SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C, A
[2015] SASCFC 156
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Stanley)
4 November 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
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 - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Application for permission to appeal against sentence.
The applicant pleaded guilty to two counts of trafficking in a large commercial quantity of a controlled drug. The applicant was sentenced by a District Court Judge. The Judge imposed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). She imposed a head sentence of seven years and one month with a non-parole period of four years. The sentence imposed was fixed by commencing with a notional head sentence of eight years imprisonment. The Judge allowed a discount of 10 per cent on account of the guilty pleas, resulting in a sentence of seven years and two months, which was further reduced by one month to take account of time spent in custody and on home detention. The sentencing Judge had previously sentenced a co-offender. In that case she also commenced with a notional head sentence of eight years imprisonment which was discounted by 30 per cent for his guilty plea. That left a head sentence of five years and six months, which was reduced by six months to account for time spent in custody and on home detention bail, leaving a head sentence of five years with a non-parole period of two years and nine months. The applicant appealed his sentence. Permission to appeal was refused by a Judge of this Court. The applicant now seeks permission to appeal from the Full Court.
Whether the sentencing Judge erred in sentencing the applicant for offending since 2012, whereas he was charged with and pleaded guilty to offending which occurred on 14 November 2013. Whether the sentencing Judge erred in her determination of the relative seriousness of the applicant’s conduct, having regard to his role in the organisation. Whether the sentencing Judge erred in failing to have proper or adequate regard to the question of parity in relation to the sentence imposed on the co-offender. Whether the sentencing Judge erred in failing to have adequate regard to the applicant’s antecedents, personal circumstances and prospects of rehabilitation. Whether the head sentence and non-parole period were, in all the circumstances, manifestly excessive.
Held per Stanley J (Sulan J and Peek J agreeing) (refusing the application for permission to appeal):
1. The Judge was at pains to emphasise that the applicant was not to be sentenced in relation to any offences except those to…
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CaseChat Overview and Summary
The legal issues before the Full Court of the Supreme Court of South Australia were whether the sentences imposed on the applicants were manifestly excessive or inadequate, and whether there were other grounds for interference with the sentences. Specifically, the court considered the applicants' respective roles and levels of culpability within a significant drug operation.
The Court found that the sentencing judge had properly considered the evidence, including telephone intercepts and observations of the applicants' activities. The judge determined that both applicants were significantly involved in a large, organised interstate drug operation, with their involvement extending over a considerable period. While one applicant's role was considered less culpable than his brother's, it was deemed at least as significant as another co-offender's. The judge also noted the applicants' roles as organisers and their direct involvement in the packaging and transportation of drugs. The Court concluded that the sentences imposed, including the head sentence and non-parole period, fell within the sentencing discretion of the judge, and that the grounds of appeal were not reasonably arguable.
The application for permission to appeal was refused.
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
Ratio Decidendi
Legal Principle Established
Established by: PEEK J, STANLEY J
The Judge said:Your counsel did not challenge that your involvement was a significant one. He, however, urged me to find that your role was less culpable than that of Mr Mindis. Mr Mindis made several trips to Perth during 2013. These trips were associated in one way or another with cannabis or the drug trade. Mr Mindis gave evidence before me that on other occasions he was transporting money back and forth. There was clear evidence from the telephone intercepts that you were having contact with Mr Mindis over this time. Mr Mindis was conveying to you what was that happening in Perth and although he was speaking in code, the conversation appears to be in relation to the drug trade.This was particularly so in October 2013. Mr Mindis was ringing you, it seems, to get you to undertake certain tasks. It may be that you were referring back to your brother [SC] in order to answer these questions. But nevertheless your involvement in relation to this drug operation is clear. In the days prior to the trip to Perth in November 2013, there were conversations between you and Mr Mindis where things were clearly being organised for the trip. On 14 November 2013 Mr Mindis was observed going to your brother’s house at about 10.30. After that he went to Pack-and-Send on Main North Road. He returned home to his own home and then went to your brother’s house. There is then activity that clearly involved drugs being moved in and out of boxes and placed in cars. You were a party to telephone conversations and other activities involving the drugs on that day.There was clearly a drug operation going on on South Road in Mile End where the packaging of the drugs would occur. You were at that house at that time. Just after 5 p.m. you and Mr Mindis left your home in his vehicle. You were both carrying a suitcase and you drove to [SC’s] house. You went inside and remained in there for a short time. You then drove Mr Mindis to the railway station. When you arrived at the railway station you both took out the suitcases. You shook his hand. He took both suitcases and went into the terminal. You then got into the driver’s seat and left the car park.Your plea is not entered on the basis that this was a one-off occasion. You have been engaged in the drug operation for some time. It is a significant operation. It’s been urged upon me that your role in relation to this matter was not as significant as Mr Mindis or your brother [SC]. I can accept that it was not as significant as your brother but it is at least as significant as [Mr Mindis]’s part in relation to it.…What is apparent from your involvement in relation to this offending is that it has been a long-term involvement, on your own counsel’s submission, since about 2012, and it is plain from the telephone intercepts that it was going on as early as 2013.You were one of the organisers in relation to this operation. You were not as culpable as your brother [SC] but were you [sic] clearly being used to assist in the organisation of a large interstate drug operation.…The operation that was being run in relation to this matter was a significant one. The role that each person played in relation to it was important and an integral part of the operation. It is clear that your role in it was as one of the organisers. You were a middle man, so to speak, between Mr Mindis and your brother and you also played a personal role in relation to the packaging and the transportation of Mr Mindis to the railway station when he was going to Perth and from the airport when he returned from Perth.In imposing penalty today, I am mindful of the considerations of s.44 of the Controlled Substances Act. I have taken those considerations into account. It is clearly necessary that the court sends a strong message to deter others and you from engaging in drug trafficking, especially on a scale such as this. This was a highly organised and potentially a very profitable organisation. There was much to be gained from this drug operation and the business that was being engaged in.Your role was a significant one and I am going to sentence you on that basis. You were very close to the top of the organisation and your involvement extended for over 12 months. You are not to be sentenced in relation to any offences except those to which you have pleaded guilty, however, I must take into account that this is not isolated offending.ConsiderationGrounds 1 and 2