R v PAULY
[2011] SASCFC 113
•20 October 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PAULY
[2011] SASCFC 113
Judgment of The Court of Criminal Appeal
(The Honourable Justice White, The Honourable Justice David and The Honourable Justice Peek)
20 October 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
The respondent pleaded guilty to the offence of trafficking in a controlled drug in contravention of the Controlled Substances Act 1984 (SA) s 32(3) and was sentenced to imprisonment for 12 months, with a non-parole period of eight months - the sentence was suspended - the Director of Public Prosecutions sought permission to appeal against the sentence on the grounds of failure to maintain proper sentencing standards.
Whether sentence so low so as to fail to maintain adequate sentencing standards; whether appropriate for the Director to be granted permission to appeal; whether trial Judge's reasons were inadequate; whether the conduct of the prosecution contributed to the imposition of an inadequate sentence.
Held: application for permission appeal refused - while the sentence imposed is unduly low, and fails to maintain proper sentencing standards for the offence of trafficking in a controlled drug, the impact on the respondent of granting permission to appeal, and the conduct of the prosecution at sentencing indicate that permission to appeal should be refused.
Criminal Law Consolidation Act 1935 (SA) s 340; Controlled Substances Act 1984 (SA) s 4, s 32; Criminal Law (Sentencing) Act 1988 (SA) s 38; Controlled Substances (General) Regulations 2000 reg 6, Sch 1, referred to.
R v Tait (1979) 46 FLR 386, applied.
Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Elliott (2001) 121 A Crim R 254; R v M [2008] SASC 348; R v Califano (2002) 222 LSJS 460; R v Holmes [2009] NTCCA 16; R v Mangelsdorf (1995) 66 SASR 60; R v Wilson (1990) 158 LSJS 134; R v Gjoka (Unreported, Supreme Court of South Australia, Doyle CJ, Olsson and Lander JJ, 1 July 1997, Judgt No S 6211, BC9702809); R v Frantzis (1996) 66 SASR 558; R v Cristol [2002] SASC 288; R v Hill [2005] SASC 380; Miller v Police [2002] SASC 387; R v Peel [2009] SASC 280; Miller v Police [2002] SASC 387; R v Peel [2009] SASC 280; R v Couper [2009] SASC 361; R v Clifford [2010] SASCFC 10; R v Nicholls [2011] SASCFC 81; R v Hicks (1984) 45 SASR 270; R v Wilton (1981) 28 SASR 362, considered.
R v PAULY
[2011] SASCFC 113Court of Criminal Appeal: White, David and Peek JJ
WHITE J. The respondent was sentenced in the District Court for the offence of trafficking in a controlled drug[1] committed on 12 January 2010 at Port Augusta. A person may “traffic” in a controlled drug in three different ways: by selling the drug; by possessing the drug with the intention of selling it; or by taking part in the process of sale of the drug.[2] In the present case, the prosecution allegation was that the respondent had committed the offence by having methylamphetamine in his possession with the intention of selling it.
[1] Controlled Substances Act 1984 (SA) (CSA) s 32(3).
[2] See the definition of “traffic” in s 4(1) of the CSA.
The Judge imposed a sentence of imprisonment for 12 months, reduced from 14 months on account of the respondent’s late plea of guilty. His Honour then fixed a non‑parole period of eight months and suspended the sentence upon the respondent entering into a bond to be of good behaviour for a period of 18 months and which required him to comply with specified conditions directed to preventing his relapse into drug use.
The Director of Public Prosecutions seeks the permission of this Court to appeal against the sentence on the grounds of manifest inadequacy and failure to maintain proper sentencing standards.
The limited circumstances in which this Court allows a prosecution appeal are well known. The High Court has said that a court should grant permission to the Director to appeal against sentence “only in the rare and exceptional case”.[3] Doyle CJ described the proper approach in R v Nemer:[4]
The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would "shock the public conscience": … Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. … [5]
(Citations omitted)
[3] Everett v The Queen (1994) 181 CLR 295 at 299.
[4] [2003] SASC 375; (2003) 87 SASR 168.
[5] Ibid at [24], 172.
The policy considerations underlying the approach to prosecution appeals outlined in Everett and Nemer mean that in some cases it will be sufficient for the Court to indicate that a sentence is too low, but not to grant permission to the Director to appeal. Such a course can be appropriate when it is sufficient for the Court to identify the error and to reaffirm an appropriate sentencing standard.[6] It may also be appropriate when the conduct of the prosecution at first instance can be seen to have contributed to the imposition of an inadequate sentence.[7] However, once the Court has granted permission to appeal to the Director and is re-sentencing an offender, it is obliged to impose the sentence which should have been imposed in the first instance.[8]
[6] R v Elliott [2001] SASC 101 at [21]-[26], (2001) 121 A Crim R 254 at 257; R v Califano [2002] SASC 320 at [29]-[30], (2002) 222 LSJS 460 at 463-4; R v M [2008] SASC 348 at [41]; R v Holmes [2009] NTCCA 16 at [34].
[7] Ibid.
[8] Criminal Law Consolidation Act 1935 (SA) s 340.
Background Circumstances
On 12 January 2010, the respondent was 23 years old and unemployed. The police executed a search warrant at his house in Port Augusta. They found 18.14 grams of a mixture containing amphetamine. The mixture had 1.4 grams of pure amphetamine, that is, a purity of 7.7 per cent. On police estimates, the mixture, if sold by the gram, had a value of between $4,500 and $9,000.
A friend of the respondent was present in the house. He also had a small quantity of amphetamine in his pocket. The Judge accepted the respondent’s submission that he had given his friend that drug in exchange for some cleaning services.
The police did not find in the house any of the other typical indicia of drug dealing, such as scales, multiple small plastic bags, credit lists and large amounts of unexplained money. I have said “unexplained” because the police did locate a wad of notes but the prosecution accepted that it had been provided to the respondent by his father and was unrelated to any drug activity.
The Judge’s Approach to Sentencing
The Judge accepted that the respondent had a good employment history until 2008 when he had resigned from a well-paid job. It was at that time that he commenced heavy use of amphetamine. The Judge also accepted that the cessation of employment and commencement of drug use in 2008 was attributable to the acrimonious break-up of the respondent’s previous relationship.
The respondent provided evidence of his attempts to re-enter the workforce, including by engaging in forms of work experience whilst he was on bail pending the resolution of the charge. The Judge accepted that he was likely to obtain employment readily once the prosecution was concluded.
Counsel for the respondent submitted to the Judge that he (the respondent) had possession of the amphetamine found by the police primarily for his own use. Counsel went on to indicate that the plea of guilty had been entered on the basis that the commercial aspect of the offence lay in the respondent’s intention “on occasion [to] off load some of his product to a friend to defray some of his costs”. The supply to the friend in exchange for cleaning services was said to support this submission.
The prosecutor did not challenge that submission and made submissions of his own which were consistent with that basis for sentencing. However, on its face, s 32(5) of the Controlled Substances Act 1984 required the Judge to presume, in the absence of evidence to the contrary, that the respondent had possession of the whole of the 18.14 gram mixture for the purposes of sale.[9] That is because the amount in the respondent’s possession exceeded the amount of two grams prescribed as the minimum amount for a “trafficable quantity” of a mixture containing methylamphetamine.[10] It seems to have been implicit in the prosecutor’s submissions that he accepted that the respondent should be sentenced on the basis that he had discharged the s 32(5) onus in relation to a significant portion of the 18.14 gram mixture. In any event, this was the basis for the Judge’s sentence (save only that the Judge considered that the respondent was prepared to sell to other persons as well as the friend who was in his house at the time of the police attendance). It was not suggested that the Judge was wrong in this respect.
[9] R v Scali (1986) 40 SASR 597 at 599; R v Hill [2005] SASC 380 at [22]; R v Ninnes [2007] SASC 40 at [61]; (2007) 96 SASR 443 at 454.
[10] See the definition of “trafficable quantity” in s 4(1) of the Controlled Substances Act 1984 (SA) and Controlled Substances (General) Regulations 2000 (Now the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000) reg 6 and Sch 1.
The Judge noted the importance of deterrence “because of the insidious and widespread availability of amphetamine”.
Finally, the Judge considered it appropriate to suspend the sentence of imprisonment because of the respondent’s personal circumstances and the fact that he had no prior record of drug offences.
The Director’s Submissions
The principal submission of counsel for the Director on the appeal was that the sentence failed to maintain adequate standards of punishment for this kind of offence and would not deter others from like offending. Counsel submitted that there was nothing unusual about the circumstances of the respondent’s case which warranted the fixing of a head sentence amounting to a “marked departure from the standards previously enforced by the Court”. In particular, counsel submitted that the Judge had overlooked evidence indicating that the subject offence was committed as part of a course of drug dealing by the respondent and so was not an isolated incursion into drug trafficking.
Counsel submitted that the Judge had erred in suspending the sentence because the matters relied upon by the Judge for that course did not constitute the kind of “good reason” required in such cases.
Finally, counsel submitted that the Judge’s sentencing remarks were too brief, and failed to give an adequate explanation for his departure from prevailing sentencing standards. He contended that when a sentencing Judge departs from well-established sentencing standards, the reasons for doing so should be spelt out in the sentencing remarks. In this respect, counsel referred to the observations of Prior J (with whom Doyle CJ and Nyland J agreed) in R v Diesing:[11]
When any judge sentences in what is said to be an exceptional way and departs from well-established sentencing standards, there is a need for reasons to be spelt out.
[11] (Unreported, Supreme Court, 23 October 1996, S 5858).
Adequacy of the Trial Judge’s Reasons
The Director’s submissions concerning the adequacy of the Judge’s sentencing remarks can be addressed immediately. The remarks were brief, but nevertheless, in my opinion, gave an adequate explanation for the Judge’s sentence. It is to be remembered that the sentencing remarks were in effect of an ex tempore kind, because the Judge sentenced the respondent the day after hearing the submissions. Insofar as the Director’s application for permission to appeal rests on an alleged inadequacy of reasons, it fails.
Treatment of SMS Messages
In support of his submission that the respondent’s offence was not an isolated act, counsel for the Director contended that the Judge had failed to have regard at all to 14 undated incoming SMS messages found on the respondent’s mobile phone. It is not necessary to repeat in these reasons the content of those messages. On their face, and even making allowance for the fact that they did not emanate from the respondent himself, the SMS messages do seem to suggest that the respondent was involved in a form of commercial dealing with drugs which went well beyond the occasional sale of amphetamine to friends so as to defray the costs of his own habit. On the other hand, the submission of counsel for the respondent on the appeal to the effect that the SMS records indicated only that the respondent had an interest in drugs, and an association with drugs of a kind which was consistent with his plea, also has some plausibility.
It is neither necessary nor appropriate to reach a concluded view concerning the conflicting submissions about the SMS messages, for reasons which I will give shortly.
Other Evidence of Drug Use
Counsel for the Director also referred to other features of the evidence to indicate that the respondent’s offence could not be regarded as an isolated incursion into criminal activity, with the effect that he was not entitled to lenience on that account. This evidence included the presence of a bong and some cannabis in the respondent’s house. In addition, the police found some smashed glass in the toilet bowl which appeared to be derived from a form of pipe commonly used for illicit drugs.
Counsel also referred to the respondent’s admissions about the extent of his personal drug use from which it could be inferred that he may, before 12 January 2010, have been expending up to $1,000 per day on amphetamines. The inference to be drawn, so it was submitted, was that the respondent’s commercial dealing in drugs must have been significant in order to finance this usage.
Consideration of Appeal
On any view, the sentence imposed in this case was very lenient and well below generally prevailing sentencing standards. This Court has referred on numerous occasions to Parliament’s expectation that courts will impose penalties which will deter people from engaging in commercial activity in relation to drugs.[12] This includes those offenders engaged in a relatively low level forms of drug distribution. As long ago as 1990, King CJ said, in relation to the offence of possession of heroin for sale:
The drug trade flourishes because suppliers of drugs are able to find people like the appellant who are prepared to engage in the trade at the lower levels and in that way to entice other people into the same type of drug dependence and misery which has been experienced by the appellant himself. It is the duty of the Court, which has been made perfectly plain by the penalties prescribed by Parliament, to impose sentences which will, one hopes, deter other people from engaging in this type of conduct.[13]
These remarks are equally apposite in the present case.
[12] R v Mangelsdorf (1995) 66 SASR 60 at 63.
[13] R v Wilson (1990) 158 LSJS 134 at 135.
The authorities also indicate that it will usually be difficult for a sentencing court to find circumstances justifying suspension of a prison sentence”.[14] That is because of the seriousness of this type of offence, the approach to sentencing which this Court has indicated is appropriate, and the requirement under s 38 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) for there to be “good reason” for suspension.
[14] R v Gjoka (Unreported, Supreme Court of South Australia, 1 July 1997, Jdgt No S 6211); R v Frantzis (1996) 66 SASR 558; R v Cristol [2002] SASC 288; R v Hill [2005] SASC 380 (by Besanko and Vanstone JJ); Miller v Police [2002] SASC 387.
It is true that many of the authorities from which the general standards of sentences for offences of the present kind are derived were decided in the context of the former s 32 of the Controlled Substance Act 1984, which had a different penalty regime. The offence to which the respondent pleaded guilty, is one of three new offences created by the amended s 32 which came into operation on 3 December 2007. Section 32 now provides (relevantly):
(1)A person who traffics in a large commercial quantity of a controlled drug is guilty of an offence.
Maximum penalty: $500 000 or imprisonment for life, or both.
(2)A person who traffics in a commercial quantity of a controlled drug is guilty of an offence.
Maximum penalty: $200 000 or imprisonment for 25 years, or both.
…
(3)A person who traffics in a controlled drug is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
…
Previously, the maximum penalty for having possession of a drug such as amphetamine for the purpose of sale or supply attracted, in theory at least, maximum penalties which varied according to the amount possessed. When the amount involved was equal to or in excess of the prescribed amount, the maximum penalty was imprisonment for life or a fine of $500,000 or both. When the amount involved was less than the prescribed amount, the maximum penalty was 25 years imprisonment or a $200,000 or both. However, the Executive had not prescribed an amount for this purpose for a drug of dependence such as methylamphetamine and accordingly it was the latter penalty which applied in all cases.
Under the current s 32, the maximum penalty of life imprisonment or a fine of $500,000, or both, applies to an offence against subs (1), namely, trafficking in a “large commercial quantity” (750 grams when the drug is pure and 1 kg when the drug is mixed).[15] The maximum penalty of imprisonment for 25 years or a fine of $200,000, or both, applies to an offence under subs (2), namely, trafficking in a “commercial quantity” (100 grams when it is pure and 500 grams when it is mixed).[16]
[15] Controlled Substances (General) Regulations 2000 (SA), reg 6 and Sch 1, Pt 1.
[16] Ibid.
The offence created by the new s 32(3) applies to quantities of methylamphetamine of less than 100 grams when pure, and 500 grams when mixed. The maximum penalty for this offence is $50,000 or imprisonment for 10 years or both and, as noted, this was the offence for which the respondent was to be sentenced.
Accordingly, an offence against the current s 32(3) attracts a lower maximum penalty than was applicable at the time of many of the decisions of this Court concerning sentencing standards. That does not mean, however, that those decisions have ceased to be relevant. On the contrary, the sentencing considerations discussed in earlier authorities remain pertinent because a maximum penalty of imprisonment for 10 years or a fine of $50,000 or both is, on any view, substantial. It indicates by itself Parliament’s intention that courts should continue to impose sentences which will operate as a deterrent to those minded to engage in the drug trade. This is evident in a number of the decisions of this Court which have considered sentences imposed under the current s 32(3).[17] The lower maximum penalty means only that some care must be taken in applying the older authorities.[18]
[17] For example, R v Peel [2009] SASC 280; R v Couper [2009] SASC 361; R v Clifford [2010] SASCFC 10; R vNicholls [2011] SASCFC 81.
[18] R v Peel [2009] SASC 280 at [19].
The respondent’s plea of guilty was an admission that he had possession of methylamphetamine for the purpose of sale. On his own admission he was part of the low level distribution network by which the drug trade operates. Considerations of both personal and general deterrence were therefore important in his case.
It is true that the respondent had no prior history of drug offences. However, he did have previous court appearances, including convictions on 6 May 2008 for the offences of disorderly behaviour, aggravated assault without weapon against a police officer, unlawful damage to property, hindering police and resisting police. It could not be said therefore that the respondent’s character was unblemished.
I consider that there is considerable force in the Director’s submission that the respondent could not be granted any lenience on the ground that his offence was an isolated one. The respondent was of course to be sentenced only for the offence committed on 12 January 2010, but the evidence as a whole, and the inferences to be drawn from it, suggested that his previous drug involvement was more than of a casual kind and incidental to his own habit.
The Judge found good reason to suspend the sentence in the respondent’s personal circumstance and in the fact that he had no further prior convictions for drug offences. The personal circumstances to which the Judge referred were the respondent’s age, the fact that he had been educated and raised in the Port Augusta area, the fact that he had been in good employment until the time of his relationship break-up and his commencement of drug use, and his good prospects of obtaining employment upon the finalisation of the charge which brought him before the Court. In my respectful opinion, there was nothing out of the ordinary in these circumstances. The observations of Doyle CJ in R v Mangelsdorf[19] remain pertinent:
In the case of street trading offences, it is clear that matters such as the previous good character, addiction and detection with relatively small quantities of the drug are not matters out of the ordinary. It is also necessary to bear in mind that the importance of deterrence in such cases will often lead to less weight being given to circumstances personal to the offender than otherwise might be given.[20]
[19] (1995) 66 SASR 60.
[20] Ibid at 66.
In my opinion, the starting point for a sentence in this case should have been a term of imprisonment for a period significantly more than 14 months. It may have been appropriate for the respondent’s good prospects of rehabilitation, as assessed by the Judge, to be reflected in a lower than usual non‑parole period. It follows that I agree with the submission of counsel for the Director that the sentence imposed by the Judge is too low.
I do not consider that the respondent had established good reason for suspension of the sentence.
Should Permission to Appeal be Granted?
There remains, however, the question of whether permission to appeal should be granted to the Director. As noted above, it is appropriate in some cases for the Court simply to indicate that a sentence is too low but not to grant permission to the Director to appeal. There are two considerations which indicate that this is the appropriate course to follow in the present case.
First, the impact on the respondent of the Court granting permission to the Director to appeal and then substituting a sentence of imprisonment which must be immediately served is to be considered. As King CJ observed in R v Hicks:[21]
When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating. I do not think that any consideration of justice or the protection of the public demands that this particular respondent, after he has been told by a court that he will not have to go to prison, should now be told by this appellate Court that he must serve the sentence.[22]
It is reasonable to suppose that the present respondent has already embarked on the process of rehabilitation, under the supervision of his Correctional Services officer, which the Judge contemplated. The interruption to that process, if the respondent was now required to serve a period of immediate imprisonment, may not be sufficient by itself to warrant the refusal of permission to appeal to the Director, but it is an important consideration.
[21] (1987) 45 SASR 270.
[22] Ibid at 273.
The second feature arises from the reliance of counsel for the Director on appeal on the content of the SMS messages to which I referred earlier.
The prosecutor before the Judge did not refer at all to the mobile phone records. In particular the prosecutor did not dispute the submission of the respondent’s then counsel concerning the SMS records as follows:
[H]is mobile phone was seized, there were no text messages that deal specifically with the sale of drugs, and in particular there are no outgoing text messages at all.
Thus the prosecutor before the Judge did not submit that the SMS records had the significance which the Director now seeks to place on them. The Judge was permitted to sentence the respondent on the basis that the SMS records were not material. There would be an injustice to the respondent if this Court was now to re-sentence on a different basis.
There is a further aspect to this issue. Had the respondent’s account concerning the SMS records been put in contest before the Judge, he would then have had the opportunity of addressing the issue more fully, either by further submissions or by evidence. In this way, it can be said that the prosecutor’s attitude at trial may have influenced the course of the sentencing submissions and gives rise now to issues of procedural fairness. It is not appropriate for this Court to have to determine issues of this factual kind which may turn on the reception of further evidence.
When sentencing offenders, courts must of course act according to the law. This requires a court to reach its own conclusions on the factual basis on which sentence is to be passed and to exercise its own judgment and discretion in arriving at the appropriate sentence.[23] However, the Director of Public Prosecutions has a duty to assist the Court in the sentencing process by making relevant submissions and drawing attention to appropriate factual matters.[24] The manner and content of the prosecution submissions may therefore influence the course of the sentencing submissions and have an effect on the sentencing outcome. That leads naturally to the conclusion that the nature and content of a prosecutor’s submissions at the sentencing hearing may be a factor to be taken into account by the Court when deciding whether to grant the Director permission to appeal. Doyle CJ made this point in R v Nemer when he said:
[S]ometimes the manner in which the prosecution has conducted itself in the sentencing proceedings will have an effect on the conduct of those proceedings such that it would be unfair to allow the prosecution to change its approach on appeal. The Court must always be mindful of considerations of fairness arising out of the manner in which the hearing is conducted. Likewise, the manner in which the prosecution has put its case may be a factor in deciding whether to grant leave to the Director to appeal.[25]
[23] R v Nemer [2003] SASC 375 at [28]; (2003) 87 SASR 168 at 173 (Doyle CJ).
[24] Ibid.
[25] Ibid at [30], 173.
Many of the cases involving the application of this principle have involved circumstances in which the prosecution has taken an attitude on appeal in relation to the suspension of a sentence of imprisonment which is different from that which it took at first instance. Courts have often attached considerable significance to such changes of attitude in relation to suspension when deciding whether or not to grant permission to appeal.[26] However, the principle is not confined to such cases. The Full Federal Court (Brennan, Deane and Gallop JJ) in R v Tait[27] stated the principle in more general terms:
It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown’s presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error. The Crown has been said not to be concerned with sentence, … but when a statutory right of appeal is conferred upon the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissions as to sentence fairly and in an even handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the Court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably thought to be relevant to the case in hand, and by a fair testing of the defendant’s case so far as it appears to require it. … The Crown is under a duty to assist the Court to avoid appealable error. The performance of that duty to the Court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal. It would be unjust to a defendant, whose freedom is in jeopardy for the second time, to consider on appeal a case made against him on a new basis – a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court.[28]
(Emphasis added)
[26] R v Wilton (1981) 28 SASR 362 at 367-8; Everett v The Queen (1994) 181 CLR 295 at 302-5; Malvaso v The Queen (1989) 168 CLR 227at 238-9.
[27] (1979) 46 FLR 386.
[28] Ibid at 389.
Of course, there may be cases, of which R v Nemer[29] is an example, in which, despite the principles stated in Tait, it is nevertheless appropriate for the Court to grant permission to the Director to appeal.
[29] {2003] SASC 375; (2003) 87 SASR 168.
In my opinion, the principles stated in Tait should be applied in the present case. The Director now attaches considerable significance to the evidence indicating that the respondent’s offence on 12 January 2010 was not an isolated incursion into drug dealing, so that he was not entitled to any lenience. However, the prosecutor did not draw the Judge’s attention to much of this material. There would be an injustice to the respondent if this Court was now to act on the material on which counsel for the Director did not rely at sentencing. That injustice arises in part from the Director’s departure from the content of the sentencing submissions made to the Judge, and in part from the fact that the respondent was not given the opportunity before the Judge to challenge the characterisation of the SMS calls for which the Director now contends. Underlying both matters is the usual aversion of the courts to exposing defendants to forms of double jeopardy in relation to the one offence.
Conclusion
Although I consider that the sentence imposed by the Judge was unduly low, and did fail to maintain proper sentencing standards for the offence of trafficking in a controlled drug, I would refuse to grant permission to the Director to appeal.
DAVID J: I would refuse to grant permission to the Director of Public Prosecutions to appeal. I agree with the reasons of White J.
PEEK J: I agree with the orders proposed by White J and with his reasons.
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