Stocks v The Queen - [2021] SASCA 116

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
STOCKS v THE QUEEN
[2021] SASCA 116
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
21 October 2021
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - GENERALLY
CRIMINAL LAW - EVIDENCE - COMMENT ON FAILURE TO GIVE EVIDENCE - BY JUDGE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
On 10 June 2021, the appellant was sentenced for the offence of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The sentencing Judge began with a starting point of four years imprisonment, reduced by 40 per cent on account of the appellant's guilty plea to two years, four months, and 24 days imprisonment. A non-parole period of 14 months was fixed. The sentencing Judge declined to suspend the sentence and declined to order that it be served on home detention.
The appellant appealed against this sentence on the following grounds:
1.      The sentencing Judge erred in finding that the 'other substance' located was a cutting agent and used by the appellant to dilute drugs for sale and thereby increase profit.
1.1.      This finding was not available on the evidence.
1.2.      The appellant was not afforded procedural fairness with respect to the finding.
2.      The sentencing Judge erred in failing to take into account that some of the drugs located were for the appellant's personal use.
3.      The sentencing Judge's finding that the appellant was 'uncooperative with police' (made on the basis of the appellant exercising his right to silence upon arrest) was contrary to the evidence.
4.      The sentencing Judge erred in not suspending the term of imprisonment.
5.      The sentencing Judge erred in not imposing a home detention sentence.
Permission to appeal was granted on Grounds 4 and 5. Permission to appeal on Grounds 1 to 3 was referred to the Court of Appeal.
Held, per the Court, refusing permission to appeal on Grounds 1 and 2, granting permission to appeal on Ground 3, but dismissing the appeal.
1.      There was a sufficient basis from which it was open to the sentencing Judge to infer that the powder in which no controlled substances were detected was likely a material for cutting or diluting MDMA to increase the bulk of the substance for sale.
2.      Where the appellant was afforded the opportunity to give evidence on topics directly relevant to the question of whether the appellant was trafficking drugs for profit, there was no requirement for the sentencing Judge to bring counsel's attention to his conclusions as to the appellant's likely use of the powder as a cutting agent.
3.    It was not established that the sentencing Judge implicitly rejected or overlooked that some of the MDMA was for the appellant's personal use; but even if his Honour did, this was not material to…

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 Stocks v The Queen

Details

AGLC: Stocks v The Queen [2021] SASCA 116
Case: [2021] SASCA 116
Decision Date: 21 October 2021

CaseChat Overview and Summary

The appeal concerned a criminal sentence imposed on the appellant, Stocks, by a sentencing judge. The dispute centred on the factual basis for the sentence, particularly regarding the appellant's involvement in drug trafficking and the judge's comments on the appellant's exercise of his right to silence. The matter was heard by the Court.

The legal issues before the Court were whether the sentencing judge erred in inferring that a powder, in which no controlled substances were detected, was likely used as a cutting agent for MDMA for the purposes of sale. The Court also considered whether the judge was required to draw counsel's attention to his conclusions regarding the use of this powder, given the appellant had the opportunity to give evidence on topics relevant to trafficking for profit. Further, the Court examined whether the judge implicitly rejected or overlooked that some of the MDMA was for personal use, and whether this was material to the sentence. Finally, the Court addressed whether the judge erred in describing the appellant as "uncooperative" in exercising his right to silence.

The Court reasoned that there was a sufficient basis for the sentencing judge to infer the powder was a cutting agent, as this was a plausible inference from the evidence. It was held that where the appellant had the opportunity to provide evidence on relevant matters, the judge was not obliged to alert counsel to his conclusions about the powder's use. The Court found that it was not established that the judge overlooked the possibility of personal use, and even if he had, this was not material given his express recognition of the appellant's addiction as a motivation for trafficking. While the judge erred in describing the appellant as "uncooperative" for exercising his right to silence, the Court concluded that on an independent exercise of discretion, no different sentence should be imposed.

Permission to appeal was refused on the first two grounds, but granted on the third ground. Despite granting permission on the third ground, the appeal was dismissed. The Court confirmed that the sentencing judge did not err in not imposing a suspended sentence or declining a home detention order.

Orders

Orders of the court

Held, per the Court, refusing permission to appeal on Grounds 1 and 2, granting permission to appeal on Ground 3, but dismissing the appeal.

1. There was a sufficient basis from which it was open to the sentencing Judge to infer that the powder in which no controlled substances were detected was likely a material for cutting or diluting MDMA to increase the bulk of the substance for sale.

2. Where the appellant was afforded the opportunity to give evidence on topics directly relevant to the question of whether the appellant was trafficking drugs for profit, there was no requirement for the sentencing Judge to bring counsel's attention to his conclusions as to the appellant's likely use of the powder as a cutting agent.

3. It was not established that the sentencing Judge implicitly rejected or overlooked that some of the MDMA was for the appellant's personal use; but even if his Honour did, this was not material to the seriousness of the offending or the sentence imposed given the sentencing Judge expressly recognised the appellant's drug addiction was part of his motivation for trafficking drugs.

4. The sentencing Judge was in error in describing the appellant as 'uncooperative' in exercising his right to silence.

5. On an independent exercise of the sentencing discretion, no different sentence should be imposed, and the appeal dismissed on that basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows from our conclusion in respect of Ground 3, that the sentencing Judge did not err in not imposing a suspended sentence and in declining to impose a home detention order. Conclusion For the reasons set out, we would refuse permission to appeal on Grounds 1 and 2. We would grant permission to appeal on Ground 3 but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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