R v Nicholas & Nicholas

Case [2019] SASCFC 1

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v NICHOLAS & NICHOLAS

[2019] SASCFC 1

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Hinton)

18 January 2019

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 - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING

The respondent brothers, David Nicholas and James Nicholas, were sentenced to imprisonment for a number of drug trafficking offences committed in 2017 and uncovered as part of a police operation.

James was sentenced to imprisonment for three years and nine months with a non-parole period of one year and four months. In David’s case, the 2017 offending resulted in the contravention of a suspended sentence bond which he had entered into in 2014 for previous drug offending. The sentencing judge revoked the bond and reduced the sentence to 12 months before sentencing David to imprisonment for the 2017 drug offending to be served cumulative upon the reduced 2014 sentence. This resulted in an overall sentence of imprisonment for 10 years with a non-parole period of three years and six months.

The Director of Public Prosecutions sought permission to appeal against both sentences. In James’ case, the Director contended that the sentence was manifestly inadequate. In relation to David, the Director submitted that the non-parole imposed was manifestly inadequate and that the term of the suspended sentence should not have been reduced.

Held, per Hinton J (Kelly and Peek JJ agreeing), refusing permission to appeal in each case: the sentences imposed were low, but in the circumstances, compelling reasons existed justifying the judge in adopting a merciful approach.

Controlled Substances Act 1984 (SA) s 32(1), s 32(3), s 44; Offenders Probation Act 1913 (SA) s 9; Criminal Law (Sentencing) Act 1988 (SA) s 20B(1), s 33BB, s 38(2), s 38(2ba), s 58(4), referred to.
Director of Public Prosecutions (Cth) v Masange (2017) 325 FLR 363; House v The King (1936) 55 CLR 499; R v Buckman (1988) 47 SASR 303; R v Cekic [2016] SASCFC 26; R v Devries [2018] SASCFC 101; R v Kong (2013) 115 SASR 425; R v Mandica (1980) 24 SASR 394; R v Mandica (1980) 24 SASR 394; R v McIntosh [2017] SASCFC 87; R v Osenkowski (1982) 30 SASR 212; R v Pishdari [2018] SASCFC 94; R v Young (2016) 126 SASR 41; R v Tait (1979) 46 FLR 386, considered.

R v NICHOLAS & NICHOLAS
[2019] SASCFC 1

Court of Criminal Appeal:      Kelly, Peek and Hinton JJ

KELLY J:

  1. I agree for the reasons given by Hinton J that in the unusual circumstances of each of the respondents this…

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R v Nicholas & Nicholas [2019] SASCFC 1
Case
[2019] SASCFC 1
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CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kelly, Peek and Hinton JJ, considered an appeal by the Director of Public Prosecutions against sentences imposed on two brothers, referred to as Nicholas and Nicholas, who had been convicted of drug trafficking offences. The Director sought to appeal the leniency of the sentences, arguing they were manifestly inadequate given the seriousness of the offending.

The central legal issue before the Court was whether the sentences imposed on the brothers were so inadequate as to warrant interference on appeal. This required the Court to consider the principles governing Crown appeals against sentence, particularly where the sentencing judge had placed significant weight on the offenders' stated intention to break ties with criminal organisations and serve their time on parole with strict supervision. The Court also had to balance the various purposes of sentencing, including punishment, deterrence, rehabilitation, and community protection, in the context of serious drug trafficking offences.

The Court acknowledged the significant social harm caused by illicit drug abuse and trafficking, as highlighted in *R v Kong*, and the importance of general deterrence in sentencing for commercial drug dealers. However, the Court ultimately declined to grant the Director permission to appeal. This decision was based on the sentencing judge's faith in the brothers' commitment to reform and the potential benefits of supervised parole in protecting the community and ensuring they severed ties with criminal elements. The Court emphasised that this leniency was a reflection of mercy and that any future breaches of trust would not be viewed as favourably.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I emphasise that the brothers have been in the receipt of mercy reflecting the sentencing Judge’s faith in them that they will be true to their word. Trusting in that judgment, I decline to grant the Director permission to appeal. If it transpires that the Judge’s faith was wrongly placed, the brothers cannot expect to be treated the same again or that their word will count for much with a court.Conclusion Permission to appeal in each case is refused.

Ratio Decidendi

Legal Principle Established

Counsel for each brother emphasised the benefits to the community of the brothers serving lengthy periods on parole subject to supervision and, in particular, to control as to with whom they associate. Supervision on parole was the best means to protect the community from the risk of recidivism by ensuring that the brothers carried through with their intention to break with the Hells Angels.Consideration I commence by making some general observations. The starting point in sentencing for a trafficking offence is the legislative instruction contained in s 44(1) of the CSA. That section provides:44—Matters to be considered when court fixes penalty(1) In determining the penalty to be imposed on a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration—(a)subject to subsection (2), the nature of the substance or goods involved in the commission of the offence; and(b)the quantity of the substance or goods involved in the commission of the offence; and(c)the personal circumstances of the convicted person (being a natural person), including the circumstances relating to the person’s use (if at all) of any controlled drug; and(d)in the case of an offence against Part 5 Division 2 or 3—(i)the commercial or other motives of the convicted person in committing the offence; and(ii)the financial gain that is likely to have accrued to the convicted person as a result of the commission of the offence (but this is not to be taken into consideration if that financial gain is the subject of an application under the Criminal Assets Confiscation Act 2005); and(da)in the case of an offence against section 33F, 33H or 33I—whether the offence occurred within a school zone or at or near any prescribed place; and(e)any other relevant factor. The considerations to which s 44(1) refers are, as s 44(1)(e) makes plain, not exhaustive. The intention is that the factors identified and all other relevant factors, including those personal to an offender, be taken into account in the ordinary way, to fashion a sentence bounded by proportionality which serves the purposes of sentencing — to protect the community, to deter specifically and generally, to punish and to rehabilitate. In the present case the observations made in R v Kong are relevant to any assessment of the protective, deterrent and punitive purposes of sentences for trafficking.[8] In R v Kong this Court said:[9]There continues to be concern about the prevalence of drug abuse in our community. Since Mangelsdorf, the variety of illicit drugs available has increased. Twenty years ago, heroin was a primary concern and was considered to be the most harmful of illicit drugs. The position has changed with the promotion of methylamphetamine and the availability of a variety of illicit drugs, all of which are addictive and have very harmful effects. Research and knowledge about the effects of drugs known as “speed” and “ice” has developed. The so-called party drugs are readily available. The manufacture and importation of drugs is prevalent. The abuse of illicit drugs causes great social harm. The treatment and the management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, nor surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers....The range of penalties for drug offences must recognise that there is a concern in the community about the effect of illicit drug consumption, particularly upon the younger generation. Further, many of those who are involved at the higher end of drug trafficking are also involved in other criminal conduct. Many crimes of violence are committed in a background of drug offending.[8] (2013) 115 SASR 425.[9] (2013) 115 SASR 425 at [90], [92].