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.

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.
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:
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).
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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v YE

Details

AGLC: R v Ye [2016] SASCFC 82
Case: [2016] SASCFC 82
Decision Date: 4 August 2016

CaseChat Overview and Summary

This case concerned an appeal against sentence by the appellant, R v YE, heard by Nicholson, Bampton and Doyle JJ. The dispute arose from the appellant's conviction for two counts of attempted trafficking in a controlled drug, specifically MDMA. The appellant had ordered illicit substances through the darknet from international suppliers, with Australian Customs and Border Protection Services intercepting 13 parcels addressed to him between November 2014 and March 2015. The two counts related to specific interceptions on 12 March 2015 and 20 April 2015, involving quantities of MDMA that could have yielded significant street value.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the custodial sentence should have been suspended. The appellant argued that the sentencing judge had mischaracterised the offending and that, when considered alongside his personal circumstances, the overall sentence was outside the range of appropriate sentences. Specifically, the appellant contended that the dates of interception did not necessarily reflect the timing of the orders, suggesting a less continuous course of conduct than implied, and that the difference in quantity between the two counts did not warrant the differential in head sentences.

The court acknowledged the seriousness of the appellant's role as an importer and wholesaler of a harmful drug, noting that the offending appeared to be motivated by thrill rather than need. However, the appellate court considered the appellant's personal circumstances, including his above-average intelligence, lack of prior offending, and successful career as a private tutor. The court found that the sentencing judge had erred in the characterisation of the offending and that the overall sentence was indeed manifestly excessive. The court allowed the appeal, imposing a fresh sentence of two years and ten months imprisonment, effective from 4 March 2016, with a non-parole period of 15 months, while declining to suspend the sentence. The court noted that the appellant's administrative release on home detention prior to the decision was a consequence of recent legislative amendments and did not affect the court's determination of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. The Judge found that the appellant sourced the MDMA through the darknet from various international sites, mostly in Europe. 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. 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. The appellant was born on 14 April 1990, with the two offences straddling his 25th 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

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 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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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