SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
PATERAS v THE QUEEN
[2021] SASCA 107
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Livesey and the Honourable Justice Bleby)
7 October 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
The appellant was found in possession of 7.39 grams of a substance containing methylamphetamine and was charged with trafficking in a controlled drug. The appellant entered a plea of guilty one month prior to trial. A judge of the District Court imposed a term of imprisonment of three years and seven months and fixed a non-parole period of two years with the sentence to commence on 18 November 2020, the date the appellant had been remanded in custody. The Sentencing Judge did not find that a good reason existed to reduce the sentence by virtue of the guilty plea and declined to do so. The Sentencing Judge declined to suspend the sentence or order that it be served on home detention.
The appellant agitated a number of grounds of appeal against sentence, alleging that the Sentencing Judge committed various process errors. The appellant further contended that the Sentencing Judge erred in declining to reduce the sentence for the appellant’s guilty plea, that the sentence was manifestly excessive, and the sentence should have been suspended or served on home detention.
Held, by the Court, granting permission to appeal on Grounds 1.5 and 2, allowing the appeal, and resentencing the appellant:
1.The Judge erred in his interpretation of s 40(3)(e) of the Sentencing Act 2017 (SA). The sentencing discretion therefore miscarried.
2.The Sentence imposed in the District Court is set aside.
3.On resentence, the appellant is sentenced to two years, two months and 29 days imprisonment with a non-parole period of 10 months and 11 days. The sentence is suspended on the condition that the appellant enter into a good behaviour bond with conditions.
Bail Act 1985 (SA) s 21B; Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 19B; Sentencing Act 2017 (SA) s 5, s 11, s 29, s 40(3), s 40(5) , referred to.
Hackett v The Queen [2021] SASCA 32; House v The King (1936) 55 CLR 499; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; R v Bahrami [2020] SASCFC 111; R v De Simoni (1981) 147 CLR 383; R v Horstmann [2010] SASC 103; R v Mackay [2019] SASCFC 45; R v Pham (2015) 256 CLR 550; R v Wakefield (2015) 121 SASR 569; R v Wymond; R v Evans [2013] SASCFC…
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- Pateras v The Queen [2021] SASCA 107
- Case
- [2021] SASCA 107
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CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the sentencing judge erred in their interpretation of section 40(3)(e) of the Sentencing Act 2017 (SA), and consequently, whether the sentencing discretion had miscarried. The appellant also argued that the sentence imposed was manifestly excessive and that alternative sentencing options should have been considered. A key point of contention at the sentencing stage was the appellant's motivation for trafficking, with the prosecution arguing profit and the appellant maintaining it was to fund his addiction.
The Court of Appeal found that the sentencing judge had erred in their interpretation of section 40(3)(e) of the Sentencing Act 2017 (SA), which led to a miscarriage of the sentencing discretion. The Court allowed the appeal on these grounds. The original sentence of imprisonment was set aside. On resentence, the appellant received a sentence of two years, two months, and 29 days imprisonment, with a non-parole period of 10 months and 11 days. This sentence was then suspended on the condition that the appellant enter into a good behaviour bond with specified conditions.
Orders
Orders of the court
Held, by the Court, granting permission to appeal on Grounds 1.5 and 2, allowing the appeal, and resentencing the appellant:
1. The Judge erred in his interpretation of s 40(3)(e) of the Sentencing Act 2017 (SA). The sentencing discretion therefore miscarried.
2. The Sentence imposed in the District Court is set aside.
3. On resentence, the appellant is sentenced to two years, two months and 29 days imprisonment with a non-parole period of 10 months and 11 days. The sentence is suspended on the condition that the appellant enter into a good behaviour bond with conditions.
Background
Background to the litigation
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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