R v Loleit No. Sccrm-98-33 Judgment No. S6698
[1998] SASC 6698
•22 May 1998
R v LOLEIT
Court of Criminal Appeal
Coram: Prior, Olsson and Williams JJ
Williams J:
This is an appeal against sentence imposed in the District Court of South Australia on 23 December 1997 for the offence of possessing of cannabis for sale contrary to s32(1)(e) of the Controlled Substances Act 1984.
Upon arraignment on 27 May 1997 the appellant pleaded not guilty and the matter proceeded to trial on 22 September 1997, when, after a hearing on the voir dire, the case was adjourned to 24 September 1997; the appellant then entered a guilty plea to the charge that on 16 January 1997, at Snowtown, he knowingly had an amount of cannabis in excess of 2kg in his possession for the purposes of sale.
The appellant was sentenced to four years imprisonment with a non-parole period of two years, six months. Leave to appeal was granted on 9 March 1998. The grounds of appeal are that the sentence, including the non-parole period, is manifestly excessive.
Police searched a cabin cruiser in the carport of the appellant's premises and seized about 8 1/2 kg of dried, high quality cannabis sealed in plastic bags. The sealing of the bags was carried out by special device found in the appellant's house. The equipment suggests an enterprise of some sophistication.
The appellant, aged 38, has a history of minor offending, going back to 1978, but his record includes a conviction on 30 September 1993 for producing amphetamine for sale, for which he was given a sentence of two years, upon which he served nine months in prison. This was the second time that year that he had been convicted of producing a controlled substance, the earlier conviction being in respect of cannabis.
On 24 November 1993 the appellant was convicted of possession of cannabis and on 30 August 1995 the appellant was convicted of producing cannabis. On 9 July 1997 the appellant was dealt with for possession of cannabis and equipment.
It is apparent, from the psychiatric report, that someone else was involved in the present offending, but the appellant claims to be in fear of disclosing the full facts. There is no evidence of any cooperation with the authorities by the appellant. The appellant's counsel acknowledged to the sentencing judge that the appellant was aware of the significance of that fact.
The trial Judge referred to the Court of Criminal Appeal's decision in R v Richards (1995) 66 SASR 60. It should be observed that Richards was one of three Crown appeals heard together. The case dealt with sentencing principles for some drug offences, however, in the case of Richards, the Chief Justice pointed out - (and I read from p73 of 66 SASR):
".... the Director of Public Prosecutions sought leave in this case not on the basis of a need to establish or affirm an appropriate standard of punishment, but on the basis that the sentence was so low as to call for the court’s intervention and that the inadequacy constituted error in principle."
The appellant now seeks to make a comparison of the facts of that case with his own appeal. Richards, with the previous history of offending, received a head sentence of four years, with a non-parole period of two years. The amount of cannabis involved in the present case is more than in the case of Richards, where 6.8kg of cannabis, plus 81g of cannabis resin, was involved.
The appellant makes the point that Richards was found guilty by a jury whereas the present appellant did eventually plead guilty. He makes the point that the discount for a plea should have produced a lower sentence and that although the judge has not indicated his starting point for making such a calculation, he must have had a figure in mind which was well above the sentence of four years head sentence in Richards.
It must be remembered that the sentence imposed by the Court of Criminal Appeal in Richards did not purport to fix a sentencing standard. A Court of Criminal Appeal, in the case of a Crown appeal, is often inclined to impose a sentence which is less than that which might be justified at first instance - not ignoring the double jeopardy principle. The sentencing judge described the present case as being part of a most serious criminal enterprise where the cannabis was of high grade.
The discount for a plea, which the appellant could expect, could not have been worth much in view of the late plea and the absence of any cooperation with the authorities and the absence of any evidence of contrition. The amount of cannabis took the offending towards the upper end of the particular sentencing scale, which increases significantly at the 10kg mark.
The failure to indicate the extent of a discount for an offender's plea of guilty does not, of itself, indicate error unless, of course, the failure to mention the plea, and any discount given indicates, in the whole of the sentencing remarks, that the sentencing judge has failed to have proper regard to the plea of guilty (see s10(g) of the Criminal Law Sentencing Act 1988) or to the offender's contrition (see R v Ravlic, an unreported CCA decision, No.S5686 delivered 19 July 1996 at pp4-5).
It does not follow, of course, merely because the learned judge did not indicate the extent to which he took the plea of guilty into account, that he did not give it appropriate weight (see R v Sutherland, unreported decision of the CCA, judgment S3705, delivered 16 November 1992 at p5).
The head sentence was not manifestly excessive, having regard to the following factors:
The maximum penalty fixed for the offence of possessing cannabis for sale in the Controlled Substances Act, s32(5)B(a)(ii).
The gravity of the appellant's offending in which 8 1/2 kilograms of cannabis was involved.
The appellant's late plea of guilty.
The head sentence was not outside the range of penalties applicable for offences of this nature, and I refer to R v Mangelsdorf, Perry and Richards (1995) 66 SASR 60 at 73-75.
A substantial head sentence was required to give proper weight to considerations of individual and general deterrence.
The non-parole period was not manifestly excessive, having regard to the gravity of the offence and the appellant's antecedents. The non-parole period of two and a half years bears an appropriate relationship to the head sentence of four years and brings to account personal factors in a way that makes comparison with other cases unhelpful. There is nothing to suggest the sentencing judge was doing otherwise than applying proper principle in the exercise of sentencing discretion.
I do not consider the grounds of appeal have been made out. In my opinion the appeal against sentence should be dismissed.
PRIOR J: I agree.
OLSSON J: I also agree.
PRIOR J: The order of the court is, therefore, appeal dismissed.
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