R v Davidson - [2011] SASCFC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAVIDSON
[2011] SASCFC 132
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
11 November 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
Appellant pleaded guilty to the offence of manufacturing a controlled drug for sale contrary to s 33(3) of the Controlled Substances Act 1984 (SA) - appellant sentenced to term of imprisonment of two years and six months with a non-parole period of 12 months - sentencing Judge declined to exercise his discretion to suspend the term of imprisonment - whether the Judge erred in failing to suspend the term of imprisonment - whether the Judge sentenced the appellant for possession of precursors or whether he had regard to the possession of precursors as an aggravating feature of the offending when it was inappropriate to do so.
Held: Appeal dismissed - sentenced imposed was appropriately proportionate to the maximum penalty for the offence committed - in exercising his discretion not to suspend the appellant's sentence, the Judge had regard to all relevant matters.
Per Gray and Sulan JJ: the sentencing Judge was mindful of the reduction in the maximum penalty for the offence committed by the appellant - the Judge was entitled to have regard to all the surrounding circumstances when considering the culpability of the appellant.
Controlled Substances Act 1984 (SA) s 4, s 32(5)B(b)(ii), s 33(3), s 33LB; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA), referred to.
R v Mangelsdorf (1995) 66 SASR 60; R v Oliver (1982) 7 A Crim R 174; Markarian v The Queen (2005) 228 CLR 357; Lawrence v The Queen (2007) 171 A Crim R 286; The Queen v De Simoni (1981) 147 CLR 383, discussed.
House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321, considered.

R v DAVIDSON
[2011] SASCFC 132
Court of Criminal Appeal: Gray, Sulan and David JJ
GRAY AND SULAN J:

This is an appeal against sentence.
The defendant and appellant, Ronald Paul Davidson, pleaded guilty in the District Court to the offence of manufacturing a controlled drug for sale contrary to section 33(3) of the Controlled Substances Act 1984 (SA).[1] The maximum custodial sentence for the offence is imprisonment for ten years.
[1](3) A person who manufactures a controlled drug intending to sell any of it or believing that another person intends to sell any of it is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
The defendant was sentenced to a term of imprisonment of two years and six months. A non-parole period of 12 months was fixed. The sentencing Judge declined to exercise his discretion to suspend the term of imprisonment.
The complaint on appeal was that the Judge erred in failing to suspend the term of imprisonment.
On…

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 Davidson

Details

AGLC: R v Davidson [2011] SASCFC 132
Case: [2011] SASCFC 132
Decision Date: 11 November 2011

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by the applicant, R v Davidson, before the Court of Appeal of the Supreme Court of Queensland. The applicant sought to challenge the severity of the sentence imposed by the sentencing judge.

The central legal issue before the Court of Appeal was whether the sentencing judge had erred in the exercise of their discretion by not suspending the term of imprisonment imposed. This required the Court to consider the proportionality of the sentence to the maximum penalty available and to assess whether all relevant material had been properly weighed in the sentencing decision.

The Court of Appeal, in dismissing the appeal, reasoned that the sentence imposed was appropriately proportionate to the maximum penalty and could be considered merciful. The sentencing judge had demonstrably considered all relevant material and found no good reason to suspend the sentence. Consequently, the Court found no error in the exercise of the sentencing judge's discretion.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would dismiss this ground of appeal.Conclusion In my view, the sentence imposed was appropriately proportionate to the maximum penalty. In many ways it could be said to be a merciful sentence. The sentencing Judge carefully weighed up all of the relevant material in coming to his conclusion that there was not good reason to suspend the term. In my view, he has not erred in the exercise of his discretion. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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