Evdochim v The King

[2022] SASCA 140

Supreme Court of South Australia

(Court of Appeal: Criminal)

EVDOCHIM v THE KING

[2022] SASCA 140

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)

23 December 2022

CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - MANUFACTURING, PRODUCING OR CULTIVATING - CANNABIS

The appellant was convicted of two counts of cultivating a controlled substance for sale, contrary to s 33B(3) of the Controlled Substances Act 1984 (SA).

The circumstances of the offending were that throughout 2014 and 2015, the appellant had secured and maintained two properties using false names, to facilitate the cultivation at each property of 18 cannabis plants that had been growing for periods of between two weeks and three months.  The likely value of the crops at each property, on the assumption that the smaller plants reached maturity, was between $6,000 and $12,000. Whilst it was found that the appellant was involved in securing and maintaining the two properties from 2014, and 2015 respectively, there was no evidence of any previous cannabis crops.  It was accepted that the appellant’s involvement in the cultivation was confined to a period of approximately three months between June and September of 2016.

Whilst it was accepted that the appellant was not to be the primary financial beneficiary of the operation, considering the commercial nature of the operation, the sentencing judge held that it could be inferred that she stood to make some financial benefit, even where this could not be precisely quantified.

The sentencing judge imposed a single sentence for both counts of 18 months imprisonment and fixed a non-parole period of 11 months.  The judge suspended this sentence upon the appellant entering into a bond to be of good behaviour for two years.

The appellant appeals her sentence on two grounds, namely that the sentence was manifestly excessive, and that the sentencing judge erred in failing to afford appropriate weight to the appellant’s cooperation in the proceedings against her under the Criminal Assets Confiscation Act 2005 (SA).

Held, (per the Court), granting permission to appeal but dismissing the appeal:

1.The sentencing judge made no error in his consideration of the appellant’s cooperation in the confiscation proceedings under s 224(a) of the Criminal Assets Confiscation Act;

2.Despite the sentencing judge’s apparent error, the head sentence and non-parole period were not, in the circumstances, manifestly excessive.

3.To the extent that the sentencing judge erred in failing to consider the forfeiture that was made by the appellant as required by s 224(c) of the Criminal Assets Confiscation Act, the appeal should nevertheless be dismissed on the basis that this Court would not impose any lesser sentence.

Criminal Assets Confiscation Act 2005 (SA) ss 24, 47, 74, 219, 221, 224; Controlled Substances Act 1984 (SA) s 33B(3); Migration Act 1958