(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice B Doyle)
10 April 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - OFFENCES COMMITTED IN DIFFERENT JURISDICTIONS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - PROPORTIONALITY
The applicant and a co-accused were charged on Information with conspiring to import a commercial quantity of a border controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code. Following a trial by jury, the applicant was convicted of the offence and was sentenced in respect of the federal offending.
At the time the applicant was sentenced for the conspiracy offence, he was serving a term of imprisonment for earlier offending involving the cultivation and sale of cannabis between April and October 2014 (the ‘State sentence’). The combined head sentence imposed for that offending was a term of 14 years imprisonment, commencing on 17 July 2017. As a result of a partially successful appeal, the applicant’s non-parole period was set at nine years.
In sentencing the applicant for the federal conspiracy offence, the judge imposed a term of imprisonment of 13 years and fixed a non-parole period of seven years. The judge directed that the sentence was to commence on 17 July 2026, being the date upon which the non-parole period fixed in respect of the State sentence will expire. In combination, the State sentence and the federal sentence under appeal amounts to an effective head sentence of 22 years, with a non-parole period of 16 years.
The applicant seeks permission to appeal against the federal sentence imposed, contending that:
1.the sentencing judge failed to apply the totality principle in the manner required by Mill v The Queen (1988) 166 CLR 59 in cases where the defendant to be sentenced is serving or is subject to a sentence for other offending (an alleged process error); and
2.when regard is had to the combined effect of the State and federal sentences, the head sentence imposed (and non-parole period) in respect of the federal sentence is manifestly excessive (an alleged outcome error).
Held, granting permission to appeal, allowing the appeal and setting aside the sentence imposed:
1. the sentence imposed was not manifestly excessive;
2.the sentencing judge did not consider whether the imposition of the head sentence of 13 years imprisonment commencing from the expiry of the non-parole period fixed for the State sentence was appropriate having regard to the total sentencing package that would have been imposed if the applicant had been sentenced for the State and federal offending at the same time;
3.a court may, consistently with s 19(1)(b) of the Crimes Act 1914 (Cth), direct that a sentence is to commence before the end of the non-parole period applying in respect of State or Territory sentences being served by the offender,…
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
Kola v The King [2025] SASCA 38
Case
[2025] SASCA 38
Decision Date
CaseChat Overview and Summary
The appeal concerned the sentence imposed on the applicant, Mr Kola, by the District Court of South Australia. Mr Kola pleaded guilty to a number of offences, including aggravated assault, and was sentenced to a term of imprisonment. The appeal was brought against this sentence.
The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in the exercise of their discretion by failing to adequately consider the principle of totality, particularly in light of sentences imposed in New South Wales for related offending. The Court was required to determine if the total sentence imposed in South Australia was manifestly excessive or otherwise unjust when viewed in conjunction with the New South Wales sentence.
The Court reasoned that the principle of totality requires a sentencing judge to consider the aggregate effect of all sentences imposed on an offender, especially where offences arise from a common course of conduct or are closely related. While acknowledging the distinct jurisdictions, the Court held that the sentencing judge had not given sufficient weight to the cumulative impact of the South Australian sentence on the overall period of imprisonment Mr Kola would serve. The Court applied the principle that sentences should be proportionate to the gravity of the offences and the offender's culpability, and that the totality principle is a crucial aspect of achieving this proportionality in cases involving multiple convictions.
The Full Court allowed the appeal, quashed the sentence imposed by the District Court, and resentenced Mr Kola to a lesser term of imprisonment, thereby giving effect to the principle of totality.