R v Kafexholli

Case [2012] SASCFC 140

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 140

Court of Criminal Appeal:  Kourakis CJ, Anderson and Nicholson JJ

  1. KOURAKIS CJ:    I would dismiss the appeal. I agree with the reasons of Anderson J.

  2. ANDERSON J.

    Introduction

  3. 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…

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R v KAFEXHOLLI [2012] SASCFC 140
Case
[2012] SASCFC 140
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, Mr. Kafexholli, by a sentencing judge in South Australia. Mr. Kafexholli had pleaded guilty to multiple drug offences, including cultivating commercial quantities of controlled plants for sale, possessing controlled drugs, and possessing prescribed equipment, as well as money laundering offences and a breach of bond. The sentencing judge imposed a head sentence of 9 years and 5 months, with a non-parole period of 7 years. The appeal was specifically against the non-parole period, arguing it was manifestly high in proportion to the head sentence and that the sentencing judge had erred in not providing a greater discount for the appellant's personal circumstances and background.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the non-parole period was disproportionately high compared to the head sentence, and whether the sentencing judge had adequately considered the appellant's personal circumstances and background when determining the sentence, particularly in relation to the cultivation and money laundering charges. The Court also considered an application to tender fresh evidence, which related to the appellant's son's cancer treatment, to assess if it would have influenced the original sentencing decision.

The Court found no error in the sentencing judge's decision. It held that all relevant matters, including the appellant's personal circumstances and background, had been taken into account. The Court noted that while the appellant's son's serious health condition and the appellant's gambling addiction were considered, these factors did not significantly mitigate the offending, especially given the appellant's behaviour, such as gambling nearby while his son was receiving treatment and his dishonesty before the sentencing judge. The Court also determined that the fresh evidence sought to be tendered did not shed new light on the material already before the sentencing judge and therefore refused to admit it. The proportion of the non-parole period to the head sentence was deemed appropriate, falling within a reasonable range given the nature of the offences and the appellant's circumstances.

Consequently, the Court concluded that the sentencing discretion had not miscarried and dismissed the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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]

Decision

Reasons for decision

ANDERSON J (dissent)
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.

Ratio Decidendi

Legal Principle Established

Established by:

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.