R v Marrone [2024] SASCA 99 (15 August 2024)
Background
This case involved an appeal by the DPP against the sentence imposed on an offender (referred to here as ‘the respondent”) who had pleaded guilty to four counts of trafficking in a controlled drug and one count of money laundering. After being charged with the first count of trafficking, the respondent was granted bail on home detention. He then took advantage of being granted bail to commit further offences, as represented by the further three counts of trafficking and the one count of money laundering.
At the time of his sentence in the District Court of South Australia the respondent had been a member, since 2001, of the Finks, a notorious criminal biker gang. By the time of his latest offending he had become a senior member of the Finks. The respondent had a serious prior criminal history which involved trafficking in drugs and offences of violence.
Because of his offending history, the respondent, at the time of sentence, would ordinarily have been classified as a ‘serious repeat offender’. One consequence of this was that any non-parole period imposed on him had, by law, to be at least 4/5ths of the head sentence imposed. However, if an offender could demonstrate that their personal circumstances were so exceptional as to outweigh the paramount consideration of protecting the community and deterring offenders then a sentencing judge could avoid being required by law to sentence an offender as a serious repeat offender.
The respondent was able to persuade the sentencing judge that his personal circumstances were so exceptional as to outweigh the paramount consideration of protecting the community. Those circumstances included his having taken steps to leave the Finks, his attempts at rehabilitative courses since his arrest, and the need to provide care to his wife who was suffering from a debilitative illness. The sentencing judge, having been persuaded of the exceptional nature of the respondent’s personal circumstances proceeded on the basis that he was not obliged to deal with the respondent as a serious repeat offender. For all of the counts charged the sentencing judge arrived at a head sentence of 6 years (after reductions for the respondent’s plea of guilty and the time he had spent on home detention bail) and imposed a non-parole period of 3 years.
The DPP applied to the South Australian Court of Appeal for permission to appeal against the sentence on the basis, first, that it was manifestly inadequate and, secondly, on the basis that the respondent’s personal circumstances were not so exceptional as to justify dealing with him as other than a serious repeat offender.
The Court of Appeal granted permission to appeal and upheld the appeal on the basis that the head sentence of imprisonment was manifestly inadequate, and further, that the respondent should have been sentenced as a serious repeat offender as his personal circumstances could not be categorised as so exceptional as to justify doing otherwise. The court heard that while the respondent had ‘taken steps’ to leave the Finks, those steps were not taken until two years after his arrest on the first count. The court also heard that the respondent had indicated a desire to leave the Finks in 2009 prior to being sentenced for other criminal offences, but had not done so. The court observed that membership of a criminal organisation such as the Finks is relevant on sentencing as it heightens the need for general deterrence and to protect the community from the criminal activities of criminal organisations.
The court re-sentences the respondent..
The Court of Appeal decided that the sentencing judge had failed to appreciate the seriousness of the offending. One aggravating feature was that he was on bail when he committed all but one of the offences charged. The offending involved significant ongoing trafficking. The respondent’s role was higher than that of a street level dealer. He had a previous criminal history of drug trafficking. In addition the respondent’s personal circumstances were not exceptional and he stood to be dealt with as a serious repeat offender.
The court set aside the sentence of 6 years with a non-parole period of 3 years. The court re-sentenced the respondent to 8 years and 8 months in prison. As he was a serious repeat offender, the non-parole period, had by law to be 4/5ths of the head sentence. A non-parole period of 6 years, 9 months and six days was fixed – over double the non-parole period fixed by the sentencing judge.
Comment
A Crown appeal against sentence must be reserved for those sentences which are so inadequate as to fall so far below the appropriate standard that to allow the sentence to stand would undermine public confidence in the administration of justice. If that high bar is not cleared then the Court of Criminal Appeal will refuse permission to bring an appeal and this is a reflection on the wide sentencing discretion which resides in a sentencing court. The appellate court will not be justified in interfering with a sentence merely because it would have exercised the sentencing discretion differently and imposed a higher sentence. On occasion, the Court of Appeal will grant permission to appeal, make a finding that the sentence was manifestly inadequate, but nevertheless, in the exercise of a discretion, decline to set that sentence aside. The court will take that course when the circumstances of the case are such that principles of double jeopardy will take priority– that is that an offender having gone once through the sentencing process should not have, through no fault of their own, to go through it again (to be ‘twice vexed’ as the older cases put it). In this case the court addressed the issue of double jeopardy and found that while the cost to the respondent was high (his non-parole period was doubled) the re-sentencing was necessary in order to maintain public confidence in sentencing standards.