R v Hall - [2013] SASCFC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HALL
[2013] SASCFC 126
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Blue and The Honourable Justice Nicholson)
22 November 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PRODUCTION OR CULTIVATION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
This is an appeal against sentence. The defendant and appellant pleaded guilty to the offence of cultivating a commercial quantity of a controlled plant, namely cannabis. A police search of the defendant’s premises revealed 23 cannabis plants growing hydroponically and 15 cannabis clones. The defendant acknowledged having sent cannabis to New South Wales on an earlier occasion. It was the defence case that he had grown cannabis for personal use and had used some of that cannabis to discharge a debt. This assertion was not the subject of a dispute. The defendant was sentenced to a term of imprisonment of three years and nine months, with a non-parole period of two years. The Judge proceeded on the misunderstanding that the cannabis sent to New South Wales was not grown by the defendant.
Whether the head sentence and the non-parole period were manifestly excessive. Whether the Judge erred in failing to exercise his discretion to suspend the sentence of imprisonment.
Held per Gray and Blue JJ (allowing the appeal):
(1)     The Judge’s misunderstanding of fact led him to believe that the defendant’s criminal culpability was more serious than was in fact the case. The misunderstanding was material and vitiated the sentencing discretion of the Judge (at [10]).
(2)     A sentence of imprisonment of two years and nine months with a non-parole period of 12 months is imposed (at [11]).
Held per Nicholson J (dissenting):
(1)     The Judge’s misunderstanding of fact was limited to the source of the cannabis earlier sent to New South Wales and did not carry any particular weight in his Honour’s sentencing (at [18]).
(2)     The head sentence, non-parole period and the refusal to suspend were all within the Judge’s discretion (at [19]).
Controlled Substances Act 1984 (SA) s 33B(2), referred to.
House v King (1936) 55 CLR 499, considered.

R v HALL
[2013] SASCFC 126
Court of Criminal Appeal: Gray, Blue and Nicholson JJ
GRAY and BLUE JJ.

This is an appeal against sentence.
The defendant and appellant, Warrick Rodney Hall, following his plea of guilty, was convicted of the offence of cultivating a commercial quantity of a controlled plant, namely cannabis.[1] The maximum penalty for that offence is 25 years imprisonment, a fine of $200,000.00, or both. He was sentenced in the District Court to a term of imprisonment of three years and nine months, the Judge having made a reduction of three months on account of a late plea of guilty. The Judge fixed a non-parole period of two years. The Judge declined to exercise his discretion to suspend the sentence of imprisonment.
[1] Controlled Substances Act 1984 (SA) section 33B(2).
On the appeal, the defendant contended that the Judge made a material error as to the factual background against which the defendant was to be sentenced. He also contended that both the head sentence and the non-parole period were manifestly excessive. It was further contended that, in the circumstances, the Judge erred in refusing to exercise his discretion to suspend the sentence of imprisonment.
On 9 February 2010, police officers searched the defendant’s premises. They found 23 cannabis plants growing hydroponically. A further 15 cannabis clones were discovered elsewhere in the premises. The Judge described the set up as “very sophisticated”. The police search followed the provision of information that suggested that the defendant had been involved in cannabis dealings with a person in New South Wales. It transpired that the defendant had previously sent cannabis to New South Wales.
Following the defendant’s plea, a dispute arose concerning the source of the cannabis which had previously been sent to New South Wales. This was not the subject of the charge but formed part of the background against which the defendant was to be sentenced. The defendant acknowledged having sent cannabis to New South Wales towards satisfaction of a gambling debt. It was the defence case that he had grown this cannabis for personal use and had used some of the cannabis to reduce his indebtedness. The prosecution alleged that the defendant had obtained the cannabis from a third party and was acting as a middle man in trading cannabis. Ultimately, this dispute of fact was resolved when the prosecution did not challenge the defence assertion.
The sentencing Judge appears, however, to have proceeded on a misunderstanding when he concluded:
Your life began to fall apart partly because of the pain you suffered from your ankle. On top of that, your father was diagnosed with cancer. Your house was your only asset and you needed money. You borrowed some $20000 from a racing acquaintance in New South Wales and you began sending him cannabis, although not cannabis grown by you, I understand, by way of repayment. I emphasise again that I am not penalising you for that conduct. You have not been charged with it.
[Emphasis added.]
His Honour also demonstrated this misunderstanding when, in relation to character references provided in support of the defendant, he said, “I do not know if either of those referees knew of your previous history in drug dealing.”
Admitted Misapprehension of Fact
On the appeal, the Director of Public Prosecutions accepted that the Judge had made an error when concluding that the cannabis was not grown by the defendant. He characterised the error, however, as minor and not such as to be material to the sentence imposed.
The defendant’s antecedents were addressed by the sentencing Judge as follows:
In sentencing you I have taken into account the submissions of counsel, your criminal history, hospital and medical records (including photographs) and a number of references. Your referees speak very highly of you, although a couple of them suggest that your offending is out of character and another that it is an aberration. I do not know if either of those referees knew of your previous history in drug dealing. Of course, having said that, I note that you do not have a serious criminal history. I’ll come back to that. Many of your referees speak of the care you have shown for other people over the years.
As I mentioned a moment ago you do not have a serious criminal history. You have two relevant prior convictions in 2007 for producing and possessing cannabis. Those two offences, together with two minor firearms offences, were dealt with by way of a fine. The drug offences cannot have been very serious.
You are now 41 and single. You grew up in a stable family in New South Wales. As a fairly young teenager you worked for your father in his panel beating and spray painting business and you became skilled at various aspects of that business. At school you were an average student but a good sportsman. Upon completing your high school certificate you began a couple of apprenticeships before settling into an apprenticeship as a refrigeration and airconditioning mechanic. Once qualified, you established your own business in that field. The business was small but apparently profitable.
As a teenager you had inherited your father’s interest in horse racing and as you grew older you became more interested and much more involved in that industry. You had shares in a number of race horses and, owing to your early success with them, you closed your air-conditioning business in 1996. You were then about 24, living in Sydney and using recreational drugs, including ecstasy and cannabis by that time. It is noteworthy that you were gambling significantly.
In 1997 you came to Adelaide where you continued your interest in racing, beginning to work as a trainer. You had other employment while here including work renovating houses. At that you have acquired some skills.
In 2002, the defendant suffered a serious ankle injury and, notwithstanding operative treatment, the injury did not properly resolve. The Court was informed that the defendant was initially taking prescribed painkillers and that when these were reduced, he developed a dependence on cannabis for pain relief. As noted above, the defence case, which was ultimately not challenged by the prosecution, was that he had used some of the cannabis that he was growing to assist in reducing an indebtedness.
The Judge proceeded on the basis that the defendant was engaged in a course of conduct involving a commercial quantity of cannabis. The Judge noted the acknowledged delivery of cannabis to reduce an outstanding indebtedness. The Judge, however, proceeded to exercise his sentencing discretion under a misunderstanding of fact. The Judge proceeded on the basis that not only was the defendant growing cannabis, but he was also buying and selling cannabis. The Director conceded that this circumstance was not the subject of dispute. We do not accept the submission of the Director that the conceded error was of no significance in terms of the sentence imposed. It is a serious matter to cultivate cannabis for personal use. On the other hand, it is plainly a more serious matter to engage in a course of conduct including the obtaining of cannabis from a third party and on-selling it. When regard is had to these factors, it appears that the Judge treated the defendant’s involvement in a course of conduct in drug dealing as involving a greater criminal culpability than in fact was the case. As a result of the error, the Judge’s sentencing discretion miscarried and the sentencing discretion falls to be exercised afresh by this Court on appeal.
Conclusion
The defendant’s offending was such as to call for an immediate term of imprisonment. We would sentence the defendant to a term of imprisonment of two years and nine months. In doing so, we, like the trial Judge, make a reduction of three months on account of the late plea of guilty. Having regard to the circumstances of the defendant’s offending and to his personal and criminal antecedents, we consider that a lower than usual non-parole period should be fixed. We fix a non-parole period of 12 months. We decline to suspend the term of imprisonment.
NICHOLSON J: I would not interfere with the Judge’s sentence and I would dismiss the appeal. Given that I am in dissent in this respect, I provide only short reasons for this conclusion.
The offending was serious. The expert evidence indicated that each of the 23 cannabis plants growing hydroponically in the grow room, if and when they reached maturity, would have produced in the order of 250g dry, usable material. In addition, there were 15 cannabis clones and the inference to be drawn is that these were intended to be a second and replacement crop. All of the 38 plants were of the more prized female gender. Plainly, efforts had been made to ensure that only female plants were included in the grow room and as clones. On the evidence before the Judge, he was right to describe the appellant’s operation as a “very sophisticated set up”.
In addition, it was not contested that some months prior to the police discovery of the 38 plants, the appellant had sent two separate parcels of cannabis to a connection interstate in order to repay or part repay a debt due to that person. This cannabis was the product or part of the product of an earlier crop. The available evidence was to the effect that each parcel contained approximately 6kg of cannabis and that the total value of the 12kg of cannabis was in the order of at least $60,000. This evidence was not challenged.
The Judge was alive to the fact of this earlier “dealing” although it may be that his Honour used somewhat loose language when referring to the history of the appellant’s “dealing”, such as it was. His Honour stated that he was to sentence the appellant against a background of his having sent cannabis interstate “on previous occasions to repay debts”. The evidence disclosed that there was only the one debt and that there were only the two parcels, albeit sent (by Australia Post) on separate occasions. His Honour also, in the context of his consideration of the character references placed before him, stated that he did not know if either of the referees “knew of your previous history in drug dealing”. Later in his Honour’s remarks he observed with reference to the interstate debt that the appellant “began sending [the acquaintance] cannabis although not cannabis grown by you, I understand, by way of repayment.”
As I say, this language may be seen to lack some specificity with potential to suggest a greater involvement in prior “dealing” or trading than can be supported by the evidence. Nevertheless, I do not read this language when considered in the context of the evidence and submissions before the sentencing Judge, as indicating that his Honour had taken the view that the appellant had a prior history of drug dealing over and above or in addition to the two packages that had been sent through the post in order to defray a debt.
Furthermore, the sentencing Judge was at pains to state (on two occasions) that he was sentencing the appellant only for the offence to which he had pleaded guilty and not for any of his earlier conduct which was before the Judge only by way of background and, presumably, went only to the question of leniency. Having identified this background, his Honour also noted that the appellant did not have a serious prior criminal record and that two convictions in 2007 for producing and possessing cannabis were dealt with by way of a fine and could not have been very serious.
In my view, this background “dealing” as identified by the Judge was a matter relevant to the sentencing discretion and the Judge was entitled to rely upon it when considering the extent of any leniency that might be granted. However, I agree with Gray J that, insofar as the Judge was of the view that the cannabis sent in the two packages had not been grown by the appellant but, by implication, had been sourced elsewhere and on-traded as it were, he was in error. Nevertheless, I am not satisfied that this error (concerning the source of the cannabis that had earlier been sent interstate) carried any particular weight for the Judge. His Honour had indicated during sentencing submissions that the source of this cannabis was of little significance given that he was not sentencing for any earlier conduct but only having regard to it as background. His Honour’s sentencing remarks do not, in my view, suggest that he took any different view at the time he came to sentence. I am not satisfied that this error caused his Honour’s sentencing discretion to miscarry.
The approach of an appellate court when determining an appeal against sentence alleged to be manifestly excessive or based on an alleged failure to properly exercise the discretion to suspend (as is the appeal in this case) is well known and need not be set out again.[2] The sentence imposed by the Judge might be regarded as severe in all of the circumstances. However, on my review of the sentencing materials before the Judge and of the Judge’s sentencing remarks I am satisfied that the head sentence, non-parole period and the refusal to suspend all were within the Judge’s discretion.
[2] House v King (1936) 55 CLR 499 at 504-505.
For these reasons I would not interfere with the Judge’s sentence. I would dismiss the appeal.