Calabrese v The Queen

Case [2022] SASCA 65

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

CALABRESE v THE QUEEN

[2022] SASCA 65

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice David)

7 July 2022

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS

The appellant pleaded guilty to two counts of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and one count of money laundering, contrary to s 138(2) of the Criminal Law Consolidation Act 1935 (SA).

On 17 December 2021 the appellant was sentenced to six years and five months’ imprisonment, with a non-parole period of three years and two months fixed.  

The appellant sought permission to appeal his sentence on the grounds that: the sentence was manifestly excessive, the sentencing judge erred in failing to order that the sentence of imprisonment either be suspended or served on home detention, and the sentencing judge erred in failing to put the appellant on notice before rejecting a mitigatory submission not supported on oath.

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

1.Given the appellant’s subsidiary role in the enterprise conducted by another person, the starting point of eight years’ imprisonment is manifestly too high.

2.The sentence must be set aside and the appellant resentenced.

3.The appellant is resentenced to imprisonment for four years and nine months, with a non-parole of two years and four months fixed.

Controlled Substances Act 1984 (SA) s 32(3); Criminal Law Consolidation Act 1935 (SA) s 138(2); Sentencing Act 2017 (SA) ss 26, 40(3), referred to.
Law v Deed [1970] SASR 374; Liddicoat v The Queen [2021] SASCA 18; MJDH v Director of Public Prosecutions (SA) (2013) 116 SASR 180; R v Camarinha [2018] SASCFC 118; R v Filipponi (2016) 126 SASR 464; R v Fresiello (2020) 137 SASR 258; R v Lobban (2001) 80 SASR 550; R v Lyberopoulos [2017] SASCFC 139; R v McIntosh [2017] SASCFC 87; R v Perre (1986) 41 SASR 105; R v Yavuz (2018) 130 SASR 231, considered.

CALABRESE v THE QUEEN
[2022] SASCA 65

Court of Appeal – Criminal:  Livesey P, Lovell and David JJA

THE COURT:

Introduction

  1. The appellant seeks leave to appeal a sentence of imprisonment of six years and five months, and a non-parole period of three years and two months, on the grounds that it was manifestly excessive and the sentencing judge erred in failing to suspend or order that it be served on home detention.

  2. The appellant pleaded guilty to two counts of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and one count of money laundering, contrary to s 138(2) of…

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Calabrese v The Queen [2022] SASCA 65
Case
[2022] SASCA 65
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CaseChat Overview and Summary

In *Calabrese v The Queen*, the appellant, Calabrese, appealed against a sentence imposed by the Supreme Court of South Australia. The appeal concerned the severity of the sentence and the availability of sentencing options such as suspension or home detention.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the original sentence was manifestly excessive or inadequate, and whether there were "good reasons" to suspend the sentence or order it to be served on home detention, as provided for under the *Sentencing Act 2017* (SA).

The Court reasoned that while the offending was serious, precluding suspension or home detention, a lengthy period on parole would likely assist the appellant's rehabilitation. Consequently, the Court granted leave to appeal, set aside the original sentence, and imposed a new sentence of imprisonment for four years and nine months, with a non-parole period of two years and four months, both commencing on 17 December 2021.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We fix a low non-parole period of two years and four months. A lengthy period on parole is likely to assist the appellant’s rehabilitation. We decline to find that there is “good reason” for suspension,[16] or to make an order that the sentence be served on home detention.[17] The offending is too serious to countenance these sentencing options.[16] See Sentencing Act 2017 (SA) s 96(1); R v Lyberopoulos [2017] SASCFC 139; R v Yavuz (2018) 130 SASR 231.[17] See Sentencing Act 2017 (SA) s 71(1), though each of ss 71(1)(a), (b) and (c) are satisfied; R v Filipponi (2016) 126 SASR 464, [37] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed); Liddicoat v The Queen [2021] SASCA 18, [34]-[35] (Bleby JA, with whom Kelly P and Lovell JA agreed).Conclusion In all of these circumstances, leave to appeal is granted. The sentence imposed on 17 December 2021 is set aside and the appellant is sentenced to imprisonment for four years and nine months and a non-parole period is fixed of two years and four months, both of which must commence on 17 December 2021.

Ratio Decidendi

Legal Principle Established

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