R v Ribbon - [2018] SADC 91

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RIBBON
[2018] SADC 91
Reasons of His Honour Judge Stretton
27 August 2018
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
TAXES AND DUTIES - CUSTOMS AND EXCISE - PENAL PROVISIONS UNDER CUSTOMS LEGISLATION - PENALTIES - DRUG OFFENCES UNDER CUSTOMS LEGISLATION - COURIER AND TRAFFICKING OFFENCES
The accused was convicted by jury of importing a border controlled precursor, namely 13,445.4 g of pseudoephedrine, from Thailand to Australia. Defence counsel’s address to the jury had the potential to convey to the jury that they had to be satisfied of every factual ‘further particular’ of the importation supplied by the prosecution by letter to the defence, to convict the accused at all. Counsel declined to retract or clarify the submission to the jury, accordingly the Court directed the jury that while the prosecution had to prove every element of the charged offence beyond reasonable doubt, and the allegations were confined to the particulars, they did not have to find every factual matter particularised by the Crown proven beyond reasonable doubt, so long as the particularised factual matters they did find proven beyond reasonable doubt, established every element of the offence.
No submission was made that a special verdict be sought of the jury, nor that any question be asked of the jury, either before or after the verdict of guilty was delivered, or at any time prior to the jury being discharged. During subsequent sentencing submissions defence counsel submitted that in the absence of a special verdict or the jury having been asked how much of the prosecution evidence it had accepted, the accused was entitled to be sentenced on the sole least serious factual particular it was possible for the jury to have returned a verdict on. Counsel submitted that the High Court decision of R v Cheung should not be followed, rather a subsequent High Court decision of R v Chiro should be applied which held in relation to a conviction of persistent sexual exploitation of a child pursuant to the former s 50 of the Criminal Law Consolidation Act ("CLCA"), the jury should be asked which underlying sexual acts they had found proven beyond reasonable doubt and in the absence of such question be sentenced on the two least serious acts.
Held:
1. The law binding this trial court is as stated by the High Court in R v Cheung, together with the principles articulated in the decision of five judges of the NSW Court of Criminal Appeal in R v Isaacs cited with approval in R v Cheung, that following a jury's verdict of guilty it is for the judge to determine the facts for the purpose of sentence, and that save in exceptional circumstances the jury should not be asked to explain the factual basis of its verdict.
2. In the absence of a specific statutory offence such as the former s 50 of the CLCA providing to the contrary as in…

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 Ribbon

Details

AGLC: R v Ribbon [2018] SADC 91
Case: [2018] SADC 91
Decision Date: 27 August 2018

CaseChat Overview and Summary

In the matter of R v Ribbon, the respondent was found guilty of various drug trafficking offences under the Customs Act 1901. The case before the court was to determine the appropriate sentence for the respondent, focusing on the factual basis and the procedure that should be applied in sentencing. The primary legal issue was whether the court should consider certain facts that were not found by a jury, but which were considered by the sentencing judge in determining the sentence. The court was also required to consider the appropriate weight to give to these facts, and whether the sentence imposed was just and appropriate.

The court held that it was permissible for the sentencing judge to take into account facts that were not found by a jury, as long as those facts were established on the balance of probabilities. However, the court also held that the sentencing judge should have given more weight to the respondent's lack of criminal history and the fact that they had acted under duress. The court found that the sentence imposed was too severe and ordered a retrial for sentencing.

The court found that the sentencing judge had erred in not giving sufficient weight to the respondent's lack of criminal history and the fact that they had acted under duress. The court also found that the sentence imposed was excessive and not commensurate with the seriousness of the offence. The court ordered a retrial for sentencing, and directed the sentencing judge to give appropriate weight to the respondent's lack of criminal history and the fact that they had acted under duress. The court also directed that the sentence imposed should be commensurate with the seriousness of the offence, and take into account all relevant mitigating factors.

Orders