R v Sladic

Case [2005] SASC 210

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v SLADIC

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Layton)

10 June 2005

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

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - FRESH EVIDENCE - GENERAL PRINCIPLES

Appeal against sentence - appellant and co-offender pleaded guilty to two counts of knowingly taking part in the sale of methylamphetamine - sentenced to head sentence of three and a half years imprisonment, non parole period of two and a half years.

Appellant appeals on grounds that the head sentence and non parole period were manifestly excessive; that further evidence should be admitted on appeal and that the sentence should have been suspended.

Discussion of nature of middle range drugs and possible reclassification of drugs for sentencing purposes – discussion of different approaches for calculating reductions on notional head sentence –consideration of whether judge was in error in reducing sentence having regard to police involvement – discussion of parity of sentence between the two offenders – consideration of appellant’s personal circumstances – whether sentence should be suspended.

Admission of fresh evidence on appeal considered – discussion of section 359 Criminal Law Consolidation Act – application for leave to introduce further evidence refused – appeal dismissed.

Controlled Substances Act 1984 (SA) 32(1)(d); 32(5)(B(b)(ii); Criminal Law (Sentencing) Act 1988 (SA) 18A; 10(1); 38(1); Criminal Law Consolidation Act 1935 (SA) 353(4); 359, referred to.
R v Mangelsdorf (1995) 66 SASR 60; Markarian v R (2005) 215 ALR 213; R v McGowan (1986) 42 SASR 580; R v Penno [2004] SASC 354; R v Campanella (2004) 90 SASR 1; R v Becker [2005] SASC 186; R v Williscroft [1975] VR 292; R v Thompson (1975) 11 SASR 217; R v Pearce (1980) 91 LSJS 443; R v Cronn & Bladon (1983) 34 SASR 555; R v Plaister & Graham [2001] SASC 383; Bellissimo v The Queen (1996) 84 A Crim R 465; AB v R (1999) 198 CLR 111; Wong v R (2001) 207 CLR 584; R v C (2004) 89 SASR 270; R v Smith (1987) 44 SASR 587; R v Dorning (1981) 27 SASR 481; R v Malesevic (1999) 204 LSJS 32; R v Perre (1997) 194 LSJS 363; Dinsdale v The Queen (2000) 202 CLR 321; R v Morabito [2003] SASC 388; The Queen v Haydon (2001) 80 SASR 560; R v Mandica, Spakianos & Spakianos (1980) 24 SASR 394; R v Jurkovic (1981) 6 A Crim R 215; Johnson v R (2004) 78 ALJR 616; R…

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AGLC
R v Sladic [2005] SASC 210
Case
[2005] SASC 210
Decision Date

CaseChat Overview and Summary

The case of R v Sladic involved an appeal against sentence by the appellant, who had pleaded guilty to two counts of knowingly taking part in the sale of methylamphetamine. The appellant and his co-offender, Marzilli, were sentenced to a head sentence of three and a half years imprisonment, with a non-parole period of two and a half years. The appellant argued that the sentence was too high and should have been suspended. Additionally, the appellant's counsel sought to introduce fresh evidence on appeal and argued that the sentence should have been less than Marzilli's due to the appellant's young age and personal circumstances.

The primary legal issues before the court were whether the sentence imposed by the sentencing judge was appropriate, whether the judge had appropriately considered the evidence and relevant factors, and whether the sentence should have been suspended. The court also had to consider the nature of the drugs involved, the appropriate reductions to the head sentence, and whether the sentencing judge had appropriately sentenced the two offenders on an identical basis.

The court found that the sentence imposed by the sentencing judge was appropriate and did not represent an error of sentencing principle. The court held that the penalty was not out of accord with penalties imposed for middle range drug offending involving sale. The court also found that the non-parole period fixed was within the judge’s sentencing discretion and that the judge was entitled not to suspend the term of imprisonment. The court held that the sentence imposed was not manifestly excessive and dismissed the appeal.

The court's decision was based on a thorough analysis of the sentencing principles and the evidence presented. The court found that the sentencing judge had appropriately considered the evidence and relevant factors in imposing the sentence. The court also found that the sentence imposed was not manifestly excessive and that the appeal should be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against sentence.Background The appellant and his co-offender, Marzilli, pleaded guilty to two counts of knowingly taking part in the sale of methylamphetamine, a drug of dependence, contrary to section 32(1)(d) of the Controlled Substances Act1984. The pleas were entered on 28 May 2004. Both men were committed to the District Court and were sentenced on 28 January 2005. The maximum penalty for each offence is imprisonment for 25 years and/or a fine of $200,000.[1][1] Section 32 (5) B (b) (ii). The appellant and Marzilli were each sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). The learned sentencing judge, after identifying in each case a notional starting point for the sentence of six years, made a reduction of one quarter for the early pleas, and then made a further reduction of one year by reason of pressure and inducement from the police. The result was that each offender received the one head sentence of three and a half years’ imprisonment. In each case a non-parole period of two and a half years was fixed. Only the appellant has appealed. At the hearing of the appeal, counsel for the appellant contended that the head sentence and non-parole period were too high, that further evidence should be admitted on appeal and that the sentence should have been suspended. In the course of argument, two further issues emerged: the nature of middle-range drugs and the manner of the making of reductions when determining the head sentence. Counsel for the appellant further submitted that the judge inappropriately sentenced the two offenders on an identical basis. It was said that the appellant’s sentence should have been less than Marzilli’s, predominantly by reason of his young age and personal circumstances.The Offending The first offence occurred on 26 August 2003 and involved the appellant and Marzilli taking part in a sale of 3.82 grams of paste, containing .62 grams of methylamphetamine. The sale was made to an undercover police officer (“the operative”) at an Adelaide hotel. This quantity constituted a sample of the drug which was to be sold. The offence on 27 August 2003 occurred when the appellant and Marzilli took part in the sale of 440 grams of moist paste which, when dried, weighed 418.3 grams and contained 73.4 grams of methylamphetamine, to the operative at the Adelaide Airport. On 14 August 2003, the operative contacted the appellant. He told the appellant that a person identified as John had told him to contact him. The appellant, in the course of the conversation, told the operative he could get up to two or three pounds of “the gear”. They spoke about price. The operative told the appellant he would contact him later. The appellant said he could provide a sample. Some days later, the appellant text-messaged the operative, asking what was going on. The operative responded by telephone that he was interstate and would contact the appellant the following week. On 22 August 2003, the operative telephoned the appellant who arranged to provide a sample at the airport on 26 August 2003. At or about this time, Marzilli, who had a significant gambling debt, was approached by a third person known to both himself and the appellant, who asked him to deliver a parcel. Marzilli was told that in return for the delivery his gambling debts would be reduced by $2000, but that if he did not deliver the parcel, his gambling debts would increase by five per cent per month. Marzilli agreed to deliver the parcel.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

An offence involving the sale of amphetamines of the quantity involved in these offences would normally call for an immediate custodial term. No basis has been identified to justify an interference with the judge’s decision not to suspend. Conclusion The sentencing judge has not here been shown to have made any error of sentencing principle. He has not overlooked any relevant material. He has not had regard to any irrelevant considerations. The penalty is not out of accord with penalties imposed for middle range drug offending involving sale. The non-parole period fixed was within the judge’s sentencing discretion. The judge was entitled not to suspend the term of imprisonment. He was correct not to do so. The sentence imposed was not manifestly excessive. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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