R v Campbell - [2007] SASC 203

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CAMPBELL
[2007] SASC 203
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Sulan)
8 June 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
APPEAL AND NEW TRIAL - APPEAL -- GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - JUDGE CLEARLY WRONG
Crown application for permission to appeal against sentences - first and second respondents pleaded guilty to taking part in the production of cannabis and possessing cannabis for sale - third respondent pleaded guilty to producing cannabis and possessing cannabis for sale - offence of the production of cannabis involved three plants - offence of possessing cannabis for sale involved 2,868.5 grams of cannabis - sentencing Judge did not distinguish between the different roles of each respondent in the circumstances of the offending - sentencing Judge imposed a fine of $500 - consideration of penalties for producing cannabis and possession of cannabis for sale - whether the Judge gave adequate consideration to general and personal deterrence - principles to be applied in respect of Crown appeals against sentence - Held: sentences were inadequate - permission to appeal granted - appeals allowed.
Controlled Substances Act 1984 (SA) s 32(1)(a), s 32(1)(b), s 32(1)(e), s 32(5)B(a)(ii), s 32(5)B(a)(iii), referred to.
R v Mangelsdorf (1995) 66 SASR 60; R v Nemer (2003) 87 SASR 168, [2003] SASC 375; R v Osborne & Vlassco (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Doyle CJ, Lander and Bleby JJ, 21 May 1997); R v Osenkowski (1982) 30 SASR 212; R v Stasi & Makris [2005] SASC 241 (Unreported, Duggan, Bleby and Anderson JJ, 1 July 1995), applied.
Police v Cadd (1997) 69 SASR 150; R v Elliott (2001) 121 A Crim R 254, [2001] SASC 101; R v Makevits [2006] SASC 73; R v Petroff [2005] SASC 449; R v Yousef (2005) 155 A Crim R 134, [2005] SASC 203, considered.

R v CAMPBELL
[2007] SASC 203
Court of Criminal Appeal: Doyle CJ, Bleby and Sulan JJ

DOYLE CJ: I agree with the orders proposed by Sulan J and with his reasons.
BLEBY J: I agree with the orders proposed by Sulan J in each case and with his reasons.
SULAN J: This is an application by the Director of Public Prosecutions (“the DPP”) for permission to appeal against sentences imposed by a Judge of the District Court on 2 March 2007. The application is in respect of the sentences passed on each of the three respondents, Wayne Robert Campbell, Jessica Campbell, and Denese Raelene Campbell.
Wayne Campbell and Jessica Campbell had each pleaded guilty to the offences of taking part in the production of cannabis, contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) (“the Act”) and to possession of cannabis for sale, contrary to s 32(1)(e) of the Act. Denese Campbell had pleaded guilty to producing cannabis, contrary to s 32(1)(a) of the Act and possessing cannabis for sale, contrary to s 32(1)(e) of the Act.
As there were three plants the subject of the counts of producing and taking part in the production of cannabis, the maximum penalty was a fine not exceeding $2000, or imprisonment for two years, or both.[1] As to the offence of possessing cannabis for sale, the quantity of cannabis was 2868.5 grams which, therefore, attracted a maximum penalty of a fine not exceeding $50,000 or imprisonment for ten years, or both.[2]
[1] Controlled Substances Act 1984 (SA) s 32(5)B(a)(iii).
[2] Controlled Substances Act 1984 (SA) s 32(5)B(a)(ii).
In respect of each respondent, the sentencing Judge imposed one sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, namely a fine of $500.
The DPP’s application for leave to appeal against sentence is made on the ground that the sentences were manifestly inadequate in that they failed to maintain adequate standards of punishment and were so disproportionate to the seriousness of the crimes as to impair public confidence in the administration of justice. The main thrust of the DPP’s complaint is that the sentencing Judge failed to have adequate regard to general deterrence and to the seriousness of the offending.
The circumstances of the offending
On 27 July 2006, police officers attended at premises at Munno Para. As they approached the house they could smell a very strong odour of cannabis. The police went to the back of the house where they observed Denese Campbell speaking to Jessica Campbell. The police officers observed Wayne Campbell in the carport area. The officers entered the house and found a quantity of cannabis. There were three shopping bags containing cannabis plant and some cannabis plant in buckets. The police officers discovered three cannabis plants growing hydroponically under lights in a bedroom. A search of Wayne Campbell’s car resulted in a small quantity of cannabis being located. The total value of the cannabis seized, including the value of the plants, was approximately $15,000.
Jessica Campbell told a police officer that she had been assisting Denese Campbell to chop up cannabis which Denese had been growing. She admitted that she was aware that Denese had been growing the cannabis. She admitted to having been involved in chopping, trimming and preparing it for sale. Jessica Campbell said that this was not the first occasion on which she had assisted. The arrangement was that Jessica and Wayne Campbell were to be paid $20 per hour for their time and, if they sold any cannabis, they were to receive 25 per cent of the proceeds.
Denese Campbell, when interviewed, told the investigating officer that she planted the cannabis and tended the cannabis plants. She had set up the growing facilities in the bedroom. She said that she had paid approximately $1500 to purchase the lights and other equipment. She told the police officer that she intended to sell some of the cannabis, but had made no arrangements with specific purchasers and was not sure how she was going to sell it. She agreed that she was to pay Wayne and Jessica Campbell $20 per hour to assist her in trimming and packaging the cannabis.
Each of the respondents pleaded guilty in the Magistrates Court. They were first offenders. Denese Campbell was 61 years of age; Jessica Campbell was 26 years of age; and Wayne Campbell was 30 years of age.
The sentencing Judge accepted that Denese Campbell had lived a productive and law-abiding life. She began using cannabis when she became depressed following a diagnosis of breast cancer. She had been told by a patient in the hospital that cannabis would assist her. It was then that she decided to grow cannabis, use some herself and sell some to assist her financially. The sentencing Judge accepted that she was genuinely remorseful.
The sentencing Judge accepted that Jessica Campbell was not the instigator. She worked in youth work and community service and had the care of her 22‑month-old daughter. The sentencing Judge referred to Wayne Campbell’s good employment history, the fact that he had never been involved in this sort of activity before and that his motive for becoming involved was to help pay his mortgage and other expenses.
Each respondent was fined $500. The sentencing Judge did not indicate why he had not distinguished between them.
Crown appeals against sentence
The principles upon which the Court acts when considering an application by the DPP for leave to appeal are well established. One of the grounds upon which the Court will grant leave to appeal is when it is necessary to enable the Court to establish an appropriate standard for particular offending, or to correct a sentence which is manifestly inadequate so as to amount to an error of principle.
In Nemer,[3] Doyle CJ summarised the principles which had been established by the High Court in applications for leave to appeal against sentence. He said:
The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.[4] (References omitted)
[3] R v Nemer (2003) 87 SASR 168; [2003] SASC 375.
[4] (2003) 87 SASR 168, 172 [24].
In Osenkowski,[5] King CJ said that the proper role for prosecution appeals is to enable the courts to establish and maintain adequate standards of punishment for crime and, on occasions, to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
[5] R v Osenkowski (1982) 30 SASR 212.
The principles have been discussed and applied in numerous cases.[6] Even if an error is demonstrated, the Court will not interfere with a sentence simply because the appellate court would have imposed a different sentence.
[6] See R v Mangelsdorf (1995) 66 SASR 60; Police v Cadd (1997) 69 SASR 150; R v Elliott (2001) 121 A Crim R 254, [2001] SASC 101; R v Petroff [2005] SASC 449; R v Yousef (2005) 155 A Crim R 134, [2005] SASC 203; R v Makevits [2006] SASC 73.
Discussion
The Court has consistently said that, in cases of producing cannabis for sale and possession of cannabis for sale, deterrence is central in the imposition of penalty. That is notwithstanding a small quantity may be involved in the offence. The remarks of Doyle CJ in Mangesldorf,[7] as to the appropriate penalties for commercial dealing in cannabis, are apposite:
This Court has consistently stressed the need to recognise the severe penalties which Parliament has specified for such offences involving cannabis. The court has emphasised that Parliament clearly expects the courts to impose sentences which are likely to deter people from engaging in commercial activity with respect to this drug. The seriousness of the offence, its prevalence, and the importance to be given to deterrence all combine to lead to the conclusion that ordinarily a sentence of imprisonment for such offences is to be expected, the duration of the sentence reflecting the quantity involved and hence the applicable statutory maximum.[8]
[7] R v Mangelsdorf (1995) 66 SASR 60.
[8] (1995) 66 SASR 60, 68.
In Osborne & Vlassco,[9] the appellants were convicted of cultivating a crop of cannabis plants valued at approximately $15,000. They admitted they would have sold part of the crop. It had been put to the sentencing Judge that the scheme was implemented in an amateurish way and that the appellants had no idea how they would sell their produce. Doyle CJ, with whom Lander and Bleby JJ agreed, considered that just because the offence was carried out in an amateurish way by persons who were not experienced, did not mean that the offending was any less serious. The crop was substantial and it involved commercial production. General deterrence was central in determining penalty. Some leniency was afforded to the appellants because of their personal circumstances. The sentence was reduced to a term of imprisonment of one year and eight months in respect of each appellant, with non-parole periods of ten months and nine months respectively. The sentences were not suspended.
[9] Doyle CJ, Lander and Bleby JJ, 21 May 1997, unreported.
Conclusion
The sentencing Judge observed that evidence in the District Court is that the chronic use of marijuana is leading to serious health problems, including psychotic and bipolar disorders. He no longer accepted marijuana as a bottom of the range drug. In Mangelsdorf, cannabis was regarded as the less serious of the categories of drugs when compared to amphetamines and heroin. It appears that evidence may now indicate that the Court’s approach in Mangelsdorf in categorising drugs should be reviewed.
The sentencing Judge described the amount of cannabis as minimal. The quantity of cannabis had a value of somewhere between $10,000 to $15,000. I would not regard it as minimal. The fact that some was for personal use does not materially reduce the seriousness of the conduct. The sentencing Judge described the activities as a calculated business. He also characterised what had occurred as at the lowest end of the scale of drug offending. I cannot agree.
It is a rare case in which cultivating cannabis for sale and possessing cannabis for sale will attract other than a custodial sentence. This is not one of those cases. The sentencing Judge erred in imposing a fine.
On any view, the role of Denese Campbell was much more significant than that of Jessica and Wayne Campbell. The fact that the sentencing Judge failed to distinguish between the roles played by the respondents indicates that he regarded their personal circumstances as paramount. He gave too little weight to the seriousness of the offences and to general and personal deterrence. The sentences in each case were inadequate. They were far below the appropriate standard and were disproportionate to the seriousness of the crimes.
I would grant leave to appeal and allow the appeals and set aside the penalties imposed.
Re-sentencing
I distinguish between the roles played by the respondents. In the case of Denese Campbell, taking into account her personal circumstances, in particular her age, her prior good character and allowing a reduction of 25 per cent for her early plea, I would impose a sentence of imprisonment of nine months. Denese Campbell is 61 years of age. This is her first offence. She was extremely contrite and admitted her involvement immediately when the cannabis was discovered. I am satisfied that it is unlikely that she will re-offend. I consider good reason exists to suspend the sentence. I would order forfeiture of the cannabis and the hydroponic equipment seized.
In the case of Wayne Campbell and Jessica Campbell, I see no reason to distinguish between their respective roles. They did not instigate the offending. Nevertheless, they were intending to profit from the sale of some of the cannabis. I would impose a sentence of six months’ imprisonment. In each of their cases, I regard their previous good record, their genuine contrition, their personal circumstances and their minor role in the offending as good reason to suspend their sentences.
As to each respondent, I would suspend the sentences upon their entering into a recognizance of $100 to be of good behaviour for three years.