COURT IN THE FULL COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA DOYLE CJ(1), PRIOR(2) AND WILLIAMS(3) JJ
CWDS Criminal law - jurisdiction, practice and procedure - judgment and punishment - Application for leave to appeal against sentence by Director of Public Prosecutions - three unrelated cases involving drug offences - leave to be granted only in the rare or exceptional case - examination of standard set in previous cases - scope for trial judge's assessment must be allowed, but standards must be given appropriate weight - appropriate to grant leave in two cases, to reiterate standards because reason to think sentencing judges not observing the relevant standards - appropriate to grant leave also on grounds related to each individual case. Everett v R (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Pearce (1980) 91 LSJS 443, applied.
Criminal law - jurisdiction, practice and procedure - sentence - Heroin dealer - public interest in deterrence to be uppermost in judge's mind - impact on family only to be taken into account in exceptional cases - suspension inappropriate - sentence increased and suspension revoked. R v Adam; (1989) 51 SASR 229, applied.
Criminal law - jurisdiction, practice and procedure - sentence - Conspiracy to trade in LSD - no trading occurred - sort of offence would ordinarily attract a sentence of imprisonment - suspension inappropriate - sentence increased but suspension not revoked.
Criminal law - jurisdiction, practice and procedure - sentence - Cannabis dealer - clear commercial overtones - sizeable quantity - previous suspended sentences - suspension inappropriate - sentence increased and suspension revoked.R v Walker (1981) 27 SASR 315, applied.
HRNG ADELAIDE, 17-18 October 1995 #DATE 10:11:1995 #ADD 15:1:1996
Counsel for appellant: Mr P Rofe QC with Mr P Muscat
Solicitors for appellant: DPP (SA)
Counsel for respondents Mangelsdorf and Richards: Mr C Caldicott
Solicitors for respondents Mangelsdorf and Richards: Caldicott and Co.
Counsel for respondent Perry: Mr R Mayne
Solicitors for respondent Perry: Carter and Prendergast
ORDER Appeals allowed.
JUDGE1 DOYLE CJ The Court has before it three applications by the Director of Public Prosecutions for leave to appeal against sentences imposed by Judges of the District Court.
2. It is convenient to deal with the three applications together.
3. Two of the applications relate to sentences for offences against s32 of the Controlled Substances Act (SA). The other application relates to a sentence for the offence of conspiring to trade in a prohibited substance for the purposes of the Controlled Substances Act. In the first application the prohibited substance involved was heroin. In the second application the prohibited substance involved was Lysergic Acid Diethylamide, commonly known as, and hereinafter referred to as, "LSD". In the third application the prohibited substance involved was cannabis and cannabis resin. It can be seen that each application relates to offences involving drugs, the unlawful use of which Parliament has made the subject of heavy penalties, reflecting widespread community concern about the harm done…
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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AGLC
R v Mangelsdorf [1995] SASC 5328
Case
[1995] SASC 5328
Decision Date
CaseChat Overview and Summary
The Full Court of the Criminal Court of Appeal of South Australia heard three applications for leave to appeal against sentences imposed by the District Court for drug-related offences. The Director of Public Prosecutions applied for leave to appeal against sentences imposed on Mr Mangelsdorf, Mr Perry, and Mr Richards. The Court granted leave to appeal in all three cases. The Court found the sentences imposed were manifestly inadequate and constituted an error in principle, warranting intervention by the Court of Criminal Appeal. The Court imposed new sentences in each case. The Court found that the sentence imposed on Mr Mangelsdorf for possession of heroin for sale was manifestly inadequate. The sentence was 18 months' imprisonment, with a non-parole period of 12 months. The sentence was suspended. The Court found that a sentence of less than 4 years' imprisonment could not be justified. The Court imposed a sentence of 4 years' imprisonment, with a non-parole period of 18 months, and revoked the order for suspension. The Court found that the sentence imposed on Mr Perry for conspiracy to trade in LSD was manifestly inadequate. The sentence was six months' imprisonment, which was suspended upon Mr Perry entering into a recognisance for the amount of $100 to be of good behaviour for twelve months. The Court found that a sentence of 2 years 6 months' imprisonment was the lowest sentence that could properly be imposed in this case. The Court imposed a sentence of 2 years 6 months' imprisonment, with a non-parole period of 1 year, and ordered that the sentence be suspended upon Mr Perry entering into a recognisance for the amount of $100 to be of good behaviour for two years, and during the period of 18 months from entry into the bond Mr Perry must perform 160 hours of community service. The Court found that the sentence imposed on Mr Richards for possession of cannabis for sale was manifestly inadequate. The sentence was two years' imprisonment, with a non-parole period of sixteen months. The sentence was suspended. The Court found that a sentence of 4 years' imprisonment was appropriate. The Court imposed a sentence of 4 years' imprisonment, with a non-parole period of two years, and revoked the order for suspension.