R v MCKAY

Case [2012] SASCFC 59

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MCKAY

[2012] SASCFC 59

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Kelly)

30 May 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES - IMPOSITION OF SECOND CUMULATIVE SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE - OTHER MATTERS

Application for permission to appeal against sentence – respondent was found guilty by a jury of trafficking a controlled substance (methylamphetamine) – at the time of the offence the respondent was subject to a suspended custodial sentence for two previous convictions of possessing a controlled substance for sale (ecstasy) – the sentencing Judge revoked the suspended sentence (three years and six months with a non-parole period of two years) and imposed a new sentence of two years to be served cumulatively on the earlier sentence – the total sentence was five years imprisonment with a non-parole period of 18 months – the Director of Public Prosecutions applies for permission to appeal on the ground that the non-parole period of 18 months is manifestly inadequate given the seriousness of the offending and it is so disproportionate to the head sentence that it requires intervention – the Director also contends the Judge erred as a matter of sentencing principle in failing to review and extend the non-parole period of two years attached to the head sentence for the revoked suspended sentence – whether non-parole period is manifestly inadequate – whether an error of sentencing principle is present

Held (Kelly J, Gray and David JJ concurring): Permission to appeal granted – appeal allowed – sentence set aside – under s 32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA) the only option open to a sentencing judge is to review and extend a revoked non-parole period unless special circumstances exist under s 58(4) of the Act – the issue of special circumstances under s 58(4) not properly canvassed or considered – remitted for resentencing.

Criminal Law (Sentencing) Act 1988 (SA) s 32(1)(b), s 58, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; R v Shepperbottom (2001) 121 A Crim R 69, considered.

R v MCKAY
[2012] SASCFC 59

Court of Criminal Appeal:       Gray, David and Kelly JJ

GRAY J.

  1. I would grant permission to appeal and allow the appeal.  I agree with the reasons of Kelly J and with the orders proposed.

    DAVID J.

  2. I would allow the appeal for the reasons given by Kelly J.  I also agree with the orders…

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Details
AGLC
R v McKay [2012] SASCFC 59
Case
[2012] SASCFC 59
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions applied for permission to appeal against the sentence imposed on the respondent, who had been found guilty of trafficking methylamphetamine. At the time of this offence, the respondent was subject to a suspended custodial sentence for prior convictions of possessing controlled substances for sale. The sentencing judge revoked the suspended sentence, which was for three years and six months with a two-year non-parole period, and imposed a new sentence of two years to be served cumulatively. This resulted in a total sentence of five years imprisonment with a non-parole period of 18 months. The Director contended that the 18-month non-parole period was manifestly inadequate and disproportionate, and that the sentencing judge erred in principle by failing to review and extend the non-parole period attached to the revoked suspended sentence.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the 18-month non-parole period was manifestly inadequate and whether the sentencing judge had committed an error of sentencing principle. The respondent argued that the sentence was appropriate given the offending was primarily for personal use and isolated, and therefore not manifestly inadequate, even if lenient.

The Full Court, comprising Kelly, Gray, and David JJ, granted permission to appeal and allowed the appeal, setting aside the sentence. The Court held that under section 32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA), a sentencing judge's only option upon revoking a suspended sentence is to review and extend the associated non-parole period, unless special circumstances exist under section 58(4) of the Act. The Court found that the issue of special circumstances had not been properly canvassed or considered by the sentencing judge, who appeared to have mistakenly believed he could impose a lower non-parole period. Consequently, the matter was remitted for resentencing.

Orders

Orders of the court

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Background

Background to the litigation

The respondent opposes the application for permission arguing that although the sentence of 18 months was at the lower end of the range of penalties available to the sentencing Judge, it was appropriate given that the current offending was primarily for personal use. It was isolated offending and although it might be regarded as lenient it is not manifestly inadequate. Relevant Facts In November 2008 the police went to the respondent’s house and found methylamphetamine, a pipe and three plastic bags hidden in the respondent’s underwear. Methylamphetamine was detected on the respondent’s hands and fingernails. Telephone intercepts led at trial indicated that on the day prior to the search the respondent agreed to purchase 3.5 grams of methylamphetamine for $1,300. In an intercepted telephone conversation the respondent asked the seller to carry some of the debt until the respondent was able to sell part of the 3.5 grams he was going to purchase. Other telephone intercepts led established that the respondent had had previous contact over time with his supplier of drugs and had sought to purchase a similar amount of illicit drugs. At the relevant time the maximum penalty for trafficking in methylamphetamine was a fine of $50,000 or 10 years imprisonment, or both. Sentencing Process The applicant has identified what is said to be an error in the sentencing process which in itself calls for the intervention of this Court. It is necessary to summarise briefly what happened during sentencing. The learned sentencing Judge first needed to consider whether the sentence imposed by another District Court Judge in respect of the earlier offending should be revoked. It was open to the sentencing Judge, if he considered the failure to comply with the bond was trivial or if there were proper grounds to refrain from revoking the suspended sentence.[4] His Honour did not consider that there were proper grounds and therefore revoked the suspended sentence of three years and six months. It was open to the sentencing Judge, if he considered that there were special circumstances justifying it, to reduce the term of the suspended sentence imposed by the earlier District Court Judge. However his Honour did not refer to s 58(4)(a) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). Nevertheless, he did in fact reduce the non-parole period in respect of the cumulative sentence of five years to 18 months. [4] Criminal Law (Sentencing) Act 1988 (SA) s 58(3). It seems plain from the transcript of proceedings that his Honour mistakenly thought he could proceed in that way. His Honour specifically raised with counsel for the Director his intention to adopt a lower than usual non-parole period. He said:[5]So, won’t the option of revoking the suspended sentence, accumulating the term of imprisonment I might impose but ordering a very – well, merciful non-parole period of quite a short period to allow for a very lengthy period subject to a suspended sentence might be an option. Do you have any comment about that?[5] Transcript of sentencing submissions 13 December 2011 at 25.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J, KELLY J

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