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.
Mrs Errigo pleaded guilty. She was sentenced to imprisonment for three years and four months, and a non-parole period of two years was fixed. The sentence of imprisonment was suspended. She was also fined $5,000. No doubt her age and her poor health were significant factors in the decision to suspend the sentence.
I understand that Mr Errigo’s father was also charged, but that he died at an early stage of the proceedings.
Mr Errigo was sentenced on the basis that he visited the property and stayed there two or three nights a week. As I have mentioned, his parents lived there. As I understand it, they were cultivating the plants. Mr Errigo was sentenced on the basis that he knew his parents were growing the plants there, knew how much marijuana was being grown, and knew it was a valuable crop.
Mr Errigo was sentenced on the basis that he was not involved in the cultivation. Nor was there evidence that he would share in the proceeds, but as I understand the facts there was no indication that he would not share in the proceeds. Mr Errigo’s offence lay in the fact that he permitted the property to be used for the growing of marijuana. The Judge rejected a claim by Mr Errigo that he was unable to influence what his parents did, because he was afraid of his father.
The Judge noted that Mrs Errigo expected to make a significant profit from the venture. Even if that reflects a finding that Mr Errigo was not to share in the profits, it is of little significance as a mitigating factor. Even on that basis, Mr Errigo has allowed his land to be used by his parents so that they could make a large profit from an illegal enterprise. That aspect of the matter cannot be ignored in assessing the seriousness of his offending.
The Judge accepted that Mr Errigo had no relevant convictions. Prior to this offence he had been a person of good character. He was well regarded by those who knew him. He had a good employment record. He was acting as a full‑time carer for his mother, although other family members could fill that role if he were unable to do so. The Judge apparently accepted that Mr Errigo was unlikely to offend again.
The Judge imposed a sentence of imprisonment for three years. He fixed a non-parole of two years. He imposed a fine of $5,000.
The Judge suspended the sentence of imprisonment. The fact that Mr Errigo was caring for his mother was not, of itself, good reason to suspend the sentence, the Judge said. However, I gather that it was a factor because the Judge went on to say:
However, I also take into account your previous good record, the matters referred to by your referees and the possibility that if the sentence is suspended you will be a worthwhile member of the community.
The principles by reference to which an application by the Director for leave to appeal is to be considered are well known.
I reviewed the relevant principles in R v Nemer [2003] SASC 375; (2003) 87 SASR 168.
It is not sufficient for the Director to establish that an error has been made. Leave to appeal will be granted only if doing so would serve some wider purpose, such as giving the Court an opportunity to establish a relevant principle, or to establish or maintain adequate standards of sentencing. Alternatively, the Court will intervene if the sentence is so far below the appropriate range that the sentence reflects an error of principle, and is one that would “shock the public conscience” or would shake public confidence in the administration of justice were it to stand: see Nemer at [24].
I turn to the decision to suspend the sentence, this being the decision that is challenged.
The offence is a serious one. The maximum penalty that Parliament has fixed indicates how seriously the offence is viewed.
By s 38 of the Criminal Law (Sentencing) Act 1988 (SA) the Judge had power to suspend the sentence, if he thought that good reason existed for doing so. The statutory provision confers on the Court a power that can be exercised in a wide range of circumstances.
The seriousness of the offence is a relevant factor. It makes it more difficult to suspend a sentence, although of course there is power to do so. The matters to which the Judge referred were relevant matters. The Court is always reluctant to send a person to prison for the first time, particularly a person of previous good character who is likely to benefit from an exercise of clemency. On the other hand, as I have already said, the interests of the community also have to be considered, and the community interest requires the Court to do what it can to deter people from committing this type of offence. Offences involving the production of drugs are quite common, as are offences involving the distribution of drugs.
A land owner who allows land or premises on the land to be used to produce cannabis, knowing what is happening, commits a serious offence. It is all the more serious when, as here, what is involved is a well organised production of a substantial crop with a view to profit by those who are cultivating the crop. Making property available for the production of an unlawful substance is a significant contribution to the undertaking of those who are actually cultivating or producing the substance.
A person who commits an offence like this must ordinarily expect to serve a sentence of imprisonment, even though the person is of previous good character.
The seriousness with which Parliament treats offending of this kind requires the Court to take a firm approach, and to impose a sentence that will be a significant deterrent. The protection of the community calls for such an approach.
I recognise that the matters upon which the Judge relied were relevant, and were capable of enlivening the discretion to suspend the sentence. However, in my view they are of insufficient weight to justify the decision that the Judge made. Mr Errigo’s role as a carer for his mother was entitled to little weight, especially as other family members could care for her. As the Director pointed out in his submissions, that leaves nothing other than Mr Errigo’s previous good character, and the fact that he is likely to respond to lenience. But that is not a sufficient basis to suspend a sentence of imprisonment in a case like this. The seriousness of the crime, and the public interest in general deterrence, called for a sentence of imprisonment that would be served.
I consider that the Judge erred. He should not have suspended the sentence.
To suspend the sentence in this case was not consistent with the approach to sentencing that is called for by the offence and by the circumstances. A suspended sentence is an inadequate punishment, even though a suspended sentence is a real sentence of imprisonment. The sentence imposed is a clear departure from what was required.
I return to the question of whether the Court should grant leave to appeal, bearing in mind that a clear departure from the appropriate standard of sentence has been demonstrated.
A grant of leave is not required to establish a general principle. The relevant principles are clear enough.
However, to allow the sentence to stand will tend to undermine the appropriate sentencing standard or approach. There is no good reason to allow the sentence to stand. To do so, bearing in mind that others in the past have served sentences of imprisonment for like offences, and the Court expects that others will in the future, introduces an element of inconsistency that is unsatisfactory.
As well, the sentence is one that I consider would undermine public confidence in the administration of justice. The public would rightly question how Mr Errigo could escape imprisonment in the circumstances.
For those reasons I would grant leave to appeal.
Having done so, for the same reasons I would allow the appeal. In particular, it is not appropriate for the Court simply to identify the sentence as erroneous and to leave it stand.
I would set aside the sentence imposed by the District Court.
It is necessary to consider the sentence afresh.
Before I do so I must deal with an aspect of the Judge’s reasons not yet referred to.
In the course of his reasons for sentence, the Judge referred to the fact that proceedings had been instituted for the forfeiture of Mr Errigo’s land on which the plants were growing. The Judge said that he was “unable to take that into account”. That was an error.
The land is subject to a restraining order made under s 15(1) of the Criminal Assets Confiscation Act 1996 (SA). The offence for which Mr Errigo has been convicted is a serious drug offence, as defined by s 3 of that Act. Accordingly, s 15(5)(d) of the Act applies, and:
… 6 months after all rights of appeal are exhausted or expire or 6 months after the [restraining] order is made (whichever is the later) the [restraining] order is automatically converted into a forfeiture order for the forfeiture of all the property to which it then applies.
It is common ground that none of the exceptions to this provision apply, and that in due course Mr Errigo’s interest in the land will be forfeited, and title to the property will vest in the Administrator pursuant to s 17 of the Act.
Section 10(1) of the Criminal Law (Sentencing) Act 1988 (SA) lists matters to which the sentencing court must have regard, if relevant and known to the Court. Subparagraph (ka) is one of those matters, and provides that the Court is to have regard:
10 Matters to which a sentencing court should have regard
…
(ka) if a forfeiture of property (other than a forfeiture that merely neutralises a benefit that has been obtained through the commission of the offence) is, or is to be imposed, as a result of the commission of the offence—the nature and extent of the forfeiture;
…
The forfeiture of Mr Errigo’s interest in the land is not a forfeiture that merely neutralises a benefit obtained through the commission of the offence. Accordingly, the Judge was required to have regard to the nature and extent of the forfeiture.
That was the effect of this Court’s decision in R v Carpentieri [2001] SASC 420; (2001) 81 SASR 164, which was decided before subpar (ka) was inserted in s 10(1): see at [37]-[47] Doyle CJ, with whom the other members of the Court agreed. Subsequently, in DPP v Alexander [2003] SASC 340; (2003) 86 SASR 577, decided after subpar (ka) had been inserted, Mullighan J said at [30]:
It is well established that the sentencing court may have regard to the consequence of forfeiture of property by reason of the commission of a serious drug offence when sentencing for that offence …
Gray J agreed with his reasons: at [83]. Debelle J, the other member of the Court, did not find it necessary to comment on this point. Each of those decisions deals with aspects of the operation of the Criminal Law (Sentencing) Act 1988 (SA) and of the Criminal Assets Confiscation Act 1996 (SA), and with aspects of the interaction between those two Acts, but for present purposes it is not necessary to go into those matters any further.
The Court asked for further information in relation to the property, and has been provided with that information. It is not disputed that the land is worth approximately $295,000, and, as I have already said, will in due course be forfeited and will vest in the Administrator.
This information should have been provided to the sentencing Judge. If a sentencing court is to have regard to a forfeiture that will be imposed after sentence is imposed, it is necessary for the court to be provided with information as to the property, its value and as to the impact of the forfeiture on the offender.
The forfeiture is a very substantial detriment suffered by Mr Errigo. It should be taken into account. There is no suggestion that the property was acquired with money gained from criminal activity, or that it was acquired for the purpose of criminal activities. On the other hand, it is appropriate to bear in mind that Parliament clearly intended forfeiture to be an additional penalty, when it occurs. It would not be appropriate for a forfeiture to be matched by a routine equivalent reduction in punishment, even if it were possible to equate the effect of a forfeiture with a period of imprisonment: Carpentieri at [46], Alexander at [17] and [80].
This means that it will be difficult to achieve consistency in sentencing when considering sentences for the one offence, and comparing cases where property has been forfeited with cases where property has not been forfeited. However, that, as I see it, is an inevitable result of the requirement to allow for the impact of forfeiture. To that extent the interest in consistency (or an appearance of consistency) must give way to the interest in ensuring that punishment is proportionate to the gravity of the offending, taking into account, as best one can, the impact of a forfeiture order.
I record here that in deciding whether or not leave to appeal should be granted, and whether or not the appeal should be allowed, I considered whether the Judge’s failure to have regard to the forfeiture order was a reason to refuse leave to appeal or a reason for declining to intervene. The view I came to was that it was not. Although it is an error adverse to the interests of Mr Errigo, I remain of the view that the decision to suspend the sentence calls for intervention, even allowing for the impact of the forfeiture.
Thus, it is necessary in fixing a new sentence to allow for the impact of the forfeiture order. I proceed on the basis that Mr Errigo’s entire interest in the property will be forfeited. The order means that Mr Errigo will lose a substantial asset. His mother will lose her home, although that is attributable to her own offending.
This is a matter in which it is not possible to be precise. I am prepared to assume that the property is Mr Errigo’s main asset.
In fixing sentence it is necessary to take account of the fact that he has paid the fine of $5,000, and has performed 140 hours of community service, of the total of 270 hours to be performed. It is also appropriate to bear in mind that the Court usually exercises some restraint when it allows an appeal against sentence by the Director. But for the forfeiture, I would have imposed the same head sentence as that imposed by the District Court Judge, but would have fixed a somewhat shorter non-parole period. I would not have suspended that sentence. Allowing for the forfeiture, I would not have imposed the fine.
Under all the circumstances I would impose a head sentence of two years’ imprisonment. Were this not an appeal by the Director, I might well have imposed a higher head sentence, because I regard the head sentence of three years’ imprisonment fixed by the District Court Judge as moderate. I would fix a head sentence of two years’ imprisonment, in all the circumstances, to make allowance for the forfeiture order, the fine and recognising that restraint is called for. I emphasise that there can be no precision in determining the allowance that is made for the forfeiture.
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.