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…

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 R v Avdulai

Details

AGLC: R v Avdulai [2015] SASCFC 39
Case: [2015] SASCFC 39
Decision Date: 2 April 2015

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the defendant, Avdulai, by a judge of the District Court of South Australia. Avdulai had pleaded guilty to an offence related to the cultivation of cannabis. The dispute on appeal was whether the sentence imposed was manifestly excessive, with the defendant arguing that a custodial sentence was not the only appropriate option and that the judge erred in the starting point for sentencing and in failing to adequately consider parity with a co-offender.

The court was required to determine whether the sentencing judge erred in finding that a custodial sentence was the only appropriate sentence, notwithstanding the defendant's minor role in the offending, his personal circumstances including secure employment and family responsibilities, and his early guilty plea. Furthermore, the court had to consider whether the judge erred in setting a starting point of four years imprisonment before accounting for the guilty plea, and whether this starting point, and the subsequent sentence, were consistent with the principle of parity between co-offenders.

The Full Court of the Supreme Court of South Australia allowed the appeal. The court reasoned that the sentencing judge had failed to give sufficient weight to the defendant's personal circumstances and his minor role in the offence. The judge's starting point of four years imprisonment was considered too high, particularly in light of the defendant's lack of prior convictions, his established employment and family ties in Victoria, and his early plea of guilty. The court also noted that the judge had not adequately considered the principle of parity, as the sentence imposed on the co-offender, Jeshnica, was not detailed in the provided text, but the defendant's argument implied a disparity.

The court varied the sentence imposed by the District Court. While the exact final orders are not fully detailed, the appeal was allowed on the grounds that the sentence was manifestly excessive, indicating a reduction or alteration to the original sentence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.