R v Sansone

[2015] SASCFC 168

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SANSONE

[2015] SASCFC 168

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Nicholson)

16 November 2015

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

Appeal against sentence.  The appellant pleaded guilty to administering a drug to his former partner.  He was sentenced to 10  months, one week and five days' imprisonment.  The sentencing Judge had reduced the head sentence she would have imposed by two months for time the appellant had spent in custody.

The two-month period taken into account for time spent in custody was in fact five months and nine days.  Counsel had misinformed the Judge.  The prosecution conceded that the appellant had been sentenced on an incorrect factual basis.

Held, allowing the appeal (the Court):

1.  The sentence is set aside.  The Court proceeds on the basis that the head sentence of 12 months, one week and five days, before taking into account time spent in custody, was correct.

2.  The appellant is re-sentenced to 12 months, one week and five days' imprisonment, with a non-parole period of seven months' imprisonment.  The sentence and non-parole period are backdated to 29 April 2015.

Controlled Substances Act 1984 (SA) s 33I(1)(a); Criminal Law (Sentencing) Act 1988 (SA) s 9A, referred to.

R v SANSONE
[2015] SASCFC 168

Court of Criminal Appeal:       Sulan, Peek and Nicholson JJ

1. THE COURT:      This is an appeal against sentence. The appellant pleaded guilty in the Magistrates Court to administering a drug to his former partner, contrary to s 33I(1)(a) of the Controlled Substances Act 1984 (SA). The maximum penalty for the offence is a fine of $50,000 or imprisonment for 10 years, or both. On 8 October 2015, the appellant was sentenced to 10 months, one week and five days’ imprisonment. He has appealed against the sentence.

2. The history of the matter is that on 21 February 2015, the appellant was at home with his partner and two young children, aged 8 and 2, both of whom were asleep.  The appellant and his partner are both users of illicit drugs. 

3. The appellant’s partner asked him to mix a shot of methylamphetamine which she intended to inject.  The appellant administered a quantity of the methylamphetamine intravenously to himself.  His partner, who had administered some methylamphetamine to herself, was attempting to inject herself to administer a further quantity of the drug.  According to the appellant, she was having difficulty in finding a vein.  He offered to help her and did so by injecting the drug for her. 

4. The appellant’s partner began to react in a bizarre way.  Neighbours called an ambulance.  As a consequence, the appellant was charged with the offence to which he pleaded guilty.

5. The appellant has a supportive family.  In 2007, he suffered a brain aneurism and continues to suffer some speech problems.  He has a lengthy drug history.

6. The appellant was arrested on 21 February 2015.  On 24 February 2015, he was remanded in custody in respect of charges of aggravated assault and contravening a term of an intervention order.  Those charges were dismissed on 10 August 2015.  The charges which were dismissed were based upon the same conduct which formed the basis for the charge of administering a controlled drug. Between 24 February and 29 April 2015, the appellant was in custody in respect of a breach of bond for prior offending.  He remained in custody from 29 April 2015 until he was sentenced on 8 October 2015 in respect of the offence the subject of this appeal. 

7. The trial Judge sentenced the appellant to 10 months, one week and five days’ imprisonment.  The Judge commenced with a notional head sentence of 18 months’ imprisonment, which she reduced to 12 months, one week and five days on account of the appellant being entitled to a 30 per cent discount for his early plea of guilty.  She reduced that sentence by two months, as she had been advised that the appellant had spent two months in custody in respect of the offence with which she was dealing.  The result was that the appellant received 10 months, one week and five days’ sentence of imprisonment. 

8. After the sentence had been imposed, counsel who had appeared for the appellant wrote to the Chambers of the Judge.  He made the following observation:

   What would have been a sentence of 18 months was reduced to 12 months, one week and five days on account of the plea of guilty.  Her Honour then reduced the sentence by a further two months for the time that had been spent in custody.  However, because the sentence was then less than 12 months, Her Honour correctly said she could not set a non‑parole period.

   I am concerned that it has potentially placed my client in a worse position than might otherwise have been the case.  Had I known that this would be the outcome I may not (for example) have asked Her Honour to reduce the sentence by the two months.  That might have made the difference to whether Her Honour considered a non-parole period (which of course could possibly have been shorter than the current sentence).

   ...

   For those reasons could I respectfully ask that the matter be called back on for further submissions?

9. The Judge’s Associate responded that the Judge was not prepared to call the matter back on for further submissions, as she considered that she did not have power to rectify or re-sentence the appellant. Section 9A of the Criminal Law (Sentencing) Act 1988 (SA) only permits a judge to rectify an “error of a technical nature” and, as this was not such an error, Her Honour considered that she was functus officio.  The only way in which the sentence could be corrected is by appeal to the Court of Criminal Appeal.

10. As I have indicated, the appellant appealed.  It is now evident, and accepted by the Director, that the period of two months referred to in the letter of counsel was an error.  In fact, the period should have been five months and nine days.  It is conceded, therefore, that the appellant has been sentenced on a materially incorrect factual basis. 

11. Therefore, it is appropriate that this Court re-sentence the appellant.  There is no submission that the notional starting point of 18 months was manifestly excessive.  We therefore proceed on the basis that that notional sentence was appropriate.

12. Allowing for a 30 per cent discount for the early guilty plea, the notional 18‑month sentence is reduced to 12 months, one week and five days.  We would set a non-parole period of seven months’ imprisonment.  Having regard to the fact that the appellant has now been in custody since 29 April 2015 in respect of this offence, we would backdate the head sentence and the non-parole period to 29 April 2015. 

13. The appellant is entitled to be released on parole on 29 November 2015. 

14. The appeal is allowed.  The sentence is set aside.  The appellant is re‑sentenced to 12 months, one week and five days’ imprisonment, with a non‑parole period of seven months’ imprisonment, the sentence and non-parole period to commence on 29 April 2015