R v Godfrey - [2018] SASCFC 93

Supreme Court of South Australia
(Court of Criminal Appeal)
R v GODFREY
[2018] SASCFC 93
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Bampton and The Honourable Auxiliary Justice Rice)
11 September 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant was found guilty by verdicts of jury of cultivating a commercial quantity of controlled plants for sale and possessing prescribed equipment. At trial it was alleged that the appellant provided a residence he jointly owned to two other persons for use in the cultivation of the plants. The appellant was implicated in the cultivation by other circumstantial evidence. This evidence included that upon arrival at the property at the request of the police the appellant was in possession of keys that enabled access to the areas where the plants were being grown and where the prescribed equipment was being stored.
The appellant was sentenced to four years imprisonment with a non-parole period of nineteen months. The sentencing Judge declined to order that the sentence be suspended or served on home detention.
Permission to appeal against conviction was granted on a number of grounds each contending that the learned trial Judge misdirected or failed to adequately direct the jury on particular topics. The appellant further sought permission to appeal against sentence on the ground that the sentence was manifestly excessive and, in any event, should have been suspended and, even if not suspended, should have been the subject of a home detention order.
Held per Rice AJ (Kelly and Bampton JJ agreeing) dismissing the appeal against conviction:
1) The trial Judge did not misdirect the jury as to the standard and burden of proof by stating the presumption of innocence is another way of putting the onus of proof.
2) The trial Judge did not misdirect the jury as to how they might treat the hearsay evidence of a witness to the effect that the witness was told by the occupants of the subject premises they did not have a key to a room where incriminating exhibits were found.
3) The trial Judge did not fail to adequately direct the jury as to the effect of their rejecting any or all of the accused’s evidence.
Held per Rice AJ (Kelly and Bampton JJ agreeing) refusing permission to appeal against sentence:
1) The sentence imposed was not manifestly excessive.
2) The sentencing Judge did not err in declining to suspend the sentence.
3) The sentencing Judge did not err in declining to order that the sentence be served on home detention.
Controlled Substances Act 1984 ss 33B and 33LA; Electricity Act 1996 s 85; The Sentencing Act 2017 s 71, referred to.
R v Dell & Dell (2016) 126 SASR 571, applied.
R v Best [2017] SASCFC 55 (26 May 2017); R v Filipponi (2016) 126 SASR 464; Milkins v R [2011] VSCA 93 (13 April 2011); R v A.L.P. [2002] VSCA 210 (18 December 2002); Palmer v R (1992) 64 A Crim R 1; Douglass v The Queen 86 ALJR 1086; Liberato and Ors v The Queen (1985) 159 CLR 507; Murray v The Queen 211 CLR 193; R v Schulz 126 SASR 476; R v Anderson (2017) 128 SASR 550; R v Brodribb, R v Bourchier (2017) SASCFC 32; Lowe v The Queen (1984) 154 CLR 606; R v Yavuz; R v Soyler; R v Bayraktar [2018] SASCFC 24 (13 April 2018); R v Saleh [2017] SASCFC 75, considered.

R v GODFREY
[2018] SASCFC 93
Court of Criminal Appeal: Kelly and Bampton JJ, Rice AJ

KELLY J: I would dismiss the appeal against conviction and refuse permission to appeal against sentence for the reasons given by Rice AJ.
BAMPTON J: I would dismiss the appeal against conviction and refuse permission to appeal against sentence for the reasons given by Rice AJ.
RICE AJ:
Introduction
These are appeals against convictions and sentence.
The appellant was found guilty by verdicts of a jury of cultivating a commercial quantity of controlled plants for sale (count 1) and possessing prescribed equipment (count 2). The appellant was sentenced to four years imprisonment on count 1 and was convicted without further penalty on count 2. The sentence and non-parole period of 19 months were ordered to commence on 4 May 2018.
The appellant appeals against his convictions on the following grounds:
1.The learned trial Judge misdirected the jury as to the standard and burden of proof by stating the presumption of innocence is another way of putting the onus of proof.
2.The learned trial Judge failed to adequately direct the jury that the accused assumed no onus of proof by giving evidence in the case.
3.The learned trial Judge misdirected the jury as to how they might treat the hearsay evidence of the witness Handley to the effect that he was told by the occupants of the subject premises they did not have a key to a room where incriminating exhibits were found.
4.The learned trial Judge failed to adequately direct the jury as to the effect of their rejecting any or all of the accused’s evidence.
Ground 1 is a question of law. Permission to appeal was granted on grounds 3 and 4, but refused on ground 2 (and not pursued).
As to the appeal against sentence, that was referred to this Court.
Overview of the Facts
The offending occurred at a property jointly owned by the appellant at Beaumont. When the police went there in the early evening of 1 July 2015 two tenants were occupying the property, Melinda Brodribb and Roger Bourchier. They pleaded guilty to various charges contrary to the Controlled Substances Act 1984 (SA) and Electricity Act 1996 (SA). Their sentences were also the subject of an appeal and are referred to later in these reasons.
The primary question at trial was whether there was sufficient proof of the appellant’s involvement in the cultivation of the cannabis at the house. He was not living there.
More needs to be said about the layout of the house and the places where cannabis was to be found.
The house was on two levels. The ground floor of the house comprised a garage, grow rooms and an internal staircase. The cannabis was being cultivated in locked grow rooms downstairs. The door to that locked area led to a room with a tent with cannabis growing in it and then down a narrow hallway leading to a second room where more plants were growing. There were 23 plants in all at varying stages of maturity. It was a sophisticated and well organised cultivation.
The prescribed equipment charge related to equipment located within a locked bedroom on the upper level. In this room, the police located 28 electrical transformers, 27 light shades and 41 light globes. In this same room, there were items of clothing and shoes belonging to the appellant.
The tenants were present at the time of the police attendance. Various items were found in their bedroom, kitchen and living areas from which it could properly be inferred that they had a strong interest in cannabis, its consumption and trafficking in it. Importantly, DNA that could be attributed to both tenants was found on gloves in a bin in the locked downstairs area where the cannabis was being grown. Additionally, in that same bin was prescription medication packaging belonging to the appellant. A date on the packaging showed it was dispensed on 25 June 2015, about a week before the police attendance.
The appellant was implicated in the cultivation by other evidence. His fingerprints were located on hydroponic equipment; he was a part owner of the property; there was present within the property motor vehicles and clothes that belonged to him; he possessed a key which enabled access to the area where the cannabis was being cultivated and the same key enabled access to the upstairs room where unused hydronic equipment was being stored.
The appellant arrived at the property at the request of police during the search. The appellant made some relevant admissions. He admitted that he still had access to the property for the purposes of storage of the motor vehicles and that he had left clothing at the premises.
He was in possession of keys that enabled access to the downstairs room where the cannabis was being grown as well as the bedroom where the prescribed equipment was being stored. He also admitted that he would consistently attend the property to collect the mail and rental payments.
Appeal against conviction
Ground 1
This ground was expressed in the notice of appeal as follows:
The learned trial Judge misdirected the jury as to the standard and burden of proof by stating the presumption of innocence is another way of putting the onus of proof.
The direction in respect of which there is a complaint was part of a composite direction relating to onus or burden of proof and standard of proof. That direction was as follows:
In any criminal trial the onus and burden of proving any charge rests on the prosecution. As a general proposition an accused person is not required to prove or disprove anything. A verdict of guilty can only be brought in if the prosecution has proved the charge, that is each ingredient of the charge, to the satisfaction of you, the jury, beyond reasonable doubt. Another way of putting that same principle is an accused comes into this court with the presumption of innocence in their favour. An accused is deemed innocent until the prosecution have proved the charge beyond reasonable doubt. If at the end of the day you are left with a reasonable doubt of his guilt on either charge arising from the evidence, you must give him the benefit of that doubt and find him not guilty of that charge.
There was no error in this direction. The presumption of innocence is the corollary of the principle that the onus or burden of proof rests upon the prosecution to prove guilt beyond reasonable doubt. Although it is desirable that a trial judge refer to the presumption of innocence as a means of emphasising the heavy burden placed on the prosecution, there is no legal requirement for such a direction. The desirability of such a direction or its inclusion in a summing up as a matter of general practice, should not be elevated to a rule of law. What is required is a clear and unambiguous direction that the burden of proof rests with the prosecution throughout the trial (leaving to one side those cases where an evidentiary burden may rest on an accused pursuant to legislative provisions).[1]
[1] See R v A.L.P. [2002] VSCA 210; R v Palmer (1992) 64 A Crim R 1 at 6.
A similar point was taken in the case of Milkins v The Queen,[2] where Weinberg JA (Mandie and Tate JJA concurring) said this:[3]
The law on this point is perfectly clear. A judge is not obliged, when directing a jury as to the onus of proof, to use the term ‘presumption of innocence’. Nor is a judge bound to say to a jury that the accused ‘need not prove anything’. The critical requirement is that the jury be given a clear direction as to the onus of proof. That can be done without using either of these formulae.
[2] [2011] VSCA 93.
[3] Milkins v The Queen [2011] VSCA 93 at [48].
Further, the direction complained of in the above quote was not the only reference during the summing up to the burden of proof resting on the prosecution to prove the charges beyond reasonable doubt. The Judge also gave directions that if the jury had a reasonable doubt upon either count then the accused was to be given the benefit of that doubt.
The jury would have been in no doubt that the presumption of innocence operated in favour of the appellant and, subject to the legislative exception as explained to them, the onus of proof was borne by the prosecution.
This ground appeal is not made out.
Ground 3
This ground was expressed in the notice of appeal as follows:
The learned trial Judge misdirected the jury as to how they might treat the hearsay evidence of the witness Handley to the effect that he was told by the occupants of the subject premises they did not have a key to a room where incriminating exhibits were found.
This ground relates to the directions given as a result of hearsay evidence from one of the investigating police officers concerning a key that would unlock a bedroom (bedroom one) on the upper level where the unused hydroponic equipment was located.
Detective Brevet Sergeant Baldwin gave evidence that when the police attended the property the door to the cannabis grow rooms and the door to bedroom one were each locked. Each of the doors was forced open by the police. The hearsay evidence to which reference will be made relates only to the key to bedroom one.
Detective Sergeant Handley gave this evidence in examination-in-chief in relation to bedroom one.
QWas that bedroom accessible when you first entered the house.
ANo, that bedroom door was locked.
QDid you look for a key.
AYes.
QWere you able to find a key that opened that door.
ANo they said they didn’t have any key.
QAnd did you find one anywhere else in the house.
ANo.
The time then being referred to was at a stage before the appellant arrived. The second-to-last answer was clearly hearsay if used to prove the truth of the assertion namely, that the tenants did not have a key to that room. If true, the implication was that the unused hydroponic equipment in that room belonged to the appellant (count 2) and that he was associated with the cultivation then taking place in the grow rooms downstairs (count 1).
As noted, the hearsay answer did not relate directly to the grow rooms downstairs. Also, as already noted, the doors to bedroom one and the grow rooms were forced open by the police as part of their search.
Objection was taken to the hearsay answer at the time the evidence was given. In the summing up, the trial Judge gave particular directions to the jury as to the limited use to which that evidence could be put. The following directions were given as part of the summing up after the Judge read out the particular evidence from Detective Sergeant Handley quoted above:
That evidence, in lawyers’ language, is not admissible to prove the truth of it. What does that mean? That is what is called hearsay. It is something that was said by someone else outside of court. It does not prove the proposition that they did not have a key. That is what they told the officer. It does not prove that proposition. It simply explains why the police went ahead and forced the doors. Can you see the difference? They were told something, they forced the doors. It does not prove the proposition that the tenants did not have a key.
Having said that, the position remains on the evidence, if I have correctly understood it, that, in fact, the only keys that opened the bedroom and those downstairs areas that were, in fact, located came from the accused. As I understand it, that is the state of the evidence. But I am simply talking about that statement from the tenants. The only use of that is to explain why they forced the door.
As can be seen, the trial Judge clearly directed the jury that they could not use the evidence to prove the proposition that the tenants did not have a key. Rather, the evidence was relevant to explain why the police forced the doors open. Although the trial Judge also correctly referred to the appellant’s possession of the only keys that opened both doors, he immediately returned to the ‘statement from the tenants’ and that the ‘only use of that is to explain why they forced doors’. The jury would have understood from those directions that the hearsay evidence could not be used to prove that the tenants did not have a key to bedroom one. There was no complaint about these directions and there was no application for a mistrial.
The trial Judge was correct when referring to the fact that, on the evidence, the appellant did have keys to all parts of the house because he handed them to the police.
The potential for prejudice to the appellant was further ameliorated by cross‑examination of Detective Sergeant Hanley on the topic that suggested what the tenants had said about keys was less than truthful. The cross-examination was in relation to cannabis found upstairs in the tenants’ area:
QFor all the world it would seem as though they come from downstairs at the same address. Would you agree with that as a reasonable proposition.
AIt’s a reasonable assumption.
QAnd the cannabis cuttings if we turn over the page to photographs 15 and 16, again, we might reasonably assume also came from downstairs, is that correct.
AYes.
QAnd that is all of the area of the house that Brodribb and Bourchier were clearly occupying. They were the only occupants, you’ve told us that already, correct.
AYes.
QIt would seem that they had access, looking at all of this evidence, to all areas, for want of a better description, of the house. Certainly downstairs, would you agree with that.
AThey’ve had access at some stage, yes.
QSo the information that they gave you that you’ve spoken to about no keys is contradicted by the surrounding circumstances.
AThey’ve had access to that room. I can’t say if they had keys or if somebody let them in.
Although that evidence did not completely reduce the potential for prejudice to the appellant, it reduced it in a significant manner. Either the tenants did have keys or someone allowed them access to the downstairs grow rooms. The latter possibility would seem remote given the quantity of the cannabis found in the areas occupied by the tenants and the activity taking place. If the tenants did not have keys then they would need someone (realistically only the appellant) to attend regularly to allow access to the grow rooms. This would seem highly unlikely in the context of a joint enterprise to grow cannabis. The logical inference from the evidence was that the tenants did have keys.
The potential for prejudice to the appellant was remedied by the directions of the learned trial Judge having regard to all the evidence. There was no potential for a miscarriage of justice in that situation.
This ground is not made out.
Ground 4
This ground was expressed in the notice of appeal in the following terms:
The learned trial judge failed to adequately direct the jury as to the effect of their rejecting any or all of the accused’s evidence.
The trial Judge gave a number of directions that are relevant to this topic.
The trial Judge directed the jury that in respect of any witness they were entitled to accept all or some or none of what that witness says. Further, the jury was directed that an assessment of the evidence of the accused, and the weight to be attached to it, is to be approached in exactly the same way as for any other witness.
With respect to any witness, you are entitled to accept all, some or none of what they tell you. It is a matter for you to assess what you hear and what you make of it.
In this case the accused has given evidence and been cross-examined. In assessing his evidence and the weight to be given to it you approach the task in exactly the same way that you would for any other witness. In other words it is entirely a matter for you what weight you are prepared to attach to his evidence just the same as for other witnesses.
It should be noted that although the trial Judge directed the jury that they should assess the evidence of the appellant in the same way as with other witnesses, the jury was not directed specifically that they were entitled to accept all, some or none of the appellant’s evidence. When focusing on the appellant’s evidence the relevant direction was framed in terms of assessing what weight the jury was prepared to attach to it.

Against that background, the trial Judge gave these two directions after summarising the evidence, including reference to the appellant’s evidence, in respect of each count:
If you reject his version, that does not mean you automatically find him guilty. You still need to turn your mind to the prosecution case and whether you are satisfied beyond reasonable doubt that the only rational or reasonable conclusion from all of these circumstances, is that he was involved.
and later:
Again, I need to direct you that if you reject his version, it’s not simply a matter of saying reject his version, therefore convict him. You still need to turn your mind as to whether the prosecution case based on the facts and the circumstances establishes beyond reasonable doubt that he knew about the equipment in the bedroom and had an intention to do something with it, even if it’s just store it.
The appellant argues that in light of the plurality of explanations given by the accused, a rejection of ‘the accused’s version’ failed to distinguish between the many aspects of those explanations. It was submitted that, effectively, the jury were being directed to make a choice between the facts and inferences urged by the prosecution, and ‘his version’. In other words, so it was argued, because the account of the appellant, or ‘his version’ as described by the trial Judge had so many permutations, it was necessary to be more specific. Hence it was argued that the trial Judge failed to direct the jury that they might accept some parts of the appellant’s version but reject other parts.
The directions of the trial Judge were adequate in the circumstances. The case for the appellant was that he knew nothing of the cultivation in the house, knew nothing of what was stored in bedroom one and was simply not involved in the cultivation being undertaken by the tenants. That case was put fairly and adequately by the trial Judge in a short summing up at the end of a short trial. Rejecting the version of the appellant would have been understood by the jury in accordance with the earlier directions, namely, that when assessing his evidence and the weight to be attached to it, the approach is the same as with other witnesses. Further, in respect of each count, the trial Judge referred to the appellant’s version and directed the jury that if it were a reasonable possibility, the appellant was entitled to an acquittal. As has been observed earlier, the trial Judge made no error in his directions on the application of the onus of proof.
Furthermore, the directions did not invite ‘choice’ reasoning of the type referred to in the authorities.[4]
[4] See Liberato and Ors v The Queen (1985) 159 CLR 507; Murray v The Queen (2002) 211 CLR 193 at [23] (Gaudron J), [56]-[57] (Gummow and Hayne JJ); R v Schulz (2016) 126 SASR 476; R v Anderson (2017) 128 SASR 550.
In fact, a close reading of the summing up did quite the opposite. The jury was directed in respect of each count that if they reached the position of rejecting the appellant’s version, then they should turn to whether the prosecution case established guilt beyond reasonable doubt. Such an approach did not suggest a choice needed to be made and properly emphasised that the burden of proof rested on the prosecution to prove the charges beyond reasonable doubt.
The appellant also contends that the trial Judge should have directed the jury that even if they were to reject any or all of the explanations offered by the appellant, they could nonetheless not convict him unless they were satisfied that such explanations were not reasonably possibly true. In advancing this submission the appellant sought to rely on the High Court case of Douglass v The Queen.[5]
[5] (2012) 86 ALJR 1086.
The appellant’s reliance upon Douglass v The Queen is misplaced. Douglass v The Queen was a case involving the adequacy of the reasons in a criminal trial by judge alone. In that case the acceptance of the evidence of the victim was not inconsistent with the existence of a reasonable doubt as to guilt. It was in that context that the Court said:[6]
Even if the judge was not persuaded by the appellant’s evidence, he could not convict unless satisfied that it was not reasonably possibly true.
[6] Douglass v The Queen (2012) 86 ALJR 1086 at 1089-1090.
Although the High Court expressed it in this fashion, it does not mean that such a direction is called for in a case where the accused gives evidence. The High Court was not endorsing such a direction. It is simply another way of directing upon the onus of proof. In this case there were adequate directions on the onus of proof. There was certainly no obligation to give such a direction and, as Kourakis CJ said in R v Anderson[7], it “is similarly unhelpful to ask whether the defendant’s account is reasonably possible”.
[7] (2017) 128 SASR 550 at 551 (Kourakis CJ).
This ground is not made out.
I would dismiss the appeal against conviction.
Application to appeal against sentence
As mentioned, the appellant was sentenced to four years imprisonment on count 1 and was convicted without further penalty on count 2. The sentence and non-parole period of 19 months were ordered to commence on 4 May 2018, being the date of sentencing. There was no time in custody prior to sentencing. No separate complaint is made about the length of the non-parole period which represents 40 per cent of the head sentence, although the non-parole period is necessarily part of the sentence.
The grounds of appeal against sentence are as follows:
1.The sentence imposed was manifestly excessive;
2.The learned sentencing Judge erred in declining to suspend the sentence of imprisonment imposed, and
3.The learned sentencing Judge erred in declining to sentence the appellant to a home detention order pursuant to s 33BB of the Criminal Law (Sentencing) Act 1988 (SA).
In other words, the grounds contend that the sentence was manifestly excessive and, in any event, should have been suspended and, even if not suspended, should have been the subject of a home detention order pursuant to s 33BB of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”).
Ground 1
There is a need to refer to some additional facts to assess the seriousness of the offending and where it sits in the scale of offending of a similar type.
There were 23 cannabis plants in all, comprising six mature plants, eight clone plants and nine plants being grown in pots. The plants were in various stages of maturity. Of note is the fact that the eight clone plants were being grown in a machine designed for that purpose. The electricity had been diverted. It was a sophisticated operation which involved extensive and expensive equipment. Each mature plant had an estimated value of $5,000 to $6,000 per plant.
Count 1 has a maximum penalty of a $200,000 fine or imprisonment for 25 years, or both. Count 2 has a maximum penalty of a $10,000 fine or imprisonment for two years, or both.
Basis upon which appellant was sentenced
The appellant was sentenced on the basis that he knowingly provided the premises for the purpose of the cultivation and that he had a hands-on role in the cultivation itself. The sentencing Judge noted that providing premises for a significant commercial cannabis production is a serious offence in itself but that the appellant had both roles, provider and hands-on cultivator.
The sentencing Judge also found that the operation was plainly motivated by profit and from which the expectation of profit would have been substantial. Although the Judge was not in a position to find what the precise expectation of profit was, the fact that a mature plant would provide a potential yield of cannabis of the value of between $5,000 and $6,000, justified a finding that the profit would have been substantial.
Basis upon which co-offenders were sentenced
As mentioned the two co-offenders, Ms Brodribb and Mr Bourchier, pleaded guilty to the same two offences as the appellant (counts 1 and 2) plus abstracting or diverting electricity (count 3) and possession of cannabis (count 4). For the first three counts, the sentencing Judge imposed on each a sentence of three years and six months imprisonment with a non-parole period of one year and six months. The Judge indicated a notional starting point of five years which was reduced by 30 per cent for each of the early guilty pleas. In respect of count 4, each of the two co-offenders were convicted without further penalty. Ms Brodribb and Mr Bourchier each appealed on the basis that the sentence was manifestly excessive or, more particularly, that the sentence was manifestly disproportionate to the circumstances of the offending and their personal circumstances.[8]
[8] R v Brodribb; R v Bourchier [2017] SASCFC 32 at [4].
Appeal
The appeal succeeded and Ms Brodribb and Mr Bourchier were each resentenced to a term of imprisonment of two years with a non-parole period of 12 months, both of which were taken to have commenced on the original commencement date of 15 June 2016.
On appeal, the Court started with a notional term of two years and 10 months in each case before reducing that term by 30 per cent having regard to their early guilty pleas. The Court on appeal declined to suspend either sentence, finding that the personal circumstances were not sufficient to outweigh the demands of specific and general deterrence, particularly having regard to the fact that the offences were not isolated.[9]
[9] R v Brodribb; R v Bourchier [2017] SASCFC 32 at [39].
In coming to that decision, the Court considered the seriousness of the offending as it was before the original sentencing Judge and the different antecedents of Ms Brodribb and Mr Bourchier.
As to the offending itself, the police found 3.66 kilograms of cannabis in the laundry and dining room. No evidence of the value of the cannabis was adduced before the Judge.
Reasons for the decision on appeal relating to the co-offenders
Chief Justice Kourakis (Nicholson and Parker JJ concurring) said this:[10]
The starting point of five years and therefore the sentences imposed by the Judge were at the high end of the range of sentences which this Court has approved for commercial cannabis cultivations. However there were circumstances which militated strongly for a less severe sentence including:
·     the probability that the appellants were little more than caretakers of the cultivation:
·     the absence of any evidence of the value of the cannabis; and
·     the pathetic personal circumstances of the appellants.
For the reasons which follow I have concluded that the sentences are manifestly excessive. I would allow the appeal.
and later, by way of summary of the reasons for that conclusion:[11]
The sentences imposed by the Judge are within the range of sentences commonly imposed for cultivations of this size. However the sentences imposed do not reflect the peculiar objective and personal circumstances of this case. In particular the appellants are unlikely to have initiated, and financed the sophisticated hydroponic operations in the Beaumont house. Nor is it possible to find that they profited beyond securing accommodation and supporting their respective drug habits. Moreover the extent to which their conduct facilitated a more extensive or profitable commercial cannabis enterprise has not been proven.
[10] R v Brodribb; R v Bourchier [2017] SASCFC 32 at [10].
[11] R v Brodribb; R v Bourchier [2017] SASCFC 32 at [37].
The notional sentence of five years was described as ‘disproportionately severe having regard to those circumstances’.[12] It is clear that the personal circumstances of those appellants excited considerable sympathy.
[12] R v Brodribb; R v Bourchier [2017] SASCFC 32 at [38].
Was the sentence for the appellant Godfrey manifestly excessive?
It should be noted that Kourakis CJ said that, leaving to one side the personal circumstances of Ms Brodribb and Mr Bourchier, the starting point of five years was at the high end of the range of sentences which the Court has approved for commercial cannabis cultivations.
It was not said that that starting point was, in itself, excessive.
It is sufficient in this case to say that a starting point, as here, of four years is well within the range of sentences which the Court has approved for commercial cannabis cultivations. It should not be overlooked that the maximum penalty for this offence is 25 years imprisonment.
Parity
Although not a separate ground of appeal, the argument of the present appellant also gives rise to a consideration of parity. The oft-quoted words of Gibbs CJ in Lowe v The Queen[13] should be noted:
… it is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive.
and later:[14]
… the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.
[13] (1984) 154 CLR 606 at 609.
[14] Lowe v The Queen (1984) 154 CLR 606 at 610 (Gibbs CJ).
The position is complicated in this case because there were, on the one hand, two offenders who pleaded guilty and succeeded on appeal and, on the other hand, an appellant who was sentenced after trial by a different judge.
The different sentences are readily explicable. Ms Brodribb and Mr Bourchier pleaded guilty at an early stage attracting the full discount of 30 per cent applicable to the timing of their pleas. When they were sentenced, the sentencing Judge was not provided with any evidence of the value of the cannabis, whereas in the matter on appeal here the Judge was provided with a value of $5,000 to $6,000 per mature plant.
Further, Ms Brodribb and Mr Bourchier were sentenced on the basis that their offending supported their own addictions. There was inadequate evidence to show some profit was being returned to a third party.
The appellant before this Court was sentenced on the basis that he supplied the premises and that he was ‘motivated by profit and from which the potentiality or expectation of profit would have been substantial’.
The criminality of this appellant was greater than that of Ms Brodribb and Mr Bourchier. His ‘privileged background’ is to be contrasted with ‘… the pathetic personal circumstances of the [other] appellants’.[15]
[15] R v Brodribb; R v Bourchier [2017] SASCFC 32 at [10].
In my view, there is no scope for the appellant to have a justifiable sense of grievance, nor is there the appearance of injustice.
Ground 2
By ground 2 the appellant submits that the sentencing Judge erred in declining to suspend the sentence of imprisonment imposed. In declining to suspend the sentence, the Judge referred to the seriousness of the offending, in particular ‘…that it was a substantial commercial operation motivated by expectation of profit’.
Combined with the need for general deterrence, the judge decided it was not appropriate to suspend the sentence. These remarks are to be viewed against the backdrop of earlier findings that the appellant provided the premises for the crop and had a hands-on role in the cultivation.
Two additional points need to be made arising from the appeal by Ms Brodribb and Mr Bourchier.
The first is that upon re-sentencing Ms Brodribb and Mr Bourchier, this Court declined to suspend or order that either sentence be served pursuant to a home detention order. In declining to suspend, Kourakis CJ said this:[16]
I would not suspend either of the sentences. The mitigating personal circumstances to which I have referred are not sufficient to outweigh the demands of specific and general deterrence, particularly having regard to the fact that the offences were not isolated.
Such an approach is consistent with earlier cases, namely R v Filipponi[17] and R v Dell & Dell.[18]
[16] R v Brodribb; R v Bourchier [2017] SASCFC 32 at [39].
[17] (2016) 126 SASR 464.
[18] (2016) 126 SASR 571. See also R v Yavuz; R v Soyler; R v Bayraktar (2018) 130 SASR 231 at [121]‑[124].
The second matter relates to the extent of the roles of Ms Brodribb and Mr Bourchier in the cultivation. Kourakis CJ said this:[19]
They are unlikely to have had the technical capacity and financial means to establish such a sophisticated operation in a rented home in Beaumont without substantial assistance from another.
[19] R v Brodribb; R v Bourchier [2017] SASCFC 32 at [13].
The same cannot be said of this appellant and reflects greater criminal culpability on his part as compared with them.
It was open to the Judge, based on his findings, not to exercise his discretion to suspend the sentence. There is no reason to interfere with that exercise of discretion.
Permission to appeal on this ground should be refused.
Ground 3
By ground 3 the appellant submitted in his notice of appeal that the Judge erred in declining to sentence the appellant to a home detention order pursuant to s 33BB of the CLSA. The appellant was sentenced on 4 May 2018 therefore the provisions of the Sentencing Act 2017 (SA) (‘Sentencing Act’), which commenced on 30 April 2018, apply.[20]
[20] The Criminal Law (Sentencing) Act1988 has been repealed. Clause 2(1) of Sch 1 of the Act provides: “Subject to this clause, this Act applies to the sentencing of a defendant after the commencement of this Act, regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement.”
In deciding not to suspend the sentence of the appellant, the Judge was not necessarily precluded from imposing a home detention sentence, however there are restrictions in the Sentencing Act against the making of such an order. First and foremost is s 71(2)(a) which provides as follows:
(2) The following provisions apply to a home detention order:
(a) a home detention order must not be made if the court considers that the making of such an order would, or may, affect public confidence in the administration of justice;
The Court must also take into account ‘… any other matter [it] thinks relevant’ when determining whether to make such an order.[21]
[21] Sentencing Act2017 (SA) s 71(3)(c).
As to the decision not to make a home detention order, the Judge said this:
For the same reason, namely the need for general deterrence for offending of this gravity, home detention would also not be a proportionate or appropriate outcome in my view. Either of those would send entirely the wrong message.
It can be seen from the sentencing remarks concerning this and the question of suspension, that the Judge regarded general deterrence to be a major factor in declining to suspend or make a home detention order. Such an approach is consistent with what this Court said in R v Dell & Dell,[22] but also more recently in R v Best[23] where Stanley J (Parker and Lovell JJ agreeing) said:[24]
In deciding whether the sentence should be suspended and a home detention order made, the court must consider the full range of sentencing considerations which include not only the rehabilitation of the offender but also the objectives of due punishment, denunciation and general deterrence. In deciding this issue, the safety of the community is the paramount consideration. The court must also take into account the impact on the victim, the defendant’s spouse/domestic partner, and any other resident of the premises. Otherwise the same factors that are relevant to determining the head sentence and whether good reason exists to suspend the sentence of imprisonment are relevant to determining whether to make a home detention order.
[22] (2016) 126 SASR 571.
[23] [2017] SASCFC 55.
[24] [2017] SASCFC 55 at [49].

This Court in R v Filipponi[25] laid down some general prepositions regarding home detention orders, most relevantly for this matter as follows:[26]
In the case of serious drug trafficking the demands of general deterrence and punishment are such that if these considerations have operated to preclude a suspended sentence then, in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order.
[25] (2016) 126 SASR 464.
[26] (2016) 126 SASR 464 at [37].
This offending falls within the description of serious drug trafficking. That principle applies equally under the Sentencing Act as it did under the former enactment.
There is no demonstrated error in the exercise of the discretion not to make a home detention order.
I would refuse permission to appeal on this ground.