SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUNTER
[2017] SASCFC 97
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)
11 August 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE
The respondent pleaded guilty on the morning of trial in the District Court to: two counts of trafficking in a controlled drug, two counts of cultivation of controlled plants for sale, two counts of possession of prescribed equipment, two counts of diversion of electricity from a power system and one count of manufacturing a controlled drug for sale, committed between July 2013 and May 2014.
The Judge ordered individual sentences for each offence or group of offences resulting in a head sentence of six years and 11 months imprisonment with a non-parole period of three years and six months imprisonment. The sentence was suspended on the condition that the respondent enter into a bond to be of good behaviour for a period of two years.
The Director of Public Prosecutions has applied for permission to appeal on the grounds that: the sentence imposed for the manufacturing offence is manifestly inadequate; the Judge erred in making the sentence for the manufacturing offence wholly concurrent with the sentence for the two trafficking offences; and the Judge erred in suspending the total head sentence.
Held (Nicholson J, with Peek and Stanley JJ agreeing): Permission to appeal refused.
Criminal Law (Sentencing) Act 1988 s 10C, s 18A, s 38; Controlled Substances Act 1984 s 32, s 33, s 33B, s 33LA; Electricity Act 1996 s 85; Criminal Law Consolidation Act 1935 s 340, referred to.
R v Payne [2004] SASC 160, (2004) 89 SASR 49; Everett v The Queen [1994] HCA 49, (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer [2003] SASC 375, (2003) 87 SASR 168; R v Cleaver [2016] SASFC 43; R v Kong [2013] SASCFC 15, (2013) 115 SASR 425; Attorney General v Tichy (1982) 30 SASR 84; R v Spyrou [2008] SASC 209; R v Stevens [2008] SASC 170; R v Dell & Dell [2016] SASCFC 156, (2016) 126 SASR 571; Hili v The Queen [2010] HCA 45, (2010) 242 CLR 520; The Queen v Morse (1979) 23 SASR 98; R v McIntosh [2017] SASCFC 87; House v The King [1936] HCA 40, (1936) 55 CLR 499; R v Jongewaard [2009] SASC 346; R v Lutze [2014] SASCFC 134, (2014) 121 SASR 144; R v Hicks (1987) 45 SASR 270, considered.
R v HUNTER
[2017] SASCFC 97Court of Criminal Appeal: Peek, Stanley…
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- R v Hunter [2017] SASCFC 97
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- [2017] SASCFC 97
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CaseChat Overview and Summary
The legal issues before the court were whether the sentence imposed was manifestly inadequate, and if so, whether appellate intervention was warranted. The court was required to consider the principles governing Crown appeals against sentence, particularly in circumstances where the Crown alleges a failure to properly exercise sentencing discretion. This involved assessing whether the sentencing judge had misapplied established sentencing principles.
The court considered the respondent's argument that permission to appeal should be refused due to considerations of double jeopardy and the respondent's rehabilitation since his arrest in 2014, as well as the fact that his imprisonment term had been suspended in 2017. The respondent argued that imposing immediate imprisonment on appeal would be unduly harsh on him and his family. However, the court referenced established principles from cases such as *Hili v The Queen* and *Dinsdale v The Queen*, which state that appellate intervention on the grounds of manifest inadequacy is only justified if there has been a misapplication of principle, not simply because the outcome differs from other cases. Factors relevant to manifest inadequacy, similar to manifest excess, include the maximum sentence, customary sentencing standards, the seriousness of the offence, and the offender's personal circumstances. A finding of manifest inadequacy means the sentence does not properly serve the purpose of punishment.
The court ultimately refused permission to appeal.
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
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Ratio Decidendi
Legal Principle Established
Established by: PEEK J, NICHOLSON J
The respondent’s ultimate contention is that, even if permission might otherwise be warranted with respect to either or both of grounds one or two, permission to appeal ought be refused on all grounds. Counsel relied on double jeopardy considerations. Given the established rehabilitation of the respondent since his arrest in May 2014, and the fact of the suspension of the term of imprisonment in February 2017, the respondent contends that it would be unnecessarily and unacceptably harsh to impose a sentence of immediate imprisonment on appeal. It would be so with respect not just to the respondent but also with respect to the respondent’s partner, child and father.Consideration This is a prosecution appeal where the complaint is, essentially, that the Judge has failed to properly exercise his sentencing discretion in a number of respects. It is contended, inter alia, that his Honour has failed to properly characterise the seriousness of the offending and has placed too little weight on the issue of deterrence and too much weight on matters personal to the respondent. In order to appreciate the context in which the applicant’s contentions are to be considered I have, to this point, set out in some detail the circumstances of the offending, the respondent’s personal circumstances and the Judge’s findings on the evidence and approach to sentence. This permits me to be relatively brief in explaining why in my view permission to appeal should be refused. I turn first to a consideration of grounds one and two together. In Hili v The Queen,[15] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said this.As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. ...[citations omitted][15] [2010] HCA 45; (2010) 242 CLR 520 at [59]. Factors relevant to the question of manifest excess are:[16] the maximum sentence prescribed by law; the standards of sentencing customarily observed for offences of the kind in question; the seriousness of the offence committed when compared to other examples of the offence in question; and the personal circumstances of the offender. As a matter of principle, the same considerations arise when considering the question of manifest inadequacy. Further, in R v McIntosh,[17] Hinton J (with whose reasons Peek and Nicholson JJ agreed) observed that “a finding that a sentence is manifestly inadequate is a finding that the sentence does not properly serve the purpose of punishment”.[16] The Queen v Morse (1979) 23 SASR 98 at 99 (King CJ).[17] [2017] SASCFC 87 at [175].