R v Ducaj and Ducaj - [2004] SADC 167

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v DUCAJ AND DUCAJ
Reasons for Ruling of His Honour Judge Rice
24 November 2004
CRIMINAL LAW
Factual dispute as to the basis upon which the defendants were to be sentenced - finding that both defendants were involved in a substantial way in a substantial, ongoing commercial production of cannabis.
Controlled Substances Act 1984 s.32(1)(b); Summary Procedure Act 1921 ss.104, 105, 106, 107, 109 and 113; Director of Public Prosecutions Act 1991 s.7; Criminal Law Consolidation Act 1935 ss.275 and 276; Criminal Law (Sentencing) Act 1988 s.6, referred to.
In Re Liddy [1967] SASR 62 at 65; R v Hodge (1987) 48 SASR 91 at 102; R v Schlaefer (1992) 57 SASR 423 at 426; R v Maitland [1963] SASR 332; R v Vecsey [1962] SASR 127; R v Perre (1986) 41 SASR 105, considered.

R v DUCAJ AND DUCAJ
[2004] SADC 167
Introduction

In this matter the two defendants were jointly charged with three offences of Taking Part in the Production of Cannabis contrary to s.32(1)(b) of the Controlled Substances Act 1984. The dates of the offending were each the same, namely, between 26th April, 2002 and 27th May, 2002. Each count refers to cannabis being grown under hydroponic conditions in three adjacent premises, Nos. 19, 19A and 21 Beaufort Street, Woodville.
Originally, the defendants pleaded “not guilty” but it was confidently expected at that time that the matter would resolve. The matter was actually set for trial but, after further delays and ongoing negotiations, pleas of guilty were entered on 5th March, 2004.
A dispute arose as to the factual basis upon which each defendant was to be sentenced. As events transpired, there is no real factual dispute but rather a dispute as to the inferences that are properly able to be drawn from the proved facts. Those matters are considered below.
Submissions have been made on behalf of each defendant as to the basis upon which I should sentence, as well as personal factors. At the conclusion of submissions, I decided to consider all of the submissions and then rule as to the basis upon which I may sentence them. I express it in that fashion because once the tentative factual basis was known, counsel for each defendant may have wished to call their client before sentence was imposed.
On 11th November, 2004, I expressed my tentative views on the material then before me. On 18th November, 2004, counsel indicated that their clients did not propose to give evidence.
I propose to consider the factual circumstances of the offending. In so doing, I have used all of the declarations provided to the Court, whether as part of the committal papers or from the prosecution since committal.
It was submitted by Mr Lister, counsel for Luidj Ducaj, that declarations provided by the prosecution since committal were not properly before me and therefore should not be used when considering the factual basis for sentence. I indicated at the…

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 Ducaj and Ducaj

Details

AGLC: R v Ducaj and Ducaj [2004] SADC 167
Case: [2004] SADC 167
Decision Date: 24 November 2004

CaseChat Overview and Summary

In the District Court of South Australia, the defendants, Albert and Luidj Ducaj, were jointly charged with three counts of taking part in the production of cannabis under the Controlled Substances Act 1984. After initially pleading not guilty, the defendants entered guilty pleas. The court was tasked with determining the factual basis for sentencing the defendants, particularly regarding the extent of their involvement in the cannabis production operation. The prosecution argued that both defendants were deeply involved in a substantial, ongoing commercial cannabis production, while the defence contended that their clients were merely labourers who did not benefit financially from the operation.

The court reviewed extensive evidence, including the setup of the hydroponic systems, the significant electricity usage, the rental and re-wiring of the properties, and the financial transactions related to the operation. The court found that both defendants were significantly involved in the commercial cannabis production, rejecting the defence argument that the defendants were merely labourers. The court concluded that both defendants stood to benefit financially from the operation, which was highly organised and costly to maintain. Consequently, the court ruled that the defendants were involved in a substantial, ongoing commercial cannabis production and sentenced them accordingly.

Orders