R v Karnage

Case [2019] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KARNAGE

[2019] SASCFC 82

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Hinton)

5 July 2019

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 - GROUNDS FOR INTERFERENCE  - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING

Appeal against sentence.

The appellant pleaded guilty to one count of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The sentencing Judge imposed a head sentence of three years, three months and 12 days, and indicated a non-parole period of two years, seven months and 12 days, after allowing a 30 per cent reduction for the appellant’s plea of guilty (the sentence under appeal). At the time of being sentenced, the appellant had served just over two years of a term of imprisonment for earlier drug offending. This earlier sentence was five and a half years with a non-parole period of three years.

Eighteen months of the sentence under appeal was ordered to be served cumulatively on the earlier sentence, with the balance to be served concurrently, giving rise to a total period of imprisonment of seven years.  The Judge extended the existing non-parole period by 12 months to four years.

The principle grounds of appeal were that the sentence under appeal was manifestly excessive; that the Judge erred in sentencing the appellant on the basis that he was a serious repeat offender; that the Judge failed to address parity considerations; and that the Judge sentenced on the basis of a material error of fact.

Held per Nicholson J (Kelly and Hinton JJ agreeing) dismissing the appeal:

1.      The sentence was not manifestly excessive; the Judge’s starting point was within the range for a proportionate sentence.

2.      In all the circumstances, once the order for partial concurrency of the two sentences was made, the effective sentence under appeal can only be described as moderate.

3. The sentencing Judge did not err in failing to make a declaration that the appellant should not be sentenced as a serious repeat offender pursuant to s 54 of the Sentencing Act 2017 (SA).

4. Neither the parity principle nor s 54(2) of the Sentencing Act 2017 (SA) extends as far as to require the sentencing Judge to undertake a form of comparative analysis of the personal circumstances of co-offenders as part of the exercise undertaken pursuant to s 54(2).

5.      The Judge did not sentence on the basis of a material error of fact.

Controlled Substances Act 1984 (SA) s 4, s 32; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Sentencing Act 2017 (SA) s 3, s 4, s 9, s 10, s 26, s 47,…

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R v Karnage [2019] SASCFC 82
Case
[2019] SASCFC 82
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against sentence brought by the appellant, Karnage, before the Full Court of the Supreme Court of South Australia, constituted by Kelly, Nicholson and Hinton JJ. The appellant had been convicted of three offences of trafficking in a controlled drug and one offence of possessing a prohibited weapon. The primary dispute on appeal related to the sentencing judge's determination of the non-parole period, particularly in light of the appellant's status as a serious repeat offender.

The legal issues before the Court included whether the sentencing judge erred in classifying the appellant as a serious repeat offender under section 54(1) of the Controlled Substances Act 1984 (SA), thereby mandating a minimum four-fifths non-parole period. Relatedly, the Court considered whether the judge had properly applied section 54(2) of the Act, which allows for a lesser non-parole period if exceptional personal circumstances are demonstrated. The Court also had to determine if the judge had correctly calculated and applied the non-parole period in conjunction with the head sentence, given the concurrency of sentences for multiple offences.

The Court noted that the sentencing judge had found the appellant to have insight into his offending and a commitment to rehabilitation, but ultimately concluded that these personal circumstances were not exceptional enough to avoid the serious repeat offender declaration under section 54(2). Consequently, section 54(1) was applied, requiring a minimum four-fifths non-parole period. However, the judge imposed a non-parole period that was only extended by 12 months, which the Court observed appeared to negate the legislative intent of the mandatory minimum. Despite this apparent tension, and without argument from the respondent on the issue, the Court proceeded to consider the appeal on the basis of the judge's orders. The sentencing judge had imposed a head sentence of seven years imprisonment, largely concurrent with an existing sentence, and a non-parole period of four years, commencing from 2 September 2016.

Orders

Orders of the court

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Background

Background to the litigation

It would seem that the Judge felt obliged, in the circumstances, to fix the mandatory minimum four-fifths non-parole period with respect to the sentence under appeal. However, that mandatory minimum non-parole period was negated and, arguably, the policy or legislative intent underlying subsection 54(1) subverted, when the Judge extended the existing non-parole period by only 12 months. There has been no cross-appeal by the respondent and the Court has not heard argument on this issue. However, the Court was advised that the apparent tension between subsection 47(1)(b) and subsection 54(1) in this respect has very recently been canvassed before a differently constituted Court of Criminal Appeal which has reserved its decision. In these circumstances, I do not propose to comment further on this apparent tension. However, I will return to the fact that, ultimately, the Judge dealt with the non-parole period in accordance with subsection 47(1)(b) and not subsection 54(1) later in these reasons. Circumstances of the offending and further background During the five and a half month period between 16 March 2016 and 2 September 2016, the appellant committed three offences of trafficking in a controlled drug, contrary to subsection 32(3) of the Controlled Substances Act 1984 (SA). The maximum penalty with respect to each offence is imprisonment for 10 years or a fine of $50,000 or both. The appellant also committed the offence of possessing a prohibited weapon contrary to subsection 21F(1)(b) of the Summary Offences Act 1953 (SA). The first in time offence of trafficking and the offence of possessing a prohibited weapon were committed on 16 March 2016. The appellant was stopped by police whilst driving and found to be in possession of a little over 2 grams of methylamphetamine. However, his mobile phone records demonstrated that he had been trafficking in that drug. The appellant was also found to have been in possession of a set of knuckledusters (a prohibited weapon).[4] The appellant was released on bail.[4] The defendant was also convicted of driving with methylamphetamine in his blood and fined in the Magistrates Court in October 2016. The second in time offence of trafficking was committed on 31 August 2016 whilst the appellant was on bail for the first in time offence. The second in time offence is the subject of the sentence under appeal. The police had been conducting an undercover operation specifically directed at a person or persons other than the appellant. The appellant became known to the police by virtue of his connections with the target of the undercover operation. The circumstances of the offence committed on 31 August 2016 were described by the Judge who ordered the sentence under appeal in the following terms.[T]he undercover officer spoke with Christiansen about organising a drug transaction. The undercover officer was instructed to attend a residential address in Ridgehaven, which he did. Upon arrival at the residence he spoke with a male who advised him that he would need to follow another male to a hardware store car park on North East Road. At about 5.20 p.m. [the appellant] arrived in that car park accompanied by another male. [The appellant] provided a bag containing crystalline substance to that male who handed it to the undercover officer. In return, the undercover officer handed the male $4,000 cash.That crystalline substance weighed a total of 27.7 g and contained 22.2 g of pure methylamphetamine.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

The Judge reviewed the evidence given by the appellant and by the psychologist who had provided three reports to the court. His Honour then made these findings relevant to the subsection 54(2) issue.You appear to be genuine in your expression of insight into the reasons for your offending and as to your commitment to moving away from your past connections and associations, and remaining abstinent on release and obtaining employment, and ensuring that you are there for your daughters. I accept that you have insight which, together with the courses and the programs you are currently engaged in and your abstinence, will assist you to reduce the likelihood of reoffending.I accept the prosecution submissions as to the nature of the test for determining whether to make a declaration pursuant to s.54(2). Having regard to all of the circumstances, including your evidence and the evidence of Ms Darmenia, I am not satisfied that your personal circumstances are so exceptional as to bring you within s.54(2), and even if I was, given the fact that you are currently serving a five-year, six month term of imprisonment and given your antecedent history, including your imprisonment in 2010 for six counts of importing a marketable quantity of a border controlled precursor, I am not satisfied that it is, in all the circumstances, not appropriate that you be sentenced as a serious repeat offender. In those circumstances, s.54(1) applies.His Honour proceeded to impose the sentence that has earlier been identified. By way of explanation for the Judge’s orders concerning concurrency, his Honour said this.As I have said, you are currently serving a sentence of five-and-a-half years imprisonment with a non-parole period of three years backdated to commence on 2 September 2016. The offending for which you are currently serving a sentence of imprisonment are four counts of trafficking in a controlled drug and other offences which were committed on 6 [sic] March 2016, and for trafficking in a controlled drug committed on 2 September 2016.The 2 September 2016 offending involved 35 g of methylamphetamine. Your current offending occurred between 6 [sic] March 2016 and 2 September 2016. It occurred on 31 August 2016 and also involved a slightly lesser amount of methylamphetamine than the 2 September offending. In these circumstances and in light of the sentencing remarks of [the earlier Judge], it is appropriate to make the sentence largely concurrent with the sentence for your offending of 2 September 2016 and therefore largely concurrent with the head sentence you are currently serving.I direct that your sentence be largely concurrent with the sentence you are serving to make a head sentence of seven years which is taken to have commenced on 2 September 2016. I am required to review the non-parole period of three years and extend it. Given all of the circumstances, including that the sentences have been made largely concurrent, I extend the non-parole period by one year to four years. Both the head sentence of seven years and the non-parole period of four years are to be taken to have commenced on 2 September 2016. I order forfeiture of the drugs and paraphernalia pursuant to s.52E of the Controlled Substances Act.Consideration of the grounds of appeal