R v Kennedy - [2012] SASCFC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KENNEDY
[2012] SASCFC 13
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Anderson)
2 March 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - CROWN'S CONDUCT AT SENTENCE HEARING
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Crown appeal against sentence - defendant pleaded guilty to offence of trafficking in a controlled drug - Judge fixed a notional head sentence of two years and four months imprisonment, reduced by four months on account of time spent in custody - against the head sentence of two years, a non-parole period of 12 months was fixed - sentence suspended on the defendant's entry into a two year good behaviour bond, supervised for 18 months - where defendant had extensive criminal history - where the sentencing Judge during submissions raised the possibility that he may consider it appropriate to suspend the term of imprisonment, and would receive any written submissions on that topic that the Director wished to present - where no opposing submission was made by the Director on the topic - where on appeal Director complains about suspension of sentence - where other changes of position by the Director between that advanced during sentencing submissions and that advanced on appeal - whether sentence imposed was manifestly inadequate - whether Judge in error in exercising discretion to suspend the term of imprisonment.
Held: permission to appeal refused.
(Per Doyle CJ): head sentence and non-parole period too low, reflecting an error in the sentencing process - Judge in error in exercising discretion to suspend the sentence - the fact that the inadequacy of the sentence is not so great as to undermine confidence in the sentencing process and the fact that the Director did not oppose order of suspension, combine to give good reason to decline to grant permission to appeal.
(Per Gray J): the Judge was incorrect in his assessment of the seriousness of the defendant's prior drug offending - the sentence imposed is merciful, but not so low as to warrant a grant of permission to appeal - Director's position at the time of sentencing as to the question of suspension counts heavily against a grant of permission to appeal.
(Per Anderson J): would grant permission to appeal - would not allow the appeal - sentence so low as to undermine public confidence - were it not for the Director's lack of opposition and the fact that defendant has already been released on the suspended sentence, would have allowed the appeal both as to sentence and suspension.
Criminal Law Consolidation Act 1935 (SA) s 340; Criminal Law (Sentencing) Act 1988 (SA); Controlled Substances Act 1984 (SA) s 32(3), referred to.
R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Dinsdale v The Queen (2000) 202 CLR 321; R v Marikar [2010] SASCFC 36; R v Drewett (1983) 35 SASR 344; R v Mangelsdorf (1995) 66 SASR 60; R v Harkin (2011) 109 SASR 334; R v Abdulla (2011) 109 SASR 258; R v Wilton (1981) 28 SASR 362; R v Tait & Bartley (1979) 46 FLR 386, considered.

R v KENNEDY
[2012] SASCFC 13
Court of Criminal Appeal: Doyle CJ, Gray and Anderson JJ

DOYLE CJ. I have read the reasons of Gray J. I adopt his summary of the facts, and of the relevant principles.
In my opinion the head sentence and non-parole period that the Judge fixed were too low, and are so low as to be indicative of error.
First, the offence is a serious one. It attracts a maximum penalty of imprisonment for 10 years or a fine of $50,000 or both. It is offending of a prevalent kind. It is offending of a kind that represents a serious social problem.
Mr Kennedy has a lengthy record of offending. He first appeared before court as an adult offender in 1989. Since then, on my count he has been sentenced on 36 occasions, often for multiple offences. On a number of occasions the offences involved unlawful conduct in relation to drugs, although it is fair to say that most of his offences are not particularly serious. However, in 1998 he was sentenced to two years’ imprisonment for the offence of possessing amphetamines for sale. Mr Kennedy has previously had the benefit of a bond and of a suspended sentence. He has previously served a sentence of imprisonment. All in all, he has a bad record and a record that suggests that he is not a person in relation to whom it is appropriate to impose a further suspended sentence.
His record indicates that individual deterrence had to be a significant factor in arriving at an appropriate sentence. There could be no reduction in the sentence imposed on him on the basis of previous good character.
The sentencing Judge accepted that Mr Kennedy’s plea of guilty was “good evidence of your genuine contrition and remorse.” The Judge noted:
Your counsel has submitted that the time you have spent in custody together with your guilty plea and your commitment to rehabilitation and family support, provide a basis for suspending the balance of any sentence of imprisonment upon you entering into a bond to be of good behaviour and comply with certain conditions.
The Judge had the advantage of seeing Mr Kennedy in court, but to my mind there was nothing, apart from the submission itself, to support the finding that counsel’s submission was correct. Moreover, in June 2009 Mr Kennedy had been sentenced in the District Court for the offence of possessing methylamphetamine. The maximum penalty for that offence was a fine of $2,000 or imprisonment for two years or both. On that occasion the sentencing Judge said:
I note the submissions of the prosecution, in particular, the amount of the drug involved and the fact that you do have quite a lengthy record. I accept that you were a drug user at the time of the offence. Most importantly, you currently own and are the manager of two businesses, the predominant business selling marital aids. You support a partner and a 18 month old child. You own your own home. Significantly, you have ceased taking drugs in the context of this relationship. I accept that you have attempted to move away from your previous lifestyle. There was no commercial element to your offence.
Having regard to the change in your circumstances and the fact that you have responsibility for a business, that you own your own home and that you have rehabilitated yourself, I consider it appropriate to deal with you by way of a fine.
The submissions made to the District Court Judge on that occasion closely resemble the submissions made to the District Court Judge in the present case. At the least, one has to find that the offence now under consideration represented a failure to make good an assurance about two years earlier that Mr Kennedy had rehabilitated himself. With all respect to the sentencing Judge, I consider that there was no real basis for accepting that Mr Kennedy was genuinely contrite and remorseful, and genuinely committed to his own rehabilitation. This conclusion affects the fixing of the head sentence, and the decision to suspend the sentence.
I agree with Gray J that the reduction for the plea of guilty was a very generous one. In fact, in my opinion, it was erroneous to allow such a substantial reduction. Mr Kennedy did not appear when his trial was listed. He was arrested, but still did not indicate a plea of guilty for another three months.
All in all, I consider that the head sentence and non-parole period are too low, and reflect an error in the sentencing process. However, I agree with Gray J that the inadequacy is not so great as to undermine public confidence in the sentencing process. This is a point relevant to the decision whether or not to grant permission to appeal.
I consider that the decision to suspend the sentence was erroneous. Mr Kennedy’s record of offending, his failure to make good the previous claim to be rehabilitated, and the seriousness of the offending, in combination are a serious obstacle to the finding of good cause to suspend the sentence.
I agree with Gray J that the District Court Judge was entitled to conclude, as he did, that the Director of Public Prosecutions did not argue that a decision to suspend the sentence was not a proper exercise of the power to do so, and would be an error.
But it remained the duty of the District Court Judge to decide for himself whether or not there was good reason to suspend the sentence. In R v Malvaso (1989) 50 SASR 503 King CJ said at 509:
I have referred to the role of the Attorney-General in the administration of justice because it is important to distinguish between the role of the Attorney-General and the role of the courts in relation to sentencing. The Attorney-General and those who act in his name in relation to criminal prosecutions and appeals may for convenience be compendiously referred to as “the prosecution”. The prosecution has a role in the sentencing process which consists of presenting the facts to the Court and of making any submissions which it thinks proper on the question of what sentence ought to be imposed. The decision as to what sentence is to be imposed, is however, entirely a matter for the Court which may, of course, be influenced by the arguments that are placed before it by the prosecution as well as by the defence, but must never be influenced by the attitudes or opinions as distinct from the arguments of either. In particular it must be stressed that the attitude of the prosecution towards a particular proposed course of action in relation to sentence is, as such, irrelevant; the view of the prosecution has no greater weight than the arguments advanced in support of that view.
Cox J and O’Loughlin J agreed with his reasons at 511 and 512. An appeal against that decision was allowed, but on grounds that do not undermine the observations of King CJ: Malvaso v The Queen (1989) 168 CLR 227. In the course of their reasons Mason CJ, Brennan and Gaudron JJ said at 233, with reference to the circumstances of that case:
That is not to say that the agreement between the prosecuting authorities and the applicant affected the duty either of the sentencing judge or of the Court of Criminal Appeal (if leave to appeal were given) to impose the sentence which appeared appropriate to the Court in the circumstances. The Court’s sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea-bargaining agreement. Nor can such an agreement bind the Attorney-General not to exercise his statutory power to seek leave to appeal and to appeal in any case where, in his opinion, the proper administration of criminal justice requires that power to be exercised. Nevertheless, if an agreement between the prosecuting authorities and an offender has affected the course of proceedings before the sentencing judge and the course of proceedings is relevant to the order which should be made on the Attorney-General’s application for leave to appeal, the Court may have regard to those circumstances in determining whether leave to appeal should be given. In this case, the Court did not consider that question and no order giving leave to appeal was made.
Nevertheless, as King CJ noted in R v Wilton (1981) 28 SASR 362 at 368, and as the majority of the High Court observed in Everett v The Queen (1994) 181 CLR 295 (in each case the relevant passages are set out in the reasons of Gray J), the circumstance that the Director did not oppose the decision to suspend the sentence is a material matter in deciding whether to grant permission to appeal, if ultimately the sentencing Judge decided to release the offender with the benefit of a suspended sentence.
In the present case the sentence, while erroneous, is not so low as to undermine public confidence in the sentencing process. That, and the circumstance that the Director did not oppose the making of an order that led to Mr Kennedy being released subject to a suspended sentence, combine to give good reason to decline to grant permission to appeal, although error has occurred.
For those reasons I would join with Gray J in ordering that permission to appeal be refused.
GRAY J
This is an application by the Director of Public Prosecutions for permission to appeal against sentence.
Introduction
Paul Stephen Kennedy, the defendant and respondent, pleaded guilty in the District Court to the offence of trafficking in a controlled drug contrary to section 32(3) of the Controlled Substances Act 1984 (SA). He faced a maximum penalty for the offence of a fine of $50,000.00 or imprisonment for ten years or both.
The defendant was sentenced on 28 November 2011. The Judge, having made a reduction of eight months on account of the defendant’s plea of guilty and contrition and remorse, fixed a notional head sentence of two years and four months imprisonment. He further reduced this term by four months on account of time spent in custody to a term of imprisonment of two years. A non-parole period of 12 months was fixed. The Judge was satisfied that good reason existed to suspend the sentence and, following the defendant’s entry into a two year bond supervised for 18 months, the defendant’s sentence was suspended.
On 17 November 2010, during a search of the defendant’s home, police discovered a glass pipe used for smoking methylamphetamine. The defendant then produced from his clothing a quantity of methylamphetamine paste. The total weight of the paste was 52.5 grams with 29.4 grams being the pure methylamphetamine weight.
The Judge noted that the agreed factual basis underlying the plea was that the defendant was in possession of the methylamphetamine for his own use, but that he also intended to supply some to like-minded friends and to sell some in order to defray the cost and to provide funds to meet the cost of his ongoing addiction. The Judge took the view that the commercial aspect of the offence occurred to enable the defendant to sustain his own use of the drug.
The Judge in his remarks recounted the detail of the defendant’s personal antecedents. He had for a period been successful in operating a retail business in the Mount Barker area. However, the business declined leading to financial difficulty and, at or about the same time, family relationship problems developed. In turn, the defendant came to use methylamphetamine at this time of personal and financial crisis. At or about this time, the defendant’s problems were compounded when associates violently assaulted him as a consequence of debt. The defendant sustained a broken leg and arm together with the loss of many household possessions.
The Judge noted that since being in custody the defendant had abstained from the use of methylamphetamine having worked through the withdrawal process. As a result of the defendant being in custody pending sentence, his house property is to be sold and it is hoped that the proceeds realised will be sufficient to meet the debt on the property. The Judge was informed that the defendant’s partner with whom he has a young child is fully supportive of the defendant. The Judge was also informed that the defendant was determined to start afresh, had broken with his former associates and was prepared to undertake a structured drug rehabilitation program as part of his overall rehabilitation.
The defendant has a criminal record extending to 1988 when he was before the then Children’s Court. The Judge noted the recurring theme to his previous convictions relating to offensive weapons, common assaults, some firearm matters and more recently, convictions concerning the abuse of prescription drugs. The Judge indicated that he considered the offence the subject of this application to be the defendant’s most serious drug offence and consistent with his declining lifestyle.
Notwithstanding the defendant’s criminal antecedents, the Judge took the view that there was good evidence of the defendant’s contrition and remorse and he considered that the time spent in custody and the defendant’s prospects for rehabilitation provided good reason to suspend any sentence of imprisonment that would be imposed.
The Judge noted in his remarks that the prosecution had accepted that there was material before the Court capable of providing good reason to suspend the sentence of imprisonment.
The Appeal
The Director on the application to this Court submitted that the Judge erred in imposing a sentence that was in all the circumstances manifestly inadequate both in respect of the head sentence and the non-parole period having regard to the defendant’s antecedent history and the seriousness of the offending. It was further submitted that the Judge erred in suspending the term of imprisonment.
Permission to Appeal
The Director will be granted permission to appeal against sentence if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or, if a sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”.[1] An error in the sentencing process may be inferred from a result that is manifestly unreasonable or plainly wrong, or by identifying the adoption by a sentencing Judge of an incorrect principle, the giving of weight to some extraneous or irrelevant matter, the failure to give weight to some material considerations, or, the making of a mistake as to the facts.[2]
[1] R v Nemer (2003) 87 SASR 168, [22]-[24]; R v Osenkowski (1982) 30 SASR 212, 212-213; R v Harkin (2011) 109 SASR 334, [19]; R v Abdulla (2011) 109 SASR 258, [9]. See further and generally Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Dinsdale v The Queen (2000) 202 CLR 321.
[2] Dinsdale v The Queen (2000) 202 CLR 321, 339-340.
On a prosecution appeal against a sentence, the court may take into account the consequence to an offender of reversing a decision to suspend a term of imprisonment. The consequences are to be balanced against the public interest in the proper administration of justice. However, hardship associated with such a reversal has commonly been taken into account by reference to the principle of double jeopardy.
Permission to appeal should only be granted to the prosecution in rare and exceptional circumstances.[3]
[3] Everett v The Queen (1994) 181 CLR 295.
The principle of double jeopardy has historically been taken into account by an appeal court in all stages of the appeal process in relation to an appeal against sentence by the Director. That is, double jeopardy has been taken into account when assessing whether permission to appeal should be granted;[4] whether an appeal should be allowed;[5] and, when considering the sentence to be imposed if that imposed at first instance is quashed, and the court is resentencing the offender.[6] It was of most significance where a suspended sentence was imposed and the appeal was against the decision to suspend.[7]
[4]    R v Marikar [2010] SASCFC 36, [33]-[37]; R v Nemer (2003) 87 SASR 168, [26]; Everett v The Queen (1994) 181 CLR 295, 299; Malvaso v The Queen (1989) 168 CLR 227, 234.
[5]    R v Drewett (1983) 35 SASR 344, 346.
[6]    R v Mangelsdorf (1995) 66 SASR 60, 71; Dinsdale v The Queen (2000) 202 CLR 321, [62]; R v Elliott (2001) 121 A Crim R 254, [96].
[7]    R v Nemer (2003) 87 SASR 168, [26]-[31].

However, Parliament has imposed restrictions upon the above principles which apply to this appeal. Section 340 of the Criminal Law Consolidation Act provides:
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—
(a)     impose the sentence that should have been imposed in the first instance; and
(b)     order that the sentence—
(i)will be taken to have come into effect on a date before the date of the order; or
(ii)    will take effect on a date on or after the date of the order.
While the rule of law known as double jeopardy remains relevant to the granting of permission to appeal, if permission to appeal is granted, section 340 precludes the court from having regard to double jeopardy when re-sentencing.[8] The section removes from consideration any rule of law enabling a court to impose, when re-sentencing, a sentence other than the sentence which the court thinks ought to have been imposed in the first instance.[9]   It removes the court’s ability to temper a sentence in recognition of the element of double jeopardy involved in twice standing for sentence.[10]
[8]    R v Harkin (2011) 109 SASR 334, [35]; R v Abdulla (2011) 109 SASR 258, [23].
[9]    R v Harkin (2011) 109 SASR 334, [36]; R v Abdulla (2011) 109 SASR 258, [24].
[10] R v Harkin (2011) 109 SASR 334, [37]; R v Abdulla (2011) 109 SASR 258, [25].
Change of Position by the Director
Counsel appearing for the Director did not indicate any opposition to the Judge suspending the term of imprisonment to be imposed. When the issue was first raised by the sentencing Judge, counsel indicated that it was a matter on which instructions would be taken. Later during the course of submissions, the Judge specifically raised the possibility that he may consider it appropriate to suspend the term of imprisonment that he intended to impose. The Judge indicated that he would receive such written submissions as the Director may wish to present on the topic. No submission, written or otherwise, was forthcoming. As noted above, the Judge addressed this issue in his sentencing remarks by observing:
Your counsel has submitted that the time you have spent in custody together with your guilty plea and your commitment to rehabilitation and family support, provide a basis for suspending the balance of any sentence of imprisonment upon you entering into a bond to be of good behaviour and comply with certain conditions.
The prosecution has accepted that there is material before me capable of supporting the exercise of my discretion to suspend the sentence on account of those factors, particularly the period you have already spent in custody.
Further, the Judge provided a written report to this Court. In that report, the Judge details how the matter had proceeded before him. On 10 November 2011, counsel for the defendant indicated to the Court that the defendant would plead guilty to one count of trafficking on an agreed factual basis. Counsel for the Director confirmed the agreed factual basis. The defendant was then arraigned and pleaded guilty. Counsel for the defendant indicated a desire to proceed immediately with submissions in mitigation. The Judge asked counsel for the Director if she was in a position to proceed with submissions and counsel responded with the following:
Your Honour I don’t have instructions on attitude to penalty in terms of suspension or not. I am happy to proceed either way and then provide that information but your Honour will make a decision in any case.
Defence counsel proceeded with submissions. The Judge in his report says the following about what happened next:
… Following those submissions I heard from counsel for the prosecution. I also told her that she could communicate any additional submissions to me either in writing or, if necessary, I would call the matter back on in court for further submissions (transcript page 10). During her submissions counsel for the DPP adopted a moderate and sensible tone. She did not suggest that on the material before the court it would be inappropriate to exercise the discretion to suspend the sentence.
Prior to adjourning the matter I expressed my inclination to impose a sentence of imprisonment and suspend it upon specific conditions requiring active engagement in a rehabilitation program (transcript page 13). I then adjourned the matter for sentence to Monday 28 November 2011. Counsel for the DPP had liberty to supply further submissions either in writing or in court prior to that date.
On Friday 25 November 2011 counsel for the DPP exchanged email correspondence with my Judicial Support Officer regarding the timing of the upcoming sentencing on Monday 28 November. Counsel did not make any further written submissions regarding sentencing nor did she make any request that time be allocate [sic] for further oral submissions. I therefore inferred that the DPP did not wish to make any further submissions and in particular did not seek to make any submissions contrary to the intimation about sentence I had given at the end of the hearing on 10 November.
Finally, the Judge reports:
Ground 2 of the DPP appeal asserts an error in my sentencing remarks when I stated that “The prosecution has accepted that there is material before me capable of supporting the exercise of my discretion to suspend the sentence on account of those factors, particularly the period you have already spent in custody.”
I inferred that the prosecution accepted that there was material before me capable of supporting the discretion to suspend the sentence because of the guilty plea, the submissions made by its counsel and the fact that it did not put forward any argument or material to suggest that the discretion to suspend was not open on the information before the court.
This situation was addressed by this Court in Wilton.[11] Counsel for the Director did not at the time of sentencing submissions raise any objection to the suspension of the sentence, but the Director subsequently appealed against the order for suspension. In that decision, King CJ first, setting out the observations of the Full Court of the Federal Court in the decision in Tait and Bartley,[12] addressed a Crown appeal against sentence:[13]
…An appeal against sentence by the prosecution, moreover, raises considerations which are not present in an appeal by a convicted person. These are expressed by the Full Court of the Federal Court of Australia—General Division in Reg. v. Tait and Bartley in a passage with which I respectfully agree:
A Crown appeal puts in jeopardy "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal" (per Isaacs J, Whittaker v. R.) … The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court.
It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown's presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error. The Crown has been said not to be concerned with sentence (see, e.g. Lawrence J. in Paprika Ltd. v. Board of Trade), but when a statutory right of appeal is conferred upon the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissions as to sentence fairly and in an even-handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it. If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence is conferred. The Crown is under a duty to assist the court to avoid appealable error. The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal. It would be unjust to a defendant, whose freedom is in jeopardy for the second time, to consider on appeal as case made against him on a new basis—a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court. As McClemens C.J. at C.L. said in R. v. Jacombe, delivering the judgment of the New South Wales Court of Criminal Appeal (19 December 1974, unreported): " ... we would not seem to encourage any system which meant that cases were brought here under s 5D of the Criminal Appeal Act on bases which were not argued before the judge below."
Although the existence of error is the common ground which entitles the appellate court to intervene in appeals by the Crown and by a defendant (cf. R. v. Butler; R. v. Liekefett; Ex parte Attorney-General), there would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error, or if the defendant were unduly prejudiced in meeting for the first time on appeal the true case against him.
[Footnotes omitted.]
[11] R vWilton (1981) 28 SASR 362.
[12] R v Tait and Bartley (1979) 46 FLR 386.
[13] R vWilton (1981) 28 SASR 362, 363-364.
Later in his reasons, King CJ considered whether the Director, in the circumstances of the particular case, was entitled to contend on appeal that the sentence should have been suspended in circumstances where that contention had not been made in the Court below. In this respect, his Honour relevantly observed:[14]
… In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge's discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General.
[Footnote omitted.]
[14] R vWilton (1981) 28 SASR 362, 368.
King CJ concluded that the appeal should be allowed and the Judge's order varied by setting aside that part of it which suspended the sentence of imprisonment. Mitchell and Williams JJ agreed.
In Everett,[15] Brennan, Deane, Dawson and Gummow JJ approved and adopted the observations of King CJ in Wilton. In particular, their Honours referred to the observations of King CJ set out above. Their Honours concluded that those observations should “be applied to an application by the Crown for leave to appeal against such an order if it appears that the Crown was on notice that there was a real possibility that such an order might be made but refrained from submitting that it would be inappropriate and not within a proper exercise of the sentencing discretion”.[16]
[15] Everett v The Queen (1994) 181 CLR 295.
[16] Everett v The Queen (1994) 181 CLR 295, 303.
Brennan, Deane, Dawson and Gaudron JJ further observed:[17]
… Their effect in those circumstances is that, generally speaking, leave to appeal against sentence should not be granted to the Attorney-General where the substantial purpose of an appeal would be to attack the order suspending the sentence or should be granted in a restricted form to exclude such an attack where there are other grounds which properly attract a grant of leave.
Their effect in those circumstances is that, generally speaking, leave to appeal against sentence should not be granted to the Attorney-General where the substantial purpose of an appeal would be to attack the order suspending the sentence or should be granted in a restricted form to exclude such an attack where there are other grounds which properly attract a grant of leave.
[17] Everett v The Queen (1994) 181 CLR 295, 303.
McHugh J agreed that the appeal should be allowed. In reaching that conclusion, his Honour relevantly observed:[18]
It is well established that, in the exercise of its discretion to grant leave to appeal against a sentence, a court of criminal appeal must take into account the attitude of the Crown in the sentencing court. Even when it appears that the sentencing judge has erred in a fundamental way that may affect the administration of justice, fairness to the sentenced person requires that the Crown's concurrence with, or failure to object to, a proposed course of action by the sentencing judge must be weighed in the exercise of the discretion. This is particularly so when the convicted person has been given a non-custodial sentence. Private litigants who appeal against judgments and orders are not usually allowed to withdraw concessions made or concurrences expressed in the course of litigation. As a general rule, neither should the Crown be permitted to depart from a course of action that may have induced the sentencing judge to take the course that he or she did.
In the present case, the Crown was aware that the sentencing judge was contemplating suspending the sentences of imprisonment. But the Crown did not suggest that it would be an error for him to do so. As the judgment of the other members of this Court demonstrates, neither of the majority judges in the Court of Criminal Appeal gave proper weight to the attitude of the Crown before the learned sentencing judge. In those circumstances, the exercise of the discretion to grant leave to the Crown was vitiated by their Honours' errors and the appropriate course for this Court was to deal with the matter itself.
[Footnote omitted.]
[18] Everett v The Queen (1994) 181 CLR 295, 307-308.
I turn to three further matters. Before the sentencing Judge, the Director submitted that the defendant’s prior drug history was not serious “in the legal sense”. On the appeal, the Director submitted to the contrary – that the defendant’s antecedents were serious and that the sentencing Judge was in error in “skirt[ing] over” what were serious antecedents.
Second, before the sentencing Judge the Director accepted that there was an explanation for the defendant having not attended his trial and that in the circumstances, his plea, although late, could justify a substantial reduction. On the appeal, the Director suggested that the plea was late and that having regard to the defendant’s non-attendance at his trial, such a substantial reduction was not justified.
Third, before the sentencing Judge, no challenge was made to the submissions put on behalf of the defendant concerning his relationship with his partner, his responsibilities towards his young daughter, his prospects for employment and his prospects for rehabilitation. On the appeal, the Director submitted that there was scant evidence to justify the Judge’s conclusions on these topics and that the conclusions drawn by the Judge could not be justified.
To my mind, the Judge and counsel appearing for the Director before the Judge were incorrect in their assessment of the seriousness of the defendant’s prior drug offending. That offending had continued over some years and had led to terms of immediate imprisonment. That prior conduct, in the ordinary course, would preclude or substantially preclude otherwise leniency that might be afforded to the defendant. I also consider that the reduction of eight months on account of the plea, contrition and remorse was overly generous. However, in respect of the third complaint, the Judge was entitled to act and rely on the submissions made on the part of the defendant.
The substance of the Director’s complaint was that trafficking in methylamphetamine is a serious offence and that a head sentence of two years imprisonment with a non-parole period of 12 months represented a failure to maintain adequate standards of punishment. It is to be accepted that the sentence imposed, given the defendant’s antecedents, was merciful. Bearing in mind the time spent in custody, the head sentence should be treated as being for a term of two years and four months and not two years as suggested by the prosecution. Further, it is to be recognised that but for the plea of guilty, contrition and remorse, the starting point of three years imprisonment would have been imposed. I do not consider the sentence to be so low as to warrant a grant of permission to appeal. Given the defendant’s personal circumstances, notwithstanding his criminal antecedents, I do not consider that the sentence would shock the public conscience.
Finally, the Director contended that the Judge erred in suspending the term of imprisonment. As noted by the Judge, the Director accepted at the time of sentencing that circumstances existed that could give rise to good reason to suspend. This factor alone counts heavily against any grant of permission. Further, the defendant has now been released into the community and is apparently attending to the terms of his good behaviour bond. His rehabilitation is progressing. If he breaches the terms of his bond over the two year period, he is liable to face the lifting of the suspension of the sentence.
Conclusion
I would refuse permission to appeal.
ANDERSON J. I would grant permission to appeal in this matter. I consider the sentence is so low as to undermine public confidence. I agree with the reasons of Doyle CJ as to why the head sentence and non-parole periods are too low.
I also agree with the reasons of Doyle CJ as to the decision of the sentencing judge to suspend the sentence.
I generally agree with the reasons of Gray J as to the Director’s attitude.
Were it not for the Director’s lack of opposition and the fact that Mr Kennedy was released on the suspended sentence I would have allowed the appeal both on sentence and as to the suspension of that sentence.