R v CONSTANTINOU - [2005] SASC 466

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CONSTANTINOU
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice White)
14 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeal against sentence - appellant pleaded guilty to possessing a controlled substance for sale - appellant sentenced to a head sentence of two years and three months with twelve months non-parole - sentencing judge refused to suspend the sentence - whether good reason existed to suspend the sentence - whether forfeiture orders ought to have been considered in sentencing the appellant - held: good reason existed to suspend the sentence - appeal allowed.
Controlled Substances Act 1982 s 32(1)(e), referred to.
Dinsdale v R (2000) 202 CLR 321, applied.

R v CONSTANTINOU
[2005] SASC 466
Court of Criminal Appeal: Doyle CJ, Sulan and White JJ

DOYLE CJ: I agree with the reasons given by Sulan J for the orders that the Court made on the hearing of the appeal. There is nothing that I wish to add to those reasons.
SULAN J: This is an appeal against sentence. The appellant was committed for sentence to the District Court, having pleaded guilty in the Magistrates Court to possessing a controlled substance for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984. The appellant had in his possession thirty seven ecstasy tablets, and one tablet containing methylamphetamine. He was sentenced to two years and three months imprisonment, with a non-parole period of twelve months. But for his plea of guilty, the sentencing judge would have imposed a sentence of three years imprisonment. The sole ground of appeal is that the sentence should have been suspended.
On 23 November 2005, having heard argument, the Court allowed the appeal and varied the sentence of the District Court by ordering that the sentence of imprisonment be suspended. The appellant entered into a bond in the sum of $500 to be of good behaviour for two years, and to be under the supervision of a probation officer for a period of twelve months. The Court further ordered that the drugs be forfeited, and that the sum of $745 seized from the appellant be forfeited. The appellant entered into the bond. The Court indicated that it would publish its reasons for the decision at a later time.
Facts
At about 11.30 p.m. on 18 February 2005, the appellant was parked illegally in his car with three other men when police approached the car. One of the officers smelt cannabis and the car was, therefore, searched. The officers found a bag belonging to the appellant with 37 tablets found to contain ecstasy, and one tablet found to contain methylamphetamine. The total quantity of ecstasy found was 2.41 grams. He also had in his possession $745 in cash.
The sentencing…

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 CONSTANTINOU

Details

AGLC: R v CONSTANTINOU [2005] SASC 466
Case: [2005] SASC 466
Decision Date: 14 December 2005

CaseChat Overview and Summary

The appellant, Constantinou, appealed against the sentence imposed by the District Court, which involved imprisonment for two years and three months, with a non-parole period of twelve months, for possessing a controlled substance with intent to sell. The central issues before the Court were whether there was a good reason to suspend the sentence and whether the forfeiture orders should have been considered during sentencing. The appellant, a first offender with a troubled background and borderline intelligence, had been caught with a small quantity of ecstasy and methylamphetamine, along with a significant amount of cash. He had sold two tablets to others in the car before being apprehended. The sentencing judge deemed the appellant immature and naïve but denied a suspension of the sentence.

The Court examined the principles governing the suspension of sentences, emphasizing the importance of considering the appellant's age, background, and the nature of the offence. The sentencing judge had acknowledged the appellant's immaturity and his efforts to address his drug issues, but ultimately did not find sufficient grounds to suspend the sentence. The Court found that the sentencing judge had erred in not considering the full context of the appellant's personal circumstances and the potential for rehabilitation. The Court concluded that there was a good reason to suspend the sentence, given the appellant's age, his efforts to rehabilitate himself, and the relatively minor nature of the offence in terms of the quantity of drugs involved.

The Court allowed the appeal and varied the sentence, ordering that the imprisonment be suspended. The appellant was required to enter a bond of $500 to be of good behaviour for two years and to be under the supervision of a probation officer for twelve months. Additionally, the Court ordered the forfeiture of the drugs and the cash seized from the appellant. The Court's decision highlighted the importance of considering individual circumstances and the potential for rehabilitation in sentencing decisions.

Orders

Orders of the court

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Background

Background to the litigation

On 23 November 2005, having heard argument, the Court allowed the appeal and varied the sentence of the District Court by ordering that the sentence of imprisonment be suspended. The appellant entered into a bond in the sum of $500 to be of good behaviour for two years, and to be under the supervision of a probation officer for a period of twelve months. The Court further ordered that the drugs be forfeited, and that the sum of $745 seized from the appellant be forfeited. The appellant entered into the bond. The Court indicated that it would publish its reasons for the decision at a later time.Facts At about 11.30 p.m. on 18 February 2005, the appellant was parked illegally in his car with three other men when police approached the car. One of the officers smelt cannabis and the car was, therefore, searched. The officers found a bag belonging to the appellant with 37 tablets found to contain ecstasy, and one tablet found to contain methylamphetamine. The total quantity of ecstasy found was 2.41 grams. He also had in his possession $745 in cash. The sentencing judge accepted that the appellant had purchased 40 tablets the night before, and paid $20 per tablet. The judge concluded that the appellant intended to use some of the tablets himself, and to sell some for $40 per tablet to people who were known to him, or had been introduced to him. At the time that the police spoke to the appellant, the appellant had sold two tablets to two of the men in the car. The sentencing judge concluded that the appellant, a first offender who was eighteen years and six months at the time of the offence, was an immature man who did not appreciate the seriousness of his conduct. At the time he was sentenced, the appellant was nineteen years of age. He had had an unsettled childhood, his parents having separated when he was an infant. His relationship with his father had not been particularly happy in his early days although, as he grew older, it had improved. At the time of being sentenced, the appellant was employed by his father. That work was still available to him. The appellant had a good relationship with his mother and his siblings, who had supported him throughout, and continued to support him. Since his arrest and release on bail he had been training to work in the hospitality industry, which he intended to pursue. Dr White, a psychologist, observed that the appellant was of borderline range of intelligence, and that his non-verbal abilities were extremely poor, and his problem-solving abilities were equivalent to those of a person aged ten years. The sentencing judge had regard to Dr White’s report, and accepted that the offending was naïve, and that the appellant had acted in that way to promote himself with his peers, which demonstrated his immaturity. The sentencing judge noted that the appellant had referred himself to the Offenders’ Aid and Rehabilitation Services, and had undertaken alcohol and drug counselling. The appellant commenced using cannabis at the age of sixteen and had also used amphetamines and ecstasy. He had maintained regular contact with the services, he had been motivated to address his problems, and he had decreased his drug use.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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