(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Auxiliary Justice Mazza)
13 October 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PROCEDURE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - OTHER SUBSTANCES AND OFFENCES INVOLVING MULTIPLE SUBSTANCES OR OFFENCES
The issue on appeal is whether exceptional circumstances existed enlivening the sentencing Judge's discretion to suspend the respondent's sentence.
The respondent was found in possession of 48.09 grams of a substance containing methylamphetamine, 7.72 grams of a substance containing heroin and 5357.9 grams of a substance containing GHB. He pleaded guilty to trafficking in a large commercial quantity of GHB, trafficking in methylamphetamine and possession of heroin. The sentencing Judge imposed a sentence of five years, four months and 20 days' imprisonment and fixed a non-parole period of two years and six months. She found that exceptional circumstances existed to warrant the suspension of that sentence.
The Director of Public Prosecutions appeals against sentence on the ground that the sentencing Judge erred in finding that exceptional circumstances existed to suspend the sentence.
Held, per the Court, granting permission to appeal, allowing the appeal and revoking the order suspending the term of imprisonment:
1. A finding of "exceptional circumstances" for the purposes of s 96(6) of the Sentencing Act 2017 (SA) is moulded and informed by the mischief the section seeks to remedy: R v Yavus [2018] SASCFC 24. It must be based on an assessment of all of the usual sentencing criteria.
2. Whilst the respondent has demonstrated an attempt at rehabilitation, given the serious nature of his offending and his extensive history of prior offending, the finding that exceptional circumstances existed to enable the suspension of the sentence was, in all of the circumstances, unreasonable.
3. The gravity of the respondent's offending is such that strong reasons of public policy exist to grant the Director permission to appeal, notwithstanding the public interest in ensuring that the respondent is not twice vexed.
4. The respondent is sentenced to five years, four months and 20 days' imprisonment with a non-parole fixed at two years and six months. The order suspending the term of imprisonment is set aside.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Jones [2022] SASCA 105
Case
[2022] SASCA 105
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions appealed to the Full Court of the Supreme Court of South Australia against a sentencing decision made by a single judge. The appeal concerned the respondent, Mr. Jones, who had pleaded guilty to charges of trafficking in methylamphetamine, trafficking in a large commercial quantity of GHB, and possession of heroin. The Director's sole ground of appeal was that the sentencing judge erred in finding exceptional circumstances that justified suspending the respondent's sentence, though the Director did not challenge the length of the sentence itself.
The legal issue before the Full Court was whether the sentencing judge had correctly exercised their discretion in suspending the respondent's custodial sentence. Specifically, the court had to determine if the circumstances presented were sufficiently exceptional to warrant the suspension of a sentence for serious drug trafficking offences, as required by the relevant sentencing legislation.
The Full Court reasoned that the sentencing judge's finding of exceptional circumstances was not supported by the evidence. The court noted that while the respondent had pleaded guilty and had no prior convictions, these factors alone were insufficient to establish exceptional circumstances justifying the suspension of a sentence for offences involving significant quantities of methylamphetamine and GHB, as well as heroin. The court emphasised that the gravity of the offences, particularly the large commercial quantity of GHB, weighed heavily against the imposition of a non-custodial order. The court applied the principle that exceptional circumstances must be truly out of the ordinary and compelling, going beyond the usual considerations taken into account during sentencing.
Consequently, the Full Court allowed the Director's appeal, finding that the sentencing judge had erred in law by suspending the sentence. The court set aside the suspension order and remitted the matter back to the sentencing judge for resentencing.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The Director of Public Prosecutions appeals the decision to suspend the sentence arguing that in all of the circumstances, the sentencing Judge erred in finding that exceptional circumstances existed enlivening the discretion to suspend the sentence. The Director did not challenge the sentence imposed.Background The facts are not in dispute. At about 1.00pm on 14 February 2019, STAR group officers attended The Watson hotel in Walkerville after receiving information that the respondent was present. The police located the respondent in the carpark of the hotel; he was arrested and searched. The respondent was found in possession of two black Nike brand ‘bum-bags’ that contained the following items:·a plastic tub containing 39.0 grams of crystals containing methylamphetamine (Count 1);·a press-seal bag with 0.12 grams of crystals containing methylamphetamine (Count 1);·a press-seal bag with 0.24 grams of crystals containing methylamphetamine (Count 1);·a set of digital scales;·a piece of paper with handwritten names and numbers, a ‘tick-list’;·$2,950 in cash;·knuckledusters;·an ice pipe; and ·two mobile telephones. The respondent’s hotel room was searched. Police located the following items in a toiletries bag in the bathroom:·a press-seal bag with 7.16 grams of crystals containing 5.13 grams of methylamphetamine (Count 1);·a press-seal bag with 1.57 grams of crystals containing methylamphetamine (Count 1);·a plastic container with 6.52 grams of powder containing 2.39 grams of heroin (Count 3);·a plastic resealable bag with 1.20 grams of powder containing 0.40 grams of heroin (Count 3);·seven tablets containing the drug 2CB (uncharged); and·one tablet containing MDMA (uncharged). Police searched a vehicle registered to the female who was sharing the hotel room with the respondent, which was parked adjacent to The Watson hotel. Police located the following items in the vehicle:·a small bottle with 77.9 grams of liquid containing GHB (Count 4);·a drink bottle with 2,150 grams of liquid containing GHB (Count 4);·a large red fuel can with 3,150 grams of liquid containing GHB (Count 4);·10 assorted plastic containers; and ·a home-made taser. The total quantity of substance containing methylamphetamine the subject of Count 1 was 48.09 grams. The total quantity of substance containing heroin the subject of Count 3 was 7.72 grams. The total quantity of GHB the subject of Count 4 was 5357.9 grams. The respondent pleaded guilty to:·one count of trafficking in a controlled substance namely methylamphetamine (maximum penalty imprisonment for 10 years or a fine of $50,000 or both);[1]·one count of trafficking in a large commercial quantity of a controlled substance namely GHB (maximum penalty life imprisonment or a fine of $1,000,000 or both);[2]·possession of a controlled substance namely heroin (maximum penalty two years’ imprisonment or a fine of $2,000 or both).[3][1] Contrary to s 32(3) of the Controlled Substances Act 1984 (SA).[2] Contrary to s 32(1) of the Controlled Substances Act 1984 (SA).[3] Contrary to s 33L(2)(a) of the Controlled Substances Act 1984 (SA).