R v Kulli and Kulli No. Sccrm-02-420, Sccrm-02-421

[2003] SASC 82

R v KULLI and KULLI
[2003] SASC 82

Court of Criminal Appeal:  Perry, Nyland and Bleby JJ

1. PERRY J.  (ex tempore)     These are two applications for leave to appeal from sentences imposed in the District Court.

2. Both applicants pleaded guilty to an information in which they were charged jointly with having between 1 February 2002 and 13 March 2002 at Paradise knowingly taken part in the production of cannabis contrary to s 2(1)(b) of the Controlled Substances Act 1984.

3. Following a disputed facts hearing which in turn followed the denial by the applicants of the commerciality of the cannabis production, the sentencing judge imposed a head sentence on each of the applicants of 26 months imprisonment. In the case of Gjovalin Kulli he fixed a non-parole period of 16 months and in the case of Margarita Kulli a non-parole period of 8 months. He declined to suspend the sentences.

4. Both applicants complained that the sentence was manifestly excessive having regard to their age, character and antecedents. In the case of Margarita Kulli she adds a reference to her state of health. In both cases they complain that the sentencing judge erred in failing to suspend the sentences of imprisonment. The applications for leave to appeal were considered in the first instance by a single judge of this Court who dismissed both applications after giving reasons. The applications have now been pursued before the Full Court pursuant to r 15 of the Criminal Appeal Rules.

5. It appears that in March 2000, Gjovalin Kulli, using a false name, rented a house at Paradise. On 13 March 2002 the house caught fire. Police attended and found evidence of what the sentencing judge described as “an elaborate sophisticated and expensive hydroponic system”. In the bedrooms of each of the applicants there were 10 mature cannabis plants, making 20 in all, and as well there were 27 cannabis seedlings and 6 plants elsewhere in the house.

6. The 20 mature plants in the two bedrooms were likely to have yielded between 4 to 6 kilograms of cannabis material, valued on the market at between $24,000 and $36,000.

7. The applicant Gjovalin Kulli is the son of the applicant Margarita Kulli. They both migrated to Australia from Albania. He is 38 years of age and she is 59 years of age. Neither has any criminal record. Although Margarita Kulli did not produce any medical evidence to substantiate her assertion that she had had one kidney removed and suffered from high blood pressure and high cholesterol, the sentencing judge dealt with her on the basis that these conditions existed.

8. The sentencing judge took as a starting point a term of imprisonment of 30 months in each case, which he discounted to 26 months by reference to the pleas of guilty. As for suspension, the prosecutor did not make a submission one way or the other. The sentencing judge did not find that there were any exceptional circumstances or any good reason to suspend the sentences.

9. To recognise that in a certain class of case only in exceptional circumstances will there be good reason to suspend is not to displace the statutory criterion for suspension, as was in effect argued by Mr Caldicott who appeared for both applicants. That this is so was recognised, for example, in the judgment of Doyle CJ in R v Gjoka.[1]

   [1]    (Unreported) Court of Criminal Appeal, 1 July 1997, judgment No 6211.

10. The maximum penalty for the offence is 10 years imprisonment and/or a fine of $50,000.

11. The sentencing judge described it as “a serious and prevalent offence”, and said that that commercial purpose was an aggravating feature.

12. Mr Caldicott argued on behalf of Mr Kulli that the disparity between the non-parole period imposed on him as compared with that fixed with regard to his mother’s sentence was cause for the intervention of this Court. However, in my view the point is not reasonably arguable as the age and health of the co-offender was ample justification for the course taken by the sentencing judge.

13. In neither case does it appear to me that the trial judge has arguably erred. In my view neither the sentences imposed nor the refusal to suspend them were arguably outside of the proper exercise of the sentencing discretion.

14. I would refuse the applications in both instances.

15. NYLAND J:           I agree.

16. BLEBY J:               I agree.

17. PERRY J:               The order of the court then is that the applications are dismissed.

    JUDGMENT CITATIONS
    LISTED IN ORDER OF APPEARANCE IN JUDGMENT

    1.   (Unreported) Court of Criminal Appeal, 1 July 1997, judgment No 6211.