R v Fresiello - [2020] SASCFC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FRESIELLO
[2020] SASCFC 127
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Blue)
23 December 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW
This is an application by the Director of Public Prosecutions for permission to appeal against the sentences imposed on the respondent for two counts of trafficking in methylamphetamine on the basis that the sentence imposed was manifestly inadequate.
The respondent pleaded guilty to the trafficking offences and related firearm offences. The sentencing Judge indicated that he would impose a sentence of two years and three months for the first trafficking offence after taking into account the sentencing discount. The Judge indicated that he would impose a sentence of four years and six months for the second trafficking offence, after discount. The sentences were to be served cumulatively. The Judge however imposed a single sentence for both offences pursuant to s 25 of the Sentencing Act 2017 (SA) of five years. In addition, the sentencing Judge imposed a term of two years and three months for the firearms offences, resulting in a total head sentence of seven years and three months. A non-parole period of three years and nine months was fixed.
The circumstances of the first trafficking offence were that the police attended the respondent’s residence on 4 September 2017 in response to a report of a suicide attempt. The respondent was taken to hospital and police searched the home finding 24g of crystal methylamphetamine. The circumstances of the second offence were that on 27 March 2019 police executed a general search warrant at the residence finding cash, a firearm and 11.4g of methylamphetamine. A further 536g pure methylamphetamine was discovered later in the search. The respondent was on bail at the time of the second offence.
The applicant contends that the sentence imposed was manifestly inadequate and the sentencing Judge erred in his application of the totality principle.
Held per Kourakis CJ (Peek and Blue JJ concurring), refusing permission to appeal:
1. If a mitigatory explanation is likely to be substantially rejected, if not supported on oath, the defendant should generally be put on notice.
2. Permission to appeal will rarely be granted if, to do so, will allow the prosecution a second opportunity to challenge a mitigatory account which it previously expressly or tacitly accepted, unless that account is inconsistent with sworn evidentiary material at trial which was before the Judge.
3. The sentencing Judge could not have had in mind that an accumulation of the indicative sentences would be crushing because the sentence for the firearms offence was imposed cumulatively. The sentencing Judge can…

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 Fresiello

Details

AGLC: R v Fresiello [2020] SASCFC 127
Case: [2020] SASCFC 127
Decision Date: 23 December 2020

CaseChat Overview and Summary

This matter concerned an appeal by the Director of Public Prosecutions against the sentence imposed on Mr Fresiello, who had pleaded guilty to two counts of trafficking a commercial quantity of a controlled drug. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Peek and Blue JJ.

The primary legal issue before the court was whether the sentencing judge erred in imposing a single sentence for both trafficking offences, which allowed for substantial concurrency, despite an indication that the sentences should be cumulative. This issue was considered in light of the factual basis for the second trafficking offence, which arose from Mr Fresiello's dealings with his supplier. The court also considered whether the Director should be granted permission to appeal, which would involve setting aside the sentence and remitting the matter for resentencing, potentially exposing Mr Fresiello to more adverse factual findings.

The court reasoned that the Director's contention regarding the sentencing judge's error in allowing concurrency, despite the indication for cumulative sentences, stood independently of the factual basis of the second trafficking offence. However, the court noted that Mr Fresiello had been warned that his initial account would not be accepted, and his subsequent explanation, which was not inconsistent with the sworn material before the judge, may have led him to believe it was accepted. The court held that permission to appeal would rarely be granted if it allowed the prosecution a second opportunity to challenge a mitigatory account that was previously accepted, unless that account was demonstrably inconsistent with the evidence. The court found that Mr Fresiello's accepted explanation substantially mitigated the second trafficking offence, as it was committed due to threats and violence from his supplier, rather than solely financial desperation or addiction. While acknowledging that the combined sentence might be arguable as inadequate, the court did not find it to be obviously or egregiously so.

Ultimately, the application for permission to appeal was dismissed. Peek J and Blue J agreed with the Chief Justice's reasons. The court also commented on the practice of the criminal registry assisting with service of notices of appeal, stating that this practice would no longer be followed and that the Director bears the sole responsibility for arranging service within the prescribed time.

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

In discharging that duty, the office of the Director should not assume that the solicitor acting for the respondent at the trial or the sentencing hearing has ongoing instructions to accept service. Moreover, having regard to the leisurely and uninformed approach of the responsible officer of the Department for Correctional Services in serving the notice of appeal sent by the Court, the Director may wish to make other arrangements for service to be effected.Conclusion The application for permission to appeal is dismissed. PEEK J: I would refuse permission to appeal. I agree with the reasons of the Chief Justice. BLUE J: I agree.

Ratio Decidendi

Legal Principle Established

In this case the failure to raise any concern over the explanation, as it was finally formulated, when Mr Fresiello had been expressly warned that his initial account would not be accepted, may have misled Mr Fresiello into thinking his final account was accepted. This was not a case in which the sworn material before the Judge was inconsistent with Mr Fresiello’s account so as to preclude the Judge from accepting it.[5] [5] R v Nemer (2003) 87 SASR 168.Consideration I accept that the Director’s contention that the Judge erred in imposing a single sentence for both trafficking offences which allowed substantial concurrency despite the Judge’s indication that the sentences should be cumulative, stands independently of the problematic factual basis of the second trafficking offence. That is particularly so when, on the proferred explanation, the offences were quite separate criminal undertakings, the second trafficking offence only being committed because of the violence and threat of violence of Mr Fresiello’s supplier. I have considered whether permission should be granted, the sentence set aside and the matter remitted to the District Court. On that remitter, the District Court would be free to review the factual basis on which Mr Fresiello should be sentenced. However, that would put Mr Fresiello in jeopardy of factual findings more adverse than the explanation proffered by him for a second time. Permission to appeal will rarely be granted if, to do so, will allow the prosecution a second opportunity to challenge a mitigatory account which it previously expressly or tacitly accepted, unless that account is inconsistent with sworn evidentiary material at trial which was before the Judge. The accepted explanation for Mr Fresiello’s offending substantially mitigates the second trafficking offence. On that explanation this is not a case in which the offence was committed because of financial desperation or drug addiction alone. Offences generally, and drug trafficking in particular, are often committed for reasons of that kind. The need for general deterrence will therefore often outweigh personal circumstances of that kind which would otherwise lessen the offender’s personal culpability. Nor is this a case of a vague or otherwise speculative fear of reprisal, or even of mere verbal threats. Serious injuries were inflicted in the assault on Mr Fresiello. I accept that it is arguable that, even on Mr Fresiello’s account, the combined sentence was manifestly inadequate but it is not obvious that it was egregiously so. Close attention should be paid to the factual matrix in which a defendant falls to be sentenced. The acceptance of fanciful mitigatory accounts is often the root cause of public disquiet about sentencing standards and can frustrate the responsibility of this Court to maintain them. Finally, I note that Mr Fresiello’s counsel opposed the grant of permission to appeal on the ground that the notice of appeal was not served on Mr Fresiello within the prescribed time.[6] It appears that a practice has been adopted by which a notice of appeal by the Director is sent electronically by the criminal registry of this Court to the prison in which a respondent is held. It is now not necessary to consider that ground. However, the practice of the Registry of this Court to assist with service will no longer be followed. It is the sole responsibility of the Director to arrange service on the respondent within the time prescribed by the Supreme Court Criminal Rules 2014, whether the respondent is in custody or not. [6] See R v Fusco [2017] SASCFC 47 at [67]-[80].