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

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.
The appellant argues…

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 Paloja

Details

AGLC: R v Paloja [2014] SASCFC 92
Case: [2014] SASCFC 92
Decision Date: 20 August 2014

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, who had pleaded guilty to two counts of cultivating a commercial quantity of cannabis, unlawfully abstracting electricity, and possessing prescribed equipment. He also admitted to breaching a suspended sentence bond. The dispute centred on the factual basis for the sentence, particularly concerning the first cultivation offence in 2010, and whether the sentence imposed was manifestly excessive or should have been suspended. The matter was heard by Vanstone, Nicholson, and Bampton JJ in the Court of Criminal Appeal.

The legal issues before the Court of Criminal Appeal were whether the sentencing judge had erred by imposing sentence on an incorrect factual basis, whether the sentence was manifestly excessive, and whether the judge's decision not to suspend the sentence was justified. The appellant argued that his role in the 2010 cultivation was minor and that the judge had misapprehended the situation regarding restitution, which he contended should have influenced the decision to suspend the sentence.

The Court dismissed the appeal, finding that the factual basis upon which the sentencing judge proceeded was open to him on the papers and submissions before him. The Court held that identifying the precise nature of the appellant's role in the cultivation was not an essential element of the sentencing process. The judge's remarks concerning restitution were considered well-justified and accurate. The Court concluded that the sentence imposed was moderate and that the decision not to suspend it was not only open to the judge but was dictated by the appellant's course of conduct.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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. I would dismiss the appeal. NICHOLSON J: I would dismiss the appeal. I agree with the reasons of Vanstone J. BAMPTON J: I would dismiss the appeal for the reasons given by Vanstone J.

Ratio Decidendi

Legal Principle Established

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