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…
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- Ndreka v The Queen [2021] SASCA 11
- Case
- [2021] SASCA 11
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the sentence imposed by the sentencing judge was manifestly excessive. This required the Court to consider the principles governing appellate interference with sentencing, particularly the threshold for demonstrating that a sentence is unreasonably high or plainly unjust. The Court also had to assess the relevance of the applicant's limited role in the cultivation enterprise and his personal circumstances against the seriousness of the offence and the sentencing range for such matters.
The Court applied the well-established principles for determining manifest excess, as summarised in cases such as *Dinsdale v The Queen* and *Hili v The Queen*, which require the appellate court to be satisfied that the sentence is outside the range of sentences that might reasonably have been imposed. In the context of drug cultivation, the Court noted that relevant factors include the offender's motivation and role, the scale and nature of the cultivation, the number and maturity of plants, and the anticipated yield and street value. These factors are to be considered within the statutory tiered structure of cultivation offences. The applicant's submissions focused on his limited role and good character, arguing that the sentencing judge's starting point of 18 months imprisonment was too high.
The Full Court ultimately refused permission to appeal. Bleby JA agreed with Doyle JA that permission to appeal should be refused for the reasons given. The sentencing judge had accepted that a suspended sentence of imprisonment, conditional upon the applicant entering into a bond to be of good behaviour for three years, was appropriate.
Orders
Orders of the court
40. Orders
41. For the reasons set out, I would refuse permission to appeal.
42. BLEBY JA: I agree, for the reasons given by Doyle JA, that permission to appeal should be refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.