R v BRISTOGIANNIS - [2016] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRISTOGIANNIS
[2016] SASCFC 22
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Lovell)
1 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PRODUCTION OR CULTIVATION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
The appellant was convicted by jury of cultivating a commercial quantity of controlled plants for sale. The appellant rented a property for the purpose of cultivating cannabis. The electricity account was in a false name, and the appellant lived at the property for some time. The enterprise was well organised. The appellant denied any involvement in the crop, and maintained his innocence at the hearing of the appeal.
The appellant appeals on the ground that relevant material was not taken into account by the sentencing Judge. The relevant material consisted of information suggesting the appellant's wife, who is not an Australian citizen, would have no avenue of support if the appellant was imprisoned, and that she was ineligible for financial support from the Government. Counsel also submitted that good reason existed to suspend the appellant's sentence.
Held, dismissing the appeal (Sulan J, Peek and Lovell JJ concurring):
1. Relevant sentencing matters may not have been taken into account by the sentencing Judge, and an error is therefore identified.
2. The identification of an error in sentencing is not alone sufficient to entitle an appellant to a reduced sentence. The hardship to dependants in this case is relevant, but not sufficient to justify re-sentencing or suspension of the sentence.
3. The circumstances of the appellant do not amount to good reason to suspend the sentence.
Controlled Substances Act 1984 (SA) s 33B(2); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 10(1)(n), s 38, s 38(1), referred to.
House v The King (1936) 55 CLR 499, applied.
Kentwell v The Queen (2014) 252 LR 601; R v Gjoka (Unreported) Court of Criminal Appeal, 1 July 1997, Judgment No S 6211; R v Fowler [2006] SASC 18; R v Mangelsdorf (1995) 66 SASR 60; R v Taddeo (1993) 67 A Crim R 338; R v O'Toole [2013] SASCFC 18; R v Wacyk (1996) 66 SASR 530; R v Wirth (1976) 14 SASR 291; R v Moffa (No 2) (1977) 16 SASR 155; R v Hunter [2015] SASCFC 84; R v Penno [2004] SASC 354; Neill v Police [1999] SASC 270; R v Hill [2011] SASCFC 109, discussed.

R v BRISTOGIANNIS
[2016] SASCFC 22
Court of Criminal Appeal: Sulan, Peek and Lovell JJ

SULAN J: The appellant was convicted by jury of the offence of Cultivating a Commercial Quantity of Controlled Plants for Sale, contrary to s 33B(2) of the Controlled Substances Act 1984 (SA). The maximum penalty is a fine of $200,000, imprisonment for 25 years or…

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.

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Details

Case: [2016] SASCFC 22
Decision Date: 1 March 2016

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, Ms. Bugaj, for a drug offence. The dispute arose from the appellant's contention that the sentence of imprisonment should have been suspended due to hardship, pursuant to section 38(1) of the *Criminal Law (Sentencing) Act 1988* (SA). The matter was before the Full Court of the Supreme Court of South Australia.

The legal issues before the court were whether the sentencing judge erred in exercising their discretion by not suspending the sentence of imprisonment, and if so, what the appropriate course of action should be. Specifically, the court had to determine if the hardship experienced by the appellant constituted "good reason" for suspension under the Act, and whether the sentencing judge's assessment of this criterion was flawed. The court also considered the principles governing appellate intervention in sentencing decisions, particularly in light of the High Court's decision in *Kentwell v The Queen*.

The court affirmed that the sole statutory criterion for suspending a sentence of imprisonment is the existence of "good reason" to do so. While some authorities have referred to "exceptional circumstances," this was understood not as a separate test, but as a means of assessing all relevant circumstances to identify good reason. The court noted that for certain serious offences, demonstrating good reason for suspension may be difficult, reflecting a practical reality rather than a displacement of the statutory test. The court reiterated that appellate intervention in sentencing discretion is only warranted where an error, such as a material consideration not being taken into account, is demonstrated, as per the principles in *House v R*. The court found that the sentencing judge had correctly applied the statutory criterion and that there was no error in the exercise of discretion.

The appeal was dismissed.

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

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Ratio Decidendi

Legal Principle Established

In Kentwell v The Queen, the High Court observed:[2]After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal’s independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re‑sentence.[Citations omitted. Emphasis added.]Re‑sentencing does not automatically follow where an error, such as a material consideration not being taken into account, is identified. The result of such an error is that the discretion in sentencing has miscarried at first instance, and the sentencing discretion should be exercised by the appellate court.[3] However, it does not follow that the appellant is necessarily entitled to a reduced sentence as a result of the error. Considerations for re-sentencing[2] (2014) 252 CLR 601 at 618 [43].[3] Kentwellv The Queen (2014) 252 CLR 601 at 618 [42].Suspension of sentence Counsel submitted that the sentence should be suspended, having regard to the hardship to Ms Bugaj which constituted “good reason” to suspend the sentence, pursuant to s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). Section 38 provides:38—Suspension of imprisonment on defendant entering into bond (1)Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond— (a) to be of good behaviour; and (b) to comply with the other conditions (if any) of the bond. (2)A sentence of imprisonment may not be suspended under this section if the defendant is being sentenced— (a) to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; or (b) as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence; or (c) as an adult for a serious and organised crime offence or specified offence against police; or (d) as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence.… The test of good reason is the only applicable test.[4] While there are authorities which have spoken of “exceptional circumstances” with regard to suspension of a sentence,[5] this has merely been used as a means of assessing all the circumstances surrounding offending in order to determine if good reason to suspend can be identified. Doyle CJ stated in R v Gjoka:[4] R v Gjoka (Unreported) Court of Criminal Appeal, 1 July 1997, Judgment No S 6211 at 4; R v Fowler [2006] SASC 18; R v O’Toole [2013] SASCFC 18 at [50].[5] See, eg, R v Mangelsdorf (1995) 66 SASR 60.The power to suspend a sentence is conferred by s 38 of the Sentencing Act. The court may suspend a sentence “… if it thinks that good reason exists for doing so”. That is the statutory criterion, and that is the test to be applied.Nevertheless, it is appropriate for this Court in particular cases to determine, as it did in Manglesdorf, that the nature or gravity of an offence is such that suspension will not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it will be very difficult to justify suspension.[Citations omitted. Emphasis added.]This was further affirmed by Perry J in R v Fowler:[6]There is not an “exceptional circumstances” test “as discussed in Manglesdorf”. There is only one test. But in the case of certain serious categories of offending, its successful application in favour of the defendant will be uncommon. A sentencing court does not fall into error, if it recognises the practical reality of that observation.Mr Petracarro contended that there was nothing “truly exceptional” about the circumstances put forward on behalf of the appellant to justify suspension of the term of imprisonment involved.It might have been more accurate to say that, bearing in mind the objective seriousness of the offending, as emphasised in cases such as Manglesdorf and Gjoka, it could not be said that there was “good reason” to suspend.In any event, the question whether or not to suspend was entirely a matter for the discretion of the sentencing judge. This Court will only interfere with the exercise of the discretion if error in the sense identified in House v R is demonstrated.[Citations omitted.][6] R v Fowler [2006] SASC 18 at [36]–[39].