R v Hevko

[2018] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HEVKO

[2018] SASCFC 22

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Nicholson)

11 April 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - OTHER TYPES OF ORDER

Appeal against sentence.  The appellant pleaded guilty to one count of trafficking in a controlled drug.  He was sentenced in the District Court to imprisonment for a period of two years and four months with a non-parole period of 15 months.  The Judge declined to suspend the sentence or order that it be served by way of home detention.

The appellant's primary contention on appeal is that the Judge erred in finding that the seriousness of the offending and the need for deterrence outweighed favourable personal circumstances of the appellant in declining to order that the sentence be served on home detention.

Held per Nicholson J (Kourakis CJ and Kelly J agreeing), granting permission to appeal, allowing the appeal, setting aside the District Court sentence and resentencing:

1. The appellant is to serve the term of imprisonment imposed by the Judge by way of home detention pursuant to the provisions of section 33BB of the Criminal Law (Sentencing) Act 1988.

Per Kourakis CJ (Kelly J agreeing):

1.  The Judge erred in failing to address the section 33BB discretion against the particular circumstances of the appellant's offending and his personal circumstances.

2.  The Judge failed to adequately explain his reasons for declining to order home detention.

Per Nicholson J (Kelly J agreeing):

1.  The Judge erred in the application of the requirements of section 33BB to the facts in this case.

2.  The Judge's reliance on the appellant's prior offending was misplaced.

3.  It was not open to the Judge to make a finding beyond reasonable doubt that the appellant's offending was not a once off isolated offence.

Controlled Substances Act 1984 (SA) s 32; Criminal Law (Sentencing) Act 1988 (SA) s 33BB, referred to.
R v Hosking (2017) 128 SASR 37, considered.

R v HEVKO
[2018] SASCFC 22

Court of Criminal Appeal:  Kourakis CJ, Kelly and Nicholson JJ

KOURAKIS CJ.

1. I would allow the appeal and set aside the sentence imposed in the District Court.

2. I would identify the error of the Judge as a failure to address the question whether a home detention order should have been made in the particular circumstances of the appellant’s offending.  I acknowledge that the Judge expressly adverted to the Court’s discretion to make a home detention order, and to some of the sentencing material pertaining to it.  However just as a failure to expressly mention a sentencing consideration does not, of itself, establish that a sentencing judge did not consider it, so too, an express reference to…