R v Nayda

[2000] SASC 52

R v NAYDA
[2000] SASC 52

Court of Criminal Appeal:  Prior, Williams and Martin JJ

1. PRIOR J:         In this appeal the appellant complains of a sentence of three years and six months imprisonment with a non-parole period of 16 months, imposed in the District Court for two breaches of s 32 of the Controlled Substances Act 1984.

2. At his trial, the appellant pleaded guilty to producing cannabis but not guilty to possessing cannabis for sale. A jury returned a unanimous verdict of guilty of the disputed charge. The trial judge invoked s 18a of the Criminal Law (Sentencing) Act 1988 in imposing the sentence referred to. In this appeal the appellant says that the sentence was manifestly excessive and that the sentencing judge erred in refusing to suspend the sentence of imprisonment she imposed.

3. The offences were committed in July and August of 1998 at Wool Bay.  The more serious charge was confined to a single occasion, 4 August, whereas the charge of producing cannabis related to a period between 1 July and that day in August.

4. Cannabis plants were found in a shed at the appellant’s property.  The plants were in two groups; one being 12 flowering female plants cultivated hydroponically under lights, with another group of 14 in pots, being smaller and not yet flowering.  Loose material had been cut from the larger plants.  There was some 1.1 kilograms of slightly moist head and leaf found in a plastic bag inside a wardrobe of the appellant’s house.  There were 2.5 kilograms of material drying on a rack in the shed and just under 3 kilograms in a blue tub in the shed.  The sentencing judge said that the 3 kilograms in the blue tub may or may not have been intended for use by the appellant.

5. The issue at trial was that the possession of all the cannabis was for the use of the appellant and his wife alone and not for sale.  The trial judge described the production as primarily a commercial one.  She rejected the appellant’s evidence that he had no future plans for the smaller plants except to dispose of them.  Rather, Her Honour’s view was that those plants were being kept by the appellant ready for the time when the harvest of the mature crop was completed, when the smaller plants would have been moved into position in the principal growing area.  Her Honour further found that if the larger plants were grown from seed, the appellant had already culled the male plants.

6. Her Honour also rejected the evidence given by the appellant to the jury that the bag of material from within the wardrobe was still moist because, in his inexperience, he had failed to properly dry it.  Her Honour was satisfied, beyond reasonable doubt, that there was no other reason for him to separate that quantity from the other picking still drying in the shed, but that the bag amount was to be sold and very soon.

7. Her Honour acknowledged that the applicable penalty maximum, which was the same for both offences, placed the appellant’s offending at the lower end of the scale given that the penalty was applicable to between 20 and 99 plants and between 2 and 10 kilograms of loose material.  However, Her Honour said that against that was to be weighed her findings that this was an on-going production and that the sale of a substantial quantity was imminent.

8. Her Honour accepted evidence from a botanist that each of the plants grown would have yielded at least 100 grams of dried useable material from the female flowering crop and leaf.  On that basis, Her Honour refused to categorise the offending in the way submitted.

9. Her Honour referred to the appellant’s personal circumstances.  He was a man, almost 62 years of age at the time of sentencing, with previous convictions for building breaks, more than 25 years before the jury’s verdict.  Her Honour properly regarded those convictions as so old that they were not significant.  She referred to the appellant’s working life as, apparently productive, and to the improvements he had effected at his retirement property at Wool Bay since 1994.  Her Honour also referred to his community work and his good financial position.

10. Her Honour also referred to the appellant’s health problems.  She detailed them but said that she had no reason to believe that, should the appellant be imprisoned, he could not be properly cared for.  Her Honour declined to take into account the possibility that the appellant would lose his interest in the matrimonial home because of the provisions of the Criminal Assets Confiscation Act 1996. It cannot be said that Her Honour erred in doing that.

11. After reference to authority, the sentencing judge said that she saw the critical feature of the appellant’s offending in that he had established what, Her Honour found, was an ongoing wholesaling operation.  She then imposed the head sentence of three years and six calendar months and imposed what, she described, as a lower non-parole period than she would otherwise have done because of the appellant’s age, good record over the last quarter century and his health problems.  The non-parole period of 16 months must be acknowledged as that against the head sentence.  Equally, the head sentence imposed is within the appropriate range of penalties for this kind of offending given the observations made by this Court in a number of cases.  I reject the submission that the sentencing judge placed too much emphasis on what she found to be an on-going wholesale operation and not enough regard to the matters put in mitigation.  Likewise, I reject the submission that Her Honour failed to give enough weight to a combination of circumstances, including the appellant’s age, good employment history, his poor health and absence of recent offending.  Similarly, it cannot be said that because the appellant had not previously served an immediate term of imprisonment it was inappropriate to impose the sentence actually fixed by the sentencing judge.  The sentence imposed was not manifestly excessive.

12. As for the second ground of appeal that the sentence should have been suspended, in my view, Her Honour properly considered whether there was good reason to suspend. She observed that had the appellant pleaded guilty to both counts his claim for a suspended sentence would have been greater but that, in the end, she took the view that the offending was so serious it would be inappropriate to suspend the sentence. She therefore declined to do so and ordered the sentence imposed to commence forthwith. Her Honour also made an order for forfeiture of the cannabis pursuant to s 52A of the Controlled Substances Act.

13. Notwithstanding the submissions put on the hearing of this appeal, I cannot accept that there is error in the exercise of the sentencing discretion by the sentencing judge.  She considered the exercise of the power to suspend and declined to do so.  It is not for this Court to interfere unless there is some identifiable error in the consideration of the exercise of that discretion.  I cannot identify one.  The appeal must therefore be dismissed.