R v WHITING - [2005] SASC 244

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WHITING
Judgment of The Honourable Justice Gray
27 June 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO-OFFENDERS
Application for leave to appeal against sentence of imprisonment imposed by Judge of District Court - applicant sentenced to imprisonment for four years with non-parole period of two years following pleas to offences of taking part in the sale of methylamphetamine and possessing methylamphetamine for sale - applicant sentenced at same time as co-offender who was given a suspended sentence to two years and eight months’ imprisonment with non-parole period of 16 months. Leave sought to appeal on grounds that sentencing Judge had imposed sentence on basis of misapprehension of the facts; that sentence unjustifiably disparate from that imposed upon the co-accused; that sentencing Judge misstated the maximum penalty for the offence; and that sentence imposed was manifestly excessive.
Consideration of test for grant of leave to appeal by single Judge - discussion of principles in respect of parity in sentencing - consideration of High Court authority on importance of the sentencing process proceeding on a correct factual basis.
Leave to appeal granted.
Criminal Law Consolidation Act 1935 (SA) s 353, s 367, referred to.
R v Blick (1999) 108 A Crim R 525; Wakely v Police (2003) 229 LSJS 327; Inge v The Queen (1999) 199 CLR 295; R v Manglesdorf (1995) 66 SASR 60; Johnson v The Queen (2004) 205 ALR 346, applied.

R v WHITING
[2005] SASC 244
Criminal
GRAY J:
Introduction

This is an application for leave to appeal against a sentence of imprisonment imposed by a Judge of the District Court.
The applicant pleaded guilty to the offences of taking part in the sale of methylamphetamine and possessing methylamphetamine for sale. On 2 February 2005 the applicant was sentenced to imprisonment for four years. A non-parole period of two years was fixed.
The applicant was sentenced at the same time as his co-offender, David Ian Ronald Kennewell. Mr Kennewell was sentenced to a term of imprisonment of two years and eight months with a non-parole period of 16 months. However, the sentencing Judge exercised his discretion to suspend the sentence of imprisonment.
Circumstances of the offending
On 23 August 2003 the applicant and Mr Kennewell drove to Adelaide Airport. Upon arrival the applicant gave Mr Kennewell a parcel and asked him to arrange for it to be freighted to a person in Alice Springs. Mr Kennewell went to the Australian Air Express and made the necessary arrangements. The contents of the parcel were described as “drill bits”. The parcel was suspicious and the police were called. The parcel was found to contain a section of sealed PVC piping,…

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 WHITING

Details

AGLC: R v WHITING [2005] SASC 244
Case: [2005] SASC 244
Decision Date: 27 June 2005

CaseChat Overview and Summary

The case of R v Whiting involves an application for leave to appeal against a sentence of imprisonment imposed by a Judge of the District Court. The applicant was sentenced to four years in prison with a non-parole period of two years for offences related to the sale and possession of methylamphetamine. The applicant was sentenced concurrently with a co-offender, who received a suspended sentence of two years and eight months with a non-parole period of 16 months. The grounds for the appeal are that the sentencing Judge had imposed the sentence based on a misapprehension of the facts, that the sentence was unjustifiably disparate from that of the co-offender, that the sentencing Judge misstated the maximum penalty for the offence, and that the sentence was manifestly excessive.

The legal issues before the court were the principles governing the grant of leave to appeal against a sentence, the requirement for parity in sentencing between co-offenders, and the importance of the sentencing process proceeding on a correct factual basis. The court considered the High Court's observations in Johnson v The Queen regarding the need for accurate consideration of factual matters in sentence appeals. The court also discussed the complexities involved in determining the correct maximum penalty for the offence of taking part in the sale of methylamphetamine, a matter left to the Court of Criminal Appeal.

The court concluded that it was reasonably arguable that the sentencing Judge had proceeded under a misapprehension of fact, as there were factual disputes regarding the roles of the co-offenders and the distribution of drugs and money. The applicant argued that the co-offenders were equal or near-equal participants in the offending, and that it was incorrect to characterise the applicant as playing a dominant role. Given these arguabilities, the court granted leave to appeal, allowing the Court of Criminal Appeal to consider whether the sentence imposed was excessive and whether a re-sentencing should occur.

The court's decision underscores the importance of accurate factual considerations in sentencing and the need for parity between co-offenders. By granting leave to appeal, the court ensured that the applicant would receive a proper consideration of their appeal, rectifying the potential errors identified in the original sentencing process.

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

An examination of the relevant legislation reveals that the determination of precisely what is the correct maximum penalty for the offence of taking part in the sale of methylamphetamine involves a complex question of statutory construction. As there is to be a grant of leave in any event, this question is appropriately left to the Court of Criminal Appeal for determination.Conclusion In Johnson v The Queen,[7] the High Court concluded that an intermediate Court of Appeal had made a number of errors of fact when dealing with a sentence appeal. Having identified those errors, Gummow, Callinan and Heydon JJ observed:[8]It is unfortunate that these errors have been made. The appellant was entitled to have the relevant factual matters carefully and accurately considered by the appellate court....Application of a principle cannot obscure a fact. Facts either lend themselves to the application of a particular principle or not. The error in this regard was compounded by the serious factual misconception in relation to the fact in question, that there were two parcels rather than one....Although the appellant needed leave to appeal to the Court of Criminal Appeal, he was granted that leave and accordingly became entitled to a proper consideration of his appeal, something which he has been denied for the reasons we have given.[7] (2004) 205 ALR 346.[8] (2004) 205 ALR 346 at [32], [34]-[35]. The applicant has demonstrated that it is reasonably arguable that the sentencing Judge proceeded under a misapprehension of fact. It is arguable that the applicant’s co-offender received both drugs and money for his involvement in the offending. It is arguable that the co-offenders were equal or near equal participants in the offending and that it was wrong to characterise the applicant as playing the dominant role and as having persuaded his co-offender to be involved. If the applicant establishes that the sentencing Judge proceeded under a misapprehension of fact, then the Court of Criminal Appeal will need to consider in the light of the established facts, whether the sentence imposed was excessive and whether the Court should re-sentence the applicant. Leave to appeal is granted.

Ratio Decidendi

Legal Principle Established

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