R v Gjoni - [2012] SASCFC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GJONI
[2012] SASCFC 48
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Kourakis)
2 May 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING STATISTICS, SCHEDULES, TARIFFS, COMPARISONS, ETC - GENERAL PRINCIPLES
Application for permission to appeal against sentence - permission to appeal refused by a single judge of the Supreme Court - applicant pleaded guilty to cultivating a commercial quantity of cannabis for sale - applicant sentenced to three years imprisonment with a non-parole period of 15 months - whether the sentence was manifestly excessive - whether the sentencing judge had insufficient regard to "assistance" provided to police - whether sentence should have been suspended.
Held: permission to appeal refused - none of the grounds of appeal is reasonably arguable - sentence imposed was not manifestly excessive - judge was generous in his assessment of the "assistance" provided to police - decision not to suspend the sentence was open to the judge.
Controlled Substances Act 1984 (SA) s 33B, referred to.
The Queen v Varano (1989) 150 LSJS 140; R v Mangelsdorf (1995) 66 SASR 60, discussed.

R v GJONI
[2012] SASCFC 48
Court of Criminal Appeal: Vanstone, White and Kourakis JJ

VANSTONE J: The applicant pleaded guilty in the District Court to cultivating a commercial quantity of cannabis for sale. He was sentenced to imprisonment for three years with a non-parole period of 15 months. He was refused permission to appeal against the sentence by a single judge of this Court. He now renews his application for permission.
The cultivation consisted of some 59 plants which police located in a house which the applicant was renting. Much of the house appeared to be utilised for the cultivation of cannabis. Several rooms contained quite sophisticated equipment which was being employed to grow cannabis plants hydroponically. The plants found were at various stages of development, suggesting ongoing production.
Through his counsel the applicant told the sentencing judge that the equipment had been set up and the plants cultivated by a man who the applicant had met several months previously and who had instructed him how to care for the plants. The judge was told that the applicant received payments totalling about $400 for his role. The applicant gave evidence to this effect before the judge and that evidence was rejected. The judge was prepared to accept that the enterprise was initiated by others. However, he rejected the applicant’s evidence that he had no idea how seriously the conduct was regarded by the law.
The judge had before him a statement of a botanist which established that a mature cannabis plant of about one and a half metres with a bushy habit might be expected to produce about half a pound of dry leaf and flower material. Eleven of the plants…

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 Gjoni

Details

AGLC: R v Gjoni [2012] SASCFC 48
Case: [2012] SASCFC 48
Decision Date: 2 May 2012

CaseChat Overview and Summary

The applicant, Gjoni, sought leave to appeal against a sentence imposed by the Supreme Court. Gjoni had pleaded guilty to cultivating a commercial quantity of cannabis for sale and was sentenced to three years imprisonment with a non-parole period of 15 months. The appeal concerned whether this sentence was manifestly excessive, particularly in light of the assistance Gjoni had provided to the police, and whether the sentence ought to have been suspended.

The central legal issues before the Full Court of the Supreme Court were whether the sentencing judge had given insufficient weight to the assistance provided by the applicant to the police, and whether the sentence imposed was demonstrably excessive or otherwise unjust. The court was required to consider the principles of sentencing for drug offences, including the appropriate application of sentencing statistics and general sentencing principles, in determining if the original sentence was manifestly excessive.

The Full Court refused permission to appeal, finding that none of the grounds of appeal were reasonably arguable. The court held that the sentence imposed was not manifestly excessive. Furthermore, the judges considered that the sentencing judge had been generous in their assessment of the assistance provided by Gjoni to the police. The decision not to suspend the sentence was also found to be within the proper exercise of the sentencing judge's discretion.

Orders