(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Doyle)
21 September 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
The appellant was convicted of trafficking in a large commercial quantity of a controlled drug (court 1) and cultivating a commercial quantity of controlled plants for sale (count 2). Count 1 is a serious and organised crime offence, whereas count 2 is not. Under s 38(2)(c) and 38(2ba) of the Criminal Law (Sentencing) Act 1988 (SA), the Court’s discretion to suspend the sentence of imprisonment in respect of a serious and organised crime offence requires satisfaction that exceptional circumstances existed. Using s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the sentencing judge imposed a single sentence of two years eight months imprisonment, reduced from three years four months imprisonment, for the two offences. The sentencing judge was not satisfied that exceptional circumstances did exist, and so did not suspend the sentence of imprisonment.
The appellant appealed on grounds that the sentencing judge erred in using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) in circumstances where the tests for suspension in respect of the two offences differed, and further erred in any event in not finding that exceptional circumstances warranting suspension existed.
Held per Blue and Doyle JJ (Kelly J agreeing):
1. There is nothing in the terms of ss 18A or 38 of the Criminal Law (Sentencing) Act 1988 (SA) that precludes the use of the former to impose a single sentence of imprisonment in respect of two offences where only one of them is a serious and organise crime offence (at [27] and [58]-[61]).
2. The test for suspension in those circumstance is one of exceptional circumstances (at [70]).
3. There was no error in the sentencing judge using s 18A to impose a single sentence of imprisonment in this case (at [31] and [75]).
4. The sentencing judge did not err in finding that exceptional circumstances did not exist in this case (at [19]-[30], [104]).
[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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Details
AGLC
R v Skinner [2016] SASCFC 106
Case
[2016] SASCFC 106
Decision Date
CaseChat Overview and Summary
The appellant, R Skinner, was convicted on his pleas of guilty to two offences under the Controlled Substances Act 1984 (SA): trafficking in a large commercial quantity of a controlled drug and cultivating a commercial quantity of controlled plants for sale. The appeal was heard by Kelly, Blue and Doyle JJ of the Supreme Court of South Australia.
The legal issues before the court were whether the sentencing judge erred in failing to find that exceptional circumstances existed to justify suspending the sentence for the serious and organised crime offence, and whether the judge erred in her application of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) by imposing a single sentence for the two offences.
The court considered the circumstances of the offending, which involved the discovery of approximately 28 kilograms of dried cannabis and 32 cannabis plants on the appellant's farming property, with an estimated commercial value of up to $120,000. The sentencing judge had imposed a single sentence of imprisonment for two years and eight months, reduced from a starting point of three years and four months due to the guilty pleas. However, the judge declined to suspend the sentence, finding that exceptional circumstances, as required by s 38(2)(c) and 38(2ba) of the Sentencing Act for serious and organised crime offences, were not established. The appeal court found the second ground of appeal, concerning the use of s 18A, to be not established.
The appeal was dismissed.
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 second ground of appeal is not established.Conclusion I would dismiss the appeal. DOYLE J: The appellant was convicted, on his pleas of guilty, of two offences under the Controlled Substances Act 1984 (SA). The first involved trafficking in a large commercial quantity of a controlled drug contrary to s 32(1), for which the maximum penalty is a fine of $500,000 and life imprisonment (count 1). The second involved cultivating a commercial quantity of controlled plants for sale contrary to s 33B(2), for which the maximum penalty is a fine of $200,000 and imprisonment for 25 years (count 2). Using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), the Judge imposed a single sentence of imprisonment for the two offences. From a starting point of three years four months imprisonment, her Honour reduced this by 20 per cent on account of the appellant’s guilty pleas to a sentence of two years eight months imprisonment. On the issue of suspension of this sentence of imprisonment, the count 1 offence was a serious and organised crime offence under s 38(4) of the Sentencing Act, whereas count 2 was not. By reason of ss 38(2)(c) and 38(2ba) of the Sentencing Act, the Court’s discretion to suspend the sentence of imprisonment in respect of a serious and organised crime offence required satisfaction that exceptional circumstances existed. The Judge was not satisfied that exceptional circumstances did exist, and so did not suspend the sentence of imprisonment that she had imposed. In this appeal against his sentence, the appellant relies upon two grounds of appeal.1. That the Judge erred in failing to find that the appellant had established exceptional circumstances in relation to his offending.2. That the Judge erred in her use of s 18A of the Sentencing Act and in imposing one sentence. It is convenient to commence by summarising the circumstances of the offending and personal circumstances of the appellant, before then considering the two grounds of appeal in reverse order.Circumstances of the offending In December 2014, police conducted a routine traffic stop of a vehicle in the vicinity of Denial Bay. The presence of cannabis in that vehicle led the police to conduct a search of a nearby farming property owned by the appellant. During a search of that property, the police located a quantity of cannabis in numerous sheds and outbuildings on the farming property. The police located dried cannabis in chest freezers, and in a shed which had been set up as a drying room. In addition to this harvested cannabis, the police located a number of cannabis plants being cultivated on the farming property. In total the police located approximately 28 kilograms of dried cannabis material (the subject of the count 1 trafficking charge), and 32 cannabis plants being cultivated both in pots and in the ground (the subject of the count 2 cultivation charge). The potential commercial value of the cannabis seized, at the higher end of the scale, was approximately $120,000.