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…

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 BEDNARZ

Details

AGLC: R v Bednarz [2014] SASCFC 126
Case: [2014] SASCFC 126
Decision Date: 21 November 2014

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, R v Bednarz, by the Supreme Court of South Australia. The appellant had been convicted on three counts of cultivating a commercial quantity of cannabis, reflecting his significant involvement in an organised cannabis production scheme. He was initially sentenced to 15 years imprisonment with a non-parole period of eight years. The appeal was brought on the grounds that the sentence was manifestly excessive and that there was an undue disparity between his sentence and that imposed on a co-offender, Bechara.

The central legal issues before the Full Court of the Supreme Court were whether the sentence imposed on the appellant was manifestly excessive, and whether the sentencing judge had failed to achieve due proportion between the appellant's sentence and that of his co-offender, Bechara. The court was required to consider the appellant's role in the sophisticated, large-scale commercial enterprise, as well as the sentencing of Bechara, who was described as the "King Pin" of the group.

The Full Court allowed the appeal, finding that the sentence imposed was manifestly excessive. The court reasoned that while the appellant was a principal in the operation, involved in leasing premises, setting up hydroponic systems, and tending crops, the sentencing judge had not adequately achieved due proportion between his sentence and that of Bechara. The court noted that Bechara, despite being the initiator and "King Pin," had received a sentence that, when compared to the appellant's, suggested an imbalance. Consequently, the court set aside the original sentence and imposed a new sentence of 12 years imprisonment with a non-parole period of six years and six months.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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