R v Kuci

Case [2016] SASCFC 136 14 December 2016

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KUCI
[2016] SASCFC 136
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)
14 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS
Appeal against sentence imposed in the District Court for cultivating cannabis contrary to s 33B(3) of the Controlled Substances Act 1984 (SA), and associated offences of unlawfully taking electricity and possession prescribed equipment.
The appellant plead guilty to cultivating cannabis in two different houses. Whilst the number of plants cultivated by the appellant was low, the cannabis was mature and had a high yield. The plants were carefully pruned and trained to provide a large canopy.
The appellant was sentenced with another offender, who also pleaded guilty. The circumstances of both offending were similar. The nursery maintained by the other offender had a far higher number of plants, but they were little more than seedlings. Both offenders were recruited by the appellant’s uncle who was the principal of the cultivation enterprise.
The appellant and the other offender were both sentenced by the same Judge. The Judge attempted to reduce both sentences by 10 per cent on account of guilty pleas but miscalculated. The appellant was sentenced to a head sentence of three years, nine months and one week, approximately two weeks longer than it ought to have been. A non-parole period of 20 months was imposed. The other offender was sentenced to four years, three months and one week imprisonment (approximately one month shorter than it ought to have been). A non-parole period of 20 months was imposed for the other offender.
The appellant appeals against his sentence on the grounds it is manifestly excessive and that it ought to have been suspended. He also appeals on the grounds that there ought to have been a greater differentiation in the sentence imposed on him and the other offender having regard to the greater number of plants cultivated by the other offender.
Held per Kourakis CJ (Blue and Lovell JJ agreeing) allowing the appeal in part:
1. When an arithmetical error can and should be corrected under s 9A of the Criminal Law (Sentencing) Act 1988 (SA), the error does not vitiate the sentence imposed so that the appellate Court may impose another sentence unless it is shown that the sentencing discretion has been miscarried (at [6]-[7]).
2. The arithmetical errors of the sentencing Judge are corrected pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (SA). The appellant is sentenced to three years, seven months and two weeks imprisonment with a non-parole period of 19 months (at [7]).
3. The sentence imposed is not manifestly excessive (at [18]).
4. The sentencing Judge did not err…

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 Kuci

Details

AGLC: R v Kuci [2016] SASCFC 136
Case: [2016] SASCFC 136
Decision Date: 14 December 2016

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, R v Kuci, before the Full Court of the Supreme Court of South Australia. The dispute arose from the appellant's contention that his sentence for cultivating cannabis was disproportionately severe when compared to the sentence imposed on a co-offender, Pobrati.

The central legal issue before the court was whether there was an unjust disparity between the appellant's sentence and that of Pobrati, or if the appellant's sentence was not sufficiently differentiated from Pobrati's. This required the court to consider the principles of parity between co-offenders and how to assess culpability in the context of a larger criminal enterprise.

The court reasoned that a direct comparison of the number of plants cultivated by each offender was a misconceived approach. Instead, the culpability of both the appellant and Pobrati had to be assessed in relation to their respective roles within the overall cultivation enterprise. While Pobrati cultivated a larger number of plants, they were seedlings intended for maturation elsewhere, including at the premises for which the appellant was responsible. The court noted that the assignment of roles, including Pobrati's care of the nursery and the appellant's care of more mature plants, may have been influenced by factors such as trust and capability in harvesting, packaging, and distribution. The appellant's closer relationship to the principal offender, Alfred Kuci, was also a relevant consideration. Ultimately, the court found that the appellant had failed to demonstrate that the sentencing judge had insufficiently accounted for the smaller number of mature plants under his direct care.

The Full Court ordered that the appellant's sentence be corrected to imprisonment for three years, seven months, and one week, with a non-parole period of one year and seven months, and dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant’s argument that there was an unjust disparity in his sentence when compared to that of Pobrati, or that his sentence was not sufficiently differentiated from Pobrati, proceeds exclusively on a direct comparison of the numbers of plants involved in the respective cultivations. That comparison and approach is misconceived. The offending of the appellant and Pobrati had to be assessed in the context of the relationship between the particular cultivations in which they were involved and the enterprise as a whole. Plainly neither the appellant nor Pobrati were to be sentenced for anything but the offending to which they had pleaded guilty. However their culpability for the offences of which they were convicted was affected by the parts that their particular cultivations played in the overall enterprise. In particular even though Pobrati was convicted of cultivating a larger number of plants, those plants were little more than seedlings. It is plain that the seedlings which Pobrati was cultivating were to be grown into mature plants in other premises like those for which the appellant was responsible. There is an element of happenstance in Alfred Kuci’s decision to assign Pobrati to look after the nursery, in which necessarily there were relatively more but smaller plants, and the appellant to care for the plants as they matured. Indeed on one view the appellant may have been given responsibility for more mature plants because he was more trusted, and/or able, to take part in harvesting, packaging and distribution. I refer back to the subject matter of the intercepted telephone conversations. The evidence also showed that the appellant had a closer relationship to Alfred Kuci than Pobrati. In those circumstances, arguably there ought not to have been any distinction made between the appellant and Pobrati. Certainly the appellant has failed to show that the reduction in the starting point from which the Judge proceeded in his case insufficiently allowed for the smaller number of plants for which the appellant was responsible.Conclusion I would correct the sentence under s 9A of the CLSA to imprisonment for three years, seven months and one week with a non-parole period of one year and seven months. I would dismiss the appeal. BLUE J: I agree. LOVELL J: I agree.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Kuci [2016] SASCFC 136

Most Recent Citation

R v Summers [2017] SADC 61

Cases citing this decision · 10 of 10 shown

Rankine v Commissioner of Police
[2025] SASC 163 Para 16

…ntments and Powers) Act 1988 (SA) (‘Judicial Administration Act’).[10] The Court of Criminal Appeal took the same approach in R v Singh .[11] [9] [2016] SASCFC 136. [10] [2016] SASCFC 136 at [7] (Kourakis CJ, Blue and Lovell JJ agreeing). [11] [2018] SASCFC 89 at [23] (Bampton J, Kelly and Blue JJ relevantly agreein…
Johnson (a pseudonym) v The King
[2022] SASCA 126 Para 16

…sed by the Judge a sentence of three years, seven months and two weeks. I would reduce the non-parole period proportionately to 19 months. [17] [2016] SASCFC 136 at [6]–[7].…
The Queen v Perrey; the Queen v Perrey
[2022] SASCA 51 Para 10

…2] VSCA 1, [26] (Whelan JA); and in relation to s 20, see R v Bechara [2022] SASCA 37, [19]-[20] (Kourakis CJ, Lovell and Doyle JJA), citing R v Kuci [2016] SASCFC 136, [6] (Kourakis CJ, with whom Blue and Lovell JJ agreed) and R v Hunt [2018] SASCFC 137, [2] (Kelly J).…
Bechara v The Queen
[2022] SASCA 37 Para 19

…e jurisdiction’ to a sentencing court, it logically follows that the section remains operable after appellate proceedings have commenced. [2] [2016] SASCFC 136. [3] (2018) 132 SASR 1; [2018] SASCFC 137 at [35].…
R v Curran
[2019] SASCFC 14 Para 12

…ic set-up was described as sophisticated. The sentencing judge also started at four years imprisonment before reduction for pleas of guilty. [25] [2016] SASCFC 136.…
R v Hunt
[2018] SASCFC 137 Para 26

…fresh exercise of the sentencing discretion on appeal, there would be understandable uncertainty in the administration of the criminal law. [6] [2016] SASCFC 136. [7] [2016] SASCFC 136 at [6]-[7].…
R v Singh
[2018] SASCFC 89 Para 4

…e per cent), resulting in a sentence of imprisonment for three years, nine months and one week. The Judge fixed a non-parole period of 20 months. [2] [2016] SASCFC 136.…
R v Summers
[2017] SASCFC 141 Para 16

…ny credit he was entitled for time spent in custody has been taken into account in my sentence today’: Police v Summers .[17] [9] [2016] SASCFC 136, [6]. [10] [2013] SASCFC 41, [8]. [11] [2015] SASCFC 168, [8]-[9]. [12] [2008] SASC 232, [10]-[11]. [13] (2016) 125 SASR 171, [24]-[25]. [14] [2009] SASC 378, [33]-[34],…
R v Bol
[2017] SADC 72 Para 11

…templated by section 9A and should therefore have been corrected pursuant to section 9A, and simply corrected the arithmetical error themselves. [12] [2016] SASCFC 136.…
R v Summers
[2017] SADC 61 Para 9

…f s 9A. [10] (1996) 67 SASR 90, 93. [11] (2015) 123 SASR 51, [11], [34]. [12] [2007] SASC 257, [13]-[17]. [13] [2010] SASC 216, [13], [16]. [14] [2016] SASCFC 136, [6]. [15] [2013] SASCFC 41, [8]. [16] [2015] SASCFC 168, [8]-[9]. [17] [2008] SASC 232, [10]-[11]. [18] (2016) 125 SASR 171, [24]-[25]. [19] [2009] SASC…

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Cases cited in this decision · 4 of 4 shown

R v Avdulai
[2015] SASCFC 39 Para 18

…round which complains that the sentence is manifestly excessive. [1] R v Gjoni [2012] SASCFC 48 at [10]; R v Bednarz [2014] SASCFC 126, R v Avdulai [2015] SASCFC 39.…
R v BEDNARZ
[2014] SASCFC 126 Para 18

…1] I would dismiss the appeal ground which complains that the sentence is manifestly excessive. [1] R v Gjoni [2012] SASCFC 48 at [10]; R v Bednarz [2014] SASCFC 126, R v Avdulai [2015] SASCFC 39.…
R v Gjoni
[2012] SASCFC 48 Para 18

…sentences established by this Court.[1] I would dismiss the appeal ground which complains that the sentence is manifestly excessive. [1] R v Gjoni [2012] SASCFC 48 at [10]; R v Bednarz [2014] SASCFC 126, R v Avdulai [2015] SASCFC 39.…
R v Bednarz
[2014] SASCFC 1267

…encing) Act 1988 s 9A; Judicial Administration (Auxiliary Appointments and Powers) Act (SA), referred to. R v Avdulai [2015] SASCFC 39; R v Bednarz [2014] SASCFC 1267; R v Gjoni [2012] SASCFC 48, considered.…

Legislation cited in this decision · 3

Criminal Law (Sentencing) Act 1988 (SA)
9A 2 mentions (from Para 6)
Controlled Substances Act 1984 (SA)
1 mention
Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA)
1 mention (from Para 7)