Palaj v The Queen - [2020] SASCFC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
PALAJ v THE QUEEN
[2020] SASCFC 8
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Nicholson)
19 February 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
Appeal against sentence.
The appellant pleaded guilty to one count of cultivating a commercial quantity of a prescribed plant and one count of possessing prescribed equipment contrary to sections 33B and 33LA of the Controlled Substances Act 1984 (SA) respectively. The appellant was a first-time offender who had moved to Australia from Italy with his family. He was approached about growing cannabis and offered $20,000 to do so. The person with whom the appellant was dealing supplied the hydroponic equipment and maintained the rent payments on the appellant’s property. At the time of the appellant’s arrest, the grow house contained 39 cannabis plants at different stages of maturity.
The two grounds of appeal were: (1) the sentencing Judge erred by sentencing the appellant on the basis that he was involved in an enterprise that went beyond the 39 cannabis plants that he pleaded guilty to cultivating; and (2) that the sentence was manifestly excessive.
Held per Nicholson J (Kourakis CJ and Stanley J agreeing) allowing the appeal:
1. The Judge erred in failing to accept that the offending was isolated, thus excluding the possibility of leniency.
2. The appeal is allowed on ground 1 and the appellant is resentenced to a head sentence of two years and three months, with a non-parole period of 13 months. The sentence is backdated to commence when the appellant went into custody on 27 August 2019.
Controlled Substances Act 1984 (SA) s 33B, s 33LA; Sentencing Act 2017 (SA) s 11, s 26, referred to.
R v Horstman (2010) 269 LSJS 42; The Queen v Reiner (1974) 8 SASR 102; R v Yavuz; R v Soyler; R v Bayraktar (2017) 130 SASR 231, discussed.
The Queen v De Simoni (1981) 147 CLR 383, considered.

PALAJ v THE QUEEN
[2020] SASCFC 8
Court of Criminal Appeal: Kourakis CJ, Stanley and Nicholson JJ

KOURAKIS CJ: I would allow the appeal for the reasons given by Nicholson J and join in the orders he proposes.
STANLEY J: I would allow the appeal. I agree with the reasons of Nicholson J and the orders he proposes.
NICHOLSON J.
Introduction
The appellant,[1] after pleading guilty, was convicted in the District Court of one count of cultivating a commercial quantity of a prescribed plant contrary to subsection 33B(2) of the Controlled Substances Act 1984 (SA) and one count of possessing prescribed equipment contrary to section 33LA of the Controlled Substances Act 1984 (SA). The offences were committed prior to and on 1 April 2019.[2] The maximum penalty for cultivating a commercial quantity of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Palaj v The Queen

Details

AGLC: Palaj v The Queen [2020] SASCFC 8
Case: [2020] SASCFC 8
Decision Date: 19 February 2020

CaseChat Overview and Summary

The appeal in *Palaj v The Queen* was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Stanley and Nicholson JJ. The appellant, Palaj, sought to appeal his sentence for cultivating cannabis. The circumstances of the offending involved the appellant, a 41-year-old immigrant from Albania with a family and significant financial pressures due to his inability to work after a visa refusal, agreeing to manage a cannabis grow house in exchange for $20,000. He was provided with hydroponic equipment and the rent for the property was maintained by another party. At the time of his arrest, 39 cannabis plants in various stages of growth were discovered, along with a sophisticated hydroponic setup.

The central legal issue before the Court was whether the sentence imposed on the appellant was manifestly excessive, particularly in light of his personal circumstances and the specific nature of his involvement in the cultivation. The Court was required to consider the principles of sentencing for drug offences, including the need to deter others and reflect the seriousness of the crime, while also giving appropriate weight to mitigating factors such as the appellant's background, financial hardship, and his role as a manager rather than a principal offender.

The Court allowed the appeal on the basis of the first ground of appeal, which related to the sentencing. While the judgment does not detail the precise reasoning for allowing the appeal on this ground, it indicates that the Court found the original sentence to be inappropriate. Consequently, the Court ordered that the appellant be resentenced.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I would allow the appeal on the basis of appeal ground 1 and resentence the appellant. Background to and circumstances of the offending The appellant was 41 years of age at the time of sentencing. He was born in Albania under its communist regime and fled to Italy as a teenager. He worked in landscaping, welding and fabricating in Italy before commencing a gyprock business in 2002 which proved to be successful. The appellant married in 2002 and has three children, aged 13, 10 and seven as at the time of sentencing on 14 August 2019. In 2015, the appellant and his family visited Australia for a holiday. Soon after that, the family moved to Australia thinking that they would like to live here permanently. In February 2017, the appellant applied for a student visa. Had the appellant been granted a student visa, he would have been entitled to undertake some level of employment. However, the visa was refused and as a consequence the appellant was unable to engage in employment. The appellant lodged an appeal to the Administrative Appeals Tribunal some time prior to commencing the cultivation of the cannabis in question. This appeal was still pending at the time of the offending. In order to be able to support his family, and being unable to work, the appellant had transferred from Italy more than $100,000 in savings. More than $80,000 was expended on fees for the education of himself and his children. The appellant had been living at the address in Prospect where, in due course, the offending occurred. However, in the middle of 2018, being under severe financial pressure, he moved the family to a Tranmere address. The appellant was committed to a lease at the Prospect property and was considering subletting that property. However, he spoke to a person he met at the college his daughter was attending about his need to sublet the Prospect property. He was then approached and spoken to about allowing the property to be used in order to grow cannabis. He was offered $20,000 to do so. In exchange for the $20,000 (paid in advance) instead of subletting the house he was to allow the house to be set up as a grow house and it was his task to manage the grow house. The person with whom he was dealing supplied the hydroponic equipment and maintained the rent payments on the Prospect property. At the time of his arrest, the grow house contained 39 cannabis plants; 18 were mature plants, six were immature plants and 15 were clones. The property also contained a very sophisticated hydroponic set up. Two bedrooms and a room in the rear section of the shed were set up as grow rooms and each contained six mature plants growing under globes attached to reflectors and ballasts. Another grow room was set up in the laundry and contained six immature plants and 15 very small immature plants (clones) also growing under globes attached to reflectors and ballasts. A timer system was used to regulate the hydroponics. Also located were eight spare reflectors, seven spare ballasts, 14 spare globes and some plant fertiliser.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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