R v Rombola

Case [2020] SASCFC 76

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ROMBOLA

[2020] SASCFC 76

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Bleby)

13 August 2020

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

Application by the South Australian Director of Public Prosecutions for permission to appeal against sentence.

On 21 July 2016, police observed the respondent seated in the driver’s seat of his car at the Elizabeth South Shopping Centre. The car was searched and the respondent was found to be in the possession of 15.47 grams of crystals containing 12.73 grams of methylamphetamine at a purity of over 76 percent, along with two mobile phones, a set of digital scales and a glass ice-pipe. The crystals were packaged in several plastic resealable bags in various quantities. As packaged, the value of the methylamphetamine was between $4650 and $7325.

Police searched the respondent’s home and found a plastic resealable bag containing white crystals that did not contain any methylamphetamine, four packets of clean plastic resealable bags that were identical in appearance to those found in the car and a blue note book containing a ‘tick list’.

The respondent pleaded guilty to trafficking in methylamphetamine, but at a disputed facts hearing, he gave evidence that he and some friends had pooled their money in order to carry out a block purchase of the methylamphetamine, and his role was simply to collect the drugs on behalf of the group.

The sentencing judge did not accept this version of events, concluding that the respondent was selling drugs in order to support his habit and that there was some element of commerciality. He imposed a sentence of imprisonment of two years and six months, and a non-parole period of one year.

Held (per Bleby J, Blue and Stanley JJ agreeing), granting permission to appeal and allowing the appeal:

1. The head sentence is manifestly inadequate, being well below the range indicated by previous decisions of this court for this type of offending, with no apparent justification.

2. The sentence is set aside.

3. From a notional head sentence of four years and three months, reduced by 10 percent for the appellant’s early guilty plea, a head sentence of three years and 10 months is imposed, with a non-parole period of two years and four months, to operate from 20 January 2020.

Controlled Substances Act 1984 (SA) 32(3), s 44, referred to.
Da Silva v The Queen [2020] SASCFC 66; R v Nemer (2003) 87 SASR 168; R v Young (2016) 126 SASR 41, applied.
Malvaso v The Queen (1989) 168 CLR 227; R v Buttigieg [2020] SASCFC 38; Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1977) 137…

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AGLC
R v Rombola [2020] SASCFC 76
Case
[2020] SASCFC 76
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Director of Public Prosecutions against the sentence imposed on the respondent, R v Rombola, in the Supreme Court of South Australia. The respondent had been convicted of a drug trafficking offence.

The primary legal issue before the Full Court was whether the sentencing judge had erred in imposing a non-parole period that was unduly lenient, failing to adequately reflect the seriousness of the offence and the need for general and personal deterrence. The Director argued that the sentencing judge had given too much weight to mitigating factors concerning the respondent's personal circumstances and rehabilitation efforts, while underemphasising the gravity of the trafficking offence.

The Full Court reasoned that while the respondent's obligations to his son and his progress in prison were relevant considerations, they did not justify the exceptionally low non-parole period imposed. The court emphasised the importance of balancing these mitigating factors against the fundamental sentencing principles of punishment, general deterrence, and personal deterrence, particularly in drug trafficking cases. The court concluded that the original sentence did not adequately reflect these principles.

Consequently, the Full Court granted the Director's application for leave to appeal, allowed the appeal, and set aside the original sentence. A new sentence was imposed, comprising a head sentence of three years and 10 months imprisonment, with a non-parole period of two years and four months, commencing from the date of the respondent's custody.

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 sentencing judge imposed a ‘lower than usual non-parole period of imprisonment for one year’ having regard to the respondent’s obligations to his son, the steps that he had finally taken whilst in prison and his Honour’s ‘assessment that you are not without hope for the future’.[28] These matters are relevant to assessing the appropriate non-parole period. As the Director submits, however, it is necessary to weigh those factors against the other relevant sentencing factors, including the need for personal and general deterrence, punishment and the severity of the offending. I would set a non-parole period of two years and four months.[28] Remarks on Penalty at 5.Conclusion I would grant permission to appeal. I would allow the appeal and set aside the sentence. I would impose a head sentence of three years and 10 months and set a non-parole period of two years and four months. The sentence and non‑parole period are to operate from 20 January 2020, when the respondent was taken into custody.

Ratio Decidendi

Legal Principle Established

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