R v Hosking

Case [2017] SASCFC 50

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HOSKING

[2017] SASCFC 50

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Parker)

18 May 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION

Appeal against sentence.

The appellant pleaded guilty to cultivating a commercial quantity of cannabis plants for sale, possessing prescribed equipment and interfering with an electricity meter. He was sentenced by a District Court Judge to imprisonment for two years and 10 months with a non-parole period of one year and five months. The Judge declined to suspend the sentence or order that it be served on home detention.

The appellant appeals against the sentence on the grounds that the Judge erred in not suspending the sentence of imprisonment or alternatively not ordering that it be served on home detention. 

At the hearing of the appeal, the Court ordered a home detention report. That report disclosed that the appellant’s personal circumstances were markedly different from those represented to the Court at the hearing of the appeal and in addition that the defendant admitted when taken into custody on being sentenced that he smoked cannabis daily.

Held:

1.  The appellant has not demonstrated error in the exercise of the discretion not to suspend the sentence (at [4] per Vanstone J, [69] per Blue J and [88] per Parker J).

2.  The Judge may have fallen into error in considering whether the sentence should be served on home detention.  However, given the matters disclosed in the home detention report, the appellant is not a “suitable person” and in any event the discretion should be exercised against ordering that he serve his sentence on home detention (at [11]-[17] per Vanstone J, [78]-[86] per Blue J and [93]-[94] per Parker J).

3.  Appeal dismissed.

Controlled Substances Act 1984 (SA) s 33B, s 33LA; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 11, s 18A, s 32, s 33BB, s 33BC, s 33BD, s 38; Electricity Act 1996 (SA) s 85, referred to.
Elliott v Harris (No 2) (1976) 13 SASR 516; House v The King (1936) 55 CLR 499; R v Dell (2016) 126 SASR 571; R v Filipponi [2016] SASCFC 148, discussed.
Dinsdale v The Queen (2000) 202 CLR 321; Director of Public Prosecutions v Sheehy [2012] SASC 152; Jarrett v R (1992) 58 SASR 457; Markarian v The Queen (2005) 228 CLR 357; Meeuwsen v Police [2003] SASC 306; Muldrock v The Queen (2011) 244 CLR 120; R v B, J [2008] SASC 67; R v Baker [2005] SASC 389; R v Creed (1985) 37 SASR 566; R v Doecke (1999)…

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R v Hosking [2017] SASCFC 50
Case
[2017] SASCFC 50
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CaseChat Overview and Summary

The appeal concerned Matthew Hosking, who pleaded guilty in the District Court to cultivating a commercial quantity of cannabis, possessing related equipment, and interfering with an electricity meter. The sentencing judge imposed a sentence of imprisonment for two years and ten months, with a non-parole period of one year and five months, declining to suspend the sentence or order it be served by way of home detention. Hosking appealed this sentence, arguing the judge erred in not suspending the imprisonment or, alternatively, not ordering home detention.

The legal issues before the appellate court were whether the sentencing judge had erred in refusing to suspend Hosking's sentence of imprisonment and, alternatively, whether the judge had erred in failing to order that the sentence be served on home detention. This involved considering the relevant provisions of the *Criminal Law (Sentencing) Act 1988* (SA) concerning both suspended sentences and home detention orders, and whether the specific circumstances of Hosking's offending and personal background warranted such alternative sentencing options.

The court acknowledged that while the sentencing judge's brief remarks on home detention raised some misgivings, particularly regarding the appellant's apparent suitability under section 33BB(1)(c) of the *Controlled Substances Act 1984* (SA) and the lack of a detailed assessment, the ultimate decision to impose a custodial sentence was considered plainly correct. The court noted that the seriousness of the offences and the need for deterrence were significant factors. Despite the potential for error in the assessment of the home detention application, the court found no utility in further consideration given the correctness of the final order.

Consequently, the appeal against sentence was dismissed.

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

Even assuming there were an error of approach by the Judge, the order he made was plainly correct. In these circumstances there is no utility in considering the matter further.Conclusion For these reasons I would dismiss the appeal. BLUE J: This is an appeal against sentence. The appellant, Matthew Hosking, pleaded guilty in the District Court to cultivating a commercial quantity of cannabis plants intending to sell their products,[1] possessing prescribed equipment[2] and interfering with an electricity meter[3] committed on 6 August 2015.[1] Controlled Substances Act 1984 (SA) section 33B(2).[2] Controlled Substances Act 1984 (SA) section 33LA(a).[3] Electricity Act 1996 (SA) section 85(1)(b). The appellant was sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) to imprisonment for two years and ten months, with a non-parole period of one year and five months. The Judge declined to suspend the sentence or order that it be served on home detention. The appellant appeals against the sentence on the grounds that the Judge erred in not suspending the sentence of imprisonment or alternatively in not ordering that it be served on home detention.The offending On 6 August 2015 police officers attended at the house of the appellant and his partner. They entered a shed at the rear of the house which had been divided into two rooms and an entranceway. In one room, they found ten mature cannabis plants with heights of between 50 and 100 centimetres and in the other room they found ten semi-mature cannabis plants with heights of up to 40 centimetres (count 1).[4] They found 17 electrical transformers and 14 lampshades and globes between the two rooms and a carbon filter in each room (count 2). They found that an electric cable had been connected to the main electrical switchboard, bypassing the meter and supplying electricity to the electrical transformers in the rear shed (count 3).[4] The police also found 14 juvenile cannabis plants in the entranceway. The Judge accepted after a disputed fact hearing that these plants were for a friend of the appellant, were not cultivated for sale and could be disregarded.Personal circumstances The appellant was born in 1986 and was 30 years old when sentenced. His childhood was adversely affected by traumatic domestic violence perpetrated on his mother and bullying at school perpetrated on him due to his dyslexia. He completed schooling up to year 9. He completed an apprenticeship in wall and ceiling lining at the age of 20 and worked in the building industry since then. In 2009 the appellant and his partner C purchased the family home with a mortgage of approximately $300,000. In December 2011 their daughter was born. In October 2013 the appellant suffered a back injury at work. He commenced receiving payments of weekly income maintenance from WorkCover. Before May 2014 the appellant’s general practitioner had diagnosed him as suffering from depression and had prescribed Sertraline. In May 2014 she referred him to Rosalie Whitelock, a psychologist specialising in workers’ compensation matters. Ms Whitelock considered that he was suffering from a Major Depressive Disorder, Chronic Pain Disorder and Adjustment Disorder with Anxiety. Ms Whitelock later considered that he was also suffering from Post-Traumatic Stress Disorder as a result of a home invasion by criminals when he was a child. He attended on Ms Whitelock for counselling and cognitive behavioural therapy on a fortnightly basis.

Ratio Decidendi

Legal Principle Established

I do not take the reasons of the Chief Justice in Filipponi or the reasons of Doyle J in Dell to suggest that in every case there will need to be a determination of whether a person is suitable for a Division 3A disposition. Where Doyle J spoke of the first and second stages of the enquiry, I do not take his Honour to dictate a sequence in which the relevant factors must be addressed. Rather, I consider he was making the point that they are separate matters for consideration and each must be addressed before a home detention order is made. Indeed, at [65] Doyle J found no error in the Judge not having expressed a conclusion about the appellant’s suitability for home detention, having found that it was not appropriate. Consideration In the present case the possibility of a home detention order needed to be considered. Having regard to the appellant’s age, prior good record, personal circumstances as put to the Court and his early pleas of guilty he appeared to be a suitable person to serve the sentence on home detention: s 33BB(1)(c). There were no other prescribed matters which precluded such an order. Counsel who appeared for the appellant before the sentencing Judge sought such an order as an alternative to suspension under Part 5 of the Act. No report on the suitability of the proposed residence was sought. The Judge dealt with the question of suspension under both Part 5 and Part 3, Division 3A in the same sentence of his remarks. He said:Your crimes are so serious and the need to deter others is so significant that good reason to suspend your sentence cannot be found to exist and, for the same reasons, you are unsuitable for home detention and a home detention order cannot properly be made in your case.I have some misgivings arising from this brief statement. First, as I have said, I consider that the appellant appeared to be a “suitable person” in terms of s 33BB(1)(c) and the narrow enquiry referred to by Doyle J as the first stage. Secondly, although in many cases the same reasons will militate against suspension of any kind, here the issue seemed to be more finely balanced. Having regard to the fact that a home detention order is a new tool in the armoury of the sentencing judges, involving new issues of statutory construction, and bearing in mind the brevity of the Judge’s remarks and his, perhaps, surprising reference to the appellant’s unsuitability for home detention, it is conceivable that the Judge fell into error in assessing the appellant’s claims for a home detention order. The range of factors personal to the appellant which were put to the Judge and to this Court as indicating the appropriateness of the appellant for such an order has been mentioned in general terms already. It appeared from submissions put before the Court that suffering a work injury led to the appellant receiving a reduced income, and to depression, and these events led him to attempt to restore the family finances by growing cannabis. It was put that because he and his partner have two young children, his partner could not go out to work, as she was previously. It was said that if he were able to serve his sentence in their house, the appellant could look after the children and his partner could resume working. It was said there was a danger that they would lose their house if there were not the additional income her employment could provide.