R v Keut - [2021] SASCA 39

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v KEUT
[2021] SASCA 39
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
21 May 2021

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING MDMA (ECSTASY)
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
Application by the South Australian Director of Public Prosecutions for permission to appeal against sentence.
The respondent pleaded guilty to trafficking a controlled drug (MDMA), contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The respondent accepted that the offending was not isolated and that there was a background of some limited trading to support his drug habit. The Crown case was strong, in that it included the discovery of various indicia of trafficking in addition to the evidence of text messages consistent with the respondent being involved in the sale of MDMA.
The sentencing judge fixed a starting point for the head sentence of two years. He reduced that by 25 per cent for the guilty plea and gave a further reduction of seven days to account for time spent in custody. This resulted in a head sentence of one year, five months and 24 days. He fixed a non-parole period of 10 months. The sentence was backdated to commence on 11 January 2021.
The primary issue on appeal was whether the head sentence and non-parole period imposed are manifestly inadequate.
Held (by the Court), granting permission to appeal and allowing the appeal:
1. The respondent’s circumstances were not such as to attract a sentence outside of the range articulated in R v Young. The sentence is manifestly inadequate.
2. The sentence is set aside.
3. From a starting point of four years, a head sentence of two years, 11 months and 23 days is imposed, after a 25 per cent discount for the guilty plea and reductions for time spent in custody. The sentence is to operate from 11 January 2021. A non-parole period of one year and six months is imposed.
Controlled Substances Act 1984 (SA) ss 32(3), 44; Sentencing Act 2017 (SA) s 40(3); Criminal Procedure Act 1921 (SA) s 110(3), referred to.
R v Young (2016) 126 SASR 41, applied.
Everett v The Queen (1994) 181 CLR 295; R v Buttigieg (2020) 352 FLR 170; R v Rombola [2020] SASCFC 76; R v Maroroa [2020] SASCFC 68; R v Nemer (2003) 87 SASR 1; R v Osenkowski (1982) 30 SASR 212, considered.

R v KEUT
[2021] SASCA 39

Court of Appeal – Criminal: Kelly P, Doyle and Bleby JJA

THE COURT: This is an application by the Director of Public Prosecutions for permission to appeal against the sentence imposed upon the respondent.
The primary issue raised is whether the starting point, ultimate head sentence and non-parole period imposed by the sentencing judge…

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 Keut

Details

AGLC: R v Keut [2021] SASCA 39
Case: [2021] SASCA 39
Decision Date: 21 May 2021

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against a sentence imposed on the respondent, Keut, by a lower court. The appeal concerned the adequacy of the sentence for drug trafficking offences involving MDMA (ecstasy).

The central legal issue before the Court was whether the sentence imposed on the respondent was manifestly inadequate, and if so, what a just sentence should be. This involved considering the respondent's circumstances, his antecedent history, and relevant sentencing principles, particularly those articulated in *R v Young*.

The Court found that the respondent's circumstances did not warrant a sentence outside the range established in *R v Young*, concluding that the original sentence was manifestly inadequate. The Court reasoned that the respondent's personal history, while presenting some challenges, did not mitigate the seriousness of the drug trafficking offences to the extent that the original sentence reflected. The Court set aside the original sentence.

The Court imposed a head sentence of two years, 11 months, and 23 days, with a 25 per cent discount for the guilty plea and reductions for time already spent in custody. This sentence was to operate from 11 January 2021, and a non-parole period of one year and six months was fixed.

Orders

Orders of the court

Held (by the Court), granting permission to appeal and allowing the appeal:

1. The respondent’s circumstances were not such as to attract a sentence outside of the range articulated in R v Young. The sentence is manifestly inadequate.

2. The sentence is set aside.

3. From a starting point of four years, a head sentence of two years, 11 months and 23 days is imposed, after a 25 per cent discount for the guilty plea and reductions for time spent in custody. The sentence is to operate from 11 January 2021. A non-parole period of one year and six months is imposed.

Background

Background to the litigation

The associated question arising is whether the Court should grant the Director permission to appeal in any event.Factual background On 29 May 2020 at about 4:45 am, police observed and ran checks on a Toyota sedan travelling south on Old Belair Road, Belair. The checks revealed the respondent to be the registered owner of the vehicle and that he was disqualified from holding a driver’s licence. Police stopped the vehicle. Following their initial engagement with the respondent, they arrested him for driving disqualified and providing false details. The police located a glass ice pipe in the left pocket of the respondent’s pants and a mobile phone in the other pocket. They found another ice pipe in the driver’s door and a backpack in the front passenger foot well. The respondent confirmed the backpack belonged to him. Inside the backpack they found:·a press seal bag with 13.1 grams of rock material (containing 10.1 grams of pure MDMA);·a small bud of suspected cannabis;·three plastic sandwich bags with a total of 71.2 grams of dry female cannabis head in a pocket at the rear of the backpack;·a set of digital scales;·a mobile phone; and·a glasses case containing an ice pipe The police further found in the car a tub containing a number of phone parts, together with three intact mobile phones, a small plastic bag of suspected cannabis, a small bag with suspected remnants of methamphetamine, a small bottle containing a liquid substance suspected to be GHB and an international Chinese driver’s licence. The iPhone in the respondent’s pants pocket was analysed and found to contain text messages from January 2019 to May 2020 which were consistent with the respondent being involved in the sale of MDMA. The respondent was arrested and remanded in custody on 29 May 2020. He remained in custody until 5 June 2020, when he was released on home detention bail. He returned to custody on 5 August 2020 after he was sentenced to imprisonment for eight days for failing to comply with a bail agreement, having returned a positive urinalysis for a variety of drugs. On 24 September 2020, he was sentenced to five months’ imprisonment for a number of driving and dishonesty offences. That sentence was backdated to 12 August 2020. The respondent was born in 1979 in Cambodia. He came to Australia in 1982 at the age of three when he fled Cambodia with his mother and two older siblings. His sister had disappeared during the reign of the Khmer Rouge in the late 1970s and his father had died in a plane crash. He attended high school until Year 10. From the age of 14, he was effectively responsible for caring for himself and in 1996 commenced work as a kitchen hand. In 1999, he became employed as a die caster, in which occupation he worked for 10 years. His counsel had submitted that once he was released from custody, there was employment available to him as a trade assistant or a steel fixer and that he was confident of obtaining employment on his release. The respondent has an antecedent history dating back to 1995. This includes a considerable number of driving related offences, estreatment of bail, failing to comply with bail agreement, one count of cultivating up to a prescribed number of cannabis plants, possession of prescribed equipment, possession of a controlled drug (not cannabis) and possessing equipment to use with a controlled drug (not cannabis).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.