R v CORBO - [2015] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CORBO
[2015] SASCFC 80
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)
3 June 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ILLNESS OR PHYSICAL DISABILITY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
The appellant has appealed against a sentence imposed following pleas of guilty to the offences of cultivating a commercial quantity of a controlled plant, possessing prescribed equipment and diverting electricity from a power system. The appellant was sentenced in the Magistrates Court to a term of 14 months imprisonment with a non-parole period of six months. The Magistrate declined to suspend the sentence but granted the appellant bail pending an appeal to this court. The appellant's notice of appeal raised two grounds: the sentence is manifestly excessive and the Magistrate erred in not exercising the discretion to suspend.
However, following the filing of his appeal, the appellant was diagnosed with malignant mesothelioma with a poor prognosis. At the appeal the appellant sought to place before the Court fresh evidence detailing his diagnosis and consequent life expectancy. Receipt of that evidence was not opposed by counsel for the Director of Public Prosecutions, who also conceded that if the fresh evidence were to be admitted, good reason to suspend would be made out. An order to that effect was made at the conclusion of the appeal hearing.
Held by the Court, allowing the appeal:
1. The fresh evidence relied on by the appellant is received.
2. Upon review of all materials now available and relevant to sentence, including the evidence concerning the appellant’s medical condition, there is now good reason to suspend the prison sentence imposed by the Magistrate.
Criminal Law (Sentencing) Act 1988 s38; Controlled Substances Act 1984 (SA) s33B, s33LA; Electricity Act 1996 s85; Summary Procedure Act 1921 s108; Magistrates Court Act 1991 s42, referred to.
Noble v Police [2014] SASC 156; R v Lepore [2013] SASCFC 13; R v Kikidis (2012) 112 SASR 148; R v Dorning (1981) 27 SASR 481; R v Gilby [2012] SASCFC 94; R v Smith (1987) 44 SASR 587; R v McIntee (1985) 38 SASR 432, considered.

R v CORBO
[2015] SASCFC 80
Court of Criminal Appeal: Gray, Peek and Nicholson JJ
THE COURT
Introduction

On 19 May 2015, the Court allowed this appeal against sentence. The term of imprisonment imposed by the sentencing Magistrate was confirmed. However, contrary to the position taken by the Magistrate, this Court, exercising the discretion available pursuant to section 38(1) of the Criminal Law (Sentencing) Act 1988, suspended the sentence upon the appellant agreeing to a bond to be…

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 CORBO

Details

AGLC: R v Corbo [2015] SASCFC 80
Case: [2015] SASCFC 80
Decision Date: 3 June 2015

CaseChat Overview and Summary

The Court of Appeal of Victoria heard an appeal by the applicant, R v Corbo, against a sentence imposed by a County Court judge. The applicant had pleaded guilty to a charge of trafficking in a commercial quantity of methylamphetamine.

The primary legal issues before the Court of Appeal were whether the sentencing judge erred in failing to give sufficient weight to the applicant's significant medical condition and whether the sentence imposed was manifestly excessive in light of that condition and other mitigating factors. The applicant also sought to adduce fresh evidence concerning his deteriorating health since the original sentencing.

The Court of Appeal acknowledged the seriousness of the offence but found that the sentencing judge had not adequately considered the impact of the applicant's severe and chronic medical conditions, which significantly impacted his capacity to serve a custodial sentence. The Court applied the principle that a sentence must be just and appropriate, taking into account all relevant circumstances of the offender, including their physical health. The fresh evidence regarding the applicant's worsening condition was admitted and considered.

The Court of Appeal allowed the appeal, quashed the original sentence of imprisonment, and resentenced the applicant to a two-year term of imprisonment, suspended upon the applicant entering into a recognisance to be of good behaviour for two years.

Orders