R v STEPHENS - [2006] SASC 303

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STEPHENS
[2006] SASC 303
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Layton and The Honourable Justice David)
29 September 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO-OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeal against sentence - Two accused - Both pleaded guilty to taking part in the production of cannabis - Appellant owner of house in which cannabis grown - Appellant intended his share of cannabis for personal use only - Co-offender cultivated the cannabis and intended to sell some cannabis if the opportunity arose - Both given 14 month suspended sentence - Appeal against sentence on ground that it was manifestly excessive - Appeal against sentence on ground of disparity between sentence of co-offender - Held: Sentence not manifestly excessive - No grounds to differentiate between sentences - Appeal dismissed.
Controlled Substances Act 1984 s 32(1)(b), s 32(4)(c), s 32(5)B(a)(i), s 44(d)(i), referred to.
R v Errigo [2005] SASC 322; Collins v R (1995) 183 LSJS 69; R v Leung & Monaghan (1999) 202 LSJS 243; The Queen v MacGowan (1986) 42 SASR 580, considered.

R v STEPHENS
[2006] SASC 303
Court of Criminal Appeal: Sulan, Layton and David JJ

SULAN J: I would dismiss the appeal for the reasons given by Layton J.
LAYTON J: This is an appeal against sentence. There are two essential arguments. First, it is argued that the suspended sentence of imprisonment of 18 months was manifestly excessive for what is said to be a low degree of criminality on behalf of the appellant. Secondly, it is argued that there is an unjustified disparity between the sentences imposed upon the appellant and the co-accused, which was the same for each accused even though their respective involvement in the offences differed.
The essential facts are that the appellant and the co-accused, Glenn Anthony Niesen, were jointly charged in June 2006 with two counts of taking part in the production of cannabis, contrary to s 32(1)(b) of the Controlled Substances Act 1984 (“the Act”).
Count 1 related to four cannabis plants found still growing. Count 2 related to 18 – 19 kg of cannabis harvested the day before police attended the premises, from another four plants. It was not in dispute that the cannabis head from that harvest would have yielded 2.5 kg of cannabis.
The eight cannabis plants were grown hydroponically in a house owned by the appellant and leased to the co-accused. The harvested cannabis was found in the house and also in the boot of the car owned by the appellant, which was parked outside the house when the police arrived.
Both accused pleaded guilty and were sentenced together by…

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 STEPHENS

Details

AGLC: R v STEPHENS [2006] SASC 303
Case: [2006] SASC 303
Decision Date: 29 September 2006

CaseChat Overview and Summary

The case of R v Stephens involved the appellant and a co-offender who were both convicted of their involvement in the production of cannabis. The appellant, the owner of the house where the cannabis was grown, intended his share solely for personal use, while the co-offender had the intention to sell some of the cannabis if the opportunity arose. Both were sentenced to a 14-month suspended sentence. The appellant appealed against his sentence on the grounds that it was manifestly excessive and because of the perceived disparity in sentencing when compared to his co-offender.

The primary legal issues the court had to address were whether the sentence imposed was manifestly excessive and whether there were sufficient grounds to differentiate between the sentences of the co-offenders. The court considered the principles of sentencing and the appropriate weight to give to the disparity between sentences when both offenders had pleaded guilty and received the same punishment.

The court found that the sentence was not manifestly excessive, as it was within the range typically imposed for such offences. Additionally, the court concluded that there were no grounds to differentiate between the sentences, given that both appellants had pleaded guilty and received the same sentence. The appeal was therefore dismissed, and the original sentence was upheld.

There were no further orders made by the court beyond the dismissal of the appeal.

Orders