R v BEDNARZ - [2014] SASCFC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BEDNARZ
[2014] SASCFC 126
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Bampton and The Honourable Justice Parker)
21 November 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
Appeal against sentence - appellant convicted for three counts of cultivating a commercial quantity of cannabis - offences reflected his involvement in organised cannabis production scheme - appellant sentenced to 15 years imprisonment with non-parole period of eight years - whether sentence manifestly excessive - whether undue disparity between the appellant's sentence and that imposed on co-offender.
Held: appeal allowed - sentence imposed was manifestly excessive - sentence imposed by the judge set aside - one sentence of 12 years imprisonment with a non-parole period of six years and six months imposed.
R v Bechara [2014] SASCFC 36; R v Tiddy [1969] SASR 575; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Zeen (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462, considered.

R v BEDNARZ
[2014] SASCFC 126
Court of Criminal Appeal: Vanstone, Bampton and Parker JJ

VANSTONE J: The appellant was convicted for three counts of cultivating a commercial quantity of cannabis following a trial by judge alone. He now appeals against the sentence imposed, being imprisonment for 15 years with a non-parole period of eight years.
The appellant was involved in a well organised cannabis production scheme operating from more than one property in the environs of Adelaide. One of his co-offenders, Antoine Bechara, pleaded guilty to two of the joint cultivating charges as well as possessing a large quantity of prescribed equipment. He was also dealt with for other serious drug offences but in respect of the two joint offences he notionally received a sentence of 11 years imprisonment: R v Bechara [2014] SASCFC 36 at [65]. The maximum penalty for cultivating a commercial quantity of cannabis is a fine of $200,000 or 25 years imprisonment or both.
The appellant argues on appeal that the sentence imposed was manifestly excessive in that there was undue disparity between his sentence as against that imposed on Bechara.
Background
On 3 August 2010 police found the appellant and his partner, Ms Walker, harvesting a crop of cannabis in a warehouse in Allenby Gardens. The appellant was the lessee of the warehouse. Office equipment had been placed in the front rooms to give the impression of a legitimate enterprise. The crop was found in one of four concealed rooms, which had been constructed on the mezzanine level. Twenty-six plants were found, growing hydroponically, in a sophisticated setup. Invoices addressed to the appellant and a series of handwritten instructions on growing cannabis were located. The stairs leading from the office to the upper level had been blocked off and a fake ceiling beam had been installed to disguise the room above. This is the subject of count 1.
The appellant, Bechara and others had cultivated, harvested and sold an earlier crop of 26 plants from this warehouse prior to being discovered by police. This occurred between 1 November 2009 and 30 April 2010 and was the subject of count 2.
Count 3 charged a cultivation of cannabis in a warehouse in Gepps Cross searched by police on 14 August 2010. These premises were leased by a co-offender, Vrynios. Extensive hydroponic equipment, 82 empty growing containers and fallen cannabis leaf material were found in a converted room at the rear of the building featuring a similar level of sophistication to the operation at Allenby Gardens. The evidence indicated that the plants had recently been harvested and removed. One of the appellant’s fingerprints was found on one of the hydroponic shades in the premises. The sentencing judge found that about 80 cannabis plants had been cultivated in that warehouse. However, the size of this crop was a matter of dispute during the sentencing submissions for Bechara. The prosecution conceded it could not prove how many plants there were. He was sentenced on the basis of 30 to 40 plants and it seems appropriate to proceed on that basis.
The appellant was jointly charged with Bechara and one Anthony Donjerkovic for all three counts. Together they were conducting a large-scale cannabis production business. Bechara was additionally charged with possessing prescribed equipment, that being the extensive equipment located at the two sites.
Upon his arrest at Allenby Gardens the appellant told police he was being paid to harvest the crop (count 1) but he did not know by whom. He denied any organisational role. At his trial by judge alone the appellant gave evidence that he was forced to harvest the crop under duress. He denied any involvement in either count 2 or count 3. His evidence was rejected by the trial judge and he was found guilty of all three offences.
The appellant was sentenced on the basis that:
… although Mr Bechara was the initiator and ‘King Pin’ of the group, you were a full-time principal in the operation, leasing premises, setting up rooms and hydroponic systems, growing and tending crops, and maintaining office and car detailing ‘fronts’ for some of the premises.
The sentencing judge found that the appellant was involved in this sophisticated and large-scale commercial enterprise over many months.
At the time of sentencing the appellant was aged 61 years. He had an extensive criminal record, mostly for dishonesty offences, but including some offences of violence. He had spent long periods in prison. At the time of the commission of these offences he was on a simple bond to be of good behaviour imposed for interfering with odometer readings. The judge had regard to the sentences imposed on the co-offenders, but noted that they were dealt with for different numbers of offences and that there were various other distinguishing features. The judge determined to impose a single term of imprisonment. He referred to the lack of insight or remorse. Without indicating how he arrived at the figure he imposed a sentence of 15 years imprisonment, with a non-parole period of eight years. He said that the non-parole period was “slightly shorter than usual” in light of the appellant’s age and health issues.
Arguments on appeal
The appellant argues that there is undue disparity between the sentence imposed on him and that imposed on Bechara. He submits that although he would be “hard pressed” to suggest that his head sentence was manifestly excessive, there was relevant disparity when the sentence was compared with that of Bechara.
Bechara and the appellant were due to stand trial together. On the morning of trial and after negotiation with the prosecutor, Bechara pleaded guilty. The agreement reached was that he would plead to counts 1 and 3 (as described above) as well as count 4, possessing prescribed equipment. The particulars of that count were altered so as to encompass allegations of a similar nature made in count 5. Upon that basis a nolle prosequi was entered in relation to counts 2 and 5. It appears that because Bechara was before the court on other contested matters the sentencing for these charges was ultimately dealt with by another judge, namely Judge Chivell. Judge Chivell sentenced Bechara for the three offences just mentioned, as well as for two counts of trafficking in methylamphetamine and one of trafficking in a commercial quantity of cocaine, of which offences Bechara was found guilty after a trial. In relation to the three cannabis offences Judge Chivell indicated a starting point of 15 years imprisonment, reduced to 12 years on account of the pleas of guilty. He also indicated a total of 18 years imprisonment in relation to the trafficking offences. Normally those periods would have been served cumulatively. However, having regard to the totality principle, the judge reduced the total sentence to one of 22 years and six months. He also made a serious repeat offender declaration.
It was principally in relation to the declaration that the matter went to the Court of Criminal Appeal. A majority of the Court set aside the declaration, but the Court was unanimous in confirming the head sentence. Two observations of the Chief Justice in relation to the cannabis offences are important in this context. First the Chief Justice referred to the cannabis offending by Bechara which was not charged, formerly count 2. He said:
¹²On the appellant’s own admission, he had cultivated an earlier crop at Allenby Gardens from which he had won a substantial financial reward. The appellant is not to be sentenced for that conduct but it shows that he embarked on the cultivations for which he fell to be sentenced as an offender motivated by greed and that he was deeply committed to engaging in the criminal drug trade for the purpose of extracting high profits.
Then, in relation to the cannabis cultivations (and I take this statement to encompass in a general way the prescribed equipment offence which was intrinsically connected with the cultivations) the Chief Justice indicated, in each case, a head sentence of about seven years imprisonment. His Honour said this:
⁶¹Having regard to the maximum sentence of 25 years, the appellant’s involvement as the principal offender in two sophisticated cultivations of close to 30 plants, which were produced for the purpose of sale and with a value of several hundred thousand dollars, warranted sentences in the order of seven years for each offence.
The Chief Justice then went on to discuss the question of making such sentences wholly or partly concurrent, making the point that since the “decentralisation” of drug operations was a notorious practice and since wide-ranging operations involved greater moral culpability, the Court should be cautious in ordering concurrency or at least total concurrency. However, his Honour went on to ascribe a “notional” sentence for the cannabis offences of 11 years, reduced from 12 years on account of the pleas: [65].
Ms Stokes argues that, although the appellant faced sentence for three cultivations as opposed to Bechara’s two cultivations and one prescribed equipment, Bechara was accepted by the prosecution as being at the head of this extensive drug operation. Ms Stokes submits that although the number of offences for which the appellant was convicted is an important factor, at the same time the Court should not lose sight of the fact that Bechara’s indicative final sentence for the cannabis offences was 11 years and, the imposition on the appellant of a sentence much longer than that is apt to engender a justified sense of grievance. Ms Stokes also points to the fact that while the appellant was on a bond at the time of this offending, Bechara was on parole for serious drug offending.
Analysis
Equal justice requires that, just as like cases should be treated alike, so relevant differences in role or personal circumstances should be reflected in sentence: R v Tiddy [1969] SASR 575 at 577; Lowe v The Queen (1984) 154 CLR 606 at 609, 623; Postiglione v The Queen (1997) 189 CLR 295 at 301-302, 335-336; Green v The Queen (2011) 244 CLR 462 at [28]-[30]. The principle applies not only to cases where offenders face identical charges. It applies where offenders face different charges arising out of the same crime: Green at [30]. However, the greater the divergence, the greater the difficulty in applying the principle: Green at [30]. As Kirby J noted in Postiglione at 336, perfect consistency is unattainable.
In Postiglione the High Court discussed the role of the parity principle in circumstances where the application of the totality principle had resulted in a significant reduction to the sentence imposed on a co-offender. The crimes for which sentence was imposed were two offences of conspiring to import narcotic goods committed in prison where the co-offender, Savvas, was serving a sentence of 25 years, but the appellant a much shorter sentence of 12 years. Savvas was found to be the principal conspirator. The appellant had rendered significant assistance to the police and prosecuting authorities prior to sentence.
In a joint judgment Dawson and Gaudron JJ held that the parity principle required that attention be paid to the actual period to be served by Savvas and the appellant in relation to the joint crimes, in this case the periods to be added to their existing sentences. Due proportion between the sentences could not otherwise be determined: at 303. Agreeing that the appellant’s sentence should be reduced, Kirby J said that the appellate court needed to focus on the actual punishment to be undergone by the prisoners. He said (at 343) that the “parity principle between co-offenders continues to operate as a consideration in sentencing notwithstanding the application of the totality principle to one offender”.
In separate dissenting judgments McHugh J took the view that the disparity between the two sentences was justified by the different custodial situations of the two men and the application of the totality principle, and Gummow J stated that a disparity was bound to appear because of the different custodial histories of the two men.
The present case moves further again from a straight-forward application of the general principle. Here, the co-offender, Bechara, contemporaneously faced sentence for drug offences which were more serious than the cannabis offences broadly common to both. The application of the totality principle in Bechara’s case to reduce the sum of notional head sentences from 30 to 22 and a half years illustrates that it is in a sense illusory to compare the seven years per crime mooted by the Chief Justice in the paragraph quoted above with the 15 years imposed in relation to the appellant’s three offences. Accepting that Bechara was the organiser and principal of these enterprises and that he financed them and provided the equipment, objectively it would be expected that his sentence for the cannabis offences would be greater than that of the appellant, even after allowance for his belated pleas of guilty.
The transparent methodology adopted by Judge Chivell in sentencing Bechara – which was very closely followed by the Court of Criminal Appeal in re-sentencing – enables a direct comparison between Bechara’s notional cannabis head sentence (before deduction for totality) and the appellant’s actual total sentence. However, I recognise there is a difficulty in reducing the appellant’s sentence consequent upon the employment of the totality principle in Bechara’s case. The logical end point of so doing is that all those jointly charged with one who is destined to receive a reduction on account of totality will have their sentences commensurately reduced. I do not consider that the parity principle should be so broadly interpreted. Having said that, I am left with the uneasy feeling that the appellant is left to serve a sentence for his lesser role in these offences which is not only a very lengthy term, but is significantly longer than either Bechara’s notional sentence, or the years in prison which Bechara will serve attributable to the like offences. While the appellant’s sentencing judge was not obliged to lay out in any detail the methodology he reached to arrive at the term of 15 years, the fact that he did not give any indication of his method does nothing to assuage my concern about the length of total sentence imposed.
In my view the appropriate total sentence for the appellant’s crimes was about 12 years imprisonment. That sentence can be arrived at in various ways. Each crime, standing alone, committed by a person with the appellant’s antecedents, would properly attract a sentence of about five or six years imprisonment. Since the two Allenby Gardens offences were, effectively, a continuation of the same enterprise, a large measure of concurrence would be justified. A total sentence in relation to the Allenby Gardens offences would be, say, seven years and for the Gepps Cross offence, about five years. Therefore I consider that the sentence imposed is manifestly excessive; especially when regard is had in a very general way to the sentence notionally imposed on Bechara for three cannabis crimes, two of which were committed jointly with the appellant.
In summary, without any attempt to achieve “due proportion” between Bechara’s actual sentence for his cannabis offending and the appellant’s, I consider that a single sentence of 12 years imprisonment with a non-parole period of six and a half years is appropriate.
Conclusion
For these reasons the orders I would make are as follows:
1.allow the appeal and set aside the sentence imposed in the court below;
2.sentence the appellant to one sentence of 12 years imprisonment with a non-parole period of six and a half years, that sentence to date from the day he went into custody, namely 5 July 2012.
BAMPTON J: I agree with the reasons of Vanstone J and with the orders she proposes.
PARKER J: I agree with the reasons of Vanstone J and the orders she proposes.