R v Ivic

Case [2006] SASC 8

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v IVIC

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Anderson)

19 January 2006

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE - DISCRETION OF COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER

Crown application for leave to appeal against sentence – respondent sentenced to imprisonment for two years six months suspended upon entry into good behaviour bond in respect of one count of possessing methylamphetamine for sale, one count of possessing cannabis for sale and one count of unlawful possession – leave to appeal sought on grounds that sentence imposed was manifestly inadequate; the exercise of discretion to suspend miscarried and the judge erred in reducing the head sentence by six months on account of the personal circumstances of the respondent.

Consideration of the nature of Crown appeals – consideration of whether irrelevant considerations were taken into account - Discussion of principles regarding discretion to suspend sentences pursuant to section 38 of the Criminal Law (Sentencing) Act 1988 (SA).

Held: Application for leave to appeal granted – appeal allowed - judge erred by taking into account irrelevant considerations and by reducing the head sentence on account of respondent’s personal circumstances – respondent sentenced to three years imprisonment - non-parole period of 18 months – sentence not suspended.

Controlled Substances Act 1984 (SA) s 32(1)(1)(e); Summary Offences Act 1953 (SA) s 41; Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(c), s 10(1)(n), s 18A and s 38; Criminal Law Consolidation Act 1935 (SA) s 353, referred to.
Police v John (1995) 79 A Crim R 338 ; R v Burtt (1987) 139 LSJS 235; R v Nguyen [2005] SASC 329; R v Taddeo (1993) 67 A Crim R 338 ; R v Manglesdorf (1995) 66 SASR 60 ; R v Tran (2000) 211 LSJS 479 ; R v Proom (2003) 85 SASR 120 ; R v Di Maria (1996) 67 SASR 466 ; Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; R v Errigo (2005) 92 SASR 562 ; R v Nemer (2003) 87 SASR 168; R v Famiglietti [2005] SASC 489 ; R v Penno (2004) 236 LSJS 457; R v Carpentieri (2001) 81 SASR 164; Bates v Police (1997) 70 SASR 66; Neill v Police [1999] SASC 270; R v Clarke [1996] 2 VR 520; Dinsdale v The Queen (2000) 202 CLR 321; R v Walker (1981) 27 SASR 315, considered.

R v IVIC
[2006] SASC 8

Court of Criminal Appeal:  Gray, Vanstone and Anderson JJ

GRAY J

Introduction

  1. This is a Crown application for leave to appeal against…

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R v Ivic [2006] SASC 8
Case
[2006] SASC 8
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions sought leave to appeal against the sentence imposed on the respondent by the District Court in South Australia. The respondent was convicted of possessing methylamphetamine for sale, possessing cannabis for sale, and unlawful possession. The District Court sentenced the respondent to imprisonment for two years and six months, suspended upon the entry into a good behaviour bond. The Crown applied for leave to appeal against the sentence, arguing that it was manifestly inadequate, the exercise of the discretion to suspend the sentence miscarried, and the judge erred in reducing the head sentence by six months on account of the respondent’s personal circumstances.

The appeal raised questions about the nature of Crown appeals and whether irrelevant considerations were taken into account. The court examined the principles regarding the discretion to suspend sentences under section 38 of the Criminal Law (Sentencing) Act 1988 (SA). The court held that the application for leave to appeal was granted and the appeal was allowed. The judge had erred by taking into account irrelevant considerations and by reducing the head sentence on account of the respondent’s personal circumstances. The respondent was sentenced to three years imprisonment with a non-parole period of 18 months, and the sentence was not suspended.

The court concluded that the head sentence imposed by the sentencing judge was not inappropriate, being at the lowest end of the range for offending of this nature. However, the reduction of six months on account of "mitigating factors" was not justified. The court imposed a substituted sentence towards the lower end of the range of available sentences. The court observed that when re-sentencing an offender in response to a Crown appeal, it ordinarily gives recognition to the element of double jeopardy by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance. The court granted leave to appeal, allowed the appeal, set aside the sentence imposed by the sentencing judge, and ordered that the respondent be sentenced to three years imprisonment with a non-parole period of 18 months, and the sentence was not suspended.

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

ANDERSON J (dissent)
But for the additional reduction of six months that the sentencing judge made on account of “mitigating factors”, the head sentence imposed by the sentencing judge was not inappropriate being at the lowest end of the range for offending of this nature identified in Manglesdorf. As this is a Crown appeal, it is appropriate for this Court to impose a substituted sentence towards the lower end of the range of available sentences. As was observed in R v Clarke:[20]When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.A head sentence of three years should be imposed. I would fix a non-parole period of 18 months. I conclude that, in all of the circumstances, no good reason exists to suspend the sentence of imprisonment. [20] R v Clarke [1996] 2 VR 520 at 522 as approved by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at [62] Conclusion I would grant leave to appeal. I would allow the appeal. I would set aside the sentence imposed by the sentencing judge. I would order that the respondent be sentenced to three years imprisonment. I would fix a non-parole period of 18 months. I would not suspend the sentence. VANSTONE J: The Director of Public Prosecutions seeks leave to appeal against a sentence handed down in the District Court. The facts of the three offences are set out in the judgment of Gray J, which I have had the advantage of reading in draft. At the time of sentencing, in August 2005, the respondent was 40 years of age. Her record of criminal offending shows a number of serious offences committed between 1985 and 1996. Three of those attracted sentences of imprisonment, which were suspended. The offence of possessing methylamphetamine for sale was a serious one of its kind. As Gray J has observed, the respondent was found with about 70 grams of powder, containing over 11 grams of methylamphetamine, divided between 61 small bags. All the offences occurred against a background of the respondent working for another person as a street seller. Her counsel told the learned sentencing judge she assumed that role from another person, taking over that person’s customer base. Since s 18A Criminal Law (Sentencing) Act 1988 was employed to impose one sentence for all three offences, the sentence had to reflect the total criminal conduct involved. In my opinion, to find, as the judge did, that the offending amounted to “low level street dealing of methylamphetamine and cannabis” rather understated the position. I agree with Gray J that in reducing the sentence on account of the fact that the respondent had sold drugs to extricate herself from her financial difficulties, the judge fell into error. Indeed, in my view there were no compelling circumstances of mitigation such as to justify departure from the range of sentences customarily applied for comparable crimes. The pleas of guilty rightly earned credit, but they were not entered until more than four months after the respondent’s first arraignment in the District Court and after some four directions hearings had taken place.

Ratio Decidendi

Legal Principle Established

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