Rotherham v The King

[2022] SASCA 99

Supreme Court of South Australia

(Court of Appeal: Criminal)

ROTHERHAM v THE KING

[2022] SASCA 99

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

29 September 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS

The applicant pleaded guilty to one count of trafficking in a controlled drug, namely 2.22 g of methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).

The sentencing Judge commenced with a starting point of approximately four years imprisonment. This was reduced by 10 per cent for the applicant’s guilty plea, resulting in a sentence of three years and seven months imprisonment. The sentencing Judge declined to order that the sentence be suspended or served on home detention. A non-parole period of 12 months was fixed.

The applicant submits that the sentencing Judge erred by failing to have regard to the applicant’s rehabilitation in the context of the delay between her offending and sentencing (Ground 1). Further, the applicant submits that the sentencing Judge erred by implicitly applying the tariff in R v Young (‘Young’) for offenders motivated by profit (Ground 2).  The applicant also submits that the sentence was manifestly excessive (Ground 3) and the sentencing Judge erred in failing to suspend the sentence (Ground 4) or ordering that it be served on home detention (Ground 5).

Held, per the Court, granting permission to appeal on Grounds 1 to 5 but dismissing the appeal:

1.The sentencing Judge took into account the applicant’s progress and rehabilitation, as reflected in his sentencing remarks read as a whole and, ultimately, the lenient non-parole period imposed.

2.It was appropriate for the sentencing Judge to sentence the applicant on the basis that she was a street level offender ‘motivated to a greater or lesser extent by profit’.

3.In adopting a starting point of four years, the sentencing Judge commenced at the bottom of the range contemplated in Young for offenders motivated by profit. The matters relied upon by the applicant did not require the sentencing Judge to adopt a starting point below this range.

4.There was no process error by the sentencing Judge in declining to suspend the sentence. It was open to the sentencing Judge to conclude that there was not good reason to suspend the sentence and that it was not appropriate to order that the sentence be served on home detention.

Controlled Substances Act 1984 (SA) s 32; Sentencing Act 2017 (SA) ss 4,…