Rinaldi v The Queen

[2021] SASCFC 6

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

RINALDI v THE QUEEN

[2021] SASCFC 6

Judgment of The Court of Criminal Appeal  

(The Honourable Justice Kelly, the Honourable Justice Parker and the Honourable Justice Doyle)

4 February 2021

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

Appeal against sentence. 

The appellant pleaded guilty to two counts of trafficking in a controlled drug contrary to s 32 of the Controlled Substances Act 1984 (SA) and three counts of property damage.

The two counts of trafficking related to quantities of methylamphetamine located in the appellant’s possession on 29 August 2018 and 18 April 2019. The second offence was committed while the appellant was on home detention bail.

The three counts of property damage concerned damage caused to a motor vehicle by the appellant and the appellant smashing a glass door of a unit. 

The sentencing Judge fixed one sentence for all offences. The appellant was sentenced to imprisonment for a period of six years, with a non-parole period of three years. During sentencing, the Judge remarked that the first offence was more serious than the typical first offence of a trafficker who deals in drugs to support his or her habit. The second trafficking offence was deemed even more serious as it was committed while on home detention bail.

The appellant appeals against the sentence on two grounds:

1.      The sentence is manifestly excessive in all the circumstances.

2.      The sentencing Judge sentenced the appellant on an incorrect factual basis or, alternatively, failed to explain why his Honour so sentenced the appellant.

Held per Kelly J (Parker and Doyle JJ agreeing), dismissing the appeal:

1.      It is evident from the Judge’s remarks that the appellant was treated as an offender falling within the lower range of street level offenders motivated to a greater or lesser extent by profit.

2.      The Judge was entitled to make the observation that the second offence was more serious, as it was committed against the background of continued drug use and while the appellant was on bail.

3.      The Judge referred to all of the relevant considerations. The Judge did not sentence the appellant on an erroneous factual basis. 

4.      The head sentence and non-parole period arrived at by the Judge were within the range of sentences available for the offending. The sentence was not manifestly excessive.

Controlled Substances Act 1984 (SA) s 32; Criminal Law Consolidation Act 1935 (SA) s 85, referred to.
R v Young (2016) 126 SASR 41, discussed.

RINALDI v THE QUEEN
[2021] SASCFC 6

Court of Criminal Appeal:   Kelly, Parker and Doyle JJ

KELLY J.

1. The appellant, Christopher John Rinaldi, was charged with two counts of trafficking in a controlled drug (methylamphetamine) contrary to s 32 of the Controlled Substances Act 1984 (SA) (‘CSA’), and three counts of property damage contrary to s 85 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’).

2. On 26 August 2020, the appellant was sentenced to a head sentence of six years imprisonment. The sentencing Judge fixed a non-parole period of three years.

3. The appellant now appeals against the sentence on two grounds:

   1.The sentence is manifestly excessive in all the circumstances.

   2.The sentencing Judge sentenced the appellant on an incorrect factual basis or, in the alternative, failed to explain why his Honour so sentenced the appellant.

4. The appellant abandons the third ground that contends that the sentencing Judge erred in failing to consider the principle of totality in imposing sentence.

5. A Judge of this Court granted permission to appeal on ground 2. The question of permission to appeal on ground 1 was referred to the Full Court given its relationship to ground 2. 

   Background

6. On 29 August 2018 at Kilburn, police officers found the appellant in possession of 5.12 grams of methylamphetamine, which was 66 per cent pure. The methylamphetamine was located inside a satchel together with drug paraphernalia including a small pocket knife, digital scales, a small container holding a white crystal residue and empty plastic resealable bags. The appellant was also in possession of $2,000 in cash, all in $50 notes.

7. Following his arrest for that offending, the appellant was released on home detention bail. In March 2019, the appellant breached his bail conditions by removing his home detention monitoring bracelet.  

8. On 18 April 2019, after a brief stint in custody and while subject to home detention conditions, the appellant committed the second trafficking offence. During a search of the appellant’s room, police officers found 6.98 grams of methylamphetamine, with a purity level of 76.5 per cent. Further drug paraphernalia was located including two mobile phones, digital scales, plastic resealable bags and cash in the sum of $160.00.

9. The three counts of property damage, which formed a single course of conduct, occurred in June 2018. Two of the counts related to damage caused to a vehicle owned by Mr Moore, who was a representative of the strata corporation of the units that the appellant resided in. The third count related to the appellant smashing a glass door of a unit rented by him.   

   The appellant’s personal circumstances

10. The appellant is 31 years of age. He is single and has no children. 

11. The appellant had a fortunate upbringing, with loving and supportive parents and a good education. He left school at the age of 16 to become an apprentice to his father, who was a qualified motor mechanic. The appellant successfully worked with his father for many years, however this employment ceased around the age of 25, when the appellant’s escalating drug use meant that he had become an unreliable worker. 

12. The appellant first began using methylamphetamine socially around the age of 17. Shortly thereafter, he became addicted. By the age of 25, he was using drugs daily and commenced selling drugs to fund his addiction.

13. It is accepted that the appellant did not live an extravagant lifestyle. At the time of the second trafficking offence, he had minimal financial resources and was evicted from his unit. He had spent time ‘couch surfing’ and living in a storage facility that contained his property. He has remained in custody since that offending. During his time in custody, he has made efforts to improve himself and learned to weld.

14. Despite the offences already mentioned, the appellant does not have a significant criminal history. He has not been sentenced to imprisonment previously and had not spent any time in custody prior to these matters. However, as noted by the sentencing Judge, the appellant has been convicted of driving a motor vehicle with methamphetamine in his fluid or blood, and some minor cannabis offending. The sentencing Judge remarked that those offences were indicative of the appellant’s growing drug addiction.

15. The report of psychologist, Ms Darmenia, concluded that the appellant has a partial insight into his drug problem, but has not yet taken any positive steps to identify the factors that have maintained his addiction to methylamphetamine.

    The sentence

16. In determining the appellant’s sentence, the sentencing Judge took into account the submissions of counsel, the appellant’s criminal history, a report from a psychologist, and a letter of support from the appellant’s father. The sentencing Judge also had regard to the appellant’s personal circumstances, which have been set out in this judgment.  

17. The appellant was sentenced on the basis that his principal reason for the drug offending was to support his drug habit. In relation to the property damage matters, he was sentenced on the basis that he committed those offences ‘out of resentment at being evicted’.

18. Of significance to this appeal, the sentencing Judge remarked: 

    Any offence of trafficking in methylamphetamine is serious. In your case, the first of these two offences is more serious than the typical first offence of a trafficker who deals in the drug to support his or her habit. You were in possession of a significant amount of the drug and a considerable amount of cash. Further, you continued to use the drug after being arrested for that first offence.

    The second offence is even more serious. You committed that offence while on home detention bail for the first offence.

19. Although his Honour fixed one sentence for all offences, he outlined the sentences that would have been fixed if the sentences were separate.

20. For the trafficking offence committed on 29 August 2018, the appellant would have been sentenced to four years imprisonment. The sentencing Judge would have allowed the full available 10 per cent deduction, due to the appellant’s guilty plea.

21. For the second trafficking offence, committed on 18 April 2019, the sentencing Judge would have imposed a sentence of four years and six months imprisonment. His Honour would have afforded the appellant the full 20 per cent discount on account of his guilty plea. 

22. For the three counts of property damage, the sentencing Judge would have sentenced the appellant to imprisonment for one month. His Honour would have allowed the full discount of 30 per cent.

23. Overall, the sentencing Judge would have sentenced the appellant to imprisonment for seven years, three months and three days. However, his Honour gave the appellant credit for the six months and two days he spent in custody, and one month spent on home detention bail.

24. In addition, as the offences were committed ‘under the umbrella of [the appellant’s] serious drug addiction’, the sentencing Judge allowed some concurrency. In doing so, the sentencing Judge reached the conclusion that the appellant should be sentenced to six years, backdated to 9 May 2019. 

25. In fixing a non-parole period of three years, the sentencing Judge considered the appellant’s prospects of rehabilitation and the seriousness of the offending.

26. I now turn to discuss the grounds of appeal.

27. Given that the appellant fairly conceded in argument that the gravamen of the appellant’s complaint on appeal lies in the particular complaints outlined in support of ground 2, I will commence with a discussion of that ground first. 

    Ground 2 – Did the Judge sentence on an erroneous factual basis?

28. This ground may be fairly summarised as a complaint that the Judge erroneously characterised the appellant’s offending as higher on the scale of objective seriousness than the facts, properly viewed, could justify. 

29. In the alternative, it was contended that the Judge failed to explain why it was that he assessed the first offence committed by the appellant as ‘more serious than the typical first offence of a trafficker who deals in the drug to support his or her habit’. 

30. This ground of appeal necessitates a consideration of this Court’s observations in R v Young.[1] 

    [1] (2016) 126 SASR 41.

31. In order to properly consider this complaint, it is necessary to refer to the factual basis underpinning the sentence. The relevant facts are set out at paragraphs [6]-[9] of this judgment. It is important to note that there was little complaint made about the factual basis on which the Judge imposed the sentence.  The appellant’s complaint was really directed to the overall characterisation of the offending by the Judge. 

32. During sentencing submissions, the prosecution had submitted that the cash found in the appellant’s possession on 29 August 2018 potentially reflected the sale of up to 10 grams of the drug.  The quantity of methylamphetamine located in the appellant’s possession could have sold for between $1,000 and $2,500, depending on the quantities in which it was sold.

33. In support of the argument that the Judge’s starting point for the first sentence should have been lower, counsel for the appellant pointed to the following aspects of the offending which he contended the Judge failed to properly take into account:

    ·The relatively small quantity of the drug in the appellant’s possession actually available for sale when taking into account the undisputed fact that the appellant was a significant user consuming up to 0.5 grams per day. 

    ·The absence of any evidence of conspicuous unexplained wealth. This supports the submission that the appellant was merely a small-time dealer who did not gain any tangible benefit from trafficking in illicit substances.

    ·When taking into account the above considerations, $2,000 in cash was no more than might be expected of a dealer in the appellant’s position, namely a user who deals to fund his drug addiction.

34. The appellant also complained that the Judge’s reference to the appellant’s continued drug use after the first offence and the fact that the second offence was committed whilst on home detention meant that there was a risk that the Judge took into account other drug offending, for which the appellant was not charged or for which he was separately convicted and punished, in reaching the sentence imposed.

35. For these reasons, the appellant submitted that the Judge’s characterisation of the offending as more serious on the scale of offending than the typical first offender has led to an error which justifies this Court setting aside the sentence and resentencing the appellant.

36. I cannot accept that submission. 

37. There is no suggestion at all in the Judge’s sentencing remarks that he took into account any offending for which the appellant was not charged.  It is evident from the Judge’s remarks that, contrary to the appellant’s submissions, he did treat the appellant as an offender falling within the lower range of street level offenders motivated to a greater or lesser extent by profit.  In making the observation that the second offence was committed against the background of continued drug use and was even more serious by virtue of the fact that it was committed whilst he was on bail for the first offence, the Judge was doing no more than making a statement of the obvious. 

38. The Judge’s remarks referred to all of the relevant considerations, including the quantity and purity of the drug found in the possession of the appellant, the accoutrements of sale and the circumstances in which the second offence was committed.  There was nothing in the report of the psychologist to suggest that considerations of both general and personal deterrence were not equally important in the sentencing of this appellant.  All of these circumstances place the appellant fairly and squarely within the range of offenders referred to by this Court in R v Young:[2] 

    [65]The offending of a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction is at the lower end of the scale of objective seriousness. Other street dealers may not use at all or may be only occasional or social users who engage in street trading primarily to fund a comfortable, usually hedonistic, lifestyle. Other street-level dealers, motivated by profit alone, may sell drugs directly to the end user but not use drugs at all.

    [66]Sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit.

    [67]There will be relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders.

    [2] (2016) 126 SASR 41.

39. Given all of the circumstances, it cannot be said that the Judge sentenced the appellant on an erroneous factual basis. 

    Ground 1 – Is the sentence manifestly excessive?

40. The first ground of appeal contends that the sentence imposed was manifestly excessive in all the circumstances. It was submitted that due to the appellant’s personal drug addiction, financial hardship, lack of motivation for profit and personal circumstances, he fell to be sentenced below the standard articulated in R v Young.[3] 

    [3] (2016) 126 SASR 41.

41. For principally the same reasons as articulated in respect of ground 2, the complaint that the overall sentence standing alone is manifestly excessive cannot, in my view, be sustained either. 

42. It was appropriate for the starting point for the second offence to be somewhat higher than the first offence given the circumstances in which it was committed.  Whilst it might be said that another judge may have made a greater allowance for concurrency in light of the appellant’s personal circumstances, that observation does not lead to the conclusion that the sentence arrived at by the Judge is manifestly excessive.  This is especially so when consideration is given to the fact that the appellant was also sentenced for a quite separate set of property offences which in themselves were quite serious. 

43. In all of the circumstances, I consider that the head sentence and non-parole period arrived at by the Judge were well within the range of sentences available to the Judge.  No error has been demonstrated. 

44. I would dismiss the appeal on both grounds. 

45. PARKER J:     I agree with the reasons of Kelly J and would dismiss the appeal on both grounds.

46. DOYLE J:       I agree with the reasons of Kelly J, and would dismiss the appeal.