(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)
20 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - OTHER TYPES OF ORDER
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
Application for permission to appeal by the Director of Public Prosecutions.
On 2 April 2013, the police searched the respondent’s truck and found a large amount of cocaine and drug related paraphernalia (including a tick list of sales and a substantial amount of cash). The circumstances of this offending resulted in a charge of one count of trafficking cocaine. The amount of cocaine the subject of that charge was 169 grams, which on the basis of the evidence led was worth between $67,600 and $118,300 yet could have been cut further which would have doubled the value.
The respondent pleaded not guilty when he was first arraigned in the District Court. Only later, after an unsuccessful application to have the evidence of the search of the truck excluded, did he plead guilty.
The respondent was sentenced as a recreational user of cocaine who was not physiologically addicted to cocaine. The sentencing Judge strongly doubted the respondent’s submission that he sold the drugs on behalf of another and only received a small profit. The respondent was sentenced on the basis that he trafficked a relatively large quantity of high value cocaine which was still within the lower trafficable range, and in the context of a history of substantial trading.
The respondent was sentenced to four years and nine months imprisonment, reduced by five per cent from a starting point of five years accounting for the appellant’s guilty plea. The sentencing Judge did not suspend the sentence. However, the Judge ordered that the sentence be served on home detention.
The Director of Public Prosecutions applies for permission to appeal that sentence as manifestly inadequate.
Held per Kourakis CJ (Vanstone and Nicholson JJ agreeing) allowing permission to appeal and allowing the appeal:
1. General deterrence is of great importance when sentencing drug traffickers.
2. When considering whether to impose a home detention order, the safety of the community is the paramount consideration.
3. In the case of serious drug trafficking, if it is not suitable to suspend a sentence of imprisonment, then in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order.
4. In the circumstances of this case, the seriousness of the offence called for strong general and personal deterrence. An order for home detention did not meet the purposes of sentencing, and it was not open to the sentencing Judge to make such an order.
5. Sentence imposed in the District…
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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AGLC
R v Filipponi [2016] SASCFC 148
Case
[2016] SASCFC 148
Decision Date
CaseChat Overview and Summary
The case of *R v Filipponi* concerned an appeal by the Crown against the sentence imposed on the respondent, Mr Filipponi, who had pleaded guilty to a charge of trafficking in a commercial quantity of a controlled drug. The appeal was heard by the Full Court of the Supreme Court of South Australia.
The central legal issue before the Full Court was whether the sentencing judge had erred in imposing a non-custodial sentence, specifically a suspended sentence, for the offence of trafficking in a commercial quantity of a controlled drug. The Crown argued that such an offence, by its nature and the quantity of drugs involved, ordinarily warranted a custodial sentence, and that the sentencing judge had failed to give sufficient weight to the seriousness of the offence and the need for general deterrence.
The Full Court allowed the Crown's appeal. Their Honours held that trafficking in a commercial quantity of a controlled drug is a serious offence, and that a non-custodial sentence in such circumstances would only be justified in exceptional cases. They found that the sentencing judge had placed undue emphasis on the mitigating factors presented on behalf of the respondent, such as his prior good character and the fact that he was a courier rather than a principal offender, and had not adequately considered the gravity of the offence and the need for general deterrence. The Court reiterated the principle that trafficking in commercial quantities of drugs poses a significant threat to the community and that appropriate sentencing must reflect this.
Consequently, the Full Court set aside the original sentence and resentenced Mr Filipponi to a term of imprisonment.