R v Healey - [2010] SASCFC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HEALEY
[2010] SASCFC 64
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Peek)
30 November 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY
Application for permission to appeal against sentence by DPP – respondent pleaded guilty to one count of trafficking a controlled drug, one count of possession of a controlled drug and one count of possession of a controlled drug for supply – offending was a one-off event – sentencing Judge imposed fines and declined to record convictions – whether sentence was manifestly inadequate by not recording convictions.
Held: sentencing Judge’s decision to decline to record convictions was within sentencing discretion – appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(3), s 33L(1)(a), s 33L(1)(b); Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
R v Mangelsdorf (1995) 66 SASR 60; R v Fowler (2006) 243 LSJS 285; Everett v R (1994) 181 CLR 295, applied.

R v HEALEY
[2010] SASCFC 64
Court of Criminal Appeal: Doyle CJ, David and Peek JJ

DOYLE CJ: I agree with the orders proposed by David J and with his reasons.
DAVID J: This is an application by the Director of Public Prosecutions (“the applicant”) for permission to appeal against sentence. In particular, it is said that the sentencing Judge was wrong not to record convictions.
The respondent pleaded guilty in the District Court to three offences contrary to the Controlled Substances Act 1984 (SA) (“the Act”). The three counts were:
1Trafficking in a controlled drug (MDMA or ecstasy) contrary to s 32(3) of the Act. The maximum penalty for this offence was a fine of $50,000 or imprisonment for 10 years or both.
2Simple possession of a controlled drug (MDMA or ecstasy and methylamphetamine) contrary to s 33L(1)(a) of the Act. The maximum penalty for this offence was a fine of $20,000 or imprisonment for two years or both.
3Possession of a controlled drug (lysergic acid diethylamide or LSD) for supply contrary to s 33L(1)(b) of the Act. The maximum penalty for this offence was a fine of $50,000 or imprisonment for 10 years or both.
The sentencing Judge imposed the following penalties: a fine of $600 in respect of count 1, a fine of $300 in respect of count 2, and a fine of $1,000 in respect of count 3. The sentencing Judge, having imposed fines, declined to record convictions on any of the counts pursuant to s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”).
The applicant now seeks permission to appeal against that sentence on the basis that it is manifestly inadequate and, in particular, the argument focuses on the sentencing Judge’s failure to impose convictions.
The offending
On the evening of 24 August 2008 the respondent sold an ecstasy tablet to a friend…

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 Healey

Details

AGLC: R v Healey [2010] SASCFC 64
Case: [2010] SASCFC 64
Decision Date: 30 November 2010

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) sought permission to appeal against a sentence imposed by a sentencing judge. The respondent had pleaded guilty to one count of trafficking a controlled drug, one count of possession of a controlled drug, and one count of possession of a controlled drug for supply. The sentencing judge had imposed fines and declined to record convictions. The DPP argued that the sentence was manifestly inadequate because convictions were not recorded. The appeal was heard by Doyle CJ, David J, and Peek J.

The central legal issue before the Full Court was whether the sentencing judge had erred in exercising their discretion by declining to record convictions for the offences, thereby rendering the sentence manifestly inadequate. The court considered the principles governing the grant of permission to appeal against sentence by the Crown, particularly in circumstances where the sentence is alleged to be inadequate.

The court acknowledged that declining to record convictions for drug trafficking offences is generally rare and that there should be no encouragement to condone the use of dangerous drugs. However, the court found that in this specific case, the sentencing judge's decision was within their proper discretion. This conclusion was based on a combination of factors, including the low order of criminality involved in the offending, the respondent's personal circumstances such as her lack of prior convictions, her illnesses, her addiction, and her demonstrated path to rehabilitation through gainful employment. The court held that these circumstances provided a sufficient basis for the sentencing judge to exercise their discretion not to record convictions.

The appeal was dismissed.

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

Counsel for the respondent argued that, in the special circumstances of this case, not recording convictions was well within the Judge’s proper sentencing discretion. He pointed out the circumstances personal to the respondent, her present success at rehabilitation and her lack of any criminal history. He also emphasised the nature of the offending.Conclusion In my view, it is unnecessary in this case to deal with the well-settled authorities concerning prosecution appeals on sentence. The Court should grant permission to appeal against sentence to the prosecution only in rare and exceptional circumstances.[2] Permission to appeal can be granted to establish a principle of sentencing law or to establish or maintain adequate sentencing standards for a particular offence or kind of offence. It may also be granted to correct a sentence which is so inadequate that it amounts to an error in principle.[2] Everett v R (1994) 181 CLR 295 at 299-300. Declining to record convictions for offences involving trafficking in such drugs as LSD and ecstasy is rare. There should be no encouragement by this Court to condone the use and dissemination of such dangerous drugs, even to a limited extent, in the community. For that reason alone, I am of the view that it is appropriate that permission should be granted to the applicant to appeal against the penalty imposed by the sentencing Judge. However, I consider that in this case the sentencing Judge’s decision not to record convictions was within his sentencing discretion. A combination of the low order of criminality and the respondent’s personal circumstances including her lack of criminal convictions, her illnesses, her addiction, and the fact that she is gainfully employed and on a path to rehabilitation are matters that allowed the sentencing Judge to properly exercise the discretion in the way he did. I would dismiss the appeal. PEEK J: I agree with the orders proposed by David J and with his reasons.

Ratio Decidendi

Legal Principle Established

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