Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Justice Hinton)
15 August 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
On 18 April 2016, the applicant was sentenced for six counts of attempting to import a marketable quantity of a controlled precursor; namely pseudoephedrine. The offending breached a two year suspended sentence bond imposed on 7 June 2012, which involved one count of trafficking in a controlled drug. The sentencing Judge revoked the suspended sentence of one year and three months with a non-parole period of six months and sentenced the applicant to two years and seven months. He ordered her release after serving 12 months on her own recognisance to be of good behaviour for two years. The sentence was to commence at the end of the six month non-parole period for the revoked suspended sentence.
At the time of sentence the applicant had an 18-month old child. During sentencing submissions the Judge was informed that the applicant was pregnant with her second child. Whether the Judge gave appropriate and adequate weight to the effect of imprisonment on the applicant's young child and unborn child - whether special reasons existed to reduce the term of the suspended sentence - whether Commonwealth sentence was manifestly excessive.
Held per the Court (allowing the application):
1. Permission to appeal is granted.
2. Appeal allowed. The sentencing orders imposed in the District Court are set aside.
3. Special reasons exist and pursuant to s 58(4) of the Criminal Law (Sentencing) Act 1988 the sentence the subject of the bond is reduced to 13 months of imprisonment with a non-parole period of four months. The penalty imposed in relation to the Commonwealth offences is manifestly excessive and is set aside.
4. The applicant is to be resentenced and the parties are invited to make further submissions.
[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.
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AGLC
R v Constant [2016] SASCFC 87
Case
[2016] SASCFC 87
Decision Date
CaseChat Overview and Summary
The applicant, Ms Constant, appealed against a sentence imposed by a District Court Judge for Commonwealth offences. The appeal was heard by Nicholson, Lovell, and Hinton JJ.
The central legal issue before the Court was the appropriate sentence for the Commonwealth offences, particularly in light of the applicant's impending childbirth and the potential impact of separation on her newborn child and existing child, M. The Court was required to consider the balance between the seriousness of the offending, the applicant's antecedents, and the mitigating factors related to her motherhood and rehabilitation.
The Court reasoned that the sentencing judge had not been provided with sufficient information regarding the impact of separation on the newborn child and the compounding effects on M. It acknowledged the inherent harshness of separating a mother from a newborn, especially when motherhood had proven to be a pathway to rehabilitation. While not overlooking the gravity of the offences or the applicant's prior convictions, the Court expressed concern that incarceration after childbirth could be excessively burdensome, particularly for women in South Australia. Consequently, the Court decided to adjourn the sentencing for the Commonwealth offences to allow for the provision of further information, particularly concerning the impending separation of the applicant and her new baby.
The Court allowed the appeal, setting aside the original sentencing orders for the Commonwealth offences and remitting the matter for resentencing. It also revoked the suspension of a prior sentence, reduced the head sentence and non-parole period for that sentence, and backdated its commencement. The applicant was remanded in custody pending the resentencing for the Commonwealth offences.
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
We would set aside the sentence imposed on the Commonwealth offences.Conclusion The sentencing Judge had the benefit of Ms Black’s and Mr Fugler’s report. As made plain above, to the extent that those reports address hardship to be caused to the applicant’s family they are limited to the impact of separation upon M. The sentencing Judge did not have the benefit of any report dealing with the impact upon the newborn child of separation from the applicant for the best part of the first 12 months of its life nor what, if any, compounding effect the absence of her mother and introduction of a brother or sister may mean for M. In determining the appropriate sentence in this case, we would benefit from such information. We note the applicant is due to give birth in October. As we have discussed above, it is harsh at any time to separate a newborn child and its mother, but here where motherhood has proven to be the avenue through which rehabilitation has been achieved and in all likelihood will be maintained, it is not only all the more harsh but counterintuitive. That said, we do not lose sight of the seriousness of the offending, we do not overlook the applicant’s antecedents, and we do not overlook the fact that she committed the Commonwealth offences whilst subject of a bond for drug related offending. However, we also bear in mind Ms Black’s report. We have concerns that incarceration of the applicant after she gives birth may be a price too high, considering both the applicant’s dependants and the fact that imprisonment is significantly more burdensome for a woman in South Australia who gives birth whilst in custody. In the circumstances, we considered that the interests of justice would best be served by an order adjourning the applicant’s sentencing on the Commonwealth offences and inviting the parties to provide whatever additional information may be considered of assistance generally and particularly with respect to the impending separation of the applicant and the new baby. Orders of the Court For these reasons, on 29 July 2016, the Court made the following orders:1. Permission to appeal is granted. 2. The appeal is allowed, the sentencing orders imposed by the District Court Judge are set aside and the applicant is to be resentenced. 3. Pursuant to s 58(1) of the Sentencing Act the suspension of the sentence imposed by his Honour Judge Rice on 7 June 2012 is revoked. 4. Pursuant to s 58(4)(a) of the Sentencing Act the term of the sentence imposed by his Honour Judge Rice on 7 June 2012 is reduced in that the head sentence is reduced to 13 months of imprisonment and the non-parole period is reduced to four months of imprisonment. 5. The reduced sentence to be served is backdated to commence on 18 April 2016. 6. With respect to resentencing for the Commonwealth offences we adjourn the matter for further submissions to Monday the 15th August 2016 at 9.30 am.7. Any bail previously given with respect to the Commonwealth offences insofar as it might be resurrected or otherwise remain in place following our setting aside of the Judge’s sentence for the Commonwealth offences is revoked and the applicant is remanded in custody pending sentence.