R v Cullen

Case [2015] SASCFC 44

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CULLEN

[2015] SASCFC 44

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)

16 April 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

Application for permission to appeal against sentence.  The applicant pleaded guilty to trafficking and firearms offences.  The applicant sourced and supplied a firearm to a youth who was a known user of methylamphetamine.  The firearm was subsequently used by the youth in a murder.  The applicant accepted that he had engaged in trafficking drugs over a period of 12 to 18 months.  The Judge sentenced the applicant to a term of imprisonment of eight years with a non-parole period of three years and nine months. 

Whether the Judge had proper regard to the principle of totality.  Whether the Judge gave sufficient weight to the applicant’s youth, prospects of rehabilitation and poor psychological health.  Whether the Judge allowed extraneous matters, including the consequences of the offending and the Judge’s personal view of firearms, to affect the sentence imposed.

Held per Gray J (Kourakis CJ and Stanley J agreeing) (refusing permission to appeal):

1.  The Judge’s remarks disclose that he placed appropriate weight on the applicant’s age and prospects of rehabilitation.

2.  The Judge’s remarks disclose that he did not hold the applicant responsible for the murder.

3.  The Judge’s remarks on the dangers posed by firearms reflect the concerns expressed on a number of occasions by the Court of Criminal Appeal and do not suggest that any personal view impacted on the sentence imposed.

4.  The Judge’s remarks disclose that he had regard to the to the principle of totality.  It was within the Judge’s discretion to impose cumulative sentences as the trafficking and firearms offending represented two clear and separate incursions into criminal conduct, months apart.  Further, the offending was very serious.

Controlled Substances Act 1984 (SA) s 32(3); Firearms Act 1977 (SA) s 11(1), s 14A(1) and s 30(3); Criminal Law (Sentencing) Act 1988 (SA) s 10 and 10C, referred to.
R v Humbles [2014] SASCFC 91; Pollitt v Police [2007] SASC 382; Johnson v Registrar of Firearms (2001) 79 SASR 353; Offe v Police (2002) 84 SASR 1; R v Randall-Smith and Davi (2008) 100 SASR 326; R v E, AD (2005) 93 SASR 20; R v Daniele [2014] SASCFC 22; R v Violi [2015] SASCFC 2; Attorney-General v Tichy (1982) 30 SASR 84; R v H, GJ (No 2) [2014] SASCFC 102; R v B, RWK (2005) 91 SASR 200, considered.

R v CULLEN
[2015] SASCFC 44

Court of Criminal Appeal:  Kourakis CJ, Gray and Stanley JJ

  1. KOURAKIS CJ:    I would refuse permission to appeal and agree with…

Continue reading R v Cullen

Sign in free to access the full text

Details
AGLC
R v Cullen [2015] SASCFC 44
Case
[2015] SASCFC 44
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the defendant by the District Court. The defendant had been sentenced to four years imprisonment for four counts of drug trafficking and a further four years imprisonment for firearms offences. The sentences were ordered to be served cumulatively, resulting in a total head sentence of eight years, with a non-parole period of three years and nine months. The sentencing judge had applied a 30 per cent reduction for early guilty pleas and ordered the sentences to commence from an earlier date to account for time spent in custody and on home detention bail.

The legal issues before the court were whether the overall sentence imposed was manifestly excessive and whether the non-parole period was disproportionate, particularly in light of the defendant's youth and prospects of rehabilitation. The defendant's offending involved the trafficking of methylamphetamine, ecstasy, and cannabis, and the supply of a semi-automatic handgun to a known drug user who subsequently used it in a murder. The trafficking offences occurred over a period of 12 to 18 months prior to the defendant's arrest, with the charged transactions occurring after the murder.

The court reasoned that the seriousness of the offending, which included drug trafficking and the supply of a firearm used in a murder, justified the sentence imposed. The judge had taken into account the defendant's early guilty pleas and had specifically considered his youth and prospects of rehabilitation when fixing the non-parole period. The court found that the non-parole period, which was less than half of the head sentence, was not crushing or disproportionate to the defendant's criminality.

Consequently, the court refused permission to appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 9 October 2014, a Judge of the District Court sentenced the defendant to the one period of imprisonment of four years in respect of the four counts of drug trafficking. The Judge sentenced the defendant to a period of imprisonment of four years in respect of the firearms offences. The Judge indicated that when determining each sentence he had made a reduction of 30 per cent on account of the early guilty pleas. The Judge ordered that the sentences be served cumulatively and, in respect of a total period of eight years of imprisonment, fixed a non-parole period of three years and nine months. The sentences were ordered to commence on 1 June 2014 to reflect time spent in custody and on home detention bail. Background In early 2013, the defendant came to the attention of the police as a result of the murder of Lewis MacPherson by Liam Patrick Humbles on 31 December 2012.[5] An investigation was undertaken into the supply of the semi-automatic handgun used by Humbles, which led to the defendant becoming a person of interest to police. [5] R v Humbles [2014] SASCFC 91. In addition to the firearms investigation, in early 2013, police commenced an undercover operation with respect to the defendant. This followed allegations that the defendant was trafficking in controlled drugs, primarily in the southern suburbs. It was established that the defendant was regularly involved in the sale of methylamphetamine, ecstasy and cannabis. Humbles was one of the defendant’s regular customers. Humbles was also a friend of the defendant. They would meet about once per week. In early 2012, Humbles indicated to the defendant that he wanted to obtain a firearm because of threats from individuals associated with the drug scene. The defendant sourced the Jensen semi-automatic handgun for Humbles. The defendant has refused to disclose the identity of the person from whom he obtained the firearm. By late 2012, Humbles was using methylamphetamine daily. His behaviour was deteriorating. A mutual friend of the defendant and Humbles approached the defendant and told him Humbles was “off the rails” and was behaving in a violent and aggressive manner. She asked the defendant to retrieve the gun from Humbles. The defendant, in about October 2012, removed the firearm from Humbles’ possession under the pretence that he required it for his own use. However, in about November 2012, as a result of pressure from Humbles, the defendant returned the firearm to him. The four counts of trafficking concerned transactions with an undercover operative on 5 and 11 April, 16 May and 6 June 2013. It is to be noted that these transactions all occurred after Mr McPherson’s murder. Evidence obtained primarily from the defendant’s mobile phone indicated that he had been engaged in trafficking for an extended period. The defendant accepted that the charged transactions were representative of a course of conduct of trafficking over a period of 12 to 18 months prior to his arrest. The Judge sentenced the defendant on that basis. The Judge sentenced the defendant on the basis that the offences were serious examples of their kind. The Judge, when fixing a non-parole period of three years and nine months, specifically took into account the defendant’s youth and prospects of rehabilitation. The AppealManifestly Excessive

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having regard to the seriousness of the offending, I do not consider the overall sentence imposed to be crushing or disproportionate to the defendant’s criminality. It is to be recalled that the non-parole period fixed by the Judge represented less than one half of the head sentence. Conclusion I would refuse permission to appeal. STANLEY J: I would refuse permission to appeal. I agree with the reasons of Gray J.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.