R v Kane

[2003] SASC 237

R v KANE
[2003] SASC 237

Court of Criminal Appeal:  Debelle, Nyland and Gray JJ

1. DEBELLE J           This is an appeal against sentence.

2. The appellant was charged on information with possession of cannabis for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984. The maximum penalty for that offence is 10 years imprisonment and/or a fine of $50,000.

3. The appellant pleaded not guilty. Following a trial in November 2001, the jury was unable to reach a verdict. He was retried some time later. The delay was in no sense caused by the appellant. On 20 February 2003, a second jury unanimously returned a verdict of guilty. On 2 April, the appellant was sentenced by a District Court judge to three years imprisonment with a non-parole period of 14 months. That sentence was not suspended.

4. The only issue on this appeal is whether the sentence should have been suspended.

5. The amount of cannabis involved in the offending was quite substantial, that is to say, 6.7 kilograms or its imperial equivalent 15 pounds. At the time of the offending the appellant resided in Queensland. On 20 March 2000, he travelled from Queensland to South Australia in order to purchase cannabis. On 25 March, he went to the Franklin Street bus terminal in Adelaide and made arrangements for a bag to travel back separately from him. The manager of the terminal agreed to the proposal. The bag later became the subject of suspicion. Police were called and the cannabis was found inside the bag. The police replaced the cannabis with similar packages and the bag was returned to Queensland. The appellant collected the bag in Brisbane. At about the same time the police searched his unit on the Gold Coast. No cannabis was found, nor any implements for smoking it. The appellant was arrested about 10 days later.

6. It is alleged that at the time of the offending the value of the cannabis could have been as little as $30,000 or as much as $60,000. The judge did not find it necessary to decide precisely how much it was worth as he considered it was, in any event, worth a substantial amount and there was scope for significant profit.

7. The appellant did not challenge the prosecution case but, instead, sought to discharge the burden of proof placed upon him by the terms of s32. He had said that he had come to Adelaide to purchase four pounds of cannabis for himself and the balance was purchased for someone he knew in Brisbane. He said he was not given any money by his friend in Brisbane to buy the cannabis but, instead, was effectively getting it on credit from the supplier in Adelaide. The appellant said that he had paid on the spot for his share of the cannabis. Because eleven pounds was going to be supplied by him to a friend in Brisbane in accordance with the plan and the remaining four pounds was purchased for his own use, the appellant…