R v SMITH - [2012] SASCFC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Permission to Appeal)
R v SMITH
[2012] SASCFC 77
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Vanstone and The Honourable Justice Peek)
26 June 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
DPP appeal against sentence – Respondent pleaded guilty to offence of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) Controlled Substances Act – sentencing Judge imposed sentence of 24 months with a non-parole period of 12 months which was suspended – whether prosecution has discharged onus of showing permission to appeal should be granted – whether sentencing Judge erred by sentencing Respondent on an incorrect factual basis – whether sentence was manifestly inadequate – whether decision to suspend sentence was erroneous.
Held: Permission to appeal granted. Sentence imposed did not adequately reflect seriousness of Respondent’s offending – Respondent knew drug had substantial value and was to be sold in illicit circumstances – head sentence and non-parole period manifestly inadequate – decision to suspend was in error – sentence set aside – Respondent sentenced to six years imprisonment with a non-parole period of three years which was not suspended.
Controlled Substances Act 1984 (SA) 32(1), 32, 44(2); Criminal Law Consolidation Act 1935 (SA) 340, referred to.
R v Mangelsdorf and Ors (1995) 66 SASR 60, discussed.
Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Belcher (1981) 27 SASR 46; R v Rocco (1985) 37 SASR 515; R v Wilson (1990) 158 LSJS 134; R v Harris (1992) 59 SASR 300; R v Santalab (1993) (Unreported, Court of Criminal Appeal, SA, No S4055, 20 July 1993), considered.

R v SMITH
[2012] SASCFC 77
Court of Criminal Appeal: Nyland, Vanstone and Peek JJ

NYLAND J: The Director of Public Prosecutions seeks permission to appeal against a sentence imposed by a Judge of the District Court. The respondent pleaded guilty to the offence of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (“CSA”). The drug concerned was 3, 4 – methylenedioxymethcathinone (“3, 4-MDMC”). The total quantity of the drug was 8.14 kilograms in a powdered form. That was capable of being converted into in excess of 25,000 ‘substitute ecstasy’ tablets/capsules with a minimum commercial value of about $94,000. However, depending on how it was sold, it had the potential to realise in excess of $1,000,000. The maximum penalty for this offence is a fine of $500,000 or imprisonment for life or both.
The Respondent was sentenced on the undisputed factual basis that he was not engaged in the…

Grounds of appeal

[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.

Continue reading R v SMITH

Details

AGLC: R v Smith [2012] SASCFC 77
Case: [2012] SASCFC 77
Decision Date: 26 June 2012

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) appealed against a sentence imposed by a District Court Judge on the respondent, who had pleaded guilty to trafficking in a large commercial quantity of a controlled drug. The original sentence comprised 24 months imprisonment, with a 12-month non-parole period, which was suspended. The DPP sought permission to appeal, arguing that the sentencing judge erred by basing the sentence on an incorrect factual basis and that the resulting sentence was manifestly inadequate and the decision to suspend it was erroneous.

The central legal issues before the Full Court of the Supreme Court were whether permission to appeal should be granted, whether the sentencing judge had erred in their factual assessment for sentencing purposes, and whether the imposed sentence, including the suspension, was manifestly inadequate and therefore an error. The Court was required to determine if the sentence adequately reflected the seriousness of the respondent's offending, particularly his knowledge of the drug's substantial value and its intended sale in illicit circumstances.

The Court reasoned that the sentence imposed did not adequately reflect the gravity of the respondent's conduct. Despite the respondent's potentially passive role in the drug enterprise, his knowledge of the drug's value and its illicit sale, and his allowing his premises to be used for its preparation and storage, warranted a more severe penalty to act as a deterrent. The Court found the head sentence and non-parole period to be manifestly inadequate and the decision to suspend the sentence to be erroneous. Consequently, permission to appeal was granted, the original sentence was set aside, and the respondent was resentenced to six years imprisonment with a non-parole period of three years, without suspension.

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

PEEK J

Mr Kimber submitted that as a result of the increase in penalties the sentencing range identified by Doyle CJ in Mangelsdorf should correspondingly increase. The starting point for the head sentence in this case should therefore have been something more than seven years. Accordingly, both the head sentence and non-parole period fixed by the sentencing Judge were manifestly inadequate and, together with the decision to suspend, resulted in a penalty far short of what was appropriate. Conclusion In my opinion the sentence imposed by the District Court Judge did not adequately reflect the seriousness of the Respondent’s offending. The Respondent was found in possession of a substantial quantity of an illegal drug. He may not have known exactly what the drug was, but the fact that he may have been mistaken as to the actual drug in his possession in no way lessens his culpability. He may not have been engaged in the processing or marketing of the drug, but he did know that it was intended to be sold in illicit circumstances and he must have known that it had a substantial value, regardless of how it was eventually sold, and with that knowledge allowed his premises to be used for the preparation and storage of it. Those matters required the court to impose a sentence which reflected the seriousness of the offending and to act as a deterrent to those who are minded to become involved in commercial drug trading. The head sentence and non-parole periods were therefore manifestly inadequate and the decision to suspend was erroneous. In my opinion, the Director of Public Prosecutions has discharged the onus of showing that permission to appeal should be granted. As a result, it is necessary for this Court to fix an appropriate sentence.[14] Although this was a substantial drug enterprise, the Respondent appears to have played a relatively passive role in it. He did not bring the drugs to his house, nor was he to be involved in their distribution. The prosecution accepted that the Respondent’s role was limited to that of holding the drugs for others with the knowledge of their later use. At the time of sentence, the Respondent was 24 years of age. He is now 25. He has no relevant prior offences and has a good work history. He has a young daughter with another child on the way. He has strong family support and he pleaded guilty at a relatively early date. [14] Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must -(a)impose the sentence that should have been imposed in the first instance; and (b)order that the sentence -(i) will be taken to have come into effect on a date before the date of the order; or (ii) will take effect on a date on or after the date of the order. Taking into account all the circumstances, I consider the starting point for this sentence should be a head sentence of eight years. Consistent with the approach of the District Court Judge I would allow a discount of 25 per cent with respect to the plea of guilty and would reflect the positive features relating to the Respondent’s rehabilitation in the fixing of the non-parole period. I consider that the appropriate sentence should be imprisonment for a period of six years and I would fix a non-parole period of three years. I would not make an order for suspension of sentence. I would therefore make the following orders:(1)Grant permission to appeal to the Director of Public Prosecutions.(2)Allow the appeal.(3)Set aside the sentence imposed by the District Court Judge.(4)In its place impose a sentence of imprisonment of six years with a non-parole period of three years.(5)Order that the Respondent forthwith surrender and that the sentence and non-parole period commence from the date upon which the Respondent is taken into custody.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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