R v Fresiello

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.