Knight v The Queen

Case [2021] SASCFC 12

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

KNIGHT v THE QUEEN

[2021] SASCFC 12

Judgment of The Court of Criminal Appeal  

(The Honourable Justice Kelly, the Honourable Justice Livesey and the Honourable Justice Bleby)

19 February 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

The appellant pleaded guilty to three counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The charges related to two separate periods of offending. The first period of offending occurred in April 2018, when the police found the appellant in possession of two small bags of methamphetamine, containing 3.54g and 1.14 grams of methamphetamine respectively. This was street-level trafficking to fund the appellant’s methamphetamine habit.

In August 2018, the appellant was again arrested, this time for more serious offending relating to a total of 336 grams of methamphetamine which, if sold as individual doses, had a potential street value of $168,000. The sentencing Judge described the quantities trafficked in August 2018 as akin to that of a mid-range wholesaler, rather than a street-level dealer.

On 21 May 2020, the appellant was sentenced to a term of six years and eight months imprisonment, and fixed a non-parole period of five years and four months. The non-parole period was fixed at four-fifths of the head sentence because the appellant was sentenced as a “serious repeat offender” pursuant to s 54 of the Sentencing Act 2017 (SA).

Held, per Livesey J, and Kelly and Bleby JJ agreeing, allowing the appeal in part:

1. The appellant was appropriately sentenced in respect of her offending in April 2018 as a “street-  level trafficker” and, in relation to her August 2018 offending, as a “mid-level wholesaler”. The sentence of six years and eight months was not manifestly excessive.

2. The appellant’s personal circumstances were “exceptional” within the meaning of s 54(2) of the Sentencing Act 2017 (SA). Accordingly, it was open to the sentencing Judge to fix a non-parole period of less than fourth-fifths of the head sentence. Observations made about s 54 and prior provisions concerning "serious repeat offenders" and about "exceptional circumstances".

3. Whilst the error made in connection with the determination of the non-parole period enlivens this Court’s discretion to resentence generally, the head sentences were appropriate, as was the imposition of partial concurrency. On resentence, a non-parole period of three years is fixed, to commence from 21 May 2020.

Controlled Substances Act 1984 (SA) S 32(3); Sentencing Act 2017 (SA) S 54, S 53, S 52, S 51, S 3, S 4, S 93; Criminal Law (Sentencing) Act 1988 (SA) S 20BA, S 10, referred to.

R v Young (2016) 126 SASR 41; R v McIntosh [2017] SASCFC 87; R v Camarinha [2018] SASCFC 118; R v Karnage [2019] SASCFC 82

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Knight v The Queen [2021] SASCFC 12
Case
[2021] SASCFC 12
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CaseChat Overview and Summary

The appeal in *Knight v The Queen* concerned a challenge to the sentence imposed on the appellant for drug trafficking offences. The appellant was convicted of offences involving methylamphetamine.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the head sentence imposed was manifestly excessive and whether the sentencing judge had erred in determining the non-parole period, particularly in light of the appellant's personal circumstances and the provisions of the *Sentencing Act 2017* (SA) relating to serious repeat offenders.

The Court, comprising Kelly, Livesey and Bleby JJ, found that the appellant had been appropriately sentenced as a "street-level trafficker" for her April 2018 offending and as a "mid-level wholesaler" for her August 2018 offending, with the total head sentence of six years and eight months not being manifestly excessive. However, the Court determined that the appellant's personal circumstances were "exceptional" within the meaning of s 54(2) of the *Sentencing Act 2017* (SA), which permitted the sentencing judge to fix a non-parole period of less than four-fifths of the head sentence. The Court noted that while the offending showed a brazen escalation, it occurred within a short timeframe and without prior imprisonment for serious drug offences, and that the prospect of rehabilitation was an important consideration.

The Court allowed the appeal in part. While the head sentences and the imposition of partial concurrency were deemed appropriate, the Court resentenced the appellant by fixing a non-parole period of three years, to commence from 21 May 2020.

Orders

Orders of the court

Held, per Livesey J, and Kelly and Bleby JJ agreeing, allowing the appeal in part:

1. The appellant was appropriately sentenced in respect of her offending in April 2018 as a “street- level trafficker” and, in relation to her August 2018 offending, as a “mid-level wholesaler”. The sentence of six years and eight months was not manifestly excessive.

2. The appellant’s personal circumstances were “exceptional” within the meaning of s 54(2) of the Sentencing Act 2017 (SA). Accordingly, it was open to the sentencing Judge to fix a non-parole period of less than fourth-fifths of the head sentence. Observations made about s 54 and prior provisions concerning "serious repeat offenders" and about "exceptional circumstances".

3. Whilst the error made in connection with the determination of the non-parole period enlivens this Court’s discretion to resentence generally, the head sentences were appropriate, as was the imposition of partial concurrency. On resentence, a non-parole period of three years is fixed, to commence from 21 May 2020.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In addition, under s 54(2)(b), though the circumstances of the appellant’s offending demonstrated that there had been a brazen escalation into serious offending, this had occurred within a relatively short timeframe, in circumstances where the appellant had not previously been sentenced or imprisoned in connection with serious drug offending. The prospect of promoting the appellant’s apparently successful rehabilitation loomed as an important consideration. There was, therefore, good reason to think that it was not appropriate to sentence the appellant as a serious repeat offender.Conclusion In all of these circumstances, I would order:1.That the appeal be allowed.2.That the sentence imposed by the sentencing Judge be quashed.3.In its place, the appellant should be resentenced as follows:(1)For the April 2018 offending, the appellant is sentenced to three years and four months, reduced by 30 per cent on account of the guilty plea, to two years and four months;(2)In respect of the August 2018 offending, the appellant is sentenced to seven years, reduced by 20 per cent on account of the guilty pleas, to five years and seven months;(3)After allowance for partial concurrency, the appellant is sentenced to a term of imprisonment of six years and eight months;(4)In the circumstances proved, the requirements of s 54(2)(a) and s 54(2)(b) were satisfied and it was not appropriate that the appellant be sentenced as a serious repeat offender and, instead, a non‑parole period of three years is fixed;(5)The sentence and non‑parole period shall commence from 21 May 2020 when the appellant was first taken into custody. BLEBY J: I agree with the reasons of Livesey J and the orders he proposes.

Ratio Decidendi

Legal Principle Established

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