R v Leathley - [2013] SASCFC 42

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 42
Court 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…

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 [2013] SASCFC 42
Case: [2013] SASCFC 42
Decision Date: 23 May 2013

CaseChat Overview and Summary

In *R v Leathley*, the 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, which included the revocation of a previously suspended sentence of two years and three months' imprisonment with a non-parole period of 14 months. The appeal concerned whether the Judge erred in using section 18A of the *Criminal Law (Sentencing) Act 1988* (SA) to impose one penalty when the appellant was to be dealt with for both the breach of a suspended sentence bond and the subsequent drug offending.

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

PEEK J

In considering the orders to be made for the breach of the suspended sentence bond, the Judge did not have regard to the matters contained in s 58(4) of the Sentencing Act including whether there were "special circumstances" which would justify a reduction in the term of the suspended sentence. In addition, the Judge did not indicate which part of the sentence was attributed to the breach of bond and which part was attributed to the subsequent offending. This is not a case where this Court should resentence the defendant. The matter should be remitted to the sentencing court for further submissions and consideration.Conclusion I would grant permission to appeal, allow the appeal, set aside the sentence and remit the matter to the District Court for re-sentencing before a different judge. I agree with the orders proposed by Sulan J and with his reasons. NICHOLSON J: I agree that the appeal should be allowed and with the orders proposed by Sulan J for the reasons he has given.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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