Davidson v The Queen

Case [2021] SASCA 130

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

DAVIDSON v THE QUEEN

[2021] SASCA 130

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice Stanley)

4 November 2021

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 - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE

Application for permission to appeal against sentence and appeal against sentence.

The appellant pleaded guilty to one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and was sentenced to three years imprisonment (reduced from four years imprisonment on account of the appellant’s plea) with a non-parole period of 18 months.

The appellant was a passenger in a motor vehicle which was pulled over by police on suspicion of the commission of an offence. Police searched the vehicle and its occupants, and located drug paraphernalia and 0.89 grams of methylamphetamine. Upon seizure of the appellant’s phone, the police found text messages indicating that the appellant was engaged in the sale of methylamphetamine.

The appellant appeals against his sentence on the grounds that, first, the sentence was manifestly excessive in that the sentencing Judge failed to consider whether he should exercise his discretion to set a starting point below the lower level of the range recommended in R v Young (2016) 126 SASR 41, and secondly, that the sentencing Judge erred in failing to give adequate reasons for not suspending the appellant's sentence or ordering that it be served on home detention. The appellant was granted leave to appeal on the second ground by a single judge.

Held, per the Court, refusing permission to appeal on Ground 1 and dismissing the appeal:

1.      The sentencing Judge did not err in adopting a starting point of four years imprisonment. The circumstances of the case did not require a starting point below that level.

2.      The sentencing Judge’s reasons for declining to suspend the appellant’s sentence or ordering that it be served on home detention were adequate, and his Honour did not otherwise err in his exercise of these discretions. 

Controlled Substances Act 1984 (SA) s 32(3), referred to.
R v Young (2016) 126 SASR 41; Ndreka v The Queen [2021] SASCA 11; Dinsdale v The Queen (2000) 202 CLR 321; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; R v Morse (1979) 23 SASR 98; R v Kong (2013) 115 SASR 425; R v Yavuz (2018) 130 SASR 231; R v Mangelsdorf (1995) 66 SASR 60; R v Levy (2015) 122 SASR 445; R v Rombola

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Davidson v The Queen [2021] SASCA 130
Case
[2021] SASCA 130
Decision Date

CaseChat Overview and Summary

The appellant, Davidson, appealed against a sentence imposed by a sentencing judge for a drug trafficking offence involving methylamphetamine. The appeal was heard by the Court.

The primary legal issues before the Court were whether the sentencing judge erred in adopting a starting point of four years imprisonment for the offence, and whether the judge's decision to refuse to suspend the sentence or order it to be served by way of home detention was a misexercise of discretion.

The Court reasoned that the sentencing judge had not erred in selecting a starting point of four years imprisonment, finding that the specific circumstances of the case did not warrant a lower starting point. Furthermore, the Court concluded that the sentencing judge's reasons for declining to suspend the sentence or impose a home detention order were sufficient and that the judge had not otherwise erred in the exercise of these discretionary powers.

Consequently, the Court refused permission to appeal on the first ground and dismissed the appeal in relation to the second ground, finding that neither ground of appeal had been established.

Orders

Orders of the court

Held, per the Court, refusing permission to appeal on Ground 1 and dismissing the appeal:

1. The sentencing Judge did not err in adopting a starting point of four years imprisonment. The circumstances of the case did not require a starting point below that level.

2. The sentencing Judge’s reasons for declining to suspend the appellant’s sentence or ordering that it be served on home detention were adequate, and his Honour did not otherwise err in his exercise of these discretions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appeal in relation to the second ground of appeal should be dismissed.Conclusion For the reasons set out, neither ground of appeal has been made out. We refuse permission to appeal on the first ground, and dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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