Johnson (a pseudonym) v The King

Case [2022] SASCA 126

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

JOHNSON (A PSEUDONYM) v THE KING

[2022] SASCA 126

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)

1 December 2022

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

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

Police located 21 cannabis plants and 12.997 kg of dried cannabis at the applicant’s residence. Two rooms had been modified for the purposes of growing hydroponic cannabis and two ‘grow tents’ were located containing cannabis seedlings.

The applicant pleaded guilty to trafficking in a large commercial quantity of cannabis, cultivating a large commercial quantity of cannabis, possessing prescribed equipment and interfering with an electrical supply. He was sentenced to four years, one month and 16 days’ imprisonment with a non-parole period of two years.

The applicant appeals against sentence on the grounds that the sentence imposed was manifestly excessive, that the sentencing Judge erred in declining to find the existence of exceptional circumstances and erred in failing to reduce the applicant’s sentence on account of his time served in custody.

Held, per the Court, granting leave to appeal on all grounds, dismissing the appeal and making an order pursuant to s 20 of the Act that the applicant’s sentence be amended to reflect time served in custody:

1.The sentence was within the range of sentences that may reasonably have been imposed.

2.The sentencing Judge did not err in finding that the applicant's circumstances were not exceptional for the purposes of s 96(6) of the Act.

3.The sentencing Judge’s failure to deduct seven days from the applicant’s head sentence and non-parole period on account of the applicant’s time served in custody is a technical error for the purposes of s 20 of the Act and may be remedied accordingly.

Controlled Substances Act 1984 (SA); Electricity Act 1996 (SA); Sentencing Act 2017 (SA) ss 20, 37 and 96, referred to.
House v The King (1936) 55 CLR 499; Kentwell v The King (2014) 252 CLR 601; Ndreka v The Queen [2021] SASCA 11; Pateras v The Queen [2021] SASCA 107; R v Hunt [2016] SASCFC 137; R v Jones [2022] SASCA 105; R v Kuci [2016] SASCFC 136; R v Perrey; R v Perrey [2022] SASCA 51; R v Singh [2018] SASCFC 89; R v Skinner [2016] SASCFC 106; R v Tsonis [2018] SASCFC 86; R v Yavuz [2018] SASCFC 24; R v Young [2016] SASCFC 102, considered.

JOHNSON (A PSEUDONYM) v THE KING
[2022] SASCA 126

Court of Appeal – Criminal:    Livesey P, Lovell and Bleby JJA

  1. THE COURT: During a search of the applicant’s residence, police located 21 cannabis plants and approximately 12.997 kg of dried cannabis. The applicant entered pleas of guilty to trafficking in a large commercial quantity of cannabis, cultivating a large commercial quantity…

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Johnson (a pseudonym) v The King [2022] SASCA 126
Case
[2022] SASCA 126
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CaseChat Overview and Summary

The applicant, Johnson (a pseudonym), appealed against his sentence imposed by the Supreme Court of South Australia. The dispute concerned the severity of the sentence imposed following guilty pleas to four counts of criminal offending, which involved the cultivation and trafficking of cannabis.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge erred in principle by imposing a sentence that was manifestly excessive, having regard to the applicant's objective circumstances and subjective factors. The court was required to consider the weight to be given to the applicant's guilty pleas, his background including substance abuse and psychological issues, his remorse, and his prospects of rehabilitation, in determining the appropriate sentence.

The Full Court reasoned that while the sentencing judge correctly identified the seriousness of the offending, particularly the commercial scale of the drug operation, she placed undue emphasis on the applicant's admitted level of involvement. The court found that the sentencing judge's assessment of the applicant's culpability was influenced by a perception that his admissions were not entirely candid, leading to a harsher assessment of his role than was supported by the evidence. The court applied the principle that a sentence should reflect the totality of the circumstances, including mitigating factors such as a guilty plea, genuine remorse, and positive steps towards rehabilitation. The court noted that the applicant had abstained from drugs and alcohol, reconnected with his faith, and demonstrated strong community support, all of which indicated a low risk of reoffending.

The Full Court allowed the appeal, quashed the original sentence, and resentenced the applicant. The court imposed a lesser sentence, reflecting a more appropriate balance between punishment, deterrence, and rehabilitation, and acknowledging the mitigating factors presented by the applicant.

Orders

Orders of the court

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Background

Background to the litigation

The applicant entered pleas of guilty in relation to all four counts on 2 March 2021, entitling him to a reduction of his sentence of 25 per cent for Counts 1 and 2, and 30 per cent for Counts 3 and 4.Applicant’s backgroundMaterial before the sentencing Judge At the time of sentence, the applicant was 36 years of age. He was born in New Zealand and immigrated to Australia with his parents and older brother when he was two years of age. He remains a New Zealand citizen. He has maintained steady employment and volunteers at a charity for disadvantaged youth. The applicant has a minor antecedent criminal history. The applicant’s father was a member of a fundamentalist church, and the applicant grew up under a strict and regimented religious regime. The applicant’s mother was more lenient than his father and smoked cannabis regularly. After leaving school, the applicant maintained a relatively stable level of employment despite abusing alcohol and having periods of addiction to methylamphetamine. The applicant agreed to engage in the offending because he could not meet the rental payments at that time after he separated from his partner. Although employed, he could not obtain enough work to pay the rent. Dr Lim, a forensic psychologist, opined that the applicant, at the time of the offending, suffered from a severe alcohol and cannabis disorder, mild benzodiazepine disorder and an adjustment disorder with anxiety and depressed mood. Dr Lim considered that the applicant suffered the effects of growing up under the strict and regimented doctrines of his father’s church. He was emotionally immature with an unstable personal identity. His illicit drug use and gravitation towards a negative peer group, in combination with his poor problem-solving skills, financial stress and substance abuse contributed to his decision to engage in the offending. Since his arrest, the applicant had abstained from alcohol and drugs, connected to his Christian faith, stopped associating with negative peers, and had committed himself to a regular fitness regime. He has strong family and community support. Dr Lim considered that the applicant had positive prospects of rehabilitation and was a low risk of reoffending. Although the sentencing Judge accepted that the applicant was not solely responsible for the establishment and continued operation of the “significant” and “thriving” commercial enterprise, she was satisfied that his involvement was “more significant” than what he had “admitted through [his] counsel in submissions or when speaking with Dr Lim”. The sentencing Judge noted:There can be no doubt that your offending is very serious. Not only were you involved in cultivation of a large quantity of cannabis, you were also involved in trafficking of over 12 kg of the drug that was located at the same premises. This amount of drug is worth a significant amount of money.…I am sentencing you on the basis that you were involved in living at the premises, tending the plants at the premises, providing security for the plants and involved in trafficking of a quantity of cannabis by storing and arranging for sales of at least part of the quantity that was located.Sentence

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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