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R v Stevens

R v Stevens

Case [2008] SASC 170 3 July 2008

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STEVENS
[2008] SASC 170
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Anderson)
3 July 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
Application by Director of Public Prosecutions for permission to appeal against sentence - respondent pleaded guilty to two charges of possessing methylamphetamine for sale, five charges of selling methylamphetamine and a charge of producing cannabis - occasions of sale not isolated incidents but part of a course of conduct - single head sentence imposed of imprisonment for three years with a non-parole period of 18 months - sentence suspended - whether sentence manifestly inadequate - whether sentencing judge erred in deciding to suspend sentence.
Held: Judge erred in suspending sentence by giving too much weight to respondent's personal circumstances and inadequate weight to circumstances of offence and requirement of deterrence - moderate head sentence and non-parole period justified - permission to appeal granted, appeal allowed and order suspending sentence set aside.
Criminal Law (Sentencing) Act 1988 38(1), referred to.
R v Mangelsdorf (1995) 66 SASR 60; R v Ford (2008) 100 SASR 94; Dinsdale v The Queen (2000) 202 CLR 321; Police v Cadd & Ors (1997) 69 SASR 150; R v Sladic (2005) 92 SASR 36; R v Becker (2005) 91 SASR 498; Everett v The Queen (1994) 181 CLR 295, considered.

R v STEVENS
[2008] SASC 170
Court of Criminal Appeal: Doyle CJ, Duggan and Anderson JJ

DOYLE CJ and ANDERSON J: We agree with the orders proposed by Duggan J and with his reasons. We emphasise the following aspects of the matter. The respondent was employed in a responsible position as a security officer at a nightclub. There is a known problem with, and reason for concern about, the availability of drugs at such venues. Cases coming before the courts indicate that the use of methylamphetamine is increasing and that nightclubs have become a source for this drug. When it becomes known to the public that someone in a responsible position at such a venue is a willing source for the purchase of drugs, there is cause for substantial concern. As well, the present offences were committed against a background of regular dealing in drugs.
The circumstances of this case make it important that the aspect of public deterrence is emphasised in the sentence imposed. It would send the wrong message to the public, and to those involved in the management of nightclubs, if the suspended sentence was allowed to stand.
In the circumstances…

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 Stevens

Details

AGLC: R v Stevens [2008] SASC 170
Case: [2008] SASC 170
Decision Date: 3 July 2008

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) applied for permission to appeal against the sentence imposed on the respondent, Stevens, who had pleaded guilty to drug offences including possessing methylamphetamine for sale, selling methylamphetamine, and producing cannabis. The court imposed a single head sentence of imprisonment for three years with a non-parole period of 18 months, but suspended the sentence. The DPP sought permission to appeal on the grounds that the sentence was manifestly inadequate, particularly due to the seriousness of the offences and the need for general deterrence.

The court was required to determine whether the sentence was manifestly inadequate and whether the sentencing judge erred by giving too much weight to the respondent's personal circumstances and insufficient weight to the nature of the offences and the need for deterrence. The court considered the nature and extent of the offending, the role of the respondent in the commission of the offences, and the need for general deterrence.

The court found that the judge erred in suspending the sentence by placing excessive emphasis on the respondent's personal circumstances and insufficient emphasis on the circumstances of the offence and the need for deterrence. The court held that a moderate head sentence and non-parole period were justified. The court granted permission to appeal, allowed the appeal, and set aside the order suspending the sentence.

Orders