BILL LEKAKIS v R No. SCCRM 92/677 Judgment No. 3753 Number of Pages - 3 Criminal Law and Procedure

[1992] SASC 3753

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), PRIOR(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judgment and punishment - Sentence - taking part in production of cannabis - cultivation of 224 plants to yield 40 grams per plant - value on market between $10,000 and $40,000 - 35 year old man with no relevant prior convictions - error of fact vitiating sentence - CCA sentencing afresh - imprisonment for 3 years (after making reduction of 1 year for plea of guilty) with non parole period of 2 years.

HRNG ADELAIDE, 8 November 1992 #DATE 8:12:1992
Counsel for appellant:     Mr E N Mcgee
Solicitors for appellant:    Mcgee and Associates
Counsel for respondent:     Mr P J L Rofe QC
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal allowed.

JUDGE1 KING CJ: This is an appeal against a sentence imposed in the District Court for the crime of taking part in the production of a prohibited substance, namely cannabis. The appellant was sentenced to imprisonment for three years and four months and a non-parole period of two years and six months was fixed. The appellant pleaded guilty to the charge in the Magistrates Court at the first opportunity. 2. On 7 March 1992, 224 cannabis plants were discovered by police concealed in the appellant's garden at his fruit growing property near Loxton. The appellant was an experienced horticulturist and, in consequence, the arrangements for the production of the crop were efficient and well designed. There were two taps with hoses attached leading to the plants and those taps were located near those plants. The crop had already been culled of male plants and only female plants remained. 3. The arrangements had been deliberately designed to conceal the crop. In consequence of that, the crop was not growing under good conditions and was therefore likely to yield less than the same number of plants would yield if grown under better conditions. The evidence was that the plants, under the conditions in which they were grown, were likely to produce 50 grams or less of mixed leaf and flowering head. 4. The appellant's counsel submitted to the sentencing judge that the appellant anticipated that he would obtain between $10,000 and $30,000 for the crop. There was evidence that a pound of mixed leaf and flowering head would yield between $2000 and $4000 on the market. The sentencing judge proceeded upon the basis that because of the evidence that the product of each plant would be 50 grams or less, he should act upon the basis that each plant on average would yield 40 grams of dry useable material. 5. It is clear that he then made calculations on the basis of a yield of $2000 per pound. On the basis of 40 grams per plant, 224 plants would produce in rough terms, about 9 kilograms of dry useable material. On the figures given in evidence, that dry useable material would produce somewhere in the general range of $35,000 to $40,000 on the market. 6. The learned sentencing judge made an error in his calculations, as a result of which he believed that the maximum return which the crop could produce in money terms was $350,000. This is somewhere in the region of 10 times more than the possible financial return from the crop on the figures which I have just discussed. Clearly, his Honour was under a serious misapprehension as to the potential value of the crop. He sentenced, he said, on the basis that the yield to the appellant would have been somewhere between $10,000, which was his lowest anticipated return, and $350,000 which was the maximum return on the judge's erroneous calculation. 7. It is clear that the true range was somewhere between $10,000 and $40,000. It was, therefore, a serious error of fact in the learned sentencing judge's approach to the sentencing process and the sentencing discretion has therefore miscarried. It becomes the responsibility of this court to impose its own sentence. Before leaving the sentence which the judge imposed, I should say that his Honour took the view on the facts which he found that the starting point for the sentence should be imprisonment for five years. By reason of the plea of guilty, his Honour reduced or discounted that sentence to three years and four months and fixed a non-parole period in relation to that head sentence. 8. There is much to be said in favour of the present appellant. He is 36 years of age and is a married man with three children. The livelihood for the family comes from the fruit block near Loxton. Due to harsh economic circumstances he is in financial difficulties and faced with the problem of caring for his family. It was in those circumstances that he came to engage in this criminal conduct. 9. He has only a minor record of prior offending, his previous offences being disorderly behaviour in 1977 which attracted a fine of $60, possessing Indian hemp in 1978 which attracted a fine of $200 and malicious damage in 1980 for which he was placed on a bond. There was also a traffic offence. 10. Nevertheless, the criminal conduct in which he did engage is of a serious kind. The maximum penalty for the production of this prohibited drug by means of cultivation of a crop in excess of a hundred plants is a fine of $500,000 or imprisonment for 25 years or both. That maximum penalty indicates the seriousness with which the legislature views the production of cannabis. It is the duty of the court to impose sentences which reflect the seriousness with which the legislature views this crime. Courts must always give full weight to mitigating circumstances surrounding the commission of a crime and also to the personal circumstances of offenders. Nevertheless, the purposes which the community has in mind, acting through the legislature, in fixing heavy penalties have to be given effect to. 11. This was a serious crime. It was a deliberate and planned commercial venture. It is true that the potential yield was substantially less than the learned sentencing judge thought, but that diminishes only partially the gravity of the crime. 12. As I have said, it was a deliberate and planned commercial venture, and the crop was cleverly disguised by the appellant who is an experienced horticulturist. It is impossible for this court to view a crime of that character other than seriously. 13. If there had been no plea of guilty, I would have thought that a sentence of four years' imprisonment was appropriate. The plea of guilty calls for a substantial reduction, and taking all the circumstances into account, I think that the appropriate sentence is a sentence of imprisonment for three years. I would fix a non-parole period of two years.

JUDGE2 PRIOR J: I agree.

JUDGE3 DEBELLE J: I agree.