CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
The respondent pleaded guilty to importing a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). He was sentenced to imprisonment for two years, 11 months and three weeks. He was released forthwith on a recognizance release order upon giving security of $5,000 and on the condition that he be of good behaviour for two years and six months. The Commonwealth Director of Public Prosecutions appeals against the sentence imposed.
Crown appeals against sentence – whether the sentence is manifestly inadequate – whether rare and exceptional circumstances exist – double jeopardy – exercise of residual discretion to refuse permission to appeal
Held, per Lovell J (Kourakis CJ and Nicholson J agreeing), refusing permission to appeal:
1. The sentence is manifestly inadequate.
2. On a Commonwealth Crown appeal against sentence the principle of double jeopardy applies at the permission to appeal stage of the appeal.
3. The gravity of the offending does not overwhelm the respondent's personal circumstances and to allow the appeal would come at too high a cost, in terms of justice, to the respondent.
Court of Criminal Appeal: Kourakis CJ, Nicholson and Lovell JJ
KOURAKIS CJ: I would refuse permission to appeal for the reasons given by Lovell J. I would add that the uncertain factual basis on which the submissions and the sentencing proceeded make this appeal an unsatisfactory vehicle through…
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
AGLC
R v Buttigieg [2020] SASCFC 38
Case
[2020] SASCFC 38
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions appealed against a sentence imposed on the respondent, Mr Buttigieg, who had pleaded guilty to importing a marketable quantity of a border-controlled drug, namely cocaine. The appeal concerned whether the sentence imposed was so inadequate as to warrant interference by the appellate court, raising issues of manifest inadequacy and the principles governing Crown appeals against sentence. The matter was heard by the Full Court of the Supreme Court of South Australia.
The central legal issue before the Full Court was whether the sentence imposed by the sentencing judge was outside the appropriate range for the offence, thereby justifying the granting of leave to appeal and allowing the appeal. This required the Court to consider the principles of sentencing for drug importation offences, the impact of significant delays in the sentencing process, and the weight to be given to the respondent's rehabilitation efforts and mental health issues in mitigation. The Court also had to determine if the circumstances were sufficiently "rare and exceptional" to permit a Crown appeal against sentence, given the general principle against double jeopardy.
The Full Court reasoned that while the sentencing judge correctly identified the need for deterrence and acknowledged the seriousness of drug importation, the ultimate sentence imposed was manifestly inadequate. The Court found that the sentencing judge failed to give sufficient weight to the objective seriousness of importing 134.5 grams of 80.1% pure cocaine, a quantity that clearly constituted a marketable quantity. Although the respondent's guilty plea, remorse, and extensive rehabilitation efforts, including treatment for stimulant use disorder and mental health issues, were significant mitigating factors, the Court concluded that these did not justify a non-custodial sentence in this instance. The Court noted that the sentencing judge's remarks indicated an intention to impose a custodial sentence, but ultimately imposed a recognisance, which was inconsistent with that stated intention and the gravity of the offence. The Court applied the principle that sentences must reflect the seriousness of the offending and serve as a deterrent, and that while rehabilitation is important, it cannot wholly displace these considerations for such a serious offence.
The Full Court granted leave to appeal, allowed the appeal, and set aside the sentence imposed. The matter was remitted to the sentencing judge for resentencing, with the Full Court indicating that a custodial sentence was appropriate.
Orders
Orders of the court
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Background
Background to the litigation
The Director submitted that the sentence imposed was outside the range of appropriate sentences for this type of offending. While acknowledging that permission to appeal should only be granted with respect to Crown appeals against sentence in cases that are ‘rare and exceptional’, the Director submitted this sentence was so low that permission to appeal should be granted, the appeal allowed and the respondent be resentenced. The facts On 11 September 2016, the respondent travelled from Sydney to the United States. On 14 September 2016, he arranged an international consignment, labelled ‘documents’ and directed to a person at an address in Adelaide. The respondent returned from the United States, landing in Victoria, on 16 September 2016. On 18 September 2016, the consignment arrived at Melbourne Gateway Facility where it was intercepted by Department of Immigration and Border Protection officers and seized by AFP officers. A foil sachet containing white powder was found in the consignment. The powder was found to be 80.1% pure cocaine. The nett weight of the cocaine was 134.5 grams. The house in Adelaide recorded on the consignment note was not occupied and the parcel was returned to Australia Post. The respondent made multiple attempts to collect the parcel from Australia Post. On 26 September 2016, he attended at the Australia Post Business Hub on Gouger Street, Adelaide, and was informed that it would be delivered to the consignee address. On 27 September 2016, AFP officers approached the respondent in his car in the vicinity of the consignee address. After providing a name and address, the respondent was arrested. When told he would be searched, the respondent complained of chest pains and became increasingly anxious to the point an ambulance was called. The respondent then attempted to escape and resisted police by continually thrashing his arms and legs and failing to follow directions. He was eventually taken to the Royal Adelaide Hospital. The respondent pleaded not guilty at committal and arraignment. On 18 May 2018, three days prior to the start date of the trial, the respondent pleaded guilty to the charge. He was sentenced in July 2019. Delays After the respondent pleaded guilty on 18 May 2018, the factual basis for the plea was disputed causing significant delay in the sentencing process. The dispute centred on the circumstances leading up to the importation, that is, whether or not it was premeditated. The respondent contested the factual basis on which he was to be sentenced until at least 30 November 2018. The Director submitted that the significant delay during that period was caused by the respondent’s ‘adherence to a basis of the plea that was inconsistent with many of the materials that indicated there was pre-planning, that it was premeditated’. However, there were also delays outside of the respondent’s control from December 2018 to July 2019. One of the delays was waiting for this Court to hand down its decision in R v Medalian.[4][4] [2019] SASCFC 40.
Evidence
Evidence Before The Court
Since the offence, the respondent has taken significant steps towards rehabilitation. Medical evidence Mr Sukovic, a psychologist, has treated the respondent since mid-2017. He provided a report, dated 26 November 2018: this was tendered at the sentencing hearing. On the history provided by the respondent, Mr Sukovic considered that the respondent suffered from clinically significant symptoms of anxiety in addition to panic attacks. These issues pre-dated his offending and increased in frequency and intensity after his arrest in 2016. Further, at the time of the offending, the respondent was suffering from a moderate to severe Stimulant Use Disorder. The respondent completed a five-month drug rehabilitation programme in addition to regular consultations with Mr Sukovic. Mr Sukovic assessed his risk of future similar offending as low. In 2018, the respondent consulted a psychiatrist who prescribed anti- depressant medication. Dr White, a psychologist, provided a report, dated 27 November 2018, for sentencing purposes. Dr White’s opinions were consistent with those expressed by Mr Sukovic. Dr White diagnosed the respondent with stimulant use, post-traumatic stress, and adjustment disorders with mixed anxiety and depressed mood, and a mixed personality disorder. The report noted a positive prognosis in view of the maintenance of a lifestyle free from substance abuse since his arrest. Dr White opined that the respondent appeared motivated to continue his rehabilitation. Dr White considered that a custodial sentence would have adverse effects on the respondent’s mental health and rehabilitation. The evidence established that the respondent had diligently applied himself to his rehabilitation. He undertook a drug rehabilitation course and attended psychological and psychiatric counselling. The respondent removed himself from the drug culture. In addition to the psychological reports, the respondent tendered eight character references. The references disclosed a supportive network around the respondent. They established that the respondent is a caring man, dedicated to his work and to supporting his family. They suggested that the respondent expressed genuine remorse for the offence and has strived to turn his life around since his arrest.The sentence The respondent pleaded guilty to one count of importing a marketable quantity of a border controlled drug, contrary to s 307.2(1) of the Criminal Code. The maximum penalty for the offence is 25 years imprisonment, or 5000 penalty units, or both.[5] As discussed, the Sentencing Judge was also permitted to take into account the respondent’s commission of the scheduled offence, namely obstructing a Commonwealth public official, contrary to s 149.1 of the Criminal Code. The maximum penalty for the offence is two years imprisonment.[6][5] Criminal Code Act 1995 (Cth) s 307.2(1). [6] Criminal Code Act 1995 (Cth) s 149.1(1). In sentencing, the Sentencing Judge remarked:In sentencing you it is necessary to maintain adequate deterrent standards to deter others from engaging in similar activity, and because cocaine is such a dangerous and highly addictive drug.In the combined circumstances, no other sentence than a term of imprisonment is appropriate…