Jones v The King

[2022] SASCA 115

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…