R v Campanella - [2004] SASC 99

R v CAMPANELLA
[2004] SASC 99
Court of Criminal Appeal: Doyle CJ, Perry and Mullighan JJ

DOYLE CJ: I would allow the appeal, set aside the sentence imposed by the District Court, and substitute a sentence of imprisonment for three years and nine months. I would fix a non-parole period of two years six months in relation to that head sentence. I would direct that the head sentence and non-parole period take effect from 8 April 2003.
I have had the benefit of reading the reasons of Perry J and those of Mullighan J.
I agree with each of them that, on the material before the District Court, it was appropriate to proceed on the basis that the intermediary “Charlie” was encouraged by the police, and further on the basis that the offence would not have occurred but for the part played by Charlie, acting at the instigation of or with the encouragement of the police. There is no suggestion in the present case of police dishonesty, but nevertheless it was appropriate to sentence on the basis that Mr Campanella came to the attention of the police not because of previous involvement in the drug trade, but because of information given to them by Charlie. That was how the appellant came to commit an offence that he would not otherwise have committed.
These matters reduce the culpability of the offending.
However, it is also the case that Mr Campanella had the opportunity to reconsider his position, but nevertheless chose to continue with the transaction. The offence was a serious one.
I agree with Perry J and Mullighan J that the reasons of the sentencing Judge suggests that inadequate allowance was made for the matter to which I have referred. The Judge’s starting point of seven years may be too high, but it is not necessary to express a definite view on that point.
Taking everything into account, I agree with Perry J and with Mullighan J that the sentence is excessive, and that this Court should re-sentence the appellant. In the end result, I agree with the sentence proposed by Perry J. I consider that the sentence proposed by Mullighan J is a lesser sentence than is appropriate, in all the circumstances.
For those reasons I join in the order proposed by Perry J.
PERRY J: The circumstances surrounding the commission of the offence in question are set out in the reasons of Mullighan J.
The words “police entrapment” are emotive and tend to conceal the fact that police involvement in the circumstances leading to the commission of an offence may occur in a wide range of situations.
In some circumstances, no allowance on that account is called for. For example, in cases involving dealing with a defendant shown to be an established drug trader, the fact that the particular dealing in question was with a police officer may be of no consequence in determining the appropriate penalty.
In other circumstances, the relevant evidence may be excluded in its…

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 Campanella

Details

AGLC: R v Campanella [2004] SASC 99
Case: [2004] SASC 99
Decision Date: 20 April 2004

CaseChat Overview and Summary

In the Court of Criminal Appeal, the case of R v Campanella was heard by Doyle CJ, Perry, and Mullighan JJ, who unanimously allowed the appeal and set aside the original sentence imposed by the District Court. The appellant had pleaded guilty to selling ecstasy tablets and was sentenced to five years and three months imprisonment with a non-parole period of three years. The appellant argued that the sentence was manifestly excessive and that the sentencing judge failed to consider the entrapment by police as a mitigating factor. The court agreed that the sentencing judge did not sufficiently consider the police entrapment and the appellant's opportunity to reconsider his involvement in the offence. The court held that the appellant's culpability was reduced due to the police entrapment and his financial difficulties, and that the original sentence was excessive. The court re-sentenced the appellant to imprisonment for three years and nine months with a non-parole period of two years and six months, effective from 8 April 2003.

The legal issues in this case were whether the sentencing judge appropriately considered the police entrapment as a mitigating factor and whether the sentence was manifestly excessive. The court held that the sentencing judge did not adequately consider the police entrapment and that the original sentence was excessive. The court found that the appellant's culpability was reduced due to the police entrapment and his financial difficulties. The court re-sentenced the appellant to a lower sentence, taking into account the mitigating factors and the seriousness of the offence. The court also emphasised that police entrapment should be considered as a mitigating factor in appropriate cases, but the source of the inducement or pressure should not affect the weight given to the mitigating factor.

Orders