R v Richards - [2012] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RICHARDS
[2012] SASCFC 61
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Peek)
1 June 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS - GROUNDS FOR DISCRIMINATION BETWEEN CO-OFFENDERS - DEGREE OF CRIMINALITY
Appeal against sentence – the appellant pleaded guilty to six counts of taking part in the sale of a drug of dependence or a prohibited substance, contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA) – a Judge of the District Court of South Australia imposed a sentence of imprisonment of 11 years and two months reduced from 14 years on account of the appellant’s early plea of guilty, and fixed a non parole period of seven years.
The ground of appeal was that the sentence imposed was manifestly excessive – the issues put into contention to support that ground of appeal were: (1) whether the Judge made an appropriate allowance for the plea of guilty - whether the sentencing Judge made insufficient allowance for the appellant’s cooperation with the police; and (2) whether the Judge failed to differentiate adequately between himself and a co offender whose offending was more serious.
Held: (1) the circumstances that the plea of guilty came late, the prosecution case was overwhelming, and the level of cooperation with the police, supported the Judge’s decision not to make a further allowance for the plea of guilty – the allowance can not be said to be inadequate; (2) the sentence reflects adequately the circumstance that the co-offender’s offending was more serious than that of the appellant’s – the relationship between the sentence imposed on the appellant and that imposed on the co-offender could not give rise to any justified sense of grievance on the part of the appellant.
Appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(d), referred to.

R v RICHARDS
[2012] SASCFC 61
Court of Criminal Appeal: Doyle CJ, Nyland and Peek JJ

DOYLE CJ: Mr Richards appeals against a sentence imposed by the District Court, a Judge of this Court having granted him permission to appeal. Mr Richards was sentenced to imprisonment on six counts of taking part in the sale of a drug of dependence or a prohibited substance, contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA) (the CSA). Mr Richards had pleaded guilty to those charges. He was sentenced to imprisonment for 11 years and two months. A non-parole period of seven years was fixed. But for his pleas of guilty, and certain assistance provided to the police, the Judge would have sentenced him to imprisonment for 14 years.
Mr Richards now complains that the sentence is excessive. The first complaint is…

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 Richards

Details

AGLC: R v Richards [2012] SASCFC 61
Case: [2012] SASCFC 61
Decision Date: 1 June 2012

CaseChat Overview and Summary

The appellant, R v Richards, appealed against a sentence imposed by the District Court of South Australia. The appellant had pleaded guilty to six counts of taking part in the sale of a drug of dependence or a prohibited substance. The sentencing judge imposed a sentence of 11 years and two months imprisonment, reduced from 14 years due to the early plea of guilty, and fixed a non-parole period of seven years.

The appeal raised two primary issues: first, whether the sentencing judge made an appropriate allowance for the appellant's plea of guilty and his cooperation with the police; and second, whether the judge adequately differentiated the appellant's sentence from that of a co-offender whose offending was more serious. The appellant argued that the overall sentence was manifestly excessive.

The Full Court of the Supreme Court of South Australia dismissed the appeal. The court reasoned that the late timing of the plea of guilty, coupled with the overwhelming prosecution case, justified the sentencing judge's decision not to grant a more significant reduction. Furthermore, the court found that the appellant's cooperation with the police, which occurred some four years after the offences and only after he had been charged with another serious offence, and his conditional offers to give evidence, did not warrant further credit. The allowance of 20 per cent for the plea and cooperation was deemed appropriate. Regarding the co-offender, the court noted that the sentencing judge had described the co-offender as being "higher up" in the drug distribution chain and having committed more serious offences involving substantial quantities of drugs. The court concluded that the sentence imposed on the appellant adequately reflected this disparity and that there was no justified sense of grievance regarding the relationship between his sentence and that of the co-offender.

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

Reviewing the sentence as a whole, and its relationship to that imposed on Mr Millard, I consider that the sentence imposed on Mr Richards was within an appropriate range, that the Judge has made adequate allowance for the pleas of guilty and for cooperation with the police, and that the relationship between the sentence imposed on Mr Richards and that imposed on Mr Millard cannot give rise to any justified sense of grievance on the part of Mr Richards.Conclusion I would dismiss the appeal. NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by the Chief Justice. PEEK J: I agree with the orders proposed by the Chief Justice and with his reasons.

Ratio Decidendi

Legal Principle Established

It is not necessary to say much more about the offending itself. Mr Richards committed serious offences, in the course of a substantial commercial trading activity. As counsel for the Director submitted, and I agree, Mr Richards’ offending must have resulted in substantial profits for Mr Gee and others involved. What he did gave rise to the commission of many other crimes by other offenders, further down the line of distribution. This was very serious offending. Consideration of appeal The circumstance that the plea of guilty came so late in the piece, and the further circumstance that the prosecution case was overwhelming, supports the Judge’s decision not to allow “really significant credit” for the plea of guilty. There is no reason to think that the plea of guilty reflected remorse or contrition on the part of Mr Richards. All that can be said is that he has made a trial unnecessary. As to the assistance provided by Mr Richards to the police, I again agree with the submission by counsel for the Director. The relevant statements were given to the police some four years after the offences were committed, and only after Mr Richards had been charged with an offence of attempted murder. Mr Richards said that he was willing to give evidence against Mr Gee, but only if he received an immunity from prosecution. That request for immunity was rejected. He later offered again to give evidence after he had pleaded guilty, but by then Mr Gee had absconded, and he still has not been found. Not surprisingly, this offer was rejected. In all of the circumstances, the allowance of 20 per cent that the Judge made for the plea of guilty and for assistance provided to the police was an appropriate one. It cannot be said to be inadequate. I reject this complaint. I turn now to Mr Millard, and the sentence imposed on him. The Judge described Mr Millard as “higher up” in the chain of distribution. I have considered the sentencing remarks of the Judge who sentenced Mr Millard. Mr Millard pleaded guilty in May 2008, at an early stage of the proceedings against him. He pleaded guilty to 17 offences. In brief, they are three counts of taking part in the sale of amphetamine, three counts of taking part in the sale of methylamphetamine, one count of taking part in the sale of cocaine, one count of taking part in the sale of LSD and two counts of taking part in the sale of ecstasy. He was also charged on five separate counts of possessing for sale methylamphetamine, ecstasy, LSD, cannabis and cocaine. All but one of these offences attracted a maximum punishment of 25 years’ imprisonment or a fine of $200,000 or both. Mr Millard also pleaded guilty to two counts of possessing a firearm without a licence. It is not surprising that the sentencing Judge described Mr Millard as “relatively high” in the network or system established by Mr Gee. The Judge commented that he was obviously “the trusted deputy of someone at or near the top”. The offences to which he pleaded guilty involved a substantial quantity of drugs. He was found to be in possession of a large amount of money. As is apparent from what I have said earlier, the network of which he became a willing part involved trading by Mr Gee and others in a very substantial way.