Schatto v The King
[2022] SASCA 129
•2 December 2022
Supreme Court of South Australia
(Court of Appeal: Criminal)
SCHATTO v THE KING
[2022] SASCA 129
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
2 December 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
The appellant appeals against conviction and sentence concerning one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
On 19 April 2020, a vehicle being driven by the appellant’s ex-wife was stopped by a police officer and a search was conducted. During the search, a mobile telephone was seized. Analysis of the contents of the mobile telephone disclosed that the applicant had provided his ex-wife with money to purchase drugs.
It was not suggested that there was any joint enterprise between the appellant and his ex-wife and there was no evidence that he would benefit financially from her drug dealing.
The conviction appeal was confined to challenging the pre-trial ruling that there was no illegality associated the search of the car being driven by the appellant’s ex-wife on 19 April 2020, together with the seizure of her mobile telephone.
The application for permission to appeal against sentence was pressed on the basis that the sentence was manifestly excessive and the sentencing judge erred in failing to find good reason to suspend or order that the sentence be served on home detention.
The Court held (as to the appeal against conviction) dismissing the appeal:
1.It is necessary that this Court assess the question of reasonableness by placing itself in the position of the police officer, armed with the knowledge of that police officer and asking whether, in those circumstances, the police officer’s suspicion was reasonably held.
2.The conducting of a search a handful of days after receiving information that Ms Schatto would be bringing drugs into the Riverland in a particular vehicle did not affect the reasonableness of the police officer’s suspicion at the time he decided to stop and search.
3.The evidence was properly admitted and the appeal against conviction should be dismissed.
The Court held (as to the appeal against sentence) granting permission to appeal and allowing the appeal:
4.That the appellant was a sworn police officer made his offending more serious than it would have been had he not been a police officer. However the offending was not committed in the course of his duties..
5.The starting point of three years and six months is manifestly excessive It is necessary to set aside the sentence and proceed to resentence.
6.A sentence of imprisonment of two years and six months is appropriate to reflect this Court’s condemnation of the appellant’s conduct. A non-parole period of 18 months should be fixed.
7.There was good reason to order suspension upon entry into a bond to be of good behaviour for 18 months pursuant to s 96 of the Sentencing Act 2017 (SA).
Controlled Substances Act 1984 (SA) s 52; Sentencing Act 2017 (SA) s 96; Summary Offences Act 1953 (SA) s 67, referred to.
Adams (a pseudonym) v The Queen [2022] SASCA 47; Bunning v Cross (1978) 141 CLR 54; Bugmy v The Queen (2013) 249 CLR 571; Davidson v The Queen [2021] SASCA 130; Einfeld v The Queen (2010) 200 A Crim R 1; Green v The Queen (2011) 244 CLR 462; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Lowe v The Queen (1984) 154 CLR 606; Maher v The Queen [2022] SASCA 54; Markarian v The Queen (2005) 228 CLR 357; McHugh v The Queen [2022] SASCA 5; Police v L-Zaibak (2004) 90 SASR 217; Pollard v The Queen (1992) 176 CLR 177; Postiglione v The Queen (1997) 189 CLR 295; Queensland Bacon Propriety Limited v Rees (1996) 115 CLR 266; Ridgeway v The Queen (1995) 184 CLR 19; R v Armistead [2019] SASCFC 85; R v Bartels [2018] SASCFC 34; R v Buckskin [2010] SASC 138; R v Dell (2016) 126 SASR 571; R v Harrap (2021) 138 SASR 569; R v Rogers (2011) 109 SASR 307; R v Ireland (1970) 126 CLR 321; R v Nguyen (2015) 248 A Crim R 398; R v Nguyen (2013) 117 SASR 432; R v Nguyen (2004) 149 A Crim R 343; R v Pilarinos [2001] VSCA 9; R v Wright [1968] VR 174; Symons v The Queen (1988) 32 A Crim R 370; Rotherham v The King [2022] SASCA 99; Zenuni v The King [2022] SASCA 106, considered.
SCHATTO v THE KING
[2022] SASCA 129Court of Appeal – Criminal: Livesey P, Doyle and David JJA
THE COURT:
Introduction
The appellant appeals against conviction and sentence concerning one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
The conviction appeal is confined to challenging the pre-trial ruling that there was no illegality associated with the search of the car being driven by the appellant’s ex-wife on 19 April 2020, together with the seizure of her Samsung mobile telephone.
The voir dire ruling concerning the search was delivered on 21 June 2022 and reasons for the ruling were published on 1 July 2022. The jury’s verdict of guilty was delivered on 29 June 2022.
The application for permission to appeal against sentence was pressed on the basis that the sentence was manifestly excessive and that the sentencing judge erred in failing to find good reason to suspend or order that the sentence be served on home detention.
On 29 September 2022, the applicant was sentenced to imprisonment for three years and six months and a non-parole period of 22 months was fixed. The appellant has been incarcerated for approximately two months.
For the reasons that follow, the conviction appeal should be dismissed but permission to appeal sentence should be granted and the appeal against sentence allowed. The appellant must be resentenced.
The circumstances of the search and the offending
At around 12.50 am on Sunday, 19 April 2020, Senior Constable Raynes observed a vehicle being driven by the appellant’s ex-wife.
Senior Constable Raynes stopped the vehicle and conducted a search. At the time the vehicle was stopped, Senior Constable Raynes was aware of the following matters:
1.In the early hours of the morning of 10 March 2020, Ms Schatto was stopped by Senior Constable Raynes whilst driving. In the vehicle was a person of interest relating to drug dealing in the Riverland area. When Senior Constable Raynes conducted a search he found that Ms Schatto had in her handbag a white crystalline substance together with a glass pipe.
2.Following 10 March 2020, a highway patrol officer again stopped Ms Schatto and conducted a drug test. Ms Schatto tested positive for drugs on an oral fluid analysis.
3.Ms Schatto was known to be associated with another person of interest relating to drug dealing in the Riverland area.
4.Senior Constable Raynes had attended a briefing with detectives on Thursday, 16 April 2020 at around 2.00 am. He received information that a quantity of methylamphetamine was being transported from Adelaide to Renmark in a blue Ford Territory being driven by Ms Schatto. Although Senior Constable Raynes and his partner maintained a lookout for vehicles entering Renmark for 90 minutes later that morning, there was no sign of Ms Schatto.
5.Three days later, on Sunday, 19 April 2020 at 12.50 am, Senior Constable Raynes was on solo uniform patrol when he observed a blue Ford Territory being driven by Ms Schatto.
Initially, Senior Constable Raynes said in his evidence at the voir dire that he had formed the requisite suspicion after seeing the name of one of the persons of interest on Ms Schatto’s mobile telephone screen as she alighted. However, under cross-examination Senior Constable Raynes conceded that he had determined to stop and search the vehicle from the moment he established that Ms Schatto was the driver.
During the course of cross-examination, Senior Constable Raynes also conceded that on 10 March 2020 he had believed that he was justified in undertaking a search purely because he knew about the history of drug use of Ms Schatto and of the person of interest with whom she was travelling.
The police officer agreed under cross-examination that, at the time of his search on 19 April 2020, he had no intelligence that Ms Schatto was on her way back from Adelaide, and the location at which she was stopped suggested that she was not travelling back from Adelaide. Indeed, he had received no further information at all regarding the movements of Ms Schatto since the early hours of 16 April 2020.
Section 52 of the Controlled Substances Act 1984 (SA) is the provision under which Senior Constable Raynes said that he acted. That section provides:
52—Power to search, seize etc
(1) Subject to this section, an authorised officer may—
(a)enter at any time any premises for the purposes of ascertaining whether the provisions of this Act, or of a licence, authority or permit granted under this Act, are being complied with or have been contravened; and
(b)if reasonably necessary for that purpose, break into or open any part of the premises, or anything in or on the premises; and
(c)for the purposes of paragraph (a) or (b), require the driver of any vehicle, the master of any vessel or the pilot of any aircraft to stop that vehicle, vessel or aircraft.
(2) While an authorised officer is in or on any premises pursuant to this section, the officer may—
(a)inspect or search the premises or any equipment or other thing on the premises;
(b)require any person to produce any books, papers or documents (including a written record that reproduces, in an understandable form, information stored by computer, microfilm or other process) or any substance, equipment or device;
(c)examine any books, papers or documents (including a written record that reproduces, in an understandable form, information stored by computer, microfilm or other process) and take extracts from any of them or make copies of any of them;
(d)examine any substance, equipment or device;
(e)take and remove from the premises samples of any substance or goods;
(f)carry out any tests;
(g)take any photographs or films or make any audio or audiovisual record;
(h)require the holder of a licence, authority or permit under this Act to produce that licence, authority or permit for inspection;
(i)if the officer suspects on reasonable grounds that an offence against this Act has been committed, seize and remove from the premises anything that the officer has reasonable cause to suspect affords evidence of the offence;
(j)give such directions as are reasonably necessary for, or incidental to, the effective exercise of the officer's powers under this Act.
…
(6) An authorised officer who is a police officer may search any person whom the officer reasonably suspects has in his or her possession any substance or equipment in contravention of this Act.
…
(9) If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may—
(a)require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and
(b)detain and search the vehicle, vessel or aircraft; and
(c)seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act.
In the course of the search conducted during the early hours of 19 April 2020, Senior Constable Raynes found in a small makeup bag a set of digital scales and a glass ice pipe. Another police officer arrived to assist. She found concealed in an area beneath the driver’s console a plastic box containing a quantity of crystalline substance which was later found to weigh 3.38 grams containing methylamphetamine.
During the same search, a Samsung mobile telephone was seized from Ms Schatto. Text messages seen on the mobile telephone during the search implicated Ms Schatto in drug trafficking. Following further analysis of the contents of the mobile telephone it was discovered that the applicant had provided his ex-wife with money for the purpose of purchasing drugs. The Director identified a transfer of $200 on 13 April and two transfers of $500 each on 14 and 15 April 2020.
Later that morning, under the authority of a general search warrant, police searched Ms Schatto’s home and found two further sets of digital scales, two broken ice pipes and two “tick lists”.
The appellant was later interviewed. There was no dispute that the appellant had transferred money to his ex-wife so that she could buy drugs. It was never suggested that there was any joint enterprise between the appellant and his ex-wife and there was no evidence that he might benefit financially from her drug dealing. Whilst he may have obtained drugs from her, no finding to that effect was made.
Before the sentencing judge and on appeal, the prosecution accepted that the appellant sent money to his ex-wife in an attempt to appease her following a difficult marital separation.
The sole issue in dispute at the trial concerned whether the appellant knew that his ex-wife would use the money he provided to buy drugs for the purposes of trafficking some of those drugs. His case was that he believed she was buying drugs for her own use. There was no dispute that his wife had a longstanding and serious addiction to methylamphetamine. The jury’s verdict demonstrated that the appellant was convicted on the basis that he knew that some portion of the drugs his former wife acquired would be trafficked to others.[1]
[1] See Symons v The Queen (1988) 32 A Crim R 370, 372 where King CJ (with whom Prior J agreed) upheld a conviction where the defendant did not intend to sell, though he was in possession of drugs knowing that the owner would supply them to another.
During sentencing, the appellant’s counsel informed the Court that the appellant had used methylamphetamine on a couple of occasions at the time of his offending.
There was also evidence of uncharged acts, involving earlier financial transfers of $1,300 and $122.50 (the latter the subject of considerable debate) between January and early April 2020. That evidence indicated that the appellant’s offending was not isolated.
The circumstances of the offender
The appellant came before the Court without any history of offending of any kind. Indeed, he was, at the time of sentence, a serving police officer, having graduated during September 2000. He worked as a police officer in various postings until he was ultimately posted to Renmark. At the time of sentence, he was caring for his mother and children in Renmark.
The appellant had been in a relationship with Ms Schatto since 2011. Together they had four children aged between 5 and 9 years of age. In 2018, they separated in what were described as acrimonious circumstances. A significant issue between them was the serious drug addiction of Ms Schatto. Because of that addiction the appellant gained full custody of their four children and, from February 2019, they were in his care 12 days each fortnight and then in the care of Ms Schatto every second weekend for two days.
Character references provided by retired police officers spoke very highly of the appellant.
The approach of the sentencing judge
The sentencing judge accepted that the appellant’s role in the offending was that he provided finance to his former wife and that banking records, text and other messages revealed that funds totalling $1,200 were transferred by the appellant between 13 and 15 April 2020.
The sentencing judge found that the appellant’s role was limited to providing finance to his ex-wife to purchase methylamphetamine knowing that at least some portion of it would be trafficked by her.
The sentencing judge accepted that the appellant’s offending was committed in the context of a complicated domestic relationship which, as mentioned, the appellant’s counsel had accepted involved trying to appease his former wife. The sentencing judge accepted that there was no joint enterprise and no evidence of the appellant taking part in the sale of the drugs acquired by his ex-wife. It was not suggested that any of the appellant’s conduct was engaged in in the course of his duties as a police officer and no allegation of corruption was made.
The sentencing judge found, however, that even on the appellant’s version of events, his conduct in assisting the mother of his four young children to buy drugs “might be thought reprehensible”. The sentencing judge said the following in the course of sentence:
You, no doubt, appreciated the wrongfulness of your conduct and the seriousness in which your involvement would be viewed and would have been well aware of the harm caused by your wife’s addiction.
Your offending was not clouded by the overwhelming urge to secure drugs to feed your own addiction.
Any level of involvement in the drug trade is serious offending and issues of deterrence must play a role in sentencing to discourage not only you, but others in the community from participating in this insidious trade.
Here, it is of significance that you committed the offending while a serving police officer. Your profession, no doubt, gave you insight into drug offending and the drug trade, and the damage it is causing to users and the community.
As a police officer, you were sworn to uphold the law and, no doubt, fully understood the nature and consequences of your involvement.
I accept that your offending will have serious consequences for you in regards to your career.
While the sentencing standard applied to street level dealing as outlined in The Queen v Young, is not directly relevant to your offending and whatever your interest was in offending as you did, this was in my view a serious offence, particularly given your position as a police officer. Providing finance for the purchase of drugs to be sold is an integral part of the drug trafficking trade and you have demonstrated no contrition.
The sentencing judge commenced with a head sentence of three years and six months imprisonment. She fixed a non-parole period of 22 months. The sentencing judge accepted that time in custody would have a significant effect on the appellant’s children, as well as on the appellant’s mother. The sentencing judge also accepted that time in custody would no doubt be difficult for a police officer.
The sentencing judge rejected the submissions that there was good reason to suspend or order that the sentence be served on home detention:
While I accept that you are someone previously of good character, the circumstances here are such that suspension of the sentence would undermine many of the purposes of sentencing, namely, to protect the safety of the community, to ensure that you are punished for the offending behaviour that you are held accountable to the community for the offending behaviour, and to publicly denounce that behaviour.
In my view, there are no proper grounds to suspend the sentence.
An order that you serve the sentence on home detention would affect, in my view, public confidence in the administration of the justice.
It is relevant to observe that the appellant’s former wife was sentenced by the judge at the same time. Because she pleaded guilty, she qualified for a reduction of up to 15 per cent. At the time of sentence, the appellant’s former wife had prior convictions for drug possession.
The offending by Ms Schatto was not isolated. The value of the methylamphetamine found in her possession had a value of between around $400 and $3,300, depending upon the way in which it was sold.
The sentencing judge accepted that the appellant’s wife was going through a difficult period at the time of her offending and that, following arrest, she had taken steps to rehabilitate.
The sentencing judge commenced with a sentence of imprisonment of four years on the basis that Ms Schatto could be described as a street level dealer who offended in order to support her addiction.
On account of her guilty plea, her sentence was reduced to three years, four months and 25 days. A non-parole period of 21 months was fixed. Over the opposition of the prosecution, the sentencing judge determined to suspend her sentence on condition that she enter into a bond to be of good behaviour for two years.
The legality of the search
There is no issue about the relevant principles concerning an evaluation of the legality of a search conducted under s 52 of the Controlled Substances Act 1984 (SA). As similar language appears in s 67(4) of the Summary Offences Act 1953 (SA), it is unsurprising that cases decided under that provision have been considered when evaluating the legality of searches conducted under the Controlled Substances Act 1984 (SA).
There was in this case no issue about whether Senior Constable Raynes suspected that Ms Schatto was in possession of a substance or equipment in contravention of the Controlled Substances Act 1984 (SA). The issue raised by this appeal is whether that suspicion was reasonable. That is, whether Senior Constable Raynes had a basis to “reasonably” suspect that Ms Schatto had in her possession any substance or equipment in contravention of the Act for the purpose of subsections 52(6) and 52(9) of the Controlled Substances Act 1984 (SA). Arguably, it may not have been sufficient if all that the police officer knew was that the vehicle had historically been associated with drugs.[2]
[2] R v Nguyen (2015) 248 A Crim R 398, [31].
Whether there exists a reasonable suspicion must usually be assessed at the time the search is conducted and the statutory powers are exercised.[3] Though it is relevant to take into account what was known to the police officer at the time the decision to search is made, if more information becomes available by the time the search is undertaken then that further information can be taken into account in order to assess the question of reasonableness. Here, however, the assessment had to be made at the time the vehicle was stopped, for that is when the exercise of statutory search powers commenced, see s 52(9)(a) of the Controlled Substances Act 1984 (SA). The judge proceeded on that basis.
[3] McHugh v The Queen [2022] SASCA 5, [7] (Kourakis CJ), [16] (Lovell JA), [17] (Doyle JA).
In R v Nguyen, the Court of Criminal Appeal emphasised that the evaluation of reasonableness must be undertaken in the context of the purpose of the statutory search powers, the civil liberties abrogated by their exercise and whether the information or material on which the suspicion arises “must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information”.[4]
[4] R v Nguyen (2013) 117 SASR 432, [22] (Kourakis CJ, Blue and Stanley JJ).
It is necessary that this Court assess the question of reasonableness by placing itself in the position of the police officer, armed with the knowledge of that police officer and asking whether, in those circumstances, the police officer’s suspicion was reasonably held.[5] It is trite that a suspicion may be based on a number of considerations where some are more significant than others.[6] To be reasonable, the suspicion must be more than “mere idle wondering”.[7]
[5] R v Nguyen (2013) 117 SASR 432, 437, [22] (Kourakis CJ, Blue and Stanley JJ).
[6] R v Rogers (2011) 109 SASR 307, [25] (Duggan J).
[7] Queensland Bacon Propriety Limited v Rees (1996) 115 CLR 266, 303 (Kitto J).
Whatever might have been said about the police officer’s views concerning the basis for a lawful search on 10 March, by 19 April 2020 Senior Constable Raynes was aware of the matters which have already been outlined at the outset of these reasons.
In response to the proposition that Senior Constable Raynes reasonably suspected that Ms Schatto had methylamphetamine or related equipment in her possession, it is suggested that though this might have been so immediately following the briefing with detectives during the early hours of 16 April 2020, by the early hours of Sunday, 19 April 2020, that intelligence was “stale”.
The appellant emphasised the absence of any information that the relevant vehicle had been “constantly, or even frequently, used to convey drugs” in a manner hypothesised in R v Nguyen.[8] According to the appellant’s argument, there was by then a lack of temporality and no direct connection between what was earlier known and what might reasonably be suspected by the time of the subject search.
[8] R v Nguyen (2013) 117 SASR 432, [24] (Kourakis CJ, Blue and Stanley JJ).
However, as was recently emphasised by this Court in Zenuni v The King, much depends upon the particular circumstances of the case.[9] In that case, the analysis was undertaken in the context of the cultivation of a marijuana crop. It was suggested that the delay between the receipt of intelligence in July and the undertaking of a search in October 2016, and the absence of any activity consistent with premises being used as part of a cannabis “grow house”, rendered the earlier information “stale”. That contention was rejected. The time over which the cultivation of a cannabis crop was likely to occur was relevant to the analysis of whether there existed a reasonable suspicion for the purposes of s 67(4) of the Summary Offences Act 1953 (SA).
[9] Zenuni v The King [2022] SASCA 106, [16], referring to McHugh v The Queen [2022] SASCA 5, [11]-[12] (Kourakis CJ, with whom Lovell and Doyle JJA agreed).
In this case, the information related to the suspicion that Ms Schatto had travelled to Adelaide to acquire drugs and that she had returned from Adelaide to the Riverland in a blue Ford Territory during the early hours of Sunday, 16 April 2020.
The fact that Ms Schatto was not detected at that time, but detected in the same vehicle three days later, could not be said to undermine the reasonableness of the suspicion that she had nonetheless sourced drugs in Adelaide and returned to the Riverland to sell them. It was immaterial whether that had occurred undetected on 16 April or during the three days prior to the search on 19 April 2020.
On the facts of this case, the conducting of a search a handful of days after first receiving information during a briefing that Ms Schatto would be bringing drugs into the Riverland area in a particular vehicle did not undermine the reasonableness of the police officer’s suspicion at the time he decided to stop and search that vehicle when it was ascertained that Ms Schatto was driving it.
In these circumstances, there is no basis to find that the judge erred or that there was no reasonable basis for the police officer’s suspicion at the time her vehicle was stopped and a search was undertaken.
The appellant argued, finally, that as the search was unlawful, the court should have exercised its discretion to exclude the evidence. The appellant relied upon statements made by the Court of Criminal Appeal to the effect that the police officer’s fundamental misconception about the basis for the exercise of his statutory search power was an important factor in support of excluding the evidence in the exercise of the discretion recognised in Bunning v Cross.[10] In this case, the appellant submitted, the conflict between the “desirable goal of bringing to conviction the wrongdoer” and the “undesirable effect of curial approval” being given to the unlawful conduct of those whose task is it to enforce the law required the exercise of the discretion in favour of exclusion.[11]
[10] R v Nguyen (2015) 248 A Crim R 398, [37], [39] (Peek, Blue and Bampton JJ).
[11] Bunning v Cross (1978) 141 CLR 54, 74 (Stephen and Aickin JJ, with whom Barwick CJ agreed).
As the contention that the search was conducted illegally has been rejected, it is not strictly necessary to address the application of the court’s discretion to exclude relevant and admissible evidence. However, where it has not been shown that Senior Constable Raynes was acting in deliberate disregard of his statutory powers, an evaluation of the competing public requirements does not suggest that, even if the search had been conducted illegally, the discretion to exclude should have been applied.[12]
[12] R v Ireland (1970) 126 CLR 321, 335 (Barwick CJ); Ridgeway v The Queen (1995) 184 CLR 19, 30-31 (Mason CJ, Deane and Dawson JJ).
The evidence was properly admitted and the appeal against conviction should be dismissed.
The appeal against sentence
The factual circumstances of the appellant’s offending, together with those concerning the offending of his former wife, have already been outlined.
Their respective sentences have already been outlined.
The appellant’s principal challenge to the sentence was mounted on the basis that it was manifestly excessive for a first-time offender who had a limited role in the trafficking conducted by another, and whose involvement was explained by the demands and stresses created by working full-time in shift work whilst caring for the four children of the marriage, caring for his mother and attempting to appease his drug-addicted former spouse in the wake of a difficult marital separation.
The appellant emphasised that the appellant was sentenced at the same time as his former spouse, who received a suspended sentence. He emphasised that the sentencing judge appeared to place great weight on the capacity of the appellant’s former wife to care for their four children. This was described in submissions as “misguided” where:
1.At the time of their separation four years earlier in 2018, the appellant had taken up the full-time care of their children because of his former wife’s serious drug addiction. The appellant’s former wife, at the time of sentence, had custody for two days each fortnight.
2.The appellant’s former wife was the principal offender who had prior drug possession convictions.
3.The sentencing judge was told by the prosecutor at the sentence hearing on 23 August 2022 that the appellant’s former wife was, at the time of sentence, before the Magistrates Court for an offence of driving whilst disqualified. It was submitted on appeal that where it was unclear whether the appellant’s former wife had a driver’s licence (or at least it was unclear whether she would continue to hold a driver’s licence) that created obvious difficulties in connection with the care of four children under the age of 10 living in a regional area where access to a motor vehicle for movement was essential.
In short, although the sentencing judge appeared to place great weight on the prospect of rehabilitation, the entrenched drug addiction of the appellant’s former wife and her role as principal offender (with prior possession convictions) demonstrated that there was disparity in their respective sentences.
There was no issue that there was a marked disparity between the treatment of the appellant and the treatment of his former wife.
For the respondent, it was submitted that this disparity was explained by the fact that the appellant fell to be sentenced as a serving police officer.
The respondent submitted that the parity principle requires that, as between co-offenders, there should be no marked disparity in sentence so as to give rise to a justifiable sense of grievance.[13] This approach is recognised as an aspect of equal justice, requiring that “like should be treated alike”,[14] together with the obvious corollary that cases which are not alike need not be treated alike.[15] Nonetheless, the existence of disparity does not, of itself, necessarily require that an appeal be allowed.[16]
[13] Lowe v The Queen (1984) 154 CLR 606, 610 (Gibbs CJ), 613 (Mason J), 623 (Dawson J).
[14] Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).
[15] Police v L-Zaibak (2004) 90 SASR 217, [12].
[16] Green v The Queen (2011) 244 CLR 462, [33] (French CJ, Crennan and Kiefel JJ), [104] (Bell J).
The respondent accepted that the appellant was sentenced more harshly than his former wife and, by implication, more harshly than he might have been had he not been a police officer. The question for this Court is whether the circumstances of the appellant’s offending, together with his otherwise favourable circumstances, warranted the sentence which was imposed because he was at the time of his offending a sworn police officer.
When undertaking that evaluation it is not sufficient for this Court to merely conclude that a different sentence should have been imposed. The question is whether the sentence is markedly higher than should have been imposed.[17] This Court cannot intervene unless the sentence is shown to be unreasonable or plainly unjust.[18]
[17] Hili v The Queen (2010) 242 CLR 520, [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Bugmy v The Queen (2013) 249 CLR 571, [24] (The Court).
[18] House v The King (1936) 55 CLR 499, 504-505, 507 (Dixon, Evatt and McTiernan JJ); Markarian v The Queen (2005) 228 CLR 357, [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
The respondent referred to decisions which have recognised the high standards applied to serving police officers who have committed criminal offences. Reference was made to cases such as R v Buckskin,[19] and R v Harrap.[20] What those cases had in common, however, was that the offending by a police officer and a judicial officer was committed in the course of their duties. In those circumstances, it is understandable that the courts have recognised that the breach of trust associated with the commission of criminal offending in the course of public duties should “ordinarily attract a substantial penalty”.[21]
[19] R v Buckskin [2010] SASC 138, [34], [50] (Nyland and Gray JJ).
[20] R v Harrap (2021) 138 SASR 569. See also R v Bartels [2018] SASCFC 34.
[21] R v Buckskin [2010] SASC 138, [50] (Nyland and Gray JJ).
However, R v Harrap also concerned offending by a judicial officer which was not committed in the course of his judicial duties. That offending related to persuading his domestic partner and his clerk each to permit him to nominate them as the driver of his vehicle so that he would not lose demerit points for his driving offences. Mr Harrap was charged with, and pleaded guilty to, two counts of deception in relation to that conduct. In the course of his reasons, Kourakis CJ accepted that any serious offence committed by a judicial officer “undermines confidence in the integrity of the judiciary” before concluding that:[22]
Despite the gravity of the deception offences, the sentences imposed are substantially longer than the sentences which would generally be imposed on offenders who are not judicial officers, law enforcement officers or legal practitioners. The severity of Mr Harrap’s sentence is more than that which can be justified by the circumstance that he held judicial office.
[22] R v Harrap (2021) 138 SASR 569, [17] (Kourakis CJ).
The appellant’s role as a serving police officer was relevant to sentence in this case in several ways.[23] As a serving police officer, the appellant was better informed than many members of the community about the dangers associated with drug dealing. The appellant had a clear understanding of the seriousness of his offending together with the widespread harm caused by the dissemination and use of illegal drugs in our community.
[23] R v Wright (No 2) [1968] VR 174, 181 (Winneke CJ, Gillard and McInerney JJ), after referring to the police officer’s oath the Full Court said “it is … impossible to say that it is irrelevant to take into account the fact that the applicant was a member of the Force”. See also R v Pilarinos [2001] VSCA 9, [15] (Chernov JA, with whom Callaway and Buchanan JJA agreed); R v Nguyen (2004) 149 A Crim R 343, [39]-[45] (Spigelman CJ, with whom Barr and Hoeben JJ agreed).
In addition, it must be remembered that the appellant contributed financially to his wife’s drug addiction and, through her, indirectly to the addiction of others.
These features of the appellant’s offending were relevant to his moral culpability and to deterrence.
Though not committed in connection with the performance of his duties, the appellant’s offending represented a serious failure to adhere to his oath to uphold the law and to protect the community. Participation in drug trafficking, even to the limited extent established, undermined the community’s expectations of and confidence in our police force.
These features of the appellant’s offending warranted condemnation and were relevant to general deterrence.[24]
[24] R v Nguyen (2004) 149 A Crim R 343, [43] (Spigelman CJ, with whom Barr and Hoeben JJ agreed), “the object of denunciation is entitled to greater weight in the sentencing exercise than it is in the case of other offenders”.
Accordingly, the fact that this offending was committed by a sworn police officer made it “more serious” than if it was committed by someone without the training and experience of a police officer, sworn to uphold the law.[25]
[25] R v Harrap (2021) 138 SASR 569, [115] (Lovell JA) and [145] (Livesey JA).
Though the fact that the appellant was a sworn police officer rendered his offending more serious than it might otherwise have been, there was a corresponding need to guard against “accentuated sensitivity” concerning this element. As was said when sentencing a lawyer: just as it is necessary to avoid the perception that “members of the legal profession … protect their own”, so it is necessary to avoid dealing “more harshly than … appropriate with those from within their own ranks who transgress”.[26]
[26] Einfeld v The Queen (2010) 200 A Crim R 1, [80]-[83] (Basten JA), cited with approval in R v Harrap (2021) 138 SASR 569, [79] (Kourakis CJ), [145] (Livesey JA).
This is not a case, as the sentencing judge recognised, to which the sentencing guidance provided by the Court of Criminal Appeal in R v Young applied directly. Indeed, the offending was qualitatively different to the ordinary case where the defendant is a street-level dealer. Here the defendant merely provided limited finance, and in the circumstances accepted as the basis for sentence, this represented significantly less culpable offending than the typical R v Young case.
Insofar as the respondent relied upon cases such as Davidson v The Queen[27] and Maher v The Queen,[28] those were cases where the offenders had pronounced, lengthy criminal histories. Even allowing for the appellant’s status as a serving police officer, together with the absence of any reduction in sentence for a guilty plea and the evident absence of contrition, it is difficult to understand why the appellant was treated so much more harshly than the principal offender, his estranged wife.
[27] Davidson v The Queen [2021] SASCA 130.
[28] Maher v The Queen [2022] SASCA 54.
Whilst it was necessary for the Court to mark its condemnation of what the sentencing judge rightly described as reprehensible conduct by the appellant, it was also necessary that the sentence reflect that the offending occurred over a period of three days in stressful circumstances, and where the appellant was providing inappropriate appeasement to his drug-addicted former spouse.
It was also appropriate for the sentencing judge to have regard to the likely hardship caused to the appellant and his dependents, where he provided care to his mother and he was the principal carer for his four young children.[29] That issue could not be swept aside by effectively favouring the appellant’s estranged spouse on the assumption that she could adequately care for their children.
[29] Adams (a pseudonym) v The Queen [2022] SASCA 47.
In all of these circumstances, the starting point of three years and six months is manifestly excessive. That is sufficient to identify material error in the exercise of the sentencing discretion. It is, accordingly, necessary to set aside the sentence and proceed to resentence. It is not necessary to separately determine whether the sentencing judge erred in failing to find good reason to suspend or order home detention.
On resentence, it is necessary to take into account the serious and insidious harm caused by drug trafficking and the use of illicit drugs in the community. No assistance, however limited, should be provided to those who are willing to deal with the criminals who procure and distribute controlled drugs throughout the community. And, whilst the appellant came before the Court as a first offender acting in difficult and stressful circumstances, those mitigatory features were counter-balanced by his employment as a serving police officer and the fact that his offending was not isolated.
In setting sentence, it is also necessary to recognise that the appellant’s career as a police officer exceeding 20 years is now at an end.
The appellant has served two months and three days in prison. That time spent in custody must be taken into account when setting a head sentence and fixing a non-parole period.
A sentence of imprisonment of two years and six months is appropriate to reflect this Court’s condemnation of the appellant’s conduct. Given the appellant’s favourable personal circumstances and the likely hardship caused to him and his dependents, a non-parole period of 18 months should be fixed. By reason of the time spent in custody, that sentence becomes two years, three months and 27 days and the non-parole period becomes 15 months and 27 days.
The next question for this Court is whether there is good reason to suspend that sentence under s 96 of the Sentencing Act 2017 (SA).
The respondent referred to cases such as R v Armistead[30] and Rotherham v The King.[31] In those cases, the appeal courts upheld the refusals to suspend. However, each case concerned demonstrably more serious conduct than this case, though neither involved a serving police officer.
[30] R v Armistead [2019] SASCFC 85.
[31] Rotherham v The King [2022] SASCA 99.
Having regard to the decisions such as R v Dell[32] and R v Filipponi,[33] this is not the case of “serious drug trafficking” of the “traditional” kind which was evaluated in those cases and where the requirements of deterrence and punishment precluded both a suspended sentence and home detention. Rather, this is the kind of case that Kourakis CJ described in R v Filipponi as trafficking which fell “at the very lower end of the range of objective seriousness” which, when combined with the appellant’s good prospects for rehabilitation, “may attract a favourable exercise of the discretion”.[34]
[32] R v Dell (2016) 126 SASR 571.
[33] R v Filipponi (2016) 126 SASR 464.
[34] R v Filipponi (2016) 126 SASR 464, [37]-[38] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed).
In these circumstances, there is good reason to order suspension pursuant to s 96 of the Sentencing Act 2017 (SA). The appellant’s sentence of imprisonment will be suspended upon his entry into a bond to be of good behaviour for eighteen months.
Conclusion
The appeal against conviction must be dismissed. The appellant has not demonstrated that the search of his former wife’s motor vehicle was conducted illegally.
The appellant should be granted permission to appeal against sentence and the appeal against sentence allowed. The sentence was manifestly excessive and must be set aside. The appellant will be resentenced in the manner proposed.
The new sentence and non-parole period will commence today.
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