R v Hevko

This matter concerned an appeal against sentence by the applicant, R v Hevko, before the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Kelly and Nicholson JJ. The applicant had been convicted of drug trafficking offences and sentenced to a term of imprisonment, with the sentencing judge refusing to suspend the sentence or make a home detention order.

The central legal issue before the Full Court was whether the sentencing judge had properly exercised their discretion in refusing to suspend the term of imprisonment and in declining to make a home detention order, specifically in relation to the requirements of section 33BB of the Criminal Law (Sentencing) Act. The applicant argued that the sentencing judge had failed to adequately consider the relevant statutory tests and the material before the court when making these decisions.

The Full Court found that the sentencing judge's reasoning for refusing to suspend the sentence and for declining a home detention order was essentially identical and that this reasoning did not demonstrate a proper application of section 33BB of the Sentencing Act. While acknowledging the seriousness of the offence and the importance of deterrence, the Court concluded that the judge had not sufficiently attended to the statutory requirements. Consequently, the Court granted permission to appeal, allowed the appeal, and set aside the original sentence.

The Full Court did not depart from the head sentence or the non-parole period imposed by the sentencing judge. However, for the reasons given, the Court ordered that the applicant serve the sentence on home detention pursuant to section 33BB of the Sentencing Act, imposing terms and conditions similar to those of his existing home detention bail.