R v Kulli No. DCCRM-02-798 - [2002] SADC 155

R v GJOVALIN KULLI & MARGARITA HILE KULLI
[2002] SADC 155
Judge Lunn
Criminal

On 26 August 2002 the accused Gjovalin Kulli (“GK”) and Margarita Hile Kulli (“MK”), each pleaded guilty to taking part in the production of cannabis contrary to s32(1)(b) of the Controlled Substances Act 1984. A nolle was entered against the co-accused, Edmund Kulli.
The matter was referred for a disputed facts hearing. The commerciality of the cannabis production was denied by GK and MK. At the commencement of the disputed facts hearing, counsel for the defence sought a voir dire hearing to exclude evidence about certain cannabis plants found in the house, but it was not proceeded with after it was agreed that the charge was confined to the 20 mature cannabis plants and that the other seedlings in the possession of GK and MK were to be treated only as circumstantial evidence about commerciality.
For the purposes of sentencing I have before me all of the declarations, but I disregard the record of interview with Edmund Kulli. There are also a number of documents which were tendered by consent. Both GK and MK elected not to give evidence on the disputed facts hearing. Through their counsel they made various assertions of fact, such as that the cannabis grown was only intended for their own consumption, and in the case of GK also for supply to friends. However, where the submissions by defence counsel have been put in issue by the DPP those submissions in themselves have no particular evidentiary weight and the issues are to be determined on the evidentiary material which is properly before me which is the material mentioned above. I do not draw any inference against GK or MK for not having given evidence. In reaching my conclusions I confine myself to the evidentiary material mentioned above.
In late March 2000 GK, using a false name of Tonin Bregu, rented a house at Paradise. Subsequently GK and MK set up an elaborate, sophisticated and expensive hydroponic system inside the house for growing cannabis. As at 13 March 2002 10 mature cannabis plants were growing hydroponically in GK’s bedroom in which there were nine large powerful lights, ten individual transformers upping the wattage to power the lights, seven power boards, five timers connected with the system and numerous electrical cables and water pipes. There were holes cut in the ceiling and the floor to facilitate a ducting system for circulating the air in the room. There were another 10 mature cannabis plants growing hydroponically in the bedroom of MK which was set up in a similar fashion to GK’s bedroom. Another bedroom had been set up as a drying room for harvested cannabis and contained a number of heaters and exhaust fans. In the bathroom 27 small cannabis seedlings were growing in a plastic container.
On 13 March 2002 the house caught fire and was substantially damaged. This fire was caused by a fault in an exhaust fan in the drying…

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.

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Details

Case: [2002] SADC 155
Decision Date: 5 December 2002

CaseChat Overview and Summary

In the South Australian District Court, Gjovalin Kulli and Margarita Hile Kulli faced charges for their involvement in the production of cannabis, in contravention of the Controlled Substances Act 1984. Both defendants pleaded guilty, but disputed the commercial nature of their cannabis production. The case was referred for a disputed facts hearing to determine the commerciality of the operation. During the hearing, the prosecution and defence agreed that the charge would be limited to the 20 mature cannabis plants found at the scene, with other seedlings treated as circumstantial evidence.

The legal issues before the court were the commercial nature of the cannabis production and whether the sentences should be suspended. The court had to assess the evidence presented, including the sophisticated hydroponic system, the number of plants, and the significant electricity usage, to determine whether the production was for personal use or commercial purposes. The court also needed to consider the defendants' pleas of guilty, their backgrounds, and the need for general deterrence in imposing the sentence.

In reaching its decision, the court found that the substantial purpose of the defendants' actions was commercial, as evidenced by the elaborate hydroponic system, the number of plants, and the high electricity usage. The court rejected the defendants' claims that the cannabis was for personal use or for supplying friends, finding instead that the operation was intended for commercial sale. Given the serious nature of the offence and the need for general deterrence, the court imposed a sentence of 26 months imprisonment for each defendant, with non-parole periods of 16 months for Gjovalin Kulli and 8 months for Margarita Hile Kulli. The sentences were not suspended due to the significant commercial element and ongoing nature of the operation.

The final orders of the court included the imposition of the specified sentences, with non-parole periods, and the court reserved the right to hear any application for a forfeiture order from the prosecutor.

Orders