Liddicoat v The Queen - [2021] SASCA 18

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
LIDDICOAT v THE QUEEN
[2021] SASCA 18
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)
25 March 2021

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - MANUFACTURING, PRODUCING OR CULTIVATING - CANNABIS
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
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
Application for permission to appeal against sentence.
The applicant pleaded guilty to one count of cultivating a commercial quantity of controlled plants for sale and one count of possessing prescribed equipment contrary to ss 33B(2) and 33LA(a) respectively of the Controlled Substances Act 1984 (SA). In addition, he pleaded guilty to three counts of abstracting or diverting electricity contrary to s 85(1)(a) of the Electricity Act 1996 (SA). He was sentenced by a Magistrate to one year and eight months imprisonment with a non-parole period of 10 months.
The applicant seeks permission to appeal, pursuant to s 42 of the Magistrates Court Act 1991 (SA), on the grounds that the Magistrate erred in failing to suspend the sentence or to order the sentence to be served by way of home detention, and that the sentence was manifestly excessive in the circumstances.
Held, per Bleby JA (Kelly P and Lovell JA agreeing), granting permission to appeal and dismissing the appeal:
1. It was clearly open to the Magistrate not to suspend the sentence and not to order that the sentence be served on home detention.
Controlled Substances Act 1984 (SA) ss 33B(2), 33LA(a); Electricity Act 1996 (SA) s 85(1)(a); Magistrates Court Act 1991 (SA) s 42(2)(ab); Sentencing Act 2017 (SA) ss 69(2), 71(1), 96, Sch 1 cl 1; Criminal Law (Sentencing) Act 1988 (SA) s 33BB(1), referred to.
R v Best [2017] SASCFC 55; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; R v Skinner (2016) 126 SASR 120; R v Tsonis (2018) 131 SASR 416; R v Yavuz, Soyler and Bayraktar (2018) 130 SASR 231; R v Filipponi (2016) 126 SASR 464; R v Dell & Dell (2016) 126 SASR 571, considered.

LIDDICOAT v THE QUEEN
[2021] SASCA 18

Court of Appeal – Criminal: Kelly P, Lovell and Bleby JJA

KELLY P: I agree with Bleby JA.
LOVELL JA: I agree with the reasons of Bleby JA and the orders he proposes.
BLEBY JA: This is an application for permission to appeal against sentence.
The applicant pleaded guilty to the following offences:
·Count 2: cultivating a commercial quantity of controlled plants for sale contrary to s 33B(2) of the Controlled Substances Act 1984 (SA) (CSA). The maximum penalty for this offence is imprisonment for 25 years or a fine…

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.

Continue reading Liddicoat v The Queen

Details

AGLC: Liddicoat v The Queen [2021] SASCA 18
Case: [2021] SASCA 18
Decision Date: 25 March 2021

CaseChat Overview and Summary

The appellant, Liddicoat, appealed against a sentence imposed by a Magistrate for the offence of manufacturing cannabis. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The central legal issue before the Full Court was whether the Magistrate erred in refusing to suspend the appellant's sentence of imprisonment or to order that it be served by way of home detention. This required the Court to consider the principles governing the imposition of custodial sentences, suspended sentences, and home detention orders in the context of drug offences.

The Full Court, comprising Bleby JA, Kelly P, and Lovell JA, held that it was open to the Magistrate to refuse to suspend the sentence and to decline to order home detention. The Court did not provide detailed reasons for this conclusion in the provided text, but the decision indicates that the Magistrate's sentencing discretion was not improperly exercised.

Permission to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

Held, per Bleby JA (Kelly P and Lovell JA agreeing), granting permission to appeal and dismissing the appeal:

1. It was clearly open to the Magistrate not to suspend the sentence and not to order that the sentence be served on home detention.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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