Schatto v The King

[2022] SASCA 129

Supreme Court of South Australia

(Court of Appeal: Criminal)

SCHATTO v THE KING

[2022] SASCA 129

Judgment of the Court of Appeal  

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

2 December 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE

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

The appellant appeals against conviction and sentence concerning one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).

On 19 April 2020, a vehicle being driven by the appellant’s ex-wife was stopped by a police officer and a search was conducted.  During the search, a mobile telephone was seized.  Analysis of the contents of the mobile telephone disclosed that the applicant had provided his ex-wife with money to purchase drugs.

It was not suggested that there was any joint enterprise between the appellant and his ex-wife and there was no evidence that he would benefit financially from her drug dealing. 

The conviction appeal was confined to challenging the pre-trial ruling that there was no illegality associated the search of the car being driven by the appellant’s ex-wife on 19 April 2020, together with the seizure of her mobile telephone. 

The application for permission to appeal against sentence was pressed on the basis that the sentence was manifestly excessive and the sentencing judge erred in failing to find good reason to suspend or order that the sentence be served on home detention. 

The Court held (as to the appeal against conviction) dismissing the appeal:

1.It is necessary that this Court assess the question of reasonableness by placing itself in the position of the police officer, armed with the knowledge of that police officer and asking whether, in those circumstances, the police officer’s suspicion was reasonably held.

2.The conducting of a search a handful of days after receiving information that Ms Schatto would be bringing drugs into the Riverland in a particular vehicle did not affect the reasonableness of the police officer’s suspicion at the time he decided to stop and search.

3.The evidence was properly admitted and the appeal against conviction should be dismissed.

The Court held (as to the appeal against sentence) granting permission to appeal and allowing the appeal:

4.That the appellant was a sworn police officer made his offending more serious than it would have been had he not been a police officer.  However the offending was not committed in the course of his duties..

5.The starting point of three years and six months is manifestly excessive  It is necessary to set aside the sentence and proceed to resentence.

6.A sentence of imprisonment of two years and six months is appropriate to reflect this Court’s condemnation of the appellant’s conduct.  A non-parole period of 18 months should be fixed.

7.There was good reason to order suspension upon entry into a bond to be…