R v Violi

[2015] SASCFC 2

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v VIOLI

[2015] SASCFC 2

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Parker)

22 January 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - AGGRAVATING CIRCUMSTANCES

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES

The appellant was convicted by a jury for manufacturing methylamphetamine for sale and trafficking in a controlled drug (1 benzylpiperazine). On the morning of trial, the appellant pleaded guilty to 22 counts of possession of a firearm without a licence. The drugs and firearms were found in a workshop leased by the appellant. The Judge imposed a sentence of four years imprisonment for the drug related offences, and three years imprisonment for the firearms offences to be served cumulatively with a non-parole period of four years.

Whether the sentences imposed where manifestly excessive. Whether the Judge erred in sentencing the appellant as a principal offender. Whether the Judge erred in failing to direct that the sentences operate at least partly concurrently.

Held per Kourakis CJ (Bampton and Parker JJ agreeing) dismissing the appeal:

The appellant’s acquittal of the third count of trafficking in a commercial quantity of 1 benzylpiperazine did not detract from the jury’s finding that the appellant was a principal in the manufacture and trafficking of drugs occurring within the workshop premises that he occupied. (Kourakis CJ at [4].)

The sentence was not manifestly excessive. There was no reason to order partial concurrences as the conduct comprising each offence was distinctly different but also aggravated the overall offending. There is increased emphasis on general deterrence in the sentencing of commercial drug offending. (Kourakis CJ at [4].)

Firearms Act 1977 (SA) s 5, s 11, s 36A, referred to.
R v Kong (2013) 115 SASR 425; R v Nozuhur [2013] SASCFC 81; R v Copeland (No 2) (2010) 108 SASR 398, applied.

WORDS AND PHRASES CONSIDERED/DEFINED

"Manifestly excessive", "Principal offender", "Temporal and geographical proximity to offences", "Concurrent sentence", "Total sentence"

R v VIOLI
[2015] SASCFC 2

Court of Criminal Appeal:  Kourakis CJ, Bampton and Parker JJ

1. KOURAKIS CJ:    The appellant was convicted by the majority verdict of a jury of the offences of manufacturing methylamphetamine for sale and trafficking in a controlled drug, namely 1 – benzylpiperazine (BZP).  The jury acquitted the appellant of a third count which alleged trafficking in a commercial quantity of BZP. 

2. The appellant also pleaded guilty, on the morning of trial, to 22 counts of possession of a firearm without a licence.  The drugs and firearms were found in a workshop and sheds leased by the appellant. The appellant was sentenced on 5 September 2014 for all of the offences of which he was convicted.  The Judge imposed a sentence of four years imprisonment for…