R v BRISTOGIANNIS

[2016] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BRISTOGIANNIS

[2016] SASCFC 22

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Lovell)

1 March 2016

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PRODUCTION OR CULTIVATION

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER

The appellant was convicted by jury of cultivating a commercial quantity of controlled plants for sale.  The appellant rented a property for the purpose of cultivating cannabis.  The electricity account was in a false name, and the appellant lived at the property for some time.  The enterprise was well organised.  The appellant denied any involvement in the crop, and maintained his innocence at the hearing of the appeal.

The appellant appeals on the ground that relevant material was not taken into account by the sentencing Judge.  The relevant material consisted of information suggesting the appellant's wife, who is not an Australian citizen, would have no avenue of support if the appellant was imprisoned, and that she was ineligible for financial support from the Government.  Counsel also submitted that good reason existed to suspend the appellant's sentence.

Held, dismissing the appeal (Sulan J, Peek and Lovell JJ concurring):

1.  Relevant sentencing matters may not have been taken into account by the sentencing Judge, and an error is therefore identified.

2.  The identification of an error in sentencing is not alone sufficient to entitle an appellant to a reduced sentence.  The hardship to dependants in this case is relevant, but not sufficient to justify re-sentencing or suspension of the sentence.

3.  The circumstances of the appellant do not amount to good reason to suspend the sentence.

Controlled Substances Act 1984 (SA) s 33B(2); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 10(1)(n), s 38, s 38(1), referred to.
House v The King (1936) 55 CLR 499, applied.
Kentwell v The Queen (2014) 252 LR 601; R v Gjoka (Unreported) Court of Criminal Appeal, 1 July 1997, Judgment No S 6211; R v Fowler [2006] SASC 18; R v Mangelsdorf (1995) 66 SASR 60; R v Taddeo (1993) 67 A Crim R 338; R v O'Toole [2013] SASCFC 18; R v Wacyk (1996) 66 SASR 530; R v Wirth (1976) 14 SASR 291; R v Moffa (No 2) (1977) 16 SASR 155; R v Hunter [2015] SASCFC 84; R v Penno [2004] SASC 354; Neill v Police [1999] SASC 270; R v Hill [2011] SASCFC 109, discussed.

R v BRISTOGIANNIS
[2016] SASCFC 22

Court of Criminal Appeal:       Sulan, Peek and Lovell JJ

1. SULAN J: The appellant was convicted by jury of the offence of Cultivating a Commercial Quantity of Controlled Plants for Sale, contrary to s 33B(2) of the Controlled Substances Act 1984 (SA). The maximum penalty is a fine of $200,000, imprisonment for 25 years or both. The appellant was sentenced to three years’ imprisonment, with a non‑parole period of two years. The appellant appeals against that sentence.

   Background

2. In August 2012, the appellant rented a property.  He rented the property for the purpose of cultivating cannabis.  The electricity account was opened in a false name.  The appellant lived in the property for some time.  He was aware that cannabis was being grown.  The enterprise in which the appellant was a party was well organised. 

3. Police raided the property on 14 August 2013.  They found ten fully‑mature cannabis plants and 15 young cannabis plants growing in a hydroponic set up.  Police identified the appellant as being involved as his fingerprints and DNA were present at the premises.  The appellant denied any involvement in the crop.

4. At the hearing of the appeal, the appellant continued to maintain his innocence.

   Personal circumstances

5. The appellant is 54 years old.  He has no prior convictions for drug offending.  He received a suspended sentence in 2010 for aggravated indecent assault. He was born in Greece. He obtained accountancy qualifications and worked for the Greek government. He married his first wife, and they had two children before separating in 2000. His former wife moved to Australia with the couple’s two children. The appellant’s former wife developed cancer. The appellant visited Australia to assist in her care.  He decided to stay to look after the children. The appellant was employed in various jobs in Australia.  He eventually commenced a relationship and then subsequently married his current wife Ms Julita Bugaj, who was born in Poland. She subsequently settled in Australia having lived for some time in Canada. At the time of sentencing, Ms Bugaj lived in Victoria. Ms Bugaj was in Australia on a visa which did not entitle her to work or to receive social security benefits. She has no financial or personal support other than the appellant.

6. In the years immediately before the trial, Ms Bugaj had suffered severe medical problems, including a hysterectomy, a mastectomy of both breasts due to breast cancer and an operation to remove a skin cancer from her back. As a result, Ms Bugaj underwent hormonal therapy which had side effects including depression, anxiety, problems sleeping, mood changes and musculoskeletal pain.

7. At the time of the appeal hearing, Ms Bugaj remained on a valid bridging visa, which entitled her to come and go from Australia until 13 March 2016.  Ms Bugaj had moved back to Canada where she resides with her son.  She is entitled to, and is receiving, social security benefits whilst residing in Canada. If Ms Bugaj resides outside Australia after 13 March 2016, her bridging visa will lapse. There is no evidence that the visa lapsing would be a bar to her reapplying for entry to Australia.

8. Relevant to this appeal, the trial Judge noted in sentencing that “[n]owhere have I seen any assertion that [Ms Bugaj] would be unable to live by herself, albeit it is suggested she would not be able to obtain employment”. Counsel for the appellant submitted that Ms Bugaj’s inability to apply for social security benefits rendered impossible her remaining in Australia while the appellant was incarcerated, and that this circumstance was not given sufficient weight by the trial Judge.

   The appeal

9. Counsel for the appellant submitted that the trial Judge erred in concluding that Ms Bugaj could live in Australia without the support of the appellant. He submitted that there was material before the court that Ms Bugaj had no avenue of support other than the appellant, and was not eligible for financial support from the Government. This material was not challenged by the respondent.

10. Prior to sentencing, trial counsel approached the Judge’s Associate with further material for His Honour to take into consideration. This material consisted of two letters, one from Dr Levenda dated 4 August 2015 and the other from Ms Bugaj dated 12 August 2015. Dr Levenda’s letter outlined Ms Bugaj’s medical problems, inability to work and ongoing treatment with a psychologist. Ms Bugaj’s letter addressed similar issues, but also stated that social security benefits were not available to her due to her being on a bridging visa.

11. Counsel pointed out to the Associate that the Court may already have copies of the material. Inspection of the Judge’s file revealed that the material was already on file.  The additional copies provided to the Associate were also placed on the Court file. After sentence was delivered, trial counsel again approached the Associate and asked whether the Judge had been alerted to the material in question. Counsel was told that the material was on the Judge’s file, and those copies were shown to counsel.

12. At the application for permission to appeal hearing, counsel raised the issue of suspension of sentence, submitting that she relied substantially on the effect of incarceration on Ms Bugaj to support his submission that the sentence should be suspended. Counsel stated that both she and counsel for the Director of Public Prosecutions were under the impression that further submissions would be made. Further submissions were not in fact invited. Counsel submitted that the sentencing remarks did not make it clear that the information contained in the two letters had been taken into account.  The Judge who heard the application for permission to appeal raised with counsel the possibility of a report being prepared by the sentencing Judge. A report was subsequently provided by the sentencing Judge.

13. The sentencing Judge acknowledged the two letters were on the file. The Judge stated that if it was right to infer that they were on the Judge’s file at the relevant time, then it is likely he read them.  However, there is a doubt whether the Judge took into account the matters referred to in the letters.  In particular, he made no reference to the submission that Ms Bugaj was not entitled to receive social security benefits because she was resident in Australia on a bridging visa.  In his report, the Judge stated that, had he been aware of the abovementioned situation at the relevant time, he would have sought further information from counsel.  Based upon the Judge’s report it would appear that, if he had read the letters, he had overlooked the financial position of Ms Bugaj.

14. Counsel submitted that this was a case in which good reason existed to suspend the sentence.  Counsel did not contend that the head sentence and non‑parole period was manifestly excessive.

    Sentencing error

15. I am satisfied that relevant sentencing matters may not have been taken into account by the sentencing Judge. In that respect, there has been an error identified. The relevant principles involving an error in the exercise of a sentencing discretion are stated in House v The King:[1]

    It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

    [Emphasis added.]

    [1] (1936) 55 CLR 499 at 504–5.

16. In Kentwell v The Queen, the High Court observed:[2]

    After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal’s independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re‑sentence.

    [Citations omitted. Emphasis added.]

    Re‑sentencing does not automatically follow where an error, such as a material consideration not being taken into account, is identified. The result of such an error is that the discretion in sentencing has miscarried at first instance, and the sentencing discretion should be exercised by the appellate court.[3] However, it does not follow that the appellant is necessarily entitled to a reduced sentence as a result of the error.

    Considerations for re-sentencing

    [2] (2014) 252 CLR 601 at 618 [43].

    [3]    Kentwellv The Queen (2014) 252 CLR 601 at 618 [42].

    Suspension of sentence

17. Counsel submitted that the sentence should be suspended, having regard to the hardship to Ms Bugaj which constituted “good reason” to suspend the sentence, pursuant to s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). Section 38 provides:

    38—Suspension of imprisonment on defendant entering into bond

    (1)Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—

    (a)     to be of good behaviour; and

    (b)     to comply with the other conditions (if any) of the bond.

    (2)A sentence of imprisonment may not be suspended under this section if the defendant is being sentenced—

    (a)     to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; or

    (b)     as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence; or

    (c)     as an adult for a serious and organised crime offence or specified offence against police; or

    (d)     as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence.

    … 

18. The test of good reason is the only applicable test.[4] While there are authorities which have spoken of “exceptional circumstances” with regard to suspension of a sentence,[5] this has merely been used as a means of assessing all the circumstances surrounding offending in order to determine if good reason to suspend can be identified. Doyle CJ stated in R v Gjoka:

    [4]    R v Gjoka (Unreported) Court of Criminal Appeal, 1 July 1997, Judgment No S 6211 at 4; R v Fowler [2006] SASC 18; R v O’Toole [2013] SASCFC 18 at [50].

    [5]    See, eg, R v Mangelsdorf (1995) 66 SASR 60.

    The power to suspend a sentence is conferred by s 38 of the Sentencing Act. The court may suspend a sentence “… if it thinks that good reason exists for doing so”. That is the statutory criterion, and that is the test to be applied.

    Nevertheless, it is appropriate for this Court in particular cases to determine, as it did in Manglesdorf, that the nature or gravity of an offence is such that suspension will not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it will be very difficult to justify suspension.

    [Citations omitted. Emphasis added.]

    This was further affirmed by Perry J in R v Fowler:[6]

    There is not an “exceptional circumstances” test “as discussed in Manglesdorf”. There is only one test. But in the case of certain serious categories of offending, its successful application in favour of the defendant will be uncommon. A sentencing court does not fall into error, if it recognises the practical reality of that observation.

    Mr Petracarro contended that there was nothing “truly exceptional” about the circumstances put forward on behalf of the appellant to justify suspension of the term of imprisonment involved.

    It might have been more accurate to say that, bearing in mind the objective seriousness of the offending, as emphasised in cases such as Manglesdorf and Gjoka, it could not be said that there was “good reason” to suspend.

    In any event, the question whether or not to suspend was entirely a matter for the discretion of the sentencing judge. This Court will only interfere with the exercise of the discretion if error in the sense identified in House v R is demonstrated.

    [Citations omitted.]

    [6]    R v Fowler [2006] SASC 18 at [36]–[39].

19. Suspension in the context of commercial trading of cannabis was considered by King CJ in R v Taddeo:[7]

    It is true ... that imprisonment would have an adverse effect on this man and his family and it would undoubtedly, as it does with almost everybody, adversely affect their financial position. That does not appear to me to be a sufficient ground for the suspension of a sentence on a man who has engaged in commercial drug activity and who is a mature person and is not entitled to the leniency which might be claimed for youth.

    When considering whether to suspend a sentence, the Court is required to have regard to all relevant matters, including the objective seriousness of the offence or offences.  Where the offences are of a very serious nature, that factor alone may lead to the conclusion that good reason to suspend a sentence is not made out.

    [7] (1993) 67 A Crim R 338 at 339.

20. In R v O’Toole, Peek J (with whom Sulan J concurred) concluded that there is no precise formula to be applied when considering whether good reason exists to suspend a sentence.  He said:[8]

    This provision has been held to require the Court to ask only on question:  whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case there exists good reason to suspend the sentences.  The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case. It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment. The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.

    [8] [2013] SASCFC 18 at [50]. See also R v Wacyk (1996) 66 SASR 530 at 535–36 per Perry J.

    Hardship to dependants

21. Section 10 of the Sentencing Act provides:

    10—Sentencing considerations

    (1)In determining the sentence for an offence, a court must have regard to such of the following factors and principles as may be relevant:

    …

    (n)     the probable effect any sentence under consideration would have on dependants of the defendant;

    The Court of Criminal Appeal must re-sentence the appellant on the facts and circumstances as they are at the time of the appeal, not as they were at the time of the initial sentence.[9] This can include progress made by the appellant during his incarceration, for example steps undertaken towards rehabilitation.

    [9]    Kentwellv The Queen (2014) 252 CLR 601 at 618 [44].

22. Hardship to dependants of an accused will generally not justify a reduced sentence or suspension of a sentence, other than in extreme or exceptional cases.[10]  In R v Wirth, the Court addressed hardship:[11]

    When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of. or to others closely associated with, the offender be taken into account by the Court in mitigation of that sentence?

    …

    Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court. Again and again, sentencing judges point out that convicted persons should have thought about the likely consequences of what they were doing before they did it – I am, of course, addressing myself to the more serious crimes in which some form of premeditation, wilfulness, or intent, must be proved. It seems to me that courts would often do less than their clear duty – especially, where the element of retribution, deterrenct [sic], or protection of society is the predominant consideration – if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.

    But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so.

    [10]   R v Wirth (1976) 14 SASR 291; R v Moffa (No 2) (1977) 16 SASR 155; R v Hunter [2015] SASCFC 84.

    [11] (1976) 14 SASR 291.

1. In this case, the hardship to Ms Bugaj with regards to her visa status and her currently living in Canada while the appellant is incarcerated in South Australia is a relevant matter.  Ms Bugaj is living in Canada with her son. She is a permanent resident of Canada, and therefore entitled to social security benefits in that country.  Her visa will lapse on 14 March 2016 if she remains outside the country.  Her counsel indicated that there is no bar to her reapplying for a visa.  By residing in Canada, where her son lives, she is entitled to social security benefits.  Where hardship is the main reason for a merciful sentence, it must be so serious that a substantially reduced sentence is warranted.[12]

   [12]   R v Penno [2004] SASC 354.

2. The hardship must go beyond the hardship which inevitably results from a breadwinner being incarcerated and must be something that demands the exercise of mercy.[13] The exceptional hardship usually has to go beyond the economic or emotional hardship resulting from imprisonment, weighed against the gravity of the offending.[14] The incarceration has resulted in Ms Bugaj returning to Canada. Counsel for the appellant submitted that, should Ms Bugaj be permitted to return to Australia, there would be no financial support available in this country whilst the appellant is incarcerated. It is further submitted that Ms Bugaj is unable to visit the appellant whilst he remains in custody, as she has no means and, therefore, cannot reside in Australia.

   [13]   Neill v Police [1999] SASC 270

   [14]   R v Hill [2011] SASCFC 109.

3. I accept that there is hardship resulting from the circumstances outlined in this case.  The question is whether that hardship, both to the appellant and Ms Bugaj, is so grave as to justify good reason to suspend the sentence.  In my view, the circumstances to which I have earlier referred are not so exceptional as to justify suspension of the sentence.  When the appellant is released, Ms Bugaj can return to Australia to be with him.

4. In my view, good reason justifying suspension of the sentence is not made out.  The appellant has not demonstrated contrition or remorse.  The situation in which the appellant’s wife finds herself is unfortunate. 

5. The offending is serious.  The circumstances do not amount to good reason to suspend the sentence. The seriousness of the offending, coupled with the personal circumstances to which I have referred do not justify the suspension of the sentence. 

6. I would dismiss the appeal.

7. PEEK J:                I agree with the orders proposed by Sulan J and with his reasons.

8. LOVELL J:          I agree that the appeal should be dismissed and with the reasons of Sulan J.