R v Clift - [2010] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLIFT
[2010] SASC 79
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)
31 March 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
Appeal against sentence - appellant pleaded guilty to a number of offences including a breach of bond for which a sentence had been suspended - whether trafficking offence at lower end of scale on account of weight of drug - submission not put to sentencing Judge - defendant appropriately categorised as more than a street trader - sentence for unlawful possession of large quantity of money close to maximum penalty but reflected serious nature of crime - cumulative sentences - each sentence within appropriate range - sentence did not require reduction on account of principle of totality - no error shown in approach by sentencing Judge - appeal dismissed.
Firearms Act 1977 s 11(1); Summary Offences Act 1953 s 41(1); Controlled Substances Act 1984 s 32(1), referred to.
R v Rossi (1988) 142 LSJS 451; R v Randall-Smith (2008) 100 SASR 326; R v B, RWK (2005) 91 SASR 200, considered.

R v CLIFT
[2010] SASC 79
Court of Criminal Appeal: Nyland, Gray and Vanstone JJ

NYLAND and GRAY JJ: This is an appeal against sentence. The defendant and appellant, Guy Anthony Clift, pleaded guilty in the Magistrates Court and was committed for sentence to the District Court for the following offences:
·Two counts of possessing a Class H firearm without a licence, contrary to the provisions of section 11(1) Firearms Act 1977 (SA). The maximum penalty prescribed for this offence is imprisonment for seven years or a fine of $35,000.00.
·One count of unlawful possession contrary to the provisions of section 41(1) Summary Offences Act 1953 (SA). The maximum penalty for that offence is imprisonment for two years or a fine of $10,000.00.
·One count of trafficking in a large commercial quantity of a controlled drug contrary to the provisions of section 32(1) Controlled Substances Act 1984 (SA). The maximum penalty for that offence is imprisonment for life or a fine of $500,000.00 or both.
At the time of committing these offences, the defendant was subject to a suspended sentence bond of four months. That bond related to offending for which the defendant was sentenced on 7 August 2006 in the Adelaide Magistrates Court. At that time, a sentence of four months imprisonment was imposed for the offences of producing a controlled substance, possess a dangerous article, possess or use body armour without approval, fail to secure ammunition in a locked container, failure to comply with regulations, possess prescription drug and unlawful possession. That sentence was suspended upon the defendant entering into a bond to be of good behaviour for a period of…

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 [2010] SASC 79
Case: [2010] SASC 79
Decision Date: 31 March 2010

CaseChat Overview and Summary

The appellant in this matter appealed against the sentences imposed by the lower court, having pleaded guilty to a range of offences. These included a breach of a suspended sentence for an earlier offence. The central issues were whether the trafficking offence was at the lower end of the scale due to the weight of the drug, and whether the sentence for unlawful possession of a large quantity of money was appropriate given its proximity to the maximum penalty. The court also had to consider whether the principle of totality warranted a reduction in the sentence.

The court examined whether the appellant should be categorised as more than a mere street trader, and whether the cumulative sentences were within the appropriate range. It was noted that the submissions regarding the weight of the drug were not presented to the sentencing judge, but the court held that the appellant was appropriately categorised as more than a street trader. The sentence for unlawful possession of a large quantity of money was considered to be close to the maximum penalty, reflecting the serious nature of the crime. The court found that each sentence was within the appropriate range and that the principle of totality did not require a reduction. The approach taken by the sentencing judge was deemed to be correct, and no error was shown.

The appeal was dismissed, and the original sentences were upheld. The court's decision underscores the importance of categorising the offender correctly and the consideration of the totality principle in sentencing, particularly in cases involving drug trafficking and possession of large sums of money.

Orders