Green (a pseudonym) v The King

Case [2024] SASCA 147


SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

GREEN (A PSEUDONYM) v THE KING

[2024] SASCA 147

Judgment of the Court of Appeal  

(The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Auxiliary Justice Nicholson)

19 December 2024

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - RELEVANT MATTERS - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES

The applicant appeals against the sentence imposed in the District Court following guilty pleas to one count of trafficking in a large commercial quantity of a controlled drug, contrary to section 32(1) of the Controlled Substances Act 1984 (SA), and one count of possessing prescribed equipment, contrary to section 33LA(a) of the Controlled Substances Act 1984 (SA).

In [redacted], police found 8.84 kilograms of cannabis in the applicant's home, 5.89 kilograms of which were packaged for sale, with the remaining amount found loose in various bags and containers. This was the subject of the trafficking charge. A carbon filter was also found which was the subject of the prescribed equipment charge.

Previously, the applicant had been convicted of selling a large commercial quantity of a controlled drug [redacted] and a quantity of a controlled drug [redacted] and sentenced to imprisonment [redacted].

Following his arrest for the present offending, the applicant provided confidential assistance to police, informing them about a number of persons involved in other offences. This information resulted in a number of arrests, the laying of multiple charges and the seizure of a substantial amount of property.

The sentencing Judge began with a single term of imprisonment for eight years and applied the available common law discretion to allow a discount of around 15 per cent for the applicant's cooperation with police. A further discount of 35 per cent was applied following the 15 per cent reduction on account of the applicant's early guilty pleas. And a final reduction of two months was made to account for seven days served in custody and around 16 months spent on home detention bail.

Ultimately, the sentencing Judge imposed a single sentence of imprisonment for four years, two months and 20 days with a non-parole period of two years and nine months.

The sentencing Judge declined to suspend the sentence pursuant to sections 96(3)(c) and 96(6)(a) of the Sentencing Act 2017 (SA). And also declined to make a declaration under section 37 of the Sentencing Act 2017 (SA) which would provide a statutory basis for reduction in sentence following the applicant's cooperation with police.

A summary of the appeal grounds addressed at the hearing is as follows:

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Green (a pseudonym) v The King [2024] SASCA 147
Case
[2024] SASCA 147
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CaseChat Overview and Summary

This matter concerned an appeal against a sentence imposed on the appellant, identified as Green, by the District Court. The appeal focused on the refusal of the sentencing judge to make a declaration under section 37 of the Sentencing Act 1991 (SA) that would have allowed for a reduction in Green's sentence due to cooperation with law enforcement. The core of the dispute revolved around whether Green's cooperation met the stringent criteria set out in section 37(1)(b) of the Act, which requires cooperation to be provided in "exceptional circumstances."

The legal issues before the Full Court of the Supreme Court of South Australia were whether the sentencing judge erred in finding that Green's cooperation did not meet the requirement of being provided in exceptional circumstances, and consequently, whether the judge was correct in refusing to make a declaration under section 37 of the Sentencing Act. This section empowers a court to reduce a sentence if a defendant has cooperated with a law enforcement agency in combating serious and organised criminal activity, provided the cooperation is given in exceptional circumstances and contributes significantly to the public interest.

The Full Court affirmed the sentencing judge's decision, holding that the jurisdictional requirements for a declaration under section 37(1) must all be satisfied. While paragraphs (a) (cooperation relating to serious and organised criminal activity) and (c) (contribution to public interest) were not disputed, the court found that the sentencing judge was correct in her assessment that paragraph (b) – cooperation provided in exceptional circumstances – had not been satisfied. Consequently, the court found it unnecessary to determine whether paragraphs (a) and (c) were met, as the failure to satisfy paragraph (b) alone was sufficient to preclude the making of the declaration and the subsequent sentence reduction.

Orders

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Background

Background to the litigation

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Ratio Decidendi

Legal Principle Established

Section 37 of the Sentencing Act provides as follows.37—Reduction of sentences for cooperation etc with law enforcement agency(1)A court may declare a defendant to be a defendant to whom this section applies if the court is satisfied that the defendant has cooperated or undertaken to cooperate with a law enforcement agency and the cooperation—(a) relates directly to combating serious and organised criminal activity; and(b) is provided in exceptional circumstances; and(c) contributes significantly to the public interest.(2)In determining sentence for an offence or offences to which a defendant has pleaded guilty or in respect of which a defendant has been found guilty, the court may, if the defendant is the subject of a declaration under subsection (1), reduce the sentence that it would otherwise have imposed by such percentage as the court thinks appropriate in the circumstances.(3)In determining the percentage by which a sentence is to be reduced under this section, the court must have regard to such of the following as may be relevant:(a) if the defendant has pleaded guilty to the offence or offences—that fact and the circumstances of the plea;(b) the nature and extent of the defendant's cooperation or undertaking;(c) the timeliness of the cooperation or undertaking;(d) the truthfulness, completeness and reliability of any information or evidence provided by the defendant;(e) the evaluation (if any) by the authorities of the significance and usefulness of the defendant's cooperation or undertaking;(f) any benefit that the defendant has gained or is likely to gain by reason of the cooperation or undertaking;(g) the degree to which the safety of the defendant (or some other person) has been put at risk of violent retribution as a result of the defendant's cooperation or undertaking;(h) whether the cooperation or undertaking concerns an offence for which the defendant is being sentenced or some other offence, whether related or unrelated (and, if related, whether the offence forms part of a criminal enterprise);(i) whether, as a consequence of the defendant's cooperation or undertaking, the defendant would be likely to suffer violent retribution while serving any term of imprisonment, or be compelled to serve any such term in particularly severe conditions;(j) the nature of any steps that would be likely to be necessary to protect the defendant on release from prison;(k) the likelihood that the defendant will commit further offences,and may have regard to any other factor or principle the court thinks relevant.(4)In this section—serious and organised criminal activity includes any activity that may constitute a serious and organised crime offence within the meaning of the Criminal Law Consolidation Act 1935. The jurisdictional requirement for the making of a declaration and thereby enlivening the power to grant a sentence reduction in accordance with section 37, is the satisfaction of all of paragraphs (a), (b) and (c) in subsection 37(1). There was no dispute between the parties concerning the satisfaction of paragraph (a) and the Judge did not appear to take issue with paragraph (c). The Judge refused to make the enlivening declaration because her Honour did not consider paragraph (b) to have been satisfied. For the reasons which follow, the Judge was correct to do so; as such it is unnecessary to decide whether or not paragraphs (a) and (c) have, in fact, been satisfied.