R v Ford

Case [2008] SASC 46 29 February 2008

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FORD
[2008] SASC 46
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
29 February 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
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
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Application for permission to appeal against sentence – applicant pleaded guilty to selling and possessing methylamphetamine contrary to section 32(1)(c) of the Controlled Substances Act 1984 (SA) – applicant claimed offending was motivated by financial difficulties caused by misappropriation of mortgage repayments by her de facto partner – applicant sentenced to 18 months’ head sentence with 12 months non-parole period – applicant ordered to forfeit to Crown sum of $25,000 pursuant to section 47 of the Criminal Assets Confiscation Act 2005 (SA) – section 10(1)(ka) of the Criminal Law (Sentencing) Act 1988 (SA) requires a court to have regard to nature and extent of forfeiture that does not merely neutralise benefit from offending – applicant submitted that sentence of imprisonment should be suspended – section 38(1) of the Criminal Law (Sentencing) Act provides that sentence may be suspended where “good reason exists” – applicant submitted that her minor antecedent history, obligations as a caregiver, forfeiture sum, employment prospects and motive for the offending amounted to “good reason” to suspend – whether “good reason” existed to suspend sentence – whether sentence manifestly excessive.
Held: Permission to appeal refused – sentence imposed and decision not to suspend was appropriate and within sentencing discretion – no “good reason” identified to justify suspension – no appealable sentencing error established – methylamphetamine will continue to be characterised as a drug in the middle range of seriousness in the absence of evidence from the Director of Public Prosecutions to the contrary.
Controlled Substances Act 1984 (SA) s 32(1)(b) and s 32(1)(c); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(ka), s 18A, s 29A and s 38(1); Criminal Assets Confiscation Act 2005 (SA) s 224; Drugs Misuse Act 1986 (Qld); Drugs Misuse Amendment Regulation (No 2) 2001 (Qld); Drugs Misuse Amendment Regulation 1987 (Qld); Drugs Misuse (Amphetamines Offences) Bill 2001 (Qld); Misuse of Drugs Act 1971 (Amendment) Order 2006 (UK); Order Amending Schedule 1 and III to the Controlled Drugs and Substances Act (Methamphetamine) S.C. 1996 c.19, SOR/2005-235; Misuse of Drugs (Changes to Controlled Drugs) Order 2003 (NZ), referred to.
Markarian v The Queen (2005) 228 CLR 357; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321 at 324; Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; R v Mangelsdorf (1995) 66 SASR 60; R v Cetojevic & Cetojevic (2005) 92 SASR…

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.

Continue reading R v Ford

Details

AGLC: R v Ford [2008] SASC 46
Case: [2008] SASC 46
Decision Date: 29 February 2008

CaseChat Overview and Summary

The applicant, Ford, pleaded guilty to selling and possessing methylamphetamine in contravention of section 32(1)(c) of the Controlled Substances Act 1984 (SA). Ford was sentenced to 18 months in prison, with a non-parole period of 12 months, and was also ordered to forfeit $25,000 under the Criminal Assets Confiscation Act 2005 (SA). Ford sought permission to appeal against the sentence, arguing that her minor criminal history, her role as a caregiver, the forfeiture amount, her employment prospects, and the motive behind her offending constituted "good reason" to suspend the sentence under section 38(1) of the Criminal Law (Sentencing) Act 1988 (SA).

The primary legal issue before the court was whether "good reason" existed to suspend the sentence, and if the sentence was manifestly excessive. Ford argued that the sentence should be suspended due to her minor antecedent history, obligations as a caregiver, the forfeiture sum, employment prospects, and the motive for her offending. The court considered whether these factors constituted "good reason" to justify suspension and whether the sentence was manifestly excessive.

The court found that the sentence was appropriate and within the sentencing discretion of the judge. The decision not to suspend the sentence was entirely appropriate, and no basis for challenging that decision was identified. The court determined that no appealable sentencing error was established and that the methylamphetamine would continue to be characterised as a drug in the middle range of seriousness. Consequently, the court refused permission to appeal against the sentence.

The court's final order was that the application for permission to appeal should be dismissed. The sentence imposed was deemed appropriate, and the decision not to suspend the sentence was well within the sentencing discretion of the trial judge.

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

BLEBY J GRAY J

Having reviewed all material relevant to this application, the conclusion may be reached that the sentence imposed in the present case was an appropriate sentence. A sentence of 18 months’ imprisonment and the fixing of a non-parole period of 12 months with respect to commercial dealings in methylamphetamine can be fairly described as merciful. The Judge’s decision not to suspend the sentence was an entirely appropriate decision. No basis of challenge to that decision has been made out. It was a decision well within his sentencing discretion. Because no basis to challenge the decision has been identified, it is not reasonably arguable that the Judge erred. Accordingly, permission to appeal should be refused. Conclusion This application should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J, GRAY J

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Citations

AGLC Citation

R v Ford [2008] SASC 46

Most Recent Citation

ARS v Queensland Police Service [2018] QDC 103

Cases citing this decision · 3 of 3 shown

Sullivan v Queensland Police Service
[2020] QDC 220 Para 1

…(Qld), s 144(1), (2) & (4) discussed in ARS v Queensland Police Service [2018] QDC 103 at [42] citing R v H (1993) 66 A Crim R 505, 510 and R v Ford [2008] SASC 46 at [51].…
JMM v Commissioner of Police
[2018] QDC 130 Para 1

…or she considers that good reason exists to do so.[43] [40] Section 144(4) [41] Section 144(2) [42] R v H (1993) 66 A Crim R 505, 510. [43] R v Ford [2008] SASC 46, [51].…
ARS v Queensland Police Service
[2018] QDC 103 Para 1

…r she considers that good reason exists to do so.[18] [15] Section 144(4). [16] Section 144(2). [17] R v H (1993) 66 A Crim R 505, 510. [18] R v Ford [2008] SASC 46, [51].…

View all 3 citing cases →

Cases cited in this decision · 18 of 18 shown

R v Sladic
[2014] ACTSC 56 Para 1

…[12] [10] R v Mangelsdorf (1995) 66 SASR 60. [11] R v Cetojevic (2005) 92 SASR 451 at [25]. [12] R v Fowler (2006) 243 LSJS 285 at [26]; R v Sladic (2005) 92 SASR 36 at [24]-[26]; R v Cetojevic (2005) 92 SASR 451 at [25]; R v Stubberfield [2005] SASC 383 at [16]; R v Plaister [2001] SASC 383 at [25]; R v Cronn (1983…
R v MODRA
[2006] SASC 106 Para 6

…Perry and Duggan JJ agreed. [25] R v Becker (2005) 91 SASR 498. [26] R v Cetojevic (2005) 92 SASR 451 at [25] (footnotes omitted). See also R v Modra [2006] SASC 106 at [30]-[31].…
R v CONSTANTINOU
[2005] SASC 466 Para 20

…is a need for a strong element of general deterrence when sentencing for these crimes. [39] R v Mangelsdorf (1995) 66 SASR 60 at 70, R v Constantinou [2005] SASC 466 at [15]. [40] R v Harris (2001) 122 A Crim R 241.…
R v Stubberfield
[2005] SASC 383

…5) 66 SASR 60; R v Cetojevic & Cetojevic (2005) 92 SASR 451; R v Fowler (2006) 243 LSJS 285; R v Sladic (2005) 92 SASR 3; R v Stubberfield [2005] SASC 383; R v Plaister [2001] SASC 383; R v Cronn (1983) 34 SASR 555; R v Pearce (1980) 91 LSJS 443; R v Becker (2005) 91 SASR 498; R v Modra [2006] SASC 106; R v Darwell…
R v Cetojevic
[2005] SASC 273 Para 1

…thylamphetamine has been characterised as a drug in the middle range of seriousness.[12] [10] R v Mangelsdorf (1995) 66 SASR 60. [11] R v Cetojevic (2005) 92 SASR 451 at [25]. [12] R v Fowler (2006) 243 LSJS 285 at [26]; R v Sladic (2005) 92 SASR 36 at [24]-[26]; R v Cetojevic (2005) 92 SASR 451 at [25]; R v Stubberf…
R v Becker
[2005] SASC 186 Para 2

…e high range of seriousness.[13] However, on no occasion has evidence been placed before the Court to justify a reclassification.[14] [13] R v Becker (2005) 91 SASR 498; R v Sladic (2005) 92 SASR 36. [14] R v Becker (2005) 91 SASR 498; R v Sladic (2005) 92 SASR 36.…
Markarian v The Queen
[2005] HCA 25 Para 28

…y described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”. [7] Markarian v The Queen (2005) 228 CLR 357. [8] Markarian v The Queen (2005) 228 CLR 357 at [25] (footnotes omitted). See also House v The King (1936) 55 CLR 499 at 504-5; Dinsdale v The Queen (2000) 20…
Director of Public Prosecutions v Alexander
[2003] SASC 340 Para 15

…t [37]-[47] (Doyle CJ), with whom the other members of the court agreed. Subsequently, in Director of Public Prosecutions v Alexander (2003) 86 SASR 577, decided after para (ka) had been inserted, Mullighan J said (at [30]): It is well established that the sentencing court may have regard to the consequence of forfei…
Wong v The Queen
[2001] HCA 64 Para 29

…en some misapplication of principle, even though where and how is not apparent from the statement of reasons. [9] Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at [58].…
Dinsdale v The Queen
[2000] HCA 54 Para 28

…rian v The Queen (2005) 228 CLR 357 at [25] (footnotes omitted). See also House v The King (1936) 55 CLR 499 at 504-5; Dinsdale v The Queen (2000) 202 CLR 321 at 324.…
R v Wacyk
[1996] SASC 5622 Para 1

…(footnotes omitted). See also Police v Cadd and Others (1997) 69 SASR 150 at 168-9 (Doyle CJ), 173 (Duggan J); R v Wacyk (1996) 66 SASR 530 at 535 (Doyle CJ), 536 (Perry J).…
R v Mangelsdorf
[1995] SASC 5328 Para 15

…eiture order, suspension of a sentence for that type of offending would not adequately reflect the gravity of the offence.[5] [4] See R v Mangelsdorf (1995) 66 SASR 60. [5] Ibid 72.…
House v R
[1936] HCA 40 Para 28

…rkarian v The Queen (2005) 228 CLR 357. [8] Markarian v The Queen (2005) 228 CLR 357 at [25] (footnotes omitted). See also House v The King (1936) 55 CLR 499 at 504-5; Dinsdale v The Queen (2000) 202 CLR 321 at 324.…
Police v Cadd
[1997] SASC 6187 Para 1

…] Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at [85]-[86] (footnotes omitted). See also Police v Cadd and Others (1997) 69 SASR 150 at 168-9 (Doyle CJ), 173 (Duggan J); R v Wacyk (1996) 66 SASR 530 at 535 (Doyle CJ), 536 (Perry J).…
R v Plaister and Graham
[2001] SASC 383 Para 1

…t [26]; R v Sladic (2005) 92 SASR 36 at [24]-[26]; R v Cetojevic (2005) 92 SASR 451 at [25]; R v Stubberfield [2005] SASC 383 at [16]; R v Plaister [2001] SASC 383 at [25]; R v Cronn (1983) 34 SASR 555 at 556; R v Pearce (1980) 91 LSJS 443. Reclassification of Methylamphetamine…
[2001] SASC 420
[2001] SASC 420 Para 12

…many relevant factors but it cannot do so in any precise way.[2] [2] See the observations of Doyle CJ in R v Carpentieri (2001) 81 SASR 164, 171-172, [2001] SASC 420, [38], and in R v Errigo (2005) 92 SASR 562, 568. The Exercise of the Sentencing Judge’s Discretion…
House v The King
63 WN 176 Para 28

…adequacy”. [7] Markarian v The Queen (2005) 228 CLR 357. [8] Markarian v The Queen (2005) 228 CLR 357 at [25] (footnotes omitted). See also House v The King (1936) 55 CLR 499 at 504-5; Dinsdale v The Queen (2000) 202 CLR 321 at 324.…
[2005] 3 NZLR 739
[2005] 3 NZLR 739 Para 10

…e reclassification came into force on 10 August 2005. [34] The Misuse of Drugs (Changes to Controlled Drugs) Order 2003 (NZ) discussed in R v Arthurs [2005] 3 NZLR 739 reclassifies methylamphetamine, previously a Class A controlled drug, as a Class B controlled drug. The reclassification came into force on 30 May 20…

Legislation cited in this decision · 6

Criminal Law (Sentencing) Act 1988 (SA)
10(1)(ka), 38(1) 3 mentions (from Para 7)
Controlled Substances Act 1984 (SA)
32(1)(b) 2 mentions (from Para 24)
Criminal Assets Confiscation Act 2005 (SA)
224 2 mentions (from Para 3)
Drugs Misuse Act 1986 (Qld)
1 mention (from Para 9)
Misuse of Drugs Act 1971 c.38
1 mention
R v Holmes; Ex parte Altona Petrochemical Co Ltd
1 mention