The King.[2]Here the appellant contends that the Judge mischaracterised the offending.  However, the appellant also relies upon a more general contention that once proper regard is had to the combination of the true characterisation of the offending conduct, and the factors personal to the appellant (and in particular his very good prospects for rehabilitation), the overall sentence imposed is outside the range of appropriate sentences – and hence manifestly excessive or, in the language of House v The King, plainly unjust.

    [2]    House v The King (1936) 55 CLR 499 at 504-505.

28. As to the proper characterisation of the offending, the appellant acknowledges the seriousness of his offending and that the two counts could not be treated as isolated (given the evidence of 13 instances of orders being placed over the darknet).  However, the appellant’s counsel emphasised several aspects of the offending. 

29. The first is that while the two counts were particularised as having occurred on 12 March 2015 and 20 April 2015, it was significant that these were simply the dates on which the two packages in question were intercepted.  While it is difficult to be precise, the evidence suggested that both had probably been ordered back in January or February 2015.  Accordingly, this was not a case in which the appellant engaged in criminal conduct after the date of his arrest (9 April 2015) and while he was on bail.  Indeed, it was not necessarily the case that the drugs the subject of count 2 had been ordered before count 1.  All that could be said was that counts 1 and 2 were both the result of a course of conduct by the appellant in placing various orders for drugs over the darknet during the first part of 2015.

30. On this analysis, the only basis for distinguishing between counts 1 and 2 was the greater weight of MDMA involved in the latter.  The appellant contended that this difference was insufficient to explain the differential between the starting points for the two head sentences imposed by the Judge.

31. The appellant challenged the Judge’s reference to the appellant’s conduct as being that of an importer and wholesaler, and further up the ladder from that of a small street dealer.  The contention was that the concept or label of a street dealer (used in authorities such as R v Mangelsdorf[3] and R v Kong[4]) needs to be approached with caution when considering offending over the darknet.  The appellant acknowledged an intention to sell to others over the darknet, and accepted that it was possible that some purchasers might then sell to others.  In that sense, his conduct could be seen as that of a wholesaler.  However, bearing in mind the absence of any established network on the part of the appellant, and his intention to sell in 1g lots for a price which was significantly below the market value, the appellant contended that it was inappropriate to characterise his offending as more serious than that of a street trader.

    [3] R v Mangelsdorf (1995) 66 SASR 60.

    [4] R v Kong (2013) 115 SASR 425.

32. The appellant also contended that it was important to bear in mind that the offences in question were attempts, rather than completed offending.  The maximum penalty for each of the attempt offences in this case was six years eight months imprisonment, being two-thirds of the 10 years applicable for a completed offence.  The appellant pointed to the range of four to seven years imprisonment that has been applied to street dealers guilty of the completed offence, noting that two thirds of this range would give a range of between two years eight months and four years eight months for attempted street dealing offences.  While not suggesting that a mathematical analysis was appropriate, the appellant contended that reference to this range suggested manifest excess in the two starting points utilised in this case (three years six months and five years respectively).

33. Turning to the factors personal to the appellant, it was contended that the Judge overlooked the significance of these both as explanations for the appellant’s offending and also to his prospects of rehabilitation. 

34. As to the former, the appellant’s counsel emphasised the emotional and psychological difficulties the appellant had experienced by reason of his strict upbringing and the bullying and isolation he had experienced during his schooling.  These in part explained his decision to engage in, and the enjoyment or thrill he derived from, the risk-taking inherent in his offending. 

35. As to the latter, the appellant’s counsel contended that this was a case where the Court could be very confident as to the appellant’s very good prospects of rehabilitation.  In support of this, he emphasised the absence of any diagnosed personality or psychiatric disorder that might be an impediment to rehabilitation; the absence of any drug addiction on the part of the appellant; the appellant’s contrition and insight into his offending, as demonstrated through his pleas of guilty and his decision to undertake psychological therapy; and the appellant’s above average intelligence, tertiary education and consequential good prospects of gainful employment.  While accepting that the Judge mentioned these factors, and mentioned rehabilitation, the contention was that the sentence ultimately imposed reflected a failure to take adequate account of these considerations personal to the appellant.

36. Bearing all of the above in mind, it is my view that the overall sentence imposed by the Judge was outside the permissible range for the offending in question, and was thus manifestly excessive. As mentioned at the outset of these reasons, the Judge’s starting points for the two offences (prior to the discount for the pleas of guilty) were three years six months imprisonment and five years’ imprisonment, for counts 1 and 2 respectively.  Even allowing for partial concurrency, his Honour’s overall starting point was in excess of six years imprisonment.  While the head sentence for count 1, when viewed in isolation, may not have been manifestly excessive, I am satisfied that the head sentence for count 2, and the overall sentence imposed in respect of both counts, were manifestly excessive.

37. In relation to count 2, I accept the appellant’s submission that the Judge erred in characterising his offending as being more serious than that of a street dealer.  While no other error is apparent from his Honour’s reasons, having regard to the proper characterisation of the appellant’s offending, the fact that the offending in question involved attempted trafficking rather than completed offending, and the appellant’s very good prospects of rehabilitation, I am satisfied that the head sentence for count 2 is outside of the permissible range. 

38. As to the overall sentence imposed, I consider that even taking into account the partial concurrency provided for by the Judge, the total sentence imposed (four years three months imprisonment after the 30 per cent discount) is manifestly excessive bearing in mind the factors mentioned in the preceding paragraph, and that both offences occurred as part of the one course of conduct.

39. Having formed the view that error has been established, it is appropriate to exercise the sentencing discretion afresh.

40. In so doing, I propose to utilise s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose a single sentence in respect of both offences. In my view, given the lack of clarity about the relative timing of the conduct leading to the two offences, and the connection between those offences, this is an appropriate case in which to utilise that section. As it is appropriate to allow a 30 per cent discount for the guilty pleas in respect of both offences, there is no barrier to that section being used.

1. In my view, bearing in mind all of the above matters, a notional head sentence of four years imprisonment for the two offences is appropriate.  After a 30 per cent discount for the pleas of guilty, and rounding up to the nearest month, this results in a sentence of 34 months, or two years 10 months imprisonment.  I consider this adequately reflects the seriousness of the offending, being the equivalent of attempted street dealing.  While there were two counts, it is relevant that they occurred relatively close in time and as part of the same overall course of conduct.  While there are some powerful factors personal to the appellant, the need for general deterrence means that it remains necessary and appropriate to impose a significant term of imprisonment.

2. In determining an appropriate non-parole period, the factors personal to the appellant weigh more heavily at this stage of the sentencing process.  I regard the appellant’s very good prospects of rehabilitation as being particularly relevant.  I consider a relatively low non-parole period of 15 months as being appropriate and sufficient in this case.

3. Turning to the issue of whether the sentence of imprisonment should be suspended, the significance of general deterrence in drug trafficking offences (including attempt offences) will generally make suspension of the sentence inappropriate.[5]  In this case, I have taken into account both the factors personal to the appellant outlined earlier in these reasons (and in particular his very good prospects for rehabilitation), and that he has now been in custody for almost five months (such that the objective of general deterrence has been partially achieved).  However, despite these considerations, given the nature and seriousness of the offending, which involved a not insubstantial quantity of drugs, I am not satisfied that good reason exists to suspend the sentence of imprisonment that I would impose.

   [5]    R v Mangelsdorf (1995) 66 SASR 60 at 70-72, 75.

4. Finally, I note that upon indicating its readiness to hand down its decision, this Court became aware that the appellant had been administratively released on home detention on 6 July 2016.  While initially concerned that this may have been the result of confusion as to the commencement date of the sentence in the Court’s records, the Court was subsequently informed that this release occurred under recent amendments to the Correctional Services Act 1982 (SA) and not as a result of any error or irregularity. This having been clarified, it is not a matter which need further concern the Court.

   Conclusion

5. For the reasons set out, I would allow the application for permission to appeal in relation to ground 1. I would allow the appeal. Utilising s 18A of the Criminal Law (Sentencing) Act, I would impose a fresh sentence for both counts 1 and 2, being a single sentence of two years 10 months imprisonment (after a 30 per cent reduction for the guilty pleas), effective from 4 March 2016.  I would fix a non-parole period of 15 months.  I would not suspend the sentence.