R v Taddeo - [1993] SASC 4059

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - sentence - possession of cannabis for sale - incident in commercial operation - sentence 18 months' imprisonment with 9 months non-parole period suspended - comments on inappropriateness of suspension where offence committed as incident in the course of drug trading - on appeal by DPP suspension set aside but sentence and non-parole period adjusted to take account of period in custody prior to sentence.

HRNG ADELAIDE, 21 July 1993 #DATE 21:7:1993
Counsel for appellant:     Mr B J Jennings QC
   with Ms J M Rusalen
Solicitors for appellant:    Director of Public
   Prosecutions (SA)
Counsel for respondent:     Mr P A Cuthbertson
Solicitors for respondent: Elston and Gilchrist

ORDER
Leave granted, appeal allowed.

JUDGE1 KING CJ This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed in the District Court for the crime of possession of cannabis for sale. The sentence imposed was imprisonment for 18 months with a non-parole period of nine months, but that sentence was suspended. 2. The prosecution arose out of a police raid upon the respondent's home on 16 January 1992. The police seized some garbage bags containing cannabis. The total quantity of cannabis involved was 1.52 kg, and the total value, on the evidence, was in the region of $15,000. Amongst the garbage bags seized, there were garbage bags which contained fragments of cannabis suggesting that there had been a greater quantity of cannabis in those bags which had been disposed of in some way. There was a set of scales on the premises. There was also evidence of a considerable amount of gambling on the part of the respondent. Those facts tended to indicate that the respondent was engaged in some commercial activity with respect to cannabis. That was confirmed by the concession which was made during the sentencing submissions when the Crown asked, and the defence counsel agreed, that sentence should be imposed "against the background that the respondent was substantially involved in the trading of cannabis." 3. The respondent, of course, fell to be sentenced, not for anything he had done in the past, but for the particular offence with which he was charged. Nevertheless, that offence takes its colour from, and its character is affected by, the context in which it was committed. The concession which was made, and which is supported by the material to which I have referred, indicates that the court was dealing here, not with an isolated offence, but with an offence committed as an incident in the course of a continuing commercial dealing in the drug. 4. The respondent is aged 36 years. He is a married man with a family and is well spoken of as a family man. He pleaded guilty. Although the plea of guilty was somewhat belated, he is entitled to some credit for it. His only prior convictions are of a…

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.

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Details

Case: [1993] SASC 4059
Decision Date: 21 July 1993

CaseChat Overview and Summary

In the case of R v Taddeo, the Full Court of the Supreme Court of South Australia was called upon to review a sentence imposed in the District Court for the crime of possession of cannabis for sale. The respondent had been found guilty of possessing 1.52 kg of cannabis with an estimated street value of approximately $15,000. The case involved a police raid on the respondent's home, during which substantial evidence of cannabis trading activities, including scales and gambling, was uncovered. The court acknowledged the respondent's substantial involvement in the commercial trade of cannabis, as conceded by the respondent during sentencing.

The central legal issue before the court was whether the District Court judge had erred in suspending the sentence of 18 months imprisonment, with a non-parole period of nine months, for the offence of possession of cannabis for sale. The court had to consider whether the suspension was justified, particularly given the respondent's background of commercial drug activity. The Chief Justice highlighted that the suspension was inappropriate given the context of the offence, which was committed as part of a larger commercial operation. The court observed that the suspension did not adequately reflect the seriousness of the crime or serve as a sufficient deterrent against similar offences in the future.

The Full Court concluded that the sentencing discretion had miscarried by suspending the sentence. While acknowledging the principles that generally favour caution in increasing penalties on appeal, the court found that considerations of public interest outweighed these principles in this instance. The suspension of the sentence was deemed inappropriate and detrimental to the deterrent effect necessary for crimes involving commercial drug activity. The court granted leave to appeal, allowed the appeal, and set aside the suspension of the sentence. To account for the period the respondent had already spent in custody, the court adjusted the sentence to imprisonment for 15 months with a non-parole period of six months, effective from the date of the original sentence.

Orders