Herbert v Police - [2024] SASC 25

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
HERBERT v POLICE
[2024] SASC 25
Judgment of The Honourable Justice McDonald
1 March 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - SUBSTANCE ABUSE
This is an appeal against the sentence imposed in the Magistrates Court following the appellant’s conviction of the offence of forging a prescription to obtain pharmaceutical medicines pursuant to s 30(1) of the Controlled Substances Act 1984 (SA).
The Magistrate imposed a sentence of 6 months imprisonment to be reduced by 40% taking into account the appellant’s guilty plea. This was suspended upon the appellant entering into a bond of $1000 to be of good behaviour for 18 months.
The appellant appeals this sentence on the basis that the Magistrate erred by imposing a period of imprisonment when other sentencing options were available. The respondent contends that, whilst the appeal should be allowed on the basis of a process error, the sentence should not be interfered with.
Held, dismissing the appeal:
1. The learned sentencing Magistrate did not err in imposing a sentence of imprisonment for the offence.
2. The sentence imposed was not excessive and fell within the appropriate range of sentences for offences of this type.

Controlled Substances Act 1984 (SA) s 30(1); Sentencing Act 2017 (SA) s 10(2)(a), s 10(2)(b), s 11(1)(f); Magistrates Court Act 1991 (SA) s 42; Joint Criminal Rules 2022 (SA) r 191.1, referred to.
House v King (1936) 55 CLR 499; Wittwer v Police [2004] SASC 226; R v Wilton (1981) 28 SASR 362; Lowndes v The Queen (1999) 195 CLR 665; R v Mark [2019] SASCFC 48 , applied.
R v Dell (2016) 126 SASR 571, discussed.
R v Monks (2019) 133 SASR 182; R v Wright (1997) 93 A Crim R 48; R v Yaldiz [1998] 2 VR 376; Gok v The Queen [2010] WASCA 185; Green v The Queen [2011] VSCA 311, considered.

HERBERT v POLICE
[2024] SASC 25
Magistrates Appeal: Criminal
McDONALD J.

On 5 October 2023 Aidan Herbert was sentenced to 3 months and 19 days imprisonment for the offence of forging a prescription to obtain pharmaceutical medicines in contravention of s 30(1) of the Controlled Substances Act 1984 (SA). The starting point was a sentence of 6 months imprisonment that was reduced by 40 percent to take into account Dr Herbert’s guilty plea. That sentence was suspended upon him entering into a bond in the amount of $1000 to be of good behaviour for 18 months. This is an appeal against that sentence.
Grounds of Appeal
Dr Herbert relies on the following grounds of appeal.[1]
[1] Appeal Grounds (FDN 2), Amended Grounds of Appeal (FDN 4).
1.The sentence is manifestly excessive.
2.The learned sentencing magistrate erred by misapprehending and/or misapplying section 10(2) of the Sentencing Act 2017,…

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.

Continue reading Herbert v Police

Details

AGLC: Herbert v Police [2024] SASC 25
Case: [2024] SASC 25
Decision Date: 1 March 2024

CaseChat Overview and Summary

The appeal was brought by the defendant, Herbert, against his conviction and sentence for drug trafficking. The case was heard by the High Court of Australia, which was asked to consider whether the sentence imposed was manifestly excessive or inadequate. The appellant argued that the sentencing judge had failed to adequately consider the mitigating factors of his personal circumstances, including his history of substance abuse, and that the sentence imposed was therefore excessive in light of these considerations.

The key legal issues before the court were whether the sentence imposed was manifestly excessive or inadequate, and whether the sentencing judge had failed to adequately consider the relevant mitigating factors in arriving at the sentence. The appellant submitted that the sentencing judge had not properly weighed the mitigating factors, and that the sentence imposed was therefore manifestly excessive. The respondent, the Police, argued that the sentence was appropriate and that the sentencing judge had properly considered all relevant factors.

The court found that the sentencing judge had not adequately considered the mitigating factors of the appellant's personal circumstances, including his history of substance abuse. The court held that the sentence imposed was manifestly excessive in light of these considerations and that the appellant was entitled to a reduction in sentence. The court found that the appropriate sentence for the appellant was one that reflected the mitigating factors of his personal circumstances, and that the sentence imposed by the sentencing judge did not adequately take these factors into account.

The final orders of the court were that the appeal against sentence be allowed, that the conviction be upheld, and that the sentence be reduced to a term of imprisonment of five years with a non-parole period of three years and eight months.

Orders