Pateras v The Queen

Case [2021] SASCA 107

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…

Continue reading Pateras v The Queen

Sign in free to access the full text

Details
AGLC
Pateras v The Queen [2021] SASCA 107
Case
[2021] SASCA 107
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant for trafficking methylamphetamine. The appellant contended that the sentencing judge made errors leading to a manifestly excessive sentence, and alternatively, that the sentence should have been suspended or served via home detention. The offending involved the appellant being found with 7.39 grams of methylamphetamine, approximately 50% pure, along with drug paraphernalia. The appellant admitted to trafficking this quantity and stated he had been dealing for two months, conducting between 10 and 20 deals, to fund his significant methylamphetamine habit.

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

On appeal, the appellant contended that the Sentencing Judge made a number of “process errors” leading to the sentence imposed being manifestly excessive. He also submitted that the sentence of imprisonment should have been suspended or that he should have been allowed to serve the sentence on home detention.BackgroundThe offending On 4 May 2019, the appellant was a passenger in a vehicle driven by his partner. At approximately 10:30pm the police observed the vehicle drive past them without its headlights operating. Police conducted a traffic stop of the vehicle. Whilst police were questioning the appellant’s partner, the appellant interjected and was observed by police to be apparently under the influence of an illicit drug. They formed the suspicion that there may be drugs inside the vehicle and advised the appellant and his partner of their intention to conduct a search of the vehicle. The police observed the appellant drop a bag onto the ground and kick it away. A search of the bag revealed three plastic resealable bags containing what appeared to be methylamphetamine, an ice pipe and a set of scales. Later analysis revealed that the substance weighed 7.39 grams and contained approximately 50% methylamphetamine. The police arrested the appellant. The appellant then participated in an interview with police. He admitted that on the night in question he had been trafficking about seven grams of methylamphetamine that was approximately 50% pure. The appellant told police that he had been dealing for two months and had conducted between 10 and 20 deals at that time selling methylamphetamine in half-gram lots for $150. The appellant stated he was a long-time user of methylamphetamine, his habit had significantly increased and he had begun dealing to pay for his habit and to put food and drinks in the fridge.Submissions before the Sentencing Judge Despite the admissions to police the appellant initially pleaded not guilty to the charge. The matter was listed for trial on 29 March 2021. However, on 26 February 2021 the appellant was arraigned and pleaded guilty. On 26 March 2021, submissions were made before the Sentencing Judge. A dispute arose as to the appropriate basis for sentencing. The prosecution alleged that the appellant’s trafficking was motivated by profit. The appellant maintained the position he stated during his interview that he sold drugs only to support his addiction. The appellant gave evidence and was cross-examined. In his reasons for sentence the Sentencing Judge found that the appellant had established, on the balance of probabilities, that he was a street dealer “selling methylamphetamine largely to defray the cost of [his] habit”. That is, he accepted the basis for sentencing urged by the appellant. At the time of sentence, the appellant was 33 years of age. After finishing school, he worked driving semi-trailers for his father’s business making deliveries for a soft drink manufacturer. The manner of distribution changed causing the business to close and the appellant lost his job. This occurred approximately two months prior to the offending in May 2019. Prior to losing this job, the appellant had been a user of methylamphetamine; after the loss of his job, his use of the drug became greater. At the time of the offending, the appellant was living with his grandparents who supported him by providing, amongst other things, food, clothing and petrol.

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

Full text does not contain this section.