(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Justice Doyle)
23 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - OTHER TYPES OF ORDER
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
The appellants are father and son. They were each convicted by a jury of one count of cultivating a commercial quantity of cannabis plants for sale and two counts of trafficking in a large commercial quantity of cannabis. They were each sentenced to three years and six months imprisonment, with a non-parole period of 18 months. The Judge declined to suspend their sentences of imprisonment and also declined to order that they serve their sentences on home detention.
The first appellant appealed on a number of grounds, in essence contending that the Judge erred in failing to identify the factual basis upon which he was sentenced, and that the Judge erred in not ordering that he serve his sentence on home detention. The second appellant also appealed on the ground that the Judge erred in not ordering that he serve his sentence on home detention.
Held per Doyle J (with Kelly and Parker JJ agreeing), dismissing the appeal:
1. The Judge was entitled to, and did, sentence the first appellant on the basis that he was personally involved in the cultivation and trafficking.
2. Consideration of the approach to home detention orders under s 33BB of the Criminal Law (Sentencing) Act 1988 (SA).
3. There was no error in the Judge declining to make a home detention order in respect of either appellant.
Court of Criminal Appeal: Kelly, Parker and Doyle JJ
KELLY J: I agree.
PARKER J: I agree with the reasons of Doyle J and the orders he proposes.
DOYLE J: The appellants, Karl Dell and Jimmy Dell, are father and son. They were each convicted by a jury of one count of cultivating a commercial quantity of cannabis plants for sale and two counts of trafficking in a large commercial quantity of cannabis. They were each sentenced to three years and…
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.
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Details
AGLC
R v Dell [2016] SASCFC 156
Case
[2016] SASCFC 156
Decision Date
CaseChat Overview and Summary
This case concerned an appeal against sentence brought by Jimmy Dell before the Full Court of the Supreme Court of South Australia, presided over by Kelly, Parker, and Doyle JJ. The dispute arose from the sentencing of Mr. Dell following his conviction for cultivating a commercial quantity of cannabis and trafficking in large commercial quantities of cannabis. Mr. Dell's sole ground of appeal was that the sentencing judge erred in not ordering that his sentence be served via home detention.
The legal issues before the Full Court were whether the sentencing judge had exercised their discretion appropriately in refusing to make a home detention order for Mr. Dell, and whether this refusal constituted an error. This involved considering the nature and seriousness of the offences for which Mr. Dell was convicted, and how a home detention order would align with the objectives of sentencing, specifically punishment and general deterrence.
The Court reasoned that the offending was serious, involving a sophisticated commercial operation for the cultivation and sale of large quantities of cannabis. The Court held that orders for home detention in such circumstances would tend to undermine the sentencing objectives of punishment and general deterrence. Consequently, the Court was not satisfied that the sentencing judge's decision not to make a home detention order involved an error in the exercise of discretion.
Accordingly, the Full Court dismissed Jimmy Dell's appeal against sentence.
Orders
Orders of the court
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Background
Background to the litigation
In Jimmy Dell’s appeal against sentence, his sole ground of appeal is that the Judge erred in not ordering that he serve his sentence on home detention.[2][2] Proposed ground of appeal 2 was abandoned during the course of the application for leave to appeal. Background Karl Dell and Jimmy Dell, together with Karl’s estranged wife (Karin Dell) and Jimmy’s partner (Karlie Mohr), were jointly charged with having committed the following offences between 16 November 2013 and 16 December 2013 at a semi-rural property in Salisbury Heights:· one count of cultivating a commercial quantity of a controlled plant (cannabis) for sale, contrary to s 33B(2) of the Controlled Substances Act (maximum penalty $200,000 or imprisonment for 25 years, or both) (count 1, the cultivation count);· two counts of trafficking in a large commercial quantity of a controlled drug (cannabis), contrary to s 32(1) of the Controlled Substances Act (maximum penalty $500,000 or imprisonment for life, or both) (counts 2 and 3, the trafficking counts); and· one count of trafficking in a controlled drug (methylamphetamine), contrary to s 32(3) of the Controlled Substances Act (maximum penalty $50,000 or imprisonment for 10 years or both) (count 4). After a trial before judge and jury, the jury convicted Karl and Jimmy Dell of counts 1, 2 and 3, but found them not guilty of count 4. Karlie Mohr was found guilty of count 2 and the alternative offence of simple possession in respect of the methylamphetamine the subject of count 4. She was found not guilty of counts 1 and 3. Karin Dell was found not guilty on all counts. Utilising s 18A of the Sentencing Act, the Judge imposed the sentences for Karl and Jimmy Dell mentioned at the outset of these reasons. As counts 2 and 3 were serious and organised crime offences for the purposes of ss 38(2)(c) and 38(2ba) of the Sentencing Act, suspension of the sentences of imprisonment imposed was only open if the Judge was satisfied that exceptional circumstances existed. The Judge was not satisfied of this in respect of either Karl or Jimmy Dell. In respect of Karlie Mohr, the Judge imposed a sentence of two years and six months imprisonment, with a non-parole period of 12 months. The sentence was not suspended, but an order was made that it be served on home detention.Circumstances of the offending On 16 December 2013, the police conducted a search at an address in Salisbury Heights. Karl Dell, his estranged wife Karin Dell, his son Jimmy Dell, and Jimmy’s partner Karlie Mohr were all present at the premises when the police arrived. Karl and Karin Dell were the registered owners of the property. It was agreed at trial that Karin Dell, Jimmy Dell and Karlie Mohr all resided there. The prosecution case was that Karl Dell also resided at the property. Karl Dell did not accept that he resided at the property. The property consisted of a two storey house (‘the main house’), a separate dwelling which was attached to the main house and accessible from it (referred to in the evidence as ‘the adjacent house’), a group of transportable buildings (used as an office, bathroom and sleeping quarters[3]) in the rear yard, and a number of shipping containers and sheds. Jimmy Dell and Karlie Mohr lived in the adjacent house. The prosecution case was that Karl Dell lived in, and ran his business from, the transportable buildings.[3] A bed, television, male clothing and toiletries were located in the sleeping quarters and bathroom. There was also a small kitchen adjacent to the office area.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In summary, the appellants’ offending was serious. It involved a sophisticated commercial operation for the cultivation and sale of large quantities of cannabis. Orders that they serve their sentences on home detention would have tended to undermine the sentencing objectives of punishment and general deterrence. I am not satisfied that the Judge’s decision not to make a home detention order in the case of either appellant involved error in the exercise of his discretion. I would dismiss Karl Dell’s fifth ground of appeal, and Jimmy Dell’s only ground of appeal.Conclusion For the reasons I have set out, I would dismiss the appeals of both appellants.