R v T [2013] SASCFC 127 (22 November 2013)

Last Updated: 3 December 2013

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

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R v T

[2013] SASCFC 127

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Stanley)

22 November 2013

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE

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

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES

Appeal against sentence. The defendant pleaded guilty to two counts of trafficking in a controlled drug contrary to section 32(3) of the Controlled Substances Act 1984 (SA) and one count of unlawful possession contrary to section 41(1) of the Summary Offences Act 1953 (SA). She was sentenced to five years’ imprisonment with a non-parole period of three years. The Judge indicated that but for the defendant’s early guilty pleas and cooperation, she would have imposed a sentence of seven years' imprisonment. Whether sentence was manifestly excessive. Whether sufficient weight was given to her early guilty pleas and cooperation.

Held (allowing the appeal):

1. The decision in R v Mangelsdorf is no longer relevant when determining sentences for drug offending. In fixing penalties the Court will have regard to the maximum penalties prescribed by the relevant legislation (at [18]).

2. The notional starting point of over seven years’ imprisonment was not outside the appropriate range of sentences such as to warrant interference by this Court (at [20] - [21]).

3. Insufficient weight was given to the defendant’s early guilty pleas and cooperation. This error warrants the intervention of this Court (at [23] - [24]).

4. Defendant sentenced to four years’ imprisonment with a non-parole period of two years and three months’ imprisonment (at [25]).

Controlled Substances Act 1984 (SA) s 32(3), s 32(5)(B); Summary Offences Act 1953 (SA) s 41(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA), referred to.

R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60; R v Kong (2013) 115 SASR 425; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; R v Harris [1992] SASC 3624; (1992) 59 SASR 300; R v Golding (1980) 24 SASR 161; R v Cartwright (1989) 17 NSWLR 243; R v Salameh (1991) 55 A Crim R 384, considered.

R v T

[2013] SASCFC 127

Court of Criminal Appeal: Gray, Sulan and Stanley JJ

THE COURT.

This is an appeal against sentence.
The defendant and appellant pleaded guilty to two counts of trafficking in a controlled drug contrary to section 32(3) of the Controlled Substances Act 1984 (SA) and one count of unlawful possession contrary to section 41(1) of the Summary Offences Act 1953 (SA). The defendant was sentenced in the District Court pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one sentence of five years’ imprisonment with a non-parole period of three years. The sentencing Judge indicated that but for the defendant’s early guilty pleas and cooperation, she would have imposed a sentence of seven years’ imprisonment. The defendant has appealed against sentence on the grounds that it is manifestly excessive and that insufficient weight was given to her early guilty pleas and cooperation.

The facts

Police searched a motor vehicle occupied by the defendant. They found her in possession of a small quantity of heroin together with three mobile phones. It was this conduct which resulted in the first count of trafficking in a controlled drug. After her arrest, the defendant was granted bail. While on bail, the police again conducted a search of a motor vehicle occupied by the defendant. On this occasion, she was again found in possession of a small quantity of heroin, two mobile phones and a not insubstantial sum of money. This conduct resulted in the second count of trafficking in a controlled drug and the count of unlawful possession.
The defendant pleaded guilty to the two trafficking offences at her first arraignment in the District Court. She pleaded guilty to the count of unlawful possession after the matter had been called up from the Magistrates Court and negotiations as to the factual basis of the plea were resolved.

Personal circumstances

The defendant’s personal circumstances can only be described as difficult. As a teenager she came to Australia as a refugee from a war-torn country. She had limited education and poor English. Before coming to Australia she lived in a refugee camp for some years. While there, she gave birth to a son. The child’s father came to Australia with her. In Australia she gave birth to another child. The father of her children was violent towards her and the children. They eventually separated. She had a third child with a different father who abandoned her and the baby shortly thereafter. She has a history of attempting suicide.
The defendant has a previous conviction for trafficking heroin. That resulted in a suspended sentence. This offending resulted from a relationship she was in with a man who treated her and her children kindly, but required her to deal heroin in exchange for money she could use to buy food and presents for the children. After her arrest, this man disappeared.
The offending to which this appeal relates occurred shortly after the defendant had completed the bond imposed in relation to her earlier offending and in the context of a gambling addiction and a psychiatric diagnosis of anxiety and depression.
A report was prepared by a psychologist in relation to the earlier offending. The psychologist considered that the defendant had symptoms that would allow a diagnosis of generalised anxiety disorder and major depressive disorder, part of which was attributable to the charges that she was facing. The psychologist also discussed the defendant’s gambling history. She informed the psychologist that prior to 2009 she had never gambled in any form. However, to meet the costs of legal fees, she borrowed money from family and friends. She gambled the money at the casino in an attempt to double her money. This attempt was unsuccessful and she was heavily in debt at the time the report was authored.
Of some concern is that the defendant reported to the psychologist that she had no previous convictions. The psychologist was informed by her counsel after his interview that the defendant had previous convictions in 1997 for receiving money paid in a brothel and being on premises frequented by prostitutes. No information as to the circumstances of these offences has been proffered to the Court. She has no other relevant convictions.

Sentencing remarks

The Judge noted the circumstances of the present offending and the personal circumstances of the defendant. The Judge summarised counsel’s submissions concerning the circumstances of the offending:

... [Defence counsel] has submitted that the background of this offending is that prior to 3 June 2012 you were approached by a female and she loaned you some money. You needed this money to pay for your gambling addiction. You then began selling heroin to pay off the debt... You were engaged in a course of conduct in which you gained financial benefit.

On your offending on 3 June your counsel has submitted that you made a bail application to ... visit your dying father. That application was declined and your father did die on 7 August. You were upset by the fact that you could not go and see him and naturally you were upset that he had passed away. Following this you started to gamble again. You borrowed money from the same female. You borrowed that money to support your habit and you began selling heroin for her. That leads to count 2 on the information.

The Judge noted that the trafficking offences were not isolated and that they were charged as part of a course of conduct. She also noted that the offences were aggravated by the fact that the defendant was on bail for the first count of trafficking at the time that she committed the second count.
In delivering sentence, the Judge said:

The offences that are before this court are very serious offences. You have been given fair warning in relation to the trading in drugs. You were given that warning in 2009. You received the mercy of this court when Judge Lovell suspended that term of imprisonment. As you are well aware, heroin is an extremely dangerous and insidious drug. The illicit drug trade needs low level dealers to push the product on the street. The trade could not flourish without people such as you engaging in lower level street deals. Deterrence of you and others minded to commit such crimes must be a paramount consideration in your case. You were involved in an ongoing commercial activity, albeit at lower end. As this is your second group of offences, there is a strong need for personal deterrence in your sentence.

You pleaded guilty at an early stage and you will receive credit for your cooperation. In determining the sentence that I must impose I have taken into account seven days that you have spent in custody. I have also taken into account the 10 months and 12 days you spent on home detention bail.

In the circumstances, a term of imprisonment is appropriate. I will utilise s.18A of the Criminal Law (Sentencing) Act and impose one penalty for the two offences of trafficking in a controlled drug and unlawful possession.

But for your pleas of guilty I would have imposed a sentence of seven years imprisonment. I reduce that to five years to take into account your early guilty pleas and your cooperation. I set a non-parole period of three years.

The Judge declined to suspend the sentence.

Appeal

The defendant complained that the sentence was manifestly excessive. It was submitted that the starting point of seven years’ imprisonment, taking into account the time spent in custody and on home detention, was outside the appropriate range for this offending given the personal circumstances of the defendant, the total quantity of heroin involved and the maximum penalty for the offences.
Counsel for the Director of Public Prosecutions submitted that the sentence was not outside the range of penalties discussed by this Court in Mangelsdorf.^[1] It was contended that the sentence was appropriate considering previous convictions for trafficking in heroin which led to a suspended sentence bond. It is of significance that the first count of trafficking occurred only six months after the completion of that bond and the second count was committed while she was on bail for the first count, a matter of serious aggravation. The Director accepted that only small quantities of heroin were involved. However, it was submitted that the defendant was engaged in street level trading. The Director further submitted that the sentence was appropriate as the offending was for commercial gain. It was pointed out that the defendant was not a drug addict and was not trading to support such a habit.

Manifestly excessive

In determining whether a sentence is manifestly excessive, the Court considers a number of factors including the maximum penalty for the offence, the range of sentencing customarily observed for that type of offending, the seriousness of the offending and the personal circumstances of the offender.
It is instructive at this point to consider the amendments to the Controlled Substances Act 1984 (SA). Prior to its amendment in 2007, and at the time of Mangelsdorf,^[2] section 32 of the Controlled Substances Act prohibited a person from knowingly manufacturing, producing, selling, supplying, administering or possessing drugs of dependence or prohibited substances. Section 32(5)(B) created two maximum penalties, depending on whether the quantity of the controlled drug was more or less than the amount prescribed by Regulation. As no amount of heroin was prescribed for this purpose, in practice, the lower maximum penalty of a fine of $200,000 or imprisonment for 25 years, or both, applied in all cases.
As a result of the Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA) which came into effect on 3 December 2007, the offence of trafficking in a controlled drug was separated into categories defined by weight. The section now has a tiered structure, with decreasing maximum penalties for corresponding lesser prescribed quantities of a controlled drug. A subsequent amendment also abolished the distinction in determining penalty between heroin and other controlled drugs other than cannabis, cannabis resin or cannabis oil.^[3]
In Kong,^[4] this Court considered the effect that the new legislative scheme had on the applicability of decisions of this Court, and in particular Mangelsdorf,^[5] which were decided under the previous legislation. The Court observed, “there is little utility in comparing sentences and maximum penalties under the earlier legislation with the current legislation.”^[6] The Court considered it appropriate to reconsider the observations of Doyle CJ in Mangelsdorf.^[7] The Court suggested that the range of sentences discussed in Mangelsdorf^[8] no longer had application given the different terms of the present legislative scheme. We endorse and apply the observations in Kong.^[9] We consider that Mangelsdorf^[10] is no longer relevant when determining sentences for drug offending when the sentencing regime has changed. In fixing penalties the Court will, in accordance with well established principle, do so having regard to the maximum penalties prescribed by the relevant legislation.
Under the current scheme, the offence of trafficking in a controlled drug is punishable by a maximum penalty of $50,000 or imprisonment for 10 years, or both. In Markarian,^[11] Gleeson CJ, Gummow, Hayne and Callinan JJ discussed the significance of maximum penalties. They observed:^[12]

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. ...

It is accepted that the defendant has had a difficult upbringing and overcome much adversity in her life. Although an updated report has not been prepared in support, it is submitted through her counsel that the defendant’s reversion into offending was related to her gambling addiction. It is submitted that her gambling addiction caused her to become susceptible to those that would utilise her labour to distribute illegal drugs. It is further submitted that the death of her father prompted a further “gambling binge”. While these are relevant circumstances, the defendant was extended leniency when she received a suspended sentence following her earlier drug offending. She was on notice of the consequences of further offending and could not expect leniency to be extended a further time. The first count of trafficking was committed only six months after the completion of her two year good behaviour bond and the second count occurred while on bail for the first. Although involving relatively small amounts of heroin, the offending was committed as part of a continuing course of conduct.
In our view, the notional starting point of over seven years’ imprisonment was not outside the appropriate range of sentences such as to warrant interference by this Court. We would dismiss this ground of appeal.

Reduction for early guilty pleas and cooperation

The defendant further submitted that the Judge failed to have sufficient regard to her early guilty pleas and cooperation with the authorities. As earlier mentioned, the Judge reduced the head sentence imposed from seven years to five years on account of the defendant’s guilty pleas and cooperation, a reduction of about 29 percent.
An offender who pleads guilty can expect to receive a reduction in sentence. It is acknowledged that such a plea evidences contrition and remorse. It is also appropriate for courts to make a reduction in sentence where an offender has cooperated with the authorities. A primary policy behind extending such leniency is to encourage offenders to cooperate. Additionally, such conduct may well evidence contrition and remorse of the offender.^[13] We endorse and apply the following observations of King CJ in Harris:^[14]

It is very important, I think also, that the extent of the discount which is given on this account should be made clear by the sentencing judge. This Court of Criminal Appeal has said on earlier occasions in relation to the discount for a plea of guilty, that it not only ought to be given, but that the judge should indicate so far as possible, and wherever possible, the extent of the discount which he is making for the plea of guilty. If the discount given for a plea of guilty is to operate as a real incentive for guilty persons to plea guilty, it is necessary that they, and their advisors, have a clear idea of the sort of discount which will be made on that account.

The same considerations apply to co-operation with the authorities by way of giving evidence against co-offenders. Unless it is clear to offenders that they will receive a significant benefit, and the general extent of the benefit which they are likely to receive, then it is not to be expected that the authorities will receive the co-operation which they so often need in order to enforce the law and bring other offenders to justice. I would therefore exhort judges wherever it is practical to do so in this type of case, not only to make a significant and appropriate allowance for the co-operation with the authorities, but to indicate to the prisoner the extent of the allowance which has been made.

In our view, insufficient weight was given to the defendant’s early guilty pleas and cooperation. This error warrants the intervention of this Court.

Conclusion

We would allow the appeal and set aside the sentence imposed by the District Court. Having regard to the matter set out above, we consider that a reduction in the order of 40 per cent should be made on account of the early guilty pleas and the defendant’s cooperation with the authorities. We sentence the defendant for all offending to the one sentence of imprisonment of four years. We fix a non-parole period of two years and three months. This sentence is taken to have commenced on 18 July 2013.

^[1] R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60.

^[2] R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60.

^[3] For a comprehensive discussion of the amendments, see R v Kong (2013) 115 SASR 425, [61]-[74].

^[4] R v Kong (2013) 115 SASR 425.

^[5] R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60.

^[6] R v Kong (2013) 115 SASR 425, [74].

^[7] R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60.

^[8] R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60.

^[9] R v Kong (2013) 115 SASR 425.

^[10] R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60.

^[11] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

^[12] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 372.

^[13] See for example, R v Golding (1980) 24 SASR 161; R v Cartwright (1989) 17 NSWLR 243; R v Harris [1992] SASC 3624; (1992) 59 SASR 300; R v Salameh (1991) 55 A Crim R 384.

^[14] R v Harris [1992] SASC 3624; (1992) 59 SASR 300, 302-303.

Subsequent Judicial Consideration0