(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Lovell)
13 November 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS
The appellant pleaded guilty to trafficking in a large commercial quantity of a controlled drug, one count of cultivating more than a prescribed number of cannabis plants, three “serious firearm offences” and a number of less serious matters. The sentencing Judge imposed separate sentences for two of the “serious firearm” offences but not the third (count 5). The sentencing Judge, whilst allowing a discount of 30 per cent for early pleas did not nominate a starting point before application of the discount - whether a failure to nominate a notional starting point of a sentence amounts to an error of law – whether the final sentence imposed was manifestly excessive. On the Director’s cross-appeal – whether appellant should be resentenced to correct the failure of the sentencing Judge to sentence separately on count 5 – whether the final sentence imposed was manifestly inadequate.
Held per Nicholson and Lovell JJ:
1. While it is preferable, and in many cases highly desirable, for a sentencing judge to nominate a starting point, the failure of a sentencing judge to expressly do so does not of itself amount to an error that vitiates the exercise of the sentencing discretion.
Held per Stanley J:
2. The failure of the sentencing Judge to identify expressly the notional head sentence to which he applied the 30 per cent discount vitiates the exercise of the sentencing discretion. I would grant the appellant permission to appeal on ground 1, but dismiss the appeal because I am not satisfied that a different sentence should be imposed.
Held per Stanley J (Nicholson and Lovell JJ agreeing), dismissing the appeal:
3. The sentence imposed was not manifestly excessive.
4. Appeal dismissed.
Held per Nicholson and Lovell JJ, allowing the cross-appeal:
5. It was an error for count 5 to be included in the sentence involving the use of s18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). The sentence is wrong and not available at law and the appeal should be allowed for the purpose of correcting the error. This involves resentencing the appellant, including by resentencing for count 5 separately from the other offences included in the section 18A sentence.
6. Nevertheless, the final head sentence and non-parole period we would impose would remain the same as that imposed by the sentencing Judge namely 6 years with a non-parole period of 4 years to commence 24 August 2014.
Held per Stanley J (Nicholson and Lovell JJ…
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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Details
AGLC
R v Niesen [2015] SASCFC 165
Case
[2015] SASCFC 165
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions appealed against the sentence imposed on the appellant, Niesen, who had pleaded guilty to trafficking in a large commercial quantity of a controlled drug, cultivating a prescribed number of cannabis plants, and three serious firearm offences, along with other less serious charges. The appeal concerned the sentencing judge's exercise of discretion in imposing sentences for these offences.
The central legal issues before the Court of Appeal were whether the sentencing judge erred in law by failing to nominate a notional starting point for the sentence before applying a 30 per cent discount for the early guilty pleas, and whether the final sentence was manifestly excessive. Additionally, the Director cross-appealed, arguing that the appellant should have been resentenced to correct the failure to impose a separate sentence for one of the serious firearm offences (count 5), and that the final sentence was manifestly inadequate.
The Court of Appeal held that the failure to nominate a notional starting point before applying a discount for an early guilty plea does not, in itself, constitute an error of law. However, the court found that the sentencing judge had erred by not imposing a separate sentence for the third serious firearm offence (count 5). Consequently, the court allowed the Director's cross-appeal, resentenced the appellant, and imposed a final sentence that was neither manifestly excessive nor inadequate.