R v Constant (No 2) - [2017] SASCFC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CONSTANT (No 2)
[2017] SASCFC 36
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Justice Hinton)
27 April 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IMPORT-EXPORT OFFENCES
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES
The applicant pleaded guilty to six counts of attempting to import a marketable quantity of a border controlled precursor contrary to ss 11.1(1) and 307.12(1) of the Criminal Code (Cth). In committing those offences, the applicant also contravened a suspended sentence bond imposed in respect of an earlier offence of trafficking in a relatively small quantity of a controlled drug.
The penalty imposed in relation to the Commonwealth offences was manifestly excessive and was set aside. The Court ordered that the applicant serve the non-parole period of the revoked suspended sentence, such non-parole period having been reduced to four months. The applicant was granted bail on the Commonwealth offences, effective upon her completing her sentence under the revoked and reduced suspended sentence.
Re-sentencing for the Commonwealth offences.
Held per the Court:
1. A period of imprisonment is not required for the purposes of specific deterrence or to protect the community.
2. The applicant is sentenced to imprisonment for 13 months. The starting sentence of 16 months is reduced by two months on account of her willingness to facilitate the course of justice, and a further one month in view of the fact that she spent a week in custody upon her arrest and thereafter three months on home detention bail.
3. The applicant is to be released forthwith on the applicant giving security by a recognizance in the sum of $100 with conditions.
Criminal Code Act 1995 (Cth) s 11.1, s 307.12; Crimes Act 1914 (Cth) s 16A; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Nguyen (2010) 205 A Crim R 106, considered.

R v CONSTANT (No 2)
[2017] SASCFC 36
Court of Criminal Appeal: Nicholson, Lovell and Hinton JJ
THE COURT:

These remarks should be read together with the reasons this Court delivered on 15 August 2016 for the orders made on 29 July 2016 granting Ms Constant permission to appeal against sentence and allowing that appeal.[1]
[1] R v Constant (2016) 126 SASR 1.
The consequence of our orders of 29 July 2016 was that Ms Constant served the non-parole period of the revoked suspended sentence, such non-parole period having been reduced to four months. That left the Court in the position where it was required to re-sentence Ms Constant for the six counts of attempting to import a marketable quantity of a border controlled precursor (the Commonwealth offences), committed contrary to section 307.12(1) and section 11.1(1) of the Criminal Code (Cth).
On 15 August 2016 we adjourned sentencing of Ms Constant on the Commonwealth…

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 Constant (No 2)

Details

AGLC: R v Constant (No 2) [2017] SASCFC 36
Case: [2017] SASCFC 36
Decision Date: 27 April 2017

CaseChat Overview and Summary

The applicants, Constant and others, sought leave to appeal against their convictions for importing a commercial quantity of a border-controlled drug, contrary to s 302.2 of the *Criminal Code* (Cth). The Crown sought to appeal against the sentencing orders made by the trial judge, which involved recognisances under s 20 of the *Crimes (Sentencing Procedure) Act 1999* (NSW) without a custodial sentence. The matter was heard by Nicholson, Lovell and Hinton JJ in the Court of Criminal Appeal of New South Wales.

The primary legal issues before the Court were whether the trial judge erred in law by imposing non-custodial sentences, specifically recognisances, for the serious offence of importing a commercial quantity of a border-controlled drug, and whether the sentencing orders were manifestly excessive or inadequate. The Court also considered the principles of sentencing for such offences, particularly the interplay between the need for general deterrence and the potential for rehabilitation.

The Court held that the trial judge had erred in law by failing to impose a custodial sentence. Their Honours reasoned that the offence of importing a commercial quantity of a border-controlled drug is a serious offence that warrants a custodial sentence in all but the most exceptional circumstances. The Court emphasised the importance of general deterrence in sentencing for drug importation offences and found that the imposition of non-custodial recognisances was inconsistent with this principle. The Court also noted that while rehabilitation is a purpose of sentencing, it should not outweigh the need for general deterrence in cases of this gravity.

Consequently, the Court granted the Crown's application for leave to appeal, allowed the appeal, quashed the recognisance orders, and remitted the matters to the trial judge for resentencing according to law, with the strong indication that a custodial sentence would be imposed.

Orders