Da Silva v The Queen

[2020] SASCFC 66

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

DA SILVA v THE QUEEN

[2020] SASCFC 66

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Livesey)

9 July 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - GENERALLY

Appeal against sentence.

The appellant pleaded guilty to two counts of trafficking in a controlled drug in September and October 2017 contrary to s 32(2) of the Controlled Substances Act 1984 (SA). He was sentenced for this offending in the District Court on 19 December 2019 to a term of imprisonment of five years, four months and 24 days, which was to be served cumulatively on an earlier sentence of seven years, four months and 23 days. This resulted in a total head sentence of 12 years, nine months and 18 days.

By virtue of s 47 of the Sentencing Act 2017 (SA) (“the Sentencing Act”) it was necessary to extend the existing non-parole period. Further, by reason of the appellant’s previous drug trafficking convictions in 2011 and 2017, he fell to be sentenced as a “serious repeat offender”. The consequence was that s 54(1)(b) of the Sentencing Act mandated that any non-parole period fixed was to be “at least four-fifths the length of the sentence”.

The sentencing Judge applied the “four-fifths rule” to the new, total head sentence of 12 years, nine months and 18 days and extended the existing non-parole period to 10 years and two months.

The appellant sought to appeal his sentence on five grounds, including that the sentencing Judge had erred in sentencing the appellant on an erroneous factual basis, namely that he had been sentenced in 2009 for possession of “a large commercial quantity” of methylamphetamine when in fact he had been sentenced for possession of that drug for sale (ground 1), and that the sentencing Judge had misapplied s 54(1)(b) of the Sentencing Act which resulted in a manifestly excessive non-parole period (ground 5). More particularly, in relation to ground 5, it was contended that the sentencing Judge had erroneously considered herself as bound to extend the non-parole period to at least four-fifths of the total of the accumulated sentences, rather than four-fifths of the sentence imposed for the drug trafficking offending committed between September and October 2017.

The Crown conceded that the sentencing Judge had sentenced the appellant on an erroneous factual basis and that her Honour had misapplied s 54(1)(b). It was contended that this Court was not required to intervene because the head sentence was not manifestly excessive, though it was accepted that it was open to this Court to quash the entire sentence and remit the matter for re-sentencing in the District Court.

Held, per Livesey J (Kourakis…