R v Dobell - [2010] SASC 168

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DOBELL
[2010] SASC 168
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)
4 June 2010
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS - GROUNDS FOR DISCRIMINATION BETWEEN CO-OFFENDERS - GENERALLY
Appellant pleaded guilty to one count of cultivating a controlled plant for sale - sentenced to imprisonment for 20 months with non-parole period of 15 months - co-offender pleaded guilty to same offence and was sentenced to 16 months' imprisonment with non-parole period of 12 months which was suspended upon co-offender entering into a bond - appellant appealed against sentence - whether unjustified disparity between sentence imposed on appellant and sentence imposed on co-offender - whether appellant's sentence should have been suspended - appeal dismissed.
Controlled Substances Act 1984 (SA) s 33B(2), referred to.

R v DOBELL
[2010] SASC 168
Court of Criminal Appeal: Doyle CJ, Gray and White JJ

DOYLE CJ: Mr Dobell pleaded guilty to a charge of cultivating a controlled plant for sale, contrary to s 33B(2) of the Controlled Substances Act 1984 (SA).
The maximum penalty for this offence is a fine of $200,000 or imprisonment for 25 years or both.
On 22 February 2010 the Judge sentenced Mr Dobell to imprisonment for 20 months. But for his plea of guilty, which the Judge said came “at a very late stage”, he would have sentenced him to imprisonment for 24 months. The Judge fixed a non-parole period of 15 months. The Judge declined to suspend the sentence.
Mr Dobell pleaded guilty on the basis that he allowed his residence to be used by his son to cultivate cannabis on the property. Mr Dobell also provided the equipment, and I gather that he provided advice or instructions to his son for the purpose of cultivation.
When the police went to the property on 3 March 2008 they found six large female cannabis plants growing behind a shed. In a shipping container on the property they found equipment for the hydroponic cultivation of cannabis. In what the Judge described as an “underground bunker” the police found “a sophisticated hydroponic set up with nine mature female cannabis plants and 82 clones growing under lighting”. The property was in a rural setting, was about two acres in size, and had several large sheds and shipping containers on it. No doubt that was thought to lessen the risk of detection.
On the face of it this is a serious offence of its kind.
Mr Dobell was 47 years of age. He was married. There was nothing out of the ordinary in his general background. He had a trucking business but that failed when he suffered a stroke in 2000. The Judge noted that he had to sell his home to repay debts that he had incurred. At the time of the offending he again had his own business operating pilot cars, used to assist the transport of wide loads.
His wife was in poor health. Mr Dobell had had “medical problems” from time to time. A report from a psychologist indicated that Mr Dobell was below average in his cognitive functioning. The psychologist noted that he tended not to think about the consequences of his actions, and would benefit from a program that would help him improve his problem solving skills. He was suffering from depression and stress.
Mr Dobell has a significant record of offending, beginning in 1975 when he was only 12 years of age. A number of the offences involved dishonesty. He has had the benefit of a suspended sentence on no less than five occasions. He was convicted for supplying cannabis in December 2002 and for producing cannabis in November 2006.
Of particular significance is the circumstance that in November 2007 the police went to the same property and found the remnants of a cannabis crop there. Police later located the plants that had been removed. On the same day they found cannabis plants growing at a property that Mr Dobell rented.
This led to Mr Dobell appearing before the District Court on 18 February 2009 (a year before the sentence now challenged) when he was sentenced to imprisonment for 20 months, with a non-parole period fixed at 12 months. The Judge in question acknowledged that ordinarily Mr Dobell could not have expected a suspended sentence, but in the end was persuaded to make an order suspending the sentence.
The District Court Judge in the present case noted that despite being detected in November 2007, by January 2008 Mr Dobell was engaging with his son in further illegal activity.
On the basis of the material before the District Court Judge, the sentence now under consideration is moderate indeed. Despite a poor record, and despite the events of November 2007, he was sentenced to imprisonment for only 20 months. It could have easily been more. The non-parole of 15 months is also moderate.
Ms Demertzis, counsel for Mr Dobell, made two points in support of her submission that the Judge erred.
The first is that there is an unjustified disparity between the sentence imposed on Mr Dobell and the sentence imposed on his son. The son was sentenced at the same time as Mr Dobell. The Judge sentenced the son to imprisonment for 16 months, fixed a non-parole period of 12 months, and ordered that the sentence be suspended upon the son entering into a bond to be of good behaviour for three years. Ms Demertzis submits that as the son was the main offender, a lesser sentence for him could not be justified.
I disagree. Mr Dobell’s involvement was less than that of his son, but was still significant. The son pleaded guilty at an early stage. The son had only one relevant prior conviction. He was only 24 years of age. There was a firm basis for the distinction that the Judge drew.
Ms Demertzis also submitted that the Judge should not have imposed a sentence that cut across the suspended sentence of imprisonment imposed on Mr Dobell on 18 February 2009. When the sentence in question was imposed he was still subject to that bond, and had not breached it. I agree that a sentencing court will always consider the potential impact of the sentence on a sentence already operating, particularly where that sentence left the offender at liberty. But an earlier sentence cannot tie the hands of a later sentencing court.
Having regard to Mr Dobell’s record, and the short gap between the offending of November 2007 and the offending of March 2008, a further suspended sentence could not be justified. Accordingly, the Judge was not bound to impose a sentence that left Mr Dobell at liberty. To the contrary, in my opinion, such a sentence would have been quite unwarranted. Accordingly, the submission that the Judge should have suspended the sentence in question cannot be accepted.
Conclusion
For these reasons I would dismiss the appeal against sentence.
GRAY J: I would dismiss this appeal. I agree with the reasons of Doyle CJ.
WHITE J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.