R v Kuci - [2016] SASCFC 136

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 in declining to suspend the sentence (at [19]).
5.       The sentences imposed appropriately differentiated between the appellant and the other offender. Both offenders played an important part in a sophisticated drug enterprise. The relative size of the cultivations was less important (at [20]).
Criminal Law (Sentencing) 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.

R v KUCI
[2016] SASCFC 136
Court of Criminal Appeal: Kourakis CJ, Blue and Lovell JJ

KOURAKIS CJ: The appellant was convicted of two counts of cultivating cannabis in houses at Fullarton (14 plants) and Eastwood (12 plants). Another offender, Pobrati, was also convicted of cultivating the cannabis plants at Eastwood and of another cultivation at Windsor Gardens (193 plants). The cannabis plants at Fullarton and Eastwood were mature whereas the plants at Windsor Gardens were little more than seedlings. Both the appellant and Pobrati were also convicted of associated offences of possessing prescribed equipment and unlawfully taking electricity. Both were recruited by and working for the appellant’s cousin Alfred Kuci, who was the principal in the cultivation enterprise comprising of nurseries of many infant plants at Windsor Gardens and about a dozen adult plants at each of Eastwood and Fullarton.
It was agreed that:
·the appellant had the primary responsibility for the Eastwood cultivation and had assisted with the cultivation at Fullarton; and
·Pobrati had the primary responsibility for the Windsor Gardens cultivation and had assisted with the cultivation at Eastwood.
The Fullarton and Windsor Gardens cultivations were undertaken using sophisticated irrigation and lighting systems. Although the plants were few in number, they had been carefully pruned and trained to provide large canopies laden with flowering heads. A high degree of horticultural expertise was employed to maximise the yield of individual plants.
The same Judge sentenced both the appellant and Pobrati. The Judge selected a notional head sentence of four years imprisonment for the appellant and four years and 10 months for Pobrati. The Judge intended to reduce both sentences by 10 per cent having regard to the time at which both men entered pleas of guilty. As it transpired, the Judge miscalculated the reductions and accordingly sentenced the appellant to imprisonment for three years, nine months and one week (when a 10 per cent reduction should have led to a sentence of three years, seven months and one week). The Judge fixed a non-parole period of 20 months. The Judge also miscalculated the reduction for Pobrati and sentenced him to imprisonment for four years, three months and one week (when a 10 per cent reduction should have led to a sentence of four years, four months and one week) with a non-parole period of 24 months. The Judge backdated Pobrati’s and the appellant’s sentence to 4 February 2016.
The appellant appeals on the grounds that:
1The Judge’s differentiation between him and Pobrati was manifestly insufficient having regard to the much larger number of plants in the Windsor Gardens cultivation.
2The sentence was manifestly excessive.
3The Judge erred in failing to suspend the sentence.
In the course of the appeal a question arose as to whether the Judge’s arithmetic errors vitiated the sentences, thereby allowing this Court to impose the sentence it saw fit without any need to show that the sentencing discretion had otherwise miscarried. In the ordinary course, errors of this kind should be dealt with in the sentencing court pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA).
If arithmetical ‘slips’ of the kind made by the Judge resulted in fresh exercises of the sentencing discretion on appeal, there would be undesirable uncertainty in the administration of the criminal law. I would correct the arithmetic errors pursuant to s 9A of the CLSA exercising the jurisdiction of this Court conferred by the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) and by s 9A of the CLSA. Pursuant to these powers I would substitute for the head sentence imposed by the Judge a sentence of three years, seven months and two weeks. I would reduce the non-parole period proportionately to 19 months.
I would dismiss the appeal on the remaining grounds. The sentence was proportionate to the appellant’s offending and sufficiently differentiated between him and Pobrati. The appellant played an important part in a sophisticated and extensive criminal enterprise in the knowledge that the enterprise extended beyond his particular offending and was a substantial commercial operation. Both the appellant and Pobrati were recruited by Alfred Kuci to play their particular parts and taking advantage of their immigration status. Pobrati was primarily responsible for maintaining the ‘nursery’ for other cultivations. The relative size of the particular cultivations for which the appellant and Pobrati were responsible was therefore not as important as it might otherwise have been. Despite the appellant’s previous good character, the nature of the offending and the importance of general deterrence precluded the exercise of the discretion to suspend. I elaborate on my reasons below.
The offending
The evidence showed that the lease of the Fullarton premises was probably negotiated by the appellant even though he did not care for the plants which were later grown there. The landlord of the Eastwood premises identified the appellant as the person who negotiated the lease in the false name of Henry Kocic.
It was common ground that the principal offender who organised all three cultivations, and engaged both the appellant and Pobrati to assist him, was Alfred Kuci.
In a telephone call intercepted by the police made on 30 April 2015, the appellant engaged in conversation which shows that he was at the time packaging cannabis harvested from earlier cultivations than those for which he was sentenced. The relevance of the conversation is that it shows that the appellant had knowledge that the cultivations at Eastwood and Fullarton in which he was involved were part of a wider and established commercial cannabis producing enterprise.
In another intercepted conversation on 19 May 2015, the appellant discussed the distribution of the harvest from yet another cannabis cultivation.
After the police had discovered and seized the cannabis at Fullarton and Eastwood, the appellant advised another man on the steps which he should take to destroy the evidence of his involvement and the involvement of others in the cultivations.
Personal circumstances
The appellant was born in Albania on 17 January 1989. He was 25 at the time of the offending and 27 when sentenced. The appellant moved to Canada with his family when he was 12. There he completed his secondary education and studied a tertiary degree in tourism and hospitality for two years. The appellant left university to work in the construction industry.
At the age of 23 the appellant travelled to Australia on a study visa. Here he undertook a TAFE course in tourism and hospitality. The cost of his accommodation and course was substantial. The appellant saved a substantial amount of money to come to Australia and was also assisted by his parents. He estimated he required $40,000 to $50,000. The appellant required money to support himself and he struggled to find steady employment because he was studying full time but he did find some work as a casual labourer. After his arrest for this offending, the appellant was detained by immigration authorities for overstaying his visa. The appellant had no pre-existing psychiatric illness but was diagnosed as suffering a moderate Adjustment Disorder with Mixed Anxiety and Depression after his arrest and detention.
Sentencing remarks
The Judge described the offending as ‘well organised, commercial ventures’. The Judge explained that the starting point for Pobrati was higher because of his involvement in the much larger crop at Windsor Gardens.
The maximum penalty for each count of the appellant’s offending is 10 years imprisonment or $50,000.
The appellant’s sentence is well within the range of 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.
No error has been shown in the exercise of the discretion not to suspend the sentence. The appellant’s offending was serious. In light of his personal circumstances and previous good character, the offending did not necessarily demand suspension of the sentence. The Judge gave proper consideration to the question of suspension. No error in the exercise of the discretion not to suspend the sentence has been shown.
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.