R v Robins - [2016] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROBINS
[2016] SASCFC 55
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Nicholson)
13 May 2016
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against sentence. The appellant pleaded guilty to one count of trafficking in a large commercial quantity of a controlled drug (count one) and one count of trafficking in a controlled drug (count two) contrary to s 32 of the Controlled Substances Act 1984 (SA).
The appellant was sentenced after a disputed facts hearing to three years and seven months imprisonment for count one, and one year, nine months and two weeks imprisonment for count two, to be served concurrently. The sentencing Judge fixed a non-parole period of two years and six months. The sentence was not suspended.
Whether the sentencing Judge erred by providing inadequate reasons for the sentence imposed. Whether the sentencing Judge erred in failing to find good reason to suspend the sentence of imprisonment such that the sentencing discretion has miscarried.
Held per Kelly J (allowing the appeal) (Stanley and Nicholson JJ agreeing):
1.       The sentencing Judge, as a matter of sound sentencing practice, should have dealt with the main submission advanced to him during sentencing submissions, namely that the term of imprisonment should be suspended. It is necessary for this Court to exercise the sentencing discretion afresh.
2.       There is no reason to depart from the head sentences imposed by the sentencing Judge. The appellant is sentenced to three years and seven months imprisonment for count one and one year, nine months and two weeks imprisonment for count two, to be served concurrently.
3.       Good reason does not exist to suspend the appellant’s sentence of imprisonment. The mitigating factors in sentencing can be appropriately reflected by setting a lower non-parole period of two years.
Controlled Substances Act 1984 (SA) s 32(1), s 32(3); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA), referred to.
R, JM v Police (2012) 113 SASR 9; R v Kong (2013) 115 SASR 425, applied.
Harvey v Police [2002] SASC 362, considered.

R v ROBINS
[2016] SASCFC 55
Court of Criminal Appeal: Kelly, Stanley and Nicholson JJ
KELLY J.

This is an appeal against sentence. The appellant pleaded guilty to one count of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (the Act), and to a further count of trafficking in a controlled drug contrary to s 32(3) of the Act. The respective maximum penalties for those offences are life imprisonment or a fine of $500,000 or both, and 10 years imprisonment or a fine…

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 Robins

Details

AGLC: R v Robins [2016] SASCFC 55
Case: [2016] SASCFC 55
Decision Date: 13 May 2016

CaseChat Overview and Summary

This case concerned an appeal against sentence by the appellant, Mr Robins, following his conviction for two counts relating to the possession of controlled substances. The charges arose from the discovery of a package containing a variety of pills, including DNT and ketamine, at a freight shed in the Northern Territory. The appellant had pleaded guilty to the charges, but the factual basis for sentencing was disputed, leading to a hearing before a single judge.

The legal issues before the Court of Appeal were whether the sentencing judge erred in their approach to sentencing, specifically in relation to the imposition of a custodial sentence, and whether the sentence imposed was manifestly excessive. The appellant argued that the sentencing judge failed to give sufficient weight to mitigating factors and that a non-custodial order would have been more appropriate.

The Court of Appeal considered the appellant's role in the offending, noting that he claimed to have been acting on behalf of an acquaintance and had received a small payment for his involvement. The appellant had also acknowledged recklessness as to the nature of the contents of the package. The judges reviewed the principles of sentencing, including the need to deter others, the gravity of the offence, and the personal circumstances of the offender. They found that while the appellant's role might have been at the lower end of culpability, the quantity and nature of the drugs involved were significant.

The Court of Appeal ultimately dismissed the appeal, finding that the sentence imposed by the sentencing judge was not manifestly excessive and that the judge had properly considered all relevant factors in reaching their decision.

Orders

Orders of the court

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Background

Background to the litigation

A single Judge granted permission in respect of the first and third grounds and refused permission in respect of the second ground. In this Court the appellant argues only grounds 1 and 3. Before turning to the merits of the appeal it is convenient to set out the facts which gave rise to the charges and the Judge’s findings which formed the factual basis for sentence.Background On the morning of Thursday 15 August 2013, police deployed a drug detector dog inside a freight shed at Berrimah in the Northern Territory. The dog responded to a box being held in the dangerous goods holding area. That box had the following details upon it “To: J.S. Autos, Darwin from L & M Electrical, pick up from Darwin Depot”. Police searched inside the box and found a 30 litre plastic drum wrapped with bubble wrap and inside it a large resealable bag and 19 PVC pipes sealed with duct tape. Inside the bag and the PVC pipes were a variety of pills containing a variety of substances. The appellant was arrested on 16 August 2013. He initially denied sending the package. The first count related to 6,863 pills totalling 1.689 kilograms containing 5‑methoxy-N,N-diallyltryptamine (DNT). The second count related to 1,474 pills containing various other drugs including DNT, ketamine, 1‑benzylpiperazine, and 1-(3-Trifluoromethylphenyl)piperazine, the total weight of which was 433.96 grams. There were approximately 11,960 other pills containing body building substances or caffeine which were not part of the charged conduct. The appellant entered guilty pleas to both counts on the basis that he was to receive a very small benefit in the sum of $100 for his role and that he was reckless as to the contents of the parcel being controlled substances. The Crown did not accept that factual basis and the matter proceeded to a disputed facts hearing which took place on 17 March 2015. During that hearing the appellant gave evidence. He said that at the time of the offending he was working for Veolia as a truck driver based in the Cooper Basin at Moomba. He claimed to have met a man he knew as “Victor” about 10 years prior to the offending at a buck’s party in the city. The appellant said Victor had offered to fix a vehicle for him and the appellant gave Victor his address. The appellant and Victor became friends, although the appellant did not have a working phone number for Victor and was not sure of his last name. The appellant had previously sent a number of packages for Victor which contained camping and four-wheel drive accessories, straps, boat covers and elastic straps. These parcels had been packaged by the appellant and sent in his own name free of charge through contacts he had at Toll Transport. He said that the package the subject of the current charges was brought to the appellant’s home by Victor who was acting in a manner which raised some suspicion on the part of the appellant. While the appellant stayed inside Victor wrapped the package in the backyard using bubble wrap that the appellant said he had coincidentally purchased to wrap and move a refrigerator. The appellant considered that at worst the package might contain steroids as he believed that Victor was establishing a gym in Darwin. However, late in submissions before the sentencing Judge the appellant acknowledged through his counsel that he had been reckless as to the contents of the package. The appellant said he had put the package in his motor vehicle and had forgotten about it for two days before he arranged for the package to be shipped. He received two $50 notes from Victor as payment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J STANLEY J NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J, STANLEY J, NICHOLSON J

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