R v Bennett - [2015] SASCFC 164

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BENNETT
[2015] SASCFC 164
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
12 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS OTHER RELATED OFFENDERS - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS OTHER RELATED OFFENDERS - GROUNDS FOR DISCRIMINATION BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS - PERSONAL FACTORS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
Appeal against sentence. The defendant pleaded guilty to one count of trafficking in a controlled drug. He was sentenced by a Judge of the District Court to a head sentence of three years and eight months of imprisonment, with a non-parole period of 15 months. The defendant was sentenced with two co-offenders in respect of this offence, Travis Davis and Alana Hill. The head sentence had been reduced on account of the defendant’s plea of guilty by 26.67 per cent. Pursuant to section 10C of the Criminal Law (Sentencing) Act 1988 (SA) the defendant was entitled to a reduction of up to 30 per cent.
Whether the reduction made by the Judge on account of the defendant’s plea of guilty was inadequate. Whether there was as a material disparity between the sentence imposed on the defendant and the sentences imposed on his co-offenders. Whether the sentence imposed was manifestly excessive.
Held per the Court:
1.       The sentence imposed was not manifestly excessive.
2.       When the entire sentences imposed on Davis and the defendant are considered, there is no relevant disparity.
3.       In sentencing Hill, the Judge was entitled to have been influenced by the significant steps Hill had taken toward rehabilitation.
Held per Gray J (allowing the appeal)(Peek J agreeing):
1.       If a sentencing judge considers it necessary or desirable to depart from the maximum discount for the guilty plea, this Court has indicated that it is desirable for reasons for the departure to be provided, in part to ensure that practitioners are in a position to advise their clients of the likelihood of a full benefit.
2.       Appeal allowed for the limited purpose of increasing the reduction on account of the defendant’s plea to a 30 per cent reduction.
3.       Defendant resentenced to a term of imprisonment of three years and six months, with a non-parole period of 13 months.
Held per Kourakis CJ (dismissing the appeal):
1.       There is no reason to interfere on account of the Judge’s failure to reduce the notional starting point by 30 per cent.
2.       The failure to give reasons for falling short of the maximum reduction by such a small amount, in the context of the timing of the plea, is not an error of law.
Controlled Substances Act 1984 (SA) s 32(3); Criminal…

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 R v Bennett

Details

AGLC: R v Bennett [2015] SASCFC 164
Case: [2015] SASCFC 164
Decision Date: 12 November 2015

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the defendant, who had pleaded guilty to trafficking in a controlled drug. The defendant was sentenced in the District Court to a head sentence of three years and eight months imprisonment, with a non-parole period of 15 months. This sentence was imposed alongside two co-offenders, Travis Davis and Alana Hill. The head sentence had been reduced by 26.67 per cent to account for the defendant's guilty plea, which was within the maximum reduction of 30 per cent available under section 10C of the Criminal Law (Sentencing) Act 1988 (SA).

The primary legal issue before the appellate court was whether the sentencing judge had erred in failing to suspend the defendant's sentence, with the defendant arguing that good reason existed for suspension. This included the fact that it was the defendant's first drug offence. The court was required to determine if the sentencing judge's discretion had miscarried in not suspending the sentence.

The appellate court, comprising Kourakis CJ, Gray and Peek JJ, concluded that the sentencing judge's discretion had not miscarried. However, one member of the court proposed allowing the appeal for the limited purpose of increasing the reduction for the guilty plea to the maximum 30 per cent. This would result in a revised sentence of three years and six months imprisonment, with a non-parole period of 13 months. This revised sentence represented a more lenient approach to the non-parole period compared to the original sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J

On the appeal, the defendant complained about the failure of the Judge to suspend the sentence. It was suggested that good reason did exist. In particular, attention was directed to the fact that this was the defendant’s first drug offence. My review of all of the circumstances of the matter satisfies me that the Judge’s discretion did not miscarry. Conclusion I would allow the defendant’s appeal for the limited purpose of increasing the reduction on account of the defendant’s plea to a 30 per cent reduction. As a consequence, I would set aside the sentence imposed in the District Court. I would sentence the defendant to a term of imprisonment of three years and six months. I would fix a non-parole period of 13 months. In doing so, I have been more merciful than the sentencing Judge in regard to the fixing of the non-parole period. I agree with the orders proposed by Gray J and with his reasons.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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