(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Doyle)
24 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES
Appeal against sentence. The appellant was sentenced to a term of four years and three months imprisonment for an offence of trafficking in methylamphetamine contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The Judge fixed a non-parole period of two years and nine months. The appellant pleaded guilty. He was entitled to a discount of up to 30 per cent pursuant to s 10C(2)(b) of the Criminal Law (Sentencing) Act 1988 (SA). The sentencing Judge reduced the notional head sentence for the plea of guilty by “almost 30 per cent”.
The appellant appeals, by permission, against his sentence of imprisonment for 4 years and 3 months with a non-parole period of two years and nine months on the grounds that the head sentence and the non-parole period are manifestly excessive and that the sentencing Judge erred in not giving the appellant the full 30 per cent discount for his plea of guilty.
Held per Stanley J (Kourakis CJ and Doyle J agreeing):
1. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence . Only if there is an error of the kind described in House v The King (1936) 55 CLR 499 does the appeal court have the power to quash the sentence passed below at [17]).
2. Sentencing judges in utilising s10C of the Criminal Law (Sentencing) Act 1988 (SA) should adopt a utilitarian approach by giving the maximum discount available for a guilty plea pursuant to the provision unless good reason exists not to do so (at [19]).
3. To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing judge (at [21]).
4. The fixing of a non-parole period serves a different function from the setting of a head sentence (at [26]).
6. The head sentence imposed was not manifestly excessive (at [22]).
7. The non-parole period imposed was manifestly excessive (at [27]).
[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 Palmer [2016] SASCFC 34
Case
[2016] SASCFC 34
Decision Date
CaseChat Overview and Summary
The appeal concerned the sentencing of the respondent, Palmer, for drug trafficking offences. The appeal was brought before the Supreme Court of South Australia, constituted by Kourakis CJ, Stanley and Doyle JJ.
The central legal issue before the Court was whether the non-parole period fixed by the sentencing judge was manifestly excessive, and if so, what a more appropriate non-parole period should be. The Court was required to consider the principles of sentencing, including the purpose of punishment and the appropriate approach to determining non-parole periods in drug trafficking cases.
Stanley J, with whom Kourakis CJ and Doyle J agreed, allowed the appeal. His Honour varied the non-parole period, reducing it from that imposed by the sentencing judge to two years, one month, and two weeks. This adjustment reflects the Court's assessment of the appropriate sentence in light of the nature of the offence and relevant sentencing principles.
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 would set aside the non-parole period fixed by the Judge and in lieu thereof fix a non-parole period of two years, one month and two weeks. Conclusion I would allow the appeal. I would set aside the non-parole period fixed by the Judge and in lieu thereof fix a non-parole period of two years, one month and two weeks. DOYLE J: I would allow the appeal. I agree with the reasons of Stanley J, and the orders he has proposed.