R v Day - [2009] SASC 84

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAY
[2009] SASC 84
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice White)
2 April 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE
Appellant sentenced for series of drug-related and other offences - appellant pleaded guilty to taking part in the manufacture of methylamphetamine - appellant committed further offences of possessing a controlled substance for sale - whether combined effect of sentences manifestly excessive - whether the unlawful conduct of the police when arresting the appellant justified a reduction of the sentence - whether sentencing Judge failed to give a sufficient discount in relation to plea of guilty - whether sentences for latter offences should be served concurrently - whether sentence should be reduced on the basis of totality.
Held: the unlawful and improper conduct of the police alone would rarely, if at all, justify a reduction in what would otherwise be an appropriate sentence. Whether or not the fact of fear or intimidation has played a part in the commission of offences should result in a reduction in penalty must depend on the circumstances of the particular case. Where there are two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Appeal allowed only in relation to latter offences, namely, possessing a controlled substance for sale - sentence reduced on the basis that it was manifestly excessive - sentence made cumulative upon sentence for earlier offending.

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
Controlled Substances Act 1984 (SA) s 32(1)(b), s 32(1)(e); Criminal Law (Sentencing) Act 1988 (SA) 18A; Summary Offences Act 1953 (SA) s 67, referred to.
Attorney-General v Tichy (1982) 30 SASR 84; R v Caplikas (2002) 132 A Crim R 544; R v Mangelsdorf (1995) 66 SASR 60, applied.
Cameron v The Queen (2002) 209 CLR 339, 334; R v Birtles (1969) 2 All ER 1131; R v Craciun (2006) 94 SASR 173; R v Nasogaluak (2007) CCC (3d) 52; R v Pigeon (1992) 73 CCC (3d) 337; R v Sang (1980) AC 402; R v Steinberg (1967) 3 CCC 48; R v Trocko (1988) 132 LSJS 412, discussed.

R v DAY
[2009] SASC 84
Court of Criminal Appeal: Doyle CJ, Sulan and White JJ

DOYLE CJ: I agree with the orders proposed by Sulan J and with his reasons. There is nothing that I wish to add.
SULAN J: On 12 December 2008, the appellant was sentenced by a District Court Judge to a total period of imprisonment of ten years and six months’ imprisonment, with a non-parole period of seven years’ imprisonment for various drug offences. He appeals on the ground that the overall period to be served is manifestly excessive.
On 28…

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 Day

Details

AGLC: R v Day [2009] SASC 84
Case: [2009] SASC 84
Decision Date: 2 April 2009

CaseChat Overview and Summary

The case of R v Day involved the appellant, who had a history of drug-related and other offences. The appellant pleaded guilty to participating in the manufacture of methylamphetamine and committed further offences of possessing a controlled substance for sale. The court was tasked with determining several legal issues, including whether the combined effect of the sentences was manifestly excessive, whether the unlawful conduct of the police during the arrest justified a reduction in sentence, whether the sentencing judge failed to give a sufficient discount in relation to the plea of guilty, and whether the sentences for the latter offences should be served concurrently. Additionally, the court had to consider whether the sentence should be reduced on the basis of the principle of totality.

The court held that the unlawful and improper conduct of the police alone would rarely justify a reduction in what would otherwise be an appropriate sentence. The court emphasised that whether the fact of fear or intimidation has played a part in the commission of offences should result in a reduction in penalty must depend on the circumstances of the particular case. The court also noted that where there are two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. The appeal was allowed only in relation to the latter offences, namely, possessing a controlled substance for sale. The sentence was reduced on the basis that it was manifestly excessive, and the sentence was made cumulative upon the sentence for the earlier offending.

In summary, the court allowed the appeal in relation to the 2007 offences, reducing the starting point for the 2007 offences to seven years’ imprisonment and the sentence to five years’ imprisonment, having regard to the pleas of guilty. The sentence was directed to be cumulative upon the sentence of two and a half years’ imprisonment for the 2005 offending, making a total of seven years and six months’ imprisonment. This total was to be served cumulatively upon the unexpired period of one year and ten days’ imprisonment that the appellant was required to serve, having breached his parole, resulting in a total of eight years, six months and ten days’ imprisonment, commencing on 18 August 2008. The non-parole period was fixed at five years’ imprisonment, also commencing on 18 August 2008.

Orders

Orders of the court

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Background

Background to the litigation

When he was sentenced on 12 December 2008, the sentencing Judge was required to take into account that when he committed the 2007 offences he was on parole for the 2004 offences, and when he was taken into custody on 18 August 2008 for having breached his parole, there was an unexpired balance of one year and ten days’ imprisonment to be served for the 2004 offences. The outstanding period of parole which I have mentioned was to be served prior to the sentences for the 2005 and 2007 offences coming into effect. That resulted in a total period of imprisonment of ten years, six months and ten days’, backdated to 18 August 2008. I shall describe in more detail later in these reasons how the sentencing Judge arrived at the sentences that were imposed.Background The defendant is 36 years of age. On 13 April 2005, he was in a shed at premises at 57 Grey Avenue, Welland, when they were raided by police. He and another man were arrested. During the raid and arrest, the appellant received a wound to his head and lacerations to his knees and elbows. In the shed, police and forensic scientists observed chemicals, glassware and other implements commonly used in the manufacture of methylamphetamine. The police also seized firearms and ammunition. The appellant was charged with taking part in the manufacture of methylamphetamine and various firearms offences. He was committed to the District Court and he pleaded not guilty. Prior to the jury being empanelled, the appellant challenged the admissibility of the evidence of the raid and search and seizure of items at the premises. His counsel argued that the evidence was inadmissible as the holder of the search warrant had not participated, nor had he been in control during the raid and search of the premises. This was in contravention of s 67 of the Summary Offences Act 1953 and, therefore, amounted to an illegal entry on the premises and an illegal search and seizure. There was no challenge to the search and seizure of the items the subject of the charges based upon the conduct of the police at the time of the appellant’s subsequent arrest. That is, the appellant did not make a point of challenging the search on the grounds of the injuries he sustained during the course of it. On 29 November 2007, the trial Judge ruled that the entry and search of the premises by the police was illegal, on the grounds that the holder of the general search warrant under which the search was performed was not able to exert any real authority and control over the entry conducted by STAR group officers. The holder of the warrant had been about 500 metres from the premises where the police had set up the control centre to coordinate the raid. The Judge concluded that the search was, therefore, not conducted under the warrant holder’s authority. He concluded that the search warrant had not been lawfully executed. However, in the exercise of his discretion, the Judge admitted the evidence. He concluded that the unlawfulness surrounding the search resulted from a policy, the object of which was to ensure the safety of those involved in searching clandestine laboratories. He observed that, although the STAR group officers who entered the premises may have acted with excessive force in removing and detaining the appellant and his co-offender from the shed, the police acted in good faith. He concluded that the admission of the evidence obtained as a result of the search did not prejudice the appellant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant complains that the sentencing Judge failed to reduce the overall effect of the sentence, which his counsel submits was crushing. In sentencing the appellant, I have had regard to totality. I do not consider the sentences for the 2005 and 2007 offending to be crushing, and I would not further reduce the sentences from those I propose. Conclusion As the appeal unfolded, it became apparent that it should be allowed on the ground that the 2007 sentence is manifestly excessive, although the grounds particularised did not precisely identify that part of the sentence. In relation to those grounds upon which permission to appeal was refused by the single Judge, I would refuse permission to appeal. I would allow the appeal in relation to the 2007 offences. I would reduce the starting point for the 2007 offences to seven years’ imprisonment, and reduce the sentence to five years’ imprisonment, having regard to the pleas of guilty. I would direct that that sentence be cumulative upon the sentence of two and a half years’ imprisonment for the 2005 offending, making a total of seven years and six months’ imprisonment, to be served cumulatively upon the unexpired period of one year and ten days’ imprisonment that the appellant is required to serve, having breached his parole. The result is a total of eight years, six months and ten days’ imprisonment, commencing on 18 August 2008. I would fix a non-parole of five years’ imprisonment, commencing on 18 August 2008. WHITE J: I agree with the orders proposed by Sulan J and with his reasons.

Ratio Decidendi

Legal Principle Established

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