Cadzow v The Queen - [2020] SASCFC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
CADZOW v THE QUEEN
[2020] SASCFC 108
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Bleby)
13 November 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - RECOGNISANCE RELEASE ORDER
Application for permission to appeal against sentence.
The appellant, Mr Cadzow, pleaded guilty to 31 offences under the Export Control Act 1982 (Cth) relating to the preparation and exportation of lucerne seed. The offences were committed over a period of approximately three and a half years between May 2012 and January 2016.
The circumstances of the offending were the subject of a Statement of Agreed Facts. The appellant was engaged by growers of lucerne seed to market and export 15 consignments of lucerne to buyers in Saudi Arabia, and was later engaged to export a further consignment to Chile. The first 15 consignments each involved the commission of two offences, namely, procuring the occupier of an unregistered establishment to prepare prescribed goods, and exporting or attempting to export prescribed goods with false trade descriptions. The final offence related to the 16th consignment, which involved the appellant using an unregistered establishment to prepare lucerne seed.
The sentencing judge imposed a sentence of imprisonment of four years and three months, with a non-parole period of one year and 10 months.
The appellant advanced five grounds of appeal against the sentence. On 6 July 2020, Justice Kelly granted permission to appeal in respect of grounds 4 and 5, while grounds 1 to 3 were referred to the Full Court. The Full Court heard oral argument on the application and the appeal on 21 August 2020. At the conclusion of the hearing, the Court made orders allowing the appeal and setting aside the sentence of the District Court.
Held (per Kourakis CJ, Kelly and Bleby JJ), granting permission to appeal and allowing the appeal:
1. The sentence is manifestly excessive.
2. The sentence is set aside.
3. Pursuant to s 26 of the Sentencing Act 2017 (SA), a sentence of one year and six months imprisonment is imposed.
4. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the appellant is released forthwith on entering into a recognisance in the sum of $100, to be of good behaviour for a period of 12 months from the date of sentencing.
Export Control Act 1982 (Cth) ss 8A(1), 8(3)(1), 15, 15(1)(b), 15(1)(a)(i); Crimes Act 1914 (Cth) ss 20(1)(b), 16A(2), 16A(2); Sentencing Act 2017 (SA) s 26 ; Export Control (Plants and Plant Products) Order 2011 (Cth); Export Control (Orders) Regulations 1982 (Cth); Criminal Code Act 1995 (Cth) s 11.3, referred to.
Morex Meat Australia Pty Ltd & Anor v The Queen [1996] 1 Qd R 418; AB v The Queen (1999) 198 CLR 111;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cadzow v The Queen

Details

AGLC: Cadzow v The Queen [2020] SASCFC 108
Case: [2020] SASCFC 108
Decision Date: 13 November 2020

CaseChat Overview and Summary

The appellant, Cadzow, appealed against his sentence imposed by the District Court of South Australia. The dispute concerned the appropriate sentence for offences relating to the export of lucerne seed with false trade descriptions and the preparation of such goods in unregistered establishments. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The legal issues before the court were whether the sentencing judge erred in imposing a sentence of imprisonment, and if so, whether a non-custodial sentence, such as a recognisance release order, was a more appropriate disposal. The court was required to consider the appellant's personal circumstances, the nature and gravity of the offences, and the relevant sentencing principles.

The court reasoned that while the offences were serious, involving a significant volume of goods and substantial financial value, the appellant's long history of lawful business conduct, the impact of the global financial crisis on his previous company, and his subsequent efforts to establish a new business were mitigating factors. The court also noted the considerable delay between the commission of the offences and the sentencing. Applying the principles of sentencing, the court concluded that a custodial sentence was not the only just outcome and that a recognisance release order, with appropriate conditions, would adequately reflect the seriousness of the offending while also considering the appellant's personal circumstances and prospects.

The Full Court allowed the appeal, quashed the sentence of imprisonment, and in lieu thereof, imposed a recognisance release order for a period of two years, requiring the appellant to be of good behaviour and to report to a corrections officer.

Orders

Orders of the court

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Background

Background to the litigation

The Court’s reasons for these orders follow.Background The appellant has been involved in the export of lucerne seed for over 30 years. In 1985, he was employed by Keith Seeds Pty Ltd, which marketed and exported lucerne on behalf of growers. He became a director of that company in 2000. He managed the company until it went into receivership on 22 November 2010, primarily as a result of the global financial crisis. The company went into liquidation on 22 December 2010. In 2011, the appellant commenced a new lucerne marketing and exporting business called Quantum Bio. He acted as managing director of that business until he was sentenced to imprisonment on 3 June 2020. The offending occurred during this period.The offending The circumstances of the offending were the subject of a Statement of Agreed Facts. Between about May 2012 and May 2014, the appellant was engaged by growers of lucerne seed to market and export 15 consignments of lucerne to buyers in Saudi Arabia. These consignments weighed 574.8 metric tonnes in total. In late 2015, the appellant was engaged to export a further consignment, this time to Chile. The first 15 consignments each involved the commission of two offences. Consignments 1-14 all reached Saudi Arabia. The two offences committed in respect of each of these consignments were:(i)procuring Thomas Eckert, the occupier of an unregistered establishment at Strathalbyn (Eckert’s farm), to prepare prescribed goods (lucerne seed) which were subsequently exported to Saudi Arabia; and(ii)exporting prescribed goods (lucerne seed) with false trade descriptions. The 15th consignment, which was also intended for export to Saudi Arabia, was intercepted at Port Adelaide. The two offences committed in respect of this consignment were:(i)procuring Thomas Eckert, the occupier of an unregistered establishment at Strathalbyn, to prepare prescribed goods (lucerne seed) which were subsequently entered for export to Saudi Arabia; and(ii)attempting to export prescribed goods (lucerne seed) with false trade descriptions. The final offence related to the 16th consignment. This involved the appellant using a warehouse, an unregistered establishment, which he leased at Keith to prepare lucerne seed which was subsequently exported to Chile. The Saudi purchasers paid a total price of approximately USD $3,560,000 for the first 14 consignments. The 15th intercepted consignment was to be sold for approximately USD $250,000. The 16th consignment, to Chile, was sold for AUD $45,450. The appellant received somewhere between AUD $60,000 and $100,000 in fees for marketing and facilitating the consignments. Lucerne, also known as alfalfa, is a flowering plant in the legume family and a prescribed good under the Export Control Act. Order 9 of the Export and Control (Plants and Plant Products) Order made under regulation 3 of the Export Control (Orders) Regulations 1982 provides that consignments of prescribed goods must be prepared in a registered establishment in accordance with Part 3 of the Order. A registered establishment must comply with defined requirements relating to, among other things, fitness for purpose, hygiene and auditing.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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