R v Errigo - [2005] SASC 322

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ERRIGO
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
23 August 2005
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
Application by the Director of Public Prosecutions for leave to appeal against a sentence imposed in the District Court for taking part in the production of cannabis contrary to the Controlled Substances Act 1984 (SA) - whether the Judge erred in suspending the sentence - whether the sentence was so far below the appropriate range as to undermine public confidence in the administration of justice - leave to appeal granted - appeal allowed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Determination of sentence to be substituted - consideration of forfeiture of assets pursuant to Criminal Assets Confiscation Act 1996 (SA).
Controlled Substances Act 1984 (SA) s 32(1)(b); Criminal Law (Sentencing) Act 1988 (SA) s 10(1), s 38; Criminal Assets Confiscation Act 1996 (SA) s 15, s 17, referred to.
R v Nemer (2003) 87 SASR 168, applied.
R v Carpentieri (2001) 81 SASR 164; DPP v Alexander (2003) 86 SASR 577, discussed.

R v ERRIGO
[2005] SASC 322
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: The issue on this application for leave to appeal is whether the Court should grant leave to appeal with a view to setting aside an order suspending a sentence of imprisonment.
The application for leave to appeal is made by the Director.
Mr Errigo was found guilty by a jury of taking part in the production of cannabis, contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA). Having regard to the number of plants in question the maximum sentence was imprisonment for a term not exceeding 25 years and a fine not exceeding $500,000.
On 25 March 2002 police went to a property at Dalkeith, a rural area north of Adelaide. The land in question is owned by Mr Errigo. There they found 195 marijuana plants growing in rows between rows of almond trees. The plants were at different stages of maturity. They were watered by an irrigation system and from a hose connected to a tap at the back of house on the property. The Judge described this as a “well planned and ongoing commercial enterprise”. He said that the value of the cannabis was estimated at between $190,000 and $300,000.
Mr Errigo’s parents lived in the house on the land. He was 32 years of age at the time of the offence, and 35 years of age when sentenced.
His mother, Mrs Errigo, was charged with the same offence. She is now about 74 years of age. She is in poor health as a result of a heart attack and other conditions.

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 Errigo

Details

AGLC: R v Errigo [2005] SASC 322
Case: [2005] SASC 322
Decision Date: 23 August 2005

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) applied for leave to appeal against a sentence imposed on Errigo by the District Court, which was for his involvement in the production of cannabis in contravention of the Controlled Substances Act 1984 (SA). The appeal centred on whether the Judge had erred in suspending the sentence, and whether the sentence was excessively lenient, undermining public confidence in the administration of justice.

The legal issues before the court were whether the District Court judge had made an error in suspending the sentence imposed on Errigo, and if the sentence was significantly below the appropriate range, thereby affecting public confidence in the justice system. The appeal was focused on the sentence rather than the conviction itself.

The Court determined that the District Court judge had indeed erred in suspending the sentence, and that the sentence was excessively lenient. The Court concluded that the sentence did not adequately reflect the seriousness of the offence, and that it undermined public confidence in the administration of justice. Consequently, the Court granted leave to appeal, allowed the appeal, and set aside the sentence imposed by the District Court. Instead, the Court imposed a sentence of two years' imprisonment with a non-parole period of nine months, and a fine of $5,000, which was the amount already paid by Errigo. The Chief Justice's orders were endorsed by the other members of the Court.

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

I would fix a non-parole period of nine months’ imprisonment. That also reflects the performance of the community service. I would impose a fine of $5,000, being the amount already paid by Mr Errigo. I would not suspend the sentence.Conclusion For those reasons I would grant leave to appeal, allow the appeal and set aside the sentence imposed by the District Court. I would sentence Mr Errigo to imprisonment for two years, and would fix a non-parole period of nine months. I would impose a fine of $5,000. BLEBY J: I agree with the orders proposed by the Chief Justice and with his reasons. GRAY J: I would grant leave to appeal and allow the appeal. I agree with the reasons of the Chief Justice and the orders that he has proposed.

Ratio Decidendi

Legal Principle Established

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