SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
CUONG v THE QUEEN
[2021] SASCA 89
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Livesey and the Honourable Justice Bleby)
2 September 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING HEROIN
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
The appellant was sentenced to 10 and a half years imprisonment with eight years and five months non-parole after pleading guilty to three counts of trafficking in a commercial quantity of a controlled drug and one count of money laundering.
The offending comprised the possession of drugs on three separate occasions, being 19 February 2019, involving 5.22 grams of methylamphetamine and 3.84 grams of heroin (the first offending), 2 April 2019, involving 9.72 grams of methylamphetamine (the second offending) and 23 July 2020, involving 171 grams of crystalline methylamphetamine and $61,650 in cash (the third offending).
The appellant appeals on the sole ground that the sentence was manifestly excessive.
Held (per Lovell and Bleby JJA), dismissing the appeal:
1. The relevant starting points in this case, for the purposes of considering the complaint of manifest excess, are the separate starting points imposed in respect of each sentence.
2. The sentence was not manifestly excessive. The appellant engaged in drug trafficking on three separate occasions, the last of which involved a serious escalation as the appellant was motivated principally by profit.
Held (per Livesey JA), allowing the appeal and re-sentencing the appellant:
1.Whilst sentencing guidance is important and must be followed, it is not the words of a statute and must not be applied mechanically so as to impose a tariff or fetter the discretion of the sentencing court.
2.The appeal court must commence with the individual sentences and their respective starting points, together with the overall effect of those starting points, before addressing the structure of the sentence and any other relevant features when determining whether a sentence is manifestly inadequate or manifestly excessive.
3. The markedly less serious circumstances of the first and second offending required that careful consideration be given to the extent of the allowances to be made for concurrency and totality, particularly by comparison with the third offending.
4. Looking at the first and second offending as a period of offending discrete from the third offending is merely one way of coming to grips with the degree of criminality associated with three episodes of offending occurring over two periods of time. The critical consideration remains the ultimate sentence and the proportion it bears to the overall criminality associated with the offending.
5.The starting point for the third drug offending was seven years and six months. The starting…
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- Cuong v The Queen [2021] SASCA 89
- Case
- [2021] SASCA 89
- Decision Date
CaseChat Overview and Summary
The legal issues before the Full Court of the Supreme Court of South Australia were whether the sentence imposed was manifestly excessive, and if so, what was the appropriate sentence. This involved considering the principles of sentencing for drug trafficking, the application of sentencing guidance, and the proper approach to determining manifest excess or inadequacy in sentencing.
A majority of the Court (Lovell and Bleby JJA) dismissed the appeal, finding that the sentence was not manifestly excessive. They reasoned that the appellant had engaged in drug trafficking on three separate occasions, with the final instance representing a significant escalation driven by profit. In contrast, Livesey JA would have allowed the appeal and resentenced the appellant. Livesey JA held that sentencing guidance should not be applied mechanically and that the sentencing court's discretion must be preserved. The judge emphasised that the appeal court must consider the individual sentences and their starting points, as well as the overall effect, before determining manifest excess or inadequacy. Livesey JA concluded that the starting points for the first two offences, and the ultimate sentence, were manifestly excessive given the less serious circumstances of those offences compared to the third.
Livesey JA would have allowed the appeal, quashed the original sentence, and resentenced the appellant to a head sentence of nine years imprisonment, with a minimum mandatory non-parole period of seven years, two months, and thirteen days, backdated to commence on 6 March 2020.
Orders
Orders of the court
Held (per Lovell and Bleby JJA), dismissing the appeal:
1. The relevant starting points in this case, for the purposes of considering the complaint of manifest excess, are the separate starting points imposed in respect of each sentence.
2. The sentence was not manifestly excessive. The appellant engaged in drug trafficking on three separate occasions, the last of which involved a serious escalation as the appellant was motivated principally by profit.
Held (per Livesey JA), allowing the appeal and re-sentencing the appellant:
1. Whilst sentencing guidance is important and must be followed, it is not the words of a statute and must not be applied mechanically so as to impose a tariff or fetter the discretion of the sentencing court.
2. The appeal court must commence with the individual sentences and their respective starting points, together with the overall effect of those starting points, before addressing the structure of the sentence and any other relevant features when determining whether a sentence is manifestly inadequate or manifestly excessive.
3. The markedly less serious circumstances of the first and second offending required that careful consideration be given to the extent of the allowances to be made for concurrency and totality, particularly by comparison with the third offending.
4. Looking at the first and second offending as a period of offending discrete from the third offending is merely one way of coming to grips with the degree of criminality associated with three episodes of offending occurring over two periods of time. The critical consideration remains the ultimate sentence and the proportion it bears to the overall criminality associated with the offending.
5. The starting point for the third drug offending was seven years and six months. The starting points of four years for the first offending and four years and six months for the second offending and the ultimate of sentence of five years, imposed after allowance was made for the guilty pleas, were manifestly excessive.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
On 7 April 2021, after considering the DPP Notice filed on 28 March 2021, President Kelly granted the appellant leave to appeal on the sole ground that the sentence was manifestly excessive. Whilst it is not necessary for the appellant to show any specific error in order to succeed, the appellant pointed to the following matters in support of his complaint of manifest excess:1.The overall starting point of 18 years imprisonment was manifestly excessive.2.Even if the combined starting point was not unreasonable, the starting point of eight years and six months imprisonment for the February 2019 and April 2019 offending was disproportionate to the quantities of the substances involved and failed to reflect the influence of the appellant’s addiction.3.The sentence for the third count, being a term of seven years and six months imprisonment, reflected 75 per cent of the maximum penalty prescribed by s 32(3) of the Controlled Substances Act and did not reflect the appellant’s culpability.4.Notwithstanding the adverse features of the offending, the appellant’s personal circumstances justified a more merciful approach to sentence that would not have undermined the importance of deterrence.Consideration of the appeal The principles concerning the manifest inadequacy or excess of a sentence are well-established.[19] In Dinsdale v The Queen, the High Court summarised those principles:[20]Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy of excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short.[19] See, e.g., Hili v The Queen (2010) 242 CLR 520, [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Dinsdale v The Queen (2000) 202 CLR 321, [6] (Gleeson CJ and Hayne J).[20] Dinsdale v The Queen (2000) 202 CLR 321, [6] (Gleeson CJ and Hayne J). An appellant will not succeed on an appeal against sentence merely because the appeal court would have exercised its discretion differently from the manner in which the sentencing judge exercised his or her discretion.[21] It is not enough that the appellate court would have imposed a different sentence to that imposed by the sentencing judge.[22] Rather, the appellant must demonstrate either that the sentence was unreasonable or plainly unjust, or the result of specific error on the behalf of the sentencing judge. As was said in Markarian v The Queen:[23]As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King,[24] itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentence allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentence not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust. It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.[21] Lowndes v The Queen (1999) 195 CLR 665, [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).[22] R v Jongewaard [2009] SASC 346, [40] (Doyle CJ, with whom Layton and Kourakis JJ agreed); R v Kreutzer (2013) 118 SASR 211, [8] (Kourakis CJ); R v Wheeler [2015] SASCFC 83, [20] (Stanley J, with whom Gray and Peek JJ agreed).[23] Markarian v The Queen (2005) 228 CLR 357, [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).[24] House v The King (1936) 55 CLR 499, 504-505.