R v Nicodin

Case [2009] SASC 102

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v NICODIN

[2009] SASC 102

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Layton)

17 April 2009

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

Appeal against sentence – appellant sentenced in the District Court for the offences of taking part in the sale of heroin – sentencing Judge imposed a sentence of eleven years imprisonment and a non-parole period of seven years – whether the sentence imposed was manifestly excessive – appellant contended that five features of the sentence had the effect, in combination, of indicating the sentence was manifestly excessive.

The features were the Judge’s appreciation of the seriousness of the offending; the sufficiency of the reduction for the appellant’s plea of guilty; the appellant’s lack of criminal antecedents; the appellant’s prospects for rehabilitation and the alleged disparity between the sentence imposed upon the appellant and her co-offender.

Held: sentence not manifestly excessive – appeal dismissed.

Controlled Substances Act 1984 (SA) s32(1)(d), referred to.
Cheung v The Queen (2001) 209 CLR 1; R v Spanos [2007] SASC 409; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; R v Creed (1985) 37 SASR 566; R v MacGowan (1986) 42 SASR 580, applied.
R v Bullock (2005) 91 SASR 461; R v Hogan and Hadley (1991) 161 LSJS 494; R v Mangelsdorf (1995) 66 SASR 60; R v Santalab (Unreported, South Australia, Court of Criminal Appeal, King CJ, Duggan and Debelle JJ, 20 July 1993); R v Millard [2008] SASC 262, discussed.
R v McLachlan [2004] SASC 277; R v Johnston [2007] SASC 300; Cameron v The Queen (2002) 209 CLR 339 ; R v Varano (1989) 150 LSJS 140; R v Angus [2004] SASC 317; R v Craciun [2006] SASC 57; R v Dubois (2004) 88 SASR 304; Yardley v Betts (1979) 22 SASR 108; Bugmy v The Queen (1990) 169 CLR 525; R v Miller (2000) 76 SASR 151; R v Shrestha (1991) 173 CLR 45, considered.

R v NICODIN
[2009] SASC 102

  1. VANSTONE J:     I agree that the appeal should be dismissed.  I agree with the reasons of White J.

  2. WHITE J: The appellant appeals against the sentence imposed on her in the District Court for the offence of taking part in the sale of heroin.[1]

    [1]    Controlled Substances Act 1984 (SA) s 32(1)(d).

  3. The Judge sentenced the appellant to imprisonment for a period of 11 years and fixed a non-parole period of 7 years.  The Judge had taken as a starting point a sentence of 12 years, but reduced that to 11 years on account of the appellant’s late plea of guilty. 

  4. The appellant contends that both the sentence of 11 years and the non‑parole…

Continue reading R v Nicodin

Sign in free to access the full text

Details
AGLC
R v Nicodin [2009] SASC 102
Case
[2009] SASC 102
Decision Date

CaseChat Overview and Summary

In the case of R v Nicodin, the appellant appealed against a sentence imposed in the District Court for taking part in the sale of heroin. The sentence was eleven years imprisonment with a non-parole period of seven years. The appellant argued that the sentence was manifestly excessive. The court had to decide whether the sentence was disproportionately harsh, considering the nature of the offence and the role of the appellant in the crime.

The court examined the legal issues, including whether the sentence was proportionate to the crime and whether the appellant's role warranted such a severe penalty. The court noted that the appellant's involvement in the heroin trade was significant and required a severe penalty to ensure general deterrence. The court referenced previous cases that emphasised the importance of severe penalties for high-level heroin dealers to deter others from engaging in similar activities. The court also noted the importance of reflecting the legislative policy on severe penalties for heroin dealing.

The court concluded that, while the sentence was heavy, it was appropriate given the nature of the offence and the need for general deterrence. The court found that the appellant's conduct was more culpable than that of her co-offender, justifying a higher starting point for sentencing. The court also considered the difference in sentences between the appellant and her co-offender, concluding that the disparity was not disproportionate. The court held that the sentence was not manifestly excessive.

The court dismissed the appeal, affirming the sentence imposed by the District Court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the present case, for the reasons given earlier, the appellant’s offending did not involve exactly the same conduct as that of the co-offender. Her conduct was more culpable. A higher starting point than that adopted in the case of her co-offender was appropriate. The three year difference between the two was significant but not disproportionate.Conclusion on Issues Concerning Head Sentence As noted earlier, the appellant contended that it was the matters identified above, when considered in combination, which indicate that the sentence is too severe. That is to say, it is not any one matter considered by itself which made the sentence excessive, only the combination of the identified matters. I agree that the sentence imposed in this case was heavy. However, it is appropriate that sentences for this kind of offending are severe. The Courts have repeatedly emphasised the importance of general deterrence in the sentencing of those who, like the appellant, engage in heroin trading at a high commercial level. As the sentencing Judge said, the trade in heroin has disastrous consequences for many users of heroin, for their families and for the whole community. It is an evil trade and the law should do what it can to stamp it out. The authorities abound with statements concerning the importance of general deterrence in offending of the present kind. In R v Hogan and Hadley[14] Duggan J (with whom King CJ and Prior J agreed) said:Those who traffic in heroin have been warned repeatedly that when they come before the courts they can expect to be dealt with severely. In imposing penalties for these offences emphasis is placed upon general deterrence and the subjective situation of the offender is of much less significance than in the case of many other offences.[15][14] (1991) 161 LSJS 494.[15] Ibid at 495. In R v Mangelsdorf[16] Doyle CJ said “very heavy sentences can be expected by those whose offending goes beyond street trading.”[17] The Chief Justice referred to the remarks of King CJ in R v Santalab[18] as follows:Parliament has prescribed severe maximum penalties for heroin dealing, and it is the duty of this Court to impose penalties which give effect to the legislative policy reflected by maximum penalties. Clearly it is the intention of the legislature that severe penalty should be imposed as a means of deterring those who are tempted by the big profits to be made out of heroin dealing from engaging in that enterprise. The courts would be failing in their duty if they should fail to impose sentences which properly implement the legislative policy.[19]Similarly, in R v Millard[20] Doyle CJ said:Dealing in drugs continues to be prevalent. Often those who are detected are only street traders. When those who are higher up in the chain are detected and are brought before the Court, the Court must do what it can to deter the high level distributors by imposing severe punishment.[21][16] (1995) 66 SASR 60.[17] Ibid at 65.[18] Unreported, South Australia, Court of Criminal Appeal, King CJ, Duggan and Debelle JJ, 20 July 1993.[19] Ibid at 7.[20] [2008] SASC 262.[21] Ibid at [42]; see also R v Craciun [2006] SASC 57 at [29]; (2006) 94 SASR 173 at 176.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.