R v Selita - [2004] SASC 292

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SELITA
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Gray)
17 September 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
Appeal against sentence - appellant convicted for possession of cannabis for sale or supply pursuant to s32(1)(e) of the Controlled Substances Act 1984 (SA) - confession made to all elements of offence - appellant pleaded guilty to possession for supply but disputed possession was for purpose of sale - disputed facts hearing re appellant's involvement in sale - 18 month suspended sentence imposed in District Court - sentence upheld on appeal - no distinction made between supply and sale - sentencing judge erred in finding onus on Crown to prove commerciality - conclusions and findings set aside but sentence found to be appropriate - appeal dismissed.
Controlled Substances Act 1984 (SA) ss 4, 32, 44; Criminal Law Consolidation Act 1935 (SA) s 353(4), referred to.
R v Hoang (2002) 83 SASR 254; R v Rowan (2003) 85 SASR 364; R v Rear [1965] 2 QB 290; R v Leung (1999) 105 A Crim R 398, considered.

R v SELITA
[2004] SASC 292
Court of Criminal Appeal: Perry, Nyland and Gray JJ

PERRY J. This is an appeal by leave against the sentence imposed upon the appellant on a charge of possessing cannabis for sale or supply.
Upon his arraignment in the District Court on 14 July 2003, a plea was recorded in the following terms, as noted on the Information:
“Not guilty for sale but guilty to supply. Not accepted by the DPP in satisfaction of the charge. No allocatus given.”
On 28 August 2003, the sentencing judge conducted what was described as a disputed facts hearing. At the hearing, no oral evidence was called by the Crown, but the witness statements and an agreed statement of facts were tendered. The appellant gave oral evidence.
On 10 November 2003, the sentencing judge gave a ruling as to the disputed facts, as to which he published written reasons.
He remanded the appellant to 26 November 2003 for submissions on sentence, which he received on that date, following which he remanded the appellant for sentence.
On 19 December 2003, the sentencing judge passed sentence and ordered that the appellant be imprisoned for 18 months with a non-parole period of 9 months. The sentence of imprisonment was suspended on the entry by the appellant into a two year good behaviour bond in the sum of $500.
It is from that sentence that the appeal is brought.
The notice of appeal, as amended, purports to be an appeal against both conviction and sentence.
However, leave was given only to appeal against the sentence.
In the notice…

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 Selita

Details

AGLC: R v Selita [2004] SASC 292
Case: [2004] SASC 292
Decision Date: 17 September 2004

CaseChat Overview and Summary

The case of R v Selita involved an appeal against sentence by the appellant, who was convicted of possession of cannabis for sale or supply under section 32(1)(e) of the Controlled Substances Act 1984 (SA). The appellant pleaded guilty to the possession for supply but contested that the possession was for the purpose of sale. A disputed facts hearing was conducted to determine the appellant's involvement in the sale. The District Court imposed an 18-month suspended sentence, which was upheld on appeal. The appeal was dismissed, but the conclusions and findings of the sentencing judge were set aside due to an error in the onus of proof.

The primary legal issue in this case was whether the sentencing judge erred in placing the onus on the Crown to prove that the possession of cannabis was for commercial purposes. The appellant argued that the sentencing judge should not have found the onus on the Crown to prove the commerciality of the possession. The court had to determine if this error warranted setting aside the sentence imposed by the District Court.

The court found that the sentencing judge had indeed erred in placing the onus on the Crown to prove the commerciality of the possession. However, the court concluded that this error did not necessarily mean that the sentence should be set aside. The court noted that the appellant's conduct was serious and warranted a significant term of imprisonment, which was well within the sentencing discretion for this type of offending. The court also considered the appellant's personal antecedents and found the decision to suspend the sentence merciful but appropriate. Accordingly, the appeal against the sentence was dismissed, and the sentence imposed by the District Court was upheld.

The final orders of the court were to dismiss the appeal against sentence, set aside the conclusions and findings of the sentencing judge, and uphold the 18-month suspended sentence imposed by the District Court.

Orders

Orders of the court

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Background

Background to the litigation

Those grounds, with the possible exception of ground 2, are relevant to the appeal against sentence for reasons which I will in due course explain. I will, therefore, address them in the context of the appeal against sentence.Background Circumstances On Sunday 3 November 2002, a police officer observed the appellant emerge from a house at Woodville. He appeared to be carrying a number of plastic bags. The appellant placed the bags in a car and drove off in the car. The police officer followed the appellant as he drove off. The appellant stopped and parked the car at an address at Kilkenny. After the appellant emerged from the car, the police officer approached, whereupon the appellant ran off. He was located and arrested by a police patrol shortly afterwards. The plastic bags turned out to be filled with freshly harvested cannabis leaves. On the defended facts hearing, the appellant said in evidence that he had received a telephone call while he was in a coffee shop at Findon from “someone”, whom he did not name, who told him to go to the address at Woodville to pick up “some flowers”. The keys to the house would be in the letter box. He complied with this instruction, and went to the house. On entry, he located a pair of scissors and cut up two marijuana plants, which he placed in five garbage bags, which were the bags subsequently seen by the police officer and later seized. There was no evidence of any occupier of the house, but installed in the house was an extensive hydroponics set-up for cultivating cannabis. The appellant’s evidence was that he was to “send” the five garbage bags containing the flowers “somewhere else”. He did not say where that was to be, except that in cross-examination he said that he was to deliver it to the man who had telephoned him. He said that he had never been to the house before. In cross-examination, the appellant said that the person who had asked him to go to the house was “not a close friend”. He understood that he was to receive a small amount of the cannabis, for his assistance. When it was put to him in cross-examination that he “must have been aware, from the circumstances of the set up of that house, that someone was intending to sell that cannabis”, he said “I don’t know”. In the information upon which the appellant was charged, it is alleged by way of particulars that the amount of cannabis was in excess of 10 kilograms. However, at the hearing, and for sentencing purposes, the sentencing judge noted that the Crown accepted that the quantity which was relevant for his consideration was what he described as the “dry, saleable quantity”. It was accepted that using the maximum “dry-off” rate of 80 per cent, the quantity of cannabis would reduce to 2.114 kilograms, representing a street value of between $11,650 and $35,200. The sentencing judge accepted that a further reduction, of about a third, was warranted by reason of the fact that the cannabis included some “useless stem material”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J

A relevant matter in the exercise of the sentencing discretion is the weight of the cannabis to be sold. An analysis of the probable weight after drying may be made and a maximum and minimum estimate made. It is open to a judge to undertake this process and proceed to sentence having regard to the minimum calculated weight of saleable material as a relevant consideration. This was the approach followed in the present case.Conclusion As has been earlier observed, error on the part of the sentencing judge has been established. The error was one of principle. He treated the appellant as carrying an onus on the issue of whether the appellant’s possession was for sale or supply. As a result his findings must be set aside. However it does not follow that the sentence should be set aside. The Crown submitted that even if the court accepted the appellant’s version of the facts, a suspended sentence of imprisonment of eighteen months with a non-parole period of nine months was an entirely appropriate penalty. As earlier observed, the circumstances of the offending involved the appellant proceeding to a property where there was an extensive hydroponic cultivation of cannabis, following a telephone request. The appellant’s role was to remove the flowers from plants. He did so and filled five bags to a weight of more than ten kilograms. His task was then to make delivery. At that time he would be rewarded for his efforts with a small parcel of cannabis. This was serious offending and in the ordinary course called for a significant term of imprisonment. He was exposed on this admitted version to a term of imprisonment of up to 25 years. The head sentence and the non-parole periods fixed by the sentencing judge were well within the sentencing discretion for this offending. The decision to suspend the sentence was merciful but appropriate given the appellant’s personal antecedents. Section 353 of the Criminal Law Consolidation Act 1935 (SA) relevantly provides:(4) Subject to subsection (5), on an appeal against sentence, the Full Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and in any other case shall dismiss the appeal.(5) The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence. The sentence imposed was an appropriate sentence for the admitted conduct. This appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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