(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Blue)
18 May 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING MDMA (ECSTASY)
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appeal against sentence.
On 14 May 2015 the appellant pleaded guilty at committal in the Magistrates Court to one count of trafficking in a controlled drug, namely MDMA, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
The Judge imposed a sentence of imprisonment for two years and nine months reduced from a starting point of four years due to the appellant’s guilty plea, and fixed a non-parole period of twelve months. The Judge declined to suspend the sentence.
The appellant appealed on the grounds that the head sentence and the non-parole period were manifestly excessive having regard to the amount of money and drugs involved and that the Judge erred in failing to suspend the sentence.
Held per Kourakis CJ (Kelly J agreeing), dismissing the appeal:
1. An appellant court can only interfere with an exercise of the discretion to suspend, or not suspend, if no reasonable court could have exercised it in the same way as the Judge.
2. There was no material put before the sentencing Judge which required a lower starting point.
3. The sentencing Judge did not err in failing to suspend the sentence.
Held per Blue J, dismissing the appeal:
1. The starting point of imprisonment for four years is not manifestly excessive (at [53]).
2. It was open to the Judge to conclude that these were not good reason to suspend the sentence (at [55] to [57]).
Court of Criminal Appeal: Kourakis CJ, Kelly and Blue JJ
KOURAKIS CJ: This is an appeal against a sentence. On 14 May 2015 the appellant pleaded guilty at committal in the Magistrates Court to one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA). On 4 August 2015 the appellant was sentenced in the District Court to a head sentence of two years and nine months after a reduction from a starting point…
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.
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Details
AGLC
R v Turner [2016] SASCFC 61
Case
[2016] SASCFC 61
Decision Date
CaseChat Overview and Summary
The appeal concerned the sentencing of the respondent, R, for drug trafficking offences involving MDMA. The appeal was brought before the Full Court of the Supreme Court of South Australia, constituted by Kourakis CJ, Kelly and Blue JJ.
The primary legal issue before the Court was whether the sentence imposed on the respondent was manifestly excessive or inadequate, requiring interference on appeal. This involved an examination of the sentencing process and the application of general principles relating to non-custodial orders, specifically suspended sentences of imprisonment.
The Court considered the respondent's objective seriousness of the offending, the subjective factors relevant to sentencing, and the principles of sentencing. The Court ultimately found that the sentence imposed was not manifestly excessive and that the grounds of appeal were not established.
The appeal was dismissed.
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
The second ground of appeal is not established.Conclusion I would dismiss the appeal.