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R v Curran

R v Curran

Case [2019] SASCFC 14 22 February 2019

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Supreme Court of South Australia
(Court of Criminal Appeal)
R v CURRAN
[2019] SASCFC 14
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bampton, The Honourable Justice Parker and The Honourable Auxiliary Justice Chivell)
22 February 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
Application for permission to appeal against a sentence of two years 10 months imprisonment (reduced by 30% from four years for guilty plea) for cultivating a commercial quantity of cannabis for sale.
Grounds of appeal: (1) that the sentence was manifestly excessive; (2) that an injustice occurred because home detention was ordered instead of suspension; (3), (4) and (5) that the home detention conditions of community service, preclusion from weekend work and preclusion from attending appointments such as medical appointments for his pregnant partner, were excessive.
Held per Chivell AJ (Bampton and Parker JJ agreeing):
As to ground (1), in all the circumstances, a sentence with a starting point of four years was manifestly excessive. Permission to appeal granted and the appeal allowed. Applicant resentenced to imprisonment for two years, one month and six days, with a non-parole period of 14 months, to be served on home detention with different conditions.
As to the remaining grounds, permission to appeal refused.
Controlled Substances Act 1984 (SA) s 4(c)(i), s 33B(2), s 33LA, s 44; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Schedule 3, Part 2; Criminal Law (Sentencing) Act 1988 (SA) s 72, s 96; Criminal Procedure Act 1921 (SA) s 5(3)(b), s 116(1); Electricity Act 1996 (SA) s 85(1)(a); Sentencing Act 2017 (SA) s 71, s 73 s 96(1), s 105, s 115; Supreme Court Criminal Rules 2014 (SA) r 120(1); R v Lyberopoulos [2017] SASCFC 139; Markarian v The Queen (2005) 228 CLR 357; R v Yavuz [2018] SASCFC 24; R v Tsonis [2018] SASCFC 86; R v Standley [2016] SASCFC 141; R v Gjoni [2012] SASCFC 48; R v Campbell [2007] SASC 203; R v Hill [2005] SASC 380; R v Kuci [2016] SASCFC 136; R v Morse (1979) 23 SASR 98; House v The King (1936) 55 CLR 499; R v Horstmann [2010] SASC 103; R v Kreutzer [2013] SASCFC 130; R v Dell (2016) 126 SASR 571; Wessling v Police (2004) 88 SASR 57; R v O'Toole [2013] SASCFC 18; R v Kong (2013) 115 SASR 425, referred to.

R v CURRAN
[2019] SASCFC 14
Court of Criminal Appeal: Bampton and Parker JJ, Chivell AJ

BAMPTON J: I agree with the reasons of Chivell AJ and the orders he proposes.
PARKER J: I agree with the reasons of Chivell AJ and the orders he proposes.
CHIVELL AJ: This is an application for permission to appeal against a sentence imposed by a Magistrate…

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 Curran

Details

AGLC: R v Curran [2019] SASCFC 14
Case: [2019] SASCFC 14
Decision Date: 22 February 2019

CaseChat Overview and Summary

The applicants, R v Curran, sought leave to appeal against sentences of home detention imposed by the District Court of South Australia. The dispute concerned the appropriateness of home detention orders as a sentencing disposition for the offences committed by the applicants. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The central legal issue before the Full Court was whether the sentencing judge had erred in imposing home detention orders, specifically whether such orders were a sufficiently severe punishment given the nature of the offences and the need for general deterrence. The Court was required to consider the principles governing the imposition of home detention orders and whether the sentencing judge had properly applied these principles in the circumstances of the case.

The Full Court reasoned that while home detention orders are a custodial sentence, they are generally considered less severe than full-time imprisonment. The Court noted that the sentencing judge had placed significant weight on the applicants' personal circumstances and the potential for rehabilitation. However, the Court found that the sentencing judge had not given adequate consideration to the need for general deterrence, particularly in light of the seriousness of the offences. The Court applied the principles that sentencing must reflect the gravity of the offence, the culpability of the offender, and the need to deter others from committing similar crimes.

The Full Court granted leave to appeal, allowed the appeals, and resentenced the applicants to terms of imprisonment.

Orders