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R v Standley

R v Standley

Case [2016] SASCFC 141 21 December 2016

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STANDLEY
[2016] SASCFC 141
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Doyle)
21 December 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - OF EQUIPMENT AND IMPLEMENTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
Appeal against sentence.
The defendant was sentenced by a Judge of the District Court to imprisonment for four years, two months and two weeks (reduced from six years on account of his plea) for trafficking in 5.7 kilograms of cannabis in February 2015 and imprisonment for six years (reduced from 10 years on account of his plea) for trafficking in 12.6 kilograms of cannabis in April 2015.
The appellant was sentenced to imprisonment for one year, two months and two weeks (reduced from two years on account of his plea) for cultivating more than the prescribed number of cannabis plants, having possession of prescribed equipment and diverting electricity in April 2015.
The defendant was sentenced to imprisonment for two months (reduced from three months on account of his plea) for driving a motor vehicle while disqualified in February 2015 and imprisonment for two and a half months (reduced from four months on account of his plea) for driving a motor vehicle while disqualified in April 2015.
The five sentences of imprisonment were made cumulative. The total of the sentences was 11 years, nine months and two weeks. The Judge fixed a non-parole period of six years.
The appellant appeals against the sentences on the ground that each head sentence is manifestly excessive and the non-parole period is manifestly excessive.
Held by Blue J (Kelly and Doyle JJ agreeing) (allowing the appeal):
1. A combined starting point of imprisonment for 16 years for the two trafficking counts was not proportionate to the total offending and the sentences for those two counts should be set aside (at [52]).
2. The sentence for the cultivation count is not manifestly excessive but the Judge erred in ordering that it be fully cumulative on the trafficking sentences (at [58]-[59]).
3. The sentences for the driving under disqualification counts are not manifestly excessive and the Judge did not err in ordering that they be fully cumulative (at [64], [66]). However, the sentence actually imposed for the second count of imprisonment for two and a half months is technically defective and should be adjusted to imprisonment for two months and two weeks (at [65]).
4. The appellant is resentenced to:
(a) imprisonment for eight years and eight months for the two trafficking counts and the cultivation-related counts,…

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 Standley

Details

AGLC: R v Standley [2016] SASCFC 141
Case: [2016] SASCFC 141
Decision Date: 21 December 2016

CaseChat Overview and Summary

The appeal in *R v Standley* concerned a sentencing decision made by a judge in relation to drug offences and driving while disqualified. The appellant, who was 70 years old at the time of the appeal, had been convicted of trafficking in commercial and large commercial quantities of cannabis, cultivating cannabis plants, possessing prescribed equipment, diverting electricity, and driving while disqualified on two separate occasions. The appeal was heard by Kelly, Blue, and Doyle JJ.

The central legal issue before the Full Court was whether the non-parole period fixed by the sentencing judge was manifestly excessive or inadequate, given the objective circumstances of the offending and the appellant's age and prospects of rehabilitation. The court was required to determine the appropriate head sentences for the various offences and the appropriate non-parole period to be served.

Blue J, with whom Doyle J agreed, reasoned that while the appellant's criminal history and poor prospects of rehabilitation were relevant considerations, his advanced age of 70 was a significant factor that warranted a lower proportion of the head sentence being fixed as a non-parole period. The court acknowledged the gravity of the drug trafficking and cultivation offences but ultimately concluded that a non-parole period of five years was appropriate, taking into account the appellant's age and the fact that he would be in his mid-70s when parole was considered.

The appeal was allowed, and the original sentences were set aside. The appellant was re-sentenced to a total of eight years and eight months imprisonment for the drug and equipment offences, deemed to have commenced on 14 April 2015. An additional sentence of two months and two weeks was imposed for one of the driving while disqualified offences, to be served cumulatively upon a prior sentence for the other driving offence, which was also to be served cumulatively upon the main sentence. A non-parole period of five years was fixed, deemed to have commenced on 14 April 2015.

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

Notwithstanding the appellant’s criminal history and, leaving aside his age, his apparent poor prospects of rehabilitation, in fixing a non-parole period it is important to take into account the fact that the appellant is now aged 70 and will be further advanced into his 70s when parole is to be considered. This last consideration was the reason that the Judge fixed a very low non-parole period as a proportion of the total head sentences given the objective circumstances other than the appellant’s age. In the circumstances, a non-parole period of five years should be fixed.Conclusion I would make the following orders:1Appeal allowed.2The sentences imposed by the Judge for trafficking in a commercial quantity of cannabis; trafficking in a large commercial quantity of cannabis; cultivating more than the prescribed number of cannabis plants; having possession of prescribed equipment; diverting electricity and driving a motor vehicle on 16 April 2015 while disqualified are set aside.3The appellant is re-sentenced to:(a) imprisonment for eight years and eight months pursuant to section 18A of the Sentencing Act for trafficking in a commercial quantity of cannabis; trafficking in a large commercial quantity of cannabis; cultivating more than the prescribed number of cannabis plants; having possession of prescribed equipment and diverting electricity, which sentence is deemed to have commenced on 14 April 2015;(b) imprisonment for two months and two weeks for driving a motor vehicle on 16 April 2015 while disqualified, to be served cumulatively upon the sentence of imprisonment for two months for driving a motor vehicle on 21 February 2015, which latter sentence is to be served cumulatively upon the sentence in (a),and a non-parole period is fixed of five years, which is deemed to have commenced on 14 April 2015. DOYLE J: I agree with the reasons of Blue J, the orders he would make and the sentence he would impose.

Ratio Decidendi

Legal Principle Established

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Citations

R v Standley [2016] SASCFC 141

Most Recent Citation

R v Lyberopoulos [2017] SASC 92

Cases Citing This Decision

Trott-Dan v The King [2023] SASCA 2
Citation 1 (Para 25)

…g. In Cassidy, Kourakis CJ considered there to be several factors that militate against a linear arithmetic accumulation of sentences.[19] [17] [2016] SASCFC 141. [18] [2017] SASCFC 134. [19] R v Cassidy [2017] SASCFC 134 at [23]-[24] per Kourakis CJ citing R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[107] per…
Quick v The Queen [2020] SASCFC 92
Citation 2 (Para 9)

…v Lyberopoulos ,[13] R v Standley ,[14] R v Faehrmann; R v Moore; R v Price-Austin [15] and R v Hunt; R v Yates .[16] [13] [2017] SASCFC 139. [14] [2016] SASCFC 141. [15] [2014] SASCFC 25; (2014) 118 SASR 549. [16] [2012] SASCFC 74.…
Da Silva v The Queen [2020] SASCFC 66
Citation 3 (Para 15)

…nciple of totality reflected a complaint about the overall effect of the sentence imposed.[28] [28] The relevant cases were collected in R v Standley [2016] SASCFC 141, [40]-[52] (Blue J, with whom Kelly and Doyle JJ agreed).…
Stokes v The Queen [2020] SASCFC 9
Citation 4 (Para 2)

…are accumulated.[14] [13] Transcript of sentencing submissions, lines 9-13. [14] R v Copeland (No 2) (2010) 108 SASR 398 at [103]-[105]; R v Standley [2016] SASCFC 141 at [44]‑[48]. The Director’s submissions…
R v Culley [2019] SASCFC 143
Citation 5 (Para 1)

…ffending, having regard in particular to the defendant’s life expectancy. This applies particularly to heavy sentences. (footnotes omitted) [4] [2016] SASCFC 141 at 9 [40], 10 [42]-[43], 11 [44].…
R v Curran [2019] SASCFC 14
Citation 6 (Para 21)

…in the table are highly variable. They provide only the most general assistance. (Citations omitted; emphasis in original) [16] [2016] SASCFC 141. [17] At [40] and [42].…
R v Smart [2018] SASCFC 123
Citation 7 (Para 3)

…ly accumulating individual sentences for individual crimes would result in a total sentence that is disproportionate to the total offending.[57] [56] [2016] SASCFC 141. [57] [2016] SASCFC 141 at [42]-[44].…
R v Farrugia [2018] SASCFC 73
Citation 8 (Para 15)

…ho traffic in large commercial quantities of cannabis can expect to receive lengthy custodial sentences that are not suspended.[14] [12] R v Standley [2016] SASCFC 141; R v Hucks [2016] SASCFC 92; R v Mustac (2013) 115 SASR 461. [13] R v Young (2016) 126 SASR 41 at 62 (Kourakis CJ, with Vanstone and Stanley JJ agree…
R v Yavuz [2018] SASCFC 24
Citation 9

…[2016] SASCFC 92; R v Kite (1971) 2 SASR 94; R v Lagana [2012] SASCFC 135; R v Mustac (2013) 115 SASR 461; R v Standley [2016] SASCFC 141; The Queen v Robinson (1979) 22 SASR 367, considered.…
R v Lyberopoulos [2017] SASCFC 139
Citation 10

…R v Standley [2016] SASCFC 141*…
R v Lyberopoulos [2017] SASC 92
Citation 11 (Para 14)

…21. [6] (2014) 118 SASR 549. [7] [2016] SASCFC 55. [8] [2016] SASCFC 92. [9] [2016] SASCFC 106. [10] [2016] SASCFC 102. [11] [2016] SASCFC 117. [12] [2016] SASCFC 141. [13] [2016] SASCFC 156.…
R v Best [2017] SASCFC 55
Citation 12 (Para 8)

…ntence imposed for the separate offending in relation to the firearms should be made concurrent, either wholly or partially, with that sentence. [21] [2016] SASCFC 141. [22] [2016] SASCFC 141 at [40] and [42]. [23] [2016] SASCFC 141 at [47]. [24] [2005] SASC 332 at [38], (2005) 93 SASR 20 at 30.…

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Cases Cited

R v Donald; R v Pitt; R v Whitaker [2016] SASCFC 117
Citation 1 (Para 4)

…Wakefield [2015] SASCFC 10 (2015) 121 SASR 569 at [38]-[39] per Blue J (with whom Kourakis CJ and Peek J agreed); R v Donald; R v Pitt; R v Whitaker [2016] SASCFC 117 at [31.5] per Lovell J (with whom Nicholson and Parker JJ agreed).…
R v Smoker [2016] SASCFC 114
Citation 2 (Para 10)

…Toohey JJ, 485-486 per Wilson J, 490-491 per Deane J and 496 per Gaudron J; AB v R [1999] HCA 46, (1999) 198 CLR 111 at [121] per Hayne J; R v Smoker [2016] SASCFC 114 at [70] per Lovell and Hinton JJ. [35] R v Knight (1981) 26 SASR 573 at 576 per Walters, Zelling and Williams JJ; Mill v The Queen (1988) 166 CLR 59…
R v Simpson [2016] SASCFC 83
Citation 3 (Para 16)

…issible discount of 30 per cent. This type of arithmetical error has been identified by this Court in previous appeals (see for example R v Simpson [2016] SASCFC 83, (2016) 125 SASR 352 at [13]-[14] per Blue, Nicholson and Doyle JJ; R v Deng [2015] SASCFC 176 at [47], [51]-[53] per Nicholson J (with whom Kelly J ag…
R v Knight [2016] SASCFC 40
Citation 4 (Para 10)

…dron J; AB v R [1999] HCA 46, (1999) 198 CLR 111 at [121] per Hayne J; R v Smoker [2016] SASCFC 114 at [70] per Lovell and Hinton JJ. [35] R v Knight (1981) 26 SASR 573 at 576 per Walters, Zelling and Williams JJ; Mill v The Queen (1988) 166 CLR 59 at 62-63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ. [36] Somet…
R v Deng [2015] SASCFC 176
Citation 5 (Para 16)

…ourt in previous appeals (see for example R v Simpson [2016] SASCFC 83, (2016) 125 SASR 352 at [13]-[14] per Blue, Nicholson and Doyle JJ; R v Deng [2015] SASCFC 176 at [47], [51]-[53] per Nicholson J (with whom Kelly J agreed)). However, as there is no application for permission to appeal by the Director, there is…
R v Wakefield [2015] SASCFC 10
Citation 6 (Para 4)

…offences of imprisonment for ten years, two months and two weeks (representing an average discount of approximately 36 per cent). [28] R v Wakefield [2015] SASCFC 10 (2015) 121 SASR 569 at [38]-[39] per Blue J (with whom Kourakis CJ and Peek J agreed); R v Donald; R v Pitt; R v Whitaker [2016] SASCFC 117 at [31.5]…
R v Faehrmann; R v Moore; R v Price-Austin [2014] SASCFC 25
Citation 7 (Para 30)

…manifestly inadequate is of limited assistance because it does not imply that the same sentence would have been imposed by the appeal court.[17] [14] [2014] SASCFC 25, (2014) 118 SASR 549. [15] At [48] per Kourakis CJ, Blue and Nicholson JJ. [16] At [39] per Kourakis CJ, Blue and Nicholson JJ. [17] At [39] per Kour…
R v Mustac [2013] SASCFC 21
Citation 8 (Para 2)

…is Court adopted a starting point of imprisonment for eight years (reduced to seven years and six months on account of Mustac’s plea).[25] [24] [2013] SASCFC 21, (2013) 115 SASR 461. [25] At [40] per Kourakis CJ (with whom Sulan and Stanley JJ agreed).…
R v Hunt; R v Yates [2012] SASCFC 74
Citation 9 (Para 1)

…appeal on the ground of manifest excess, observing that the overall sentence was “well within the sentencing discretion of the Judge”.[23] [22] [2012] SASCFC 74. [23] At [29] per Gray J (with whom David and Kelly JJ agreed).…
R v Belczacki [2012] SASCFC 4
Citation 10 (Para 8)

…n to both charges and would ordinarily be punished under both charges. This being so, the danger of double punishment looms large.[33] [31] [2012] SASCFC 4, (2012) 112 SASR 95. [32] At [56]-[61] per Peek J (with whom Blue J agreed). [33] At [60].…
R v Mema [2011] SASCFC 56
Citation 11 (Para 32)

…g point as low as six and a half years” and characterising the sentence as “a moderate sentence for offending of this nature”.[21] [20] [2011] SASCFC 56. [21] At [11] and [15] per Vanstone J (with whom Kourakis and Peek JJ agreed).…
R v Abdulla [2011] SASCFC 20
Citation 12 (Para 31)

…] HCA 54, (2000) 202 CLR 321. This was before the enactment in 2008 of section 340 of the Criminal Law Consolidation Act 1935 (SA) (see R v Abdulla [2011] SASCFC 20, (2011) 109 SASR 258 at [24]-[25] per Gray J and [64] per Vanstone J (with whom White J agreed).…
R v Copeland (No 2) [2010] SASCFC 61
Citation 13 (Para 13)

…e and capacity which the offender had to reflect on whether or not to commit the subsequent offences mitigates his or her moral culpability.[42] [41] [2010] SASCFC 61, (2010) 108 SASR 398. [42] At [103]-[105]. (Citations omitted)…
R v Stamos, Williams, Stanton and Kapovic No. Sccrm-03-158, Sccrm-04-12, Sccrm-04-11, Sccrm-03-159 APL Appellant: [2004] SASC 132
Citation 14 (Para 31)

…ssible to discern what component of the total sentence was attributable to the additional ecstasy charges but it must have been several years. [18] [2004] SASC 132. [19] At [16] per Gray and Sulan JJ (with whom Perry J agreed). This was in accordance with the principle referred to in Dinsdale v R [2000] HCA 54, (2…
Dinsdale v The Queen [2000] HCA 54
Citation 15 (Para 31)

…004] SASC 132. [19] At [16] per Gray and Sulan JJ (with whom Perry J agreed). This was in accordance with the principle referred to in Dinsdale v R [2000] HCA 54, (2000) 202 CLR 321. This was before the enactment in 2008 of section 340 of the Criminal Law Consolidation Act 1935 (SA) (see R v Abdulla [2011] SASCF…
AB v The Queen [1999] HCA 46
Citation 16 (Para 10)

…2] (1988) 164 CLR 465 at 472-473 per Mason CJ, Brennan, Dawson and Toohey JJ, 485-486 per Wilson J, 490-491 per Deane J and 496 per Gaudron J; AB v R [1999] HCA 46, (1999) 198 CLR 111 at [121] per Hayne J; R v Smoker [2016] SASCFC 114 at [70] per Lovell and Hinton JJ. [35] R v Knight (1981) 26 SASR 573 at 576 pe…
Mill v The Queen [1988] HCA 70
Citation 17 (Para 10)

…[2016] SASCFC 114 at [70] per Lovell and Hinton JJ. [35] R v Knight (1981) 26 SASR 573 at 576 per Walters, Zelling and Williams JJ; Mill v The Queen (1988) 166 CLR 59 at 62-63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ. [36] Sometimes the “principle of totality” is used in the broader sense used here to refer…
Veen v The Queen (No 2) [1988] HCA 14
Citation 18 (Para 10)

…ove. Leaving aside that situation, the principle of totality applies in various circumstances, of which two are the most common. [34] Veen v R [No 2] (1988) 164 CLR 465 at 472-473 per Mason CJ, Brennan, Dawson and Toohey JJ, 485-486 per Wilson J, 490-491 per Deane J and 496 per Gaudron J; AB v R [1999] HCA 46, (1999)…
Jarvis v The Queen (1993) 20 WAR 201
Citation 19 (Para 12)

…y because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison.[40] [39] (1993) 20 WAR 201. [40] At 207. (Citations omitted)…

Legislation Cited

Controlled Substances Act 1984 (SA) 32, 32(1), 32(2), 33K(1)(b), 33LA
6 mentions (from Para 3)
Criminal Law (Sentencing) Act 1988 (SA) 10B
2 mentions (from Para 3)
Electricity Act 1996 (SA) 85, 85(1)(a)
2 mentions (from Para 3)
Motor Vehicles Act 1959 (SA) 135, 91
2 mentions (from Para 3)
Summary Offences Act 1953 (SA) 74A, 74A(3)(b)(i)
2 mentions (from Para 3)
Criminal Law Consolidation Act 1935 (SA)
1 mention (from Para 31)