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R v Culley

R v Culley

Case [2019] SASCFC 143 15 November 2019

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Permission to Appeal)
R v CULLEY
[2019] SASCFC 143
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)
15 November 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCE DURING UNEXPIRED SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - PARTICULAR CASES
Crown application for permission to appeal against sentence; respondent cross-appeal
The respondent was sentenced for trafficking in a controlled drug (on 19 December 2016) for which he was sentenced on 10 December 2018 to four years and 19 days (‘the subject offending’). At the time of sentencing for the subject offending, the respondent was serving a sentence of three years, ten months and 17 days with a non-parole period of two years (‘the earlier sentence’) for 11 counts of trafficking in a controlled drug, two counts of simple possession and one count of possessing a prescription drug without a prescription (in April 2015) which was imposed on 26 May 2017.
The Director contended that the sentence for the subject offending was manifestly inadequate. The respondent contended that he had been wrongly classified as a serious repeat offender such that his non-parole period had been incorrectly calculated.
At time of sentencing for the subject offending, the respondent had served two years of the earlier sentence. The sentencing judge, finding that a sentence of four years and 19 days would be crushing on the respondent, backdated it to commence on 20 December 2017. The effect of the orders was to extend the earlier sentence by one year, two months and two days (‘the effective sentence’). The combined sentence for the earlier and subject offending was therefore five years and 19 days, having commenced on 20 December 2016.
The sentencing judge calculated the length of the non-parole period by reference to the effective sentence to arrive at a non-parole period of two years, 11 months and one week.
The Director sought permission on the grounds that the sentencing Judge erred in:
- applying an inappropriate concurrency in the sentence; and
- having found the respondent to be a serious repeat offender, not fixing a non-parole period that was four-fifths of the overall sentence of four years and 19 days.
The respondent maintained by his cross-appeal that the finding that he was a serious repeat offender was incorrect because:
- for the four-fifths rule to operate, the offence triggering his classification was required to, and did not, occur after the commencement of the Sentencing Act 2017; and
- he was not correctly classified as a serious repeat offender because the counts of the…

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.

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Details

AGLC: R v Culley [2019] SASCFC 143
Case: [2019] SASCFC 143
Decision Date: 15 November 2019

CaseChat Overview and Summary

The Crown sought leave to appeal against a sentence imposed on the respondent, Mr Culley, in the District Court of South Australia. The respondent also cross-appealed against the same sentence. The dispute concerned the interpretation and application of sentencing provisions relating to the imposition of a sentence during an unexpired sentence.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in calculating the non-parole period for the respondent. Specifically, the court had to determine how the provisions governing the imposition of a sentence during an unexpired sentence applied to the facts of this case, and whether the factual basis upon which the sentence was imposed was correct.

The Court considered the relevant legislative provisions and the principles of sentencing in South Australia. It analysed the interplay between the imposition of a new sentence and the existing unexpired sentence, particularly in relation to the determination of a non-parole period. The Court found that the sentencing judge had made an error in the calculation of the non-parole period, leading to an incorrect overall sentence.

The Court granted the Crown's application for leave to appeal and allowed the appeal. It set aside the original sentence and resentenced the respondent, imposing a corrected non-parole period that reflected the proper application of the sentencing legislation.

Orders