R v Farquhar

Case [2023] SASCA 98

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v FARQUHAR

[2023] SASCA 98

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Justice Nicholson)

21 September 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

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

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING

This is a Crown appeal against sentence.

The respondent pleaded guilty to four counts of trafficking in a large commercial quantity of a controlled drug, and three counts of trafficking in a commercial quantity of a controlled drug. On 3 August 2022, pursuant to section 26 of the Sentencing Act 2017 (SA), the sentencing Judge imposed a single penalty for all seven offences of imprisonment for four years, six months and 19 days. A non-parole period of three years, seven months and 22 days was fixed.

The respondent was a participant in a substantial drug trafficking syndicate which was infiltrated and ultimately undone by the Australian Federal Police in Operation Ironside. The respondent acted in the role of courier with respect to each of the seven charged offences involving the trafficking of heroin and methamphetamine obtained for sale throughout 2020 and 2021.

The Director of Public Prosecutions (SA) sought permission to appeal on the ground of manifest inadequacy.

Held (per Lovell and David JJA) granting permission to appeal and allowing the appeal:

1.The sentence imposed was manifestly inadequate. To allow the sentence to stand would undermine public confidence in the administration of justice notwithstanding the hardship to the respondent in being re-sentenced to a significantly lengthier sentence.

2.Pursuant to s 26 of the Sentencing Act 2017 (SA), the respondent is re-sentenced to a term of imprisonment for 13 years and 6 months reduced by 35 per cent on account of his guilty pleas to eight years, nine months and ten days. A non-parole period of seven years and eight days is fixed, that being four-fifths of the head sentence. The sentence is to commence on 7 June 2021.

Held (per Nicholson AJA) refusing leave to appeal:

1.The sentence imposed by the sentencing Judge was manifestly inadequate.

2.However, the public policy considerations in favour of avoiding the respondent from being seriously twice vexed are such that permission to appeal should be refused.

Controlled Substances Act 1984 (SA) ss 32(1), 32(2); Criminal Law (Sentencing) Act 1988 (SA) s 18A(1); Criminal Law Consolidation Act 1935 (SA) ss 340, 353(4)(a)(i); Criminal Procedure Act 1921 (SA) ss 150, 158(7); Sentencing Act 2017 (SA) ss 26, 26(2a), 40(3)(a)(ii), 53, 54; Statutes Amendment (Child Sexual Abuse) Act 2021, No 57,…

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R v Farquhar [2023] SASCA 98
Case
[2023] SASCA 98
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CaseChat Overview and Summary

This matter concerned an appeal by the Crown against the sentence imposed on the respondent, Farquhar, for drug trafficking offences. The appeal was heard by Lovell, David and Nicholson JJ.

The central legal issue before the appellate court was whether the Crown had satisfied the stringent criteria required to justify an appeal against sentence, particularly in circumstances where the sentence at first instance was considered manifestly inadequate. The court was required to determine if the prosecution had demonstrated that public policy considerations, which might override double jeopardy principles, had been made out.

The court reasoned that for a Crown appeal against sentence to succeed, it was not sufficient merely to establish that the original sentence was plainly wrong or inadequate. The prosecution bore the onus of persuading the appellate court that a specific public policy consideration, justifying the setting aside of double jeopardy concerns, had been met. In this instance, the court found that the prosecution had failed to discharge this burden. Consequently, leave to appeal was refused. The court also commented on the potential for subsection 26(2a) of the Sentencing Act 2017 (SA) to be a "backward step" in sentencing practice.

Orders

Orders of the court

66. Orders

66.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J
In applying the less emotive language and bearing in mind the nature of the “public” as a fully informed body politic with no personal connection to the matter at hand, this requirement presents a high barrier for the prosecution to overcome in this case. Notwithstanding that the sentence in this case was plainly wrong, I am not satisfied that this criterion has been satisfied with respect to this offender. Conclusion with respect to the question of leave I would refuse leave to appeal. It is not sufficient for the prosecution simply to point to the manifest inadequacy of the sentence at first instance. The prosecution is obliged to persuade the Court on appeal that one of the public policy considerations where double jeopardy considerations might be set aside has been made out. It has not done so in this case. Given that I would refuse leave to appeal, my resentence indication given earlier is only that, and it is not necessary that I undertake the artificial exercise called for by subsection 26(2a).An addendum – the overreach that is subsection 26(2a) Section 26 of the Sentencing Act 2017 (SA) is in these terms.26—Sentencing for multiple offences(1)If a person is to be sentenced by a court for a number of offences, the court may sentence the person to the 1 penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.(2)However, if any of the offences for which the person is being sentenced is a prescribed designated offence, subsection (1) does not apply to the sentencing of the person for that offence (but nothing in this subsection affects the operation of subsection (1) in respect of the other offences).(2a)If any of the offences in respect of which a single sentence is being imposed under this section—(a) involve different victims; or(b) were committed on different occasions,the court must indicate the sentence that would have been imposed in respect of each such offence had this provision not been applied.(3)In this section—prescribed designated offence has the same meaning as in section 96. Subsection 26(1) replicates in slightly different, but for present purposes immaterial, terms subsection 18A(1) of the former Criminal Law (Sentencing) Act 1988 (SA).[58] A version of subsection 18A(1), again in materially the same terms as subsection 26(1), had been included in the 1988 Act from 1992. The qualification that is subsection 26(2a) was introduced, for the first time, into the Sentencing Act 2017 (SA) from 1 June 2022.[59] Whilst it is early days, I am concerned that it will prove to be a backward step.[58] Subsection 18A(1) (as from 2014) was in these terms: If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.[59] Statutes Amendment (Child Sexual Abuse) Act 2021, No 57.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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