R v Drever

Case [2010] SASCFC 27

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DREVER

[2010] SASCFC 27

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)

27 August 2010

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES

Appeal against sentence - defendant and appellant pleaded guilty to three counts of refusing to answer a question at an Australian Crime Commission examination contrary to section 30(2) of the Australian Crime Commission Act 2002 (Cth) - defendant sentenced to period of 12 months imprisonment to be released after serving six months upon entry into recognisance in the sum of $1,000 to be of good behaviour for two years - sentence ordered to commence on expiry of existing State non-parole period of two years and eight months - whether the six month term defendant ordered to serve manifestly excessive - whether defendant's claimed fear with respect to leaks of information provided an explanation for defendant's offending which warranted a shorter period in custody.

Held: appeal dismissed - analysis of Judge's sentencing remarks indicates that Judge gave due consideration to relevant matters when sentencing - direction that defendant be released after serving six months in custody not an inappropriate exercise of the Judge's sentencing discretion.

Australian Crime Commission Act 2002 (Cth) s 7A, s 25A and s 30(2); Controlled Substances Act 1984 (SA) s 33; National Crime Authority Act 1984 (Cth); Crimes Act 1914 (Cth) s 19, referred to.
R v Rivkin [2004] NSWCCA 7; R v Abell [2007] QCA 448; Markarian v The Queen (2005) 228 CLR 357; R v Sissis (1981) 4 A Crim R; R v Nemer (2003) 87 SASR 168; R v Richardson [2010] SASC 88; R v Cooper [2009] NSWCCA 57; R v Chandra [2003] SASC 319; R v Romano (1981) 28 SASR 100; R v O'Donnell (1974) 7 SASR 114, considered.

R v DREVER
[2010] SASCFC 27

Court of Criminal Appeal:       Duggan, Gray and Kelly JJ

  1. DUGGAN J:         In my view the appeal should be dismissed.  I agree with the reasons prepared by Gray J.

    GRAY J:

  2. This is an appeal against sentence.

  3. The defendant and appellant, Luke Cameron Drever, pleaded guilty to three counts of refusing to answer a question at an Australian Crime Commission examination contrary to section 30(2) of the Australian Crime Commission Act 2002 (Cth).[1]  The maximum penalty is five years imprisonment or a fine of $22,000.00.  The defendant was sentenced to 12 months imprisonment, to be released after serving six months upon entry into a recognisance in the sum of $1,000.00 to be of good behaviour for two years.  A reduction of 20 per cent was made on account of the defendant’s pleas when fixing this sentence. 

    [1] Section 30(2) of the Australian Crime…

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AGLC
R v Drever [2010] SASCFC 27
Case
[2010] SASCFC 27
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, Mr Drever, who had pleaded guilty to three counts of refusing to answer questions at an Australian Crime Commission examination, contrary to section 30(2) of the *Australian Crime Commission Act 2002* (Cth). The primary judge had sentenced Mr Drever to 12 months imprisonment, with a direction that he be released after serving six months upon entering into a recognisance to be of good behaviour for two years. This sentence was ordered to commence upon the expiry of an existing state non-parole period of two years and eight months. The appeal was heard by Duggan, Gray, and Kelly JJ of the Supreme Court of South Australia.

The central legal issue before the Full Court was whether the six-month period Mr Drever was ordered to serve in custody was manifestly excessive, and whether his claimed fear of information leaks provided a sufficient explanation for his offending that warranted a shorter period of imprisonment. Mr Drever contended that the six-month term was disproportionate to the gravity of his offences and the circumstances surrounding them.

The Full Court dismissed the appeal. The judges analysed the sentencing remarks of the primary judge and concluded that due consideration had been given to all relevant matters, including Mr Drever's antecedents and the specific circumstances of his offending. The court found that the direction for release after six months was not an inappropriate exercise of the sentencing judge's discretion, and that any perceived difference in the length of custody compared to other offenders for similar offences did not render the sentence inappropriate or manifestly excessive.

Orders

Orders of the court

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Background

Background to the litigation

The defendant complains on appeal that the term of imprisonment that he was ordered to serve – that is, the six month term in relation to the 12 month total term of imprisonment imposed – was manifestly excessive. It was contended that the defendant should spend a shorter period in custody. Background Over a two year period up to 17 December 2007, the defendant was involved in the manufacture of methylamphetamine as part of an ongoing business of making and selling the drug. On 17 December 2007, the defendant was in the process of manufacturing methylamphetamine when an explosion occurred. That incident resulted in a charge of knowingly or recklessly manufacturing a commercial quantity of methylamphetamine, contrary to section 33 of the Controlled Substances Act 1984 (SA)[3] to which the defendant pleaded guilty.[3] Section 33 of the Controlled Substances Act 1984 (SA) provides:(1)A person who manufactures a large commercial quantity of 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: $500 000 or imprisonment for life, or both.(2)A person who manufactures a commercial quantity of 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: $200 000 or imprisonment for 25 years, or both.(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.(4)If—(a)in any proceedings for an offence against subsection (1), (2) or (3) it is proved that the defendant manufactured a trafficable quantity of a controlled drug; or(b)in any proceedings for an offence of attempting or conspiring to commit an offence against subsection (1), (2) or (3) it is proved that the defendant attempted or conspired (as the case may require) to manufacture a trafficable quantity of a controlled drug,it is presumed, in the absence of proof to the contrary, that the defendant had the relevant intention or belief concerning the sale of the drug necessary to constitute the offence. On 20 November 2009, the defendant was sentenced for the State offence committed on 17 December 2007, to five years imprisonment with a non-parole period of two years and eight months, to commence on the day of sentence. On 20 December 2007, the defendant was served with a summons to appear before the Australian Crime Commission “to give evidence of federally relevant criminal activity involving the manufacture, sale and supply of amphetamines and other synthetic drugs, and the possession of substances and apparatus for that manufacture”. On 21 December 2007, the defendant appeared at the Australian Crime Commission for examination. On his application, the examination was adjourned to 20 February 2008. On 20 February 2008, the defendant appeared before the Australian Crime Commission represented by counsel. The defendant answered many questions, but refused to answer the following three questions: where he obtained the stainless steel welded pipes that he used in the manufacturing process; who was buying pseudoephedrine for him; and, to whom he was selling speed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having regard to all of the circumstances, including the antecedents of the defendant, I do not consider that the directing of a release after six months was an inappropriate exercise of the Judge’s discretion. For the reasons discussed earlier, the fact that this defendant may spend a few months longer in custody than others who have offended against these provisions does not lead to the conclusion that this sentence was inappropriate or manifestly excessive. Conclusion I would dismiss the appeal. KELLY J: I agree that this appeal should be dismissed. I agree with the reasons of Gray J.

Ratio Decidendi

Legal Principle Established

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