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 92Court 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…
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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.