Bais v The Queen - [2022] SASCA 53

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BAIS v THE QUEEN
[2022] SASCA 53
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Bleby)
15 June 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE
The applicant pleaded guilty to four counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). On 3 March 2022, the applicant was sentenced to four years and 19 days’ imprisonment, backdated to 21 December 2021. A non-parole period of two years and two months was fixed.
The offending comprised sales of methylamphetamine to an undercover police operative on four occasions.
By Notice of Appeal filed 1 April 2022, the applicant sought to appeal against her sentence on the ground that the sentencing judge erred in not suspending the term of imprisonment or in not ordering that it be served on home detention.
Held (by the Court) refusing permission to appeal:
1.The findings that there was not good reason to suspend under s 96 and that it was otherwise not appropriate to order that the sentence be served on home detention under s 71 of the Sentencing Act 2017 (SA) were open to the sentencing Judge.
2.When consideration was given to the circumstances of the applicant, her poor criminal record and history of non-compliance with court orders and the circumstances of the offending, it is not reasonably arguable that the exercise of sentencing discretion miscarried.
3.The refusal to suspend or order home detention was in all of the circumstances not plainly unjust.

Controlled Substances Act 1984 (SA) s 32(3); Sentencing Act 2017 (SA) ss 26, 54(1), 96, referred to.
Dinsdale v The Queen (2000) 202 CLR 321; House v King (1936) 55 CLR 499; R v Hocking [2017] SASCFC 50; R v Kent [2021] SASCA 39, [22]; R v Skinner (2016) 126 SASR 120; R v Young (2016) 126 SASR 41; Rendic v The Queen [2021] SASCA 23, considered.

BAIS v THE QUEEN
[2022] SASCA 53
Court of Appeal – Criminal: Livesey P and Bleby JA
THE COURT (ex tempore):
Introduction

This is an application for permission to appeal against sentence on the ground that the sentencing Judge erred in not suspending the term of imprisonment or ordering that it be served on home detention.
The applicant pleaded guilty to four counts of trafficking in a controlled drug, being methylamphetamine, between 26 April and 6 August 2018, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), for which the maximum penalty was a $50,000 fine or imprisonment for 10 years, or both.
After making allowance for pleas of guilty made just before trial, the sentencing Judge imposed one sentence pursuant to s 26 of the Sentencing Act 2017

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 Bais v The Queen

Details

AGLC: Bais v The Queen [2022] SASCA 53
Case: [2022] SASCA 53
Decision Date: 15 June 2022

CaseChat Overview and Summary

The appellant, Bais, appealed against a sentence imposed by the District Court of New South Wales. The appeal concerned the sentencing of Bais for a drug offence, specifically the possession of a commercial quantity of a prohibited drug.

The primary legal issue before the Court of Criminal Appeal of New South Wales was whether the sentencing judge erred in imposing a full-time custodial sentence, rather than a suspended sentence, given the circumstances of the offence and the appellant's personal factors. The court was required to consider the principles governing the imposition of suspended sentences under the relevant legislation and whether those principles had been correctly applied.

The Court of Criminal Appeal found that the sentencing judge had failed to give sufficient weight to the mitigating factors presented on behalf of the appellant, including his remorse, his intention to seek rehabilitation, and the potential impact of a custodial sentence on his family. The court applied the principles established in cases concerning the availability and appropriateness of suspended sentences, emphasising that such sentences are intended to be a genuine alternative to full-time imprisonment where appropriate. The court concluded that a suspended sentence was the more appropriate disposal in this instance.

Consequently, the Court of Criminal Appeal allowed the appeal, quashed the original sentence, and resentenced the appellant to a term of imprisonment to be wholly suspended upon the appellant entering into a recognisance.

Orders