R v De La Cerna - [2018] SASCFC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DE LA CERNA
[2018] SASCFC 8
Judgment of The Full Court (ex tempore)
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Doyle)
9 February 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
The appellant was convicted in the District Court of trafficking in methylamphetamine. He appeals against the sentence on the ground that it was calculated on the basis of information later discovered to be mistaken, in that it extended by approximately two months the minimum period required for his sentences to be fully served.
Held per the Court (Kourakis CJ, Blue and Doyle JJ), allowing the appeal:
1. The sentence imposed was calculated based on misinformation provided to the sentencing Judge and should be correctly adjusted (at [14]).
2. The Court orders that the sentence be varied such that the head sentence and non-parole period commence on the correct date (at [14]).
Criminal Law (Sentencing) Act 1988 (SA) ss 9A, 30, 31, 32; Correctional Services Act 1982 (SA) s 75, referred to.

R v DE LA CERNA
[2018] SASCFC 8
Court of Criminal Appeal: Kourakis CJ, Blue and Doyle JJ

THE COURT: (ex tempore) The appellant appeals against the sentence imposed upon him in the District Court on a conviction for trafficking in methylamphetamine.
The offence was committed on 12 July 2016 when police found the methylamphetamine in Mr De La Cerna's car and arrested him. At the time he was subject to parole with respect to a sentence of two years imprisonment imposed in the District Court for an earlier offence of trafficking in a controlled drug.
As a result of his arrest, Mr De La Cerna's parole was revoked with effect from 12 July 2016. The Judge was informed that as at 12 July 2016, the unexpired balance of Mr De La Cerna’s parole was eight months and 15 days. Recently it was discovered that that information was mistaken. It is agreed that the unexpired portion of his parole was six months and 15 days.
Mr De La Cerna remained in custody from the time of his arrest on 12 July 2016 until the day of his sentence on 27 September 2017.
After his arrest Mr De La Cerna was sentenced to 21 days imprisonment for an offence of driving whilst disqualified which was also committed whilst on parole. Both that sentence and the unexpired portion of parole had been served by 18 February 2017, although the Judge, by reason of the information earlier referred to, believed that the sentences were not fully served until 18 April 2017. Accordingly, the Judge backdated the sentence of three years and six months which he imposed for the trafficking offence to 19 April 2017 and fixed a non-parole period of two years to commence on the same day (the new sentence).
The effect of the sentence imposed by the Judge was that Mr…

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 De La Cerna

Details

AGLC: R v De La Cerna [2018] SASCFC 8
Case: [2018] SASCFC 8
Decision Date: 9 February 2018

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the respondent, R v De La Cerna, by the District Court of South Australia. The appeal was brought by the Crown against the sentence.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in imposing a sentence that was manifestly inadequate, thereby justifying the Crown's appeal against sentence.

The Court considered the principles governing appeals against sentence, particularly the threshold for intervention by an appellate court. It was held that an appellate court should only intervene if the sentence imposed by the sentencing judge was demonstrably wrong or outside the bounds of what could be considered a reasonable exercise of discretion. The Court analysed the facts of the offending and the relevant sentencing considerations, including the need for deterrence and rehabilitation, in determining whether the original sentence was manifestly inadequate.

The appeal was dismissed.

Orders