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R v Kikidis

R v Kikidis

Case [2012] SASCFC 3 11 January 2012

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KIKIDIS
[2012] SASCFC 3
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Kourakis)
11 January 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
Appeal against sentence – appellant pleaded guilty to two counts of trafficking methylamphetamine contrary to s 32(3) Controlled Substances Act 1984 – second offence committed whilst on bail for first offence – application to withdraw guilty plea to first offence – application to withdraw plea subsequently withdrawn - appellant sentenced to 3 years 7 months imprisonment with a non-parole period of 15 months – no reduction in sentence for guilty plea – sentencing judge fixed lower than usual non-parole period to minimise appellant’s separation from her children.
Whether appellant should have received reduction in sentence for guilty plea to first offence – whether to admit fresh evidence of psychological reports – whether sentencing judge erred in failing to suspend sentence – whether indication given that sentence would be suspended – whether insufficient regard had to effect on appellant’s children.
Held: appeal dismissed – sentencing judge reasonably refused to reduce sentence in light of circumstances surrounding plea of guilt – fresh evidence would not have added anything to material before the sentencing judge – no sentencing indication given that sentence would be suspended – sentencing judge had regard to welfare of children in fixing a low non-parole period.
Criminal Law Consolidation Act 1935 (SA) 353(4), 359; Criminal Law Sentencing Act 1988 (SA) 18A; Controlled Substances Act 1984 (SA) 32(3), 44(2); Correctional Services Act 1982 (SA) 37A, referred to.
Cameron v The Queen (2009) 209 CLR 339; R v C 89 SASR 270; R v Dorning (1981) 27 SASR 481; R v Brain (1999) 74 SASR 92; Spargo v Greatorex (1992) 59 SASR 1; R v Cramp (2010) 106 SASR 304; R v Nicholls [2011] SASCFC 81; R v Taylor [1958] VR 285; R v Buckskin [2010] SASC 138; R v Wilton (1981) 28 SASR 362; R v Wirth (1976) 14 SASR 291; Hoare v The Queen (1989) 167 CLR 348; R v Symonds [1999] SASC 217; R v Copeland No 2 (2010) 108 SASR 398, considered.

R v KIKIDIS
[2012] SASCFC 3
Court or Criminal Appeal: Doyle CJ, Vanstone and Kourakis JJ

DOYLE CJ: I agree with the reasons given by Kourakis J. For those reasons I would refuse permission to appeal on the grounds on which the single Judge refused permission to appeal, the application for permission being renewed before this Court. For those same reasons I…

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.

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Details

AGLC: R v Kikidis [2012] SASCFC 3
Case: [2012] SASCFC 3
Decision Date: 11 January 2012

CaseChat Overview and Summary

The appeal in *R v Kikidis* concerned a challenge to the sentence imposed on the appellant, who had pleaded guilty to two counts of trafficking methylamphetamine, contrary to section 32(3) of the *Controlled Substances Act 1984*. The second offence was committed while the appellant was on bail for the first. An initial application to withdraw the guilty plea to the first offence was subsequently withdrawn. The appellant was sentenced to 3 years and 7 months imprisonment, with a non-parole period of 15 months, and received no reduction in sentence for her guilty plea.

The central legal issues before the court were whether the appellant should have received a reduction in her sentence for pleading guilty to the first offence, whether fresh psychological evidence should be admitted on appeal, whether the sentencing judge erred in failing to suspend the sentence, whether an indication had been given that the sentence would be suspended, and whether insufficient regard had been paid to the impact of the sentence on the appellant's children.

The Full Court of the Supreme Court of South Australia dismissed the appeal. The court reasoned that the sentencing judge had reasonably refused to reduce the sentence, given the circumstances surrounding the appellant's plea of guilt. The fresh evidence sought to be admitted was deemed unlikely to have added anything material to the information already before the sentencing judge. Furthermore, the court found that no indication had been given by the sentencing judge that the sentence would be suspended. Finally, the court concluded that the sentencing judge had indeed taken the welfare of the appellant's children into account by fixing a comparatively low non-parole period.

Orders