R v Tranter (No 2)

Case [2014] SASCFC 66

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TRANTER (NO 2); R v COMPTON

[2014] SASCFC 66

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)

3 July 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - RELEVANT MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - HARDSHIP - TO OTHERS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES

Appeals against sentence. 

The appellants were sentenced for their respective offences connected with an illegal importation of a border controlled precursor, pseudoephedrine, from Thailand to Australia.  On 6 May 2010, police substituted an inert substance for the pseudoephedrine (the police substitution). Mr Compton was charged with “importing”, the acts relied upon occurring between 29 April 2010 and 6 May 2010 whereas Mr Tranter was charged with “attempting to import”, the acts relied occurring between 6 May 2010 and 14 May 2010. Mr Tranter appealed on grounds including that the Judge wrongly took into account in aggravation of penalty conduct by him prior to the police substitution which would have warranted a conviction for a different offence in breach of the principle in De Simoni v The Queen. Mr Compton appealed on grounds including that the death of his partner after his sentence of imprisonment was imposed would leave their young children without suitable care; and that his offending was less serious than that of Mr Tranter and the Judge erred in adopting the same starting point for both. 

Held (the Court, allowing Mr Tranter’s appeal against sentence):

1.  The sentencing remarks disclosed an unacceptable risk that a number of matters were incorrectly taken into account as positively aggravating Mr Tranter’s offending including that he had planned and organised the importing venture prior to the police substitution. In the circumstances, this was tantamount to finding him guilty of “importing” when the prosecution had positively eschewed laying that charge.  The principle in De Simoni (as explained in Olbrich), that a sentence may not be increased by reference to conduct which would have warranted a conviction for a different offence had been infringed.

2.  While it may generally be accepted that in proving the fault elements of the offence, the prosecution could rely upon the conduct of Mr Tranter prior to the police substitution as bearing upon the interpretation of the belief and intent with which he performed acts subsequent to the police substitution, her Honour erred in taking that previous conduct into account in sentencing in the circumstances of this case.

3.  The De Simoni principle does not deny that there are limited ways in…

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AGLC
R v Tranter (No 2); R v Compton [2014] SASCFC 66
Case
[2014] SASCFC 66
Decision Date

CaseChat Overview and Summary

This case concerned appeals against sentence by Jason Oakley Tranter and Joseph Tuohy, who were convicted of offences relating to the importation of a border controlled precursor, pseudoephedrine. The appeals were heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Peek and Stanley JJ. Mr Tranter was charged with attempting to import a marketable quantity of pseudoephedrine between 6 May 2010 and 14 May 2010, and was sentenced to five years imprisonment with a non-parole period of three years. Mr Tuohy faced a charge of importing a marketable quantity of pseudoephedrine between 22 April 2010 and 6 May 2010.

The legal issues before the court included whether Mr Tranter's sentence and non-parole period were manifestly excessive, and whether the sentencing judge erred in her evaluation of the seriousness of his offending. Specifically, the court considered whether the judge had improperly had regard to conduct prior to 6 May 2010, the words and conduct of others in Mr Tranter's absence, and whether Mr Tranter was found to be involved in the importing venture prior to that date. The court also examined whether the judge erred in equating Mr Tranter's role with that of a co-offender, and in failing to give adequate weight to evidence of rehabilitation, his antecedents, family circumstances, and the potential impact of his imprisonment on others.

The court reasoned that while the sentencing judge was entitled to find that Mr Tranter's offending was for commercial gain and was calculated, it concluded that ground 4 of his appeal was made out. This was because there was an unacceptable risk that the judge had incorrectly taken into account matters as aggravating features that were not part of the specific charge of attempting to import. The court noted that the charge was narrowly defined by date and the specific offence of "attempt," and that the prosecution had not laid a charge of importing prior to 6 May 2010, despite having done so for a co-offender. The court found that the sentencing judge's remarks indicated she had considered conduct constituting a different, more serious charge, thereby infringing the principle that a greater penalty cannot be imposed because proved facts show the offender has committed other offences.

Consequently, the court concluded that Mr Tranter had made out ground 4 of his appeal, finding an unacceptable risk that the sentencing judge had incorrectly taken certain matters into account as aggravating features of his offending. The court's decision on this ground meant that the appeal against sentence was allowed, and the matter would proceed to re-sentencing.

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

Kourakis J (as he then was) expressed the matter thus:[50][69]When a court’s sentencing power is enlivened by the conviction of an offender on one offence, the court cannot take the opportunity to impose punishment for another offence of which he or she has not been convicted but which has come to the attention of the court. If the objective and personal circumstances of the offence and the offender (which I shall refer to as the totality of the known circumstances) on which the offender is to be sentenced warrant a particular penalty, a greater penalty cannot be imposed because the proved or admitted facts show that he or she has committed one or more other offences. …[50] R v Bukvic (2010) 107 SASR 405, 419.Conclusion as to ground 4 of Mr Tranter’s appeal The sentencing Judge was entitled to find, and to sentence on the basis, that Mr Tranter had committed the offence of which he had been convicted for reasons of commercial gain and that his offending was not spontaneous, pointless or naïve but rather was calculated, targeted and sinister. However, we conclude that Mr Tranter has nevertheless made out ground 4 of appeal on the basis that there is an unacceptable risk that her Honour incorrectly took a number of matters into account as positively aggravating Mr Tranter’s offending, in particular her findings that he had positively planned and organised the importing venture prior to the substitution on 6 May 2010 as set out in the paragraphs designated B and E in her remarks reproduced above. In the circumstances of the present case, this was tantamount to finding him guilty on a charge of importing when the prosecution had positively eschewed laying that charge. We come to this conclusion for all of the reasons given above including that:·The ambit of the appellant’s offending was closely delineated in the Information by the date range (which had specific reference to conduct subsequent to the police substitution on 6 May 2010) and by the choice of the charge of attempt to import rather than importing (which again had specific reference to the police substitution on 6 May 2010).·There was no impediment to charging the appellant with importing (prior to the police substitution on 6 May 2010) other than a prosecution decision that the evidence did not support such a charge. Such a charge was laid against both Mr Tuohy (who was acquitted on the merits) and Mr Compton (who pleaded guilty to the charge).·The appellant in no way acquiesced in being sentenced on a basis that previous offending was to be taken into account or that the charge was some kind of “representative charge”. He positively denied any previous misconduct in relation to the importation.·Nor did the appellant make any submission to the effect that he was guilty of the charge on a limited extenuating basis and that leniency should be accorded. On the contrary, the appellant denies that he has committed any offence at all.·The remarks of the sentencing Judge indicate that her Honour took into account as aggravating features conduct by the appellant which constituted a different serious charge of importing (prior to the police substitution on 6 May 2010). There was insufficient focus on the nature and limitations of the charge actually laid against the appellant.·The remarks of the sentencing Judge are such as to infringe the principle in De Simoni as explained in Olbrich.

Ratio Decidendi

Legal Principle Established

Although the charges against Mr Tranter and Mr Compton are different, they both relate to what may be referred to as the same importation and were dealt with by the same sentencing Judge. The bases of their respective appeals are different and we will consider first, the appeal by Mr Tranter; second, the re-sentencing of Mr Tranter; third, the appeal by Mr Compton; and fourth, the re-sentencing of Mr Compton.PART A: CONSIDERATION OF MR TRANTER’S APPEAL The charges in the Information against Mr Tranter appear as follows:COUNT ONE JOSEPH TUOHYis charged with the following offenceSTATEMENT OF OFFENCEImport a marketable quantity of a border controlled precursor intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug; s 307.12(1) Criminal Code (Cth) 1995PARTICULARS OF OFFENCEBetween 22 April 2010 and 6 May 2010, at Port Adelaide in the State of South Australia and elsewhere, Joseph Tuohy imported a marketable quantity of pseudoephedrine concealed within two marble stools.COUNT TWO JASON OAKLEY TRANTERis charged with the following offenceAttempt to import a marketable quantity of a border controlled precursor intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug; s 307.12(1) and 11.1 Criminal Code (Cth) 1995PARTICULARS OF OFFENCEBetween 6 May 2010 and 14 May 2010, at Naracoorte in the State of South Australia and elsewhere, Jason Tranter attempted to import a marketable quantity of pseudoephedrine concealed within two marble stools. On 24 May 2013, the trial Judge sentenced Mr Tranter to five years imprisonment and ordered that he was not eligible for parole until he had served three years imprisonment. The maximum penalty for the offence is 15 years imprisonment or a fine of $330,000 or both. On 28 June 2013, this Court dismissed Mr Tranter’s appeal against his conviction (“the conviction appeal”).[2][2] R v Tranter (2013) 116 SASR 452.Mr Tranter’s grounds of appeal against sentence Mr Tranter’s grounds of appeal against sentence appear as follows: 1.The sentence is manifestly excessive.2.The non-parole period is manifestly excessive.3.The learned Sentencing Judge erred in failing to order the appellant’s conditional release or conditional release after serving a certain period in relation to the sentence of imprisonment imposed.4.The learned Sentencing Judge erred in her evaluation of the level of seriousness of the appellant’s offending in that, inter alia, Her Honour:4.1 erroneously had regard to conduct of the appellant prior to 6 May 2010 for purposes other than inferring his state of mind at the time of the picking up of the crate on 13 May 2010;4.2 erroneously had regard to words and conduct of Compton, Tuffnel and others in the absence of the appellant prior to the picking up of the crate on 13 May 2010;4.3 erroneously found for the purposes of sentencing that the appellant was involved in the importing of the crate into Australia prior to 6 May 2010;4.4 failed to limit the evaluation of the seriousness of the appellant’s conduct to the conduct relied upon by the prosecution at trial that constituted the attempt offence;4.5 failed to give any or adequate weight to the evidence of the value of the precursor bearing in mind in particular, Her Honour’s finding that the appellant was not involved in any proposed manufacture of an illegal drug; and4.6 erroneously equated the appellant’s role with that of Compton relying on conduct prior to the 13 May and/or that involved principles of joint liability.5.The Learned Sentencing Judge erred in arriving at the length of the non-parole period and/or determining not to order conditional release in that Her Honour inter alia:5.1 erred in her evaluation of the level of seriousness of the appellant’s conduct;5.2 erred in rejecting the submission that the appellant was unlikely to offend again upon the basis that the appellant maintained his innocence;5.3 erred in failing to give any or adequate weight to the opinion of the psychologist as to the unlikelihood of the appellant reoffending;5.4 erred in failing to give any or adequate weight to the factors relied upon by the appellant that indicated he had rehabilitated and/or was unlikely to offend again;5.5 erred in failing to give any or any adequate weight to the appellant’s antecedents, family and business circumstances, evidence of good character, community contribution and the potential impact of his imprisonment on others and upon those who depended upon the continuation of his business interests.