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…