Hilfy v The Queen

[2020] SASCFC 72

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

HILFY v THE QUEEN

[2020] SASCFC 72

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)

31 July 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES

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

Appeal against sentence.

The appellant pleaded guilty to one count of trafficking in a controlled drug and one count of cultivating a commercial quantity of controlled plants contrary to subsections 32(3) and 33B(2) of the Controlled Substances Act 1984 (SA) respectively. On 17 January 2018, police located a cannabis hydroponic grow operation in the appellant’s premises, consisting of 21 plants of varying stages of maturity, along with 16.63 grams of methylamphetamine. The appellant, after initially stating the cannabis operation was her own, later told police that her then partner, RM, whom she believed to be a senior member in Adelaide of an outlaw motorcycle gang, had set up the cannabis operation. Upon RM leaving the country in 2017, the appellant claimed that she continued to conduct the operation out of fear and hope that RM would return. The appellant was sentenced to a single penalty of four years and 10 months imprisonment with a non-parole period of two years and five months.

The three grounds of appeal were: (1) the sentence is manifestly excessive; (2) the Judge erred in not suspending the term of imprisonment; (3) the Judge erred in not imposing a home detention sentence.  The appellant raised four additional complaints as both individual process errors and as contributors to ground 1: (4) the Judge erred in not sentencing on the basis that the applicant had little choice but to go along with the set up and maintenance of the cannabis cultivation; (5) the Judge erred in rejecting that the cannabis cultivation was established in a house where both the appellant and RM resided and that there was a marked power disparity between the two; (6) the Judge failed to take into account the appellant’s youth, disadvantaged background, minimal antecedents and prospects of rehabilitation; and (7) the Judge erred in not making the sentences wholly concurrent.

Held per Nicholson J (Peek J and Stanley J agreeing) dismissing the appeal:

1.  The Judge did not err in his decision to apply partial concurrency.

2.  The single penalty for the two offences imposed was not unreasonable or plainly unjust.

3.  The Judge’s decision not to suspend was not unreasonable or plainly unjust, nor was any process error identified in the Judge’s exercise of the discretion not to suspend.

4.  The Judge was not bound by the prosecution’s concession to grant home detention. In the absence of any specific error having been shown, it cannot be said that the decision not to permit…