R v Jones

[2011] SASCFC 97

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v JONES

[2011] SASCFC 97

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Peek)

26 August 2011

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - POSSESSION FOR SALE OR SUPPLY - GENERALLY

ENERGY AND RESOURCES - ELECTRICITY - OFFENCES

Appeal against sentence – appellant pleaded guilty to four counts of taking part in production of cannabis, one count of possessing cannabis for sale, one count of cultivating controlled plants for sale and one count of interfering with an electricity meter – sentencing Judge notionally started with head sentence of 14 years before making reductions – whether starting point was manifestly excessive.

Held: Appeal dismissed – criminal enterprise was extensive and sophisticated – appellant continued to offend whilst on bail – starting point of 14 years properly reflected these factors.

Criminal Law (Sentencing) Act 1988 (SA) s 18A; Controlled Substances Act 1984 (SA) s 32(1), s 33B(2); Electricity Act 1966 (SA) s 85(1)(b), referred to.

R v JONES
[2011] SASCFC 97

Court of Criminal Appeal: Doyle CJ, David and Peek JJ

1. DOYLE CJ:          I would dismiss the appeal against sentence.  I agree with the reasons given by David J.

2. DAVID J:              The appellant pleaded guilty in the District Court to four counts of taking part in the production of cannabis, one count of possessing cannabis for sale, one count of cultivating controlled plants for sale, and one count of interfering with an electricity meter.

3. The charges related to the appellant’s involvement in five different properties between March 2007 and August 2009. The sentencing Judge imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”) of seven years and eight months imprisonment. He set a non-parole period of three years and five months.

4. The sentencing Judge arrived at his final sentence by notionally starting with a head sentence of 14 years.  He reduced that to eight years and six months to allow for the appellant’s pleas of guilty.  He then set a notional non-parole period of four years and six months.  He then reduced both the head sentence and the non-parole period by 10 months to allow for a period of seven months and 10 days which had already been served on remand in custody and for a period of about one year which the appellant had spent on home detention bail.

5. The appellant pleaded guilty at a late stage after negotiations between his legal advisors and the Director of Public Prosecutions (“the DPP’) which resulted in a number of the counts on the Information being discontinued.  Nevertheless, the sentencing Judge gave a reduction of about 40 per cent of the head sentence to allow for the appellant’s pleas of guilty and co-operation.  Understandably, there is no complaint by the appellant in relation to that reduction.  The appellant now argues that the reductions were appropriate, but the starting point of 14 years imprisonment was manifestly excessive.

   The charges

6. On two separate Informations the appellant pleaded guilty to seven charges.

   Information dated 12 October 2009 (“the 2009 Information”)

7. I set out the relevant parts of the 2009 Information:

   Fifth Count

   Statement of Offence

   Taking Part in the Production of a Prohibited Substance. (Section 32(1)(b) of the Controlled Substances Act, 1984).

   Particulars of Offence

   Graham James Rockford, Luke David Roy Jones, Bradley Scott Treloar and Peter O’Leary between the 21^st day of June 2007 and the 16^th day of October 2007 at Myponga, knowingly took part in the production of cannabis, a prohibited substance.

   It is further alleged that the number of plants produced was in excess of 19 plants.

   Sixth Count

   Statement of Offence

   Taking Part in the Production of a Prohibited Substance.  (Ibid). 

   Particulars of Offence

   Luke David Roy Jones and Bradley Scott Treloar between the 21^st day of June 2007 and the 16^th day of October 2007 at Hackham, knowingly took part in the production of cannabis, a prohibited substance.

   Seventh Count

   Taking Part in the Production of a Prohibited Substance.  (Ibid). 

   Particulars of Offence

   Luke David Roy Jones [between the] 21^st day of June 2007 and the 16^th day of October 2007 at Mount Compass, knowingly took part in the production of cannabis, a prohibited substance.

   Ninth Count

   Statement of Offence

   Possessing Cannabis for Sale. (Section 32(1)(e) of the Controlled Substances Act, 1984).

   Particulars of Offence

   Luke David Roy Jones between the 1^st day of June 2007 and the 4^th day of September 2007 at O’Halloran Hill, knowingly had cannabis, a prohibited substance, in his possession for the purpose of selling it to another person the amount of cannabis being in excess of 10 kilograms.

   Tenth Count

   Statement of Offence

   Taking Part in the Production of a Prohibited Substance. (Section 32(1)(b) of the Controlled Substances Act, 1984).

   Particulars of Offence

   Luke David Roy Jones between the 1^st day of June 2007 and the 4^th day of September 2007 at O’Halloran Hill, knowingly took part in the production of cannabis, a prohibited substance.

   It is further alleged that the number of plants produced was in excess of 19 plants.

8. The fifth count involved 48 plants.  The maximum penalty is 10 years imprisonment or a $10,000 fine or both. 

9. The sixth count involved 14 plants.  The maximum penalty is two years imprisonment or a $2,000 fine or both. 

10. The seventh count involved six plants.  The maximum penalty is two years imprisonment or a $2,000 fine or both.

11. The maximum penalty for the ninth count is 25 years imprisonment or a $500,000 fine or both. 

12. The tenth count involved 28 plants.  The maximum penalty is 10 years imprisonment or a $10,000 fine or both.

    Information dated 2 March 2010 (“the 2010 Information”)

13. I set out the relevant parts of the 2010 Information:

    First Count

    Statement of Offence

    Cultivating Controlled plants for Sale. (Section 33B(2) of the Controlled Substances Act, 1984).

    Particulars of Offence

    Luke David Roy Jones between the 18^th day of May 2009 and the 18^th day of August 2009 at Hope Valley, cultivated a commercial quantity of controlled plants, namely 36 cannabis plants, intending to sell one or more of them or their products or believing that another person intended to sell one or more of them or their products.

    Third Count

    Statement of Offence

    Interfering with Meter. (Section 85(1)(b) of the Electricity Act, 1966).

    Particulars of Offence

    Luke David Roy Jones between the 18^th day of May 2009 and the 18^th day of August 2009 at Hope Valley, interfered with a meter for measuring the consumption of electricity supplied by an electricity entity.

14. The first count involved 36 plants.  The maximum penalty is 25 years imprisonment or a $200,000 fine or both.

15. The maximum penalty on the third count is two years imprisonment or a $10,000 fine.

    Background facts

16. As can be seen from the particulars on the relevant parts of the Informations, the appellant was involved with Graham James Rockford and Bradley Scott Treloar in the cultivation of cannabis at various properties.  There was no dispute that the driving force behind the enterprise was Mr Rockford who, at the time of sentencing, had absconded. 

17. Count 5 on the 2009 Information involved a property at Myponga which was either rented or owned by Mr Rockford.  A sophisticated cannabis growing enterprise was found inside a shed on that property.  The system included three rooms for growing cannabis within the shed, serviced by a further room that had been purpose built to house the watering equipment and chemicals and also included a three split system air conditioner.  The shed was powered by a large diesel generator installed by Mr Rockford.  These premises were operated and maintained by both Mr Rockford and the appellant.  Further, the appellant, a carpenter, was involved in the construction of the rooms within the shed and also tended to the plants. 

18. During the same period of time, the appellant was also involved with cannabis production at three other properties. 

19. There was a property at Hackham, which was used for growing cannabis plants (Count 6 on the 2009 Information) and the appellant had keys to the premises to tend to those plants. 

20. There was a further property at Mount Compass which was the home of the appellant’s parents.  Hydroponic equipment and six cannabis plants growing hydroponically were at the Mount Compass property (Count 7 on the 2009 Information).  Both the equipment and the growing of the plants were controlled by the appellant. 

21. There was a further property at O’Halloran Hill on which was a three bedroom house that the police attended on 3 September 2007.  Three men, including the appellant, were caught in the process of removing cannabis head from leaves and stalks.  The police observed a substantial amount of cannabis head laid out on timber frame drying racks, as well as bags and bins full of cannabis materials.  Those premises were used for the purposes of cultivating cannabis and were controlled by the appellant with the assistance of two other men in the harvesting process.  42 kilograms of cannabis was seized from the premises and it was likely that that would have yielded something in the proximity of 18 pounds of dried cannabis fit for use.  That property is the subject of Counts 9 and 10 of the 2009 Information. 

22. The appellant was clearly involved in all of these properties with other people as an ongoing operation.  His criminal behaviour was aggravated by the fact that he repeatedly offended whilst on bail.  The appellant was first arrested on 3 September 2007 when the police attended the O’Halloran Hill premises.  He continued to be involved in the other three crops alleged in the 2009 Information before he was arrested in relation to those on 15 October 2007, at which time he was on bail for the O’Halloran Hill crop.  He was given further bail then again arrested on 26 August 2008 in relation to a separate and unrelated charge arising out of plants located in his rental van.

23. Finally, on 18 August 2009, the appellant was arrested for cultivating 36 plants at a property at Hope Valley (Count 1 on the 2010 Information).  Since that arrest he has been in custody or on home detention bail. 

    Personal background

24. The appellant was born on 10 February 1981.  Although his offending involves ongoing criminal behaviour from 2007 until the date of his final arrest, his only previous convictions related to traffic matters.  He was 16 years of age when he left school and successfully completed his apprenticeship as a wood machinist and then had various carpentry jobs.  It was that skill that unfortunately was used in the implementation of this offending. 

    Appeal

25. There is effectively only one ground of appeal, namely, that the starting point of 14 years was manifestly excessive.  Ms Davison, for the appellant, argues that the reduction of 40 per cent for the pleas of guilty and contrition was appropriate and the reduction of a further 10 months to both the head sentence and the non-parole period for time spent in custody and on home detention bail was also appropriate.  That being so she argues that those reductions should have come from a far lesser sentence.

26. Ms Boord, for the respondent, argues that the appellant’s criminal offending was both extensive and sophisticated and part of a well organised system whereby a number of properties were utilised at the same time.  Ms Boord also points out the aggravating circumstances of the appellant’s continual criminal behaviour after he had been arrested and placed on bail on a number of occasions as referred to earlier in this judgment.  She argues that neither the head sentence nor the non-parole period could be categorised as manifestly excessive.

    Conclusion

27. I am of the view that the sentence was well within the Judge’s sentencing discretion.  The starting point of 14 years head sentence, before reductions, properly reflected the extensive nature of the enterprise and the aggravating factor of the appellant continuing to offend whilst on bail.

28. Even if the head sentence could be considered to be excessive, the sentencing Judge allowed a generous reduction of approximately 40 per cent for the appellant’s pleas of guilty.

29. I would dismiss the appeal.

30. PEEK J:   I would dismiss the appeal.  I agree with the reasons of David J.