R v Hucks - [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

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Vanstone J.
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.
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.
The maximum penalty for the offence to which he pleaded guilty is a fine of $500,000 or imprisonment for life, or both: s 32(1) of the Controlled Substances Act 1984 (SA). A large commercial quantity of cannabis is two kilograms or more. The appellant was entitled to a discount of up to 20 per cent on account of his timely plea of guilty. At the time of the appellant’s sentence, Wakefield remained at large.
In sentencing, the Judge referred to the suitcase and its contents and to the evidence that each of the 11 bags might have been worth from $2000 to $3200. He then said:
Police also located a number of other items of evidence around the house, which together were also suggestive of commercial trafficking such as significant amounts of cash, cryovac bags, a vacuum bag sealing machine, supplies of empty vacuum bags, and a number of items indicating unexplained wealth.
Your associate was initially charged and you subsequently attended police to indicate the seized cannabis was owned by you and that you were keeping it at the premises concerned.
Whilst I have mentioned those other aspects by way of background in relation to your possession, your counsel has submitted that you owned the cannabis concerned, and a cryovac bag sealing machine. I should say the liability of your associate is yet to be determined at trial.
In using the term unexplained wealth, presumably the Judge was referring to some evidence of recent substantial payments by Wakefield, including for some new household purchases and possibly to two Harley Davidson motorcycles and a Nissan Navara utility, a Ford utility and a Mazda 6 sedan parked outside the house. These were referred to in statements of police officers who attended at Wakefield’s house. The Judge went on to say that the possession of the cannabis was strongly indicative of “a professional, commercial cannabis operation”. He said that “the drug in that format, value and quantity” was simply not compatible with the appellant’s submission that he had the cannabis only to barter in small amounts for accommodation and the like.
Having referred to the fact that the appellant had come forward and to some personal matters which reflected well on him, the Judge took a starting point of six years and six months’ imprisonment and then discounted that by 20 per cent to five years and two months. He imposed that sentence, with a non-parole period of three years. The sentence commenced on that day, being 15 December 2015.
Arguments on appeal
Mr A Allen, who appeared upon the appeal for the appellant, contends that, in sentencing, the Judge wrongly took into account the cash and items indicating unexplained wealth. The appellant submits that there was no evidence linking the appellant to the cash or other items and that, these being found in Wakefield’s house, the obvious inference was that they were his. As mentioned, the appellant was not at the property at the time of the search and there was nothing about any of the property to link him with it. It is submitted that, despite the lack of connection with the appellant, the cash and other items inevitably had the effect of aggravating the offending. It is put that those items had no demonstrated relevance to the appellant.
The appellant also argues that, viewed objectively, the sentence is manifestly excessive, being outside the range of sentences available for offending of its type. In particular, counsel emphasises that the appellant had no relevant prior offences, that he had a good work history, a supportive family and was a single man of 30 years of age in good health. It is suggested that all these matters should have been reflected in the sentence and non-parole period.
Counsel referred to several decisions in this Court where sentences for offending of a similar nature were subject to appeal.
The first of those was R v Mema [2011] SASCFC 56. There, the appellant, Mema, had pleaded guilty to two counts of trafficking in a large commercial quantity of cannabis. The first count involved the appellant sourcing and packing 15 kilograms of cannabis, worth between $85,000 and $115,000. He loaded it into a vehicle which was then driven by two other men towards Sydney. Count 2 involved the appellant and the ringleader of the group. That person had sourced about seven kilograms of cannabis worth about $50,000 and packaged it ready for transport. The appellant helped the ringleader and another hide the vacuum sealed bags within a load of potting mulch ready for transport. Mema was described by the trial Judge as a “worker” and “a patsy”. His involvement was found to be significant and ongoing. Mema was 40 years of age and effectively a first offender. He had a positive work history. Financial pressures which he was facing had been precipitated by a work injury. A single sentence of six years’ imprisonment with a non-parole period of three years was found by this Court to be “a moderate sentence for offending of this nature”.
In R v Mustac (2013) 115 SASR 461, this Court considered a sentence imposed after a plea of guilty in the District Court to one count of trafficking in a large commercial quantity of cannabis. The plea was entered on the day Mustac’s trial was to proceed. A head sentence of three years’ imprisonment with a non‑parole period of 12 months was fixed. The Director of Public Prosecutions appealed against that sentence. The quantity of cannabis in Mustac’s possession was about 21 kilograms, said to have a value between $141,000 and $188,000. Mustac was caught transporting the cannabis on the South-Eastern Freeway. Mustac had a prior conviction in 2007 for supplying a commercial quantity of cannabis, the quantity there being about 14 kilograms. He served a term of imprisonment for that offence. This Court set aside the sentence and in its place imposed one of seven years and six months’ imprisonment, with a non-parole period of five years.
In R v Faehrmann; R v Moore; R v Price-Austin (2014) 118 SASR 549, this Court dealt with several appellants who were involved in an operation to source cannabis in and around Adelaide and sell it in the APY Lands, using a house at Mintabie, of which the defendant Price-Austin was the manager. The role of Price-Austin was to store the cannabis at Mintabie and to deliver it to the supply house. He pleaded guilty to two counts of trafficking and one count of trafficking in a large commercial quantity. These counts were to represent his involvement in the operation over five months. He had apparently received a fixed remuneration of $1500 for each four pound lot that he handled. This Court allowed his appeal and reduced his sentence from six years and nine months’ imprisonment with a non‑parole period of four years and five months to four years and 10 months with a non-parole period of two years and 11 months.
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.
However, other circumstances told against the appellant. For a start, the Judge found, as he was entitled to, that the appellant’s role – whatever exactly it was – was played in the context of a “professional, commercial cannabis operation”. The Judge was not bound to take the view that the appellant’s role in that operation was a menial one. The objective facts were silent as to the precise role, but the Judge was not obliged to assume the least role. Moreover, it appeared from those facts that this was indeed an operation which was well established and continuing. Although the appellant had volunteered his involvement to police, there was no real indication that this was done as a result of contrition. Furthermore, the position taken before the sentencing Judge did not indicate any remorse. The Judge was entitled to see the position the appellant took in a poor light. It might be that the appellant was fortunate to receive the maximum allowable discount of 20 per cent in recognition of his plea.
The appeal is against the sentence imposed and not against the so-called starting point determined upon by the Judge. In all the circumstances, I consider that the sentence was at the higher end of the available range. However, I cannot say that it was beyond that range.
In terms of the non-parole period, it is true that a proportion of the head sentence of about 58 per cent was a high one in view of the appellant’s plea of guilty and relatively good record. Again, though, having regard to the entirety of the circumstances, I cannot say that a non-parole period at that level was outside the Judge’s discretion.
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”.
During sentencing submissions, defence counsel submitted that “before the appellant approached the police, there was not a shred of evidence linking him to the cannabis”. In response, the Judge said, “He’ll certainly get credit for that. Also he will get the statutory maximum discount”.
The Judge did not accept the appellant’s submission that he had the cannabis for “small bartering purposes” and characterised him as a middleman involved in a commercial operation.
The Judge did, however, accept that the appellant wanted to plead guilty at the earliest opportunity. The Judge referred to the appellant “intending to plead guilty from the outset, that advice should have been given”. In this regard, the Judge made reference to lawyers adopting a historical attitude wanting to investigate a defence rather than advising clients of the option to plead guilty at the outset to obtain the benefit of an increased discount. The Judge said:
Unfortunately, that’s a relatively common occurrence but I will take into account that even though he only qualifies for the 20% now, … but I will also take into account in a general way that he wanted to plead guilty from the outset and, indeed, he walked into a police station and volunteered that and he will get significant credit for that.
Further, the Judge stated:
So it’s unfortunate and certainly it’s not Mr Hucks’s fault personally, but the regime is as it is and I have to apply it. But I will take into account his very early provision of the statutory declaration and his admissions to police and the fact that he volunteered himself.
In his sentencing remarks, the Judge said, “You are entitled to and will receive credit for coming forward to admit your involvement, and you are entitled to a statutory 20 percent discount for the timing of your plea of guilty”.
Neither the starting point of six years and six months, nor the non-parole period of three years, reflect the credit the Judge intimated he would give the appellant for walking into a police station and volunteering his ownership of the cannabis. Nor do they reflect the criminality of the appellant’s conduct, his lack of prior drug offending, his personal circumstances or his prospects of rehabilitation.
I would allow the appeal and set aside the sentence of five years and two months.
The sentence I consider reflects the serious nature of the offending and the appellant’s personal circumstances is a head sentence of five years reduced by 20 per cent on account of the guilty plea to four years’ imprisonment. The non‑parole period I would fix to meet the punitive, protective and rehabilitative purposes of punishment is two years. I would backdate the sentence to 15 December 2015 when the appellant was taken into custody.