R v Sarandoglou

Case [2010] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SARANDOGLOU

[2010] SASC 190

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Kourakis)

30 June 2010

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - OTHER SUBSTANCES

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA

Appellant pleaded guilty to taking part in manufacture of a drug of dependence – methylamphetamine – sentenced to 15 months’ imprisonment with a non-parole period of 12 months’ imprisonment – sentence not suspended – whether non-parole period too great a proportion of head sentence – whether sentence should have been suspended – non-parole period called for given seriousness and circumstances of offending – no error demonstrated in Judge’s decision not to suspend sentence – appeal dismissed.

Controlled Substances Act 1984 (SA) s 32(1)(b); Criminal Law Consolidation Act 1935 (SA) s 353(4), s 353(4)(a), s 353(5); Criminal Law (Sentencing) Act 1988 (SA) s 32(1), s 32(5); Correctional Services Act 1982 (SA) s 66(1), s 67, s 68, s 69, s 74, s 74AA, s 76, s 77, referred to.
The Queen v Creed (1985) 37 SASR 566; The Queen v Stewart (1984) 35 SASR 477; The Queen v Shrestha (1991) 173 CLR 48, discussed.
R v Barnett (2009) 54 MVR 283; Foley v Police [2008] SASC 338; R v Major (1998) 70 SASR 488; R v Power [2003] SASC 288; R v Matthews [2008] SASC 259; House v The King (1936) 55 CLR 499, considered.

R v SARANDOGLOU
[2010] SASC 190

Court of Criminal Appeal:  Doyle CJ, White and Kourakis JJ

  1. DOYLE CJ:          Ms Sarandoglou has been granted permission to appeal against a sentence imposed by the District Court.  She appeals on the ground that the sentence is manifestly excessive.

  2. Ms Sarandoglou pleaded guilty to a charge of taking part in the manufacture of a drug of dependence, namely methylamphetamine, contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) (now repealed).

  3. The maximum punishment for that offence is a fine of $200,000 or imprisonment for 25 years or both.  The District Court Judge imposed a sentence of imprisonment for 15 months.  But for her plea of guilty, he would have sentenced her to imprisonment for 18 months.  The Judge fixed a non-parole period of 12 months.  The Judge declined to suspend the sentence.

  4. The circumstances of the offence can be stated briefly.  Ms Sarandoglou was using equipment that she said belonged to her deceased father to extract pseudoephedrine from certain medications.  She was doing this in the company of her partner, in the unit in which she lived.  About midnight there was an explosion and a fire.  As the Judge found, the explosion was attributable to the extraction process.

  5. The Judge rejected a submission that Ms Sarandoglou intended to go no further than extract pseudoephedrine, and then to trade…

Continue reading R v Sarandoglou

Sign in free to access the full text

Details
AGLC
R v Sarandoglou [2010] SASC 190
Case
[2010] SASC 190
Decision Date

CaseChat Overview and Summary

Sarandoglou appealed against the sentence imposed by the South Australian Supreme Court, arguing that the non-parole period was too great a proportion of the head sentence and that the sentence should have been suspended. Sarandoglou had pleaded guilty to participating in the manufacture of methylamphetamine and was sentenced to 15 months’ imprisonment with a non-parole period of 12 months’ imprisonment. The appeal focused on the appropriateness of the non-parole period and whether the sentence should have been suspended.

The court examined the factors relevant to the imposition of the non-parole period and the discretion to suspend the sentence. The court noted that the appellant had not previously been imprisoned nor had the benefit of a suspended sentence. However, the court found no error in the Judge's decision not to suspend the sentence, as the Judge had considered all relevant factors, including the appellant's lack of a criminal record and the purely commercial nature of the offence. The court also dismissed the argument that the Judge overlooked the appellant's personal use of the drug, finding that the Judge's reference to the commercial purpose of the offence did not indicate an oversight.

The appeal was ultimately dismissed by the court, with the judges concurring that there was no demonstrated error in the Judge's approach to sentencing. The court held that the exercise of the discretion to fix a non-parole period did not miscarry, and that the non-parole period was appropriate given the seriousness and circumstances of the offence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Whether the sentence should have been suspended is difficult. The circumstance that Ms Sarandoglou has not previously been imprisoned, nor had the benefit of a suspended sentence, is relevant. One cannot say that her offence is so serious that a suspended sentence could not be ordered. In my opinion there is no error demonstrated in the approach taken by the Judge. The Judge has considered all relevant factors. It is true that the Judge referred to Ms Sarandoglou having manufactured the drug “for purely commercial purposes”. I do not agree that this indicates that the Judge overlooked that Ms Sarandoglou would have used some of the amphetamine herself, whether she obtained it by exchange or by producing it. No error on the part of the Judge being demonstrated, and this not being a case in which one can say that the correct exercise of the discretion required an order suspending the sentence, the submission that the Judge erred must be rejected.Conclusion For those reasons I would dismiss the appeal against sentence. WHITE J: I agree that the appeal should be dismissed, for the reasons given by the Chief Justice. KOURAKIS J: I have had the benefit of reading the reasons of the Chief Justice. I respectfully agree with the observation of the Chief Justice that the head sentence imposed is too low. Indeed, in my view it is manifestly inadequate, but the Director of Public Prosecutions has not appealed against the head sentence. In the absence of an appeal against the inadequacy of the head sentence, the only relevant question before this Court is whether the exercise of the Judge’s discretion to fix a non-parole period of 12 months for a head sentence of 15 months pursuant to s 32(1) of the Criminal Law (Sentencing) Act 1988 (the CLSA) has miscarried. I am of the opinion that the discretion has miscarried because the period allowed for parole is so short that it can serve no useful purpose. The practical effect of such a short non-parole period is to deny the appellant any real opportunity for parole. That would perhaps be acceptable if there was good reason to decline to fix a non-parole period pursuant to s 32(5) of the CLSA, but in this case there is plainly no such good reason. Sections 32 of the CLSA relevantly provides:(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—(a) if the person is not subject to an existing non-parole period—fix a non-parole period; ……(5) The above provisions are subject to the following qualifications:(a) a non-parole period may not be fixed in respect of a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than one year; …(c) a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of—(i)the gravity of the offence or the circumstances surrounding the offence; or(ii)the criminal record of the person; or(iii)the behaviour of the person during any previous period of release on parole or conditional release; or(iv)any other circumstance.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.