R v Strauss - [2015] SASCFC 192

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STRAUSS
[2015] SASCFC 192
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Nicholson)
17 December 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PRODUCTION OR CULTIVATION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - OF EQUIPMENT AND IMPLEMENTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
This is an appeal against sentence.
The appellant pleaded guilty to trafficking in a large commercial quantity, cultivating a commercial quantity, possessing prescribed equipment, diverting electricity and possession of a prescription drug without a lawful prescription. The latter three offences were originally before the Magistrates Court, but were brought up to the District Court on the appellant’s application. A single sentence was imposed being imprisonment for seven years and six months with a non-parole period of five years.
The appellant appeals firstly on the ground that the sentencing Judge erred in the appropriate reduction to be made on account of the guilty pleas, and secondly seeks permission to appeal on the ground that the sentence is manifestly excessive.
Held, dismissing the appeal and refusing permission to appeal (Sulan and Nicholson JJ, Kouarkis CJ concurring):
1. The Judge erred in failing to provide sufficient reasons for the discount applied to the Magistrates Court offences, however this Court is satisfied that the Judge was entitled to limit the discount. The appeal should not be allowed simply on the basis that the precise discount was not identified.
2. The sentence was well within the appropriate range for this offending.
3. The appeal is dismissed in respect of the first ground of appeal, and permission to appeal on the second ground of appeal is refused.
Criminal Law (Sentencing) Act 1988 (SA) s 9, s 10B, s 10B(4), s 10C, s 10C(2)(f), s 10C(4), s 18A; Controlled Substances Act 1984 (SA) s 19(3), s 32(1), s 33B(2), s 33LA; Electricity Act 1996 (SA) s 85(1)(a), referred to.
R v Wakefield (2015) 121 SASR 569, applied.
R v McPhee [2014] SASCFC 107; R v Nguyen [2015] SASCFC 40; R v Copeland (No 2) (2010) 108 SASR 398; R v Dwyer [2015] SASCFC 12; R v Stavreas [2015] SASCFC 68; R v Niesen [2015] SASCFC 165, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"sentencing discount, sentence reduction, sentencing procedure, sentence discount procedure"

R v STRAUSS
[2015] SASCFC 192
Full Court: Kourakis CJ, Sulan and Nicholson JJ

KOURAKIS CJ: I would dismiss the appeal on the first ground and refuse permission on the second for the reasons given by Sulan and Nicholson JJ, supplemented 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 Strauss

Details

AGLC: R v Strauss [2015] SASCFC 192
Case: [2015] SASCFC 192
Decision Date: 17 December 2015

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, who pleaded guilty to drug trafficking, production, and possession of equipment. The dispute arose from the appellant's contention that the sentencing judge erred in the quantum of reduction applied for his guilty pleas and that the resulting sentence was manifestly excessive. The matter was heard by Kourakis CJ, Sulan and Nicholson JJ.

The legal issues before the court were whether the sentencing judge had applied the correct principle in reducing the head sentence to account for the appellant's guilty pleas, and whether the final sentence was so excessive as to warrant appellate interference. Specifically, the appellant argued he was entitled to a greater reduction than the one month applied for his guilty pleas, which resulted in a notional head sentence of eight years being reduced to seven years and six months imprisonment.

The court considered the appellant's conduct, including the significant quantity of cannabis seized (27.3 kilograms of dried cannabis and 24 cannabis plants), the sophisticated hydroponic equipment found at his residence and a storage facility, and evidence of prior cultivation. The sentencing judge had noted that the appellant's actions in withdrawing substantial funds and transferring his house to his sister's name, knowing these funds were likely proceeds of crime and subject to forfeiture, demonstrated a lack of genuine contrition. The court acknowledged the difficulty in precisely calculating the discount applied, as the interaction between the sentences for District Court and Magistrates Court matters was unclear, but observed that the discount for the District Court offences was approximately 5.3 per cent, falling short of the maximum reduction typically available for guilty pleas.

The court ultimately granted permission to appeal the sentence on the ground that the sentencing judge acted on a wrong principle regarding the reduction for guilty pleas. The appeal was allowed, and the sentence was set aside.

Orders

Orders of the court

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Background

Background to the litigation

The appellant contends that the sentencing Judge erred in the appropriate reduction to be made on account of the appellant’s guilty pleas and that the sentence is manifestly excessive. The appellant was granted permission to appeal his sentence on the ground that the reduction for his guilty pleas was erroneously applied. Permission was refused on the ground that the sentence is manifestly excessive.Background On 24 September 2013, police searched the appellant’s home at St Peters and seized 27.3 kilograms of dried cultivated cannabis with an estimated value between $138,000 and $192,000. They also seized 24 cannabis plants estimated at yielding between 200 grams and 400 grams of dried cannabis per plant. The dried cannabis was cultivated from a previous crop that had been grown at the property. The roof cavity of the property had been fitted with hydroponic equipment, including transformers, globes, shades, a drying rack and a cannabis grinder. The appellant was diverting electricity from a power source to the cultivation room in order to facilitate the enterprise. Police also seized $2600 in cash and discovered steroids used by the appellant without a prescription. On 26 September 2013, police searched a National Storage facility at Klemzig and seized equipment used for the cultivation of cannabis, including 26 light shades, two light stands, 15 ballast boxes and eight light fittings. Following his arrest, the appellant withdrew approximately $280,000 from his bank account in order to repay debts arising from the cultivation enterprise. He transferred his house into his sister’s name. The sentencing Judge observed that some of the funds were proceeds of prior drug trafficking, and the appellant was aware that the money was likely to be the subject of forfeiture proceedings. The Judge concluded that the appellant’s conduct in diverting funds, which he knew were the proceeds of his illegal conduct, demonstrated that he lacked genuine contrition. She correctly observed that “contrition does not sit with attempting to move funds beyond law enforcement authorities”. Diary entries kept by the appellant confirmed that he had previously grown crops between July 2011 and June 2013. The appellant’s bank records revealed substantial deposits in the years prior to the subject offending.The appeal Counsel for the appellant contends that the sentencing Judge erred in failing to apply the maximum reduction of 10 per cent to which the appellant was entitled for his guilty pleas. The sentencing Judge proposed a notional head sentence of eight years’ imprisonment for all the offences, which was reduced to imprisonment for seven years and six months on account of the appellant’s guilty pleas. As part of this reduction, the Judge allowed for a “further month” for the summary offences which would have otherwise attracted a greater reduction of up to 30 per cent. It is difficult to calculate the discount in this case because it is unclear which proportion of the sentence for the Magistrates Court matters was concurrent with the District Court offending. If it is assumed that a discount of one month was allowed for the Magistrate Court matters, allowing that a maximum of three months would have not been concurrent with the District Court offence, then the discount for the District Court offences was in the vicinity of 5.3 per cent.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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