Moran v The Queen

Case [2020] SASCFC 30

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

MORAN v THE QUEEN

[2020] SASCFC 30

Judgment of The Court of Criminal Appeal

(The Honourable Justice Bampton, The Honourable Justice Parker and The Honourable Justice Doyle)

30 April 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appeal against sentence imposed by a Judge – where the appellant pleaded guilty to participating in a criminal organisation – whether the appellant was a repeat serious offender.

Held (per Bampton J, Parker and Doyle JJ agreeing): Appeal allowed – the appellant was not a repeat serious offender – the appellant is resentenced to a head sentence of six years, two months, and 19 days and a non-parole period of three years and eight months.

Criminal Law Consolidation Act 1935 (SA) s 83D; Sentencing Act 2017 (SA) s 47, s 52, s 53, s 54, s 25(4), s 94, s 96; Criminal Code Act 1989 (Qld) s 69, s 320; Penalties and Sentences Act 1992 (Qld) s 144; Drugs Misuse Act 1986 (Qld); Criminal Law (Sentencing) Act 1988 (SA), referred to.
R v Culley [2019] SASCFC 143; R v Harradine [2019] SASCFC 144; X7 v Australian Crime Commission & Anor (2013) 248 CLR 92; Veen v The Queen (No 2) (1988) 164 CLR 465; Potter v Minahan (1908) 7 CLR 277; Coco v The Queen (1994) 179 CLR 427; R v Phanos (2015) 122 SASR 129; Stenecker v Police (2014) 120 SASR 18; Harmer v Police (2017) 127 SASR 320; R v Karnage [2019] SASCFC 82, considered.

MORAN v THE QUEEN
[2020] SASCFC 30

Court of Criminal Appeal:  Bampton, Parker and Doyle JJ

  1. BAMPTON J:     Ramon Moran was charged with the offence of participating in a criminal organisation contrary to s 83E of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) between 1 August 2015 and 28 May 2016 (“the participation offence”). He pleaded guilty to the participation offence on 25 July 2019, shortly before his trial in the District Court.

  2. Mr Moran and Christopher Khoury, who was also charged with the offence of participating in a criminal organisation and had pleaded guilty at committal, were sentenced by Judge in the District Court on 7 November 2019.

  3. A criminal organisation is defined by s 83D of the CLCA to mean (a) a criminal group or (b) a declared organisation. Mr Moran and Mr Khoury participated in a criminal group as defined by s 83D to be a group consisting of two or more persons (“the criminal group”), whose aim includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence that is intended to benefit the group, persons who participate in the group, or their associates.

  4. By their pleas, Mr Moran and Mr Khoury acknowledged that they occupied positions of leadership in the criminal group, the aims or activities of which were:

    (1)the trafficking of controlled drugs including methylamphetamine, MDMA, and cannabis within South Australia and…

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Moran v The Queen [2020] SASCFC 30
Case
[2020] SASCFC 30
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, Mr Moran, who had pleaded guilty to participating in a criminal organisation. The primary judge had characterised the offending as being within the most serious category of criminal offenders and had applied provisions relating to repeat serious offenders. Mr Moran appealed against this sentence.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether Mr Moran qualified as a "repeat serious offender" under the relevant legislation. This determination hinged on whether a partially suspended sentence previously imposed on Mr Moran in Queensland for a grievous bodily harm offence constituted a "suspended sentence" for the purposes of the legislation, thereby triggering the repeat serious offender provisions.

The Court allowed the appeal, holding that Mr Moran was not a repeat serious offender. The Court reasoned that the legislation concerning repeat serious offenders must be construed strictly, and any departure from the principle of proportionality in sentencing requires clear and express legislative intent. The Court found that the phrase "other than a suspended sentence" in the relevant section of the legislation did not, with irresistible clearness, exclude partially suspended sentences from its operation. Therefore, the partially suspended sentence imposed in Queensland did not fall within the category of sentences that would render Mr Moran a repeat serious offender under the South Australian provisions. Consequently, Mr Moran was resentenced to a head sentence of six years, two months, and 19 days, with a non-parole period of three years and eight months.

Orders

Orders of the court

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Background

Background to the litigation

I would allow the appeal on ground 1 and resentence Mr Moran. My reasons follow.Background Mr Moran and Mr Khoury, were sentenced based on the prosecution’s factual allegations as set out in the recommendation as to category and the prosecution’s outline of submissions as summarised in the Judge’s sentencing remarks. The Judge referred to the size and complexity of the criminal group Mr Moran and Mr Khoury participated in. Her Honour referred to a conversation captured on a listening device wherein Mr Moran admitted to dealing in significant quantities of methylamphetamine. Her Honour also referred to intercepted conversations involving Mr Moran and Mr Khoury, concerning hundreds of thousands of dollars in expenses being paid over the charged period. The offending was characterised as “a perceived business opportunity to make a lot of money very quickly, avoiding tax and other duties that may have been applied”. The Judge said that the offending put Mr Moran and Mr Khoury in a category of the most serious criminal offenders and that the offences they engaged in demonstrated the position that they held in the criminal group.Mr Moran’s antecedent history Mr Moran’s criminal history includes minor motor vehicle and dishonesty offending which did not result in the recording of convictions. He was also convicted and sentenced in Queensland for offending committed in 2008 and 2012 as follows.Sentence imposed on 23 July 2009 On 23 July 2009, Mr Moran pleaded guilty to offending committed on 22 March 2008 comprising the offence of going armed so as to cause fear contrary to s 69 of the Criminal Code Act 1989 (Qld) and the offence of causing grievous bodily harm contrary to s 320 of the Criminal Code Act 1989 (Qld). Mr Moran was sentenced to concurrent sentences of four months imprisonment for going armed so as to cause fear and three years and six months imprisonment for causing grievous bodily harm (“the 2008 GBH offence”). He was subject to an order pursuant to s 144 of the Penalties and Sentences Act 1992 (Qld) suspending the sentence after he had served 10 months imprisonment (“the partially suspended sentence”).Sentence imposed on 21 October 2016 On 20 February 2012, whilst serving the partially suspended sentence, Mr Moran committed the offence of trafficking in dangerous drugs (methylamphetamine) contrary to the Drugs Misuse Act 1986 (Qld) (“the 2012 trafficking offence”). Mr Moran was arrested in South Australia and charged with the participation offence on 25 May 2016. He was detained in custody until 2 June 2016 when he was granted home detention bail. He remained on home detention bail for 10 days until 12 October 2016 when he was granted permission to travel to Queensland to appear in the Supreme Court of Queensland in relation to the 2012 trafficking offence. Mr Moran pleaded guilty to the 2012 trafficking offence on 21 October 2016. The partially suspended sentence was revoked by the Supreme Court of Queensland and he was sentenced to six years imprisonment for the 2012 trafficking offence. The sentence was ordered to be served concurrently with the balance of the revoked partially suspended sentence, with a recommendation for release on parole after serving two years.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would reduce the head sentence and non-parole period by one month on account of time in custody and an allowance for home detention bail, leaving a head sentence of six years, two months, and 19 days and a non-parole period of three years and eight months, backdated to the date bail was revoked on 5 August 2019.Conclusion I would make the following orders:(1)Allow the appeal on ground 1.(2)Set aside the sentence imposed in the District Court on 7 November 2019.(3)Resentence Mr Moran to a head sentence of six years, two months, and 19 days and a non-parole period of three years and eight months, backdated to 5 August 2019. PARKER J: I agree with the reasons of Bampton J and the orders she proposes. DOYLE J: I agree with the reasons of Bampton J and the orders she proposes.

Ratio Decidendi

Legal Principle Established

In summary, the Director submitted that Mr Moran committed a significant drug trafficking offence during the term of the bond imposed by the Queensland Court in July 2009, which resulted in the Queensland Supreme Court ordering that he serve the balance of the 2009 partially suspended sentence. The Director submitted that the Judge was, therefore, correct in treating the partially suspended sentence as a qualifying occasion falling within the criteria of s 53(1)(b) given the fact that Mr Moran ended up serving that sentence in custody. To suggest otherwise, it was submitted, would be to effectively ignore the fact that the suspended sentence bond had been breached and the remainder of the sentence was served in custody. To ignore these fundamental sentencing implications for a relevant qualifying offence, it was submitted, is entirely contrary to the legislative policy of the SRO provisions, which are concerned with “protecting the safety of the public and personal and general deterrence [being] the paramount consideration”.[24][24] R v Karnage [2019] SASCFC 82 at [70] (Nicholson J).Consideration As stated in Phanos, the legislative encroachment on the common law sentencing principle of proportionality should be read strictly on the basis that departure from it is intended only when and to the extent expressly and clearly declared.[25] Further, the fact that the Legislature has decreed that a category of offenders be denied the protection of the principle is not a reason “to construe more widely the judicial power to declare offenders to be serious repeat offenders”.[26][25] (2015) 122 SASR 129 at [5].[26] R v Phanos (2015) 122 SASR 129 at [6]. If the SRO provisions were intended to apply to partially suspended sentences it must “be expressed with irresistible clearness”.[27] Put another way, the words “other than a suspended sentence” in s 52(3) do not express with irresistible clearness an intention on the part of the Legislature to apply the SRO provisions to partially suspended sentences.[28][27] X7 v Australian Crime Commission & Anor (2013) 248 CLR 92 at [158] (Keifel J).[28] R v Phanos (2015) 122 SASR 129. It must be obvious from the Act that the Legislature directed its attention to the exclusion of partially suspended sentences from the phrase “(other than a suspended sentence)” in s 52(3). The Director argued that the phrase should be interpreted as meaning “other than a wholly suspended sentence”. This interpretation is not obvious and it is certainly not expressed with irresistible clearness. The 2008 GBH offence is, pursuant to s 52(1)(h), an offence under the law of Queensland that would, if committed in this State, be a serious offence. It is also, pursuant to s 52(2), regarded as a serious offence as it carries a maximum penalty of at least five years imprisonment. The reference to “a suspended sentence” in s 52(3), in the absence of an irresistibly clear expression to the contrary, should be interpreted as meaning a sentence of imprisonment that if the sentencing court “thinks good reason exists for doing do so”[29] is suspended either wholly or partially. Accordingly, the partially suspended sentence imposed for the 2008 GBH offence is not a sentence of imprisonment for the purposes of s 52(3)(a). As such, the 2008 GBH offence is not an offence to which the SRO provisions apply.[29] Sentencing Act 2017 (SA) s 96(1).