Kroon v The Queen

Case [2022] SASCA 77

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ROBINSON (A PSEUDONYM) v THE QUEEN

[2022] SASCA 77

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice David)

4 August 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH

The appellant drove the co-accused in his vehicle to collect cannabis from Adelaide. While transporting the drugs back to Whyalla, police stopped and searched the vehicle. 2.578 kilograms of cannabis was located, concealed in sleeping bags on the rear seat.

The appellant pleaded guilty to one count of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984 (SA). He was sentenced to two years, five months and 28 days' imprisonment.

The appellant appeals against his sentence on the ground that the sentence imposed was manifestly excessive. He seeks permission to appeal on the ground that the sentencing Judge erred in failing to find that exceptional circumstances existed that enabled him to suspend the sentence imposed.

Held, per the Court, granting permission to appeal on Ground 1 but dismissing the appeal:

1.   The sentence imposed by the sentencing Judge was within the appropriate range.

2. Whether "exceptional circumstances" exist, for the purposes of s 96(6) of the Sentencing Act 2017 (SA), requires a consideration of both the factual basis of the offending, and the circumstances personal to the defendant.

3.   The sentencing Judge erred in confining his analysis of whether "exceptional circumstances" existed to only those matters related to the offending. His Honour failed to also include in that analysis a consideration of the personal circumstances of the appellant.

4.   Upon a separate and independent application of the sentencing discretion, no exceptional circumstances exist that warrant a suspension of the term of imprisonment imposed.

Sentencing Act 2017 (SA) s 96(6); Criminal Law (Sentencing) Act 1988 (SA) s 38(2ba); Controlled Substances Act 1984 (SA) s 32(1), referred to.
Hackett v the Queen [2021] SASCA 32; R v Bagguley [2015] SADC 137 ; R v Barnett (2009) 198 A Crim R ; R v Kelly [2000] QB 198 at 208; R v Lombardi (2013) 115 SASR 577 ; R v Skinner (2016) 126 SASR 120; R v Yavuz (2018) 130 SASR 231; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 , considered.

ROBINSON (A PSEUDONYM) v THE QUEEN
[2022] SASCA 77

Court of Appeal – Criminal:    Livesey P, Lovell and David JJA

  1. THE COURT: Mr Robinson, the appellant, agreed to drive the co-accused, Mr Henry (a…

Continue reading Kroon v The Queen

Sign in free to access the full text

Details
AGLC
Kroon v The Queen [2022] SASCA 77
Case
[2022] SASCA 77
Decision Date

CaseChat Overview and Summary

The appellant, Kroon, appealed against a sentence imposed by a sentencing judge for drug trafficking offences. The dispute concerned the appropriate sentence for his involvement in transporting a significant quantity of cannabis. The appeal was heard by the Supreme Court of South Australia.

The primary legal issue before the Court was whether the sentencing judge had erred in exercising their discretion by failing to adequately consider all relevant circumstances, including the appellant's personal circumstances, when determining the sentence. A further issue was whether exceptional circumstances existed that would warrant the suspension of the custodial sentence.

The Court found that the sentencing judge had likely confined their analysis solely to the offending conduct, which constituted an error vitiating the exercise of discretion. Consequently, the Supreme Court was required to exercise the sentencing discretion afresh. The Court considered the appellant's active participation in the drug transaction, including providing the vehicle, driving to facilitate the acquisition of cannabis, and allowing it to be concealed in his car. While acknowledging the appellant's difficult personal history, reasonable work history, and lack of prior convictions, the Court concluded that these circumstances did not rise to the level of "exceptional circumstances" required to suspend the sentence, particularly given the need for general deterrence in drug trafficking cases.

The Court granted permission to appeal on the ground relating to the sentencing discretion but ultimately dismissed the appeal, upholding the original sentence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

We will commence with a summary of the background to the offending and the circumstances personal to the appellant.BackgroundCircumstances of the offending In July 2020, the appellant agreed to drive the co-accused from Whyalla to Adelaide and back, for the purpose of collecting cannabis. The appellant was to be paid $50 and half an ounce of cannabis for his role. The appellant and co-accused drove from Whyalla to Adelaide and stayed at the White Horse Inn at Port Wakefield Road Bolivar. Early the next morning, the appellant drove his co-accused to the Cross Keys Hotel. While there, the appellant remained in the vehicle while his co-accused obtained the cannabis. The appellant saw his co-accused return to the car with the vacuum-sealed bags of cannabis. The appellant was not aware of the precise weight of the cannabis but saw the cannabis being placed into sleeping bags which were already inside the car. The appellant then began the return trip to Whyalla with the co-accused. The police conducted a traffic stop on the vehicle after witnessing the appellant overtaking another vehicle in a dangerous manner. Police noted a strong smell of cannabis emanating from the vehicle. Both the appellant and co-accused admitted to consuming cannabis the previous night. The co-accused further admitted that he had a small amount of cannabis in his backpack on the rear seat. Police conducted a search of the vehicle and located two large sleeping bags on the rear seat. Inside the sleeping bags were large black plastic bags, holding smaller bags containing cannabis. The total weight of the cannabis was 2.578 kilograms, which was valued in excess of $14,000. Also located inside the vehicle was a glass bong, a black axe, three small tins containing green vegetable matter and the appellant’s mobile phone. Assessment of the appellant’s phone found messages from the night before the arrest from the co-accused asking if the appellant wanted to stop at Bolivar Caravan Park for the night. The appellant and co-accused were arrested. The appellant admitted to knowing the cannabis was in the vehicle. The appellant accepted, by his plea of guilty, that he knew he was in possession of the cannabis with the intention to sell at least 2 kilograms of that cannabis. No evidence was adduced suggesting the offending was part of a course of conduct.Personal circumstances of the appellant At the time of sentence, the appellant was 31 years of age. He was born in Adelaide and raised in New South Wales. He is the youngest of five children. While the appellant was growing up, his father was abusive towards him and his mother. This abuse led him to attempt suicide before his tenth birthday. His father passed away in 2018 following cancer. His mother now lives in Geraldton although he has no contact with her. The appellant’s older siblings have families of their own, but he has little contact with them. The appellant gave evidence that after leaving school he worked at an abattoir until he was 19 years’ old. He did some work as a labourer and concreter. At the time of sentencing, he was engaged with Workskil at Gawler with a view to entering into a horticultural apprenticeship. The appellant had been with his partner for six years.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In our view, it is likely that the sentencing Judge did confine his analysis to the offending only. This is an error and vitiates the exercise of the sentencing discretion. Accordingly, this Court must exercise the discretion afresh.Consideration of whether exceptional circumstances are present We now turn to analyse whether exceptional circumstances exist. The appellant actively participated in the transaction. He provided the vehicle and drove the co-accused to Adelaide while cognisant of the illegal purpose of the trip. The appellant witnessed the transaction and then participated in the trafficking event by allowing the cannabis to be concealed inside his car; he then drove back to Whyalla in fulfilment of his part of the bargain. While he received little reward for his participation, his involvement was an important part of the transaction. There is a need for strong general deterrence against participation in the drug trade. Trafficking is defined widely in the Act to include minor participation in ancillary aspects of the offence.[17][17] R v Yavus (2018) 130 SASR 231at [117]. We have set out the personal circumstances of the appellant earlier in these reasons. We accept that he has a reasonable work history and no relevant prior convictions. While at the time of sentence he was in receipt of Centrelink benefits, he was then engaged with Workskil and hoping to obtain a horticultural apprenticeship. The sentencing Judge noted that the appellant had removed himself “from the temptation of involvement in cannabis” and that he had “stabilised [his] life”. In our view, taking into account all of the circumstances, it cannot be said that they so markedly change the nature of the particular case that it is no longer within the mischief which the legislature intended to address with the specified order generally to be made.[18] We do not consider that exceptional circumstances exist. We would refuse to order the suspension of the sentence. [18] R v Yavus (2018) 130 SASR 231at [115]. Accordingly, we are satisfied on a separate and independent exercise of the sentencing discretion that exceptional circumstances do not exist that warrant a suspension of the sentence. Orders It follows that while we would grant permission to appeal on Ground 1, we would dismiss the appeal.