Ierodiaconou v Police - [2018] SASC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
IERODIACONOU v POLICE
[2018] SASC 105
Judgment of The Honourable Justice Nicholson
25 July 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence.
The appellant appeals against a sentence imposed in the Magistrates Court following his pleas of guilty to one count of cultivating cannabis with intent to supply, one count of possessing prescribed equipment and one count of diverting electricity. The Magistrate imposed a single sentence of imprisonment for two months and two weeks, suspended upon the appellant entering into a bond to be of good behaviour for two years.
The appellant contends that the sentence is manifestly excessive. The respondent concedes that the Magistrate erred with respect to the single discount given for the appellant’s early guilty pleas by imposing a single sentence for the three offences and not identifying the separate discounts that were called for.
Held per Nicholson J, dismissing the appeal:
1. Notwithstanding the Magistrate’s error with respect to the guilty plea discounts, a different sentence would not be imposed in undertaking a resentencing.
2. The seriousness of each of the three offences as committed and in combination is of such significance as to require imposition of a term of imprisonment. The personal considerations in favour of the appellant can be reflected in the length of the prison term and through its suspension.
Controlled Substances Act 1984 (SA) s 33K, s 33LA, s 45A; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) r 7, r 15; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 18A; Electricity Act 1996 (SA) s 85; Sentencing Act 2017 (SA) s 3, s 4, s 10; , Summary Offences Act 1953 (SA) s 21F, referred to.
R v Wakefield (2015) 121 SASR 569, applied.
R v Nemer (2003) 87 SASR 168, discussed.

IERODIACONOU v POLICE
[2018] SASC 105
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

Mr Ierodiaconou has appealed against a suspended sentence of imprisonment for two months and two weeks imposed in the Magistrates Court. The term of imprisonment was suspended upon the appellant entering into a bond to be of good behaviour for two years.
The one appeal ground initially relied on, as contained in the Notice of Appeal, is that the sentence is manifestly excessive. However, the respondent has conceded that the Magistrate erred with respect to his Honour’s approach to explaining and recording the discount given for the appellant’s early pleas such that the appeal should be allowed for this reason and the appellant resentenced in any event. The appellant has adopted this concession.
The parties are correct and I agree that, ordinarily, the appeal should be allowed for this reason and the appellant resentenced. However, for the reasons that follow, in undertaking a resentencing I would not impose a different sentence and, as a consequence, the appropriate order…

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.

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Details

AGLC: Ierodiaconou v Police [2018] SASC 105
Case: [2018] SASC 105
Decision Date: 25 July 2018

CaseChat Overview and Summary

In the case of Ierodiaconou v Police, the appellant challenged the sentence imposed by the Magistrates Court of South Australia, which convicted him of drug-related offences. The primary issue before the Supreme Court of South Australia was whether the Magistrates Court correctly applied the sentencing provisions of the Criminal Law (Sentencing) Act 1988 (SA) in determining the sentence. Specifically, the court had to consider whether the Magistrates Court erred in imposing a term of imprisonment given the appellant's personal circumstances and prospects for rehabilitation.

The Supreme Court examined the relevant provisions of both the Criminal Law (Sentencing) Act 1988 (SA) and the Sentencing Act 2017 (SA) to determine if imprisonment was appropriate. The court noted that while the appellant's personal circumstances and good prospects for rehabilitation were significant factors in favour of leniency, they did not preclude the imposition of a prison sentence. The court found that the seriousness of the offences warranted a term of imprisonment, but the sentence should reflect the appellant's personal circumstances through its length and suspension. The Supreme Court held that the Magistrates Court erred in its application of the sentencing act, but given the nature of the error and the fact that the sentence imposed was appropriate, the appeal was dismissed without altering the original sentence.

In conclusion, the Supreme Court determined that the sentence imposed by the Magistrates Court, while moderate, was appropriate given the circumstances. The court found that the error in applying the sentencing provisions did not necessitate a change in the sentence, and thus the appeal was dismissed. The Supreme Court clarified that the sentence would stand as imposed by the Magistrates Court, reflecting the balance of the various sentencing objectives and the appellant's personal circumstances.

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

NICHOLSON J

Notwithstanding the diminished, if not eliminated, role of personal deterrence in this case and the apparently very good prospects for the continued rehabilitation of this offender, other broad objectives of sentencing – the punishment of the offender or retribution so as to reflect society’s disapproval and rejection of the conduct in question and the deterrence of other persons from offending in these ways – remain very important considerations to be reflected in the nature of the penalty imposed. I take the view that the seriousness of each of the three offences in question as committed by the offender (and in combination) is of such significance in this case as to warrant the imposition of a term of imprisonment. The personal considerations in favour of the appellant should be reflected in the length of the prison term and through its suspension. However, they are not such as to render the offending such that imprisonment could not be justified in accordance with the provisions of the new Act, or indeed the old Act.Conclusion In my view, the length of the prison sentence imposed by the Magistrate was moderate, if not lenient, although the suspension of the prison term was plainly warranted. In these circumstances and given that this is a defence appeal, I would not sentence any differently. Accordingly, and notwithstanding the error of law earlier identified which ordinarily would lead to the Magistrate’s sentence being set aside and a fresh sentence imposed, the appropriate way to dispose of this appeal is to order that the appeal be dismissed. It is sufficient that I explain, as I have done, the nature of the error committed. However, being a process error, it does not form part of the ultimate sentence and, given that I would arrive at no lesser sentence than that imposed by the Magistrate, there is no reason why that sentence should not stand. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

I accept that the appellant’s personal circumstances are impressive, that they speak strongly in favour of leniency and that any perceived need for personal deterrence will have little role to play when formulating sentence, whereas the appellant’s very good prospects for rehabilitation have a substantial role to play. Consideration A question before the Court on this appeal is whether a sentence of imprisonment is available in the circumstances of this matter and if so, whether a sentence of imprisonment should be imposed. Section 11 of the Criminal Law (Sentencing) Act 1988 (SA) is in these terms.11—Imprisonment not to be imposed except in certain circumstances(1)A sentence of imprisonment may only be imposed—(a) if, in the opinion of the court—(i)the defendant has shown a tendency to violence towards other persons; or(ii)the defendant is likely to commit a serious offence if allowed to go at large; or(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or(b) if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in section 10.(2)This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence. There is no suggestion that a sentence of imprisonment would be justified by virtue of the considerations in (i), (ii) or (iii) in paragraph (a) or in paragraph (b) above. If the matter were to be determined pursuant to the old Act, the question before the Court would be whether any sentence other than a term of imprisonment would be inappropriate having regard to the gravity or circumstances of the offence. If regard is had to the relevant provisions of the Sentencing Act 2017 (SA), the position might be seen to be slightly different, although I express no concluded view in this respect. Sections 3 and 4 of the new Act provide for both primary and secondary sentencing purposes in the following terms.3—Primary sentencing purposeThe primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general).4—Secondary sentencing purposes(1)The secondary purposes for sentencing a defendant for an offence are as follows:(a) to ensure that the defendant—(i)is punished for the offending behaviour; and(ii)is held accountable to the community for the offending behaviour;(b) to publicly denounce the offending behaviour;(c) to publicly recognise the harm done to the community and to any victim of the offending behaviour;(d) to deter the defendant and others in the community from committing offences;(e) to promote the rehabilitation of the defendant.(2)Nothing about the order in which the secondary purposes are listed in subsection (1) implies that any 1 of those secondary purposes is to be given greater weight than any other secondary purpose.In very broad terms, but subject to leaving aside the question of weight inherent in the notions of primary and secondary, these primary and secondary sentencing purposes reflect the common law and traditional approach to sentencing that has been adopted in this Court to date. In R v Nemer,[9] Doyle CJ (with whose remarks, in this respect, both Prior and Vanstone JJ agreed) observed as follows.The sentencing of offenders who have committed serious crimes is difficult.The judge must impose a sentence arrived at by following the requirements of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). This requires consideration, putting things generally, of the penalty fixed by Parliament (usually a maximum only is specified), of the circumstances of the offence and of all of the matters affecting the sentence that are found in the Sentencing Act.The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.In different cases these considerations will operate in different ways and to differing degrees. As has been said, these considerations are no more than guideposts to the appropriate sentence and sometimes they point in different directions: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.[9] [2003] SASC 375; (2003) 87 SASR 168 at [4]-[7].