Awkar v The King - [2023] SASCA 118

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
AWKAR v THE KING
[2023] SASCA 118
Judgment of the Court of Appeal
(The Honourable Justice David, the Honourable Justice Stanley and the Honourable Justice Stein)
16 November 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
This is an appeal against sentence.

The appellant pleaded guilty to drug trafficking offences charged on two separate Informations, committed over the course of about 15 months from 27 March 2020 to 7 June 2021. The offending involved the appellant receiving, distributing, and selling methylamphetamine on behalf of a lucrative drug syndicate who communicated via the AN0M platform. All of the offences were committed in breach of two suspended sentence bonds.
On 24 November 2022, the sentencing Judge revoked the two previously suspended sentences and imposed a penalty of imprisonment in respect of each, to be served wholly concurrently. His Honour then sentenced the appellant for the two offences charged on the first Information, which were ordered to be served cumulatively on the revoked suspended sentences. The appellant made no complaint about these aspects of the sentencing process.
The sentencing Judge then proceeded pursuant to s 26 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) and imposed a single penalty for the remaining 10 offences charged on the second Information, which his Honour ordered to be served cumulatively on the previous sentences.
The final head sentence imposed, after reduction on account of the appellant’s guilty pleas, was 16 years, 10 months, and 19 days. A non-parole period of 12 years, one month, and three weeks was fixed. In relation to the offences charged on the second Information, the appellant fell to be sentenced as a ‘serious repeat offender’. Accordingly, s 54(1)(b) of the Sentencing Act required the non-parole period to be at least four-fifths of the head sentence imposed for the offences which enlivened the serious repeat offender provisions. Whilst the non-parole period was four-fifths of the overall head sentence, it was in fact 85 per cent of the head sentence imposed for the offences which enlivened the serious repeat offender provisions. The sentence was ordered to commence from the time the appellant was remanded in custody, that being 8 June 2021.
The appellant sought permission to appeal against sentence on the following grounds:
1.The sentencing Judge erred in the application of the principles relating to totality (Ground 1).
2.The sentencing Judge erred in the application of the principles relating to concurrency (Ground 2).
3.The sentence was manifestly excessive (Ground 3).

The respondent conceded that the sentencing Judge made several discrete errors in applying the totality principle (Ground 1) but contended that upon re-sentence this Court should not impose a different sentence and, accordingly, the appeal should be dismissed.
Held,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Awkar v The King

Details

AGLC: Awkar v The King [2023] SASCA 118
Case: [2023] SASCA 118
Decision Date: 16 November 2023

CaseChat Overview and Summary

The appeal concerned the sentencing of Awkar, who had pleaded guilty to a number of offences, including trafficking in a commercial quantity of a controlled drug. The primary judge imposed a sentence of imprisonment, and the appellant sought leave to appeal against that sentence. The appeal was heard by the Court of Criminal Appeal of New South Wales.

The central legal issues before the Court were whether the sentence imposed was manifestly excessive, and whether the sentencing judge had erred in the application of the totality principle when considering the cumulative effect of the sentences for the various offences. Specifically, the Court had to determine if the aggregate sentence adequately reflected the gravity of the offending conduct and the appellant's personal circumstances.

The Court of Criminal Appeal applied the principles of sentencing, including the need to consider the objective seriousness of the offence, the subjective circumstances of the offender, and the need for deterrence and punishment. In relation to the totality principle, the Court reiterated that it requires a sentencing judge to consider the overall impact of cumulative sentences, ensuring that the total sentence is just and proportionate to the offender's criminal enterprise as a whole. The Court found that the sentencing judge had properly considered these principles and had not erred in imposing the sentence.

Leave to appeal against sentence was refused.

Orders