R v Mema - [2011] SASCFC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MEMA
[2011] SASCFC 56
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kourakis and The Honourable Justice Peek)
17 June 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
Appeal against sentence - appellant pleaded guilty to two counts of trafficking in a large commercial quantity of cannabis - sentenced to a single term of imprisonment for six years, with three year non-parole period - whether sentence manifestly excessive - whether sentencing judge accorded too much weight to deterrence - whether insufficient credit given for pleas of guilty - whether sentence excessive in comparison to that given a co-offender on one count.
Held: appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

R v MEMA
[2011] SASCFC 56
Court of Criminal Appeal: Vanstone, Kourakis and Peek JJ

VANSTONE J: The appellant pleaded guilty in the District Court to two counts of trafficking in a large commercial quantity of cannabis. The charges reflected the appellant’s participation in an organised drug trafficking operation aimed at transporting cannabis from Adelaide to Sydney. The first count involved 15 kilograms of cannabis, the second about 7.3 kilograms. The appellant was sentenced to one term of imprisonment for six years with a non‑parole period of three years. He appeals against that sentence arguing that it is manifestly excessive, that the learned sentencing judge accorded too much weight to the matter of deterrence, that insufficient credit was given for the pleas of guilty and that the sentence was excessive when compared with the three year sentence given to a co-offender on count 2, one Attenborough.
Background
The two offences contravened s 32(1) of the Controlled Substances Act 1984 (SA). The maximum penalty for each was a fine of $500,000 or imprisonment for life, or both.
The conduct specific to the two counts was as follows. The first count involved the appellant sourcing and packing the 15 kilograms of cannabis, worth between $85,000 and $115,000 on a wholesale basis. Together with a co‑accused, described by the judge as “the ringleader”, the appellant packaged the cannabis in 34 one pound bags and loaded it into a vehicle which was then driven by two other men towards Sydney. It turned out that police had intercepted telephone calls revealing the plan and were able to intercept the two men at Tailem Bend on 7 February 2008. Notwithstanding those arrests, the enterprise continued.
Count 2 was another attempt to transport cannabis to Sydney. The charge spanned the dates 21 February to 7 March 2008 and involved the appellant, the ringleader and Attenborough. The money required for this enterprise was placed by Attenborough into the appellant’s wife’s bank account. The appellant and the ringleader sourced just over 7 kilograms of cannabis, worth roughly $50,000 wholesale, and packaged it into 18…

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 Mema

Details

AGLC: R v Mema [2011] SASCFC 56
Case: [2011] SASCFC 56
Decision Date: 17 June 2011

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, who had pleaded guilty to two counts of trafficking in a large commercial quantity of cannabis. The appellant was sentenced to a single term of six years imprisonment with a non-parole period of three years. The appeal was heard by Vanstone, Kourakis, and Peek JJ.

The central legal issues before the court were whether the sentence imposed was manifestly excessive, whether the sentencing judge had given undue weight to the principle of deterrence, whether insufficient credit had been given for the appellant's guilty pleas, and whether the sentence was excessive when compared to the sentence imposed on a co-offender for one of the counts.

The court dismissed the appeal, finding the sentence to be moderate for the nature of the offending. Regarding the comparison with a co-offender, Attenborough, the court held that the parity principle did not strictly apply as the appellant faced two offences while Attenborough faced only one. The court also rejected the argument that the use of section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose a single sentence without a notional division between the offences indicated error, stating that such practice is unexceptional, particularly for offences of a similar type representing an ongoing criminal enterprise. The court concluded that the appellant could not properly feel aggrieved by the co-offender's sentence.

Orders

Orders of the court

I would dismiss the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In relation to a comparison with the sentence of Attenborough, the following can be said. This is not a case where the parity principle comes strictly into play. As seen, Attenborough faced only one offence whereas the appellant pleaded guilty to two. The fact that the appellant’s sentence was twice that of Attenborough is not suggestive of error. Counsel argued that the use of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose one sentence, without an accompanying explanation of how the sentence was notionally divided between the two offences, indicated error, or at least lack of transparency. I do not agree. Particularly where offences are of a similar type and represent an ongoing involvement in criminal enterprise, the use of s 18A without any accompanying indication of how the sentence is arrived at is, in my view, unexceptional. I do not consider that the appellant could properly entertain any sense of grievance in respect of Attenborough’s sentence.Conclusion In my opinion the sentence of six years with a non-parole period of three years was a moderate sentence for offending of this nature. I would dismiss the appeal. KOURAKIS J: I would dismiss the appeal. I agree with the reasons of Vanstone J. PEEK J: I would dismiss the appeal. I agree with the reasons of Vanstone J.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.