R v WAGNER - [2005] SASC 421

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WAGNER
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
17 November 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
Appeal against sentence - appellant charged with three co-accused - all pleaded guilty to a variety of charges relating to the sale of heroin - appellant pleaded guilty to two counts of taking part in the sale of heroin and one count of possessing heroin for sale - appellant's involvement recognised as being the least serious of the four co-accused - sentencing Judge imposed a head sentence of four years and a non-parole period of one year and four months and declined to suspend the sentence - whether sentencing Judge erred in failing to suspend the sentence - whether sentencing Judge had sufficient regard to prospects of rehabilitation - Held: no error on part of sentencing Judge demonstrated - appeal dismissed.
Controlled Substances Act 1984 s32; Criminal Law (Sentencing) Act 1988 s38; Summary Offences Act 1953 s41, referred to.
R v Mangelsdorf (1995) SASR 60; R v Gjoka (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Doyle CJ, Olsson & Lander JJ, 1 July 1997); R v Nguyen [2005] SASC 329, applied.

R v WAGNER
[2005] SASC 421
Court of Criminal Appeal: Duggan, Bleby & Anderson JJ

DUGGAN J I agree that this appeal should be dismissed for the reasons given by Anderson J.
BLEBY J I agree in substance with the reasons of Anderson J. I would dismiss the appeal.
ANDERSON J
Background
The appellant pleaded guilty in the District Court to two counts of taking part in the sale of heroin contrary to s 32(1)(d) of the Controlled Substances Act 1984. She also pleaded guilty to one count of possessing heroin for sale contrary to s 32(1)(e) of the same Act. In relation to the first two counts she was jointly charged with a Mr Mezzina, and in relation to the count of possessing heroin for sale she was jointly charged with a Mr Mavromatis.
The learned Judge of the District Court sentenced Mavromatis, Mezzina and the appellant at the same time on 12 July 2005. Although there are separate remarks relating to each appellant, the facts upon which each of them pleaded guilty are contained in the sentencing remarks. A Mr Tran who was also involved was sentenced later on 4 August 2005.
At the time of sentencing Mr Mavromatis was 63 years of age and had no relevant prior convictions. At the time of his arrest he was living in a house at Richmond with the appellant. When sentenced she was 38 years old.
During April and May 2002 the police had intercepted phone calls between the appellant, Mavromatis, Mezzina, and…

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 WAGNER

Details

AGLC: R v WAGNER [2005] SASC 421
Case: [2005] SASC 421
Decision Date: 17 November 2005

CaseChat Overview and Summary

The appellant, Wagner, was charged alongside three co-accused in relation to various charges stemming from the sale of heroin. Wagner pleaded guilty to two counts of participating in the sale of heroin and one count of possessing heroin for the purpose of sale. The appellant's involvement was recognised as being the least serious among the four co-accused. The sentencing judge imposed a head sentence of four years with a non-parole period of one year and four months, and declined to suspend the sentence. Wagner appealed against the sentence, arguing that the sentencing judge had erred by not suspending the sentence and by not sufficiently considering his prospects for rehabilitation.

The legal issues before the court were whether the sentencing judge erred in not suspending the sentence and whether the sentencing judge had adequately considered the appellant's prospects of rehabilitation. The court was required to determine if the sentencing judge's decision was consistent with the principles established in previous cases regarding the suspension of sentences.

The court found no error in the sentencing judge's decision. It was held that the sentencing judge had correctly applied the principles set out in previous cases, particularly in relation to the suspension of sentences. The court noted that the sentencing judge had properly considered all relevant factors, including the appellant's level of involvement and his prospects for rehabilitation. The appeal was dismissed, affirming the original sentence imposed by the sentencing judge.

In light of the appeal being dismissed, the original sentence of four years with a non-parole period of one year and four months remains in effect. The court's decision reinforces the importance of adhering to established legal principles when determining the appropriateness of suspending a sentence in cases of drug offences.

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

DUGGAN J (dissent) BLEBY J (dissent) ANDERSON J (dissent)

The Court allowed the appeal and reversed the order suspending the sentence.Conclusion Here again in the case under appeal there are similarities with Mangelsdorf as mentioned by her Honour in her sentencing remarks. It seems to me that the learned sentencing Judge has correctly directed herself on all relevant matters in her consideration of whether this was an appropriate case in which to suspend the sentence. In my view her Honour was quite correct in following the clear guidance given by this Court in Mangelsdorf and in the cases which have followed. In my view her Honour did not fall into error in applying the comments of this court regarding suspension. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by:

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