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 found yielded more than this. Others were immature. A statement from a drug investigation branch officer indicated that a pound of cannabis sold as one lot might be expected to bring between $2,200 and $5,000. On the strength of this material the judge found that the value of the crop upon maturity was likely to be “substantial”.
The judge was told that the applicant was 50 years of age and had come to Australia some time after 2001. His only court appearances involved traffic offences.
The applicant claimed credit for assistance to the police. The assistance took the form of a description of the man who had initiated the enterprise. It was given in the course of the evidence before the judge. He claimed that thereby he had given such information as was available to him to assist police in identifying that person. The description was general in the extreme. In due course counsel for the Director of Public Prosecutions advised the judge that the information was of no assistance to police.
The maximum penalty for the offence was a fine of $200,000 or imprisonment for 25 years or both. Until 3 December 2007 the penalty for the offence would have been a fine not exceeding $50,000 or imprisonment for 10 years, or both. In sentencing, the judge took a starting point of four years and reduced it to three years on account of the plea of guilty and of the “assistance”. He did so somewhat generously on the basis that the description of the co‑offender might add to general police intelligence. It appears that on the strength of the assistance the judge was prepared to set a shorter than usual non‑parole period, being 15 months.
The ground of appeal is that the sentence is manifestly excessive. In particular, complaint is made that the starting point of four years was excessive, that the judge gave insufficient regard to the “assistance” provided and that the sentence should have been suspended. Argument in support of each of these contentions was addressed to the single judge who initially heard the application, Justice Nyland. Her Honour gave comprehensive reasons for her conclusion that permission to appeal should be refused.
In this Court an additional argument was put by Mr Sale, for the applicant. Mr Sale provided the Court with a series of sentencing remarks from the District Court dealing with offences of producing crops of cannabis of between 20 and 99 plants over the period March 2009 to December 2011. Mr Sale did not pretend that the remarks presented covered every such offence dealt with in the nominated period. But clearly they covered nearly all of them. They were accompanied by a table which summarised the sentences imposed. While acknowledging the limited usefulness of such material, Mr Sale argued that where the relevant offence was cultivation of a limited range of plants committed with a view to profit, such a table was more informative than would be the case for offences involving fewer objective features. Most sentences were of less than three years. Almost all of the offenders received suspended sentences.
I agree with the decision of Justice Nyland that permission should be refused. In my view none of the grounds is reasonably arguable. I consider that the starting point of four years could in fact have been higher. But irrespective of that, the appeal is against the sentence actually imposed. Further, bearing in mind that the so-called assistance was put forward in the course of a facts dispute and was belated, non‑specific and not of any value to police, I would not have been inclined to allow any credit for it. In addition, having regard to the fact that the judge rejected the applicant’s evidence going to matters of mitigation, the appellant was fortunate to be given a discount for his plea of as much as 25 per cent. (See The Queen v Varano (1989) 150 LSJS 140).
As to the sentencing remarks relating to other offences, it is true that there were surprisingly few sentences of three years or more. As I said, very few of them were not suspended. This may well demonstrate that a number of the sentences imposed were merciful, even inadequate, particularly having regard to the significant increase in the maximum penalty effected by the Parliament in 2007. However, it does not demonstrate that the applicant’s sentence was too high. It says even less about whether good reason should have been found in Mr Gjoni’s case to suspend the sentence. Whether good reason is found is dictated by circumstances peculiar to the offender and is very much a matter for the judge’s discretion. I consider that the decision that there was no good reason to suspend the sentence was open to the judge.
Even though the applicant had no prior convictions apart from traffic matters, such was the seriousness of this offence that it would have been surprising had good reason to suspend the sentence been found.
I would refuse permission to appeal.
WHITE J. I agree that permission to appeal should be refused.
I add the following.
The sentences disclosed in the comparative table provided by Mr Sale may indicate that insufficient regard is being given by sentencing Judges to the increased maximum sentence for offences of the present kind. Section 33B(2) of the Controlled Substances Act 1984 (SA) provides that the maximum penalty for the appellant’s offence is a fine of $200,000 or imprisonment for 25 years, or both. Section 33B came into operation on 3 December 2007. As Vanstone J has observed, the maximum penalty for production of the quantity of cannabis involved in this case before 3 December 2007 was $50,000 or imprisonment for 10 years, or both. There has therefore been a significant increase in the maximum penalty.
This indicates that Parliament intended that offences of the present kind should be regarded seriously, and that substantial sentences should be imposed for them. Sentencing courts should take account of these considerations.
The statement of Doyle CJ in R v Mangelsdorf[1] remains pertinent:
The Court has referred time and time again to the severe penalties imposed by s 32 of the Controlled Substances Act, in particular, to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s 32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs.[2]
[1] (1995) 66 SASR 60.
[2] Ibid at 63.
Further, numerous decisions of this Court have indicated that the seriousness of these offences, proper sentencing principles and the need for deterrence will usually make it difficult for a court to find good reason for suspension of a sentence of imprisonment. Those observations apply with even greater force since the increase in the maximum penalty which took effect on 3 December 2007.
In these circumstances, the sentence imposed by the Judge and his refusal to suspend that sentence were appropriate, and should not be disturbed by this Court
KOURAKIS J: I too would refuse permission to appeal for the reasons given by Vanstone J.