Holloway v The King - [2023] SASCA 130

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HOLLOWAY v THE KING
[2023] SASCA 130
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David)
30 November 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - IMPORT-EXPORT OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
Appeal against sentence.
The appellant, Ms Holloway, pleaded guilty to the offence of trafficking in a large commercial quantity of a controlled drug. The sentencing Judge in the District Court imposed a sentence of eight years and six months, with a non-parole period of five years.
The appellant was found with approximately 10 kg of 1,4-Butanediol in her luggage when she arrived at Adelaide Airport from Germany. She was later found in possession of an additional 252 g of the drug. Pursuant to section 32(1) of the Controlled Substances Act 1984 (SA), the maximum penalty for trafficking in a large commercial quantity of a controlled drug is imprisonment for life or $1,000,000, or both.
The appellant pressed the following appeal grounds:
1.The head sentence and non-parole period imposed was manifestly excessive;
2.The learned sentencing Judge erred by sentencing the applicant on the basis that she fell above a ‘middle order dealer’ as described in R v Young;
3.The learned sentencing Judge erred by having regard to sentencing remarks from the WA District Court without permitting counsel an opportunity to be heard prior to sentence or object;
4.The learned sentencing Judge erred by using the sentencing remarks from the WA District Court as a prior inconsistent statement;
5.The learned sentencing Judge erred in sentencing the applicant on the basis she would traffic the drug on a ‘significant wholesale’ basis.

Held per Kourakis CJ (Bleby and David JJA agreeing), dismissing the appeal:
1. The appellant has not established the errors complained of in the appeal grounds.
2. The sentence was not manifestly excessive.
Controlled Substances Act 1984 (SA) s 32(1); Prisoners (Interstate Transfer) Act 1982 (SA); Prisoners (Interstate Transfer) Act 1983 (WA), referred to.
R v Lian [2023] SASCA 122; R v Young (2016) 126 SASR 41, considered.

HOLLOWAY v THE KING
[2023] SASCA 130
Court of Appeal – Criminal: Kourakis CJ, Bleby and David JJA

KOURAKIS CJ: The appellant, Ms Holloway, appeals with leave on some grounds (and seeks leave on others) against a sentence of eight years and six months with a non-parole period of five years, imposed by a Judge in the District Court on her conviction of the offence of trafficking in a large commercial quantity of 1,4-Butanediol (butanediol). I would dismiss the appeal for the reasons which follow.
The offence
Ms Holloway was found with about 10 kg…

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 Holloway v The King

Details

AGLC: Holloway v The King [2023] SASCA 130
Case: [2023] SASCA 130
Decision Date: 30 November 2023

CaseChat Overview and Summary

The appeal concerned the sentence imposed on Holloway following his conviction for drug offences. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Bleby JA, and David JA.

The central legal issue before the Full Court was whether the sentence imposed on Holloway was manifestly excessive, thereby providing grounds for appellate interference.

The Court unanimously dismissed the appeal. The Chief Justice, whose reasons were adopted by Bleby JA and David JA, concluded that the sentence was not manifestly excessive. While the specific details of the sentencing reasons are not provided in this extract, the outcome indicates that the Court found no error in the sentencing judge's determination of an appropriate penalty for the drug offences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The sentence was not manifestly excessive.Conclusion I would dismiss the appeal. BLEBY JA: I would dismiss the appeal for the reasons given by the Chief Justice. DAVID JA: I would dismiss the appeal for the reasons given by the Chief Justice.

Ratio Decidendi

Legal Principle Established

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