SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
WAKEFIELD v THE KING
[2023] SASCA 95
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice David)
14 September 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence for drug and firearms offending, undertaken to assist a criminal organisation with its illicit drug trading.
The appellant was sentenced to imprisonment for six years, eight months and 20 days and a non‑parole period of three years and seven months was fixed following his pleas to five offences of possessing firearms, a sound moderator, and ammunition without a licence, and trafficking in a controlled drug.
The appellant was housing a vehicle with two firearms – one a prescribed firearm – a silencer and an amount of ammunition in suburban Adelaide. He was knowingly holding these items along with quantities of methylamphetamine. The appellant knew that others had access to the vehicle housing the firearms and ammunition while he stored it. He did not know when or what things were taken to or from the vehicle.
The appellant sought permission to appeal on the ground that his sentence is manifestly excessive.
The Court held (granting permission to appeal but dismissing the appeal):
1.The appellant’s offending involved illicit drugs and firearms whilst assisting a criminal organisation with its illicit drug trading, well knowing the potential risk that the firearms he was housing might be used in that trade.
2.Whatever might be said about the appellant’s favourable personal circumstances, and relative lowly position within the hierarchy of that criminal organisation, the threat posed to the safety of the community underscored the need for the imposition of a sentence that recognised and gave effect to the sentencing considerations of denunciation, punishment, and general deterrence.
3.The appellant’s sentence cannot be said to be unreasonable or unjust.
Controlled Substances Act 1984 (SA) s 32; Firearms Act 2015 (SA) ss 9, 39; Sentencing Act 2017 (SA) ss 3, 4, 9 and 10, referred to.
Barbaro v The Queen (2014) 253 CLR 58; Cuong v The Queen [2021] SASCA 89; Dinsdale v The Queen (2000) 202 CLR 321; Elias v The Queen (2013) 248 CLR 483; Hackett v The Queen [2021] SASCA 32; House v The King (1936) 55 CLR 499; Liddicoat v The Queen [2021] SASCA 18; Markarian v The Queen (2005) 228 CLR 357; Mile v The King [2023] SASCA 33; R v Baker [2015] SASCFC 110; R v Dell (2016) 126 SASR 571; R v Filipponi (2016) 126 SASR 464; R v Kong (2013) 115 SASR 425; R v Pham (2015) 256 CLR 550; R v Violi [2015] SASCFC 2; R v Yavuz (2018) 130 SASR 231; Sims v The King [2023] SASCA 21; Warner v The King [2022] SASCA 142, considered.
WAKEFIELD v THE…
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CaseChat Overview and Summary
The central legal issue before the appellate court was whether the sentence imposed by the sentencing judge was manifestly excessive or unjust, thereby warranting interference on appeal. The sentencing judge had emphasised the serious nature of the offences, particularly the harm caused by methamphetamine and the community's concern regarding illicit firearms. His Honour considered general deterrence to be of particular importance, alongside the protection of the community from drug and firearm offences, and found that the items seized were intended for use in criminal activity.
The appellate court found that the sentencing judge's approach was appropriate. His Honour had calculated notional sentences for each offence, including terms for firearms, a sound moderator, ammunition, and methamphetamine, before arriving at a single notional sentence. A starting point was then determined and reduced to account for the appellant's guilty pleas and time spent in custody and on home detention. The court concluded that, in light of all the circumstances, including the appellant's lack of criminal history and potential for positive community contribution, the sentence was not unreasonable or unjust.
Consequently, the appellate court rejected the complaint of manifest excess and dismissed the appeal.
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
Ratio Decidendi
Legal Principle Established
The sentencing judge received many favourable personal references and a pre-sentence report which he carefully considered. The approach of the sentencing judge: the relevant sentencing considerations The sentencing judge emphasised the serious nature of the offences to which the appellant had pleaded guilty. He observed that methamphetamine is a drug that causes significant harm to those who use it as well as to the broader community. As might be expected, the sentencing judge also referred to the significant concern within the community about the presence of illicit firearms. The sentencing judge was satisfied that the firearms and other items found in the appellant’s unit were to be used in criminal activity. The appellant knew of the presence of these before the police visit and search on 12 January 2020. The sentencing judge regarded general deterrence as having particular importance although personal deterrence was of some relevance. His Honour found that the paramount consideration in sentencing was the protection of the community and that it was necessary to emphasise that:It must be brought home that conduct which knowingly supports ongoing, organised criminal activity will be treated seriously. Methamphetamine and firearms give rise to a real risk of members of our community being harmed. The court must do what can be done to protect the community from offences involving drugs and firearms. As will be seen, it was appropriate for the sentencing judge to give emphasis to considerations such as these.The sentence imposed Although the sentencing judge proceeded to impose one sentence pursuant to s 26 of the Sentencing Act 2017 (SA), he first indicated notional sentences. For the two counts involving firearms with different maximum penalties, the sentencing judge notionally imposed a sentence of three years and nine months for the self-loading pistol and four years for the sawn-off shotgun. For the offence involving the sound moderator, the sentencing judge notionally imposed a sentence of nine months and, for the ammunition, another sentence of nine months. For these four offences, the sentencing judge identified a single notional sentence of five years and three months. For the methamphetamine offending, the sentencing judge identified a notional sentence of five years and nine months. In fixing a sentence which was proportionate in all of the circumstances, the sentencing judge adopted a single starting point of seven years, three months. That was reduced by 5 per cent for the pleas of guilty to six years, 10 months and 20 days. That was further reduced by two months for five days spent in custody and seven months spent on home detention. For the five offences, the sentencing judge fixed a single head sentence of six years, eight months and 20 days. Having regard to the appellant’s pleas, the absence of any criminal history as well as the capacity to be a positive member of the community, including in employment, the sentencing judge fixed a non-parole period of three years and seven months. This was explicitly fixed after reduction for the five days spent in custody and five months spent in home detention.