R v Stasi & Makris - [2005] SASC 241

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STASI & MAKRIS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
1 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appellants pleaded guilty to charge of knowingly producing cannabis - first appellant pleaded guilty and second appellant pleaded not guilty to further charge of possession of cannabis for purpose of selling it to another - second appellant convicted by jury on the further charge.
Appeal against conviction by second appellant on further charge of possession of cannabis for purpose of selling it to another - whether the trial judge misdirected the jury as to the use that could be made of co-accused's pleas of guilty against the second appellant - certificate of record disclosing co-accused's pleas of guilty were admitted by consent and used to the advantage of the second appellant - the association between two appellants was an important matter for consideration by the jury - no suggestion in remarks of trial judge of guilt by association - appeal against conviction dismissed
Appeal against sentence by appellants on both charges - whether sentences manifestly excessive and should have been suspended - emphasis placed on evidence of good character, age and successful rehabilitation of appellants - deterrence assumes importance in case of drug offences motivated by financial gain - personal circumstances are relevant but not as important in such circumstances - sentences not manifestly excessive and no error in decision of trial judge not to suspend the sentences - appeals against sentence dismissed.
R v Cowell (1985) 24 A Crim R 47; R v Mangelsdorf (1995) 66 SASR 60, applied.
R v Spokes [1999] VSCA 210; R v Nai Poon [2003] NSW CCA 42, discussed.

R v STASI & MAKRIS
[2005] SASC 241
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J. The appellants pleaded guilty in the Adelaide Magistrates Court to knowingly producing cannabis on 24 August 2002 at Forestville. This charge alleged the production of four plants. A further charge alleged that the appellants were in possession of cannabis for the purpose of selling it to another. Mr Stasi pleaded guilty to the second charge in the Magistrates Court and was committed for sentence on both charges. Mr Makris pleaded not guilty to the second charge, but was found guilty by verdict of a jury.
Mr Makris has appealed against his conviction by the jury and both appellants have appealed against sentence.
The charges arise out of a police raid on a house at Forestville on 24 August 2002. The appellants were renting the property at the time of the visit by the police. There were three men on the property at the time, the two appellants and another man named Vaccaro who was tried jointly with Mr Makris.
Four cannabis plants were being grown hydroponically in a bedroom of the house at the time of the police visit. These plants were the subject of the charge of producing cannabis. Cannabis was also found in various parts of the house. A plastic sheet was spread out on the floor of the lounge and a quantity of cannabis had been placed on it. More cannabis was found nearby in a plastic box and in a baker’s tray. A large amount of drying cannabis was found in the hallway. A number of plastic bags found in the house contained cannabis leaf and stalks. The harvested cannabis material found in the house weighed over 19 kilograms. This material was the subject of the charge of possession of cannabis for the purpose of sale. DNA from material found inside gloves located at the house matched DNA samples taken from the two appellants.
Appeal against conviction
Mr Makris gave evidence at the trial. In his summing-up the trial judge summarised the effect of that evidence:
Mr Makris said he got a bit sick of Mr Stasi dropping in all the time and smoking dope, as he put it, and they decided to find what he described as a bachelor pad for him. When they settled on these premises, because Mr Stasi had no credit history, whereas Mr Makris did, he says he agreed to join in the lease as a joint lessee. He denied making any payments to the landlord or any of the electricity or other bills to do with the house and denied ever having moved into the house.
He said that Mr Stasi was, on the other hand, at the house most weekends and was there, as he put it, ‘a fair bit’. Mr Makris would come over on Saturdays to watch the football and smoke some dope. Eventually, he deduced that cannabis was being grown on the premises, but he maintains that he had absolutely no involvement, except on one occasion, turning on a tap for Mr Stasi, the tap being attached to a hose, which went down the hallway.
He denied ever going to the bedrooms, ever seeing any of the hydroponic equipment, or being involved in any other way in the cultivation of the cannabis.
He says he came over that day at Mr Stasi’s request to help him cut the cannabis. He says he was not overly happy about it, but did so. He denied having an interest in the cannabis that was being cut up and had no more than a hope that he would be given a small amount in return for what he was doing.
Mr Makris said in evidence that he pleaded guilty to the offence of producing the four growing plants on the advice of his solicitor. He said the basis of the plea was that he had turned a tap on in order to assist Mr Stasi in watering the plants.
The sole ground of appeal against conviction arises out of comments made by the learned trial judge in his summing-up in relation to Mr Stasi’s pleas of guilty to the charges. The jury became aware of the pleas of guilty when a certificate of conviction was tendered during the trial. According to the argument, the trial judge misdirected the jury by instructing them that they could take into account the co-accused’s pleas of guilty against Mr Makris for an impermissible purpose. The impugned passage is highlighted in the following extract from the summing-up:
You must not reason simply that because Mr Stasi pleaded guilty to both of these charges, that that circumstance in any way assists you in determining whether Mr Makris or, for that matter, Mr Vaccaro were guilty of the charges now brought against them. You must consider their guilt or innocence solely on the basis of the evidence which you have heard from the witness box during the course of this trial.
Furthermore, you must not assume that because Mr Makris pleaded guilty to producing the four plants found in the house, that proves or goes towards proof that he was in possession of the remaining cannabis for the purpose of sale. That would be an impermissible process of reasoning.
The two activities are different. You may cultivate or assist in the cultivation of the four plants in the house. Indeed, he has pleaded guilty to doing that but, nonetheless, he may not have been in possession of the harvested cannabis which was being trimmed at the time of the entry by the police into the premises, for the purpose of sale.
On the other hand, if you are satisfied that Mr Makris had a close association with Mr Stasi, and given that Mr Stasi has admitted to cultivating the cannabis and possessing it for sale, Mr Makris’ association with him is a matter to be taken into account in the context of the evidence as a whole in determining whether it has been proved beyond reasonable doubt that Mr Makris was also involved in those activities, more particularly in having possession for the purpose of sale.
The cases against each of the two accused, Mr Makris and Mr Vaccaro, must be considered by you separately on the evidence relevant to each of them.
I have used the expression ‘relevant to each of them’ deliberately. Although the prosecution has led a single body of evidence, some of it is relevant to one case rather than the other.
The evidence of Mr Makris’ close association with Mr Stasi, the fact that Mr Makris was jointly seen with Mr Stasi at the premises and was jointly responsible for the electricity charges, are items of evidence which are relevant for the case against Mr Makris, but they are not items of evidence which are relevant for the case against Mr Vaccaro; they do not advance the prosecution case against him.
However, you are entitled to take note of the fact that the three men were friends and associates and that Mr Makris and Mr Vaccaro both attended the premises on more than one occasion prior to the day in question.
The prosecution tendered a certificate of record which disclosed that Mr Stasi had pleaded guilty to the offences of producing cannabis on 24 August 2002 and the further charge of being in possession of cannabis for the purpose of selling it to another. These were the offences with which he had been jointly charged with Mr Makris. The certificates were admitted into evidence with the consent of counsel for Mr Makris.
In the course of her final address the prosecutor referred to the pleas of guilty by Mr Stasi. She said:
The fact that Mr Stasi pleaded guilty is not evidence against Mr Makris. It does tell you, however, that certainly, in Mr Stasi’s mind, that crop had a commercial element and that’s, as I said, what you would expect given the kind of investment of time, money and risk that had obviously been put into it. As I mentioned, that’s why the facts relating to the renting of the premises and the evidence of Mr Rahedi were put before you.
The prosecution case is that the fact that Mr Makris’s name was on the lease and that he was listed as being responsible with Mr Stasi for the electricity account is evidence from which you can draw the inference that he was a partner with Stasi in setting up the house and using the electricity. That was not a house, I suggest, and it’s a matter for you, but it was not a house where anybody was living. The electricity that was being used was largely for the single purpose of growing cannabis.
Counsel for Mr Makris also referred to the pleas of guilty by Mr Stasi:
You are also aware that Mr Stasi, who was not part of this trial, has pleaded guilty to both producing cannabis and possessing cannabis for sale. Your task in respect of Mr Makris is quite simply to determine whether or not the cannabis was his. In relation to Mr Makris, this trial is all about possession of drugs; it is not about how much drugs are worth.
Later he said:
If, as the Crown would have you believe, Mr Makris was part of a joint enterprise with Mr Stasi, then why weren’t his fingerprints located on the equipment which is crucial to that joint venture? Mr Makris’s fingerprints were found nowhere. Of course, that is a matter for you. Another fact which is not in dispute is that Mr Stasi has pleaded guilty to possessing cannabis for the purpose of sale. He has acknowledged that he was in possession of the cannabis and some of it at least was for the purpose of sale.
. . .
He [Mr Makris] has also admitted assisting Mr Stasi in the cutting up of the harvested plants from the other room, but he is not on trial for taking part in the production of cannabis; he is on trial for possession of cannabis for sale. He told you who was in possession of the cannabis. It was Jim’s [Stasi’s] and he had no idea what he, being Jim, was going to do with it. Mr Makris was to receive a small amount for his own use for the assistance given to Mr Stasi and, of course, that transaction never took place.
It is clear from the evidence of Mr Makris and the final address of his counsel to the jury that he was claiming that Mr Stasi was responsible for the cannabis operation at the house and that he (Mr Makris) was involved to a minor extent which stopped short of possession of the drug for the purposes of selling it. It was to Mr Makris’ advantage to have before the court the information that Mr Stasi had pleaded guilty to the offences. This might well explain why the certificate of record disclosing Mr Stasi’s pleas of guilty was admitted by consent.
It is well recognised that a plea of guilty by an accused person is not, of itself, evidence against a co-accused: Cowell (1985) 24 A Crim R 47. However, in the present case the defence consented to the admission of the evidence of the pleas of guilty by Mr Stasi and suggested to the jury that it provided support for Mr Makris’ claim that it was Mr Stasi who was principally involved in producing and processing the cannabis. Mr Makris’ complaint is not that the evidence of Mr Stasi’s pleas of guilty was wrongly admitted, but that the trial judge misdirected the jury as to its use.
The directions on this aspect began with a warning by the judge that the jury were not to reason that, simply because Mr Stasi pleaded guilty to the charges, that circumstance assisted in some way in establishing the prosecution case against Mr Makris. However, it was argued that the subsequent directions undermined this warning by authorising the jury to consider both the association between the two appellants and the fact of the pleas of guilty by Mr Stasi as supporting the conclusion that Mr Makris was guilty of the offence to which he pleaded not guilty.
In my view, the association between the two men was an important matter for consideration by the jury. There was no suggestion in the remarks of the trial judge of guilt by association. However, the close association between the two men, including the renting of the premises and visits to the premises by Mr Makris, were relevant factors for the jury to take into account. They were relevant not only to the prosecution case, but also to the defence case in that it was claimed by the defence that the association between the two had led to Mr Makris being falsely accused of being in possession of the drug for the purposes of sale.
The involvement of Mr Stasi in the drug operation was relevant to both the prosecution and defence cases. The prosecution alleged that the appellants were involved in a joint enterprise in both of the offences charged. It was the defence case that Mr Stasi was involved in the drug operation and that Mr Makris was present on the occasion of the police visit because he had been invited over to assist Mr Stasi in a minor way for which he was to be given a small amount of cannabis. Mr Stasi’s pleas of guilty which were admitted by consent added little to the evidence, but it appears to have been used by the defence to support Mr Makris’ claim that Mr Stasi was involved in the offences. In these circumstances I do not think the trial judge erred in instructing the jury that they could take into account the association between the men and the pleas by Mr Stasi as being relevant to the case against Mr Makris.
If I am wrong in this assessment and the evidence could not be used in this way, I am firmly of the view that the case calls for the application of the proviso. As I have pointed out, the involvement of Mr Stasi was common ground. It was open to the jury to view Mr Makris’ own evidence of Mr Stasi’s activities at the house as support for the prosecution case that both he and Mr Stasi were involved in the joint enterprise. In these circumstances there was no risk of a miscarriage of justice by reason of the direction that Mr Stasi’s pleas of guilty could be used for the same purpose.
I would dismiss the appeal against conviction.
Appeals against sentence
Mr Makris was sentenced to imprisonment for five years with a non-parole period of two years. Mr Stasi was sentenced to imprisonment for three years and six months with a non-parole period of one year and six months. Each appellant has appealed against sentence on the ground that it is manifestly excessive and that it should have been suspended.
The learned judge took a starting point of imprisonment for five years for the head sentence of both appellants, but reduced Mr Stasi’s head sentence by one year and six months on account of his pleas of guilty.
The judge sentenced the appellants on the following basis:
I am satisfied that, between the two of you, you proceeded to set up the hydroponic equipment. The harvested cannabis found in the house when the police entered, was very likely the first crop. A second crop comprising four cannabis plants was already under cultivation in the house. I infer from this that there was an ongoing process of the production of cannabis.
I am satisfied, on the evidence, that you both leased the house in order to use it for the production of cannabis for sale. Although you and your friends may have smoked a small amount of the cannabis, I sentence you on the basis that this was a commercial operation and that most of the cannabis was destined for sale.
The total amount of saleable cannabis would have fetched between $16,000 and $24,000.
I proceed on the basis that you were intending to share the proceeds of sale, less any expenses, equally between you.
Mr Stasi was 27 years of age at the time he was sentenced. He has a good employment record and he made full and frank admissions to the police. He pleaded guilty to the offences at the preliminary examination. He has no previous convictions and evidence of good character was produced on his behalf.
Mr Makris was 30 years of age when sentenced. He is a qualified teacher with an established reputation as a competent teacher of disadvantaged children. Evidence of good character was adduced on his behalf. He appeared before the Magistrates Court on 12 February 2003 on a charge of producing cannabis and was fined $200. The offence took place on 29 August 2002. No conviction was recorded. According to submissions made on his behalf in relation to that matter, Mr Makris assisted in the cultivation of hydroponically grown cannabis plants. The crop comprised 18 plants and Mr Makris told the police he had helped to look after them for a cousin.
Returning to the present offences, there were signs throughout the house that cannabis was being processed for sale. The total weight of this cannabis was 19.627 kilograms. Most of the cannabis was slightly moist. After drying it would have weighed approximately 3.7 kilograms. If sold in pound lots the cannabis would have brought between $16,000 and $28,500. If sold in smaller parcels at street level the value of the drug would be over $50,000.
The maximum penalty for the offence of possession for sale must be calculated by reference to the total weight of 19.627 kilograms. The maximum penalty for an amount of cannabis of ten kilograms or more is a fine not exceeding $200,000 or imprisonment for 25 years, or both.
As I have said, the other offence of knowingly producing cannabis relates to the four plants which were growing in the house at the time of the arrival of the police.
Counsel for each appellant placed emphasis on the ages of the appellants and the evidence of previous good character submitted on their behalf. Reliance was also placed on the finding by the judge that the appellants appeared to have been rehabilitated. It was claimed that the starting point arrived at by the judge for the head sentence in each case was too high and that, in any event, the sentences should have been suspended. It was also argued that the value of the cannabis was not as great as in some of the cases cited to the court in which the penalties imposed were lower than in the present case.

This court has referred on a number of occasions to the problems associated with comparing one case with another. The same point has been made in other jurisdictions: R v Spokes [1999] VSCA 210 at [15] and [16]; R v Nai Poon [2003] NSW CCA 42 at [19]. More assistance is to be derived from those cases in which the principles applicable to particular types of offending are discussed. Even then, care must be taken in comparing the actual sentences imposed in those cases with the sentence imposed in cases on appeal.
In the present case our attention was drawn to the penalty imposed on the respondent Richards in the case of R v Mangelsdorf (1995) 66 SASR 60 whose sentence for two counts of possessing cannabis for sale and two counts for possessing cannabis resin for sale was one of those appealed against by the Director of Public Prosecution in that case. The Court of Criminal Appeal increased his sentence to imprisonment for four years and imposed a non-parole period of two years. However, the maximum penalty for the more serious of these offences was imprisonment for ten years and a fine of $50,000 or both.
The conduct in the present case was planned, well organised and ongoing. Whatever might have been the original intention of the appellants in renting the house at Forestville, by the time of the police raid on the premises it appeared that the house was being used almost solely for the production of cannabis. Plants were being grown while the processing of others was taking place. The weight of the material which had been harvested was almost twice the level prescribed in order to attract the maximum penalty of imprisonment for 25 years. The offence of possession for sale was made more serious by reason of the fact that the appellants were involved in the production of the drug as well as its intended sale.
In these circumstances it is appropriate to recall the remarks of Doyle CJ when commenting on penalties for commercial dealings in cannabis in R v Mangelsdorf at 68:
This Court has consistently stressed the need to recognise the severe penalties which Parliament has specified for such offences involving cannabis. The court has emphasised that Parliament clearly expects the courts to impose sentences which are likely to deter people from engaging in commercial activity with respect to this drug. The seriousness of the offence, its prevalence, and the importance to be given to deterrence all combine to lead to the conclusion that ordinarily a sentence of imprisonment for such offences is to be expected, the duration of the sentence reflecting the quantity involved and hence the applicable statutory maximum.
The character references provided on behalf of each of the appellants were impressive, but it has to be said again that deterrence assumes particular importance in the case of drug offences motivated by financial gain. Personal circumstances, although relevant, are not as important in such cases as might otherwise be the case. Some judges might have imposed lower head sentences in the present case, but I am unable to say that these head sentences were outside the range of appropriate punishment.
Ms Powell QC, for Stasi, argued that the judge erred in using the same starting point for the head sentence of both appellants. It was pointed out that Mr Makris had a conviction for producing cannabis, whereas Mr Stasi had no previous convictions.
However, the appearance of Mr Makris before the court in relation to the other matter did not occur until after the present offending. No conviction was recorded and the penalty reflects a relatively minor offence. The court appearance was of some relevance, but I do not think it justified distinguishing between the appellants in relation to the respective starting points for the head sentence. I am also of the view that Mr Stasi was given a sufficient reduction in sentence by reason of his frankness with the police and his early pleas of guilty.
Finally, I do not accept that there was an error in the decision of the judge not to suspend the sentences. Again, it is appropriate to refer to the reasons for judgment of Doyle CJ in Mangelsdorf when dealing with the appeal in relation to the respondent Richards at 75:
In relation to the decision to suspend, one also needs to bear in mind the seriousness of the present offence. As I have already remarked in these reasons, this Court has consistently said that suspension of a sentence of imprisonment is inappropriate in the case of the possession of cannabis for sale when that takes place against a background of substantial involvement in cannabis trading. In my opinion, that is the case here, in the sense that the quantity of cannabis indicated an intention to engage in substantial trading. The court has, on a number of occasions, revoked orders for suspension made in such cases, despite the considerations which tell against doing so on an appeal by the Director of Public Prosecutions against sentence.
I would dismiss the appeal by Mr Makris against conviction and I would dismiss the appeals by both appellants against sentence.
BLEBY J. I agree that Mr Makris’ appeal against conviction and both appeals against sentence should be dismissed. I agree with the reasons of Duggan J.
ANDERSON J. I would also dismiss the appeal by Mr Makris against conviction, and I would dismiss the appeals by both appellants against sentence for the reasons given by Duggan J.