R v Ivic

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.