SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LEATHLEY
[2013] SASCFC 42
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Nicholson)
23 May 2013
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Appellant pleaded guilty to two counts of cultivating controlled plants for sale and admitted breaching a suspended sentence bond - the sentencing Judge imposed a single sentence of six years’ imprisonment with a non-parole period of three years - the Judge revoked the suspension of the previously suspended sentence of two years and three months’ imprisonment with a non-parole period of 14 months which he included in the single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) - whether the Judge erred in using s 18A to impose one penalty in circumstances where the appellant was to be dealt with for a breach of a suspended sentence bond in addition to the further drug offending.
Held: Section 18A of the Criminal Law (Sentencing) Act 1988 (SA) cannot be used to impose a single term of imprisonment where part of the sentence includes the activation of a previously suspended sentence - sentence set aside and remitted to District Court for re-sentencing.
Controlled Substances Act 1984 (SA) s 33(3); Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 18A, s 58(4), referred to.
R v Jeffries [2004] SASC 188, considered.
R v LEATHLEY
[2013] SASCFC 42Court of Criminal Appeal: Sulan, Peek and Nicholson JJ
SULAN J: This is an appeal against sentence. The defendant and appellant, Gavin Leathley, pleaded guilty to two counts of cultivating controlled plants for sale contrary to s 33(3) of the Controlled Substances Act (SA) and two counts of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Act. The defendant also admitted breaching a suspended sentence bond. The sentencing Judge imposed a single sentence of six years’ imprisonment with a non-parole period of three years. The Judge revoked the suspension of the previously suspended sentence of two years and three months’ imprisonment with a non-parole period of 14 months which he included in the single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the “Sentencing Act”).
The Director of Public Prosecutions (“the Director”) applies for leave to appeal against the sentence on the ground that the sentencing Judge erred in using s 18A of the Sentencing Act to impose one penalty in circumstances where the defendant was to be dealt with for a breach of a suspended sentence bond in addition to the further drug offending. The defendant also appeals on the ground that the sentence imposed was manifestly excessive having regard to the sentences imposed on three other defendants who were sentenced in…
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- R v Leathley [2013] SASCFC 42
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- [2013] SASCFC 42
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CaseChat Overview and Summary
The central legal issue before the Full Court of the Supreme Court of South Australia was whether section 18A of the *Criminal Law (Sentencing) Act 1988* (SA) permitted the imposition of a single sentence of imprisonment where that sentence encompassed both the activation of a previously suspended sentence and a penalty for new offending. The Court was also required to consider whether the sentencing Judge had properly had regard to the relevant provisions of the *Sentencing Act* when dealing with the breach of the suspended sentence bond.
The Court held that section 18A of the *Criminal Law (Sentencing) Act 1988* (SA) could not be lawfully used to impose a single term of imprisonment when part of that sentence involved the activation of a previously suspended sentence. The Court reasoned that the Judge had failed to consider the matters set out in section 58(4) of the *Sentencing Act*, including whether "special circumstances" existed to justify a reduction in the term of the suspended sentence. Furthermore, the Judge had not specified how the single sentence was apportioned between the breach of the bond and the subsequent offending.
Consequently, the appeal was allowed, the sentence was set aside, and the matter was remitted to the District Court for re-sentencing before a different judge.
Orders
Orders of the court
Held: Section 18A of the Criminal Law (Sentencing) Act 1988 (SA) cannot be used to impose a single term of imprisonment where part of the sentence includes the activation of a previously suspended sentence - sentence set aside and remitted to District Court for re-sentencing.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: PEEK J
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