R v Tranter (No 2)

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.