R v Clancy - [2016] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLANCY
[2016] SASCFC 4
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Kelly and The Honourable Justice Blue)
16 February 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
Appeal against sentence. The appellant pleaded guilty in the District Court to the offence of trafficking in a controlled drug in a prescribed area. She also pleaded guilty to the offence of having in her possession personal property, namely $560.00 cash, reasonably suspected of having been obtained by unlawful means. The appellant was sentenced to a term of imprisonment of three years with a non-parole period of 10 months. At the time of sentencing, the appellant was 20 years of age, had no prior convictions and had undertaken significant steps toward rehabilitation.
Whether the sentence imposed by the District Court Judge was manifestly excessive. Whether the Judge failed to properly consider the question of suspension.
Held per the Court (allowing the appeal):
1.       The head sentence was manifestly excessive considering the fact that it was by a young first offender and at the lower end of the scale of offending encompassed by the maximum penalty. The offending was designed to subsidise the appellant’s own drug addiction.
2.       The Judge failed to have proper regard to the circumstances giving rise to there being good reason to suspend and erred in his conclusion that considerations of general deterrence meant that there was not good reason to suspend.
3.       There was very good reason to suspend the sentence of imprisonment. The immediate custodial sentence imposed by the Judge would completely disrupt the treatment programs being undertaken by the appellant.
4.       Appellant resentenced to a term of imprisonment of two years and six months with a non-parole period of 10 months. Sentence suspended on the appellant’s entry into a good behaviour bond.
Controlled Substances Act 1988 (SA) s 32(2a); Summary Offences Act 1953 (SA) s 41(1); Criminal Law (Sentencing) Act 1988 (SA) s 38(1), referred to.
Bright v Police (2008) 101 SASR 519; R v Kane [2003] SASC 237, considered.

R v CLANCY
[2016] SASCFC 4
Court of Criminal Appeal: Gray, Kelly and Blue JJ
THE COURT.

This is an appeal against sentence.
The defendant and appellant, Kayla Anne Clancy, pleaded guilty to the offence of trafficking in a controlled drug in a prescribed area.[1] She also pleaded guilty to the offence of having in her possession personal property, namely $560.00 cash, reasonably suspected of having been obtained by unlawful means.[2]
[1] Controlled Substances Act 1988 (SA) section 32(2AA).
[2] Summary Offences Act 1953 (SA) section 41(1).
The defendant was sentenced in the…

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 Clancy

Details

AGLC: R v Clancy [2016] SASCFC 4
Case: [2016] SASCFC 4
Decision Date: 16 February 2016

CaseChat Overview and Summary

This matter concerned an appeal by the defendant, Clancy, against a sentence imposed by a judge of the County Court. The appeal focused on the judge's decision not to suspend a custodial sentence for drug trafficking offences.

The central legal issue before the Court of Appeal was whether the sentencing judge had erred in failing to give proper consideration to circumstances that might constitute "good reason" to suspend the sentence, particularly in light of the principle of general deterrence. The court was required to determine if the judge's conclusion that general deterrence precluded suspension was legally sound.

The Court of Appeal found that the sentencing judge had not adequately considered the specific circumstances that warranted suspension. It held that the judge's emphasis on general deterrence had led to an error in concluding that there was no good reason to suspend the sentence. The court reasoned that the specific circumstances presented a sufficient basis for suspension, outweighing the general deterrence considerations in this instance.

Consequently, the appeal was allowed. The Court of Appeal resentenced Clancy to a term of imprisonment of two years and six months, with a non-parole period of 10 months. This sentence was suspended upon Clancy entering into a good behaviour bond.

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

In our view, the Judge failed to have proper regard to the circumstances giving rise to there being good reason to suspend and erred in his conclusion that considerations of general deterrence meant that there was not good reason to suspend. We consider the sentence should have been suspended.Conclusion For these reasons, we allowed the appeal, resentenced the defendant to a term of imprisonment of two years and six months with a non-parole period of 10 months and suspended that sentence on the defendant’s entry into a good behaviour bond.

Ratio Decidendi

Legal Principle Established

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