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R v Buttigieg [2020] SASCFC 38

appeal against sentence — importing a marketable quantity of a border controlled drug offence contrary to s 307.2(1) of the Commonwealth Criminal Code — offence related to 134.5 grams of pure cocaine — additional offence of obstructing a Commonwealth public official offence contrary to s 149.1 of Commonwealth Criminal Code taken into account pursuant to s 16BA(1) — original sentence imposed 2 years’, 11 months and 3 weeks imprisonment, released upon a recognizance release order upon giving security of $5,000 and good behaviour for 2 years’ and 6 months — manifest inadequacy — well established that leave should only be granted with respect to Crown appeals against sentence in cases that are ‘rare and exceptional’ — Crown will be granted permission to appeal if necessary to enable Court to establish and maintain adequate standards of punishment for crime; enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if sentence so far below appropriate range of sentences that sentence reflects error of principle or would ‘shock the public conscience’ — both error and strong reasons of public policy are required to justify appellate intervention in sentence said to be manifestly inadequate — error must be identified before an appellate court may interfere — manifest inadequacy is a conclusion — on Crown appeal, Court must first deal with question of permission to appeal before determining whether the appeal should be allowed — double jeopardy — this Court has determined on numerous occasions that common law principle of double jeopardy continues to apply in respect of an application by South Australia Director of Public Prosecutions for permission to appeal against sentence — High Court in Bui v DPP (Cth) observed ‘double jeopardy’ has been used to describe distress and anxiety a convicted person may feel when faced with the prospect of re-sentencing — the ‘presumed stress and anxiety’ discussed at the permission stage is relevant to the question of a person being twice vexed by the repeated exercise of the coercive power of the State — s 157(1)(a)(iii) and s 150 of the Criminal Procedure Act (SA) are picked up by Section 68(2) of the Judiciary Act which provides the South Australian Director of Public Prosecutions may appeal against a sentence passed on the conviction of a person on any ground with the permission of the Full Court — once permission to appeal is granted, s 150 precludes the Court from having regard to ‘double jeopardy’ if and when a court decides to re-sentence for Commonwealth offences, however principle of double jeopardy still applies at the permission stage of a Crown appeal on sentence for both State and Commonwealth offences — to suddenly reverse the decision and impose custodial decision may produce injustice, court can exercise discretion and refuse permission to prevent a person being twice vexed by repeated exercise of coercive power of the State — appeal judge held Director has established that sentence imposed by sentencing judge outside range of sentences available — nature and circumstances of the offence — s 16A(2)(a) — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — guilty plea — s 16A(2)(g) — size of importation, detailed nature of plan to import and type of drug involved called for sentence which reflected principles of general and personal deterrence — 20% discount allowed by sentencing judge for late plea of guilty was too generous — sentence was manifestly inadequate — rehabilitation — s 16A(2)(n) — where defendant is serving sentence which has been suspended, an appellate court should hesitate to impose a custodial sentence which would frustrate the earlier sentence and deprive defendant of opportunity to rehabilitate themselves, particularly when they have already demonstrated that they are on the path to successful rehabilitation — the public interest in ensuring that offender is not twice vexed by repeated exercise of coercive power of the State leads to conclusion that to allow appeal would be at too high a cost, in terms of justice, to offender — permission to appeal refused
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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