R v Fati

Case [2021] SASCA 99

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v FATI  

[2021] SASCA 99

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice S David)

23 September 2021

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - LIABILITY TO DEPORTATION

The Crown appeals against sentence on the basis that the sentencing Judge erred in finding that there was “good reason” to suspend the respondent’s sentence pursuant to s 96(1) of the Sentencing Act 2017 (SA) (the Act) because he was “certain to be deported”.

The respondent, an Italian citizen from Albania, pleaded guilty to two counts of cultivating a commercial quantity of cannabis and one count of cultivating a large commercial quantity of cannabis. The respondent was sentenced to a term of five years, two months and 16 days imprisonment, which was suspended on account of the respondent’s imminent deportation.  Less than two weeks later, the respondent was repatriated to Italy.

The respondent was given notice of the appeal but did not appear or brief counsel to appear on his behalf. Accordingly, a contradictor was appointed to represent the respondent’s interests. The Director maintained that permission to appeal should be granted and the appeal should proceed in the respondent’s absence so as to clarify proper sentencing principles for the guidance of sentencing courts.

Held (per the Court), granting permission to appeal, allowing the appeal and remitting the matter for resentence:

1.Section 167(3) of the Criminal Procedure Act 1921 (SA) confers a free-standing grant of power to proceed in the absence of a respondent where there is good reason to do so. The power is not confined to cases where the respondent is in custody. There is in any event an incidental power to proceed in the absence of the respondent in appropriate circumstances.

2.Where a sentence of imprisonment is appropriate, it cannot be avoided by the simple expedient of consenting to deportation. The imposition of a suspended sentence with no condition as to supervision effectively imposed no sentence at all. To exercise the sentencing discretion in this way is so disproportionate to the seriousness of the offending that it undermines public confidence in the administration of justice.

3.Whilst the safety of the community is of paramount importance in sentencing an offender, the sentencing court cannot ignore the secondary purposes of sentencing. The community is protected by a proportionate sentence that reflects the various statutory and common law considerations relevant to the exercise of the sentencing discretion.

4.Appropriate sentencing standards, guided by the Act and common law principles such as equality and consistency in sentencing, must be maintained regardless…

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R v Fati [2021] SASCA 99
Case
[2021] SASCA 99
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against a sentence imposed by a sentencing judge on the respondent, who had pleaded guilty to cultivating commercial and large commercial quantities of cannabis on three separate occasions between 2013 and 2015. The respondent was in immigration detention and had applied for voluntary removal, which would likely result in deportation.

The legal issues before the court concerned the appropriateness of the sentencing judge's decision to impose a suspended sentence with no conditions as to supervision, effectively avoiding a custodial sentence by reason of the respondent's impending deportation. The court was also required to consider whether the sentencing judge had acted on a wrong principle by failing to impose a sentence that reflected the seriousness of the offending and undermined public confidence in the administration of justice.

The court reasoned that a sentence of imprisonment cannot be avoided by the mere expedient of consenting to deportation. It held that imposing a suspended sentence without any conditions of supervision amounted to no sentence at all and was disproportionate to the seriousness of the offences, thereby undermining public confidence. The court emphasised that while the safety of the community is paramount, sentencing courts must also consider secondary purposes of sentencing, such as deterrence and rehabilitation, through proportionate sentences that reflect all relevant statutory and common law considerations. Furthermore, the court stated that sentencing standards, guided by principles of equality and consistency, must be maintained regardless of whether an offender is an Australian citizen or an unlawful non-citizen.

The court granted permission to appeal, allowed the appeal, quashed the sentence imposed, and remitted the matter for resentencing.

Orders

Orders of the court

Held (per the Court), granting permission to appeal, allowing the appeal and remitting the matter for resentence:

1. Section 167(3) of the Criminal Procedure Act 1921 (SA) confers a free-standing grant of power to proceed in the absence of a respondent where there is good reason to do so. The power is not confined to cases where the respondent is in custody. There is in any event an incidental power to proceed in the absence of the respondent in appropriate circumstances.

2. Where a sentence of imprisonment is appropriate, it cannot be avoided by the simple expedient of consenting to deportation. The imposition of a suspended sentence with no condition as to supervision effectively imposed no sentence at all. To exercise the sentencing discretion in this way is so disproportionate to the seriousness of the offending that it undermines public confidence in the administration of justice.

3. Whilst the safety of the community is of paramount importance in sentencing an offender, the sentencing court cannot ignore the secondary purposes of sentencing. The community is protected by a proportionate sentence that reflects the various statutory and common law considerations relevant to the exercise of the sentencing discretion.

4. Appropriate sentencing standards, guided by the Act and common law principles such as equality and consistency in sentencing, must be maintained regardless whether the offender is an Australian citizen or an unlawful non-citizen.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is one further potential issue in this matter: whether it was appropriate for the sentencing Judge to refrain from sentencing the respondent as a “serious repeat offender”, notwithstanding there were three serious offences within the meaning of Division 4 of Part 3 of the Act, because they were not “committed on separate occasions” as required by s 53(1)(a) of the Act. Before the sentencing Judge, the prosecution submitted that the respondent was a “serious repeat offender”, and senior counsel appeared to concede that issue, before the sentencing Judge intervened to question whether the respondent was, in fact, a “serious repeat offender”. The sentencing Judge took the view that the cultivation of two crops in different locations at the same time was appropriately considered a single occasion. It raises the significance of the differences between the actus reus of each offence and the overall criminal enterprise of which each offence formed a part when determining whether offending occurred on the same occasion. As that issue was not pressed on appeal, it is not necessary for this Court to address it. Absent a concession by the prosecution, whether each offence concerning the cultivation of separate cannabis crops was committed on separate occasions is a matter to be considered on resentence.[49] [49] KRM v The Queen (2001) 206 CLR 221, [16]-[18] (McHugh J); Tognolini v The Queen (2011) 32 VR 104, [17]-[23] (Maxwell P, Buchanan and Redlich JJA); R v Culley (2019) 134 SASR 92; R v Harradine (2019) 134 SASR 68; Moran v The Queen (2020) 136 SASR 504.Conclusion The Director should be given permission to appeal and the appeal allowed. The sentence imposed by the sentencing Judge should be quashed and the matter remitted for resentence.

Ratio Decidendi

Legal Principle Established

For the reasons that follow, permission to appeal should be granted and the appeal allowed.The charged offending, immigration detention and sentence On 13 April 2021, the respondent pleaded guilty to the following offences concerning the cultivation of three separate crops of cannabis between 2013 and 2015:1.Count 1 concerned the cultivation of a commercial quantity of cannabis at Croydon Park, contrary to s 33B(2) of the Controlled Substances Act 1984 (SA), for which the maximum penalty is a fine of $200,000 or imprisonment for 25 years, or both.2.Count 2 concerned the cultivation of a large commercial quantity of cannabis at Croydon, contrary to s 33B(1) of the Controlled Substances Act 1984 (SA), for which the maximum penalty is a fine of $1 million or imprisonment for life, or both.3.Count 3 concerned the cultivation of a commercial quantity of cannabis at Camden Park, contrary to s 33B(2) of the Controlled Substances Act 1984 (SA), for which the maximum penalty is a fine of $200,000 or imprisonment for 25 years, or both. The prosecution entered a nolle prosequi on a fourth count. The respondent was initially committed for trial in the District Court on 30 June 2017 and then arraigned on 18 August 2017 on the first three counts. The respondent was arraigned on the fourth count on 9 May 2019, after which the four counts were made the subject of a new Information on 29 May 2020, listed for trial in the District Court on 3 May 2021. The respondent was granted bail after arrests for the first three counts, but spent six days in custody after being arrested for the fourth count on 2 January 2018, after which he was again granted bail. On 19 March 2021, the respondent was taken into immigration detention by the Australian Border Force. Negotiations over a resolution of the counts soon finalised. On 23 March 2021, the respondent applied for voluntary removal under s 198 of the Migration Act 1958 (Cth), which was likely to result in deportation as soon as was practicable. On learning that there was no criminal justice stay visa, the prosecution applied for revocation of bail. That was heard on 13 April 2021, together with an application by the respondent for expedited arraignment and sentence. On 13 April 2021, the sentencing Judge was told that the application for a criminal justice stay visa had been sought by SAPOL, but not yet finalised. The prosecution submitted that, were bail revoked, the respondent would likely be granted a bridging visa on criminal detention grounds: in practice, the respondent would be transferred from immigration detention to a State Corrections facility. The sentencing Judge suggested that the Australian Border Force be contacted. After a short adjournment, the Court was told by respondent’s counsel that the respondent would withdraw his request for deportation, and to “avoid issues about … no criminal justice stay … in place … he will remain in immigration detention pending the resolution of this matter”. The prosecutor, however, emphasised that this would not avoid involuntary deportation and whilst the criminal justice stay visa was awaited, bailed should be revoked to facilitate the respondent’s transfer to a State institution.