R v Avdulai - [2015] SASCFC 39

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v AVDULAI
[2015] SASCFC 39
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kelly)
2 April 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
Appeal against sentence. The appellant pleaded guilty to cultivating a commercial quantity of cannabis for sale. He was sentenced to two years and five months' imprisonment with a non-parole period of one year, suspended upon entering into a good behaviour bond for three years. The appellant was additionally fined $5000. The starting point of four years, before reduction for his plea of guilty, was too high which resulted in a sentence that is manifestly excessive.
Appeal allowed.
The appellant is resentenced to 17 months' imprisonment with a non-parole period of nine months, suspended upon entering into a good behaviour bond for three years. The fine of $5000 imposed by the sentencing Judge is to remain.
Controlled Substances Act 1984 (SA) s 33B(2); Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
R v Mangelsdorf (1995-96) 66 SASR 60; R v Tassone [2011] SASCFC 7, discussed.

R v AVDULAI
[2015] SASCFC 39
Court of Criminal Appeal: Gray, Sulan and Kelly JJ

THE COURT: This is an appeal against sentence.
The appellant and defendant, Afrim Avdulai, pleaded guilty to cultivating a commercial quantity of cannabis for sale, contrary to s 33B(2) of the Controlled Substances Act 1984 (SA). The offending occurred between 1 December and 17 December 2012 at a property in Brighton. The 13 mature plants discovered by police had a value of about $8000. The maximum penalty for the offence is 25 years’ imprisonment or a fine of $200,000, or both.
The defendant was sentenced to two years and five months’ imprisonment, with a non-parole period of one year. The sentence was suspended upon the defendant entering into a bond to be of good behaviour for three years. In addition, the defendant was fined $5000. The Judge started with a sentence of four years’ imprisonment, which was reduced by 40 per cent on account of the defendant’s guilty plea at committal.
A co-accused, Elvis Jeshnica, who pleaded guilty to the above offence, and an additional count of cultivating controlled plants for sale at a residence in Parkside between January and June 2011, was sentenced to one year and ten months’ imprisonment for that offence, and to four years and one month’s imprisonment for the Brighton offence, after a reduction of 10 per cent for his guilty pleas on the day of trial. The sentences were made cumulative, making a total of five years and 11 months’ imprisonment, with a non-parole period of three years. The sentence was suspended.
The defendant contended that the sentence is manifestly excessive, on the following grounds:
- A sentence of imprisonment was not the only appropriate sentence having regard to the circumstances of the offence and the policies reflected in s 10 of the Criminal Law (Sentencing) Act 1988 (SA).
- The Judge failed to identify why a custodial sentence was the only appropriate sentence.
- The Judge erred by starting with a sentence of four years’ imprisonment, prior to a reduction for the guilty plea, having regard to the circumstances of the offending, the defendant’s personal circumstances and the principles of parity.
Background
The defendant resides in Victoria. He arrived in Australia from Macedonia in February 2010. He was associated with a soccer club in Dandenong, Victoria. He has lived in Dandenong with his wife and children since arriving in Australia. Upon coming to Australia, he became involved in the local community, both with the soccer club and with charitable and other community activities.
The defendant had established a number of contacts in South Australia as a result of coming to this State to play mainly indoor soccer during the off season, when not required by his Dandenong club. That is how he became acquainted with Jeshnica.
The defendant arrived in Adelaide on 16 December 2012 to play in a soccer tournament. He was staying at Jeshnica’s home. The two were approached to attend at the Brighton premises to undertake work which required two men. He was aware that the premises were being used to grow and cultivate cannabis.
On 17 December 2012, the defendant went to the house, with Jeshnica, to work on a stud wall and repair the coal filter used to purify air for the plants. The crop comprised 13 mature plants and 14 plants at an early stage of development, with a value of around $8000.
Whilst the men were working at the house, police arrived. The defendant hid in the roof space but was discovered and arrested, along with Jeshnica. The defendant was held in custody for about 20 hours.
The Judge described the defendant’s involvement:
I have already pointed out the maximum penalty for the offence to which you have pleaded guilty in the Magistrates Court is imprisonment for 25 years and/or a fine of $200000. You played a minor part in the enterprise and went at the invitation of Jeshnica. On the other hand, you had secure employment in Australia and family support. You pleaded at the earliest possible time in the Magistrates Court. If it were not for your guilty plea in the Magistrates Court, I would have sentenced you to four years imprisonment. I reduce that by about 40% to two years, five months. I fix a non-parole period of one year.
The Judge then considered whether good reason existed to suspend the sentence. He said:
There remains the question of suspension. Deterrent penalties are usually imposed for having any involvement with such a substantial quantity of drugs, but your involvement was relatively minor. You have no prior convictions. You have employment and family responsibilities. The prosecution does not oppose suspension in your case. I will suspend the sentence if you enter a $1000 bond to be of good behaviour for three years. In addition, I fine you $5000. In a moment I will ask you if you are willing to enter the bond. Mr Jeshnica, I move to impose your sentence.
Counsel for the defendant submitted that, in all the circumstances, the sentence was manifestly excessive having regard to the following factors:
-    The involvement of the defendant was of a relatively minor nature;
-    the fact that the defendant was assisting a friend and was to receive no remuneration;
-    the offending was isolated and not a course of conduct;
-    the quantity and value of the cannabis was at the lower end of the scale when considering cultivation;
-    the age of the defendant and his previous good character.
It was further submitted that the offending was at the lower end of the scale for the offence of cultivating cannabis.
Counsel for the Director submitted that this was a serious drug offence with a maximum penalty of $200,000 or imprisonment for 25 years, or both. It was submitted that the role played by the defendant and his co‑defendant were integral to the commercial production of cannabis, and that a starting point of four years’ imprisonment was appropriate. Counsel submitted that the Court must have regard to general deterrence and, having regard to the fact that this was a commercial enterprise, it could not be said that the sentence was manifestly excessive.
Counsel for the Director relied on the decision of this Court in Mangelsdorf[1] in 1995. That decision has been discussed in many subsequent authorities. The drug scene has changed since Mangelsdorf was decided in 1995. The classification of drugs, as determined by Mangelsdorf, no longer remains valid. At the time Mangelsdorf was decided, it was commonly considered that heroin was the most damaging illicit drug being used. Today, there is evidence that methylamphetamine, and in particular ice, is a serious problem, is highly addictive, and can have long-term effects upon a user’s mental health. Nevertheless, the Director often relies upon Mangelsdorf in appeals in drug matters. There has been a reliance on Mangelsdorf for setting benchmarks for drug offending which, in our view, may not necessarily be applicable under current legislation.
[1] R v Mangelsdorf (1995-96) 66 SASR 60.
In Mangelsdorf, when dealing with the offender who was involved in cannabis offending, the Chief Justice, with whom Prior and Williams JJ agreed, observed that the amount of cannabis involved in that offence was valued at between $50,000 to $60,000. It was not an isolated offence. The defendant had pleaded not guilty. He had a poor previous record, with a history of offending over a number of years. He had a number of previous drug convictions and, over a period of four years, had been convicted of 13 offences, all related to drugs. He had received previous sentences of imprisonment and had three previous suspended sentences for offences. He was 30 years of age at the time that he was sentenced. Doyle CJ said:[2]
There were clear commercial overtones in this case. The quantity and value of cannabis involved was substantial. In my opinion, the offence called for a sentence of four years’ imprisonment.
A non-parole period of two years was imposed.
[2] R v Mangelsdorf (1995-96) 66 SASR 60.
In Tassone,[3] the defendant had pleaded guilty to possessing cannabis for the purpose of sale. The quantity of cannabis exceeded ten kilograms. The maximum penalty for the offence was 25 years’ imprisonment or a fine of $500,000, or both. When police attended the defendant’s premises, they found 17 kilograms of cannabis in a shed. The defendant was also in possession of about $4200 in cash. The premises were set up for a large commercial enterprise of growing cannabis. The street value of the drug, if sold in larger lots, was between $90,000 and $140,000. The defendant was to receive payment for his part in cultivating and storing the cannabis. In that case, the starting point of the sentence was seven years’ imprisonment. The Court observed that the distinction between cannabis and middle-range drugs, such as amphetamines, ecstasy and similar drugs, had been abolished and, in that regard, Mangelsdorf was no longer applicable.
[3] R v Tassone [2011] SASCFC 7.
The Court in Tassone noted that references to other sentences is of limited assistance when considering whether a particular sentence is manifestly excessive. The Court observed:[4]
... At the most, other sentences may indicate a range of sentencing for offences of a similar kind. Even that limited use of other sentences can be misleading, as in all probability each case has many idiosyncratic features, both in the circumstances of the offending and the personal circumstances of the offender.
[Footnote omitted.]
[4] R v Tassone [2011] SASCFC 7 at [21].
We mention these two authorities to illustrate the difficulty confronting a sentencing court when considering offences involving the cultivation of or possession of cannabis for sale. The offending can vary from a large commercial dealing to relatively small commercial enterprises. The circumstances of an offender will also vary from case to case. The question of whether an offence is isolated or in the background of a large commercial enterprise is also relevant.
In cases where there is an element of commerciality, it would be rare to impose a sentence other than a sentence of imprisonment. We reject the submission that a penalty other than a sentence of imprisonment was appropriate in this case. The defendant was knowingly rendering assistance in ensuring that a drug house was operational. The enterprise was a commercial production. It called for a sentence of imprisonment.
In our view, the starting point of four years’ imprisonment for this offending is too high which resulted in a sentence which is manifestly excessive. Having regard to the fact that this was an isolated offence, that the defendant was to receive no remuneration for his involvement, and having regard to his prior good record and his character, a starting point of two years’ imprisonment is appropriate.
The defendant is entitled to a 30 per cent reduction for his plea of guilty. The Judge was in error in applying a 40 per cent reduction. The defendant pleaded guilty more than four weeks after his first appearance in Court. Pursuant to s 10C(1) of the Sentencing Act, he was entitled to a reduction of his sentence of up to 30 per cent. We consider that 30 per cent is appropriate in this case.
The appeal is allowed. We reduce the period of two years’ imprisonment to 17 months’ imprisonment. We fix a non-parole period of nine months. The sentence is suspended upon the defendant entering into a bond in the sum of $1000 to be of good behaviour for three years.
We would not interfere with the Judge’s decision to impose a fine of $5000 in addition to the sentence.