SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ILICH v THE QUEEN
[2021] SASCA 45
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Livesey)
26 May 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
On 20 August 2019, police attended the appellant’s home and detected “a number of carefully hidden items” including mixed methylamphetamine of nearly 1.2 kg in two bags and a Glock self-loading handgun. The Glock was fully operational and there was a large amount of ammunition, together with shotgun cartridges and a firearm handgrip.
Police also located $21,400.00 in cash in a black toiletries bag. Police had previously seized $20,400.00 in cash from the appellant on 21 March 2019, and a further $11,655.00 on 31 May 2019.
The appellant was charged with trafficking in a large commercial quantity of methylamphetamine contrary to s 32(1) of the Controlled Substances Act 1984 (SA), aggravated possession of a category H firearm whilst not holding a licence authorising possession of that firearm, contrary to s 9(1) of the Firearms Act 2015 (SA), possessing a firearm whilst a firearms prohibition order was in force, contrary to s 45(2) of the Firearms Act 2015 (SA) and money laundering contrary to s 138(2) of the Criminal Law Consolidation Act 1935 (SA).
Pursuant to s 26 of the Sentencing Act 2017 (SA), the sentencing Judge imposed one sentence of 15 years imprisonment. This sentence was reduced by 20 per cent on account of the appellant’s guilty pleas, resulting in a sentence of 12 years imprisonment. A non-parole period of at least four-fifths of the head sentence was required to be fixed pursuant to s 53 of the Sentencing Act 2017 (SA).
The appellant appealed on eight grounds. At an earlier hearing before two Judges of the Court of Appeal, he was granted permission to appeal on the ground of manifest excess. Permission to appeal other grounds was either refused or referred to this Court for argument as on appeal:
1. The appellant contended that there had been no charge determination or committal appearance, and that his former solicitors and senior counsel had erred in conceding that he was entitled to a plea reduction of up to 20 per cent rather than 30 per cent.
2. The appellant contended that he should have been permitted to withdraw his plea of guilty to the trafficking charge and that the prosecution should not have been permitted to amend to plead that the nearly 1.2 kg substance was “mixed”.
3. The appellant contended that…
Continue reading Ilich v The Queen
Sign in free to access the full text
- AGLC
- Ilich v The Queen [2021] SASCA 45
- Case
- [2021] SASCA 45
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal included whether the sentencing judge erred in refusing to allow the appellant to withdraw his guilty plea, whether the judge erred in allowing the prosecution to amend the Information, and whether the sentence imposed was manifestly excessive. The Court also considered the significance of the absence of the allocutus when determining whether to allow a guilty plea to be withdrawn or a charge to be amended.
The Court reasoned that the appellant's attempt to seek a reduction in sentence of up to 30 per cent was without merit, particularly as his guilty pleas were entered late. The Court found that the sentencing judge did not err in refusing to allow the withdrawal of the guilty plea or in permitting the amendment of the Information, as these actions ensured the charge accurately reflected the appellant's offending and were permissible under the Criminal Procedure Act 1921 (SA) without causing prejudice. The Court held that the starting point of 12 years imprisonment was not manifestly excessive for trafficking a large commercial quantity of a substance containing approximately 60 per cent pure methylamphetamine, given the need for personal and general deterrence and punishment.
The Court of Appeal refused permission to appeal on one ground and dismissed the appeal on another. The Court concluded that the sentencing judge had not erred in the exercise of his broad sentencing discretion, given the significant harm caused by methylamphetamine and the need for a strong response from the sentencing court.
Orders
Orders of the court
Held (by the Court), refusing permission to appeal and dismissing the appeal:
1. Counsel for the appellant attempted to press arguments concerning the grounds on which permission had been refused. Where the Court of Appeal has refused permission to appeal certain appeal grounds those grounds cannot be resurrected under the umbrella of a broader argument for which permission has been granted.
2. The appellant did not enter guilty pleas until the answer charge hearing in the Magistrates Court during August 2020, more than four weeks after the committal appearance in April 2020. The attempt to seek a reduction of up to 30 per cent is without merit and the suggestion that errors were made and wrong advice was given by the appellant’s former solicitors and senior counsel is, likewise, without merit and should not have been made.
3. The sentencing Judge did not err in refusing the appellant permission to withdraw his guilty plea and in allowing the prosecution to amend the Information. By this strategy the appellant cannot obtain a reduction higher than 20 per cent. The Judge merely ensured that the charge reflected the substance of the appellant’s offending. Sections 128 and 181 of the Criminal Procedure Act 1921 (SA) are capable of applying at any stage of criminal proceedings, subject to there being no prejudice or injustice.
4. Observations made regarding the significance to be given to the absence of the allocutus when determining whether to allow a guilty plea to be withdrawn or whether a charge may be amended.
5. Given the need to reflect the distinction between the three tiers in the hierarchy of trafficking offences in s 32 of the Controlled Substances Act 1985 (SA), it cannot be said that the starting point of 12 years was manifestly excessive for trafficking a large commercial quantity of a mixed substance containing around 60 per cent pure methylamphetamine.
6. The appellant’s offending required a strong response from the sentencing court given the evident need for personal and general deterrence, as well as punishment.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.