SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NICHOLLS
[2011] SASCFC 81
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Peek)
11 August 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION
Appeal against sentence - appellant convicted after a trial of trafficking in methylamphetamine and three counts of possessing a prescription drug - trial Judge sentenced appellant for two further offences, for which he had pleaded guilty, of possessing articles with intent to commit an offence and unlawful interference with a motor vehicle - having regard to the unexpired parole period and time spent in custody the Judge imposed a head sentence of three years, eight months and 21 days' imprisonment with a non-parole period of one year and ten months.
Whether sentence manifestly excessive - whether Judge erred in failing to take into account the limited commercial value of the drugs - whether he erred in taking into account that the prescription drugs were for sale - whether sentence within range for typical low-level street dealer.
Held: Appeal dismissed - sentence of three years' imprisonment within range of sentences for this type of offending.
Controlled Substances Act 1984 (SA) s 32(3), s 18(3); Criminal Law Consolidation Act 1935 (SA) s 270C(1), s 86A; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Mahasay; R v Pereira (2002) 135 A Crim R 232; R v Papadopolous [2010] SASCFC 30; R v Day [2009] SASC 84, considered.
R v NICHOLLS
[2011] SASCFC 81Court of Criminal Appeal: Sulan, Anderson and Peek JJ
SULAN J: This is an appeal against sentence. The appellant was convicted after a trial of trafficking in methylamphetamine[1] and three counts of possessing a prescription drug.[2] The Judge was also requested to sentence the appellant for two further offences for which the appellant had pleaded guilty in the Magistrates Court of possessing articles with intent to commit an offence[3] and unlawful interference with a motor vehicle.[4] At the time of the offending, the appellant was on parole. The Judge was required to have regard to the unexpired period of parole of one year, seven months and 21 days on the day of the offending, which was to be served before the sentences he imposed were to take effect.
[1] Controlled Substances Act 1984 (SA) s 32(3) – maximum penalty of $50,000 or imprisonment for 10 years, or both.
[2] Controlled Substances Act 1984 (SA) s 18(3) – maximum penalty of $10,000 or imprisonment for two years.
[3] Criminal Law Consolidation Act 1935 (SA) s 270C(1) – maximum penalty of five years.
[4] Criminal Law Consolidation Act 1935 (SA) s 86A – maximum penalty of imprisonment for two years for first offence.
The Judge sentenced the appellant to one sentence of three years’ imprisonment for the…
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- R v Nicholls [2011] SASCFC 81
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- [2011] SASCFC 81
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the sentence imposed was manifestly excessive, and whether the sentencing judge had erred in failing to consider the limited commercial value of the drugs, and in taking into account that the prescription drugs were for sale. The appellant argued that the head sentence of three years, eight months and 21 days' imprisonment, with a non-parole period of one year and ten months, was too severe, particularly in relation to the drug offences.
The court considered the appellant's submissions regarding the value of the drugs and the alleged error in treating the prescription drugs as being for sale. The appellant had been found in possession of 9.15 grams of methylamphetamine paste (0.26 grams pure) and several prescription tablets, along with items indicative of drug dealing, such as scales and resealable bags. The jury had rejected his explanations for possessing these items. The court noted the appellant's extensive criminal history, including dishonesty and motor vehicle offences, and a significant prior custodial sentence, although he had no prior drug convictions. The court also acknowledged his numerous health issues, which could be managed in custody.
The court ultimately dismissed the appeal, finding that the sentence was not manifestly excessive. The sentencing judge had properly considered all relevant factors, including the appellant's prior convictions, the nature of the offences, and the limited commercial value of the methylamphetamine. The court also found no error in the judge's consideration of the prescription drugs as being for sale, given the context of their discovery alongside the methylamphetamine and drug paraphernalia. The head sentence and non-parole period were therefore upheld.
Orders
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