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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jones

Details

AGLC: R v Jones [2011] SASCFC 97
Case: [2011] SASCFC 97
Decision Date: 26 August 2011

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, who had pleaded guilty 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. The dispute before the Full Court of the Supreme Court of South Australia was whether the sentencing judge’s starting point of 14 years imprisonment before reductions for the guilty pleas was manifestly excessive.

The court was required to determine whether the sentencing judge erred in their assessment of the seriousness of the appellant's criminal conduct by setting a starting point of 14 years imprisonment. This involved considering the appellant's level of involvement in an extensive and sophisticated cannabis cultivation and supply operation, as well as the aggravating factor of his continued offending whilst on bail.

The court reasoned that the criminal enterprise was indeed extensive and sophisticated, involving multiple properties and a purpose-built growing facility. The appellant, a carpenter, played a significant role in constructing the growing rooms and tending to the plants. Furthermore, the court noted that the appellant repeatedly offended while on bail, a serious aggravating circumstance. Given these factors, the court found that the starting point of 14 years imprisonment was a proper reflection of the appellant's criminal conduct and was well within the sentencing judge's discretion.

The appeal was dismissed, with the court concluding that the sentence imposed was not manifestly excessive and that the sentencing judge had properly taken into account the extensive nature of the offending and the appellant's continued criminal behaviour whilst on bail. The court also noted that a generous reduction of approximately 40% had been applied for the pleas of guilty.

Orders

Orders of the court

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Background

Background to the litigation

The maximum penalty on the third count is two years imprisonment or a $10,000 fine.Background facts 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. 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. During the same period of time, the appellant was also involved with cannabis production at three other properties. 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. 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. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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