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R v Fowler

R v Fowler

Case [2006] SASC 18 1 February 2006

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FOWLER
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Gray and The Honourable Justice Layton)
1 February 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - OTHER MATTERS
Applicant convicted of one count of possessing methylamphetamine for sale and one count of possessing cannabis – single sentence of 30 months with non-parole period of 15 months imposed – whether trial judge erred in not suspending sentence - held that the test for suspension of a sentence of imprisonment is whether there exists “good reason” to suspend – no error demonstrated - whether sentence manifestly excessive – held that sentence not manifestly excessive.
Criminal Law (Sentencing) Act 1988 s 38(1), referred to.
R v Osenkowski (1982) 30 SASR 212; Elliott v Harris (No 2) (1976) 13 SASR 516; Wood v Samuels (1974) 8 SASR 465; Ware v Betts (1987) 134 LSJS 212; R v Regan [2003] SASC 287; R v Cane [2003] SASC 237; Dinsdale v R (2001) 175 ALR 315; R v Pham [2003] SASC 386; R v Manglesdorf (1995) 66 SASR 60; R v Gjoka (Unreported) Court of Criminal Appeal, 1 July 1997, Judgment No S6211; House v R (1936) 55 CLR 499; R v Harris (2001) 122 A Crim R 241; Vartzokas v Zanker (1989) 51 SASR 277; R v Jarrett (1992) 58 SASR 457; R v Wacyk (1996) 66 SASR 530; R v Hill [2005] SASC 380; R v Famiglietti [2005] SASC 489; Bohdan Weiss v The Queen [2005] HCA 81; Ogden Industries Pty Ltd v Lucas [1970] AC 113; Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390, considered.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Whether trial judge erred in failing to consider time spent in custody - held that trial judge failed to consider time spent in custody - appeal allowed in part by reducing the sentence by 1 month and non-parole period by 1 month, but otherwise appeal dismissed.

R v FOWLER
[2006] SASC 18
Court of Criminal Appeal: Perry, Gray and Layton JJ

PERRY J. The appellant appeals by leave against the sentence imposed upon her in the District Court after a trial by judge alone when she was convicted on one count of possessing methylamphetamine for sale and one count of producing cannabis.
The maximum penalty for possessing methylamphetamine for sale is imprisonment for 25 years or a fine of $200,000 or both. The maximum penalty for the cannabis offence is a fine of $2,000 or imprisonment for 2 years or both.
Exercising his powers pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, the sentencing judge imposed a single sentence, being a sentence of imprisonment for 30 months, against which he fixed…

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 Fowler

Details

AGLC: R v Fowler [2006] SASC 18
Case: [2006] SASC 18
Decision Date: 1 February 2006

CaseChat Overview and Summary

The case of R v Fowler involved the applicant, who was convicted of possessing methylamphetamine for sale and possessing cannabis. The applicant was sentenced to a total of 30 months imprisonment, with a non-parole period of 15 months. The applicant appealed against the sentence, arguing that the trial judge had erred in not suspending the sentence of imprisonment and that the sentence was manifestly excessive. The appeal was heard by the court, which was required to determine whether the trial judge had erred in not suspending the sentence and whether the sentence was manifestly excessive.

The court began by examining the test for the suspension of a sentence of imprisonment, which requires the existence of “good reason” to suspend. The court found that the trial judge had considered the relevant factors and had not erred in deciding not to suspend the sentence. The court also considered whether the sentence was manifestly excessive, which requires a sentence to be palpably wrong or plainly unjust. The court found that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for the offences committed.

In conclusion, the court found that the trial judge had not erred in not suspending the sentence of imprisonment and that the sentence was not manifestly excessive. The appeal was dismissed, and the original sentence was upheld. The court did not make any further orders beyond the dismissal of the appeal.

Orders