SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v PHAM
[2014] SASCFC 95
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Nicholson)
10 September 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - FAILURE TO EXERCISE DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OTHERS
The appellant entered late pleas of guilty to one count of trafficking in a controlled drug (heroin) and one count of the unlawful possession of $3,785. The appellant was sentenced to a term of imprisonment for three years and two months with a non-parole period of one year and six months. The sentence was not suspended.
On appeal the appellant complained only about the failure to suspend and on three grounds: that inadequate consideration was given to the question of whether good reason to suspend the sentence existed; that the wrong test was applied when deciding whether the sentence should be suspended (that is, whether there was "sufficiently good reason" to suspend, as opposed to "good reason"); and, that good reason to suspend ought to have been found.
Held per Nicholson J (Vanstone and Blue JJ agreeing) appeal dismissed on all grounds.
Criminal Law Consolidation Act 1935 (SA) s353; Criminal Law (Sentencing) Act 1988 (SA) s10, s38, referred to.
House v King (1936) 55 CLR 499; Ferguson v Police [2006] SASC 196; Shrubsole v Rodriguez (1978) 18 SASR 233; R v Buckskin [2010] SASC 138; R v Carpentieri (2001) 81 SASR 164; R v Wirth (1976) 14 SASR 291; Bates v Police (1997) 70 SASR 66; Neill v Police [1999] SASC 270; R v Hinton [2002] NSWCCA 405; R v Fowler [2006] SASC 18; R v O’Toole [2013] SASCFC 18; R v Richards [2006] SASC 60; Zafry v Police [2009] SASC 191, considered.
R v PHAM
[2014] SASCFC 95Court of Criminal Appeal: Vanstone, Blue and Nicholson JJ
VANSTONE J.
I agree that this appeal must be dismissed and I agree with the reasons written by Nicholson J.
BLUE J.
I agree with Nicholson J.
NICHOLSON J.
Introduction
The appellant, following a late plea of guilty to one count of trafficking in a controlled drug (heroin) and one count of unlawful possession, against an admitted background of street trading, was sentenced in the District Court to imprisonment for a term of three years and two months with a non-parole period of one year and six months. The sentence was not suspended.
The appellant commenced to serve both the head sentence and the non-parole period on the day of sentencing, 16 April 2014. The Judge gave credit of…
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CaseChat Overview and Summary
The primary legal issue before the appellate court was whether the sentencing judge had failed to exercise his discretion adequately when deciding not to suspend the appellant's sentence of imprisonment. Specifically, the appellant argued that the judge had not properly considered the circumstances of the offending and the appellant's personal circumstances to determine if there was good reason to suspend the sentence, as required by law.
The appellate court found that the sentencing judge had undertaken the appropriate balancing exercise. While the judge's remarks concluding that there was "not satisfied in the case of either of you that there is sufficiently good reason to suspend those sentences of imprisonment" might appear brief, the court held that the sentencing remarks as a whole disclosed that the necessary process had been undertaken. The judge had detailed the nature of the offending and the appellant's personal circumstances, including a forensic psychologist's report. The court concluded that the judge's statement that the "objective seriousness of your offending outweighs those matters favourable to you" was sufficient to indicate that the judge had reviewed the relevant factors in exercising his discretion not to suspend the sentence.
Consequently, the appellate court determined that the decision not to suspend the sentence did not fall outside the available discretion. The appeal was dismissed.
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
Ratio Decidendi
Legal Principle Established
Established by: VANSTONE J, NICHOLSON J
In this case I am not satisfied that any of the three grounds of appeal has been made out. Ground four – the Judge gave inadequate consideration to determining whether good reason to suspend existed The Judge commenced his sentencing remarks by describing the nature of the offending committed by both the appellant and her co-accused and a history of the proceedings as a result of which the appellant, ultimately, pleaded guilty and came to be sentenced. His Honour then described the personal circumstances of the appellant and in so doing drew, in some detail, upon a report provided by the forensic psychologist, Mr Fugler.[2] The Judge then dealt with matters relevant only to the appellant’s co-accused following which his Honour set the head sentence and the non-parole period for each. The Judge concluded his substantive remarks with the following.[3] I am not satisfied in the case of either of you that there is sufficiently good reason to suspend those sentences of imprisonment. You are both to be commended for what you have done since this offending to try and restore your lives. But, the objective seriousness of your offending outweighs those matters favourable to you. Your sentences of imprisonment will commence today.[2] Dated 11 February 2014; AB at 65.[3] AB at 105. The appellant’s principal complaint under ground four is that the Judge, having determined that imprisonment was appropriate, failed, as his Honour was obliged to do, to consider again the circumstances of the offending and the circumstances personal to the appellant so as to determine whether good reason existed to suspend the sentence. Counsel argued that because the only reference in the sentencing remarks to the possible suspension of the sentence was in the concluding remarks (set out above) it was to be inferred that the Judge failed to undertake this necessary process. It is true that those matters identified in s10 of the Criminal Law (Sentencing) Act 1988 (SA) relevant to the sentencing of a particular offender, ordinarily, should be considered at every stage of the process:[4] the decision whether or not to impose a term of imprisonment and, if so; the setting of the head sentence; the setting of the non-parole period; and the decision whether or not to suspend any such prison sentence. However, it is not expected that a sentencing judge will laboriously repeat all of the relevant considerations where the undertaking of each stage of the sentencing process is recorded in the sentencing remarks. [4] Cf; R v Shrestha [1991] HCA 26, (1991) 173 CLR 48 at 68-69; R v Creed (1985) 37 SASR 566. What is necessary, in this respect, is that the sentencing remarks, as a whole, disclose that the appropriate process has been undertaken. In this case, the Judge set out in some detail in his remarks a summary of factors relevant to sentencing. In the relatively straightforward circumstances of this case, the Judge’s penultimate sentence – “but the objective seriousness of your offending outweighs those matters favourable to you” – was sufficient to indicate that his Honour also reviewed the circumstances of the offending and of the offender in the context of his Honour’s exercise of the discretion not to suspend.