R v KOULIOUBAS - [2012] SASCFC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KOULIOUBAS
[2012] SASCFC 49
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Kelly)
2 May 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - FAILURE TO EXERCISE DISCRETION
Appeal against sentence – appellant pleaded guilty to one count of supplying a controlled drug (methylamphetamine) and sentenced to one year and eight months imprisonment with a non-parole period of six months – appellant was serving a two year good behaviour bond with supervision conditions for a previous drug conviction at the time of sentencing for the present charge – appellant attended a drug rehabilitation clinic as an in-patient and was completing a follow up regime with a psychiatrist – whether the sentence was manifestly excessive – whether the sentencing Judge erred in placing too much emphasis on general and personal deterrence and gave insufficient weight to the appellant’s personal circumstances – whether the sentencing Judge erred in failing to suspend the term of imprisonment imposed.
Held: (Kelly J, Doyle CJ and Anderson J concurring): appeal dismissed – possession of methylamphetamine for supply is a serious offence – appellant committed offence while on bail for a previous offence of trafficking in methylamphetamine – appellant’s response to supervision under previous suspended sentence bond was poor, attendances at drug rehabilitation clinic belated and did not indicate a genuine commitment to rehabilitation – sentence not outside range available – no error in approach of sentencing Judge – appeal dismissed.
Controlled Substances Act 1984 (SA) s 33I(1)(b), referred to.
R v Proom (2003) 85 SASR 120, applied.
R v Gibbons (1998) 72 SASR 408; R v Urbanski (2010) 108 SASR 369, distinguished.

R v KOULIOUBAS
[2012] SASCFC 49
Court of Criminal Appeal: Doyle CJ, Anderson and Kelly JJ

DOYLE CJ. I would dismiss the appeal against sentence. I agree with the reasons given by Kelly J for so deciding.
ANDERSON J. I agree that the appeal against sentence should be dismissed for the reasons given by Kelly J.
KELLY J.
Introduction
This is an appeal against a sentence imposed in the District Court on 21 February 2012. The appellant pleaded guilty to one count of supplying methylamphetamine, a controlled drug, contrary to s 33I(1)(b) of the Controlled Substances Act 1984 (SA). The District Court Judge sentenced the appellant to a term of imprisonment of one year and eight months and imposed a non-parole period of six months. She declined to suspend the sentence of imprisonment.
A Judge of this Court granted permission to appeal on two grounds; first that the head sentence imposed by the sentencing Judge is manifestly excessive…

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 KOULIOUBAS

Details

AGLC: R v Koulioubas [2012] SASCFC 49
Case: [2012] SASCFC 49
Decision Date: 2 May 2012

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, R v Kouliobas, by a Judge of the District Court. The appellant had pleaded guilty to supplying methylamphetamine and was sentenced to one year and eight months imprisonment with a non-parole period of six months. The appellant argued that the sentence was manifestly excessive and that the sentencing Judge had erred by placing too much emphasis on general and personal deterrence, while giving insufficient weight to her personal circumstances and rehabilitation efforts. The appellant also contended that the sentencing Judge had erred in failing to suspend the term of imprisonment.

The Court of Criminal Appeal was required to determine whether the sentence imposed was manifestly excessive, and whether the sentencing Judge had failed to properly exercise their discretion by overemphasising deterrence and underemphasising the appellant's personal circumstances and rehabilitation efforts. Specifically, the Court had to consider if the Judge erred in not suspending the sentence, given the appellant's engagement with drug rehabilitation programs and psychiatric treatment.

The Court dismissed the appeal, finding that the possession of methylamphetamine for supply is a serious offence. The Court noted that the appellant committed the offence while on bail for a previous drug trafficking charge. Furthermore, the Court found that the appellant's response to supervision under a previous suspended sentence bond had been poor, with belated attendances at a drug rehabilitation clinic that did not demonstrate a genuine commitment to rehabilitation. Consequently, the Court concluded that the sentence imposed was not outside the available range and that there was no error in the sentencing Judge's approach.

Orders

Orders of the court

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Background

Background to the litigation

A Judge of this Court granted permission to appeal on two grounds; first that the head sentence imposed by the sentencing Judge is manifestly excessive and second, that the sentencing Judge erred in the exercise of the discretion to suspend the sentence by placing too great an emphasis on principles of deterrence and by giving insufficient weight to matters personal to the appellant, in particular, to the appellant’s efforts to rehabilitate under a suspended sentence regime put in place by another Judge in March 2011. Relevant Background The appellant is a 27 year old single woman who has had an ongoing addition to drugs since the age of about 16. On 11 November 2010 the appellant was found in her unit in possession of 10.71 grams of methylamphetamine, of which 2.71 grams was pure methylamphetamine. The appellant pleaded guilty on the basis that the drugs found in her possession were to be used by her for her own personal use but that she would have supplied a quantity of the drug to any of her friends who asked. At the time of offending the appellant was on bail for an offence of trafficking in a controlled drug committed on 18 November 2008. The offending in respect of that matter involved a total of 49.5 grams of methylamphetamine located in various containers at the appellant’s home. The appellant subsequently pleaded guilty to the offence of trafficking and was sentenced by another Judge of the District Court on 16 March 2011. The sentencing Judge imposed a head sentence of two years and 10 months with a non-parole period of 15 months. The sentence was suspended on the appellant agreeing to enter into a bond, terms of which included that the appellant was to be under the supervision of a community corrections officer for a period of two years and that she was to undertake such counselling and drug rehabilitation programs as directed by the correctional services officer assigned to her. In April 2011, and again in July 2011, the appellant failed two random drug tests carried out under the provisions of the suspended sentence bond imposed by the District Court Judge in March 2011. The appellant first appeared before the sentencing Judge in relation to the current charge on 10 November 2011 at which time the matter was adjourned pending the obtaining by the appellant’s counsel of a psychological report and a pre-sentence report prior to any submissions being made. During the course of exchanges between the learned sentencing Judge and counsel then acting for the appellant, the learned sentencing Judge issued a stern warning to the appellant to the effect that if she did not wish to be in gaol in the new year she had better get her life into order specifically by abstaining from drug use. In December 2011 the appellant saw a psychologist, Ms Maine. In January 2012 the appellant admitted herself to Warinilla, a drug and alcohol clinic, for a period of six days. Whilst in the Warinilla clinic she saw a psychiatrist and was due to follow up with that psychiatrist six weeks after discharge on 16 January 2012. She was also prescribed some new medication, modafinil, which she was required to take for a period of six weeks from January 2012.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ (dissent) ANDERSON J (dissent) KELLY J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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