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)…

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 Leathley

Details

AGLC: R v Leathley [2014] SASCFC 127
Case: [2014] SASCFC 127
Decision Date: 21 November 2014

CaseChat Overview and Summary

This matter concerned an application for permission to appeal against sentence by the applicant, who had pleaded guilty to two counts of cultivating controlled plants for sale and two counts of trafficking in a large commercial quantity of a controlled drug. The applicant's offending occurred in breach of a previously imposed suspended sentence of imprisonment. The District Court initially imposed a global sentence of six years' imprisonment, activating the suspended sentence. Following a successful Crown appeal, the applicant was re-sentenced to a total of seven years and three months' imprisonment, with a non-parole period of four years.

The applicant argued that the re-sentencing was manifestly excessive because it was greater than the initial sentence, and that it failed to have regard to the principle of fairness underlying the doctrine of double jeopardy. The court was therefore required to determine whether the increased sentence imposed on re-sentencing was manifestly excessive, and whether it offended the principle of double jeopardy.

The court reasoned that the policy grounds underpinning the principle that a defendant should not be deterred from exercising their right of appeal or disadvantaged by doing so, are not relevant to a successful prosecution appeal. The court concluded that permission to appeal should be granted, but the appeal itself should be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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