SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
QUICK v THE QUEEN
[2020] SASCFC 92
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Livesey)
25 September 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
Appeal against sentence.
The appellant pleaded guilty to five counts of trafficking in a large commercial quantity of cannabis contrary to s 32(1) of the Controlled Substances Act 1984 (SA).
On 25 May 2017, police located a cannabis trafficking operation at the appellant’s residence. A concealed room within a shed at the rear of the property contained cannabis and equipment for packaging cannabis. The appellant would package the cannabis and send the parcels to various addresses in Queensland. A co-offender, his wife, MQ, would collect the parcels of money sent from Queensland to the appellant’s postal box.
The appellant stated that he committed the offending at the suggestion of his Queensland co-offender, J, whom the appellant had met several years prior, as well as because of financial and psychological vulnerabilities. The appellant was sentenced to nine years imprisonment with a non-parole period of seven years and 72 days.
The sole ground of appeal was that the sentence imposed is manifestly excessive, based on four complaints: (1) the Judge failed to maintain an appropriate demarcation between the appellant’s culpability and that of a more senior participant in an operation of this kind; (2) the Judge’s summary of the appellant’s personal circumstances neutralised the extent to which the appellant was psychologically vulnerable at the time of the offending; (3) the Judge failed to take into account the appellant’s prospects of rehabilitation; and (4) the notional starting point was outside the available range.
Held per Nicholson J (Kourakis CJ and Livesey J agreeing) allowing the appeal in part:
1. The starting point for the head sentence in this case of a little more than 10 years was not outside the available range; it was not manifestly excessive.
2. The Judge erred in applying a guilty plea discount after first giving an undisclosed credit for time in custody and on home detention bail, that is, in not applying the discount to the true or effective starting point.
3. Appeal allowed solely to correct the error in 2.
4. Appellant resentenced to imprisonment for eight years, 11 months and 21 days with a non-parole period of seven years and 63 days commencing 5 August 2019.
Criminal Law Consolidation Act 1935 (SA) s 32; Sentencing Act 2017 (SA) s 26, s 54; Criminal Code Act 1995 (Cth) cl 400.9; Criminal Assets Confiscation Act 2005 (SA) s 42, referred to.
Hilfy v The Queen [2020] SASCFC 72; House v The King (1936) 55 CLR 499; R v Horstmann (2010) 269…
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CaseChat Overview and Summary
The Court was required to determine whether the sentence imposed was manifestly excessive, meaning it was unreasonable or plainly unjust after considering all relevant sentencing circumstances. This involved assessing the maximum penalty for the offence, the customary range of sentences for similar offences, the seriousness of the appellant's conduct, and the appellant's personal circumstances. The Court noted that appellate intervention on the ground of manifest excess is warranted only where the sentence imposed is so markedly different from other sentences imposed in comparable cases that it suggests a misapplication of sentencing principles, even if the specific error is not apparent.
The Court reiterated the principles for determining manifest excess, drawing on established High Court authority. It explained that a finding of manifest excess does not necessarily require the identification of a specific error of reasoning or an insufficient weighting of individual sentencing factors. Instead, it is a conclusion reached when, after considering all relevant factors, the sentence is found to be unreasonable or plainly unjust. The Court referred to its own previous observations in *Hilfy v The Queen* and the High Court's guidance in *Hili v The Queen* and *Wong*. The Court indicated that if the sentence imposed is so far outside the available range that error must be inferred, intervention may be justified.
Orders
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Background
Background to the litigation
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Evidence
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Ratio Decidendi
Legal Principle Established
Established by: NICHOLSON J
Counsel drew the Court’s attention to a number of other cases involving substantial trafficking in cannabis in support of the submission that a starting point of 10 years was outside the available range.Consideration The sole ground of appeal is manifest excess. I repeat the summary of the proper approach to this ground of appeal that I provided in Hilfy v The Queen.[10][10] [2020] SASCFC 72 at [36]-[37].The question of whether or not a sentence is manifestly excessive is to be determined by asking whether, after considering all the circumstances relevant to sentencing, and notwithstanding that no specific error of reasoning may be apparent, the sentence imposed was unreasonable or plainly unjust. Ordinarily, an appellate court when deciding the question of manifest excess will include in the factors to be considered: the maximum penalty for the relevant offence; the range of sentences customarily observed for the type of offence; the seriousness of the offence committed; and the personal circumstances of the offender. The task for an appellate court (in the context of a consideration of the cognate notion of manifest inadequacy) was explained in more detail by the High Court in Hili v The Queen. As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.(Footnotes omitted)(Footnotes omitted) It is not necessary to determine whether or not a sentencing Judge has made a specific error. Indeed, usually this will be difficult to demonstrate for otherwise it would have been raised in the notice of appeal as what is often described as a process error.[11] Nor is it necessary to consider whether or not a sentencing Judge has placed insufficient weight on individual sentencing factors. Such a finding, whilst, itself, not a process error may be inferred from a finding of manifest excess.[12][11] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, R v Horstmann [2010] SASC 103; (2010) 269 LSJS 42 at [36]-[38].[12] House v The King [1936] HCA 40; (1936) 55 CLR 499, R v Horstmann [2010] SASC 103; (2010) 269 LSJS 42.