R v Petroff - [2005] SASC 449

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PETROFF
Reasons for Decision of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice White)
24 November 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Application by the Director of Public Prosecutions for leave to appeal against a sentence imposed in the District Court on the ground that it was manifestly inadequate - the respondent pleaded guilty in the District Court to taking part in the production of cannabis contrary to s 32(1)(b) of the Controlled Substances Act 1984 - application granted, appeal allowed, sentence of imprisonment increased to four years six months with a non-parole period fixed at three years three months.
Controlled Substances Act 1984 s 32(1)(b), referred to.
R v Nemer (2003) 87 SASR 168, applied.
Everett v R (1994) 181 CLR 395; R v Osenkowski (1982) 30 SASR 212, considered.

R v PETROFF
[2005] SASC 449
Court of Criminal Appeal: Doyle CJ, Sulan and White JJ

DOYLE CJ (ex tempore) : This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed by the District Court. The Director claims that the sentence is manifestly inadequate.
Mr Petroff pleaded guilty to taking part in the production of cannabis. The maximum penalty for the offence is a fine of $500,000 or imprisonment for 25 years, or both.
The material before the Judge established that Mr Petroff was involved in the production of a very large crop of cannabis at Waterloo Corner. The crop was growing in glasshouses. Attempts had been made to obscure the crop by planting rows of vegetables around it. The crop comprised almost 2,000 plants. The value of the crop was estimated at somewhere between $2 million and $3 million. It was a relatively sophisticated set-up for watering and growing the crop.
All in all, this was a very substantial undertaking. It was established before the Judge that Mr Petroff arranged to lease the premises, pretending they were to be used for market gardening. He paid a rent of $10000 in advance. He was involved in tending to the crop and in caring for it.
Before the Judge, Mr Petroff claimed that he was to receive only $10,000 by way of reward. He was claiming to be a relatively minor participant. The Director did not accept that claim. However, there was no evidence on which the Judge could make findings about the amount of the gain that Mr Petroff would make, or about the role of others in the crop. The Judge rightly took the view that he should sentence by reference to the fact that this was a very substantial crop, with very considerable value, and that on the facts Mr Petroff had a substantial involvement in its production. It was not necessary for the Judge to make a finding about Mr Petroff’s precise place in the arrangements. However, as I said, it is clear he had a significant role in the enterprise. This was a large commercial enterprise. The profits would have been substantial.
Mr Petroff is 35 years of age. He has an unremarkable background. The background includes an offence of manufacturing cannabis in 1987. Without a conviction being recorded, he was placed on a bond. Having regard to the age of that conviction, I do not regard it as significant. Material before the judge indicated that Mr Petroff was well regarded by those who knew him. He had a reasonable employment history.
The inference is that he committed the offence for gain. There is no other apparent explanation. In short, this is a fairly common case of a mature man, with no record of significant offending, involving himself in the production of a significant cannabis crop with a view to gain. Offending of this kind is not uncommon. It plays a significant part in the trade in cannabis in this State. It is reasonable to assume that a good deal of the cannabis that is traded in this State, comes from undertakings like the one which Mr Petroff was involved, be they smaller or larger.
This emphasises the importance of deterrence as a factor at arriving at an appropriate sentence. The importance of deterrence leaves less scope for weight to be given to what otherwise might be mitigating personal circumstances.
The Judge said that but for the plea of guilty, he would have imposed a sentence of four years imprisonment. He reduced the sentence to three years. He fixed a non-parole period of two years. He declined to suspend the sentence.
The principles on which the Court acts when considering an application by the Director for leave to appeal, are well established. As has been said on many occasions before, the Court should grant leave to appeal only when it is necessary to enable the court to determine a matter of principle, to correct an error of principle, to establish an appropriate standard for a particular kind of offending, or to correct a manifest inadequacy in a sentence which is so significant as to amount to an “error in principle”: Everett v The Queen (1994) 181 CLR 295 at 300 Brennan, Deane, Dawson and Gaudron JJ. I refer also to The Queen v Osenkowski (1982) 30 SASR 212 at 213.
As I said in R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at [23]-[24], it is not appropriate to grant leave to the Director to appeal merely with a view to correcting the sentence that is too low. But if a sentence is so far below the appropriate sentence that to allow it to stand would shake public confidence in the administration of justice, it might be appropriate to grant leave to appeal, even though no general point of principle arises.
There is no apparent error of law or fact in the present case. No particular issue of principle arises, nor is there an error of principle.
However, in my view the sentence is below what I would regard as the appropriate standard or level for offending of this seriousness. In my opinion, a starting point of not less than six years is an appropriate minimum for offending of this seriousness, leading to a head sentence, if a reduction of one quarter is allowed as the Judge did, of no less than four years six months. The starting point could have been higher. I consider that a starting point of eight years resulting in a sentence of six years imprisonment would have been appropriate. It may be that an even higher starting point could prove to be appropriate. It is not necessary to decide that. But I emphasise that in my opinion, the sentence should not have been less than four years six months after allowance for the plea of guilty, as a minimum.
The difference between the sentence imposed, and what I regard as an appropriate minimum for offending of this seriousness is one year six months. This is a substantial difference. I emphasise that I have referred to it as a minimum for offending of this seriousness. As I have already said, the sentence might well have had a higher starting point.
To allow the sentence to stand will tend to undermine the appropriate sentencing standard or approach. If the sentence is allowed to stand, there is a risk that public confidence will be shaken. Members of the public might well think it surprising that a person with a substantial crop worth between $2 million and $3 million should escape with a head sentence as low as three years imprisonment.
It is open to the Court to identify the error made but decline to intervene. However, it will be appropriate to do that only when there is some reason not to intervene. In this case I cannot identify any particular reason why the court should not intervene. For those reasons, I would grant leave to the Director to appeal against the sentence.
For the reasons I have given, having granted leave to appeal, I would allow the appeal. It is not sufficient in this case simply to identify the error made without intervening.
For those reasons, I would set aside the sentence imposed by the District Court. I would substitute a sentence of imprisonment for four years six months. On an appeal by the Director it is open to the Court to impose a merciful sentence and I am content to do that, the sentence being what I have already identified as a minimum that would be appropriate for this offence.
In relation to that sentence of imprisonment, I would fix a non-parole period of three years three months. I would order that the head sentence and the non-parole period take effect from 5 September 2005, the day on which the District Court Judge sentenced Mr Petroff.
SULAN J: I agree with the orders that the Chief Justice proposes and I agree with the reasons that he gives.
WHITE J: I agree with the reasons of the Chief Justice and the orders which he proposes.
DOYLE J: Accordingly, the orders of the Court are as follows:
1. That leave to appeal be granted to the Director.
2. That the appeal be allowed.
3. That the sentence imposed by the District Court be set aside.
4. That there be substituted a sentence of imprisonment for four years, six months.
5. That a non-parole period of three years three months be fixed in relation to that head sentence.
6. That the head sentence and non-parole period commence from 5 September 2005.