R v Hill - [2005] SASC 380

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v HILL
Judgment of The Court of Criminal Appeal
(The Honourable Justice Besanko, The Honourable Justice Vanstone and The Honourable Justice Layton)
30 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
Appeal against sentence - producing eight cannabis plants and possessing cannabis for sale - sentence of imprisonment for 2 years with non-parole period of 1 year - whether error in sentencing process - whether sentence manifestly excessive - appeal allowed - appellant sentenced afresh to 15 months imprisonment less time spent in custody and sentence suspended.
Controlled Substances Act 1984, s 32; Criminal Law (Sentencing) Act 1988, s 18A, s 38, referred to.
R v Mangelsdorf (1995) 66 SASR 60; Leung v The Queen (1999) 105 A Crim R 398, discussed.
R v Scali (1986) 40 SASR 597; R v Gjoka (Unreported, Court of Criminal Appeal (SA), 1 July 1997, No S6211), considered.

R v HILL
[2005] SASC 380
Court of Criminal Appeal: Besanko, Vanstone and Layton JJ

BESANKO J This is an appeal against sentence. The appellant pleaded guilty to two offences under the Controlled Substances Act 1984 (“CSA”). The first was the offence of producing cannabis contrary to s 32(1)(a) of the CSA, and the second was the offence of possessing cannabis for sale, contrary to s 32(1)(e) of the CSA.
The offence of producing cannabis was committed by the appellant between 1 December 2003 and 17 February 2004, and the offence of possessing cannabis for sale was committed on 17 February 2004. At those times the appellant and his partner lived in Stockport, South Australia, and the cannabis was grown in a coolroom at the rear of the property. The sentencing judge referred to the equipment in the coolroom as “elaborate”.
The quantity of cannabis in the offence of producing cannabis was eight mature cannabis plants under hydroponic cultivation, and the quantity of cannabis involved in the offence of possessing cannabis for sale was 7,586 grams, including 5,526 grams of female material. It was common ground before the sentencing judge that the dry weight of the cannabis was in the vicinity of 1.5 to 2 kilograms. The value in the marketplace of 1 pound of flowering head is between $2,200 and $3,500. It seems to have been common ground that if sold in bulk, the value of the dry cannabis was between approximately $7,000 and $15,000.
Having regard to those quantities, the penalty for the offence of producing cannabis is a fine not exceeding $2,000 or imprisonment for two years or both, and for the offence of possessing cannabis for sale it is a fine not exceeding $50,000 or imprisonment for 10 years or both.
There was a dispute between the parties as to whether the appellant’s purpose in growing the crop and possessing the cannabis for sale was for…

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 Hill

Details

AGLC: R v Hill [2005] SASC 380
Case: [2005] SASC 380
Decision Date: 30 September 2005

CaseChat Overview and Summary

The case of R v Hill involves an appeal against the sentence imposed on Darren Edward Hill by the District Court for producing cannabis and possessing cannabis for sale. The appeal focused on the severity of the sentence, which was two years of imprisonment with a non-parole period of twelve months. Hill argued that the sentencing process contained errors and that the sentence was excessively harsh, warranting suspension. The court found that the offences were committed at Hill's residence in Stockport, where police discovered eight cannabis plants being grown hydroponically in a shed, along with loose cannabis material drying on racks. The total quantity of cannabis, if fully dried, would have amounted to approximately 1.5 to 2 kilograms, valued at around $6,600 if sold in pound lots. The court acknowledged the potential for anomalies in the application of penalty ranges under the Controlled Substances Act 1984, particularly regarding the stage of the production or drying process at the time of detection.

The legal issues before the court included whether there were errors in the sentencing process and if the sentence was manifestly excessive. The court considered the circumstances of the offence, including the stage of the cannabis production at the time of detection, and the fact that some of the cannabis was for the appellant's personal use. The court referenced previous cases such as Leung v R and R v Scali, which discussed the application of the presumption regarding the purpose of possessing more than prescribed amounts of drugs and the importance of the stage of production in determining penalties. The court also noted Hill's previous convictions related to cannabis possession and consumption equipment, which had resulted in fines. The appeal was allowed based on these considerations, and the sentence was set aside.

The court found that the sentence imposed was too harsh given the circumstances of the case. The court allowed the appeal, set aside the original sentence, and imposed a new sentence of one year and eight months imprisonment with a non-parole period of eight months. The sentence was suspended upon Hill entering into a bond of $500 to be of good behaviour for two years. The court reasoned that the original sentence was excessive, taking into account the relatively small scale of the operation and the fact that some of the cannabis was for personal use. The court concluded that there was good reason to suspend the sentence due to these mitigating factors.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BESANKO J

If the matters I have just identified are coupled with the fact that this was by no means a large operation, I think good reason exists for suspending the sentence.Conclusion I would allow the appeal and set aside the sentence imposed by the sentencing judge. I would impose a head sentence of one year and eight months and a non-parole period of eight months. I would suspend the sentence upon the appellant entering into a bond in the sum of $500 to be of good behaviour for two years. VANSTONE J: Darren Edward Hill appeals against a sentence imposed in the District Court for producing cannabis and possessing cannabis for sale. That sentence was imprisonment for two years, with a non-parole period of twelve months. He asserts that the sentencing process was marked by error and, that in any event, the sentence imposed was manifestly excessive and that it should have been suspended. The offences took place at the appellant’s home at Stockport. When police attended there they found eight cannabis plants growing hydroponically in a small shed near to the house. Also found was loose cannabis material drying on racks, plainly harvested from the plants. It was an agreed fact before the sentencing Judge that if allowed to continue drying, the quantity would have reduced from 7.5 kilograms to between 1.5 and 2. It was further agreed that 1.5 kilograms would be worth about $6,600 if sold in pound lots. The maximum penalty for the producing offence is $2,000 and imprisonment for two years. For the possession for sale offence the same penalty tier applies to amounts of cannabis less than two kilograms. Where the amount of cannabis is more than two kilograms, but less than ten kilograms, the maximum penalty is $50,000 and imprisonment for ten years. That is the applicable maximum here, notwithstanding the prosecutor’s concession. But the concession still has significance. In Leung v R (1999) 105 A Crim R 398 Doyle CJ, speaking for the Court of Criminal Appeal, discussed the anomalies which can occur in application of the penalty ranges provided under the Act depending upon such matters as how far advanced are the processes of production or drying at the time of detection. In that case the Chief Justice made allowances, in reviewing the sentence, for the fact that the cannabis seized had come from a number of plants which would only have attracted the lowest penalty range, even though its weight when harvested placed the offence in the second tier. He further noted, without criticism, that the sentencing judge had taken into account that the cannabis seized was green and would have lost perhaps three-quarters of its weight when dry. I think that to be an important factor in this case. The presumption relating to the purpose for which more than prescribed amounts of drugs of dependence or prohibited substances are possessed (s 32(3) Controlled Substances Act 1984) applies as much at the sentencing stage as it does at trial: R v Scali (1986) 40 SASR 597. However upon the appellant’s plea, the prosecutor confirmed that it was accepted that some part of the cannabis was for the appellant’s own use. Indeed it is plain from the appellant’s record that he had previously been convicted of a number of offences relating to possession of cannabis and equipment for consuming it. Those matters attracted fines.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

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