R v Hucks

Case [2016] SASCFC 92

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HUCKS

[2016] SASCFC 92

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Bampton)

26 August 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

Appeal against sentence.  Appellant pleaded guilty to trafficking in a large commercial quantity of cannabis.  Sentenced to imprisonment for five years and two months, with a non-parole period of three years.  Police searched the premises of another and found 11 vacuum sealed bags of cannabis weighing about one pound each, a vacuum sealing machine and bags to suit and $22,850.  The appellant came forward to volunteer ownership of the cannabis and vacuum sealing machine.  The sentencing Judge found that the possession of the cannabis was indicative of "a professional, commercial cannabis operation".  Whether the sentencing Judge erred in making reference to items other than the cannabis and vacuum sealing machine found at the house.  Whether the sentence was manifestly excessive.

Held (per Vanstone J, Kourakis CJ agreeing, Bampton J dissenting):  Appeal dismissed.  The sentencing Judge did not fall into error in referring to the items found by police at the house.  The sentence was at the higher end of the available range but not manifestly excessive.

Controlled Substances Act 1984 (SA) s 32(1); Criminal Law (Sentencing) Act 1988 (SA) s 10B, referred to.
R v Faehrmann, Moore and Price-Austin (2014) 118 SASR 549; R v Mema [2011] SASCFC 56; R v Morse (1979) 23 SASR 98; R v Mustac (2013) 115 SASR 461; R v Simpson [2016] SASCFC 83, considered.

R v HUCKS
[2016] SASCFC 92

Court of Criminal Appeal:       Kourakis CJ, Vanstone and Bampton JJ

  1. KOURAKIS CJ:                 I would dismiss the appeal for the reasons given by Vanstone J.

  2. VANSTONE J:     The appellant pleaded guilty in the District Court to trafficking in a large commercial quantity of cannabis.  He was sentenced to imprisonment for five years and two months, with a non-parole period of three years.

  3. He now appeals against that sentence, arguing that the sentencing Judge erred in making reference to items other than the cannabis and vacuum sealing machine of which the appellant acknowledged ownership, and also that the sentence is manifestly excessive.

    Background

  4. On 17 September 2014, at about 10 am, police attended at a property at Gawler South in order to conduct an authorised search for firearms.  The property was owned by a Mr Wakefield.  He was present at the house.  During the time the search was undertaken, Wakefield indicated to police a desk drawer in a study, from which he took a bag containing $22,850 in cash.  In the dining room of the home, police located a hard‑shelled silver suitcase containing 11 vacuum sealed bags of cannabis packaged in one pound lots…

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R v Hucks [2016] SASCFC 92
Case
[2016] SASCFC 92
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, Mr Hucks, for trafficking in a large commercial quantity of cannabis. The appellant had pleaded guilty to the charge after initially claiming ownership of the cannabis, vacuum sealing machine, and associated bags found at a property owned by Mr Wakefield. The appellant argued that the sentencing judge erred by referring to items other than those he admitted owning, and that the sentence was manifestly excessive. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The legal issues before the court were whether the sentencing judge had erred in considering items found at the property, such as cash and other indicia of wealth, when determining the sentence, and whether the imposed sentence was so excessive as to warrant appellate intervention. The appellant contended that the judge should have confined his considerations solely to the cannabis and vacuum sealing equipment, which he admitted were his.

The Full Court, in a majority decision, dismissed the appeal. Vanstone J, with whom Kourakis CJ agreed, found that the sentencing judge had not erred in referring to the other items found at the property, as these were objective facts that provided relevant background. While the judge did not rely on unexplained wealth in concluding the appellant was involved in a commercial operation, Vanstone J noted that the judge was entitled to consider the large quantity of cash found at the premises, even though the appellant disclaimed ownership, as large amounts of cash are often associated with drug trafficking. Furthermore, the judge was entitled to draw inferences from the appellant's failure to provide a plausible explanation for the source, value, or intended use of the cannabis. Regarding the excessiveness of the sentence, Vanstone J acknowledged that it was at the upper end of the available range but concluded it was not manifestly excessive.

However, Bampton J dissented, agreeing that the first ground of appeal was not made out but finding the sentence to be manifestly excessive. Bampton J noted a procedural error by the sentencing judge in allowing a discount for the guilty plea greater than permitted by the *Criminal Law (Sentencing) Act 1988* (SA). Bampton J concluded that the sentence was disproportionately severe when compared to sentences imposed for similar offences, particularly in light of the quantity of cannabis, the appellant's personal circumstances, and the absence of aggravating factors such as a prior drug offending history or supplying to vulnerable persons. Despite the majority decision to dismiss the appeal, Bampton J would have interfered with the sentence.

Orders

Orders of the court

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Background

Background to the litigation

He now appeals against that sentence, arguing that the sentencing Judge erred in making reference to items other than the cannabis and vacuum sealing machine of which the appellant acknowledged ownership, and also that the sentence is manifestly excessive.Background On 17 September 2014, at about 10 am, police attended at a property at Gawler South in order to conduct an authorised search for firearms. The property was owned by a Mr Wakefield. He was present at the house. During the time the search was undertaken, Wakefield indicated to police a desk drawer in a study, from which he took a bag containing $22,850 in cash. In the dining room of the home, police located a hard‑shelled silver suitcase containing 11 vacuum sealed bags of cannabis packaged in one pound lots and weighing, in total, 4.39 kilograms. In the living room police found two cardboard boxes, one containing a vacuum sealing machine, or cryovac machine, and the other, bags to suit it. Wakefield was charged with trafficking in a commercial quantity of cannabis and unlawful possession of the cash. Some time before 10 December 2014, someone caused to be forwarded to the Director of Public Prosecutions a statutory declaration made by the appellant in which he declared that the quantity of cannabis sealed in the bags within the suitcase and the vacuum sealing machine, were his property. He said that at an earlier time, when he was staying at Wakefield’s house for a week, he had left these things there without telling him. He said he felt responsible for Wakefield’s position, since Wakefield had been unaware of the contents of the suitcase at the time of the police search. On 13 January 2015, police met the appellant by prior arrangement at the Elizabeth Police Station and conducted an interview with him. In that interview, he confirmed that the suitcase and its contents and the vacuum sealing machine were his, denied that he left any money at the house and, generally, referred police to the statutory declaration in relation to other matters. He, too, was arrested for trafficking in a large commercial quantity of cannabis. The appellant appeared in the District Court in relation to this matter on 21 September 2015 and again on 28 September 2015. On those occasions, he entered no plea. However, on 6 October 2015, he pleaded guilty to the trafficking charge and a nolle prosequi was entered in relation to a second charge on the Information. Submissions in relation to sentence were not made until 4 December 2015. The position taken by the appellant on that day, through his counsel, was that he declined to give any information about the source of the cannabis or the vacuum sealing machine but said that he would sometimes give cannabis to persons with whom he stayed overnight in recognition of the favour. The sentencing Judge repeatedly asked for more information about the appellant’s possession of the cannabis, but counsel advised that the appellant did not want to go beyond the statutory declaration and did not wish to give evidence. The Judge warned that he was inclined to regard the appellant as “at least a middle man” in terms of his role in a cannabis trading enterprise. Counsel put to the Judge that there was no evidence of the appellant benefiting greatly from his involvement in cannabis, nor any “unexplained wealth”. He emphasised that it was only because the appellant had confessed his ownership of the cannabis that he was brought before the courts.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not consider that the sentence was manifestly excessive. Conclusion For the reasons given, I would dismiss the appeal. BAMPTON J: I agree with Vanstone J’s summary of the background facts, the arguments on appeal, and the sentencing Judge’s reasons. I agree that ground 1 is not made out. However, I differ from her Honour’s conclusion that the sentence is not so high as to warrant interference. At the outset I note that, whilst it is it is extremely unlikely the parties would seek to appeal such an error, the Judge, contrary to s 10B of the Criminal Law (Sentencing) Act 1988 (SA), made an allowance greater than 20 per cent on account of the appellant’s guilty plea. As the Court in R v Simpson[1] noted, it is an error to allow a discount greater than that permitted by the relevant legislation and sentencing judges should take care to avoid making the error”.[1] [2016] SASCFC 83 at [14]. In my view, the sentence is manifestly excessive having regard to the maximum penalty, the standards of sentence ordinarily imposed for trafficking offences, the seriousness of the offence committed by the appellant when compared to other like offending and his personal circumstances.[2][2] R v Morse (1979) 23 SASR 98. As observed by the Court in R v Faehrmann, Moore and Price-Austin,[3] caution must be “exercised when considering sentencing outcomes in other cases as reviewed by an appellate court as part of its consideration of manifest excess or inadequacy. Nevertheless, sentences in other matters can provide guidance as to whether a particular sentence is manifestly excessive or manifestly inadequate”.[3] (2014) 118 SASR 549 at [39]. I agree with the appellant’s submission that the review of South Australian cases conducted in Faehrmann reveals that the sentence imposed in this matter is so severe as to be manifestly excessive. In my view, a sentence of this kind is imposed for comparatively more serious breaches of the Controlled Substances Act 1984 (SA) (the CSA). In particular, sentences of this severity have been imposed where:·larger quantities of cannabis have been seized involving more than one cannabis related offence against the CSA;[4]·larger quantities of cannabis are involved and the offender has a history of similar serious drug offending;[5]·the offending involved multiple counts of trafficking in cannabis including a large commercial quantity with the “seriously aggravating feature” of supplying the drug to disadvantaged peoples.[6][4] R v Mema [2011] SASCFC 56.[5] R v Mustac (2013) 115 SASR 461.[6] R v Faehrmann, Moore and Price-Austin (2014) 118 SASR 549. At arraignment, the prosecutor told the Judge that this was an unusual matter in that Mr Wakefield was initially charged with the cannabis that was located on his property. The prosecutor explained that the appellant “was only linked to this matter when Mr Hucks himself attended at the police station and subjected himself to an interview where he claimed responsibility for the cannabis”.

Ratio Decidendi

Legal Principle Established

Mr Allen accepted that there is no tariff for the offending under consideration but argued that, having regard to the penalties imposed in these and other cases, it could be seen that the appellant’s sentence fell outside the available range. Mr Allen referred to the appellant’s personal circumstances. At the time of the offending he was 30 years of age and was effectively of good character. He has family support. He has a good work history in positions of various kinds. It was submitted that the Court should have adopted a more merciful approach, first in relation to the head sentence, but, if not there, then certainly in fixing the non‑parole period, which amounted to a bit under 60 per cent of the head sentence.Consideration In my view, ground 1 is not made out. I do not accept that the sentencing Judge fell into error in referring to the items which were found by police at Wakefield’s house. The first point is that the Judge’s reference was only to the fact that police located cash, the vacuum sealing machine and bags, and a number of items indicating unexplained wealth. That observation went to objective facts, and there can be no complaint about that. The Judge specifically said that he had referred to “those other aspects” by way of background to the acknowledged possession of cannabis and the machine. Then, in drawing the conclusion that the appellant’s possession of cannabis was indicative of a professional, commercial cannabis operation, the Judge did not rely on those items of unexplained wealth. In my opinion, the Judge could have placed weight on the finding of the large quantity of cash at the premises, even though the appellant disclaimed connection with it. Large amounts of cash are typically found in association with significant quantities of drugs. However, it appears from his remarks that his Honour did not. In drawing the conclusion he did, the Judge was entitled to bear in mind that the appellant had not chosen to give any plausible explanation about the source of the cannabis, what it was worth, or what was intended to be done with it. True it is that he was not obliged to do so. But, having determined not to, he could hardly complain that the Judge drew inferences available to him from the objective facts of the matter. In summary, the appellant’s acknowledged possession of the packaged cannabis and the vacuum sealing machine and spare bags, drew colour from the situation in which they were found at Wakefield’s house, and also, in the absence of any explanation, from the large quantity of cash also found there. A consideration of the arguments underpinning ground 2 – that the sentence was manifestly excessive – is more difficult. As Mr Allen acknowledged, there is no tariff for trafficking offences. Each one must be considered in light of its own facts and the personal circumstances of the offender. The cases to which Mr Allen took us tend to demonstrate that the sentence imposed in this case is at the upper end of the available range of sentences for offending of its type. A sentence of five years and two months’ imprisonment would seem to be a fairly severe sentence for one count involving possession of cannabis of this quantity.