R v Ford

Case [2008] SASC 46


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…

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

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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