SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WAKEFIELD
[2018] SASCFC 85
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Parker)
21 August 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
This is an appeal against sentence, and an application for permission to appeal against sentence.
The appellant pleaded guilty to five offences against the Controlled Substances Act 1984 (SA). A Judge of the District Court imposed a head sentence of six years, seven months, three weeks and four days and a non-parole period of four years and seven months.
The appellant advanced seven grounds of appeal in respect of this sentence (but subsequently abandoned grounds 4 and 6):
1. The Judge erred by reducing the sentence for count 1 for totality before applying the guilty plea discount.
2. The Judge erred by making the sentence for count 1 cumulative upon that for count 4.
3. The Judge erred by considering himself bound by s 10C of the Criminal Law (Sentencing) Act 1988 (SA) with respect to count 1.
5. The sentence of two months’ imprisonment for the offence of possessing a prescription drug is manifestly excessive.
7. The overall sentence of six years, seven months, three weeks and four days with a non parole period of four years and seven months is manifestly excessive.
The respondent did not oppose the grant of permission to appeal on grounds 1, 2 and 3. However, a Judge of the Supreme Court refused permission to appeal on grounds 5 and 7.
Held, per Parker J (Kourakis CJ and Vanstone J agreeing) dismissing the appeal:
1. For the offence of possessing a prescription drug, the starting point of imprisonment for two months reduced by 10% to imprisonment for one month, three weeks and four days was well within the range of sentences reasonably open to the Judge (at [63]-[64]).
2. Although the Judge erred in applying a sentencing discount of 20% under s 10C of the Criminal Law (Sentencing) Act 1988 (SA) (as opposed to under the common law), this discount of 20% was not outside the range reasonably available to the Judge at common law (at [69]-[70]).
3. The effective sentence imposed by the Judge was within the range reasonably available to his Honour (at [93]).
Controlled Substances Act 1984 (SA) ss 18, 32, 33K, 33LA; Criminal Law (Sentencing) Act 1988 (SA) (repealed) s 10C; Sentencing Act 2017 (SA); Criminal Procedure Act 1921 (SA) s 158; Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA) cl 1 sch 1, referred to.
R v Martin [2009] SASC 26; Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610; R v Young (2016) 126 SASR 41, applied.
R v Major (1998) 70 SASR 488; R v Place (2002)…
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- AGLC
- R v Wakefield [2018] SASCFC 85
- Case
- [2018] SASCFC 85
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the sentences imposed were manifestly excessive, particularly in relation to the possession charge. Further, the appeal raised issues concerning the application of transitional provisions under the Sentencing Act 2017 (SA) and the appropriate discount for a guilty plea under common law principles versus statutory provisions. The court also considered the relevance of general and personal deterrence, punishment, and community protection in setting the non-parole period.
The court reasoned that the non-parole period, representing approximately two-thirds of the head sentence, was appropriate given the seriousness of the offending and the appellant's poor criminal record. Regarding the possession charge, the court found that a starting point of imprisonment for two months, reduced for a guilty plea, was within the range of reasonably available sentences. This conclusion was based on the appellant's prior conviction for a similar offence, the commission of the current offence while on bail for other drug matters, and concerns about his prospects for rehabilitation. The court noted a process error concerning the discount for the guilty plea on count 1, but concluded that the effective sentence remained within a reasonable range and was not manifestly excessive.
Consequently, the court dismissed the appeal on grounds 1, 2, and 3, and refused permission to appeal on grounds 5 and 7, upholding the sentences imposed by the sentencing judge.
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
Ratio Decidendi
Legal Principle Established
The respondent also submits that the non‑parole period was unremarkable in that it represented approximately two-thirds of the head sentence. Matters of general and personal deterrence, punishment and community protection were relevant to the setting of the non‑parole period.[21] In view of the seriousness of the offending and the appellant’s poor record, the non‑parole period was appropriate.Consideration[21] Bugmy v The Queen (1990) 169 CLR 525 at 531-532, Mason CJ and McHugh J; R v Dubois (2004) 88 SASR 304 at [26]-[27], Sulan J, Perry and Bleby JJ agreeing.The effect of the Sentencing Act 2017 The parties made comprehensive submissions concerning the operation of the transitional provision contained in the Sentencing Act 2017 (SA). That issue is only relevant if the Court concludes that the Judge erred and the appellant should be re-sentenced. As I consider that the appeal should not succeed, it is unnecessary to consider those submissions.Ground 5 I will first consider the application for permission to appeal on Ground 5. The appellant contends that the sentence imposed for the possession charge was manifestly excessive. The maximum penalty of imprisonment for two years covers the full range of offending involving prescription drugs. The possession by the appellant of nine phials of steroids for his personal use is clearly less serious than some of the criminal conduct potentially covered by s 18(3) of the CSA. Nevertheless, I consider that the starting point of imprisonment for two months reduced by 10% to imprisonment for one month, three weeks and four days was well within the range of sentences reasonably open to the Judge. Three considerations lead me to that conclusion. First, the appellant had a prior conviction for possession of anabolic steroids. On 13 September 2013 he was fined $350 for an offence that occurred on 16 October 2012. The subject offence occurred on 17 September 2014. Secondly, the subject offence was committed while the appellant was on bail for other drug offences. Thirdly, I accept the correctness of the respondent’s submission that the Judge had reason not to be optimistic about the appellant’s prospects for rehabilitation in light of the conviction for essentially the same conduct in the Northern Territory that occurred after the conduct involved in this offence. I would refuse permission to appeal on Ground 5.Ground 3 I turn to Ground 3. The respondent concedes that there was a process error due to the reliance by the Judge upon s 10C of the CLSA to determine the discount for the guilty plea on count 1. That error was prompted by the specific statement made in the prosecution’s written submissions that s 10C applied, which was not challenged by the defence. The appellant contends that under the common law principles that applied before the enactment of s 10C he would have received a discount of at least 25% on count 1. The appellant had pleaded guilty to count 1 at his arraignment on 11 June 2013. If s 10C had applied, the appropriate discount would have been up to 20%.