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 the same sentencing judge. Each were sentenced to a term of imprisonment of 14 months and a non-parole period of nine months. Each sentence was suspended upon each offender entering into a bond in the sum of $1000 to be of good behaviour for 18 months, and to be under the supervision of a community corrections officer for that period, as well as performing 100 hours community service within a period of 12 months.
The learned sentencing judge found that the appellant and the co-offender were involved in a joint enterprise to produce the cannabis. He recognised that the roles of the accused in each case were different.
The factual circumstances upon which the appellant was sentenced were that he owns the house at which the plants and material were located; he was to receive half of the cannabis produced; his cannabis was for his own personal use; and he had no reason to believe that the co-accused intended to do other than use the cannabis personally.
The co-offender Glenn Niesen was sentenced on the basis that he was responsible for the cultivation of the cannabis; that he intended to give half to the appellant; that he intended to use some himself, to supply some to others, and to sell some of the cannabis to defray costs if the opportunity arose. It was also acknowledged that he was not actively pursuing the sale of the cannabis at the time of arrest.
The sentencing judge rejected the prosecutor's submission that there was an obligation on the appellant to inquire as to the co-offender’s intentions for the harvested cannabis, particularly in relation to possible sale.
The learned sentencing judge took a benevolent approach to previous convictions of the appellant and the co-offender, as they did not concern similar offending.
Manifestly excessive
The maximum penalty for Count 1 is imprisonment for two years or a fine of $2000, or both. The maximum penalty for Count 2 which concerns an amount in excess of 10 kg of cannabis, is a maximum of 25 years imprisonment and a fine of $500,000.
The essential argument of counsel for the appellant was that a suspended sentence of imprisonment was manifestly excessive bearing in mind the involvement of the appellant in the offences. His involvement in production was permitting his premises[1] to be used for the growing of cannabis. In his case, his half of the harvest was to be used for his own personal use. It was also argued that it was “bad luck” for the appellant that the police came a day after the harvest and that if they had come the day before when the plants were still growing, he would have been liable for a much lesser maximum penalty. It was submitted that a fine was appropriate in this case and that it was manifestly excessive for the sentencing judge to have imposed a sentence of imprisonment, albeit suspended.
[1] S32(4)(c) definition of taking part in production.
Further, it was submitted that the nature of the offending of the appellant should be contrasted with the involvement of the co-offender, in which there was commerciality involved. It was the intention of the co-offender that part of his share of the cannabis would be used to defray costs, by selling it if an opportunity arose. This element of commercial motive was absent in the case of the appellant.
Counsel for the DPP contended that the involvement of the appellant in the production of cannabis was serious in that he permitted the co-offender to rent his house, knowing that the co-offender would be involved with him in a joint enterprise for the production of hydroponically grown cannabis. The case of R v Errigo[2] was relied upon as support for the seriousness of a person permitting land or premises to be used for the production of cannabis. In particular, Doyle CJ said: "a landowner who allows land or premises on the land to be used to produce cannabis, knowing what is happening, commits a serious offence".[3] It was argued by counsel for the DPP that although the factual situation in the case of Errigo was more serious than in this case, as the land was used for commercial production of cannabis, nonetheless the principle was still the same.
[2] [2005] SASC 322
[3] [2005] SASC 322, [22]
The statement of Doyle CJ was made in the context of a case involving what was described as a well-planned and ongoing commercial enterprise. The circumstances in Errigo were significantly different from this case. In Errigo’s case, the property was a farming property which was used to grow 195 plants. The primary purpose of each offender in the present case was to use the cannabis for personal consumption. There was an admitted intention on the part of the co-offender to sell a small amount if the opportunity presented itself. Unlike in Errigo’s case, this was not a commercial enterprise.
It was also pointed out by the DPP that in the present case the amount of cannabis involved appropriately fell into the category of being in excess of 10 kg of cannabis, for which the maximum penalty was 25 years and a $500,000 fine.[4] The submission of the DPP was that it was not the point that if the police had arrived a day earlier, a different charge may have resulted in the matter being dealt with in the Magistrates Court with a potentially different penalty involved. The Act differentiates between different offences and there are different penalties for each. It was also pointed out that the range of sentences for the production of cannabis varied depending on the individual circumstances of the case.
[4] s 32(5)(B(a)(i).
The maximum penalty for an offence is a relevant factor. However, the circumstances in which offending of this nature takes place is extremely varied. On the one hand, a person can be cultivating a few plants which he has harvested and, because of the weight, the offending falls within a band which attracts a significant maximum penalty. Another offender may be growing 100 or more plants which attracts the same maximum penalty. In the first case, there is no commercial element, whereas in the second it is clearly commercial. The fact that both attract the same maximum penalty is of little relevance in determining the respective sentences.
Counsel for the accused referred to the case of Collins v R[5] in which the Full Court allowed an appeal in relation to a sentence of imprisonment and instead imposed a fine and ordered community service. That situation was a very different circumstance from this case. In Collins, the judge erred in approaching sentencing on the basis that an order for community service could only be made if a sentence of imprisonment, suspended on entering into a bond, was imposed. The identified error led the Court to exercise its discretion afresh, having regard to the sentencing judges’ initial preference to order community service. Further, it should be noted that the maximum penalty for the offence being dealt with in Collins was lower than for Count 2 in this case. The case is therefore not directly apposite.
[5] (1995) 183 LSJS 69
There is some force in the argument of counsel for the appellant, in that the appellant’s part in the joint enterprise was to permit the use of his premises for the purposes of production and that he intended only personal use for his proportion of the cannabis, for which a fine may appropriately have been open to the sentencing judge. On the other hand it cannot be said that the suspended sentence given by the learned sentencing judge was outside the range of appropriate penalties, having regard to the appellant’s role in the production of cannabis. There was no error in the approach of the sentencing judge. To impose a suspended sentence was well within his discretion.
As the Chief Justice made clear in R v Leung & Monaghan,[6]
It has to be emphasised that Parliament has made it clear that, whatever some people in the community may think, the production of cannabis is a serious offence. The penalties specified make that clear. Cases coming before the courts of this State demonstrate that the offence is prevalent. In my opinion the courts are bound, in the circumstances, to impose sentences in which deterrence plays a significant part. The courts, if necessary, will have to increase the level of sentence being imposed should that appear necessary to deter offenders.
[6] (1999) 202 LSJS 243,251
Given the maximum sentences applicable for these offences, the suspended sentence of 14 months imposed by the sentencing judge could not be described as being manifestly excessive.
This ground of appeal is therefore rejected.
Disparate sentences
In relation to disparity of the sentences, the argument of counsel for the appellant was that the purpose of the co-offender had an element of commerciality which was non-existent in the case of the appellant, and that therefore the appellant should have received a lower sentence than that of the co‑offender. Reliance was placed on s 44(d) of the Act, which provides that in determining the penalty to be imposed upon the person convicted of an offence involving the production of a prohibited substance, the Court must take into consideration the commercial or other motives of the convicted person in committing the offence.[7] It was submitted that the sentencing judge was obliged to take this into account, and although intention was referred to by the sentencing judge, the sentence imposed on the appellant was the same as that of the co-offender.
[7] s 44(d)(i).
It was submitted by counsel for the appellant, that the fact that the appellant was the owner of the house in which the cannabis was produced should not in all of the circumstances be regarded as an aggravating factor of his offending, as this was an element of the offence of involvement in production. It was said that the element of the offence itself should not be treated as an additional factor requiring more serious penalty. In this case it is not argued by the DPP that this fact was an aggravation, but rather that the fact that the accused had permitted his house to be leased by the co-offender in the knowledge that it was to be used for the joint enterprise of production of cannabis, was a serious aspect of his part in production of the cannabis.
In considering the submissions as to alleged disparity of sentence, the fact that each of the offenders had differing roles and yet received the same sentence is not of itself indicative of any error. Both offenders were involved in a joint enterprise. In this case, such an enterprise would tend to suggest that the same penalties may be appropriate in the absence of strong differentiating features regarding their respective degrees of culpability.
So far as any differentiating feature of commerciality of the co-offender is concerned, this factor was a relatively minor factor in the overall offending. It was only a potential, and it was not actively being pursued. At its highest, it was a possibility for sale if an opportunity arose. On these facts it could not be said that the role of each offender was such that required the Judge to differentiate between their respective culpability.
This was a matter within the exercise of discretion of the sentencing judge. Another approach may have been available but it could not be said in these circumstances that injustice was done to the appellant as a result of a failure to give a different penalty to the appellant than to the co-offender. There was no unjustified disparity.[8] The sentence imposed on the appellant was appropriate for his participation and culpability in the offence.
[8] The Queen v MacGowan (1996) 42 SASR 580
For these reasons the appeal should be dismissed on both grounds.
DAVID J: I agree with the reasons of Layton J. I would dismiss the appeal.