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R v POKOINA

R v POKOINA

Case [2024] SASCA 132 21 November 2024

Statutory Interpretation

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v POKOINA
[2024] SASCA 132
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice S Doyle and the Honourable Justice Stein)
21 November 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - IMPORT-EXPORT OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING COCAINE
This is an application by the Commonwealth Director of Public Prosecutions for permission to appeal against sentence on the ground that the respondent’s sentence for the offence of importing a commercial quantity of a border controlled drug, contrary to s 307.1(1) of the Criminal Code, was manifestly inadequate.
The respondent pleaded guilty to this offence after his involvement in the importation of 14.3 kg of cocaine from Greece to Australia in August 2020. The quantity of cocaine was such that the applicable maximum penalty for the offence was imprisonment for life and/or a fine of $1.665 million.
After appropriate reductions, the judge identified a sentence of imprisonment for six years, one month and 29 days and fixed a non-parole period of three years and two months. After credit of one month and 15 days for time served, the judge imposed a sentence of imprisonment for six years and 14 days, with a non-parole period of three years and 15 days.
Held, (per the Court), granting permission to appeal, allowing the appeal, setting aside the sentence imposed below and resentencing the respondent:
1.Having regard to the seriousness of the offending, the respondent’s personal circumstances and the primary sentencing objectives of general deterrence, punishment and denunciation for Commonwealth drug importation offences, the sentence imposed was manifestly inadequate;
2.After weighing the public policy reasons for appellate intervention against the principles of double jeopardy, this is an appropriate case in which to grant permission to appeal; and
3.From a starting point of 12 years, but after appropriate reductions, the respondent is resentenced to a term of imprisonment for eight years, 10 months and 15 days, with a non-parole period of four years, 10 months and 15 days, backdated to commence on 26 February 2024.

Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth) sch 1, ss 11.2, 11.5(1), 307.1(1); Criminal Code Regulations 2019 (Cth), referred to.
Adams v The Queen (2008) 234 CLR 143; AE v R [2023] NSWCCA 74; Barbaro v The Queen (2014) 253 CLR 58; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; R v Berry [2024] SASCA 116; R v Buttigieg [2020] SASCFC 38; R v Constant (2016) 126 SASR 1; R v Holland (2011) 205 A Crim R 429; R v Kelly [2023] SASCA 22;

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 POKOINA

Details

AGLC: R v POKOINA [2024] SASCA 132
Case: [2024] SASCA 132
Decision Date: 21 November 2024

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Pokoina, who had pleaded guilty to one count of importing a commercial quantity of cocaine. The sentencing judge had imposed a term of imprisonment of three years, with a non-parole period of 18 months. The Crown argued that this sentence was manifestly inadequate.

The central legal issue before the Court of Criminal Appeal was whether the sentence imposed by the primary judge was so lenient as to be outside the range of a proper exercise of discretion, thereby justifying intervention on appeal. This required the court to consider the principles governing sentencing for large-scale commercial drug importations, including the gravity of the offence, the need for general deterrence, and the appropriate weight to be given to mitigating factors.

The Court noted that importing a commercial quantity of cocaine is a serious offence, and that general deterrence is a significant consideration in sentencing. While acknowledging the mitigating factors present, including the respondent's plea of guilty and his limited prior record, the Court found that the sentencing judge had placed too much emphasis on these factors and not enough on the objective seriousness of the offending. The Court concluded that the sentence of three years imprisonment was manifestly inadequate and that a significantly higher sentence was warranted to reflect the gravity of the offence and the need for general deterrence.

The Court allowed the Crown's appeal, quashed the original sentence, and resentenced the respondent to a term of imprisonment of five years, with a non-parole period of two years and six months.

Orders