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R v Malesevic

R v Malesevic

Case [1999] SASC 321 6 August 1999

Miscalculation of Sentence

Criminal Law

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R v MALESEVIC
[1999] SASC 321

Court of Criminal Appeal: Doyle CJ, Bleby and Wicks JJ

DOYLE CJ. This is an appeal against sentence.
The appellant pleaded guilty in the District Court to two counts of taking part in the sale of cannabis, contrary to s 32(1)(d) of the Controlled Substances Act.
In each case the amount of cannabis involved was two kilograms. Accordingly, the maximum penalty on each count was imprisonment for 10 years or a fine of $50,000 or both.
The District Court judge imposed a single sentence of imprisonment for 2 years 8 months, and fixed a non-parole period of 1 year 9 months. This sentence is said to be excessive.
Counsel for the appellant also submits that the District Court judge erred in relation to two of the steps that he took in arriving at the sentence that he imposed. It is convenient to deal with one of those complaints immediately.
In fixing the sentence the District Court judge gave credit for the appellant’s plea of guilty, and also for time spent in custody. It is common ground that the judge miscalculated the time spent in custody by one month, to the appellant’s disadvantage.
The judge also gave credit for time spent on home detention bail. The appellant was on home detention bail for slightly in excess of six months. There was no obligation on the judge to reduce the sentence that would otherwise be imposed on that account, although the judge was at liberty to make some reduction on that account if he saw fit.
In R v Bruce and Hollick [1998] SASC 6831 I said, in the context of the particular appeal, that the fact that each appellant had served several months on home detention bail was not a matter that should have caused the judge to impose a lesser sentence. By that I meant that the failure to do so was not an error. I did not intend to say that a judge could not make allowance for time on home detention bail if the judge saw fit. The judge clearly intended to do so in the present case, and that was within the scope of his discretion.
It is therefore appropriate to correct the miscalculation made by the sentencing judge, as he clearly intended to give full credit for the time spent in custody and some credit for the time spent on home detention bail. The head sentence should be reduced by one month, and an appropriate reduction should also be made to the non-parole period.
Subject to that it is appropriate to consider the complaint that the sentence is in any event excessive, and the other complaint about the process adopted by the judge.
Each sale made involved the sale of cannabis that the appellant had collected from friends who were growing cannabis, partly for their own use. They were growing less than 10 plants each. Accordingly, if the cannabis were grown for their own consumption, each of these persons…

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.

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Details

AGLC: R v Malesevic [1999] SASC 321
Case: [1999] SASC 321
Decision Date: 6 August 1999

CaseChat Overview and Summary

In the case of R v Malesevic, the appellant, who had pleaded guilty to two counts of taking part in the sale of cannabis, challenged the sentence imposed by the District Court. The appeal focused on the length of the sentence and the method used by the District Court judge to arrive at the non-parole period. The appellant's counsel argued that the initial sentence was excessive, the judge miscalculated the time spent in custody, and the judge erred in the process of determining the non-parole period.

The Court of Criminal Appeal addressed these points in turn. Firstly, the Court noted that while the sentence was heavy, it was not excessive given the nature of the offences, the appellant's leading role, and the involvement of others. The Court then corrected the miscalculation in the time spent in custody, reducing the head sentence and non-parole period accordingly. Next, the Court considered the argument regarding the non-parole period. It found that while the District Court judge had failed to properly consider the impact of time spent in custody and home detention bail on the non-parole period, this was not necessarily a legal error. The Court concluded that the non-parole period should reflect the gravity of the crime and other relevant factors, and it was within the judge's discretion to arrive at this figure. The Court determined that a greater allowance should be made for the time spent in custody and on home detention bail, resulting in a non-parole period of 16 months.

The appeal was allowed, the sentence set aside, and a new sentence of 31 months imprisonment with a non-parole period of 16 months was substituted. The Court's decision emphasised the need for a sentencing judge to consider all relevant factors, including the impact of time spent in custody and home detention bail, but also underscored the judge's discretion in determining the non-parole period.

Orders