R v Godfrey

Case [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…

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R v Godfrey [2018] SASCFC 93
Case
[2018] SASCFC 93
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CaseChat Overview and Summary

This matter concerned an appeal against conviction and sentence by the appellant, Mr Godfrey, following his conviction for offences contrary to the Controlled Substances Act 1984 (SA) and the Electricity Act 1996 (SA). The offences related to the sophisticated cultivation of cannabis at a property jointly owned by the appellant, where two tenants, Ms Brodribb and Mr Bourchier, were also present and pleaded guilty to related charges. The central dispute at trial was the extent of the appellant's involvement in the cannabis cultivation, which occurred in locked grow rooms on the ground floor of the two-level property.

The court was required to determine whether the appellant's conviction was sound, particularly in light of the evidence implicating him in the cultivation and the possession of associated equipment. Furthermore, the court considered whether the sentence imposed upon the appellant was manifestly excessive, especially when compared to the sentences received by his co-offenders, Ms Brodribb and Mr Bourchier, whose appeals against sentence were also before the court.

The court noted that the appellant was implicated through various pieces of evidence, including his fingerprints on hydroponic equipment, his part ownership of the property, the presence of his vehicles and clothing at the premises, and his possession of keys granting access to the cultivation area and a room containing unused hydroponic equipment. The appellant also made admissions regarding his continued access to the property for storage and mail collection, and his possession of keys. In considering the appeal against sentence, the court referred to the principles of parity, as articulated in *Lowe v The Queen*, which permits interference with sentences where a disparity between co-offenders gives rise to a justifiable sense of grievance or the appearance that justice has not been done.

The court ultimately referred the appeal against sentence to the Full Court. While the specific outcome of the appeal against conviction is not detailed in the provided text, the court's reasoning regarding the co-offenders' sentences highlighted that while the starting point of five years was at the high end for commercial cultivations of that size, it was not inherently excessive. However, the sentences imposed on Ms Brodribb and Mr Bourchier were found to be manifestly excessive due to their limited roles as caretakers, the absence of evidence regarding the value of the cannabis, and their difficult personal circumstances, which militated strongly for less severe sentences.

Orders

Orders of the court

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Background

Background to the litigation

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 convictionGround 1

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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