(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David)
8 May 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
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
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - POSSESSION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - IMPORT-EXPORT OFFENCES
This is an application by the Commonwealth Director of Public Prosecutions, seeking permission to appeal the sentences imposed on the respondents for attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth), on the ground that the sentences were manifestly inadequate.
Each respondent pleaded guilty to attempting to possess 114.76 kg of unlawfully imported cocaine. Due to the significant quantity of cocaine, the applicable maximum penalty for the offence was imprisonment for life or a fine of $2.347 million.
For each respondent, following appropriate reductions, the judge imposed a sentence of imprisonment for three years and one day, with a non-parole period of 18 months, backdated to commence on 3 February 2024 when the respondents first entered custody.
Held, (per the Court), granting the Director permission to appeal, allowing the appeal, setting aside the sentences imposed and re-sentencing the respondents:
1.Having regard to the seriousness of the offending, the respondents’ essential albeit menial role in the criminal enterprise, their youth and their favourable personal circumstances, the sentences were manifestly inadequate.
2.The length of the sentences was so disproportionately low as to amount to an error of principle that undermines public confidence in the administration of justice and makes this Court’s principled intervention necessary.
3.The respondents are each re-sentenced to nine years’ imprisonment, reduced for their guilty pleas by 25 per cent to six years and nine months, with a non-parole period of four years, backdated to 3 February 2024.
[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.
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AGLC
R v Sadik [2025] SASCA 46
Case
[2025] SASCA 46
Decision Date
CaseChat Overview and Summary
The Crown appealed against the sentences imposed on the respondents in the Court of Criminal Appeal. The primary ground for the appeal concerned the structure of the sentences, with the Crown arguing they were manifestly inadequate.
The Court was required to determine whether the sentences imposed were so disproportionate to the seriousness of the crimes as to undermine public confidence in the administration of justice, and whether intervention was necessary to establish and maintain adequate standards of punishment. Specifically, the Court considered whether the sentencing judge erred in concluding that bail conditions amounted to quasi-custody, justifying a back-dating of the sentence, and whether the sentences were too low given the quantity of cocaine involved and the respondents' roles.
The Court acknowledged the breadth of a sentencing judge's discretion but found that the sentences imposed were out of step with comparable cases and were plainly manifestly inadequate. The Court noted that the respondents were involved in attempting to possess a large quantity of cocaine worth millions of dollars, and despite findings of reduced moral culpability and favourable personal circumstances, the sentences were so disproportionately low as to constitute an error of principle. The Court also questioned the sentencing judge's favourable inferences drawn in the absence of evidence, particularly regarding the respondents' knowledge of the gravity of their task and the contents of the packages.
Permission to appeal was granted, and the appeal was allowed. The Court set aside the original sentences and proceeded to re-sentence the respondents.
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 Crown appeal against sentence, principally concerning a complaint about the structure of the sentence, was dismissed. The Court of Criminal Appeal accepted that it was not open to the sentencing judge to conclude that the stricter conditions of bail amounted to quasi‑custody, justifying the back‑dating of the sentence by six months. Nonetheless, the Court was persuaded that the residual discretion should be exercised and that it should decline to intervene.[66][66] R v Butler [2024] NSWCCA 133, [1] (Ward P); [44]-[61] (Campbell J).Conclusions on manifest inadequacy and permission to appeal Whilst this Court ought never lose sight of the importance of the breadth of the sentencing discretion reposed in a sentencing judge, as was recognised in the well-known case of R v Osenkowski,[67] a prosecution appeal against sentence must in appropriate circumstances be allowed so as to establish and maintain adequate standards of punishment for crime, to correct idiosyncratic views of individual judges and to correct a sentence which is so disproportionate to the seriousness of the crime that it undermines public confidence in the administration of justice.[68][67] R v Osenkowski (1982) 30 SASR 212.[68] R v Ozenkowski (1982) 30 SASR 212, 213 (King CJ). It is a remarkable feature of the sentences imposed in this case that they are out of step with the sentences relied on and the subject of submissions before the sentencing judge. When one takes into account the sentences in the schedule relied on before the sentencing judge, and the sentences considered in this appeal, it is clear that the sentences imposed in this case are too low. Having regard to the maximum penalty of life imprisonment, the essential role undertaken by each respondent in attempting to possess a vast and valuable quantity of cocaine worth millions of dollars, and notwithstanding the sentencing judge’s findings about the reduced moral culpability of each respondent and their favourable personal circumstances, the sentences imposed were plainly manifestly inadequate. They are so manifestly inadequate as to amount to an error of principle. Sentences such as these undermine public confidence in the administration of justice. Indeed, having regard to the circumstances of the offending and the circumstances of the offenders, the sentences in this case are so disproportionately low that this Court’s principled intervention is necessary. Permission to appeal should be granted and the appeal allowed. It is necessary to set aside the sentences and proceed to re‑sentence.Re‑sentencing the respondents There is no issue about the proper approach to be taken to sentencing for offending of this kind.[69] [69] R v Nguyen; R v Pham (2010) 205 A Crim R 106, [72] (Johnson J, with whom MacFarlan JA and RA Hulme J agreed). When considering the circumstances of this case, there were a number of findings made by the sentencing judge which were not challenged but which could have been questioned, especially where the sentencing judge consistently drew inferences favourable to the respondents in the absence of evidence. As mentioned earlier, the sentencing judge found that neither knew the “gravity of the task” they were asked to undertake nor “what was in the packages and the number of them”. This appears unlikely given the respondents had already travelled from Melbourne to Perth and back, and then from Melbourne to Adelaide, whereupon they purchased tools to break into the buses. They had a number of plastic bags for transporting the cocaine. In addition, they were taking instructions from persons they knew to be involved in the distribution of illicit drugs.