Symons v The King

[2023] SASCA 14

Supreme Court of South Australia

(Court of Appeal: Criminal)

SYMONS v THE KING

[2023] SASCA 14

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice David)

15 February 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

The appellant appeals against the sentence for the offences of:

(1) One count of supplying a controlled drug to another person (heroin).

(2) Four counts of failing to comply with a bail agreement.

The appellant was sentenced to a head sentence of one year and 19 days in connection with the offence of supplying a controlled drug with a non-parole period of six months. 

A conviction without further penalty was recorded for each count of failing to comply with a bail agreement.

The sentencing Judge declined to suspend the sentence or order that it be served on home detention. 

The Court held (granting permission to appeal and allowing the appeal):

1. The sentence of the District Court is set aside.

2. The appellant is re-sentenced to four months, four days imprisonment which will be suspended upon entry into a $100 bond to be of good behaviour for 12 months, with conditions.

Sentencing Act 2017 (SA) s 40; Controlled Substances Act 1984 (SA) s 33I; Bail Act 1985 (SA) s 17, referred to.
Cocks v The Queen [2022] SASCA 21; R v Hoffman [2017] SASCFC 15, considered.

SYMONS v THE KING
[2023] SASCA 14

Court of Appeal – Criminal: Livesey P and David JA

THE COURT (ex tempore):

1. This is an application for permission to appeal against sentence. 

2. Following guilty pleas, the appellant, Jade Danielle Symons, was convicted and sentenced for the offences of:

   ·One count of supplying a controlled drug to another person (heroin) for which the maximum penalty is a $50,000 fine or imprisonment for 10 years or both.[1]

   [1]     Controlled Substances Act 1984 (SA), s 33I(1)(a)(ii).

   ·Four counts of failing to comply with a bail agreement for which the maximum penalty is two years imprisonment or a fine of $10,000 or both.[2]

   [2]     Bail Act 1985 (SA), s 17(1).

3. By reason of her pleas, the appellant qualified for a maximum reduction of 15 per cent for the offence of supplying a controlled drug,[3] and up to 30 per cent for each offence of failing to comply with a bail agreement.

   [3]     The parties before this Court agreed that the maximum available reduction was 15 per cent. 

4. In relation to the offence of supplying a controlled drug, the sentencing Judge adopted a starting point of 14 months’ imprisonment, which was reduced by 10 per cent for her guilty plea, resulting in a head sentence of one year and 19 days.  A non-parole period of six months was fixed. 

5. The sentencing Judge declined to suspend the sentence or order that it be served on home detention. 

6. A conviction without further penalty was recorded for each of the four counts of failing to comply with a bail agreement.

7. There are two grounds of appeal: first; the sentence is manifestly excessive; and second, the sentencing Judge erred in not suspending the term of imprisonment.  The second ground is a particular of the first.

8. The respondent concedes that the sentence is manifestly excessive, that the appeal should be allowed and the appellant re-sentenced. On re-sentence, the respondent does not oppose this Court suspending any term of imprisonment. 

9. We consider the respondent’s concessions to be appropriate. We would grant permission, allow the appeal, set aside the sentence, and re-sentence.

10. On re-sentence, it is necessary to say something more about the factual circumstances of the offending.  On 9 February 2019, the appellant supplied heroin to a casually intimate partner. The appellant was a long-term heroin user, and they had previously used drugs together.  The appellant purchased heroin from her dealer at her partner’s request.  The appellant purchased about 0.2 grams of heroin or two “tastes” of heroin.  The appellant filled a syringe with about one quarter of the purchased amount of the drug for her partner’s use.  They consumed the heroin together.

11. The heroin supplied by the appellant was a contributing factor in her partner’s death.  The cause of death was ‘heroin with amphetamine toxicity’.  The deceased also had a high concentration of amphetamines in his blood. Amphetamines can interact adversely with heroin and lead to a loss of consciousness and death.  The appellant tried to resuscitate the deceased and called an ambulance.

12. The appellant cooperated with authorities and made admissions to supplying heroin to the deceased. 

13. As for the appellant’s personal circumstances, she is 43 years, single and until recently she lived with her 22-year-old son.  The appellant has a long-standing addiction to heroin.  She has taken some steps toward addressing her addiction. The appellant was consulting a psychologist to treat her depression and anxiety.  She has limited antecedents, albeit she has prior convictions for possessing amphetamines in 2014 and 2015 and has on several occasions failed to comply with bail agreements.  She has never had the benefit of a suspended sentence.

14. Bearing in mind the seriousness of the offence, we consider a term of imprisonment is the only appropriate penalty.  The dangers in supplying illicit drugs to others are well-illustrated in this case by the deceased’s tragic death.  It underscores the importance of general deterrence when sentencing for this offence.[4] 

15. We adopt a starting point of six months’ imprisonment.  A reduction of 15 per cent is appropriate on account of the appellant’s guilty plea, resulting in a sentence of five months and four days.  We further reduce the sentence by one month on account of time served.  Accordingly, a sentence of imprisonment of four months and four days will be imposed.

    [4]     Even for offending at the lower end of the relevant scale of offending; see, for example, R v Hoffman [2017] SASCFC 15, [2] and [30] (Nicholson J, with whom Kourakis CJ and Parker J agreed) a sentence of seven months was reduced to three months and suspended; Cocks v The Queen [2022] SASCA 21, a sentence of four years and three months was reduced to two years, 10 months and eight days and suspended.

16. We consider that there is good reason to suspend the sentence having regard to the appellant’s personal circumstances, good work history, limited prior convictions, and the fact she has now served one month in custody.  We suspend the sentence on condition that the appellant enters into a $100 bond to be of good behaviour for 12 months, with the condition that she will be under the supervision of a community corrections officer for 12 months.

    Orders

    1.Permission to appeal is granted and the appeal allowed.

    2.The sentence of the District Court is set aside.

    3.The appellant is re-sentenced to four months, four days imprisonment which will be suspended upon entry into a $100 bond to be of good behaviour for 12 months, with conditions.