(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone, The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Doyle)
8 September 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - PERVERTING THE COURSE OF JUSTICE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
Application by Crown for permission to appeal against sentence.
The respondent was sentenced by a Judge of the District Court to imprisonment for two years and two months (reduced from three years due to his guilty pleas) for three counts of trafficking in 7.5 grams of cocaine, 2.8 grams of methylamphetamine and 36.3 grams of MDMA committed on 9 December 2014. The respondent was sentenced concurrently to imprisonment for six months (reduced from nine months) for trafficking in six tablets containing MDMA committed on 8 November 2014. The defendant was sentenced against the backgound that they were not isolated offences but part of an uncharged course of conduct over three months.
The respondent was sentenced to imprisonment for six months (reduced from eight months) for blackmail and four months (reduced from five months) for attempting to obstruct the course of justice.
In respect of the total of the head sentences of three years, the Judge fixed a non parole period of 18 months.
The Director seeks permission to appeal against the sentences on the grounds that they are manifestly inadequate. The application for permission to appeal in respect of the trafficking offences raises the question of the continuing relevance following amendments to the Controlled Substances Act made in 2007 and 2009 of the sentencing standards adopted in R v Mangelsdorf (1995) 66 SASR 60.
Held by Blue J (Kourakis CJ, Vanstone, Stanley and Doyle JJ agreeing):
1. Permission to appeal against the trafficking sentences ought to be granted to maintain adequate standards of punishment for the crime of trafficking (at [264]).
2. Permission to appeal in respect of the sentences for blackmail and attempting to obstruct the course of justice should be granted to correct sentences which are so disproportionate to the seriousness of the crimes as to require intervention to maintain standards of penalty (at [265]).
3. On resentencing for blackmail and attempting to obstruct the course of justice, the defendant is sentenced to imprisonment for 12 months and three weeks (reduced from 18 months) for the blackmail offence and eight months and two weeks (reduced from 12 months) for the attempt to obstruct the course of justice offence (at [281]-[282]).
4. Given the timing of the respondent’s guilty plea, the respondent was only…
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.
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Details
AGLC
R v Young [2016] SASCFC 102
Case
[2016] SASCFC 102
Decision Date
CaseChat Overview and Summary
The appeal concerned the sentencing of the respondent, R, by a judge of the District Court. The Crown appealed against the sentences imposed, arguing they were manifestly inadequate. The appeal was heard by the Full Court of the Supreme Court of South Australia.
The legal issues before the Full Court were whether the sentences imposed for drug trafficking, blackmail, and attempting to pervert the course of justice were manifestly inadequate, and if so, what sentences should be imposed. The court was required to consider the appropriate application of concurrent and cumulative sentences, and the commencement date for the sentences and non-parole periods.
The Full Court allowed the Crown's appeal. The court reasoned that the original sentences did not adequately reflect the seriousness of the offences, particularly the trafficking offences and the attempt to pervert the course of justice. The court applied principles of sentencing that favour cumulative sentences for distinct offences, especially where one offence involves an attempt to undermine the administration of justice. The court also determined that the sentences and non-parole period should be backdated to the date of the respondent's apprehension.
The Full Court set aside the original sentences and imposed new sentences: four years and six months imprisonment for the primary trafficking offences, seven months and one week concurrently for another trafficking offence, twelve months and three weeks cumulatively for the blackmail offence, and eight months and two weeks cumulatively for the attempt to obstruct justice. A non-parole period of three years and six months was fixed, with all sentences and the non-parole period to commence from 10 December 2014.
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
I would backdate the commencement of both the first head sentence and the non-parole period to 10 December 2014, when the respondent was taken into custody.Conclusion I would grant permission to appeal, allow the appeal and set aside the sentences imposed by the Judge. I would sentence the respondent to imprisonment for:1four years and six months for the three trafficking offences committed on 9 December 2014;2seven months and one week for the trafficking offence committed on 8 November 2014 to be served concurrently with the first sentence;312 months and three weeks for the blackmail offence to be served cumulatively on the first and second sentences; and4eight months and two weeks for the attempt to obstruct the course of justice offence to be served cumulatively on the third sentence. I would fix a non-parole period of three years and six months, both the first and second head sentences and the non-parole period to be treated as having commenced on 10 December 2014. STANLEY J: I would allow the appeal. I agree with the reasons of the Chief Justice and the orders he proposes. DOYLE J: I would allow the appeal. I agree with the reasons of Blue J, and the orders he has proposed.