R v Paloja

[2014] SASCFC 92

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PALOJA

[2014] SASCFC 92

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Nicholson and The Honourable Justice Bampton)

20 August 2014

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE

Appeal against sentence - appellant pleaded guilty to two counts of cultivating a commercial quantity of cannabis, unlawfully abstracting electricity and possessing prescribed equipment and admitted breaching a suspended sentence bond - first offence of cultivation in 2010 - second offence of cultivation and other offences in 2012 while on bail for the 2010 matter - factual basis of the 2010 cultivation contested - no evidence called - sentencing judge to decide on the papers - no offer of restitution made by appellant - suspension of 14 day sentence revoked - judge imposed a single sentence of three years and seven months cumulative on the 14 days - whether the judge sentenced on an incorrect factual basis - whether the sentence was manifestly excessive - whether the sentence should have been suspended.

Held:  appeal dismissed - basis was open on the papers and on the submissions - identification of the precise nature of the appellant's role was not an essential part of the sentencing process - the judge's remarks about restitution were well justified and accurate - the sentence was moderate - decision not to suspend was not only open to the judge but was dictated by the course of conduct.

Criminal Law (Sentencing) Act 1988 (SA) s 38(2), s 58, referred to.
R v Olbrich (1999) 199 CLR 270; R v Calabria (1982) 31 SASR 423; R v Buckman (1988) 47 SASR 303, considered.

R v PALOJA
[2014] SASCFC 92

Court of Criminal Appeal:  Vanstone, Nicholson and Bampton JJ

1. VANSTONE J:     Egzon Paloja appeals against a sentence imposed in the District Court.  He pleaded guilty to two counts of cultivating a commercial quantity of cannabis, unlawfully abstracting electricity and possessing prescribed equipment.  He admitted that the first cultivation was in breach of a bond for driving whilst disqualified which was associated with a 14 day suspended sentence.  The sentencing judge imposed a single head sentence for all the new offences of three years and seven months imprisonment, cumulative on the 14 days sentence.  A non-parole period of one year and three months was fixed.  The sentence was not suspended.  The maximum penalty for cultivating a commercial quantity of cannabis is a fine of $200,000 or imprisonment for 25 years or both.  The maximum penalty for abstracting electricity is a fine of $20,000 or imprisonment for two years or both.  For possessing prescribed equipment it is a fine of $10,000 or imprisonment for two years or both.

2. The appellant argues that the sentence is manifestly excessive and, with greater emphasis, that the judge erred in failing to suspend it.  Both grounds encompass complaints about the factual basis upon which sentence was imposed.

   Background

3. The first cultivation offence occurred between 1 January and 24 February 2010 and involved 36 cannabis plants.  These were grown hydroponically in a house rented for the purpose in Parafield Gardens.  At the time police attended at the house and detected the crop, one Matthew Paul Vegera was present.  He was the only person charged at that stage.  As it happened, he was later sentenced by the same judge.  He received a two year suspended sentence.  The appellant was not arrested and charged with this offence until July 2012, after his fingerprints and DNA were located on items seized from the house.

4. In August 2012, while on bail for the 2010 offence, the appellant rented a house at Alberton and used it to grow another hydroponic crop.  On 14 December 2012 police discovered 20 cannabis plants in the house.  As a result the appellant was charged with the second cultivation offence, as well as abstracting electricity and possessing prescribed equipment.  In modifying the house for the cultivation, damage assessed at about $24,300 was caused.

5. The offences were charged on two separate informations.  The appellant pleaded guilty to the 2012 offending in the Magistrates Court and was committed for sentence.  The 2010 offence was originally contested.  Following two special directions hearings in the District Court a guilty plea was entered.  After the plea the extent of the appellant’s involvement in the cultivation remained contentious.  However, no evidence was called on the matter and it was left to the judge to decide the issue on the papers.

   Arguments on appeal

6. Mr Griffin QC for the appellant argues that sentence was imposed on an incorrect factual basis in relation to the 2010 crop.  The plea in mitigation to that crime was put on the basis that the cultivation belonged to the man, Vegera, who was a friend of the appellant.  It was put that the appellant attended at the house on a number of occasions only to keep company with his friend.  It was accepted that his DNA was found there on a pair of scissors, a soft drink container and on a play station control and there was a fingerprint of his on two of the lightshades.  The plea was put on the basis that on one occasion only the appellant had helped Vegera to trim some of the plants, using these scissors.  It was submitted to the judge that the appellant had not expected any reward for what he did.

7. Counsel for the prosecution then appearing informed the judge that the factual basis of the plea was not accepted.  It was submitted that it was unlikely that the appellant went to the house merely to keep company with Vegera, or that he would help trim the plants without expectation of reward.  Notwithstanding that intimation, defence counsel told the judge that the appellant did not plan to give evidence in support of his version.

8. In the face of these submissions the judge, in her remarks on sentence, determined to sentence the appellant “on the basis that [he was] involved [in the 2010 crop] on an ongoing basis”.  She noted that he admitted attending at the premises on a number of occasions.  The judge also referred to his involvement in the later drug crop as being a matter to which she had had regard.  Mr Griffin contends that there was no basis upon which a finding of ongoing involvement could be made and that the later cultivation was of no relevance to this issue.

9. Complaint is also made about a reference in the sentencing remarks to the appellant’s attitude to making restitution for the damage caused to the Alberton house.  The matter of restitution was first raised by then prosecuting counsel on 5 September when it was foreshadowed that, although there would be an application for an order that the appellant pay compensation, to this point the amount sought had not been quantified.  The matter was again mentioned on 25 October, when defence counsel noted that two statements had been received about the damage to the house, one being from the landlord and another from the insurer, QBE.  Defence counsel advised that he still had to speak to his client about “the agreement to pay the damage”.  He said “obviously it is a huge difference but I am sure that will be sorted out”.  Prosecuting counsel confirmed during the same hearing that the extent of the loss was $24,300, being the lower of the two figures.

10. The matter next came on before the judge on 6 December.  Mr Barklay appeared for the appellant from this point before the District Court.  Again the basis of the plea of guilty was traversed, but there was no reference to the matter of restitution.  There was discussion about the desirability of obtaining a psychiatric report dealing with the difficult life which the appellant had endured in Kosovo before he came to Australia.  The matter was adjourned for that purpose.

11. On 30 January 2014 the matter was again before the judge but arrangements had not been made in a timely manner for the obtaining of the report.  Again, the matter of restitution was not mentioned.

12. By 21 March, when the matter was called on, the psychiatric report had been received and submissions about it were made.  Towards the end of that hearing prosecuting counsel made application for a compensation order in the sum of $24,300.  Defence counsel advised the judge that he had not taken “formal instructions” on the matter but said that he would do so.

13. On 28 March 2014, being the day of sentence, defence counsel advised the judge that his instructions were that the appellant would not be able to pay anything towards the damage if he were in gaol but, if given a suspended sentence, would be able to pay.

14. In these circumstances the appellant argues that the following statements made by the judge in her remarks on sentence were unfair.  Her Honour said:

    There were earlier submissions made to me about your desire to repay the owner for his loss but you have done nothing about that.  I note that this matter has been before this Court for nearly 12 months.  The submissions have been ongoing since at least about September 2013 and I think that at that stage and times thereafter the issue of repaying the considerable costs to the owner of the house were raised and assertions were made about your intention to do something about that.  To date nothing has been done.  I am told that if I leave you in the community you will effect restitution or repayment.

    It is complained that it was inaccurate to suggest that the appellant had, through his counsel, expressed a desire to repay the owner for the loss and inaccurate to say that assertions had been made about his intention to do so.

15. Mr Griffin argues that these errors were such as to permeate the entirety of the judge’s reasoning in relation to imposition of sentence, and particularly in relation to whether good reason to suspend the sentence should be found.  He drew the Court’s attention to passages of transcript in two “special directions hearings” which had occurred before the same judge prior to entry of the plea of guilty in relation to the earlier charge.  In those hearings the judge intimated – without a full appreciation of the breadth of the matters to be considered – that the appellant might be a candidate for a suspended sentence.  Mr Griffin drew our attention to these matters to demonstrate how finely balanced the question of suspension was.

    Analysis

16. I deal first with the factual basis for the 2010 offence.  The submission made on behalf of the appellant was to the effect that his connection with the 2010 cultivation was fleeting and unplanned.  Although he acknowledged having been at the property on a number of occasions and having known of the existence of the cultivation, his implication in the crime rested only upon his involvement, on a single occasion, in trimming some of the plants.  Once this submission was challenged and the appellant determined not to support it by evidence, then the judge was entitled to reject it.  The question is, how was the judge then to proceed?

17. In my view the judge was entitled to take the position she did.  The position of the Court was comparable to that which would have pertained had the judge heard evidence from the appellant but rejected it.  The identification of the precise nature of the defendant’s role was not an essential aspect of the sentencing process:  R v Olbrich (1999) 199 CLR 270 at [13]. The sentencing judge was not required to assume the least degree of involvement in the crime: R v Calabria (1982) 31 SASR 423 at 437 per King CJ, White and Matheson JJ agreeing. The submission that the appellant’s involvement was, in effect fleeting, was a matter going to mitigation and therefore fell to be proved by the appellant on the balance of probabilities: Olbrich at [27]. The appellant did not undertake that task.

18. In any event, the sentencing judge had the appellant’s own admission that he had attended at the property on a number of occasions.  Whatever is precisely embodied in the statement that he was involved on an “ongoing basis”, that seems to me to be within the ambit of the inferences available to the judge.  Moreover, I do not accept the suggestion that in considering the appellant’s role in the 2010 cultivation the judge was disallowed from considering his leading role in the later crop.  As a matter of common sense, the course of the appellant’s conduct was something which could be brought to bear on what was rather a weak plea in mitigation of the earlier offence.

19. Turning to the question of restitution, it may be accepted that this was a matter which was weighed by the judge.  The judge’s observation that the damage to the house used in 2012 was substantial and that nothing had been done to repay the owner even though the matter had been in the District Court for nearly 12 months, when the appellant was in work, was unexceptional.  Those remarks would have been well justified even without any reference to the question of restitution during submissions.  But more, the question of restitution was, as seen, raised at an early stage by the judge.  I have earlier set out some of the remarks made about it by the appellant’s then counsel and it can be seen that, as early as 25 October 2013, it appeared as if agreement to pay an amount towards the damage would be reached.  Notwithstanding that intimation nothing was done to progress the matter.  While the change of defence counsel during the period of the submissions might have interrupted any process which was in train, ultimately nothing at all was done during the 12 month period.  In my view the judge was understandably unimpressed at that situation and the remarks made on the topic were justified and accurate.

20. There is another matter which needs to be addressed.

21. As noted, the 2010 offence breached a bond associated with a 14 day suspended sentence imposed for driving disqualified. An application for estreatment was granted by the judge. Section 38(2) of the Criminal Law (Sentencing) Act 1988 (Sentencing Act) addresses the situation faced by the appellant.  It provides as follows:

    (2)A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.

    On its face, this subsection eliminated any discretion to suspend the sentence for the breaching offence. Only if the judge found that the failure to comply with the terms of the bond was “trivial” or that there were “proper grounds” upon which the failure could be excused could the judge refrain from revoking the suspension: s 58 Sentencing Act. This issue was not raised with the judge; nor was her attention drawn to these sections. But in terms of s 58, the failure to comply was certainly not trivial and it is hard to see how there could have been proper grounds to excuse it. The breaching offence was more serious than the original offence. Revoking the suspension would not lead to a disproportionate consequence: R v Buckman (1988) 47 SASR 303, at 304 and 309.

22. During the appeal argument the appellant’s counsel seemed to be submitting that if the judge had decided to suspend the new sentence then this obstacle could have been surmounted.  It is not clear to me how such an outcome could have been achieved.

    Conclusion

23. The arguments of Mr Griffin in support of this appeal focussed primarily on suspension and suggested that a factual error in relation to the earlier cultivation and a misapprehension going to the question of restitution could have weighed with the sentencing judge in the decision that there was no good reason to suspend.  Mr Griffin also argued that, although the sentence imposed could be seen to be moderate, had the factual errors not been made, a lesser sentence could well have been justified.

24. In the event I do not agree that the judge erred.  In my view the sentence imposed was moderate, and the circumstances of the appellant’s life prior to coming to Australia, which indeed engender strong feelings of sympathy, were adequately reflected in the moderate head sentence and more particularly in the non-parole period.

25. I would dismiss the appeal.

26. NICHOLSON J:   I would dismiss the appeal.  I agree with the reasons of Vanstone J.

27. BAMPTON J:                   I would dismiss the appeal for the reasons given by Vanstone J.