Gjona v The Queen

[2021] SASCA 79

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

GJONA v THE QUEEN

[2021] SASCA 79

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Justice Doyle, the Honourable Justice Livesey and the Honourable Justice Bleby)

12 August 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE

The applicant was convicted of three offences: namely, cultivating a large commercial quantity of cannabis, trafficking in a large commercial quantity of cannabis, and money laundering.

The sentencing Judge imposed a single sentence for all three offences.  His Honour started with a head sentence of eight years imprisonment.  This was reduced to five years five months imprisonment on account of the applicant’s pleas of guilty, being a reduction of approximately 32 per cent, as against the maximum available reduction of 40 per cent.  His Honour imposed a non-parole period of three years.

The applicant sought permission to appeal from a single Judge.  He complained that the sentence imposed was manifestly excessive, and made various complaints relating to the sentencing Judge’s decision to confine the applicant’s reduction for his guilty pleas to approximately 32 per cent.  That application was refused.

The applicant has renewed his application for permission to appeal before the Court of Appeal. 

Held (per the Court), refusing the application for permission to appeal:

1.      The sentence imposed was comfortably within the permissible range for the applicant’s offending.

2.      There is no arguable merit in the applicant’s challenges to the sentencing Judge’s decision to apply a reduction of approximately 32 per cent.

Sentencing Act 2017 (SA) s 40, referred to.

GJONA v THE QUEEN
[2021] SASCA 79

Court of Appeal – Criminal:    Doyle, Livesey and Bleby JJA

1. THE COURT (ex tempore):     This is a renewed application for permission to appeal against sentence.

2. The applicant was convicted of three offences: namely, cultivating a large commercial quantity of cannabis (relating to 209 cannabis plants), trafficking in a large commercial quantity of cannabis (relating to 50 bags of cannabis containing about 45 pounds of female cannabis material), and money laundering (in respect of $29,000 in cash found in the applicant’s possession and being payment for his work at the grow house).

3. The sentencing Judge sentenced the applicant on the basis that the operation to which the offending related was a highly organised and professional operation, with the sole purpose of growing substantial amounts of cannabis for sale, and was intended to be highly profitable.  While accepting that the applicant was not the person controlling the operation, nor the primary beneficiary of it, his Honour found that the applicant was a key figure in the operation, and had been involved for a period of at least five or six months.

4. The sentencing Judge imposed a single sentence for all three offences.  His Honour started with a sentence of eight years imprisonment.  This was reduced to five years five months imprisonment on account of the applicant's pleas of guilty (being a reduction of approximately 32 per cent, as against the maximum available reduction of 40 per cent).  His Honour imposed a non-parole period of three years.

5. The applicant seeks permission to appeal on three grounds.  His application was refused by a single Judge of this Court.  He has now renewed that application before this Court.

6. The first proposed ground is that the sentence imposed was manifestly excessive.  We do not consider it necessary to recite the matters advanced in support of this proposed ground.  Having considered the sentencing remarks, and the submissions made on appeal (both in writing and orally), we do not think it is reasonably arguable that the sentence was manifestly excessive.  To the contrary, the sentence imposed was comfortably within the permissible range for the applicant's offending.

7. The remaining proposed grounds relate to the sentencing Judge's decision to confine the applicant’s reduction for his pleas of guilty to approximately 32 per cent of his notional head sentence, in circumstances where s 40(3)(a) of the Sentencing Act 2017 (SA) provided for a reduction of up to 40 per cent, given the timing of the applicant's pleas.

8. The first complaint made in respect of the reduction is that the sentencing Judge erred in giving the applicant less than the statutory maximum based solely upon the strength of the prosecution case. We accept the importance of the utilitarian value of an early plea of guilty, and that the version of s 40(5) in force at the relevant time did not expressly identify the strength of the prosecution case as a consideration relevant to the exercise of the sentencing Judge's discretion in respect of the applicable reduction.

9. While there are authorities which have cautioned against attaching too much weight to this consideration, the weight of authority demonstrates that it is a potentially relevant consideration under the chausette to s 40(5) (being the catch-all reference to “any other factor or principle the court thinks relevant”). And, of course, the selection of an appropriate reduction is a discretionary matter. In our view, it was plainly open to the sentencing Judge to apply a reduction of approximately 32 per cent. Such a reduction adequately reflects the utilitarian value of the plea, and the fact that it was accompanied by genuine remorse, contrition and insight.

10. The second complaint is that the sentencing Judge failed to take account of the particular timing of the plea (namely that it was entered at the earliest opportunity, following a written indication of that plea provided only eight days after the applicant was arrested and charged). The general timing of the plea was reflected in the sentencing Judge’s recognition of the applicable maximum reduction for the plea, and hence not a matter that he can be said to have overlooked. And while the plea was entered at a time before the applicant had been provided with any of the evidence available to the prosecution, the circumstances of the applicant's offending and arrest were nevertheless sufficient for the sentencing Judge to have formed a view that the prosecution case was a strong one, and indeed that this would have been apparent to the applicant. All things considered, we do not think the Judge's failure to refer to the precise timing and circumstances of the plea reflects any error. Nor do we think that the reference in s 40(5)(b) to “the stage in the proceedings” at which the plea was entered advances the applicant's argument.

11. The third complaint is that, by reason of the sentencing Judge not having foreshadowed his intention to give less than the maximum reduction, the applicant was denied procedural fairness.  In our view, there is nothing in this complaint.  While the prosecutor did not expressly contend that the applicant should receive less than the maximum reduction, at the same time there was no concession, or other express contemplation during sentencing submissions, that the applicant should or would receive the maximum reduction.  More fundamentally it will not ordinarily be necessary for a defendant to be put on express notice of the possibility that he or she might receive less than the maximum available reduction.  Here the applicant must be taken to have been on notice that the strength of the prosecution case was a matter that might have inclined the sentencing Judge to give less than the maximum reduction.  In our view, there is no merit in this complaint.

12. For the reasons set out, we are not satisfied that any of the proposed grounds are reasonably arguable.  We dismiss the applicant's renewed application for permission to appeal against sentence.