R v KANGA - [2016] SASCFC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KANGA
[2016] SASCFC 29
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice S Doyle)
21 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appeal against sentence. On 24 September 2015 the appellant pleaded guilty to two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The plea was entered to an Information dated 15 September 2015. The Information on count 1 charged the appellant with trafficking in MDMA, and on count 2 with trafficking in Alpha-PVP. The Information alleged that the offending occurred on 8 April 2015 at Tranmere. The appellant had previously been charged on an Information dated 17 June 2015 with one count of trafficking in a controlled drug, namely, ecstasy, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
The sentencing Judge imposed a sentence of imprisonment of two years and two months after allowing a discount of 30 per cent for the guilty pleas and an additional 10 per cent for the appellant’s assistance to police. He fixed a 12-month non-parole period.
The appellant appealed on the grounds that the sentencing Judge erred in failing to suspend the sentence and that the sentencing Judge proceeded on the erroneous basis that the maximum discount to which the appellant was entitled pursuant to s 10C of the Criminal Law (Sentencing) Act 1988 (SA) was 30 per cent.
Held per the Court, allowing the appeal:
1. An appellate court will not interfere with the sentence passed below merely because it has a different view to the sentencing Judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal Court have the power to quash the sentence passed below (at [6]).
2. The real issue on resentencing is whether factors personal to the appellant should lead the court to suspend that sentence of imprisonment (at [12]).
3. Appeal allowed (at [17]).
Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 18A, s 38(1), referred to.
R v McPhee [2014] SASCFC 107; R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; R v Levy (2015) 122 SASR 445; R v O'Toole [2013] SASCFC 18, considered.

R v KANGA
[2016] SASCFC 29
Court of Criminal Appeal: Blue, Stanley and Doyle JJ
THE COURT:
Introduction

This is an appeal against sentence. On 24 September 2015…

Grounds of appeal

[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.

Continue reading R v KANGA

Details

AGLC: R v Kanga [2016] SASCFC 29
Case: [2016] SASCFC 29
Decision Date: 21 March 2016

CaseChat Overview and Summary

In *R v KANGA*, the Court of Appeal of the Supreme Court of Victoria considered an appeal against a sentence imposed on the appellant for drug trafficking offences. The appeal concerned the appropriate sentence for an offender whose personal circumstances might otherwise suggest a non-custodial outcome, but where the nature of the offending typically warrants a custodial sentence.

The central legal issue before the Court was whether the appellant's personal circumstances, including his youth, remorse, early plea, cooperation with authorities, and positive rehabilitation prospects, constituted a "good reason" to suspend a term of imprisonment, despite the general need for deterrence in drug trafficking cases. The Court was required to balance the principles of general deterrence against the individual circumstances of the offender and the purpose of rehabilitation.

The Court reasoned that while drug trafficking offences generally attract significant penalties due to the need for general deterrence, the specific facts of this case warranted a departure from that general principle. The Court found that the appellant's youth, genuine remorse evidenced by his changed behaviour, early guilty plea, and cooperation with law enforcement, when considered alongside his strong prospects for rehabilitation, collectively provided a "good reason" to suspend the custodial sentence. The Court concluded that a suspended sentence, coupled with a bond and conditions including drug testing, would better achieve both the rehabilitation of the appellant and deterrence from future offending than an immediate custodial term.

Consequently, the Court allowed the appeal, set aside the original sentence, and resentenced the appellant to a term of imprisonment of two years and two months, with a non-parole period of 12 months. This sentence was suspended upon the appellant entering into a recognisance bond for two years, conditional on his good behaviour and compliance with directions from his community corrections officer, including drug testing.

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

Frequently it will be the case that notwithstanding these factors the nature of the offending is such that the need for general deterrence outweighs the personal factors that might incline a court to suspend a term of imprisonment. This is not such a case. The appellant’s youth, his obvious remorse, demonstrated by his changed behaviour, his early plea and his cooperation with law enforcement authorities, when added to the positive prospects for his rehabilitation, lead us to decide that good reason exists in this case to suspend the term of imprisonment that this offending must attract. The prospect of successful rehabilitation and deterrence from further offending would be better achieved by a suspended rather than a custodial term of imprisonment. Conclusion We allow the appeal. We set aside the sentence imposed. We resentence the appellant to a term of imprisonment for two years and two months with a non-parole period of 12 months, suspended upon the appellant entering into a bond to be of good behaviour for two years from 19 February 2016. It is a condition of that bond that the appellant comply with all reasonable directions of his community corrections officer including as to drug testing.

Ratio Decidendi

Legal Principle Established

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