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R v Faber [2020] SASCFC 49

appeal against sentence — importing a marketable quantity of a border controlled drug offence contrary to s 307.2(1) of the Commonwealth Criminal Code, trafficking a controlled drug offence contrary to s 302.4(1) of the Commonwealth Criminal Code — offending relates to 390.8g of pure MDMA and 44.8g of pure ketamine respectively — original sentence imposed 4 years’, 2 months and 13 days with a 16 month non-parole period — manifest inadequacy — sentence imposed for importation offence is at lower end of available range — when compared with cases in the schedule, I am of the view that the head sentence of 3 years’ and 9 months for importation offence is not so low as to be manifestly inadequate — it is when non-parole period of 16 months is considered against total head sentence comprising of concurrent sentences for importation offence and possession offence that question of whether sentence falls outside range of sentences available to the sentencing judge arises, 30% of resulting head sentence — nature and circumstances of the offence — s 16A(2)(a) — sentencing judge found that offender engaged in minor way in the sale of illicit drugs prior to committing the importation offence and that none of the usual indicia of trafficking were present in their home — character — s 16A(2)(m) — offender is a first-time offender — rehabilitation — s 16A(2)(n) — offender removed themselves from drug use after their arrest and has good prospects for rehabilitation — specific deterrence — s 16A(2)(j) — general deterrence — s 16A(2)(ja) — must be acknowledged quantity of MDMA imported and offender’s principal role in facilitating and taking delivery of it required a significant sentence reflecting need for personal and general deterrence — appeal judge of opinion that whilst there were matters personal to offender that may justify a lower non-parole period, the non-parole period imposed was manifestly inadequate — double jeopardy — in determining whether to grant Director permission to appeal, court must have regard to circumstances that will produce an injustice if appeal is allowed — over 3 years since offender arrested — they were employed up until taken into custody, removed themselves from drug use whilst on bail, served 5.5 months of immediate custodial sentence expecting to be eligible for parole in about 10 months or considered for early release on home detention — these matters must be considered by court in exercise of residual discretion — appeal judge acknowledged public policy considerations for granting permission to appeal, not satisfied that these considerations outweigh countervailing public interest in protecting persons from double jeopardy — permission to appeal refused
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