R v Stubberfield - [2005] SASC 383

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STUBBERFIELD
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Vanstone and The Honourable Justice Layton)
30 September 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Appeal by offender against sentence of two years and two months not suspended for three counts of selling methyl amphetamine - whether approach of sentencing judge to suspension of sentence in error - whether sentence excessive - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 38, referred to.
Landers v Police (2002) 131 A Crim R 59, applied.
R v Wilton (1981) 28 SASR 362; R v Palliaer (1984) 35 SASR 569; R v P (1992) 111 ALR 54; R v Taddeo (1993) 67 A Crim R 338; R v Mangelsdorf (1995) 66 SASR 60; R v Gjoka (unreported, Court of Criminal Appeal (SA), 1 July 1997, No S6211), considered.

R v STUBBERFIELD
[2005] SASC 383
Court of Criminal Appeal: Debelle, Vanstone and Layton JJ

DEBELLE J: This is an appeal by leave against sentence.
The appellant pleaded guilty to three counts of having knowingly sold methyl amphetamine. The offences were committed at Woodville West on 7 July, 8 July and 10 July 2003. The offending on 7 July 2003 was committed with two others, a Mr Brunt and a Ms Cowin.
The appellant was sentenced to imprisonment for two years and two months. A non‑parole period of one year was fixed. Both the head sentence and the non‑parole period commenced on the day on which the appellant was sentenced, 6 July 2004. The appellant was sentenced at the same time as Brunt and Cowin, who were also charged with these and other offences.
The grounds of appeal are that the sentencing judge erred in not suspending the term of imprisonment and that he erred in considering the question of suspension before fixing a term of imprisonment.
Each of the offences involved an undercover operative. The first count on which the appellant was charged jointly with Brunt and Cowin, involved an undercover operative contacting Brunt by mobile telephone and arranging to purchase methyl amphetamine at Cowin’s house. When at the house, the undercover operative was directed to speak to “Stubbie”, who was the appellant. The appellant gave the operative a plastic bag containing white paste and took $250 in payment. The paste supplied contained 0.03 grams of methyl amphetamine.
The second count involved a different undercover operative. She came to the same premises in Woodville West where she told the appellant that she was looking for Cowin. Stubberfield told her to come back later. Later that afternoon, he took her into Cowin’s bedroom and took out a set of scales and some bags. He then produced a plastic bag containing a white paste and measured some out and re‑bagged it. He gave her one of the two bags and she paid him $50. The plastic bag contained a…

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 Stubberfield

Details

AGLC: R v Stubberfield [2005] SASC 383
Case: [2005] SASC 383
Decision Date: 30 September 2005

CaseChat Overview and Summary

The case of R v Stubberfield involved the appellant who was convicted for three counts of selling methyl amphetamine. The appellant contested the sentence imposed by the primary judge, which was two years and two months imprisonment, with no part of the sentence suspended. The appeal was heard in the court of appeal, which examined the correctness of the primary judge's approach to the sentencing process, particularly in relation to the decision not to suspend any part of the sentence, and whether the sentence was excessive.

The primary legal issues before the court were whether the primary judge erred in their approach to the suspension of the sentence, and if the sentence was excessive in the circumstances. The appeal hinged on the interpretation of the relevant statutory provisions and the application of the principles of sentencing to the facts of the case. The court had to consider the principles of sentencing, the nature and circumstances of the offence, and the appellant's personal circumstances, including any mitigating factors.

The court of appeal found that the primary judge had correctly applied the principles of sentencing and had adequately considered the factors relevant to the decision not to suspend any part of the sentence. The court held that the sentence was not excessive, taking into account the seriousness of the offences and the need to deter the appellant and others from engaging in similar criminal conduct. The appeal was dismissed, and the sentence of two years and two months imprisonment, with no part suspended, was upheld. The court found that the primary judge's sentence was within the range of appropriate penalties for the offences committed.

Orders