R v Slaven - [2014] SASCFC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SLAVEN
[2014] SASCFC 108
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Justice Bampton)
27 October 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
Appeal against sentence – appellant pleaded guilty to five counts of trafficking in cannabis and one count of trafficking in a large commercial quantity of cannabis – co-offenders were charged with extra offences including cultivating controlled plants for sale and further offences of trafficking in a large commercial quantity of cannabis – all three offenders sentenced to seven years and six months imprisonment – appellant received a non-parole period of four years and six months whereas the co-offenders each received a non-parole period of three years and nine months – whether parity principle should apply – whether there was a discernible difference between the personal circumstances of the appellant and the co-accused warranting a higher non-parole period.
Held: Appeal allowed – appellant re-sentenced to a head sentence of seven years and six months imprisonment with a non-parole period of three years and nine months.
Controlled Substances Act 1984 (SA) s 32; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Lagana [2012] SASCFC 135; Green v The Queen (2011) 244 CLR 462; The Queen v De Simoni (1981) 147 CLR 383; R v Tran & Tran [2011] SASCFC 153; R v Mangelsdorf & Ors (1995) 66 SASR 60, considered.

R v SLAVEN
[2014] SASCFC 108
Court of Criminal Appeal: Blue, Nicholson and Bampton JJ

BLUE J: I agree with Nicholson J and Bampton J.
NICHOLSON J: I have had the benefit of reading the reasons of Bampton J in draft. I adopt her Honour’s description of the factual basis of the offending and agree in substance with her Honour’s analysis of the issues raised on appeal. I also would allow the appeal but only to the extent, upon a re-sentencing, of adjusting the non-parole period to bring it into line with that ordered for each of the two co-accuseds.
I accept the appellant’s submission that when the appellant’s offending and personal circumstances are compared with that of the two co-accuseds, considerations of parity arise. The appellant pleaded guilty to fewer counts as described in the reasons of Bampton J. There was no good reason to merge the appellants and the co-accuseds’ offending in the way the Judge did, when sentencing the appellant. The agreed basis of sentencing described the appellant as being at “arms length” from the co-accuseds. The appellant operated from interstate and his involvement was to purchase from the co-accuseds cannabis grown or otherwise sourced by them in South Australia. There is no direct evidence that the appellant had…

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 Slaven

Details

AGLC: R v Slaven [2014] SASCFC 108
Case: [2014] SASCFC 108
Decision Date: 27 October 2014

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, who had pleaded guilty to five counts of trafficking in cannabis and one count of trafficking in a large commercial quantity of cannabis. The appellant was sentenced to seven years and six months imprisonment with a non-parole period of four years and six months. This was the same head sentence as his co-offenders, who had faced additional charges including cultivating controlled plants for sale and further offences of trafficking in a large commercial quantity of cannabis. The appeal was brought before the Court of Appeal of Western Australia.

The central legal issue before the court was whether the parity principle had been correctly applied in sentencing. Specifically, the court had to determine if there was a discernible difference in the personal circumstances of the appellant compared to his co-offenders that justified the imposition of a longer non-parole period for the appellant. The appellant argued that the disparity in the non-parole periods was unwarranted, given the similar head sentences.

The Court of Appeal allowed the appeal, finding that the sentencing judge had erred in imposing a longer non-parole period on the appellant. The court reasoned that while the appellant's role in the drug syndicate was significant, involving the transfer of substantial sums of money and some on-selling, the co-offenders had a more extensive involvement, including the cultivation and preparation of the drugs for sale. The court concluded that the difference in their respective roles did not warrant the disparity in the non-parole periods. Consequently, the appellant was re-sentenced to a head sentence of seven years and six months imprisonment with a non-parole period of three years and nine months, aligning his non-parole period with that of his co-offenders.

Orders

Orders of the court

Held: Appeal allowed – appellant re-sentenced to a head sentence of seven years and six months imprisonment with a non-parole period of three years and nine months.

Background

Background to the litigation

The maximum penalty for the offence of trafficking in a controlled drug and cultivating controlled plants for sale is imprisonment for 10 years or a $50,000 fine, or both. The maximum penalty for trafficking in a large commercial quantity of a controlled drug is life imprisonment or a $500,000 fine, or both.BackgroundFive counts of trafficking (Counts 1, 5, 9, 15 and 17) The defendant pleaded guilty to and was sentenced for:·count one – trafficking in cannabis on 1 June 2011;·count five – trafficking in cannabis on 6 August 2011;·count nine – trafficking in cannabis on 2 September 2011;·count 15 – trafficking in cannabis on 22 November 2011; and·count 17 – trafficking in cannabis on 2 December 2011. The agreed factual basis for the five counts of trafficking was:(a)Each count reflected a transaction whereby a parcel of cash was sent by the defendant from Queensland in exchange for cannabis to be sent by Western and Lawson to New South Wales. The parcels of cash were sent from a variety of Queensland post offices. (b)The cannabis was bought at $3,600 per pound.(c)The five parcels of cash contained a total of $110,200.(d)In total 52 parcels of cash were sent from Queensland to South Australia between 5 January 2011 and 14 December 2011. Eighteen of the parcels were opened in transit by police. Each parcel contained cash in amounts ranging from $20,200 to $50,400. Trafficking in a large commercial quantity of cannabis (Count 19) The agreed factual basis for the count of trafficking in a large commercial quantity of cannabis was that:(a)It related to a parcel sent by Western and Lawson to New South Wales on 13 December 2011 in exchange for cash sent by the defendant from Queensland. Police seized the parcel of cannabis immediately upon Mr Lackey collecting it from the post office box on 14 December 2011.(b)The parcel contained 2.7 kilograms of dried cannabis bud in six vacuum-sealed pound bags. The value of the cannabis in the charged parcel was $21,600.The operation of the trafficking syndicate A statement of agreed facts that was provided to the sentencing Judge described how the syndicate operated as follows. Mr Western and Mr Lawson co-ordinated the cultivation of cannabis in South Australia and posted the female cannabis product to New South Wales. They set up grow houses, grew, harvested and packaged the cannabis. They also assisted family members and associates to set up grow houses and to cultivate cannabis that they purchased and sent interstate at a profit. The defendant and Mr Lackey coordinated the purchasing of the cannabis with a view to on-selling. The defendant sent payments for the cannabis from Queensland to two South Australian post office boxes registered to Mr Western and Mr Lawson. Mr Lackey received the cannabis in New South Wales. The defendant and Mr Western communicated on behalf of the two sides of the operation. Between January and December 2011, 52 parcels of cash were sent by the defendant to South Australia. The amount of cash sent by the defendant over the course of the time was estimated to be in the order of about $1.4 million. Between 18 August and 13 December 2011, telephone intercepts and postal records confirm that 150 pounds of cannabis were sent in 52 parcels from South Australia to New South Wales. The value of the cannabis was in the order of $540,000.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The agreed factual basis for the count of trafficking in a large commercial quantity of cannabis was that:(a)It related to a parcel sent by Western and Lawson to New South Wales on 13 December 2011 in exchange for cash sent by the defendant from Queensland. Police seized the parcel of cannabis immediately upon Mr Lackey collecting it from the post office box on 14 December 2011.(b)The parcel contained 2.7 kilograms of dried cannabis bud in six vacuum-sealed pound bags. The value of the cannabis in the charged parcel was $21,600.The operation of the trafficking syndicate A statement of agreed facts that was provided to the sentencing Judge described how the syndicate operated as follows. Mr Western and Mr Lawson co-ordinated the cultivation of cannabis in South Australia and posted the female cannabis product to New South Wales. They set up grow houses, grew, harvested and packaged the cannabis. They also assisted family members and associates to set up grow houses and to cultivate cannabis that they purchased and sent interstate at a profit. The defendant and Mr Lackey coordinated the purchasing of the cannabis with a view to on-selling. The defendant sent payments for the cannabis from Queensland to two South Australian post office boxes registered to Mr Western and Mr Lawson. Mr Lackey received the cannabis in New South Wales. The defendant and Mr Western communicated on behalf of the two sides of the operation. Between January and December 2011, 52 parcels of cash were sent by the defendant to South Australia. The amount of cash sent by the defendant over the course of the time was estimated to be in the order of about $1.4 million. Between 18 August and 13 December 2011, telephone intercepts and postal records confirm that 150 pounds of cannabis were sent in 52 parcels from South Australia to New South Wales. The value of the cannabis was in the order of $540,000. The parcels of cannabis were sent from various post offices in South Australia to a post office box in Adamstown, New South Wales where they were collected predominantly by Mr Lackey but occasionally by the defendant. That post office box was registered to the defendant from 11 February 2010. The mobile phone associated with the post office box was the number the defendant used for drug trafficking. Several parcels, including the parcel which was the subject of Count 19, and sender receipts pertaining to the parcels, were marked to the attention of “Borris”. “Borris” is a pseudonym for the defendant. The sender details were false. Telephone intercepts revealed a pattern whereby Mr Western and Mr Lawson sent text messages to the defendant detailing the number of pounds and quality of cannabis posted.The defendant’s role in the enterprise It was agreed that the defendant’s role in the enterprise was:(a)He was not working for anyone else and was at arm’s length to Mr Western and Mr Lawson. He was either working in a joint enterprise with Mr Lackey or was purchasing from Mr Western and Mr Lawson to sell to Mr Lackey at a profit believing that Mr Lackey would on-sell.(b)Most of the on-selling was carried out by Mr Lackey but the defendant also on-sold some of the cannabis.(c)Telephone communications relating to the defendant’s dealings with Mr Lackey indicate that:· on numerous occasions he attended Newcastle to check the quality of the cannabis himself; and· he appeared to have considerable personal discretion about ordering more cannabis.Western and Lawson’s additional charges