Ndreka v The Queen - [2021] SASCA 11

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
NDREKA v THE QUEEN
[2021] SASCA 11
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
19 March 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - MANUFACTURE, PRODUCTION OR CULTIVATION
Application for permission to appeal against sentence.
Following a plea of guilty, the applicant was convicted of one count of cultivating a commercial quantity of controlled plants for sale, contrary to s 33B(2) of the Controlled Substances Act 1984 (SA). The maximum penalty for this offence is 25 years imprisonment, or a fine of $200,000, or both.
The sentencing Judge identified a notional starting point of 18 months imprisonment, and after making a reduction of 10 per cent on account of the applicant’s guilty plea, imposed a head sentence of 16 months and seven days imprisonment. His Honour fixed a non-parole period of eight months, and suspended the sentence upon the applicant entering into a bond to be of good behaviour for three years.
The applicant seeks permission to appeal on the sole ground that the sentence imposed was manifestly excessive. In particular, the applicant contends that the sentencing Judge erred in adopting a starting point of 18 months imprisonment given the limited nature of the applicant’s role in the cultivation enterprise, and his mitigatory personal circumstances.
Held, per Doyle JA (Kelly P and Bleby JA agreeing), refusing permission to appeal:
1. The starting point of 18 months imprisonment was not manifestly excessive. The sentence imposed adequately reflected the limited role of the applicant in the cultivation enterprise, and his generally mitigatory personal circumstances.
Controlled Substances Act 1984 (SA) s 33B, referred to.
R v Avdulai [2015] SASCFC 39; Dinsdale v The Queen (2000) 202 CLR 321; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; R v Morse (1979) 23 SASR 98; R v Yavuz (2018) 130 SASR 231; R v Lyberopoulos [2017] SASCFC 139, considered.

NDREKA v THE QUEEN
[2021] SASCA 11

Court of Appeal: Kelly P, Doyle and Bleby JJA

KELLY P: I agree that permission to appeal should be refused for the reasons given by Doyle JA.
DOYLE JA: Following a plea of guilty, the applicant was convicted of one count of cultivating a commercial quantity of controlled plants for sale, contrary to s 33B(2)(a)(ii) of the Controlled Substances Act 1984 (SA). The maximum penalty for this offence is 25 years imprisonment, or a fine of $200,000, or both.
Having identified a notional starting point of 18 months imprisonment, the sentencing Judge made a reduction of 10 per cent on account of the applicant’s plea of guilty, and imposed a head sentence of 16 months and seven days imprisonment. His Honour fixed a non-parole period of eight months, and suspended the sentence upon the applicant entering into a bond to be of good behaviour for three years.
The applicant seeks permission to appeal on one ground; namely, that the sentence imposed was manifestly excessive. In particular, the applicant contends that the sentencing Judge erred in adopting a starting point of 18 months imprisonment given the limited nature of the applicant’s role in the cultivation enterprise, and his mitigatory personal circumstances.
In addressing this ground, it is convenient to first summarise the circumstances of the offending and the applicant’s personal circumstances, before returning to address more directly the submissions put by the applicant’s counsel in support of a contention of manifest excess.
The circumstances of the offending
On 4 June 2018, the police attended a residential premises in Clarence Gardens. The premises were rented to a Mr Serraino.
Upon their arrival, the police observed the applicant in the front yard of the premises. When apprehended, he was found to have a key to the front door of the premises.
The police then searched the premises and located two rooms in the residence which were being used to cultivate cannabis plants hydroponically. In the first room the police located five immature plants and 15 juvenile plants. In the second room the police located seven immature plants, giving a total of 27 plants. I observe in passing that the sentencing Judge mistakenly referred to the 12 immature plants as mature plants, but nothing is said to turn on this.
In terms of the applicant’s role in the cultivation enterprise, the sentencing Judge accepted that it was limited. In particular, his Honour accepted the joint submission of the parties that the applicant should be sentenced on the following basis:
·The applicant was aware that cannabis was being grown at the Clarence Gardens residence, and he assisted from time to time when asked to do so by delivering building materials to the property, which were used in relation to the cultivation set up.
·The applicant was not responsible for the cultivation of the cannabis taking place at the Clarence Gardens residence. It was not his enterprise, the plants were not his, and he was not to receive any financial benefit from the anticipated harvesting and sale of the plants.
The sentencing Judge explained that the applicant’s brother and Mr Serraino were responsible for the enterprise, and it was because of the applicant’s relationship with his brother that the applicant came to be involved, and to assist in the way he did. His Honour accepted that the applicant did not play any further role in the enterprise beyond the delivery of materials, and that he did not stand to benefit from the enterprise except that he expected to receive an amount of cannabis for his own consumption.
The applicant’s personal circumstances
The applicant was 33 years of age at the date of sentencing. He was born and raised in Albania until he was 10 years of age. He had a stable family and positive relationship with his parents and two siblings. He enjoyed his schooling and had good friends.
When he was 10 years of age, the applicant’s family relocated to Italy for his father to pursue better work opportunities. The applicant learned to speak Italian, and was bilingual from an early age. He took up competitive boxing when 14 years of age. He trained hard, and excelled at that sport. He won an Italian title for his weight class when 17 years of age, and contributed his boxing prize money to his family’s finances. He stopped boxing when 17 or 18 years of age.
The applicant completed his schooling in 2001 and commenced a trade apprenticeship. He found employment as a carpenter. Over the years that followed, he worked in various capacities in the building industry, both in Italy and later in Australia. He continued to contribute some of the money he earned to assist his family’s finances.
The applicant’s employer in Adelaide, for whom the applicant worked as a tiler, provided a reference which described him as an extremely conscientious worker who worked hard and to a very high standard.
The applicant met his future wife in 2002, and they married in Albania in 2013. They have a young daughter, and as at the date of sentencing, the applicant’s wife was pregnant with their second child.
As a result of a downturn in the Italian economy, the applicant moved to Australia in about 2015. He commenced work with his employer in Adelaide whilst on a temporary visa. After returning to Italy in late 2015 for the birth of his daughter, the applicant came back to Adelaide in 2016 and resumed working with the same employer.
The applicant was granted a further temporary work visa in May 2017, and his family joined him in Australia in June 2017.
The sentencing Judge accepted that, apart from being a recreational user of cannabis (in part to manage pain associated with injuries from his history of boxing), the appellant had not otherwise been an illicit drug user. His Honour also accepted that by the time of sentencing the applicant had ceased using cannabis.
The applicant has no criminal history at all, and so fell to be sentenced as a first offender. Nor has the applicant committed any subsequent offence. By the time of his sentencing, the applicant had spent over two years on bail without incident.
The sentencing Judge also accepted that the applicant had admirable personal qualities; that he was hard working, and was a kind and considerate man who had supported his family throughout his life. His Honour noted the references from the applicant’s family members that spoke of his personal qualities, and his desire to help others.
The sentencing Judge concluded that, having regard to his personal qualities, family support and limited role in the cultivation enterprise, the applicant had good prospects of rehabilitation. This was a view supported by a report from a neuropsychologist, Dr Fitzgerald.
The sentencing Judge considered the risk that the applicant faced of being deported as a result of the sentence to be imposed, noting that this would be a matter within the Minister’s discretion. His Honour concluded that he could not make any sensible assessment of the risk of deportation and so could not take this into account. The sentencing Judge nevertheless accepted that the sentence of imprisonment he intended to impose, even if suspended, would operate more harshly upon the applicant because of the risk he would be deported, and the consequential risk of the deportation of (or separation from) his family.
The sentence imposed
After summarising the circumstances of the offending, and the applicant’s personal circumstances, the sentencing Judge turned to the sentence he intended to impose. His Honour noted that the offence of cultivating a commercial quantity of a controlled drug (here, cannabis) was a serious offence; that this was demonstrated by the maximum penalties that have been set by Parliament for this offence. His Honour added that the sentence imposed must reflect the seriousness of the offence, as well as the requirement for personal and general deterrence.
By way of explanation for his starting point of 18 months imprisonment, the sentencing Judge said:
I accept that your role was more limited than others involved in the enterprise. The Court of Criminal Appeal held in R v Avdulai[1] where there is an element of commerciality it would be rare to impose a sentence other than a sentence of imprisonment. You knowingly assisted in ensuring that the drug house was operational in the sense that you helped supply materials for use in the drug house.
I take into account your limited role in the enterprise, that you did not undertake your role for profit and the fact that you undertook the role to help out your brother. I also take into account that you have, before this offence, an unblemished criminal history record. I also take into account your good character and the fact that the term of imprisonment may operate more harshly on you because of the risk of deportation.
However, I consider that the requirement of general deterrence is important in these matters and offending of this nature, therefore a starting point of 18 months imprisonment is appropriate.
[1] R v Avdulai [2015] SASCFC 39 at [19].
After allowing the maximum available 10 per cent discount for the applicant’s plea of guilty, the sentencing Judge imposed a sentence of 16 months and seven days imprisonment.
The sentencing Judge fixed a non-parole period of eight months, having regard to the following matters:
I consider that you have good prospects of rehabilitation. First, you have no criminal history record. Secondly, your role in the enterprise was limited and borne out of a desire to help your brother. You did not profit from your involvement. Thirdly, you have committed no other offending, which suggests that the circumstances that were the catalyst for this offending are no longer present. I take into account the balance between your rehabilitation and serving the minimum period to meet the punitive and protective purposes of the punishment. I impose a non-parole period of eight months.
Finally, the sentencing Judge accepted that it was appropriate, having regard to all of these matters, to suspend the applicant’s sentence of imprisonment upon him entering into a bond to be of good behaviour for a period of three years.
Consideration
The principles governing the Court’s consideration of a submission of manifest excess are well-known. They were summarised by the High Court in Dinsdale v The Queen[2] and Hili v The Queen.[3] They require satisfaction by the appellate court that the impugned sentence is unreasonably high, or plainly unjust, in the sense required by House v The King.[4] It is not enough that the sentence is higher than what the appellate court, or some other sentencing judge, might have imposed. The appellate court will only interfere if the sentence is outside the range of sentences that might reasonably have been imposed. Whether this is so requires consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[5] But ultimately there is a limit to the amount of analysis that may be brought to bear. Often the existence or otherwise of manifest excess will be a conclusion that does not admit of lengthy exposition.[6]
[2]     Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J).
[3]     Hili v The Queen (2010) 242 CLR 520 at [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[4]     House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
[5]     R v Morse (1979) 23 SASR 98 at 99 (King CJ, White and Mohr JJ agreeing).
[6]     Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J); Hili v The Queen (2010) 242 CLR 520 at [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
These principles are, of course, applicable in the context of drug offending.
In the particular context of cultivation offending, the matters relevant to an evaluation of the offender’s culpability will include matters such as the motivation and role of the offender; the number, nature and maturity of the plants involved; the nature and scale of the venture (including the extent to which it is a commercial enterprise); and the anticipated yield and street value of the cultivation.[7]
[7] R v Yavuz (2018) 130 SASR 231 at [77] (Kourakis CJ, Blue and Hinton JJ).
The court must consider these matters in the context of the quantity-based tiered structure of cultivation offences under s 33B of the Controlled Substances Act, and the need to ensure some relativity in the spread of sentences across the tiers.[8] The applicant in this case fell to be sentenced for one count of the mid-tier offence of cultivation.
[8] R v Yavuz (2018) 130 SASR 231 at [62], [77]-[78] (Kourakis CJ, Blue and Hinton JJ).
As mentioned earlier, the focus of the applicant’s submissions that his sentence was manifestly excessive was his contention that the sentencing Judge erred in adopting a starting point of 18 months imprisonment given the limited nature of the applicant’s role in the cultivation enterprise, and what his counsel described as his impeccable record and otherwise compelling personal circumstances.
The applicant accepts that the sentencing Judge accurately and fairly summarised the circumstances of the applicant’s offending (including the limited nature of his role in the cultivation enterprise), and his personal circumstances.
The only qualification to this involved a challenge to the sentencing Judge’s reference (in a passage from his sentencing remarks quoted earlier in these reasons) to the applicant having knowingly assisted “in ensuring that the drug house was operational” through his supply of materials. The applicant contends that this description of the applicant’s involvement runs contrary to the agreed factual basis upon which the applicant was to be sentenced, namely that his assistance in delivering building materials for use in relation to the cultivation set up was not essential to the operation. Counsel for the applicant noted the similarity between the language used by the sentencing Judge in the passage complained of, and the language used by the Court in R v Avdulai[9] to describe the assistance provided by the appellant in that case, and contended that the Judge had lost sight of the limited nature of the assistance provided by the applicant in the present case.
[9] R v Avdulai [2015] SASCFC 39 at [19] (Gray, Sulan and Kelly JJ).
I do not accept this submission. Not only was the assistance provided by the appellant in R v Avdulai in fact similar,[10] I consider that the submission involves an overly literal reading of the Judge’s sentencing remarks. When the impugned passage is read in light of the sentencing remarks as a whole, I do not accept that the sentencing Judge lost sight of, or departed from, the agreed factual basis for the applicant’s sentencing and the true measure of his culpability. His Honour accurately described the applicant’s role at the outset of his reasons, and I do not think his subsequent references back to that role were suggestive of any error or misunderstanding.
[10] The offender’s role was similarly minor or limited in nature (involving some work on a stud wall, and in repairing a filter used to purify the air), and indeed was isolated or one-off in nature.
The applicant’s more general submission was that there was a disconnect between the factual basis for the applicant’s sentencing (in particular, his very limited role in the enterprise and his mitigatory personal circumstances) and the sentencing Judge’s starting point of 18 months imprisonment. In relation to the applicant’s limited role, the applicant’s counsel emphasised that his role was not essential to the success of the operation, and was confined to from time to time delivering building materials for use in the cultivation set up. He also emphasised that it was not the applicant’s cultivation enterprise, and indeed that he did not stand to benefit in any way from his involvement, other than that he expected to receive an amount of cannabis for his own consumption.
While it is true that the applicant’s involvement was limited, I do not think that describing it as non-essential takes the matter very far. The assistance was not menial or trivial in nature. It was not isolated in that he had delivered building materials from time to time, or on a handful of occasions. Indeed, the fact that he was present when the police searched the residence, and had a key to the residence, suggests that his involvement was ongoing. And it was agreed that the materials he provided were used in relation to the cultivation set up, even though he did not himself install or construct the set up. The fact that the materials he provided did not include the hydroponics equipment, and could likely have been obtained from someone else had the applicant not provided them, does not to my mind take the matter very far. The fact remains that the applicant provided some practical assistance to the cultivation enterprise.
Further, as the respondent points out, even though the applicant’s assistance was limited, and he did not stand to benefit from the cultivation, it is nevertheless relevant to have regard to the nature and scale of the cultivation enterprise with which the applicant was prepared to knowingly involve himself. There is authority for this proposition in R v Lyberopoulos.[11] In the present case, the operation was relatively sophisticated. Two entire rooms in the Clarence Gardens residence had been turned over to the operation, and it involved 27 plants.
[11] R v Lyberopoulos [2017] SASCFC 139 at [33]-[34] (Hinton J, Nicholson and Bampton JJ agreeing).

It must be remembered that that the maximum penalty for the offending was 25 years imprisonment, a fine of $200,000, or both. Bearing in mind this heavy maximum penalty, which is an indicator of Parliament’s view as to the seriousness of offending of this type, I am not persuaded that a starting point of 18 months imprisonment was manifestly excessive. I consider that the sentence imposed adequately reflected the limited role of the applicant, and his generally mitigatory personal circumstances. It is to be noted that the sentencing Judge attached particular weight to those personal circumstances in setting a relatively low non-parole period and suspending the sentence of imprisonment.
For completeness, I add that I have had regard to the applicant’s submissions as to the sentences imposed in R v Avdulai[12] and R v Yavuz.[13] To the extent that assistance can be gained from comparison with the sentences imposed in these cases, given the inevitable differences in the relevant circumstances, I do not think that the comparison supports a conclusion of manifest excess in the present case.
[12] R v Avdulai [2015] SASCFC 39.
[13] R v Yavuz (2018) 130 SASR 231.
Orders
For the reasons set out, I would refuse permission to appeal.
BLEBY JA: I agree, for the reasons given by Doyle JA, that permission to appeal should be refused.