R v De-La Cerna - [2015] SASCFC 115

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DE-LA CERNA
[2015] SASCFC 115
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Bampton)
17 August 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
The appellant pleaded guilty to trafficking in cannabis, trafficking in methylamphetamine, possessing a prescription drug, stating false personal details, driving a vehicle when not authorised and breaching bail – appellant was sentenced to two years’ imprisonment with a non-parole period of 11 months and was fined $250 for driving when not authorised – appellant contends that there was good reason to suspend the sentence, that the Judge failed to properly undertake the balancing act required in the exercise of his discretion and that the Judge failed to indicate the manner in which the discretion was said to have been considered and exercised.
Held:
1. The Judge had sufficient regard to all relevant matters and has not erred in not suspending the sentence.
2. It was within the Judge’s discretion to order an immediate term of imprisonment.
3. Appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(4); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
House v The King (1936) 55 CLR 499; Police v Chilton (2014) 120 SASR 32, considered.

R v DE-LA CERNA
[2015] SASCFC 115
Court of Criminal Appeal: Stanley, Nicholson and Bampton JJ

STANLEY J. I would dismiss the appeal. I agree with the reasons of Bampton J.
NICHOLSON J.
I agree with Bampton J that the appeal should be dismissed and generally for the reasons she has provided. The Judge sentenced within a few hours of hearing the submissions which addressed all of the matters complained of on appeal. The Judge’s remarks are abbreviated. However, all the considerations raised by the appellant and said to be in favour of suspension were either expressly referred to by the Judge in his remarks or were readily apparent from the materials placed before his Honour on the morning of the day of sentence.
I am satisfied that his Honour made no error in arriving at his decision not to suspend, nor can it be said that the failure to suspend was, in the circumstances, unreasonable or plainly unjust.[1] As such, it is not necessary for me to enter the debate about whether a demonstrable failure to give appropriate weight or a demonstrable giving of inappropriate weight to a material consideration can ever amount to error in this context.
[1] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
BAMPTON J. This is an appeal against sentence.
Jovito De-La Cerna (the appellant) was committed to the District Court for sentence on one count of trafficking in cannabis and one count of trafficking in methylamphetamine.…

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 [2015] SASCFC 115
Case: [2015] SASCFC 115
Decision Date: 17 August 2015

CaseChat Overview and Summary

The appellant, R v De-La Cerna, appealed against a sentence imposed by a judge in the District Court of South Australia. The appellant had pleaded guilty to several offences, including trafficking in cannabis, trafficking in methylamphetamine, possessing a prescription drug, stating false personal details, driving a vehicle when not authorised, and breaching bail. He was sentenced to two years' imprisonment with a non-parole period of 11 months, and also fined for the driving offence. The appeal concerned the judge's refusal to suspend the sentence of imprisonment.

The central legal issues before the Court of Appeal were whether there was a "good reason" to suspend the appellant's sentence, whether the sentencing judge had properly undertaken the required balancing exercise in exercising their discretion, and whether the judge had adequately indicated how that discretion was considered and exercised. The appellant sought a resentencing to a suspended term of imprisonment, taking into account time already served.

The Court of Appeal, comprising Stanley, Nicholson, and Bampton JJ, found that the sentencing judge had given sufficient regard to all relevant matters and had not erred in refusing to suspend the sentence. The judge had considered the appellant's personal circumstances, his criminal history, time spent in custody, his efforts to remain drug-free, his willingness to seek professional assistance for drug use, available employment, and family support. The judge also noted the appellant's prior drug-related convictions, which had been dealt with by way of a fine and a good behaviour bond. The court agreed with the sentencing judge's assessment that the trafficking offences constituted low-level street dealing.

Consequently, the Court of Appeal concluded that it was within the sentencing judge's discretion to determine that there was no good reason to suspend the sentence and to order an immediate term of imprisonment. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant asks that the Court resentence him to a suspended term of imprisonment taking into account the time already served.Background The circumstances giving rise to each of the offences are as follows:July 2012 offendingPossess prescription drug On 19 July 2012, police stopped a vehicle being driven by the appellant in Warradale. During a search of the appellant, police located a black pencil case in his rear trouser pocket containing 10 Xanax tablets in a container. This container also contained two glass pipes, one wooden pipe and 1.8 grams of powder. The appellant admitted to possession of the Xanax tablets and that he did not have a prescription for them. He stated that a friend had given them to him to help him sleep. Fail to comply with bail agreement On 29 August 2014 at 3:06am, police attended the appellant’s bail address at Cowandilla to conduct a bail compliance check. The appellant was on police bail for matters unrelated to this appeal. Police spoke to the appellant’s father, who confirmed that the appellant was not residing at that address and was in fact residing at an address in Strathalbyn. The appellant was charged with breaching his bail agreement by not being home during the curfew period and by not residing at the address stipulated in the bail agreement. August 2014 offending At about 7:35pm on 29 August 2014, police again stopped a vehicle being driven by the appellant. The appellant complied with a direction to submit to an alcotest which returned a negative result. Driving vehicle when not authorisedState false personal details When police asked the appellant to produce his licence for inspection he stated that it was in his wallet which he had left at home. When police asked him to provide his full name, date of birth and address he gave his brother’s name and details. Police checks revealed that the appellant had provided false details, using his brother’s name, date of birth and address, and that his C class driver’s licence had expired on 21 May 2012. The police checks also revealed that the appellant was a wanted person in relation to a breach of bail matter. Police again asked the appellant to confirm his personal details whereupon he gave the same false details. Police told the appellant that he was wanted in relation to a breach of bail and that he would be arrested. One of the apprehending police officers, who had noted a cannabis smell emanating from the vehicle, asked the appellant whether he had any drugs in the vehicle. The appellant said he did not. The police officer then searched the vehicle. Trafficking in cannabis During the search a black backpack emitting a strong cannabis smell was found. A glass pipe, a white plastic shopping bag containing cannabis material and a ‘Top Gear’ metal tin were located inside the main compartment of the backpack. Inside the Top Gear tin was a plastic resealable bag containing cannabis. In total 189 grams of cannabis was seized. Traffic in methylamphetamine

Evidence

Evidence Before The Court

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Decision

Reasons for decision

STANLEY J (dissent) BAMPTON J

In my opinion, the Judge had sufficient regard to all relevant matters and has not erred in not suspending the sentence. He noted the appellant’s personal circumstances, his history of criminal offending, that he had spent time in custody, that he had been drug free for some months, that he was willing to seek professional assistance to address his drug use, that employment was available to him, that he had a supportive family and that he needed therapy as identified by Mr Ireland. The appellant had previous drug related convictions dealt with by way of a fine in 2006 and a good behaviour bond in 2008. The s 18A sentence imposed is indicative of the fact that the Judge sentenced, as he said he would, on the basis that the trafficking was low level street dealing.Conclusion It was within the discretion available to the Judge in the circumstances of this case to find that there was no good reason to suspend and to order an immediate term of imprisonment. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

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