R v Devries

Case [2018] SASCFC 101


SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DEVRIES

[2018] SASCFC 101

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Hinton and The Honourable Justice Hughes)

28 September 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS

The appellant pleaded guilty to trafficking in a large commercial quantity of cannabis, cultivating cannabis, possessing prescribed equipment and interfering with a supply of electricity.

The appellant was sentenced to three years and six months imprisonment with a non-parole period of two years and four months. The sentencing Judge declined to order that the sentence be suspended or served on home detention.

Permission to appeal against the sentence was granted on the ground that the non-parole period was manifestly excessive as a result of the head sentence being manifestly excessive or as a percentage of the head sentence.

Held, per Hughes J (Kourakis CJ agreeing) allowing the appeal against sentence:

1.       The non-parole period as a proportion of the head sentence is manifestly excessive.

2.       The sentencing Judge erred by fixing a non-parole period that did not reflect the matters relevant to the sentencing exercise.

3.       Appeal allowed. Appellant resentenced.

Held, per Hinton J dissenting, the non-parole period does not fall outside the permissible range such that it can be said to be plainly wrong.

Controlled Substances Act 1984 (SA) ss 32, 33B, 33LA; Criminal Law Consolidation Act 1935 (SA) 353; Criminal Law (Sentencing) Act 1988 (SA) s 10C; Criminal Procedure Act 1921 (SA) s 158; Electricity Act 1996 (SA) s 84; Sentencing Act 2017 (SA) s 40, referred to.
R v Jongewaard [2009] SASC 346; R v Palmer [2016] SASCFC 34, applied.
Markarian v The Queen (2005) 228 CLR 357; R v Creed (1985) 37 SASR 566; R v Gridley [2013] SASCFC 29; Bugmy v The Queen (1990) 169 CLR 525; R v Williams [2018] SASCFC 14; Power v The Queen (1973) 131 CLR 623; Hili v The Queen (2010) 242 CLR 520; R v Wakefield [2018] SASCFC 85; R v Wheeler [2015] SASCFC 83; R v Kreutzer (2013) 118 SASR 211; The Queen v Shrestha (1991) 173 CLR 48; R v R, AW (2012) 113 SASR 179; Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525; The Queen v Tait (1979) 46 FLR 386; Kumova v R (2012) 37 VR 538; R v Sarandoglou (2010) 107 SASR 396, considered.

R v DEVRIES
[2018] SASCFC 101

Court of Criminal Appeal:    Kourakis CJ, Hinton and Hughes JJ

  1. KOURAKIS CJ:I agree that the appeal should be allowed and the non-parole period reduced to one year and 10 months for the reasons given by Hughes J.

  2. HINTON J:    I…

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R v Devries [2018] SASCFC 101
Case
[2018] SASCFC 101
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CaseChat Overview and Summary

In R v Devries, the Full Court of the Supreme Court of South Australia considered an appeal against sentence for drug offences. The Crown argued that despite the sentencing judge's description of the non-parole period as "modest," the period itself was within the proper exercise of discretion, and a lower period would risk undermining deterrence.

The central legal issue before the Full Court was whether an error had occurred in the sentencing process, specifically concerning the determination of the non-parole period, which would warrant appellate intervention. The Court was required to assess whether the sentencing judge had proceeded on an incorrect basis or if an error in the sentencing process had led to a miscarriage.

The Court found it difficult to pinpoint the precise error but concluded that the non-parole period fixed was plainly unreasonable or unjust. It noted that the sentencing judge did not adequately explain the basis for setting the non-parole period and that considerations relevant to the head sentence may have unduly influenced it. The fact that the sentencing judge did not differentiate between co-accused and foreshadowed a "modest" non-parole period for one of them led the Court to the "irresistible conclusion" that the non-parole period did not bear the intended relationship to the head sentence. Crucially, the Court determined that the fixed non-parole period did not reflect the matters relevant to the sentencing exercise, constituting an error of principle or a manifest injustice.

Orders

Orders of the court

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Background

Background to the litigation

It was the Crown’s position that, notwithstanding the use of the descriptor “modest”, and that word’s failure to accurately describe the non-parole period expressed as a proportion of the head sentence, the non-parole period arrived at was nevertheless within the proper exercise of the sentencing Judge’s discretion. Indeed, the Crown ventured that a lower non-parole period would “start to become extremely low” and risk failing to properly take account of personal and general deterrence.[37][37] Transcript page 13 lines 11-12.Application of law to facts – an error warranting intervention occurred The sentencing Judge did not explain the basis upon which the non-parole period was set. As Vanstone J stated in R v Gridley:[38]Perhaps most appeals against sentence involve an argument that the judge must have proceeded on an incorrect basis because, acting on the correct basis, he or she could not have reached the sentence imposed. However, in other cases the appellant will identify an error which has occurred in the sentencing process and will argue that, because of that error, the process miscarried and the sentence should be reviewed.[38] [2013] SASCFC 29 per Vanstone J at [26]. Where the Court has a doubt that the exercise of the sentencing discretion has achieved an appropriate outcome, it must be satisfied that there has been an error of principle or results in some manifest injustice.[39] In this case, it is difficult to determine where the error occurred. It may have been an error of principle. It may be that the considerations bearing on the fixing of the head sentence were unduly influential upon the non-parole period.[40] There may have been a mistake in the nature of a calculation of the proportion of the non-parole period to the head sentence prior to the discount. The fact that the sentencing Judge determined not to differentiate between the co-accused, and that he foreshadowed a “modest” non-parole period for Mr Stone, leads to the irresistible conclusion that the non-parole period does not bear the relationship to the head sentence that was intended by the sentencing Judge. However, it is necessary to consider further whether the non-parole period, as fixed, represents a manifest injustice.[39] Bugmy v The Queen (1990) 169 CLR 525 at 533 per Mason CJ and McHugh J; R v Williams [2018] SASCFC 14 at [67] per Hinton J, Blue and Stanley JJ agreeing.[40] Bugmy v The Queen (1990) 169 CLR 525 per Dawson, Toohey and Gaudron JJ at 537. This is not a matter of the appellate Court reaching a conclusion that the non-parole period should be different from that which the sentencing Judge fixed. Rather, when the matters relevant to fixing the non-parole period are placed within the lacuna in the sentencing remarks, the non-parole period fixed is plainly unreasonable, or unjust. It appears not to be what was intended, but determinatively, the non-parole period that was fixed does not reflect the matters relevant to the sentencing exercise.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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