R v T - [2013] SASCFC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v T
[2013] SASCFC 127
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Stanley)
22 November 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES
Appeal against sentence. The defendant pleaded guilty to two counts of trafficking in a controlled drug contrary to section 32(3) of the Controlled Substances Act 1984 (SA) and one count of unlawful possession contrary to section 41(1) of the Summary Offences Act 1953 (SA). She was sentenced to five years’ imprisonment with a non-parole period of three years. The Judge indicated that but for the defendant’s early guilty pleas and cooperation, she would have imposed a sentence of seven years' imprisonment. Whether sentence was manifestly excessive. Whether sufficient weight was given to her early guilty pleas and cooperation.
Held (allowing the appeal):
1. The decision in R v Mangelsdorf is no longer relevant when determining sentences for drug offending. In fixing penalties the Court will have regard to the maximum penalties prescribed by the relevant legislation (at [18]).
2. The notional starting point of over seven years’ imprisonment was not outside the appropriate range of sentences such as to warrant interference by this Court (at [20] - [21]).
3. Insufficient weight was given to the defendant’s early guilty pleas and cooperation. This error warrants the intervention of this Court (at [23] - [24]).
4. Defendant sentenced to four years’ imprisonment with a non-parole period of two years and three months’ imprisonment (at [25]).
Controlled Substances Act 1984 (SA) s 32(3), s 32(5)(B); Summary Offences Act 1953 (SA) s 41(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA), referred to.
R v Mangelsdorf (1995) 66 SASR 60; R v Kong (2013) 115 SASR 425; Markarian v The Queen (2005) 228 CLR 357; R v Harris (1992) 59 SASR 300; R v Golding (1980) 24 SASR 161; R v Cartwright (1989) 17 NSWLR 243; R v Salameh (1991) 55 A Crim R 384, considered.

R v T
[2013] SASCFC 127
Court of Criminal Appeal: Gray, Sulan and Stanley JJ
THE COURT.

This is an appeal against sentence.
The defendant and appellant pleaded guilty to two counts of trafficking in a controlled drug contrary to section 32(3) of the Controlled Substances Act 1984 (SA) and one count of unlawful possession contrary to section 41(1) of the Summary Offences Act 1953 (SA). The defendant was sentenced in the District Court pursuant to section 18A of 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 T

Details

AGLC: R v T [2013] SASCFC 127
Case: [2013] SASCFC 127
Decision Date: 22 November 2013

CaseChat Overview and Summary

The appeal in *R v T* was brought by the defendant against a sentence imposed by the District Court for drug trafficking and possession offences. The defendant had pleaded guilty to two counts of trafficking in a controlled drug and one count of unlawful possession. The District Court judge had indicated a notional starting point of seven years' imprisonment, but reduced this to five years with a non-parole period of three years, taking into account the defendant's early guilty pleas and cooperation. The appeal argued that the sentence was manifestly excessive and that insufficient weight had been given to these mitigating factors.

The central legal issues before the appellate court were whether the sentencing judge had erred in the assessment of the sentence, specifically concerning the weight given to the defendant's early guilty pleas and cooperation with authorities, and whether the sentence imposed was outside the appropriate range. The court was required to consider the principles governing sentence reductions for such factors and the extent to which an appellate court should interfere with a sentencing judge's discretion.

The court held that the notional starting point of over seven years' imprisonment was not so outside the appropriate range as to warrant interference. However, it found that insufficient weight had been given to the defendant's early guilty pleas and cooperation. The court emphasised the importance of providing a clear indication of the discount given for such factors to act as a genuine incentive for offenders to cooperate. Applying this principle, the court determined that a greater reduction was warranted.

Consequently, the appeal was allowed, and the sentence imposed by the District Court was set aside. The appellate court resentenced the defendant to four years' imprisonment with a non-parole period of two years and three months, representing a reduction of approximately 40 per cent from the original sentence to account for the early guilty pleas and cooperation.

Orders

Orders of the court

Held (allowing the appeal):

1. The decision in R v Mangelsdorf is no longer relevant when determining sentences for drug offending. In fixing penalties the Court will have regard to the maximum penalties prescribed by the relevant legislation (at [18]).

2. The notional starting point of over seven years’ imprisonment was not outside the appropriate range of sentences such as to warrant interference by this Court (at [20] - [21]).

3. Insufficient weight was given to the defendant’s early guilty pleas and cooperation. This error warrants the intervention of this Court (at [23] - [24]).

4. Defendant sentenced to four years’ imprisonment with a non-parole period of two years and three months’ imprisonment (at [25]).

Background

Background to the litigation

The defendant and appellant pleaded guilty to two counts of trafficking in a controlled drug contrary to section 32(3) of the Controlled Substances Act 1984 (SA) and one count of unlawful possession contrary to section 41(1) of the Summary Offences Act 1953 (SA). The defendant was sentenced in the District Court pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one sentence of five years’ imprisonment with a non-parole period of three years. The sentencing Judge indicated that but for the defendant’s early guilty pleas and cooperation, she would have imposed a sentence of seven years’ imprisonment. The defendant has appealed against sentence on the grounds that it is manifestly excessive and that insufficient weight was given to her early guilty pleas and cooperation.The facts Police searched a motor vehicle occupied by the defendant. They found her in possession of a small quantity of heroin together with three mobile phones. It was this conduct which resulted in the first count of trafficking in a controlled drug. After her arrest, the defendant was granted bail. While on bail, the police again conducted a search of a motor vehicle occupied by the defendant. On this occasion, she was again found in possession of a small quantity of heroin, two mobile phones and a not insubstantial sum of money. This conduct resulted in the second count of trafficking in a controlled drug and the count of unlawful possession. The defendant pleaded guilty to the two trafficking offences at her first arraignment in the District Court. She pleaded guilty to the count of unlawful possession after the matter had been called up from the Magistrates Court and negotiations as to the factual basis of the plea were resolved. Personal circumstances The defendant’s personal circumstances can only be described as difficult. As a teenager she came to Australia as a refugee from a war-torn country. She had limited education and poor English. Before coming to Australia she lived in a refugee camp for some years. While there, she gave birth to a son. The child’s father came to Australia with her. In Australia she gave birth to another child. The father of her children was violent towards her and the children. They eventually separated. She had a third child with a different father who abandoned her and the baby shortly thereafter. She has a history of attempting suicide. The defendant has a previous conviction for trafficking heroin. That resulted in a suspended sentence. This offending resulted from a relationship she was in with a man who treated her and her children kindly, but required her to deal heroin in exchange for money she could use to buy food and presents for the children. After her arrest, this man disappeared. The offending to which this appeal relates occurred shortly after the defendant had completed the bond imposed in relation to her earlier offending and in the context of a gambling addiction and a psychiatric diagnosis of anxiety and depression.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In our view, insufficient weight was given to the defendant’s early guilty pleas and cooperation. This error warrants the intervention of this Court.Conclusion We would allow the appeal and set aside the sentence imposed by the District Court. Having regard to the matter set out above, we consider that a reduction in the order of 40 per cent should be made on account of the early guilty pleas and the defendant’s cooperation with the authorities. We sentence the defendant for all offending to the one sentence of imprisonment of four years. We fix a non-parole period of two years and three months. This sentence is taken to have commenced on 18 July 2013.

Ratio Decidendi

Legal Principle Established

In our view, the notional starting point of over seven years’ imprisonment was not outside the appropriate range of sentences such as to warrant interference by this Court. We would dismiss this ground of appeal.Reduction for early guilty pleas and cooperation The defendant further submitted that the Judge failed to have sufficient regard to her early guilty pleas and cooperation with the authorities. As earlier mentioned, the Judge reduced the head sentence imposed from seven years to five years on account of the defendant’s guilty pleas and cooperation, a reduction of about 29 percent. An offender who pleads guilty can expect to receive a reduction in sentence. It is acknowledged that such a plea evidences contrition and remorse. It is also appropriate for courts to make a reduction in sentence where an offender has cooperated with the authorities. A primary policy behind extending such leniency is to encourage offenders to cooperate. Additionally, such conduct may well evidence contrition and remorse of the offender.[13] We endorse and apply the following observations of King CJ in Harris:[14]It is very important, I think also, that the extent of the discount which is given on this account should be made clear by the sentencing judge. This Court of Criminal Appeal has said on earlier occasions in relation to the discount for a plea of guilty, that it not only ought to be given, but that the judge should indicate so far as possible, and wherever possible, the extent of the discount which he is making for the plea of guilty. If the discount given for a plea of guilty is to operate as a real incentive for guilty persons to plea guilty, it is necessary that they, and their advisors, have a clear idea of the sort of discount which will be made on that account. The same considerations apply to co-operation with the authorities by way of giving evidence against co-offenders. Unless it is clear to offenders that they will receive a significant benefit, and the general extent of the benefit which they are likely to receive, then it is not to be expected that the authorities will receive the co-operation which they so often need in order to enforce the law and bring other offenders to justice. I would therefore exhort judges wherever it is practical to do so in this type of case, not only to make a significant and appropriate allowance for the co-operation with the authorities, but to indicate to the prisoner the extent of the allowance which has been made.[13] See for example, R v Golding (1980) 24 SASR 161; R v Cartwright (1989) 17 NSWLR 243; R v Harris (1992) 59 SASR 300; R v Salameh (1991) 55 A Crim R 384.[14] R v Harris (1992) 59 SASR 300, 302-303. In our view, insufficient weight was given to the defendant’s early guilty pleas and cooperation. This error warrants the intervention of this Court.Conclusion We would allow the appeal and set aside the sentence imposed by the District Court. Having regard to the matter set out above, we consider that a reduction in the order of 40 per cent should be made on account of the early guilty pleas and the defendant’s cooperation with the authorities. We sentence the defendant for all offending to the one sentence of imprisonment of four years. We fix a non-parole period of two years and three months. This sentence is taken to have commenced on 18 July 2013.