R v Clift - [2014] SASCFC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLIFT
[2014] SASCFC 35
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)
10 April 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY
Appeal against sentence. The defendant pleaded guilty to the offences of trafficking in a large commercial quantity of cannabis, possession of ecstasy for the purposes of supply and money laundering. The sentencing Judge fixed the one sentence in respect of the two drug offences of imprisonment for five years and three months. The Judge fixed a sentence in respect of the offence of money laundering of imprisonment for two years and two months. The Judge allowed a period of partial concurrency in the sentences of five months, leading to a total head sentence of seven years. The Judge fixed a non-parole period of four years and two months. The defendant said that the offending had occurred in circumstances where he was under financial pressure as a result of medical problems. The defendant had no prior convictions for drug offending.
Whether the Judge erred in failing to provide an explanation for the conclusion that there was to be partial concurrency of five months only. Whether the Judge erred in failing to address or give adequate weight to the defendant’s good prospects of rehabilitation. Whether the overall sentence was manifestly excessive.
Held per the Court (allowing the appeal):
(1) The Judge did not have proper regard to the issue of rehabilitation. If the Judge did have regard to the rehabilitation, he did not give adequate weight to the defendant’s good prospects.
(2) Partial concurrency of five months was wholly inadequate. The offences were closely connected.
(3) If a judge determines to make a sentence partially concurrent with another sentence, it is incumbent upon the judge to give reasons for his or her decision.
(4) In all the circumstances, the final sentence imposed was manifestly excessive, both in respect of the overall term of imprisonment and the non-parole period.
(5) Defendant resentenced to one sentence of six years’ imprisonment for all offending. Non-parole period of three years fixed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Dorning (1981) 27 SASR 481, discussed.
R v Copeland (No 2) (2010) 108 SASR 398; R v Ravet [2011] SASCFC 67; R v Bagnato (2011) 112 SASR 39; R v Belczacki (2012) 112 SASR 95, considered.

R v CLIFT
[2014] SASCFC 35
Court of Criminal Appeal: Gray, Sulan and Peek JJ
GRAY and SULAN JJ.

This is an appeal against sentence.
The defendant and appellant, David Peter Clift, committed the offences of trafficking in a large commercial quantity of cannabis, possession of ecstasy for the purposes of supply and money laundering. He was found…

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 Clift

Details

AGLC: R v Clift [2014] SASCFC 35
Case: [2014] SASCFC 35
Decision Date: 10 April 2014

CaseChat Overview and Summary

In R v Clift, the Court of Criminal Appeal of South Australia considered an appeal against a sentence imposed by the District Court. The appeal concerned the appellant's conviction for serious drug offences, including trafficking in a large commercial quantity of cannabis, possession of ecstasy with intent to supply, and engaging in a transaction involving tainted property (a significant sum of cash).

The primary legal issues before the Court of Criminal Appeal were whether the sentence imposed by the District Court was manifestly excessive, both in its head sentence and the non-parole period, and if so, what would be an appropriate sentence upon re-sentencing. The Court was required to consider the nature and circumstances of the appellant's offending, as well as relevant factors concerning the offender, including his pleas of guilty, contrition, and prospects for rehabilitation.

The Court found that the original sentence was indeed manifestly excessive and determined to re-sentence the appellant. It treated all of the appellant's offending as part of a single course of conduct, despite acknowledging the difference in character between the cannabis and ecstasy offences. Applying principles of sentencing, the Court imposed a head sentence of six years' imprisonment, with a reduction of two years to account for the appellant's guilty pleas and contrition. In fixing the non-parole period, the Court gave particular weight to the appellant's personal antecedents and rehabilitation prospects, setting it at three years. The appeal was allowed, the original sentence set aside, and the new sentence and non-parole period were ordered to commence on 21 November 2013.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PEEK J

In all the circumstances, the final sentence imposed was manifestly excessive, both in respect of the overall term of imprisonment and the length of the non-parole period. As a consequence, we consider that this Court should re-sentence the defendant. In doing so, we treat all of the defendant’s offending as part of the one course of conduct. We recognise that the offence concerning the possession and supply of ecstasy was different in character to the other offending. Notwithstanding this difference, we would impose the one sentence of six years’ imprisonment for all of the defendant’s offending. In arriving at that sentence, we have made a reduction of two years on account of the defendant’s pleas of guilty and contrition. When fixing a non-parole period, we consider that particular weight should be given to the defendant’s personal antecedents and, in particular, his prospects for rehabilitation. We would fix a non-parole period of three years. Conclusion We would allow the appeal and set aside the sentence imposed in the District Court. We would resentence the defendant in respect of all offending to the one sentence of imprisonment for a period of six years. We would fix a non-parole period of three years. The head sentence and non-parole period should commence on 21 November 2013. I have had the advantage of reading the plurality judgment and I gratefully adopt the statement of facts. The statements of witnesses in the appeal book depose that on 9 January 2013 police applied for drug warrants on the basis that occupants of the premises at 27 Welby Avenue Salisbury East were suspected of being involved in the cultivation of cannabis. Police officers raided those premises on that same day and found large amounts of cannabis and cash and a smaller quantity of the drug ecstasy. The appellant was arrested. The witness statements concerning the events of that day make clear that the appellant was arrested for serious drug charges based on the finding of the drugs and a charge of unlawful possession of the amount of $330,990 in cash which was considered by the police to be related to dealings in the drugs. A copy of the original charges as laid does not appear in the appeal book but on 9 July 2013 a fresh superseding Information (being the Information now before the Court was laid) and, as later amended, appears as follows:1.On the 19th (sic) day of January 2013 at SALISBURY EAST in the said State, did traffic in a large commercial quantity of a controlled drug, namely Cannabis.Section 32(1) of the Controlled Substances Act, 1984.This is a major indictable offence.2.On the 19th (sic) day of January 2013 at SALISBURY EAST in the said State, possessed a controlled drug, namely Ecstasy intending to supply the drug to another person.Section 33I(1) of the Controlled Substances Act, 1984.This is a major indictable offence.3.On the 19th (sic) day of January 2013 at SALISBURY EAST in the said State, engaged directly or indirectly in a transaction involving property, namely $330,990 cash, knowing that property to be tainted property.Section 138(1) of the Criminal Law Consolidation Act, 1935.This is a major indictable offence.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Full text does not contain this section.