R v Pirgousis - [2012] SASCFC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PIRGOUSIS
[2012] SASCFC 127
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice White and The Honourable Justice Stanley)
5 December 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS
Appeal against sentence – appellant plead guilty to attempting to traffic in a large commercial quantity of a controlled drug – appellant sentenced to four years five months and three weeks with a non-parole period of two years and nine months – appellant appeals on following grounds: (1) sentence was manifestly excessive – (2) sentence failed to adequately reflect the lesser role played by the appellant in comparison to a co-offender – (3) sentence did not adequately reflect the lesser period of time in which the appellant was involved in the enterprise – (4) sentencing Judge failed to sufficiently take into account the appellant’s progress towards rehabilitation.
Held: Appeal dismissed. (1) Offence was amongst the most serious of offences of its kind – the sentence was not so severe that it was plainly unjust or a sentence which no reasonable Judge could have imposed – (2) and (3) the appellant played a significant and important role and was involved as a principal of the enterprise – (4) evidence does not support that the appellant’s prospects for rehabilitation are strong.
Controlled Substances Act 1984 (SA) s 32; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA) Sch 1 Pt 1; Criminal Law Consolidation Act 1935 (SA) s 270A, referred to.
R v Tennant (2010) 107 SASR 504, considered.

R v PIRGOUSIS
[2012] SASCFC 127
Court of Criminal Appeal: Kourakis CJ, White and Stanley JJ

KOURAKIS CJ: The appellant appeals against the sentence imposed on his conviction for the offence of attempting to traffic in a large commercial quantity of cannabinoid between 15 and 22 September 2008 at Murray Bridge. The appellant was sentenced to a head sentence of four years five months and three weeks (to take into account a period of one week spent in custody before he was released on bail) with a non-parole period of two years and nine months. I will refer to this offence as the 2008 offence. I would dismiss the appeal for the reasons given below.
The offending
The cannabinoid, the subject of the 2008 offence, was found in a vehicle being driven to New South Wales by the appellant’s co-offenders, Clark and Tassone. Cannabis plant material weighing about eight kilograms was found in the car but it was too moist to fall within the definition of cannabinoid for the purposes of the Controlled Substances Act 1984 (SA) (the Act).[1] The appellant, by his plea, admitted that he intended to traffic in a large commercial…

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.

Continue reading R v Pirgousis

Details

AGLC: R v Pirgousis [2012] SASCFC 127
Case: [2012] SASCFC 127
Decision Date: 5 December 2012

CaseChat Overview and Summary

The appeal in *R v Pirgousis* was brought before the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, White and Stanley JJ. The appellant sought to appeal his sentence after pleading guilty to attempting to traffic in a large commercial quantity of a controlled drug. He was sentenced to four years and five months imprisonment, with a non-parole period of two years and nine months.

The appellant raised four grounds of appeal. Firstly, he argued that the sentence imposed was manifestly excessive. Secondly, he contended that the sentence failed to adequately reflect his lesser role in the offending compared to a co-offender. Thirdly, he argued that the sentence did not sufficiently account for the shorter period of his involvement in the criminal enterprise. Finally, the appellant submitted that the sentencing judge did not give sufficient weight to his progress towards rehabilitation.

The Court dismissed the appeal, finding that the offence was among the most serious of its kind and that the sentence was not so severe as to be plainly unjust or one that no reasonable judge could have imposed. Regarding the appellant's role and period of involvement, the Court determined that he played a significant and important role as a principal in the enterprise. Furthermore, the Court found that the evidence did not support the appellant's claims of strong prospects for rehabilitation, noting that the termination of a long-term domestic relationship, which the appellant suggested enhanced his rehabilitation prospects, had only a marginal influence on his decision to offend.

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

The appellant also claimed that his prospects of rehabilitation were enhanced by the termination of the long term domestic relationship after the commission of the 2008 offences to which I have already referred. The material put before the Judge on the nature of that relationship was contradictory. There is no reason to think that the relationship had anything more than a marginal influence on Pirgousis’ decision to offend.Conclusion I would dismiss the appeal. WHITE J: I agree that the appeal should be dismissed and with the reasons of the Chief Justice. STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

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