Wallace v The King

[2023] SASCA 127

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

WALLACE v THE KING

[2023] SASCA 127

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice David)

20 November 2023

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

Application for permission to appeal against sentence.

The appellant, a 64-year-old man, pleaded guilty to two counts of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA). He was sentenced to 10 years and nine months’ imprisonment, together with a non-parole period of eight years and four months. He was convicted of similar offending in 2007.

The proposed grounds of appeal included a ground that the sentence was manifestly excessive.

The Court held (granting leave to appeal on the ground of manifest excess, but dismissing the appeal):

1.The grounds of appeal, save the ground of manifest excess, were not reasonably arguable and permission ought be refused.

2.Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.

3.A finding that circumstances of an offender were of a type and severity which were routinely, regularly and normally encountered is appropriately determined from the perspective of a sentencing court addressing whether the approach to the non-parole period otherwise mandated by s 54 of the Sentencing Act 2017 (SA) is displaced.

Controlled Substances Act 1984 (SA) s 32; Sentencing Act 2017 (SA) s 54, referred to.
Director of Public Prosecutions (SA) v Jones [2021] SASCA 114; Hai Ngoc Nguyen v The Queen (2022) 140 SASR 554; Knight v The Queen (2021) 138 SASR 156; Lee v Western Australia [2022] WASCA 137; Mason-Stuart v The Queen (1993) 61 SASR 204; Muldrock v The Queen (2011) 244 CLR 120; Nguyen v R [2022] SASCA 23; R v Hronopoulos (2017) 269 A Crim R 551; R v Karnage [2019] SASCFC 82; R v Lutze (2014) 121 SASR 144; R v Monks (2019) 133 SASR 182; R v Perry [2022] SASCA 127; R v Wallace [2023] SADC 56; R v Wallace [2008] QCA 135; The Queen v De Simoni (1981) 147 CLR 383; Warner v The Queen [2022] SASCA 142, considered.

WALLACE v THE KING
[2023] SASCA 127

Court of Appeal – Criminal: Livesey P and David JA

THE COURT (ex tempore):

Introduction

1. This is an application for permission to appeal against a sentence of 10 years and nine months’ imprisonment, together with a non-parole period of eight years and four months.

2. The appellant pleaded guilty to two counts of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA). The maximum penalty for each offence is $1,000,000 or imprisonment for life, or both.

3. The amended application for permission to appeal raises the following proposed appeal…