R v Brodribb; R v Bourchier - [2017] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRODRIBB; R v BOURCHIER
[2017] SASCFC 32
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
13 April 2017
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
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS
Appeal against sentence.
The appellants pleaded guilty to cultivation of a commercial quantity of a controlled plant, possession of prescribed equipment, abstracting or diverting electricity from a power system and possession of cannabis.
A large number of cannabis plants as well as equipment to hydroponically cultivate cannabis were found at a premises rented by the appellants. The room in which the cannabis plants were found was initially locked. The appellant’s landlord had the key to that locked room. The appellants were jointly charged with their landlord, who has pleaded not guilty and is yet to be tried. During the sentencing process, no evidence was provided to the Court as to the value of the cannabis found at the house.
As children, the appellants were both abused by a member of their respective families and have subsequently lived unfortunate lives. They have both been addicted to cannabis and amphetamines for most of their lives. At the time of sentencing their house had no power as they could not pay their bills and they showered at a local gym.
The learned sentencing Judge imposed for both appellants a head sentence of three years and six months’ imprisonment and fixed a non-parole period of one year and six months. While taking into account the appellants’ unfortunate backgrounds and that they offended to support their drug use, the Judge sentenced on the basis that they took part in a larger commercial enterprise, most probably with their landlord.
The appellants appeal their sentence on the ground that it is manifestly excessive in all the circumstances.
Held per Kourakis CJ (Nicholson and Parker JJ agreeing), allowing the appeal:
1. The Court must take a cautious approach in assessing the objective seriousness of the appellants' offending having regard to their relative poverty, the absence of strong evidence of a third party involved in a commercial network and the absence of any evidence as to the value of the cannabis found.
2. The appellants have a number of antecedent factors in mitigation.
3. Sentence imposed in the District Court set aside.
4. The appellants are resentenced to a term of imprisonment of two years with a non-parole period of 12 months fixed. The sentence is taken to commence on 15 June 2016.
Controlled Substances Act 1984 (SA) s 33B, s 33L, s 33LA; Electricity Act 1996 (SA) s 85, referred to.

R…

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 Brodribb; R v Bourchier

Details

AGLC: R v Brodribb; R v Bourchier [2017] SASCFC 32
Case: [2017] SASCFC 32
Decision Date: 13 April 2017

CaseChat Overview and Summary

This matter concerned appeals against sentences imposed on Ms Brodribb and Mr Bourchier by the District Court for drug offences relating to the production or cultivation of cannabis. The appeals were heard by the Supreme Court of South Australia, constituted by Kourakis CJ, Nicholson and Parker JJ.

The central legal issue before the Full Court was whether the sentences imposed by the District Court were manifestly excessive, having regard to the objective and personal circumstances of the appellants and the nature of the offending. The court was required to consider the extent to which the appellants' conduct facilitated a more extensive commercial enterprise and whether the sentences adequately reflected mitigating factors.

The Court reasoned that while the appellants' prospects of rehabilitation were not strong, the sentences imposed did not adequately reflect the peculiar circumstances of the case. Specifically, the Court noted that the appellants were unlikely to have initiated or financed the sophisticated hydroponic operations, nor was it proven that they profited beyond securing accommodation and supporting their drug habits. The Court found that the notional sentence of five years was disproportionately severe given these circumstances, and the sentences imposed after a reduction for guilty pleas were manifestly excessive.

Consequently, the Full Court allowed the appeals, set aside the sentences imposed in the District Court, and resentenced each appellant to two years imprisonment with a non-parole period of 12 months, commencing on 15 June 2016. The Court declined to suspend the sentences, finding that the mitigating personal circumstances were insufficient to outweigh the demands of specific and general deterrence, particularly as the offences were not isolated.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Unsurprisingly the Judge found that Ms Brodribb’s prospects of rehabilitation were no better than Mr Bourchier’s.Conclusion The sentences imposed by the Judge are within the range of sentences commonly imposed for cultivations of this size. However the sentences imposed do not reflect the peculiar objective and personal circumstances of this case. In particular the appellants are unlikely to have initiated, and financed the sophisticated hydroponic operations in the Beaumont house. Nor is it possible to find that they profited beyond securing accommodation and supporting their respective drug habits. Moreover the extent to which their conduct facilitated a more extensive or profitable commercial cannabis enterprise has not been proven. The notional sentence of five years was disproportionately severe having regard to those circumstances. The sentences imposed after the reduction for the appellants’ pleas of guilty were manifestly excessive. I would allow the appeals of both appellants. I would set aside the sentences imposed in the District Court. I would commence with a notional term of 2 years and 10 months in each case before reducing that term for the appellants’ pleas of guilty. I would resentence each appellant to two years imprisonment with a non-parole period of 12 months commencing on 15 June 2016. I would not suspend either of the sentences. The mitigating personal circumstances to which I have referred are not sufficient to outweigh the demands of specific and general deterrence, particularly having regard to the fact that the offences were not isolated. NICHOLSON J: I agree with the Chief Justice. PARKER J: I agree with the reasons of the Chief Justice and the orders that he proposes.

Ratio Decidendi

Legal Principle Established

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