Cianfaglione v The King - [2022] SASCA 120

Supreme Court of South Australia
(Court of Appeal: Criminal)
CIANFAGLIONE v THE KING
[2022] SASCA 120
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
24 November 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE
The appellant pleaded guilty to one count of supplying a controlled drug to another person contrary to s 33I of the Controlled Substances Act 1984 (SA).
In early February 2019, the appellant attended a music event in the carpark of the Coopers Ale House in Gepps Cross. Whilst at the event, the appellant purchased what he believed were four MDMA pills. Subsequent testing revealed that the pills contained a combination of MDA and cocaine. Although the appellant purchased the pills for personal use and had no intention of selling them, he met a female patron to whom he supplied one of the pills for free. The female patron collapsed and was taken to hospital by ambulance. A blood test was taken which detected the drug MDA.
The appellant was sentenced in the Magistrates Court. The sentence, which was reduced on account of the appellant’s guilty plea from a starting point of 4 months, was 3 months imprisonment. The Magistrate suspended this sentence upon the appellant entering into a bond in the sum of $1,000 to be of good behaviour for two years. The bond included a condition that the appellant be under the supervision of a community corrections officer for the period of the bond, and obey all lawful directions given by that community corrections officer during the period of supervision. It also included conditions that the appellant not consume any non-prescribed drugs; that he submit for testing for illicit drugs as directed by his community corrections officer; and that he attend for counselling, assessment or treatment for drug use or abuse as directed by his community corrections officer.
The appellant appeals his sentence on the grounds that the sentence was manifestly excessive in that the length of the bond was disproportionate to the sentence of imprisonment, and because the judge included supervision as a term of the bond.
Held, per the Court, dismissing the appeal:
1. The sentence imposed was not manifestly excessive.
Controlled Substances Act 1984 (SA) ss 33I, 44; Criminal Law (Sentencing) Act 1988 (SA) s 40; Criminal Procedure Act 1921 (SA) s 116; Sentencing Act 2017 (SA) ss 96, 99, referred to.
Flett v SA Police (unreported, Supreme Court of South Australia, King AJ, 5 August 1997); Griffin v Police [2005] SASC 337; McKinnon v Police [2018] SASC 168; R v Hoffmann [2017] SASCFC 15; R v Scuteri [2018] SASCFC 103; Williams v March (1985) 38 SASR 313; Wilson v Police [2013] SASC 48, considered.

CIANFAGLIONE…

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.

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Details

Case: [2022] SASCA 120
Decision Date: 24 November 2022

CaseChat Overview and Summary

The appellant, Cianfaglione, appealed against the sentence imposed by a Magistrate for a drug offence. The dispute concerned the length and conditions of a suspended sentence bond. The appeal was heard by the Supreme Court of South Australia.

The legal issues before the Court were whether the length and conditions of the suspended sentence bond were manifestly excessive, and whether there was a necessary proportionality between the length of the bond and the term of imprisonment that was suspended. The Court was required to consider the sentencing judge's discretion in imposing suspended sentences and the relevant provisions of the Sentencing Act concerning the conditions of such bonds.

The Court affirmed the well-established principles governing appeals against sentence for manifest excess, emphasising the need to respect the sentencing judge's discretion. It noted that the Sentencing Act grants significant flexibility in setting the conditions of a suspended sentence bond, including supervision, abstinence from drugs, and treatment, with no prescribed maximum term for the bond itself. The Court considered the appellant's argument that the bond's length should be proportionate to the suspended term of imprisonment, referencing previous authority that highlighted the importance of proportionality in this context. The Court acknowledged that while the sentencing judge has broad discretion, the period of the bond should not be disproportionate to the term of imprisonment.

The Court ultimately dismissed the appeal, finding no manifest excess in the sentence imposed.

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

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Ratio Decidendi

Legal Principle Established

While not strictly relevant on this appeal, this Court was informed that since the imposition of the bond, the appellant has been required to report every fortnight to his community corrections officer, has twice been directed to see a psychiatrist at his own expense, and has been subjected to three random drug tests.Consideration The principles governing an appeal against sentence on the ground of manifest excess are well known and need not be repeated. It is important that this Court respect the flexibility inherent in the exercise of a sentencing judge’s discretion. That flexibility and discretion extends to, and indeed is particularly relevant to, the length and conditions of any suspended sentence bond that a sentencing judge might decide to impose. Under s 96(1) of the Sentencing Act, the sentencing judge may, if he or she thinks that good reason exists for doing so, suspend a sentence of imprisonment on condition that the defendant enter into a bond to be of good behaviour, to comply with the conditions mandated in s 96(2) (relating to possession of firearms and submitting to gun residue testing), and to comply with such other conditions of the bond as the judge thinks appropriate and specifies in the bond. As to those other conditions, s 98 provides that the bond may include such conditions as the judge thinks appropriate, including conditions relating to supervision by a community corrections officer, abstinence from alcohol and other drugs, and treatment and testing for drug use. Whilst there was previously a prescribed maximum of three years,[2] s 99 of the Sentencing Act no longer prescribes any maximum term for a bond. [2] Criminal Law (Sentencing) Act 1988 (SA), s 40. As noted at the outset of these reasons, the appellant’s complaint of manifest excess is confined to the length and conditions of the bond required by the Magistrate. Focusing first on the length of the bond, the appellant contends that, having determined to suspend a sentence of three months imprisonment, the Magistrate was obliged to ensure that the length of the bond was not disproportionate to the period of imprisonment to which it related. In support of the need for proportionality between the length of a bond and the term of imprisonment to which it relates, the appellant relied upon the reasons of White J in Wilson v Police.[3] In addressing the considerations governing a sentencing court’s discretion as to the length and conditions of a bond, his Honour said:[4]A sentencing court has a considerable discretion in relation to the terms of bonds fixed under the Sentencing Act. Relevant matters include the gravity of the offending, the period for which the Court considers it necessary that the offender’s good behaviour should be secured by a bond and, if the bond has been framed so as to provide support to an offender during the period of rehabilitation, the period during which that support may be required.[5] In the case of suspended sentence bonds, the period of the bond must not be disproportionate to the term of imprisonment imposed.[6] (emphasis added)[3] Wilson v Police [2013] SASC 48.[4] Wilson v Police [2013] SASC 48 at [26] (White J).[5] Griffin v Police [2005] SASC 337 at [22] (White J).[6] Flett v SA Police (unreported, Supreme Court of South Australia, King AJ, 5 August 1997).