R v Faber

The Commonwealth Director of Public Prosecutions sought permission to appeal against the sentence imposed on the respondent, Mr Faber, in the District Court. Mr Faber had been found guilty of importing a marketable quantity of MDMA and had pleaded guilty to possessing ketamine. The District Court had imposed a head sentence of four years, two months, and 13 days, with a non-parole period of 16 months. The Director contended that both the head sentence and the non-parole period were manifestly inadequate.

The Full Court of the Supreme Court of South Australia was required to determine whether the sentence imposed was manifestly inadequate, specifically considering the head sentence for the importation offence and the non-parole period. The Court also had to consider the principles applicable to Crown appeals against sentence, including the residual discretion to refuse an appeal even if manifest inadequacy is found, particularly where allowing the appeal would produce an injustice.

The Court, per Bampton J, with Parker and Livesey JJ agreeing, found that the head sentence for the importation offence was not manifestly inadequate, noting it was at the lower end of the available range and comparable to sentences in similar cases. However, the Court determined that the non-parole period of 16 months, representing approximately 30 per cent of the total head sentence, was manifestly inadequate. Despite this finding of inadequacy, permission to appeal was refused. This decision was based on the principle that appellate courts possess a residual discretion to refuse a Crown appeal if allowing it would produce an injustice, considering factors such as the imminent or past release of the respondent and the effect of re-sentencing on rehabilitation. The Court concluded that in this instance, the guidance afforded to sentencing judges by allowing the appeal would come at too high a cost in terms of justice to the individual.