Supreme Court of South Australia
(Court of Appeal: Criminal)
JONES v THE KING
[2022] SASCA 115
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
3 November 2022
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 - MENTAL DISORDER
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - PROCEEDS OF CRIME, MONEY LAUNDERING AND RELATED OFFENCES
The appellant pleaded guilty to four counts of trafficking in a controlled drug, namely methylamphetamine and cannabis, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (Counts 1 to 4), and one count of money laundering, contrary to s 138(2) of the Criminal Law Consolidation Act 1935 (SA) (Count 5).
As to Counts 1 and 2, the sentencing Judge fixed a single penalty and commenced with a starting point of five years imprisonment. This was reduced by 25 per cent for the appellant’s guilty pleas to imprisonment for three years and nine months. As to Counts 3 to 5, the sentencing Judge again imposed a single penalty and adopted a starting point of eight years imprisonment. This was reduced by 15 per cent on account of the appellant's guilty pleas to imprisonment for six years, nine months, and 18 days.
The sentencing Judge ordered that the sentences be served wholly cumulatively, resulting in a head sentence of 10 years, six months, and 18 days imprisonment. A non-parole period of five years was fixed.
The appellant complains that the sentence imposed is manifestly excessive. The appellant also contends that the sentencing Judge erroneously characterised the appellant as a ‘recidivist’ offender; erred in failing to order the sentences for the two sets of offending be served wholly or partially concurrently; and did not have adequate regard to the appellant’s mental health in imposing the head sentence.
Held, per the Court, granting permission to appeal and allowing the appeal on Ground 1:
1.The sentence for Counts 1 and 2, while at the upper end of the permissible range, was not manifestly excessive.
2. The sentence for Counts 3 to 5 was manifestly excessive.
3.The accumulated head sentence for all offences was disproportionate to the offending and the appellant’s personal circumstances, including his compromised mental health.
4.The appellant is resentenced. In relation to Counts 1 and 2, the Court imposes one penalty of imprisonment for five years reduced by 25 percent to three years and nine months for the appellant's guilty pleas. As to Counts 3, 4 and…
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CaseChat Overview and Summary
The court was required to determine whether the original sentence imposed was manifestly excessive or inadequate, and to consider the impact of the appellant's mental disorder on sentencing. It also had to decide on the appropriate application of cumulative and concurrent sentences, and the extent to which guilty pleas should attract a reduction in sentence.
The court allowed the appeal, quashing the original sentence. It resentenced the appellant to a head sentence of eight years imprisonment, with a non-parole period of four years. This decision reflected a modest amount of partial concurrency between the sentences for the May and September offending, with the sentences for the May offending reduced by 25% for guilty pleas and the sentences for the September offending reduced by 15%. The court specifically noted that the non-parole period was set at approximately 50% of the head sentence to account for the appellant's compromised mental health. The sentence was ordered to commence from the date of the appellant's last custody.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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