R v Best

Case [2017] SASCFC 55 26 May 2017

Type to search within this case.

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BEST
[2017] SASCFC 55
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Lovell)
26 May 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
Appeal against sentence imposed on the appellant for one count of trafficking in a controlled drug and three firearms offences, to which he pleaded guilty.
The sentencing judge fixed a head sentence for the trafficking offence of two years and five months. But for the plea of guilty the head sentence would have been four years. The judge imposed one sentence of two weeks and six days for associated breaches of bail and an intervention order. But for his pleas of guilty the head sentence would have been four weeks. These sentences were to be served concurrently.
The judge imposed a single sentence of 14 months and two weeks in respect of the firearms offences. But for the pleas of guilty the sentence would have been two years. That sentence was ordered to be served cumulatively on the sentence for the trafficking offence.
Accordingly, the total head sentence was three years, seven months and two weeks, with a non-parole period of two years and four months.
Held:
1. The sentence imposed for the trafficking offence is manifestly excessive, having regard to the circumstances. This was low-level offending in which the appellant was trafficking in a small amount of methylamphetamine to feed his addiction. He has no previous convictions of a drug-related nature, and has good prospects of rehabilitation. As such the starting point of four years was manifestly excessive (at [31]).
2. The sentence imposed for the firearms offences were not manifestly excessive. Firearms offences represent a serious and real threat to public safety and sentences for firearms offences must reflect the imperative of both specific and general deterrence (at [32]).
3. The appellant is resentenced to 21 months and three weeks in respect of the trafficking offence. To that sentence must be added the sentence of 14 months and two weeks for the firearms offences and the concurrent sentence of two weeks and six days for the breach of bail and intervention order offences. This creates a head sentence of 36 months and one week. The sentence for the firearms offences is to be served cumulatively with the sentence for the trafficking offence. A non-parole period of 18 months is fixed. The sentence and non-parole period are backdated to 27 April 2016 (at [57]).
Controlled Substances Act 1984 (SA) s 32; Firearms Act 1977 (SA) s 11, s 29A; Criminal Law (Sentencing) Act 1988 (SA) s 33BB, s 38, referred to.
R v Young (2016) 126 SASR 41; R v Dell (2016) 126 SASR 571, applied.
R…

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 Best

Details

AGLC: R v Best [2017] SASCFC 55
Case: [2017] SASCFC 55
Decision Date: 26 May 2017

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, R, by a sentencing judge. The dispute revolved around the appropriate sentences for multiple offences, including trafficking, firearms offences, and breaches of bail and intervention orders. The appeal was heard by Stanley, Parker, and Lovell JJ.

The primary legal issue before the appellate court was whether the original sentencing judge had erred in imposing the sentences, particularly concerning the cumulative and concurrent nature of the sentences and the overall length of the custodial term and non-parole period. The court was required to determine if the sentencing judge had properly applied the principles of sentencing, including deterrence, and whether the sentences imposed were manifestly excessive or otherwise unjust.

The court allowed the appeal on the first ground, setting aside the original sentence for the trafficking offence. The court reasoned that a revised sentence was necessary to reflect the gravity of the offences and to achieve appropriate sentencing objectives. The court imposed a sentence of 21 months and three weeks for trafficking, 14 months and two weeks for the firearms offences, and two weeks and six days for the breach offences. The breach sentence was to be served concurrently with the trafficking sentence, while the firearms sentence was to be served cumulatively with the trafficking sentence. A non-parole period of 18 months was fixed, and all sentences and the non-parole period were backdated to 27 April 2016. The prohibition on holding a firearms licence was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

STANLEY J PARKER J LOVELL J

There is no complaint about the sentencing judge’s order prohibiting the appellant from holding or obtaining a firearms licence until further order. It stands.Conclusion I would allow the appeal on ground 1. I would set aside the sentence for the trafficking offence. I would impose a sentence of imprisonment of 21 months and three weeks for that offence. I would impose a sentence of 14 months and two weeks for the firearms offences. I would impose a sentence of two weeks and six days for the breach of bail and intervention order offences. The breach sentence is to be served concurrently with the sentence for the trafficking offence. The sentence for the firearms offences is to be served cumulatively with the sentence for the trafficking offence. I would fix a non-parole period of 18 months. The sentences of imprisonment and the non-parole period are backdated to 27 April 2016. I agree with the reasons of Stanley J and the orders he proposes. I agree.

Ratio Decidendi

Legal Principle Established

Established by: STANLEY J, PARKER J, LOVELL J

Full text does not contain this section.

Actions

Citations

R v Best [2017] SASCFC 55

Most Recent Citation

BRK v Police [2020] SASC 116

Cases Citing This Decision

R v NGUYEN [2022] SASCA 124
Citation 1 (Para 14)

…o make a home detention order. [14] R v Dell (2016) 126 SASR 571 at [45]-[48] per Doyle J (with whom Kelly and Parker JJ agreed). [15] R v Best [2017] SASCFC 55 at [48] per Stanley J (with whom Parker and Lovell JJ agreed).…
Liddicoat v The Queen [2021] SASCA 18
Citation 2 (Para 20)

…nishment, denunciation and general deterrence. In deciding this issue, the safety of the community is the paramount consideration. [3] R v Best [2017] SASCFC 55 at [48] (Stanley J, Parker and Lovell JJ agreeing).…
BRK v Police [2020] SASC 116
Citation 3 (Para 12)

…punishment between a suspended sentence and a custodial sentence. (Footnotes omitted.) [11] (2017) 128 SASR 37, [59] (Blue J). See also R v Best [2017] SASCFC 55, [49] (Stanley J, with whom Parker and Lovell JJ agreed).…
R v Godfrey [2018] SASCFC 93
Citation 4 (Para 48)

…n exists to suspend the sentence of imprisonment are relevant to determining whether to make a home detention order. [22] (2016) 126 SASR 571. [23] [2017] SASCFC 55. [24] [2017] SASCFC 55 at [49].…
R v Hibeljic [2018] SASCFC 35
Citation 5 (Para 32)

…s. [8] R v Filipponi (2016) 126 SASR 464 at [23]-[28]; R v Dell (2016) 126 SASR 571 at [40]-[60]; R v Hosking (2017) 128 SASR 37 at [6]-[9]; R v Best [2017] SASCFC 55 at [44]-[53], R v Taheri [2017] SASCFC 115 at [24]; R v Hevko [2018] SASCFC 22.…
R v Hevko [2018] SASCFC 22
Citation 6 (Para 18)

…eed), R v Hosking [2017] SASCFC 50; (2017) 128 SASR 37 at [6]-[9] (Vanstone J with whose reasons Parker J agreed) and at [51]-[63] (Blue J), R v Best [2017] SASCFC 55 at [44]-[53] (Stanley J with whose reasons Parker and Lovell JJ agreed) and R v Taheri [2017] SASCFC 115 at [24] (Nicholson J with whose reasons Kour…
R v Howell [2018] SASCFC 12
Citation 7 (Para 24)

…significant weight in the Judge’s determination of an appropriate sentence. [6] [2016] SASCFC 102; (2016) 126 SASR 41. [7] [2017] SASCFC 97. [8] [2017] SASCFC 55. [9] [2013] SASCFC 15; (2013) 115 SASR 425.…
R v Colby [1999] NSWCCA 261
Citation 8

…joint concoction (between the witness and the complainant) to include “the question whether the complainant might have concocted his or her account after becoming aware of some like event or some like allegation concerning the accused” . 102 In an appeal against conviction it is appropriate that the question of mi…

See all citing cases →

Cases Cited

R v Hosking [2017] SASCFC 50
Citation 1 (Para 16)

…v Filipponi ,[29] R v Dell [30] and R v Hosking .[31] [29] [2016] SASCFC 148, (2016) 126 SASR 464. [30] [2016] SASCFC 156, (2016) 126 SASR 571. [31] [2017] SASCFC 50.…
R v Dell [2016] SASCFC 156
Citation 2 (Para 16)

…nsidered by the Court of Criminal Appeal in R v Filipponi ,[29] R v Dell [30] and R v Hosking .[31] [29] [2016] SASCFC 148, (2016) 126 SASR 464. [30] [2016] SASCFC 156, (2016) 126 SASR 571. [31] [2017] SASCFC 50.…
R v Standley [2016] SASCFC 141
Citation 3 (Para 8)

…ntence imposed for the separate offending in relation to the firearms should be made concurrent, either wholly or partially, with that sentence. [21] [2016] SASCFC 141. [22] [2016] SASCFC 141 at [40] and [42]. [23] [2016] SASCFC 141 at [47]. [24] [2005] SASC 332 at [38], (2005) 93 SASR 20 at 30.…
R v Filipponi [2016] SASCFC 148
Citation 4 (Para 16)

…The operation of s 33BB has been recently considered by the Court of Criminal Appeal in R v Filipponi ,[29] R v Dell [30] and R v Hosking .[31] [29] [2016] SASCFC 148, (2016) 126 SASR 464. [30] [2016] SASCFC 156, (2016) 126 SASR 571. [31] [2017] SASCFC 50.…
Police v Holer [2016] SASC 187
Citation 5 (Para 2)

…rtial suspension under s 38 of the Sentencing Act but it will also lead to rejection of a submission that a home detention order should be made. [39] [2016] SASC 187 at [44].…
R v Young [2016] SASCFC 102
Citation 6 (Para 30)

…d street dealer can expect sentences in the same order as those imposed on the profit driven offenders. [10] R v Tran [2000] SASC 431 at [34]. [11] [2016] SASCFC 102, (2016) 126 SASR 41. [12] [2016] SASCFC 102 at [66], (2016) 126 SASR 41 at 62. [13] [2016] SASCFC 102 at [65], (2016) 126 SASR 41 at 62.…
R v RERICH [2016] SASCFC 78
Citation 7 (Para 7)

…nt with the sentence of imprisonment I consider must be imposed for the trafficking offence. [17] [2015] SASCFC 2. [18] [2015] SASCFC 2 at [34]. [19] [2016] SASCFC 78. [20] [2016] SASCFC 78 at [27].…
R v Weatherill [2015] SASCFC 113
Citation 8 (Para 28)

…the notional starting point for fixing a sentence for imprisonment is beyond the range of sentences applicable to that offending. [7] R v Weatherill [2015] SASCFC 113 at [6].…
R v Violi [2015] SASCFC 2
Citation 9 (Para 7)

…st make those sentences wholly or partially concurrent with the sentence of imprisonment I consider must be imposed for the trafficking offence. [17] [2015] SASCFC 2. [18] [2015] SASCFC 2 at [34]. [19] [2016] SASCFC 78. [20] [2016] SASCFC 78 at [27].…
R v Daniele [2014] SASCFC 22
Citation 10 (Para 2)

…discharged, they could still have been used to provoke fear and intimidate others. This offending called for a substantial sentence. [14] R v Daniele [2014] SASCFC 22 at [25] – [26].…
R v O'Toole [2013] SASCFC 18
Citation 11 (Para 11)

…nment. The decision to suspend must be made solely on the facts and circumstances of the particular case at hand. [Citations omitted.] [26] [2013] SASCFC 18 at [50].…
R v Kong [2013] SASCFC 15
Citation 12 (Para 29)

…he balancing of the competing sentencing objectives in the case of commercial drug dealers. [8] R v Cetojevic (2005) 92 SASR 451 at [25]. [9] [2013] SASCFC 15, (2013) 115 SASR 425 at [90].…
Hili v The Queen [2010] HCA 45
Citation 13

…126 SASR 571, applied. R v Standley [2016] SASCFC 141, distinguished. Markarian v The Queen (2005) 228 CLR 357; The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; R v Weatherill [2015] SASCFC 113; R v Cetojevic (2005) 92 SASR 451; R v Kong (2013) 115 SASR 425; R v Tran [2000] SASC 431; R v Daniele…
R v Couper [2009] SASC 361
Citation 14 (Para 12)

…or a deterrent sentence which must be given greater weight than the personal circumstances of the offender. [27] (1995) 66 SASR 60 at 70 – 71. [28] [2009] SASC 361 at [30].…
The Queen v Morse [2009] NZCA 51
Citation 15

…g (2016) 126 SASR 41; R v Dell (2016) 126 SASR 571, applied. R v Standley [2016] SASCFC 141, distinguished. Markarian v The Queen (2005) 228 CLR 357; The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; R v Weatherill [2015] SASCFC 113; R v Cetojevic (2005) 92 SASR 451; R v Kong (2013) 115 SASR 425; R…
R v E, AD [2005] SASC 332
Citation 16 (Para 8)

…either wholly or partially, with that sentence. [21] [2016] SASCFC 141. [22] [2016] SASCFC 141 at [40] and [42]. [23] [2016] SASCFC 141 at [47]. [24] [2005] SASC 332 at [38], (2005) 93 SASR 20 at 30.…
R v Cetojevic [2005] SASC 273
Citation 17 (Para 29)

…must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers. [8] R v Cetojevic (2005) 92 SASR 451 at [25]. [9] [2013] SASCFC 15, (2013) 115 SASR 425 at [90].…
Markarian v The Queen [2005] HCA 25
Citation 18

…8 (SA) s 33BB, s 38, referred to. R v Young (2016) 126 SASR 41; R v Dell (2016) 126 SASR 571, applied. R v Standley [2016] SASCFC 141, distinguished. Markarian v The Queen (2005) 228 CLR 357; The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; R v Weatherill [2015] SASCFC 113; R v Cetojevic (2005) 92 SASR…
R v Tran [2000] SASC 431
Citation 19 (Para 30)

…errence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders. [10] R v Tran [2000] SASC 431 at [34]. [11] [2016] SASCFC 102, (2016) 126 SASR 41. [12] [2016] SASCFC 102 at [66], (2016) 126 SASR 41 at 62. [13] [2016] SASCFC 102 at [65], (2016) 1…
R v Mangelsdorf [1995] SASC 5328
Citation 20 (Para 12)

…it is serious offending which calls for a deterrent sentence which must be given greater weight than the personal circumstances of the offender. [27] (1995) 66 SASR 60 at 70 – 71. [28] [2009] SASC 361 at [30].…

Legislation Cited

Controlled Substances Act 1984 (SA) 32
2 mentions (from Para 2)
Criminal Law (Sentencing) Act 1988 (SA) 33BB
2 mentions (from Para 11)
Firearms Act 1977 (SA) 11
2 mentions (from Para 2)