(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice David)
28 March 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - GENERALLY
Crown appeal against sentence – the defendant pleaded guilty to trafficking in a large commercial quantity of methylamphetamine – the defendant acted as a “middle man”, brokering the sale of 9991 tablets – the defendant was sentenced to three years and nine months’ imprisonment, with a non-parole period of 20 months, suspended upon the defendant entering a three-year good behaviour bond.
Whether the sentence was manifestly inadequate – whether the sentencing Judge erred in suspending the sentence of imprisonment.
Principles of Crown appeals, discussed.
Principles relating to sentencing for crimes of trafficking in a controlled drug, discussed – maximum penalty scales according to weight of drug will generally result in longer terms of imprisonment for greater weights – however, circumstances other than weight may have a substantial effect on a sentence – general deterrence must be given great weight in sentencing commercial drug dealers.
Held: Permission to appeal refused – the head sentence imposed was manifestly inadequate – however, in light of the defendant’s childhood history, his progress towards rehabilitation, and his release into the community and continuance of rehabilitation, it would be unjust to the defendant to allow permission to appeal and allow the appeal.
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 - PROCEDURE
Crown appeals against sentence – where grounds of appeal are that the sentence was manifestly inadequate, and the Judge erred in suspending the sentence of imprisonment – where the Court grants permission as to one ground.
Obiter: once permission has been granted on any ground of appeal and the Court decides to consider the sentence afresh, that reconsideration must include the head sentence, the non-parole period and whether the sentence should be suspended.
[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 Kong [2013] SASCFC 15
Case
[2013] SASCFC 15
Decision Date
CaseChat Overview and Summary
The Crown appealed against the sentence imposed on the respondent, Chanthorn Kong, who had pleaded guilty to trafficking in a large commercial quantity of methylamphetamine. The respondent acted as an intermediary in the sale of 9991 methylamphetamine tablets, a quantity weighing 2568 grams and containing 103 grams of pure methylamphetamine. The sentencing judge had imposed a head sentence of three years and nine months imprisonment, with a non-parole period of 20 months, which was suspended upon the respondent entering into a three-year good behaviour bond.
The central legal issues before the Full Court were whether the sentence imposed was manifestly inadequate and whether the sentencing judge erred in suspending the sentence of imprisonment. The Crown argued that the sentence failed to adequately reflect the seriousness of the offence and the need for general deterrence, and that there was no good reason to suspend the sentence.
The Full Court held that the head sentence imposed was manifestly inadequate. However, despite this finding, permission to appeal was refused. The Court reasoned that while the offence was serious, it would be unjust to the respondent to allow the appeal and disturb the suspended sentence. This decision was influenced by the respondent's difficult childhood history, his demonstrated progress towards rehabilitation since his arrest, his continued release into the community, and his ongoing commitment to rehabilitation. The Court considered that imposing an immediate custodial sentence would unravel the positive steps the respondent had taken.
Orders
Orders of the court
Held: Permission to appeal refused – the head sentence imposed was manifestly inadequate – however, in light of the defendant’s childhood history, his progress towards rehabilitation, and his release into the community and continuance of rehabilitation, it would be unjust to the defendant to allow permission to appeal and allow the appeal.
Background
Background to the litigation
The defendant and respondent, Chanthorn Kong, pleaded guilty to trafficking in a large commercial quantity of methylamphetamine, contrary to s 32(1) of the Controlled Substances Act 1984 (SA). The maximum penalty for the offence is a fine of $500,000 or imprisonment for life, or both. A large commercial quantity includes any mixture containing methylamphetamine, with a total weight of over one kilogram. The Judge sentenced the defendant to three years and nine months’ imprisonment, with a non-parole period of 20 months. He suspended the sentence upon the defendant entering into a bond for a period of three years, conditions of which were that he be of good behaviour and that he be under the supervision of a community corrections officer for a period of two years and obey all lawful directions given to him by the community corrections officer. Further, the defendant was to undertake such drug counselling and treatment as directed by the community corrections officer. Background In September 2009, police commenced a covert operation in which they intercepted a mobile phone used by a co-offender, Brendan Ferenczfy. Those intercepts resulted in the police uncovering telephone calls between the defendant and Ferenczfy. Police then commenced intercepting mobile phone calls made by the defendant. On 8 November 2009, police monitored a number of calls between the defendant and Ferenczfy which revealed that the defendant had arranged for the delivery of 10,000 tablets to Ferenczfy which he had obtained from another person. Further intercepted calls indicated that Ferenczfy had arranged for an associate named Matthew Owen-Cooper to collect the tablets on his behalf. Police raided Owen-Cooper’s home and found three plastic bags containing 9991 tablets, weighing a total of 2568 grams and containing 103 grams of pure methylamphetamine. Their street value was estimated at between $70,000 and $500,000. The fact of the police raid and the arrest of Owen-Cooper was not known by the defendant or Ferenczfy. Police continued to monitor telephone calls between the defendant and Ferenczfy. Ferenczfy agreed to pay the defendant $5000 for facilitating the deal. There had also been an earlier transaction involving 10,000 methylamphetamine tablets which the defendant had brokered for Ferenczfy, for which the defendant agreed that he had received $1000. On 18 May 2010, police arrested the defendant. At the time, found in his 22.6 grams of powder containing 9.98 grams of pure cocaine, valued at between $6000 and $12,000. At the defendant’s home, police located a firearm and ammunition. The defendant was charged with a drug offence relating the cocaine and with possessing a firearm without a licence. The defendant was sentenced for those offences on 8 December 2011. It was accepted that the cocaine was for his personal use and for his wife’s use. He was sentenced to imprisonment for one year and ten months, with a non-parole period of ten months, suspended upon the defendant entering into a bond to be of good behaviour for 18 months. The charges relating to trafficking in methylamphetamine the subject of this appeal proceeded to trial.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Judge had regard to the sentences passed upon the other two offenders with whom the defendant had been involved. He saw no reason to differentiate between the involvement of Ferenczfy and the defendant. The decision to suspend the sentence In considering whether to suspend the sentence, the Judge took into account the gravity of the crime. He took into account that the defendant had had a difficult life. He accepted that, for the 18 months prior to sentence, the defendant had resurrected his life, had been crime-free and had worked hard for his family. He also took into account that the defendant had complied with a bond imposed upon him in respect of the cocaine offences, and that he had embarked upon a program of rehabilitation. He said:I turn to the question of suspension. The gravity of your crime must, among other things, be weighed against your personal circumstances. You have led a largely law-abiding and productive life, despite the difficult hurdles that you have had to overcome. Significantly, since your arrest of 18 months ago you have turned your back on drugs and resurrected your life. You are crime free and working hard for your family.You have complied in all respects with the bond imposed by Judge Bampton. Having regard to your guilty plea, your rehabilitation that you have undertaken and your personal circumstances in general, I believe there is good reason to suspend the sentence.I am firmly of the view that it will not be in your interest or the community’s interests to unravel the process of rehabilitation that you have undertaken by requiring you to serve an immediate sentence of imprisonment. In the circumstances, the Judge considered that good reason existed to suspend the sentence.The appeal The Director submits that the sentence imposed is manifestly inadequate. Counsel contends that the sentence fails to maintain adequate standards of punishment for the offence, and fails to reflect the seriousness of the offending conduct and the need for general deterrence. The Director submits that the Judge erred in determining that good reason exists to suspend the sentence.Principles relating to prosecution appeals against sentence Sections 353 and 340 of the Criminal Law Consolidation Act 1935 (SA) deal with the Court’s power in respect of appeals against sentence. Section 353(4) and (5) provide:353 – Determination of appeals in ordinary cases...(4) Subject to subsection (5), on an appeal against sentence, the Full Court must –(a)if it thinks that a different sentence should have been passed – (i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or(b)in any other case – dismiss the appeal.(5) The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.