R v Clifford - [2010] SASCFC 10

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLIFFORD
[2010] SASCFC 10
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice David)
2 August 2010
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - INTELLECTUALLY HANDICAPPED OFFENDER
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
Appeal against sentence – appellant pleaded guilty to trafficking in a controlled drug – sentencing judge imposed three years' imprisonment with non-parole period of 12 months – whether sentencing judge erred in failing to suspend the sentence – whether sentencing judge placed excessive reliance on general deterrence in light of appellant's mental impairment – whether personal factors so substantial in cumulative effect that decision not to suspend was unjust.
HELD: appeal dismissed – sentencing judge correctly applied two step approach when considering length of sentence and whether to suspend – factors personal to the appellant properly taken into account – cumulative effect of personal factors not so significant that failure to suspend was unjust – in considering the impact of the mental impairment on the appellant's thought processes and capacity to appreciate significance of offending, the decision not to suspend was not unjust – the sentencing Judge gave effect to matters personal to appellant by fixing low non-parole period – no error in the sentencing process established.
Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 38(1), referred to.
R v Wiskich (2000) 207 LSJS 431; Mason-Stuart v The Queen (1993) 61 SASR 204; Hansen v R [1995] SASC 4984; Dinsdale v The Queen (2000) 202 CLR 321, discussed.

R v CLIFFORD
[2010] SASCFC 10
Court of Criminal Appeal: Duggan, Anderson and David JJ

DUGGAN J: The appellant pleaded guilty to trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (“the CSA”). He was sentenced to imprisonment for three years with a non‑parole period of 12 months. Permission to appeal against the sentence was granted by a single Judge of this Court.
The sole ground of appeal asserts that the sentencing Judge erred in failing to suspend the sentence. The argument put forward on the hearing of the appeal was that, given the personal circumstances of the appellant, the sentencing Judge placed too much reliance on general deterrence when considering whether to suspend the sentence.
The circumstances of the offence are not in dispute. The appellant came under the notice of a security officer at a nightclub in Hindley Street in the early hours of 16 February 2008 when he was observed receiving money from another patron. When searched, the appellant was found to be in possession of 74 tablets containing the drug methylenedioxymethamphetamine (“MDMA”) commonly known as ecstasy. Most…

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 Clifford

Details

AGLC: R v Clifford [2010] SASCFC 10
Case: [2010] SASCFC 10
Decision Date: 2 August 2010

CaseChat Overview and Summary

The appeal in *R v Clifford* concerned a sentence imposed by a sentencing judge on the appellant, who had pleaded guilty to trafficking in a controlled drug. The sentencing judge had imposed a term of three years' imprisonment with a non-parole period of 12 months. The appeal was heard by Duggan, Anderson and David JJ.

The central legal issues before the appellate court were whether the sentencing judge had erred in failing to suspend the sentence, whether excessive reliance had been placed on the principle of general deterrence given the appellant's mental impairment, and whether the cumulative effect of the appellant's personal factors was so substantial as to render the decision not to suspend the sentence unjust.

The appellate court dismissed the appeal, finding that the sentencing judge had correctly applied the two-step approach to sentencing, first determining the appropriate length of the sentence and then considering whether to suspend it. The court held that the sentencing judge had properly taken into account the personal factors relating to the appellant, including his mental impairment. The cumulative effect of these personal factors was not considered significant enough to make the decision not to suspend unjust. The court further found that the sentencing judge had given effect to the personal circumstances of the appellant by fixing a low non-parole period, and that no error in the sentencing process had been established.

Orders