R v Mallett - [2015] SASCFC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MALLETT
[2015] SASCFC 49
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Stanley)
17 April 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - RELEVANT MATTERS - DEGREE OF PARTICIPATION
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
Appeal against sentence.
The appellant was convicted following a trial by jury of four counts of importing a border controlled precursor contrary to s 307.12 of the Criminal Code 1995 (Cth). On 30 January 2014, the sentencing Judge sentenced the appellant for these offences, and for the offences of assault, exceeding the speed limit, and two counts of driving while disqualified. The sentencing Judge also revoked three previous suspended sentences.
The appellant was sentenced to an effective head sentence of 10 years' imprisonment with a non-parole period of seven years. In addition, the sentencing Judge imposed a five year disqualification from holding or obtaining a driver's licence.
Whether the sentences and non-parole periods imposed were manifestly excessive. Whether the length of the period of licence disqualification was manifestly excessive.
Held per Kelly J; Blue J; Stanley J (allowing the appeal);
1. It was a relevant consideration that much of the offending for which the sentencing Judge revoked the appellant’s suspended sentence bonds arose out of the same circumstances and during a period of time contemporaneous with the offences of importing a border controlled precursor. Moreover, at least two of the episodes of offending for which the appellant received suspended sentences were offences of a very similar character to the Commonwealth offences.
2. The approach of the sentencing Judge miscarried with respect to the issue of totality.
3. The sentence imposed was manifestly excessive. The effective head sentence of 10 years and the non-parole period of seven years was, in all of the circumstances, a crushing sentence.
4. For the Commonwealth offending, the appellant is resentenced to imprisonment for five years and six months, with a non-parole period of two years and six months. The head sentence and non-parole period for the Commonwealth offences is to commence at the expiration of the non-parole period of three years imposed by the learned sentencing Judge for the combined State offences.
5. The appellant is resentenced to a period of licence disqualification of 18 months.
Criminal Code 1995 (Cth) s 307.12; Crimes Act 1914 (Cth) s 16B, s 19(1)(b), referred to.
R v Tranter (No 2); R v Compton (2014) 119 SASR 480, distinguished.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifest excess", "totality"

R v MALLETT
[2015] SASCFC 49
Court of Criminal Appeal: Kelly, Blue and Stanley JJ
KELLY J.
Introduction

This is an appeal against a sentence imposed in the District Court on…

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 Mallett

Details

AGLC: R v Mallett [2015] SASCFC 49
Case: [2015] SASCFC 49
Decision Date: 17 April 2015

CaseChat Overview and Summary

The appeal concerned a sentencing decision made by a single judge in relation to drug importation offences under the Commonwealth Criminal Code and subsequent driving offences under state law. The appellant, R v Mallett, had been convicted of four counts of importing a marketable quantity of a border controlled precursor, involving the importation of eight parcels from Canada and the United Kingdom containing tablet and capsule medications. The total amount of pure pseudoephedrine that could have been extracted was 404.34 grams, with the potential to produce approximately 323.47 grams of methylamphetamine. Evidence suggested the appellant was involved in the manufacture of pseudoephedrine and that the importations were part of a business venture aimed at financial gain, with an intention to increase the volume of drugs imported. In addition to these Commonwealth offences, the appellant was also sentenced for state offences including assault, exceeding the speed limit, and driving while disqualified. Crucially, these new offences led to the breach of three previously imposed suspended sentence bonds for earlier state offences.

The primary legal issues before the appellate court were whether the sentencing judge erred in assessing the appellant's prospects of rehabilitation as poor and in characterising the Commonwealth offending as being at the upper end of the scale. The appellant contended that these assessments led to a manifestly excessive sentence and non-parole period. The court was required to consider the totality of the offending, the appellant's disregard for state laws, and the appropriate balance between punishment, deterrence, and rehabilitation in determining the final sentence.

The appellate court, comprising Kelly, Blue, and Stanley JJ, found that while the Commonwealth offending was serious, a total sentence of five years for those offences was unduly harsh. Kelly J, delivering the leading judgment, accepted that the appellant's prospects of rehabilitation were not as poor as assessed by the sentencing judge. The court also considered the appellant's repeated disregard for state driving laws, noting that an 18-month disqualification period would adequately reflect the need for deterrence in light of this history. The court ultimately set aside the original sentence for the Commonwealth offending and resentenced the appellant to imprisonment for five years and six months, with a non-parole period of two years and six months. This sentence was directed to commence at the expiration of the non-parole period imposed for the combined state offences. The five-year licence disqualification was also set aside and replaced with an 18-month disqualification period, to commence upon the appellant's release from custody.

Orders

Orders of the court

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Background

Background to the litigation

On appeal the appellant’s main complaints are that the sentencing Judge fell into error in assessing the appellant’s prospects of rehabilitation as poor, and wrongly characterised the Commonwealth offending as at the upper end of the scale. As a result, the appellant contends that the sentence and non-parole period arrived at by the Judge are manifestly excessive. Background The Commonwealth Offending The appellant was convicted by a jury of four counts of importing a marketable quantity of a border controlled precursor contrary to s 307.12 of the Criminal Code 1995 (Cth) (together, the “Commonwealth offences”). The appellant was acquitted of a fifth count. The circumstances giving rise to those convictions were that between May 2010 and late December 2010, the appellant imported eight parcels from Canada and the United Kingdom containing tablet and capsule medications. The amount of pure pseudoephedrine that could have been extracted from the eight parcels was a total of 404.34 grams. This amount could produce a methylamphetamine yield of approximately 80 per cent (323.47 grams). At the time of the offending, methylamphetamine was selling for between $50 and $100 per point (a point being 0.1 grams). On this calculation, 3,234.7 points could be sold for $161,735 to $323,470. There was evidence that the appellant was involved in the manufacture of pseudoephedrine in that glassware and other equipment commonly used in the production of illicit drugs were located at his address on 3 May 2010 (one month prior to the Commonwealth offending) and 31 May 2011 (six months after the Commonwealth offending) during the execution of search warrants. Evidence from internet chat logs and a payment system set up by the appellant demonstrated that the importation was part of a business venture where financial reward was the goal. The logs also demonstrated that the appellant was keen to substantially increase the volume of the drugs being imported for sale. The State Offending On 30 January 2014 the appellant was also sentenced in respect of a number of State offences. These offences included an assault at Parafield Gardens on 8 October 2012, exceeding the speed limit and driving while disqualified at North Adelaide on 4 June 2013, and driving while disqualified at Adelaide on 30 June 2013 (together, “the latter State offences”). Prior to the Commonwealth offences and the latter State offences, the appellant was already the subject of three suspended sentence bonds in respect of three sets of State offences (together, “the earlier State offences”). Those bonds were breached as a result of the Commonwealth and the latter State offences. The first bond had been entered into before a District Court Judge on 16 July 2010 in respect of an 18 month sentence with a 12 month non-parole period. The second had been entered into before the same District Court Judge on 16 February 2012 in respect of a two years and seven month sentence with a non‑parole period of two years. The third bond had been entered into before another District Court Judge on 15 November 2012 in respect of a three month and 25 day sentence (reduced from six months for time served in custody). Upon sentencing for the Commonwealth offences and the latter State offences, the sentencing Judge revoked all three suspended sentences and ordered that they be served cumulatively, resulting in sentences totalling four years, four months and 25 days, with a non-parole period of three years (together, the “revoked bond sentences”).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

However, I accept that in all of the circumstances a period of five years is unduly harsh. In my view, requiring the appellant to serve an 18 month period of disqualification would properly reflect the need to provide adequate deterrence given that the appellant has in the past exhibited disregard if not outright contempt for State laws. Conclusion I would set aside the sentence for the Commonwealth offending. I would resentence the appellant to imprisonment for five years and six months and fix a non-parole period of two years and six months. I would direct that the head sentence and the non-parole period for the Commonwealth offences commence at the expiration of the non-parole period of three years imposed for the combined State offences, consistent with s 19(1)(b) of the Crimes Act. I would set aside the licence disqualification for five years. I would direct that the appellant be disqualified from holding or obtaining a driver’s licence for 18 months to commence upon the appellant’s release from custody. BLUE J: I agree. STANLEY J: I would allow the appeal. I agree with the orders proposed by Kelly J and with her Honour’s reasons.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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