R v Kafexholli
[2012] SASCFC 140
•20 December 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KAFEXHOLLI
[2012] SASCFC 140
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Anderson and The Honourable Justice Nicholson)
20 December 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - OTHER SUBSTANCES AND OFFENCES INVOLVING MULTIPLE SUBSTANCES OR OFFENCES
The appellant pleaded guilty to eight counts of laundering money, three counts of cultivating a commercial quantity of controlled plants for sale and admitted a breach of bond - he further pleaded guilty to two counts of possess a controlled drug, three counts of possess prescribed equipment, three counts of make a connection to a network, one count of possess controlled plants with intent to sell and one count of possess prescribed drug - the sentencing judge imposed one head sentence of 9 years and 5 months pursuant to s 18A of the Criminal Law (Sentencing) 1988 (SA) with a non-parole period of 7 years - the appellant appeals against the non-parole period - whether the non-parole period is manifestly high in proportion to the head sentence - whether the sentencing judge erred in not offering a greater discount on the cultivation and money laundering charges because of the appellant's personal circumstances and background to the offences.
Held: No error has been demonstrated by the sentencing judge - all relevant matters were taken into account - the sentencing judge considered the appellant's personal circumstances and background - the proportion of the non-parole period to the head sentence is appropriate - no reason for the Court to interfere - the sentencing discretion has not miscarried.
Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 138; Controlled Substances Act 1984 (SA) s 18, s 33B, s 33L and s 33C; Motor Vehicles Act 1959 (SA) s 91; Electricity Act 1996 (SA) s 84; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Dorning (1981) 27 SASR 481; R v Sladic (2005) 92 SASR 36; House v R (1936) 55 CLR 499, considered.
R v KAFEXHOLLI
[2012] SASCFC 140Court of Criminal Appeal: Kourakis CJ, Anderson and Nicholson JJ
KOURAKIS CJ: I would dismiss the appeal. I agree with the reasons of Anderson J.
ANDERSON J.
Introduction
The appellant pleaded guilty to eight counts of laundering money contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA) and three counts of cultivating a commercial quantity of controlled plants for sale contrary to s 33B(2) of the Controlled Substances Act 1984 (SA) (“the CSA”). He also admitted a breach of a 12 month good behaviour bond entered into in the Tanunda Magistrates Court on 15 February 2010. The bond was in respect of one count of drive under disqualification contrary to s 91(5) of the Motor Vehicles Act 1959 (SA).
The appellant further pleaded guilty in the District Court to two counts of possess a controlled drug contrary to s 33L(2)(a) of the CSA, three counts of possess prescribed equipment contrary to s 33LA(1) of the CSA, three counts of make a connection to a network contrary to s 84(1)(a) of the Electricity Act 1996 (SA), one count of possess controlled plants with intent to sell contrary to s 33C(3) and (4) of the CSA and one count of possess prescribed drug pursuant to s 18(3) of the CSA. These charges were referred from the Magistrates Court.
The judge sentenced the appellant as follows:
Charge Sentence Imposed Money laundering x 8 4 years 2 months Commercial cultivation of a controlled plant with intent to sell x 3 5 years Possess a controlled drug x 2 Convict without penalty Possess prescribed equipment x 3 Convict without penalty Make a connection to a network x 3 Convict without penalty Possess controlled plants with intent to sell x 1 Convict without penalty Possess prescribed drug x 1 Convict without penalty Breach of bond 3 months
The judge ordered that the sentences were to be cumulative and pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) imposed a head sentence of 9 years and 5 months with a non-parole period of 7 years, that is, approximately 75% of the head sentence.
The issues in the appeal against sentence were, on the basis of the notice of appeal, whether the overall head sentence is manifestly excessive, whether the non-parole period is manifestly high in proportion to the head sentence, and whether the sentencing judge erred in not offering a greater discount on the cultivation and money laundering charges because of the appellant’s personal circumstances and background to the offences. The appellant does not pursue the appeal based on the length of the head sentence.
Background
The offending by the appellant was summarised by the sentencing judge in her reasons. It is helpful to set this out:
Dealing first with the money laundering charges. Between 6 January 2010 and 6 July 2010 you were involved in transfers of money to overseas destinations. The transfers were made via various Western Union and Cash Converters retail outlets across South Australia. A co-accused, Michael Good, who I have dealt with, assisted you with respect to five of the transactions. The money laundering offences that you pleaded guilty to allege that you knew that the money transferred was tainted property. In this case the prosecution says that it came from the proceeds of the production and sale of cannabis.
…
In April, May and June 2010 police located four separate cannabis crops which you were involved in cultivating. On 16 April 2010 police searched the premises at 37 Makin Street, Hamley Bridge; 66 cannabis plants were located. It was a hydroponic set-up in what is commonly known as a “grow house”. The property was subject to a tenancy agreement whereby you and your wife were the lessees of the property. The house did not appear to be used for any other purpose. Police also found 866 g of dried cannabis and the electricity meter had been interfered with and bypassed.
On 27 April 2010 the police located 43 cannabis plants at 16 Laurence Street, Eudunda, again this was a hydroponic set-up in what is commonly described as a grow house. That property was leased to you, again the house was apparently only used as a grow house and the electricity meter was interfered with and bypassed.
On 20 May 2010 police attended at a house at 8 Oxford Terrace, Riverton. A vehicle was parked there and police found 15 plants growing in pots. Police also found prescribed equipment, that is light shades, a carbon filter and a transformer. You say that these plants were destined for the 102 Torrens Road property.
…
… On that same day the police located a prescription drug called Sustanon which was not prescribed for you. There appeared to be three sets of three of this drug and the drug contained testosterone. …
On 24 June 2010 police located another cannabis crop; 54 cannabis plants at a house 102 Torrens Road, Riverton. Again, this was a hydroponic set-up and the electricity meter was interfered with and bypassed. That property was leased to a co-offender called Scally, and your fingerprints were found on hydroponic equipment at those premises.
As can be seen, the offending was serious. The money laundering offence carries a maximum penalty of 20 years imprisonment. Commercial cultivation of a controlled plant with intent to sell carries a maximum penalty of 25 years imprisonment or fines of $200,000 or both. Parliament has shown its intention to impose severe penalties for offences of this kind.
On 25 March 2010, the police attended at the Commonwealth Bank at Plympton. The appellant was found to be in possession of $50,000 in two bags each containing $25,000. The police seized this money. In evidence the appellant asserted that the two Albanian men that had asked him to engage in money laundering believed that he had gambled the $50,000 and therefore threatened him. The appellant told the court that he was so fearful that he surrendered to their demands to grow cannabis to make up for the $50,000 that was seized.
The police intercepted numerous calls and messages of the appellant. The calls and messages demonstrate the appellant’s involvement with other persons in the organisation and operation to cultivate cannabis for sale. The prosecution evidence included extracts of those calls and messages to prove the offences and to provide evidence of substantial unexplained income.
The appellant is 38 years old with a substantial criminal history dating back to 1988. He is married with four children all under the age of 10. He was born in the former Yugoslavia and has been living in Australia for about 27 years.
The appellant gave evidence stating that his motivation to commit the offences was due to debts and threats. The appellant’s son was diagnosed with a tumour in his skull when he was an infant. He was initially successfully treated but suffered a relapse and required further treatment. The appellant said that because of the stress and upset of his son, he developed an uncontrollable gambling habit. He said that this led to him borrowing money from two Albanian men who he met at the casino. He said that these men subsequently asked the appellant to transfer money overseas for them.
The sentencing judge did not accept the appellant’s evidence. She said:
You gave evidence on oath about these matters. I find you are an untruthful witness and I do not accept your evidence in this regard at all. During your evidence you prevaricated, you asserted detailed memory on occasions and on other occasions claimed lack of memory about other issues. You said that you did not know the true identity of these men; you said you provided their names to the police and all the police inquiries are to the effect there is no-one of those names or descriptions known to police.
I find that you were so lacking in reliability and credibility as you gave evidence that unless a matter raised by you is supported by independent evidence I am not prepared to accept any assertion made by you.
The antecedent report provided indicates that in 1998 the appellant received a 5 year sentence with a non-parole period of 1 year and 9 months for the offences of taking part in the sale of heroin and a breach of bond. He served 18 months in custody before being released on parole, which was completed successfully. The sentencing judge said “Clearly, despite your earlier severe sentence … you have not got the message about drug offending.”
Arguments on Appeal
Ms Stokes for the appellant conceded at the outset that the head sentence was within the appropriate range.
Ms Stokes main argument was that the non-parole period is manifestly high in proportion to the head sentence. She conceded that the offending was serious and a long term of imprisonment was inevitable but she argued that the sentencing judge did not give adequate weight to the appellant’s personal circumstances and his prospects of rehabilitation.
Ms Stokes submitted that because of the appellant’s son’s condition, which has been discussed above, the appellant is a better candidate for rehabilitation. She submitted that the appellant has an incentive to rehabilitate and cease his criminal offending because of this.
Ms Stokes further argued that the judge made insufficient allowance for the appellant’s family situation, gambling addiction and close family life. She emphasised the situation of the very sick young boy who requires quarterly visits to the Women’s and Children’s hospital. The appellant and his family live in Riverton and his wife relies on the appellant because she cannot drive and speaks poor English. Ms Stokes reiterated that the appellant is strongly supported by his wife and his extended family. She submitted that the appellant’s gambling addiction is no longer a secret from his wife and family and that it can be adequately addressed with the appropriate rehabilitation. For these reasons, Ms Stokes argued that the appellant is an even-handed candidate who is “not beyond redemption”, to use her words.
Ms Stokes submitted that allowing for those circumstances, the appellant’s non-parole period is manifestly high. She submitted that the appropriate period would be two thirds of the head sentence namely, 6 years and 3 months. It currently is about 75%.
Mr Petraccaro for the DPP submitted that there was no manifest error from the sentencing judge and that given the type of offending and the legislative intention, the non-parole period is appropriate and therefore the Court should not intervene.
Mr Petraccaro argued that the appellant’s past behaviour does not indicate that he would be a good candidate for rehabilitation. He submitted that since his 1998 conviction the appellant has relapsed into serious offending again, albeit some 12 years later.
Mr Petracarro pointed to the fact that the appellant lied on oath before the sentencing judge. Mr Petraccaro submitted that this indicated the appellant’s intention not to co-operate with the justice system. He said this demonstrated that the appellant was not prepared to take responsibility for his actions and showed a lack of contrition. Mr Petraccaro submitted that these are all indicators that the appellant is not ready and/or willing to engage in rehabilitation, which requires a voluntary acknowledgment of one’s actions and a willingness to take responsibility for them.
Fresh evidence
Ms Stokes sought to tender a report from Dr Richard Van Dissel dated 10 December 2012. The sentencing judge already had before her a report from Dr Van Dissel dated 22 June 2012.
Ms Stokes submitted that although the material is not new, it sheds further light on the material which was before the sentencing judge.
Ms Stokes submitted that counsel in the sentencing process failed to obtain a report from an oncologist who would have given a better insight into the possible future needs with respect to the appellant’s son’s cancer treatment. Ms Stokes said that this was no fault of the appellant.
Mr Petraccaro submitted that the principles in relation to the receipt of fresh evidence are well settled. In R v Dorning (1981) 27 SASR 481 the court stated at 485-486:
In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible, but the Full Court will not necessarily decide whether the witness from whom the new evidence is sought is telling the truth: Orchard v Orchard. See also Reg v Parks, cited in In re van Beelen. It was pointed out in In re van Beelen that applications under s 359 to lead fresh evidence are never lightly granted.
[Footnotes omitted]
He further submitted that in the sentencing context, the principles have been discussed and applied in R v Sladic (2005) 92 SASR 36 at [44]-[46]:
[44]Fresh evidence may be admitted on an appeal when it sheds new light on the material before the sentencing judge, or when there was a relevant fact or relevant facts in existence at the time of sentencing which had not been brought to the attention of the sentencing judge and a satisfactory explanation has been proffered for the failure to have informed the sentencing judge of the facts.
[45]The appellant relied on the decision of Penno in which the court admitted a medical report evidencing that Penno’s de facto wife’s mental health had deteriorated markedly since his imprisonment, to the point that she could no longer look after their children and their business. The report was admitted on the basis that it demonstrated that Penno’s wife’s mental illness was more serious than had been thought at the time of sentencing. The report explained Penno’s partner’s mental condition so as to put it in a new light.
[46]The information sought to be relied on by the appellant does not shed any new light on the material considered by the sentencing judge. At best, it reinforces what was already taken into account by the sentencing judge. That is to be contrasted with the circumstances in Penno, where the fresh evidence threw new light on the seriousness of Penno’s partner’s mental health and its effect on the dependent children.
[Footnotes omitted]
In my view this new report from Dr Van Dissel dated 10 December 2012 does not fit the criteria of fresh evidence for two reasons. Firstly, there is no adequate reason given by Ms Stokes as to why this “evidence” could not have been obtained with reasonable diligence to be used for submissions before the sentencing judge. A report from Dr Van Dissel was obtained in June 2012.
Secondly, in my view, having looked at the information in the report it does not shed any new light on the material that was already before the sentencing judge. The sentencing judge gave adequate consideration to the appellant’s son’s condition and took into account his future requirements of treatment. The recent report does no more than update the information that was already provided to Her Honour and for these reasons I would not allow the report to be tendered on appeal as I do not consider it to be “fresh evidence”.
Consideration
It is my view that the sentencing judge adequately dealt with the appellant’s personal circumstances. She said in her sentencing remarks:
You have four children, an infant who is a few months old, a four-year-old, a six-year-old and a nine-year-old. I have already mentioned that your six-year-old son has very significant health problems which he has suffered over the last four years and he is receiving ongoing treatment for a very serious condition. I am told you are a loving and supportive parent. The health issues with respect to your son are said to be an explanation for the development of your gambling addiction. I do not think that the cause or causes of your addiction is of particular or unusual significance in this case.
…
I have had regard to the submissions made with respect to your personal circumstances at the time of the offending and the background circumstances which I do accept, namely, that your son had been ill for some considerable time, that is seriously ill, that you developed a gambling addiction and that the offending occurred in those circumstances. As I have already said I do not accept that you were threatened in the way you described nor that that caused you to grow the cannabis or transfer the funds. The submissions about the background circumstances to the offending, namely gambling, may explain your conduct but do not mitigate it in any significant way.
While it is relevant that the appellant’s son needs special care, I note that while his son was receiving chemotherapy treatment at the Women’s and Children’s hospital, the appellant was gambling nearby at the Adelaide Casino. As I have said the judge disbelieved the appellant in his attempt to explain his gambling problem.
Conclusion
It has not been shown that the judge wrongly took into account any irrelevant matter or that she failed to take into account all relevant matters.
As to the proportion of the non-parole period to the head sentence there is no reason to interfere. There are no hard and fast rules. Every case is to be decided on its own facts and the ultimate decision lies within the discretion of the sentencing judge provided no error of the type described in House v R (1936) 55 CLR 499 at 505 is made.
It has not been shown that the sentencing discretion miscarried. In my view a non-parole period of about 75% of the head sentence is within, albeit at the high end of, what I would regard as a reasonable range having regard to the nature of the offending and the personal circumstances of the appellant.
I would dismiss the appeal.
NICHOLSON J: I agree that the appeal should be dismissed for the reasons given by Anderson J.
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