R v Leathley - [2014] SASCFC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LEATHLEY
[2014] SASCFC 127
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Bampton and The Honourable Justice Parker)
21 November 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
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 - APPEALS BY CROWN - EXERCISE OF DISCRETION - DOUBLE JEOPARDY
Application for permission to appeal against sentence. The applicant (defendant) pleaded guilty to two counts of cultivate controlled plants for sale and two counts of trafficking in a large commercial quantity of a controlled drug. The defendant admitted the offending was in breach of a bond he had entered into in respect of an earlier offence where a sentence of imprisonment of two years and three months, with a non-parole period of 14 months was imposed and suspended. The District Court sentenced the defendant to imprisonment for six years, with a non-parole period of three years. The sentence was imposed on a global basis in relation to the four counts and also activation of the suspended sentence of imprisonment for two years and three months. Following a successful DPP appeal, the defendant was re-sentenced to five years’ imprisonment for the four counts and the suspended sentence of two years and three months’ imprisonment was reactivated, for a total sentence of seven years and three months’ imprisonment. A non-parole period of four years’ imprisonment was fixed. The re-sentencing resulted in a total head sentence that was one year and three months longer and a non-parole period one year longer than the sentence imposed on the first occasion.
Whether the sentence imposed on re-sentencing was manifestly excessive because it was greater than the sentence imposed in error on the first occasion. Whether the sentence imposed on re-resentencing failed to have regard to the notion of fairness underlying the double jeopardy principle.
Held, dismissing the appeal: (Parker J, Vanstone and Bampton JJ agreeing):
The notion of fairness which underlies the double jeopardy principle cannot affect re-sentencing where the initial sentencing process has miscarried because of a failure to apply correctly the relevant principles. It was not necessary for the sentencing judge to give any reason for imposing a greater sentence than that originally imposed.
Controlled Substances Act 1984 s 32(1), 33B(3); Criminal Law (Sentencing) Act 1988 s 18A; Criminal Law Consolidation Act 1935 s 352, referred to.
R v Leathley [2013] SASCFC 42; R v Baltensperger (2006) 96 SASR 34; R v Martin (No 6) (2000) 109 A Crim R 508; R v MM (2002) 135 A Crim R 216; R v Bedford (1986) 5 NSWLR 711; Everett v R (1994) 181 CLR 295; R v Kong (2013) 115 SASR 425; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; R v Gilmore (1979) 1 A Crim R 416; McL v The Queen (2000) 203 CLR 452, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Double jeopardy"

R v LEATHLEY
[2014] SASCFC 127
Court of Criminal Appeal: Vanstone, Bampton and Parker JJ

VANSTONE J: I agree with the orders proposed by Parker J and with the reasons he has written.
BAMPTON J: I would grant permission to appeal, but dismiss the appeal. I agree with the reasons of Parker J.
PARKER J: This is an application for permission to appeal against sentence referred to this Court by Vanstone J on 22 August 2014.
Background
The applicant (defendant) has a significant history of conviction for offences involving the commercial production of cannabis. In 1996 he was convicted of growing 150 cannabis plants with a co-offender and sentenced to imprisonment for 18 months for a non-parole period of six months. That sentence was suspended upon the defendant entering into a two-year good behaviour bond.
On two separate occasions in 2002 the defendant was convicted of cannabis offences that had occurred in May and December 2001. On the earlier occasion he was convicted of possessing cannabis and producing cannabis and fined $500. On the second occasion the defendant was convicted on two counts of taking part in the production of cannabis and one count of producing cannabis and again fined $500.
In 2008 the defendant pleaded guilty in the District Court to one count of producing cannabis (27 plants) and was found guilty by a jury of a further count of possessing cannabis for sale (just over 900 grams). On 23 April 2008 a sentence of imprisonment for two years and three months, with a non-parole period of 14 months, was imposed. That sentence was suspended upon the defendant entering a bond in the sum of $500 to be of good behaviour for three years
On 20 February 2013, following a guilty plea, the defendant was sentenced by the District Court on two counts of cultivate controlled plants for sale, contrary to s 33B(3) of the Controlled Substances Act 1984 (SA), and two counts of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of that Act. The maximum penalties for these offences were respectively ten years’ imprisonment or a fine of $50,000 (or both) and life imprisonment or a fine of $500,000 (or both).
Those offences occurred in late 2009 and early 2010. The defendant admitted that this offending was in breach of the bond he had entered on 23 April 2008. The District Court sentenced the defendant to imprisonment for six years, with a non-parole period of three years. That sentence was imposed on a global basis, purportedly in reliance upon s 18A of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act), in relation to the four counts before the Court and also the activation of the suspended sentence of imprisonment for two years and three months.
The facts of the offences were that houses at Enfield and at Ridleyton were being used to grow hydroponic crops of cannabis. There were 14 plants growing and about three kilograms of cannabis head being dried at the Enfield house when police attended on 15 January 2010. Eighteen cannabis plants were found growing at the Ridleyton house by the police on 9 March 2010. That crop was being harvested and 16 kilograms of cannabis were being processed.
The defendant had supplied the hydroponic equipment used at both locations. Telephone messages intercepted by the police indicated that the defendant was also involved in the arrangements for the harvesting of both crops.
Crown appeal
The Director of Public Prosecutions appealed against the sentence that had been imposed by the District Court on 20 February 2013. That appeal was upheld by this Court.[1] The Court held that the sentencing Judge had erred by using s 18A of the Sentencing Act to impose a single term of imprisonment when part of the sentence included the activation of the previously suspended sentence. The matter was remitted back to the District Court for the defendant to be re-sentenced by another Judge.
[1] R v Leathley [2013] SASCFC 42.
Re-sentencing
The defendant was re-sentenced on 3 June 2014. A single penalty of five years’ imprisonment was imposed for the four counts, using s 18A of the Sentencing Act. The suspended sentence of two years and three months’ imprisonment was also brought into operation. Thus, the total sentence was seven years and three months’ imprisonment. A non-parole period of four years’ imprisonment was fixed. The sentence was ordered to commence on 20 February 2013, being the date that the defendant was taken into custody. The re-sentencing of the defendant resulted in a total head sentence that was one year and three months longer and a non-parole period one year longer than the sentence imposed in error on 20 February 2013.
The application for permission to appeal
The sole basis for the proposed appeal is that the sentence imposed on the second occasion was manifestly excessive because it was greater than the sentence imposed in error on the first occasion.
Counsel for the defendant submitted that when the Court is called upon to re-sentence a defendant after an appeal or a re-trial, in a case where the factual basis for the sentence has not changed, the sentence should not be increased unless there is good reason to do so.[2]   The judge who re-sentences the defendant should identify what is considered to be a good reason before imposing a greater sentence.[3] In this case the Judge did not give any reason for imposing a greater sentence than that originally imposed and also did not say that he considered the original sentence to be inadequate.
[2]    R v Baltensperger (2006) 96 SASR 34 at 50 [151] (Vanstone J), 52 [167] (White J); R v Martin(No 6) (2000) 109 A Crim R 508.
[3]    R v MM (2002) 135 A Crim R 216 at [32]; R v Bedford (1986) 5 NSWLR 711 at 713 – 714; R v Baltensperger (2006) 96 SASR 34 at 53 [173] (White J).
Counsel for the defendant submitted that there are policy considerations related to the common law principle against double jeopardy that should prevent a sentence being increased after a prosecution appeal.
Counsel referred to the principle in Everett v R[4] that:
The deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a Court of Criminal Appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case.
[4] (1994) 181 CLR 295 at 305.
Counsel referred to the fact that courts of criminal appeal formerly refrained from imposing a higher sentence in response to a prosecution appeal when that might otherwise have been justified. While that approach has been set aside by s 352 of the Criminal Law Consolidation Act 1935, it still applies to an application for permission to appeal.[5]
[5] R v Kong (2013) 115 SASR 425.
Counsel also placed reliance upon Lacey v Attorney-General (Qld)[6]. Counsel suggested that the notion of fairness underlying the double jeopardy principle had informed the High Court’s decision that, even where a provision in the Queensland Criminal Code provided the Court with an unfettered discretion to vary any sentence, error must still be identified.
[6] (2011) 242 CLR 573.
The notion of fairness which underlies the double jeopardy principle cannot affect re-sentencing where the initial sentencing process has miscarried because of a failure to apply correctly the relevant principles. Thus, for example, if a sentencing judge failed to have regard to the correct maximum penalty or did not take account of an aggravating circumstance, a defendant could not legitimately expect that the sentence would not be increased after a successful prosecution appeal.
In the present case the original sentence was set aside because it had been invalidly based upon the application of s 18A of the Sentencing Act. Because the sentencing process had miscarried, the defendant could not legitimately have expected that the sentence would not be increased. Thus, it was not necessary for the sentencing judge to give any reason for imposing a greater sentence than that originally imposed and nor did he need to identify why he considered the original sentence to be inadequate.
Counsel also submitted that there are additional policy reasons why the sentence imposed on re-sentencing should not be higher than the original sentence. The reasons were said to include:
(a)that a person whose conviction or sentence is tainted at first instance should not, in fairness, be required to run the risk of an increased penalty as a consequence of the exercise of a right of appeal;
(b)a person should not feel constrained to avoid exercising a right of appeal because of a fear that a heavier sentence may result if the appeal succeeds;
(c)the passing of a heavier sentence following an appeal may appear to include an element of retribution for successfully appealing.[7]
[7] R v Gilmore (1979) 1 A Crim R 416 at 419 – 420; McL v The Queen (2000) 203 CLR 452 at [23], [72] and [133] and following.
Each of those policy grounds is based upon the view that a defendant should not be deterred from exercising their right of appeal or disadvantaged because they have done so. These considerations are not relevant to a successful prosecution appeal.
Conclusion
I would grant permission to appeal and dismiss the appeal.