The Queen v Hem

[2022] SASCA 94

Supreme Court of South Australia

(Court of Appeal: Criminal)

THE QUEEN v HEM

[2022] SASCA 94

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice David)

7 September 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

The respondent pleaded guilty to trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). Due to an error in the respondent’s antecedent report, it was alleged that he had thereby breached a suspended sentence bond imposed on 15 May 2014. On 5 May 2021, the sentencing judge revoked the bond and imposed an 18-month sentence of imprisonment, to be served cumulatively on the trafficking head sentence of three years, nine months and 19 days. The sentencing judge fixed a total effective head sentence of five years, three months and 19 days, with a non-parole period of three years.

However, the bond had expired prior to the trafficking offending in May 2017. There was no basis for the sentencing judge to revoke the bond or to take a breach of bond into account when sentencing for the trafficking. Once the error was discovered, the Director of Public Prosecutions sought permission to appeal against the respondent’s sentence in order to correct the error.

Held (the Court) granting permission to appeal and allowing the appeal:

1.In circumstances where the sentencing judge regarded the offending as aggravated by breaching a bond at the time of the trafficking offence, there has been a material error in the basis upon which the sentence was imposed.

2.The exercise of the sentencing discretion miscarried and the sentence imposed on 5 May 2021 must be quashed.

3.The respondent is resentenced to a term of imprisonment of three years and four months with a non-parole period fixed at two years, both of which are backdated to commence on 3 October 2019.

Controlled Substances Act 1984 (SA) s 32, referred to.

THE QUEEN v HEM
[2022] SASCA 94

Court of Appeal – Criminal:  Livesey P and David JA

THE COURT (ex tempore):

Introduction

1. This is an unusual appeal by the Director of Public Prosecutions.  The Director seeks permission to appeal and, if he succeeds and the appeal is allowed, the sentence will be set aside and the respondent will be resentenced more leniently than he was at first instance.

2. The object of the Director’s application for permission is to correct an error made by the sentencing judge that was only recently discovered.  The Director has made this application because, despite approaches to the respondent’s legal representatives, no appeal was filed by the respondent.  The Director is to be commended for taking the initiative.

3. The sentencing judge was asked to revoke a suspended sentence bond and did so.  However, that bond had expired on 15 May 2017, well before the subject offending in September 2018.[1]  In the circumstances, there was no basis for revoking the suspended sentence bond or in taking the breach of that bond into account when sentencing. 

   [1]     There was another bond that expired in June 2018 but it is not relevant to this appeal.

4. For the reasons that follow, permission to appeal should be granted, the appeal allowed, the sentence imposed by the sentencing judge set aside and the respondent resentenced. 

   The sentence initially imposed

5. The respondent pleaded guilty to trafficking in a controlled drug, being methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) for which the maximum penalty was 10 years or a fine of $50,000.

6. In addition, it was alleged that he had thereby breached a bond which had been imposed after he received a suspended sentence on 15 May 2014 for aggravated intentionally causing harm. 

7. For the trafficking offence, the sentencing judge accepted that there was scope for leniency, though he considered the breach of bond an aggravating feature.  The sentencing judge commenced with a starting point of four years and six months, which was reduced by 10 per cent for the plea of guilty to four years and 19 days.  That was further reduced by three months for time spent in custody and on home detention bail.  The head sentence which was fixed was three years, nine months and 19 days. 

8. That sentence was ordered to be served cumulatively on the period of 18 months which the sentencing judge imposed for the breach of the suspended sentence bond.

9. The sentencing judge imposed an effective total head sentence of five years, three months and 19 days.

10. The sentencing judge fixed a non-parole period of three years, commencing on 3 October 2019. 

    The error regarding the breach of bond

11. The error regarding the term of the sentencing bond can be traced to an error in the antecedent report.  As it is clear from the sentencing remarks that the sentencing judge regarded the offending as aggravated by the respondent having been on a bond at the time of the offending, there has been a material error in the basis upon which the sentence was imposed. 

12. The result is that the exercise of the sentencing discretion miscarried and the sentence must be set aside. 

13. It is not suggested that any other error was made by the judge.

    The circumstances of the offending

14. Before proceeding to resentence, it is necessary to address in a little more detail the circumstances of the offending before addressing the circumstances of the offender.

15. The respondent was arrested on the same day as a co-offender who was driving the car in which the respondent travelled as passenger.  In a small case secreted within the respondent’s underwear, approximately 12.5 g of a substance which contained about 6.5 g of methylamphetamine was located. 

16. The respondent had not previously been sentenced for a trafficking offence.

17. The respondent submitted that at the time of his offending he was selling drugs to support his own drug habit.  The sentencing judge accepted that the respondent had a drug habit and that his trafficking assisted, to some degree, with the cost of that habit.

    The circumstances of the offender

18. At the time of sentence on 5 May 2021, the respondent was 26 years of age.

19. He had been abused as a young child and, as a young teenager, he left the home of his mother and stepfather.  Family and Community Services appointed a social worker to assist with the respondent’s needs.  However, it was during this period of his life that the respondent was introduced to illicit drugs.

20. After being remanded into custody for the trafficking offence, the respondent made efforts to rebuild his relationship with his mother. 

21. Because of problems with truancy the respondent, effectively, did not attend high school.  He has only a limited employment history.

22. The respondent has seven children.  He is separated from their mother. 

23. Whilst in custody, the respondent applied to undertake courses to improve his work skills.  He completed the Making Changes course.  He also joined a Narcotics Anonymous group and undertook the SMART Recovery course.  The respondent received counselling for drug use, after having referred himself to a drug line because of his fear of resuming illicit drug use.

24. During the course of submissions before the sentencing judge, the respondent was described as a “model prisoner” who hoped to work on the family farm and become engaged in the family business.  In correspondence to the sentencing judge, the respondent accepted responsibility for his behaviour and expressed hopes for the future.

    Permission to appeal

25. In circumstances where the Director has made this application for permission to appeal in order to correct an obvious error and where, unsurprisingly, the respondent concedes that permission to appeal should be granted, this is a proper case in which to grant permission to appeal.

    Resentence

26. The sentence imposed on 5 May 2021 is quashed. 

27. Having regard to the circumstances of the offending and the circumstances of the respondent already outlined, it is appropriate to commence with a starting point of four years.  It is appropriate to reduce that by 10 per cent for the respondent’s guilty plea to three years and seven months. 

28. It is again appropriate to make a reduction of three months for time spent in custody and on home detention bail.  Accordingly, the respondent will be sentenced to a term of imprisonment for three years and four months. 

29. Given the respondent’s relative youth, lack of prior trafficking offending and the opportunities open to him for rehabilitation working in the family business, it is appropriate to fix a non-parole period of two years.

30. The sentence will be backdated to commence on 3 October 2019.

    Conclusion

31. The orders of the Court will be:

    1.The Director is granted permission to appeal and the appeal is allowed.

    2.The sentence imposed on 5 May 2021 is quashed.

    3.The respondent is resentenced to a term of imprisonment of three years and four months with a non-parole period fixed at two years, both of which are backdated to commence on 3 October 2019.