R v Famiglietti - [2005] SASC 489

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v FAMIGLIETTI
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Anderson)
22 December 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE - DISCRETION OF COURT
Crown application for leave to appeal against sentence – respondent sentenced to imprisonment for one year eight months suspended upon entry into good behaviour bond in respect of one count of possession of cannabis for sale – leave to appeal sought on grounds that sentence imposed was manifestly inadequate and sentencing judge erred in suspending the term of imprisonment.
Discussion of principles regarding discretion to suspend sentences pursuant to section 38 of the Criminal Law (Sentencing) Act 1988 (SA).
Held: Sentence imposed was within the range of appropriate sentences open to the sentencing judge and was not manifestly inadequate – judge did not err in exercise of discretion to suspend the sentence – application for leave refused.
Controlled Substances Act 1984 (SA) s 32(1)(e); Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
R v Manglesdorf (1995) 66 SASR 160; R v Harris (2001) 122 A Crim R 241; R v Stamos, Williams, Stanton and Kapovic [2004] SASC 132; R v Kane [2003] SASC 237; R v Hill [2005] SASC 380; R v Tran (2000) 211 LSJS 479; R v Proom (2003) 85 SASR 120; R v Di Maria (1996) 67 SASR 466; R v Nguyen [2005] SASC 329; R v Harris (2001) 122 A Crim R 241; Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; R v Errigo (2005) 92 SASR 562; R v Nemer (2003) 87 SASR 168; Dinsdale v Queen (2000) 202 CLR 321; Elliot v Harris (No 2) (1976) 13 SASR 516; R v Regan [2003] SASC 287; Vartzokas v Zanker (1989) 51 SASR 277; R v Jarrett (1992) 58 SASR 457; R v Gjoka (unreported, Court of Criminal Appeal, SA, No S6211 of 1997, 1 July 1997); R v Hill [2005] SASC 380; Bohdan Weiss v The Queen [2005] HCA 81; Ogden Industries Pty Ltd v Lucas [1970] AC 113; Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390; R v Morton (1987) 136 LSJS 182; Markarian v R (2005) 215 ALR 213; Griffiths v The Queen (1977) 137 CLR 293; Malvaso v The Queen (1989) 168 CLR 227; R v Osenkowski (1982) 30 SASR 212, considered.

R v FAMIGLIETTI
[2005] SASC 489
Court of Criminal Appeal: Gray, Vanstone and Anderson JJ
GRAY J
Introduction

This is a Crown application for leave to appeal against sentence.
On 6 June 2005, the respondent, Roberto Natalino Famiglietti, pleaded guilty on arraignment to one count of possessing…

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.

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Details

Case: [2005] SASC 489
Decision Date: 22 December 2005

CaseChat Overview and Summary

The Director of Public Prosecutions sought leave to appeal against the sentence imposed on the respondent for possessing cannabis for sale, a case heard in the Supreme Court. The respondent had been found in possession of approximately 7 kilograms of female cannabis plant material, packaged in 16 individual bags, with an estimated street value of $40,000. He was travelling on a Greyhound bus from Adelaide to Alice Springs and Darwin at the time of his arrest. The respondent pleaded guilty to the offence, which carries a maximum penalty of a $50,000 fine, 10 years imprisonment, or both. The District Court judge imposed a sentence of one year and eight months imprisonment, with a non-parole period of one year, which was suspended upon the respondent entering a two-year good behaviour bond with supervision. The Director argued that the sentence was manifestly inadequate and criticised the decision to suspend the term of imprisonment.

The legal issues in this case revolved around whether the sentence imposed by the District Court was manifestly inadequate and whether the sentencing judge erred in suspending the term of imprisonment. The Director argued that the sentence was too lenient, given the nature and circumstances of the offence. The court had to consider the principles of sentencing for cannabis offences and the specific personal circumstances of the respondent, such as his age, background, and health issues. The court also needed to determine whether the sentencing judge's decision to suspend the sentence was justified and whether there was any error in the exercise of discretion.

In considering the appeal, the court examined the sentencing judge's analysis of the offence and the respondent's personal circumstances. The court found that the sentencing judge had appropriately considered the relevant factors and authorities in determining the sentence. The court agreed that the head sentence was moderate but within the range available to the judge. The court also held that there was no specific error in the judge's decision to suspend the term of imprisonment, given the respondent's personal circumstances and the likelihood of rehabilitation. Therefore, the court refused the Director's application for leave to appeal.

In conclusion, the court held that the sentence imposed by the District Court was not manifestly inadequate and that there was no error in the sentencing judge's decision to suspend the term of imprisonment. The court refused the Director's application for leave to appeal against the sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

In the present circumstances, the sentencing judge adopted the view that there was good reason to suspend the term of imprisonment that he imposed. In the absence of any specific error having been established, it is inappropriate for this Court to interfere with the judge’s exercise of discretion. I would also refuse leave on this ground.Conclusion Leave to appeal should be refused. VANSTONE J: The Director of Public Prosecutions applies for leave to appeal against a sentence imposed in the District Court for possessing cannabis for sale. The respondent was found in possession of a little over 7 kg of female plant material, packaged in 16 individual bags of roughly equal weight. At the time of his arrest he was travelling with the cannabis on a Greyhound bus from Adelaide to Alice Springs and Darwin. The cannabis was estimated to be worth about $40,000. The respondent pleaded guilty upon his first arraignment. The maximum penalty for the offence is a fine not exceeding $50,000 or imprisonment for 10 years, or both. That maximum applies to several offences of a different character, including producing and selling cannabis. The sentence imposed was one of one year and eight months imprisonment, with a non-parole period of one year, suspended upon entry into a two year good behaviour bond, with supervision. The Director complains both that the sentence was manifestly inadequate and as to the suspension of it. The respondent is 41 years of age. His only prior convictions are for driving offences and are suggestive of alcohol abuse. It was put to the sentencing judge, and accepted by the prosecutor, that the respondent was acting as a courier, in transporting the cannabis. He was said to be a longstanding user of cannabis and had agreed to his supplier’s persistent suggestion to carry the cannabis on promise of payment of $1,000, plus an amount for his bus ticket. The suitcase containing it was said to have been delivered to him in a pre-packaged form. His apprehension occurred at a checking station, where a sniffer dog examined all luggage on the bus. About six months before the offence the respondent lost his employment. However, prior to that, his work record was consistent. References to that effect were presented. The offence occurred against a background of some health issues, including serious injuries sustained in a motor cycle accident in 2003 and an estrangement, not of his choosing, from his two teenage sons. A psychologist assessed him a couple of months prior to sentence as suffering from “severe generalised stress and post traumatic stress”. She noted he had given up cannabis, ceased contact with his former supplier and found casual work pending sentence. The psychologist through it was unlikely that he would re-offend. The learned sentencing judge heard quite extensive submissions as to the sentence, including from the prosecutor. He was referred to a number of relevant authorities dealing with sentences for cannabis offences, among them R v Harris (2001) 122 A Crim R 241, to which I shall return in a moment. In his remarks the judge systematically set out the important features of the offence and highlighted the relevant personal factors. His Honour referred to R v Morton (1987) 136 LSJS 182 in which the seriousness of acting as a courier is discussed. His approach or analysis was not in any way flawed. He took as his starting point a sentence of two years and one month, and reduced it by a fifth to reflect the plea of guilty. Although I agree with the applicant that the head sentence was a moderate one, I consider it to be within the range available to the judge. He described the decision as to whether there was good reason to suspend the sentence as “borderline”.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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