Sydenham v The Queen

[2020] SASCFC 114

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

SYDENHAM v THE QUEEN

[2020] SASCFC 114

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Peek)

2 December 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE

Appeal against the sentence imposed upon conviction of manufacturing methylamphetamine.

On 28 June 2014, police found equipment capable of manufacturing methylamphetamine in a suburban home, however no production had yet commenced.  The appellant’s part was to supply the principal offender with filter papers, which were intended to be used to manufacture methylamphetamine.

The Judge imposed a head sentence of one year, 10 months, one week and two days.  The head sentence was derived from a higher notional sentence of two years and six months from which the Judge deducted four months on account of the appellant’s plea of guilty and to allow for time spent on home detention bail.  The Judge set a non-parole period of one year, five months, three weeks and five days.

The appellant appeals on nine grounds.  The appellant appeals primarily on the ground that the sentence was manifestly excessive having regard to his very minor participation in the proposed manufacture.

Held per Kourakis CJ (Kelly and Peek JJ agreeing), refusing permission to appeal and dismissing the appeal:

As to Ground 1:

1.  The sentence was relatively low for the offence of taking part in the manufacture of methylamphetamine.  Strongly deterrent sentences are required to deter persons from engaging in enterprises of this kind.

2.  Ground 1 is not arguable and permission to appeal is refused.

As to Ground 2:

3.  There is no indication that the Judge was influenced by his asides concerning the earlier appeal process in fixing the sentence.

4.  Permission to appeal is refused on Ground 2.

As to Ground 3:

5.  The Judge understood that no methylamphetamine had yet been produced.

6.  Ground 3 has no merit and permission to appeal is refused.

As to Ground 4:

7.  It is not an appealable error for a judge to place more weight on a particular consideration than the weight which other judges might place on them.  In any event, there was every reason to give general deterrence and person deterrence relatively greater weight in sentencing the appellant.

8.  Ground 4 is not arguable and permission to appeal is refused.

As to Ground 5:

9.  It is not a mitigating factor that the appellant complied with bail conditions as the appellant is expected to comply with the law and with the orders of the Court.

10.  Ground 5 is not arguable and permission to appeal is refused.

As to Ground 6:

11.  There was no good reason to suspend the sentence and a suspended sentence would have been manifestly inadequate. 

12.  Ground 6 is not arguable and permission to appeal is refused.

As to Ground 7:

13.  The appellant’s offending and personal circumstances were, as the Judge observed, precisely the circumstances contemplated by the serious repeat offender provisions.

14.  Ground 7 is not arguable and permission to appeal is refused.

As to Grounds 8 and 9:

15.  There is no mitigating reason for the late guilty plea and barely sufficient cause to make any deduction for the time the appellant had spent on home detention bail or for his guilty plea.  No better purpose would have been served by separately identifying the very small reductions allowed for home detention and the late guilty plea, respectively.

16.  Permission to appeal is refused on Ground 8.

17.  The appeal is dismissed on Ground 9.

Sentencing Act 2017 (SA) ss 53, 54; Criminal Law (Sentencing) Act 1988 (SA) s 10C, referred to.

SYDENHAM v THE QUEEN
[2020] SASCFC 114

Court of Criminal Appeal:       Kourakis CJ, Kelly and Peek JJ

1. KOURAKIS CJ:  The appellant, Mr Sydenham, appeals against the sentence imposed in the District Court on 4 September 2020 upon his conviction of manufacturing methylamphetamine.  The Judge imposed a head sentence of one year, 10 months and one week and two days.  The head sentence was derived from a higher notional sentence of two years and six months from which the Judge deducted four months on account of the appellant’s plea of guilty and to allow for time spent on home detention bail.  The Judge set a non-parole period of one year, five months, three weeks and five days.

2. Mr Sydenham’s offending can be described in short compass.  On 28 June 2014, police found equipment capable of manufacturing methylamphetamine in a suburban home.  However, the chemical processes of production had yet to commence.  Mr Sydenham’s part was to supply the principal offender, who was never brought to trial, filter papers ordinarily used to brew coffee, knowing that the principal intended to use them to manufacture methylamphetamine.

3. Mr Sydenham had been earlier sentenced by another Judge of the District Court on 8 April 2019.  Mr Sydenham had pleaded guilty on the second day of a trial presided over by that Judge following a voir dire hearing and after evidence had been taken on the trial proper.  On that occasion, the Judge imposed a sentence of two years after taking into account the time Mr Sydenham had spent on home detention bail and his, albeit late, guilty plea.  By reason of his conviction and sentence, Mr Sydenham became liable to serve the balance of the unexpired parole period to which he was then subject, resulting in a total period of imprisonment of two years and nine months.  It was not brought to the first Judge’s attention that Mr Sydenham was a serious repeat offender requiring therefore a non‑parole period of at least four‑fifths of the sentence of two years.  The Judge fixed a non-parole period of one year and six months.  The first Judge sentenced Mr Sydenham on the basis that he had participated by not only purchasing the filter papers, but also by ‘in the past [assisting] the occupant of the premises, Mr Sinclair, to manufacture methylamphetamine’.  The submissions before the first Judge were to the effect that Mr Sydenham had assisted Mr Sinclair on other occasions on which methylamphetamine had been produced.  On appeal against that sentence, the prosecution conceded that there was no past manufacture that properly formed part of the charge to which Mr Sydenham pleaded guilty because it was accepted that those earlier manufacturing processes had come to an end, and the filters were to be used in the future in a new process which was yet to commence.  Accordingly, the first Judge’s sentence was set aside and the matter was remitted to the District Court for re‑sentencing.

4. Mr Sydenham appeals primarily on the ground that the sentence was manifestly excessive having regard to his very minor participation in the proposed manufacture.  I would dismiss the appeal.  In supplying the filters, Mr Sydenham facilitated and encouraged serious drug offending.  Penalties imposed for offences of that kind must be sufficient to deter those who assist the principal offender in any way.  The less the assistance provided to principal offenders, the more must they expose themselves to detection and the more likely they are to think twice about the wisdom of proceedings.  A much heavier sentence would have been warranted if Mr Sydenham had provided greater assistance.

   Antecedents

5. Mr Sydenham was born on 16 January 1982.  He is now 38 years of age.  He left school at year 10, having been hampered by learning difficulties.  He has worked as a tiler and in his parents’ auto‑parts business.  He had a troubled relationship with his wife.  They separated in 2016.  His daughter was born in June 2017 when he briefly resumed his marital relationship after a period of imprisonment.  Mr Sydenham does not care for her. 

6. Mr Sydenham has a history of polydrug abuse, including heroin, cannabis and methylamphetamine from when he was a teenager.  The psychologist who provided a sentencing report to the Court found that Mr Sydenham has character traits consistent with an antisocial personality disorder.  He had a long history of impulsivity and poor planning.

7. Whilst on home detention bail Mr Sydenham received treatment from a psychologist and attended programs to address his drug addiction.  He showed no real commitment to undertake rehabilitation programs and procrastinated.  Whilst on home detention, Mr Sydenham continued to perform some voluntary work with his parents’ auto parts business.

8. Between 2001 and 2011 Mr Sydenham appeared in Court for a range of offences, including possessing heroin and assault with intent to rob for which he was imprisoned for three years.  He was also convicted of possessing a firearm without a licence for which he received a suspended period of imprisonment. 

9. In May 2012, he was sentenced to three years and six months’ imprisonment for the manufacture of methylamphetamine and several other offences, all of which were committed between 2009 and 2011.  He was also ordered to serve the earlier suspended sentence for the firearms offence.  A non‑parole period of one year and six months was fixed. 

10. Mr Sydenham was arrested again on an offence of manufacturing methylamphetamine and possessing prescribed equipment on 16 April 2015.  He pleaded guilty and on 9 February 2016 was sentenced to imprisonment for just over 12 months for that offence whilst on bail for the subject offence.  The sentence and the non-parole period of nine months and two weeks was fixed from 19 August 2015.  In February 2018 Mr Sydenham was convicted of four offences of failing to comply with his bail agreement but was discharged without penalty.

11. Mr Sydenham was released on home detention bail in April 2020 pending his appeal against the sentence imposed in March 2019 and remained on home detention bail following the appeal in which that sentence was set aside, until he was re‑sentenced.

    The Sentencing Remarks

12. On 25 occasions Mr Sydenham breached the bail condition which required him to keep the monitoring anklet charged.  He tested positive for methylamphetamine on five occasions.  There were five failures to provide a sample when requested and two failures to attend for supervision.  The Judge correctly described Mr Sydenham’s compliance with home detention bail as very poor and as exhibiting ‘a pattern of noncompliance with home detention bail conditions’.  The Judge noted that some breaches occurred after Mr Sydenham’s sentence was set aside on appeal.

13. The Judge correctly stated that Mr Sydenham was not to be resentenced for his past wrongdoing.  However, his persistent offending necessarily informed the degree of leniency which could be afforded to him on sentencing for the subject offence.  The essential reasoning of the Judge in imposing the sentence which he did, appear in the following paragraphs:

    I propose to take a slightly different approach.  I propose to give a composite allowance for those two things, guilty plea and home detention, so my starting point and the previous judge's starting points for that reason are not comparable.  Moreover, since the previous sentence the defendant has further breached bail conditions, namely the bail granted in the Supreme Court.

    When I give this matter my own careful independent consideration, I consider an appropriate starting point is a sentence of two-and-a-half years imprisonment.

    Notwithstanding the defendant is not entitled to any statutory discount, I shall allow a very modest discount for his guilty plea during trial.  I have a discretion as to whether I make any, and if so what allowance for home detention bail.  He has spent an unusually long time on home detention bail.  As against that, his performance has been very poor.

    For his belated guilty plea and lengthy time on home detention bail, punctuated by repeated noncompliance and by further serious offence of this same type, I give a composite discount of four months.  I also give credit for the three months and 22 days in custody.  This results in a head sentence of one year, 10 months, one week and two days.  I set a non-parole period of one year, five months, three weeks and five days.

    I consider there is plainly no good reason to suspend that sentence.  The defendant has demonstrated a longstanding disregard for the law and has been a persistent offender with repeated offences of this type.

    This offence was in breach of parole and bail. Whilst on bail for this offence, he has committed a further similar offence.  It would send entirely the wrong message, in terms of both general and personal deterrence to suspend the sentence.  Home detention, in my view, is not an appropriate outcome in this matter for the same reason.  Not only are suspension and home detention plainly and entirely inappropriate outcomes in this matter, in any event the court could have absolutely no confidence that the defendant would comply with the terms of either.

    The head sentence and non-parole period will commence forthwith.  I order forfeiture of the relevant drugs and equipment.

    The grounds of appeal

14. Mr Sydenham has appealed on nine grounds.  I will deal with each in turn. 

15. Ground 1 complains that the sentence was manifestly excessive.  On this ground, Mr Sydenham primarily complains that, having regard to his ‘minimal involvement’, the periods he has already spent in custody or on home detention rendered the sentence imposed by the Judge manifestly excessive.  There is no merit whatsoever in this ground.  The sentence was a relatively low sentence for the offence of taking part in the manufacture of methylamphetamine.  Even though Mr Sydenham played a small part, strongly deterrent sentences are required to deter persons from engaging, in any way whatsoever, in enterprises of this kind.  The distribution of methylamphetamine causes much personal grief for addicts and major social disruption and loss.  If Mr Sydenham had received a substantial benefit or participated more significantly, the penalty is likely to have been much greater.  Moreover, Mr Sydenham’s persistent involvement in the manufacture of methylamphetamine increased the relative weight of personal deterrence in his sentencing.  It also much reduced the prospect of his rehabilitation.  The ground is not arguable and I would refuse permission to appeal.

16. Ground 2 complains that the sentence imposed by the Judge was influenced by an irrelevant consideration, namely, the Judge’s objections to the prosecution concession, accepted by the Court of Criminal Appeal, that the first Judge had sentenced Mr Sydenham for his participation in earlier, completed, offences.  There is no indication at all that the Judge was influenced by his, admittedly unnecessary, asides concerning the earlier appeal process in fixing the sentence which he imposed.  The Judge appears to have enjoyed ‘stirring the possum’ but there was no animadversion to Mr Sydenham in it and no reason to suspect that it influenced the sentence imposed.  I would refuse permission to appeal. 

17. Ground 3 complains that the Judge mischaracterised Mr Sydenham’s offending by stating that ‘the seriousness of this type of offence lies in taking a role in the production of deleterious and very addictive drug’.  This ground is both semantic and pedantic.  The Judge was not saying that any methylamphetamine was actually produced.  It is clear from the preceding sentences of the Judge’s reasons that no methylamphetamine had yet been produced.  His Honour well understood that.  It is for that reason that his Honour explained that there was no way of predicting the quantity of methylamphetamine which might have been manufactured.  It was for that reason too that the Judge explained that he would sentence on the basis that there was ‘no commerciality’, by which I take the Judge to mean that it could not be known whether a sufficient amount would have been manufactured to leave a surplus over personal use to turn a profit.  The ground has no merit whatsoever.  I would refuse permission to appeal.

18. Ground 4 complains that the Judge placed excessive weight on general and personal deterrence.  It is not an appealable error, which vitiates the sentencing discretion, for a judge to place more weight on a particular consideration than the weight which other judges, or the Court of Criminal Appeal, might place on them.  In any event, as I have already observed there was every reason to give both general deterrence and personal deterrence relatively greater weight in sentencing Mr Sydenham.  The ground is not arguable and I would refuse permission to appeal.

19. Ground 5 complains that the Judge did not balance Mr Sydenham’s noncompliance whilst on home detention bail with those periods and occasions on which he did comply with it.  This ground too is not arguable.  Mr Sydenham was expected to comply with his bail.  It is not a mitigating factor to comply with the law and with the orders of the Court.  In this case, the nature of Mr Sydenham’s breaches and their frequency left the Judge with no sound basis on which to evaluate the degree to which the home detention bail was much of a privation.  Moreover, the pervasive non‑compliance did not bode well for Mr Sydenham’s future rehabilitation.  I would refuse permission to appeal.

20. Ground 6 complains that the Judge erred in not wholly or partially suspending the sentence of imprisonment.  This ground is not arguable.  There was no good reason to suspend the sentence.  Indeed, a suspended sentence would have been manifestly inadequate.  Mr Sydenham had been given the opportunity of rehabilitative sentences in the past and failed to take advantage of them.  He committed the subject offence whilst on parole.  He offended again whilst on bail for the subject offence.  I would refuse permission on this ground.

21. Ground 7 complains that the Judge erred in sentencing Mr Sydenham as a serious repeat offender and on imposing, as a result, a non-parole period of four fifths of the head sentence. It is accepted that Mr Sydenham meets the pre-condition for being a serious repeat offender prescribed by s 53 of the Sentencing Act 2017 (SA) (the Sentencing Act). The complaint is that the Judge wrongfully failed to declare that the more severe sentencing provisions applicable to serious repeat offenders by s 54(1) of the Sentencing Act did not apply. Section 54(2) of the Sentencing Act allows for such a dispensation if the Court is satisfied, by evidence on oath, that the defendant’s personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community, and personal and general deterrence, and that in all of the circumstances it is not appropriate that the defendant be sentenced as a serious repeat offender.

22. Mr Sydenham’s offending and personal circumstances were, as the Judge observed, precisely the circumstances contemplated by the serious repeat offender provisions.  This ground is not arguable.  I would refuse permission to appeal.

23. Ground 8 complains that the Judge erred in failing to specifically and separately set out the reduction made for Mr Sydenham’s plea of guilty and for the time he spent on home detention. It is convenient to consider this ground with ground 9, which is the only ground on which permission to appeal was given. Ground 9 complains that the Judge erred in failing to specify the reduction which he had made for the appellant’s plea of guilty, which reduction was required by s 10C of the Criminal Law (Sentencing) Act 1988 (SA) (the former Act). Permission was granted because the Director of Public Prosecutions accepted that this ground was arguable.

1. At the time that Mr Sydenham’s plea was entered s 10C(2)(f) of the former Act relevantly provided that in respect of a guilty plea entered after the commencement of the trial the sentencing court ‘may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10 percent’. The precondition that there be good reason to do so significantly differentiates sub‑paragraph (f) from the preceding sub-paragraphs. In the ordinary course, a plea entered within four weeks after a defendant’s first court appearance, on or before the day of the committal and between committal and before arraignment, substantially facilitates the administration of justice and provides important comfort and assurance to victims of crime and to the community. On the other hand, pleading guilty at trial does not much comfort victims or the community and saves very little in the way of the public resources involved in the administration of justice. It is for that reason, that s 10C(2)(f) required that there be good reason to reduce the sentence at all. Moreover, even then, strong reasons explaining and justifying the delay in pleading guilty will generally be needed before the maximum reduction would be allowed.

2. In this case there is no mitigating reason for the late guilty plea.  Mr Sydenham was fortunate to have received any allowance at all.

3. In Mr Sydenham’s case, there was barely sufficient cause to make any deduction for the time he had spent on home detention bail or for his guilty plea.  The combined reduction allowed by the Judge was generous.  No better purpose would have been served by separately identifying the very small reductions allowed for home detention, and the late guilty plea, respectively, than there is in debating how many angels could dance on the head of a pin.

4. It is not arguable that the reduction should separately have been specified.  I accordingly would not grant permission on ground 8 and I would dismiss the appeal on ground 9.

5. KELLY J:            I agree.

6. PEEK J:                I would dismiss the appeal.  I agree with the orders proposed by the Chief Justice.