R v Weatherill - [2015] SASCFC 113

Supreme Court of South Australia
(Court of Criminal Appeal)
R v WEATHERILL
[2015] SASCFC 113
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Acting Chief Justice Gray, The Honourable Justice Vanstone and The Honourable Auxilliary Justice David)
17 August 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appeal against sentence following plea of guilty to trafficking in MDMA - police searched the appellant's home and found 156 ecstasy tablets and $1,385 in cash - appellant sentenced on the basis that he purchased tablets and then sold them to friends, using the profits to fund his own drug use - the appellant is a 27 year old man with no prior convictions and good employment history - the appellant was sentenced to imprisonment for three years, with a non-parole period of 15 months - whether sentence manifestly excessive.
Held per the Court (allowing the appeal) - appeal allowed and sentence set aside -sentence was manifestly excessive - appropriate starting point before discount for plea was two to two and a half years imprisonment - new sentence fixed at one year and five months after discount of 30 per cent for early plea and taking off the two months served pending appeal - given the appellant's good prospects of rehabilitation, sentence suspended upon the appellant entering into a bond in the sum of $100 to be of good behavior for a period of three years.
Controlled Substances Act 1984 (SA) s 32, referred to.

R v WEATHERILL
[2015] SASCFC 113
Court of Criminal Appeal: Gray ACJ, Vanstone J and David AJ

THE COURT: The appellant pleaded guilty in the Magistrates Court to trafficking in a controlled drug, namely MDMA (ecstasy). A police search of his home found some 156 ecstasy tablets together with $1,385 in cash. The total weight of the substance was about 45 grams and that contained just over 4 grams of pure MDMA. Evidence before the sentencing judge suggested that the tablets were worth about $2,500 to $3,000 if sold in small quantities. He was sentenced on the basis that he purchased the drugs and then sold them to his friends with the profits funding his own drug use.
The judge took a starting point of about 4 years and 5 months and gave the appropriate discount of 30 per cent on account of the early plea of guilty. He fixed a head sentence of 3 years imprisonment and a non-parole period of 15 months. He then considered whether there was good reason to suspend and found that the seriousness of the offending and the need to reflect personal and general deterrence outweighed the matters put on behalf of the appellant.
The appellant is…

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 Weatherill

Details

AGLC: R v Weatherill [2015] SASCFC 113
Case: [2015] SASCFC 113
Decision Date: 17 August 2015

CaseChat Overview and Summary

The Court of Criminal Appeal of South Australia heard an appeal by the appellant, R v Weatherill, against a sentence imposed following a plea of guilty to trafficking in MDMA. The appellant's home was searched, revealing 156 ecstasy tablets and $1,385 in cash. The sentencing judge proceeded on the basis that the appellant had purchased the tablets and then sold them to friends, with the profits used to fund his own drug use. The appellant was 27 years old, had no prior convictions, and possessed a good employment history.

The central legal issue before the Court was whether the sentence of three years imprisonment, with a non-parole period of 15 months, was manifestly excessive in the circumstances. The Court was required to consider the appropriate sentencing range for the offence, taking into account the appellant's personal circumstances and the nature of his offending.

The Court determined that the original sentence was indeed manifestly excessive. It held that an appropriate starting point for sentencing, before any discount for the early plea, would have been between two and two and a half years imprisonment. Applying a 30 per cent discount for the early plea and accounting for the two months already served pending the appeal, the Court imposed a new sentence of one year and five months imprisonment. Given the appellant's good prospects of rehabilitation, this sentence was suspended on the condition that the appellant enter into a bond of $100 to be of good behaviour for three years.

Orders