R v Tassone - [2011] SASCFC 7

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TASSONE
[2011] SASCFC 7
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Anderson)
4 March 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - POSSESSION FOR SALE OR SUPPLY - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
Appeal against sentence - appellant convicted of possessing cannabis for purpose of sale - provision of premises for packaging for subsequent sale - assistance to nephew to avoid police detection - sentenced to imprisonment for four years and six months with non-parole period of three years.
Appellant appeals on ground that head sentence and non-parole period were manifestly excessive.
Discussion of the classification of the seriousness of certain illicit drugs and possible reclassification for sentencing purposes - whether Director of Public Prosecutions should provide evidence of effect of different drugs and danger to those who consume - consideration of appellant's circumstances and role - process of sentencing Judge in determining non-parole period - whether sentence should be suspended - appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(e), referred to.
R v George (2004) 149 A Crim R 38, applied.
R v Becker (2005) 91 SASR 498; R v Ford (2008) 100 SASR 94; R v Cramp (2010) 106 SASR 304; R v Beresford (1972) 2 SASR 446; R v Campbell [2007] SASC 203; R v Mangelsdorf (1995) 66 SASR 60; R v Famiglietti [2005] SASC 489, considered.

R v TASSONE
[2011] SASCFC 7
Court of Criminal Appeal: Gray, Sulan and Anderson JJ
THE COURT:

This is an appeal against sentence.
On 19 November 2010, the defendant and appellant, Tony Tassone, was convicted on his plea to the offence of possessing cannabis for the purpose of sale, contrary to section 32(1)(e) of the Controlled Substances Act 1984 (SA). He was sentenced to imprisonment for four years and six months. A non-parole period of three years was fixed. The Judge declined to exercise his discretion to suspend the sentence.
The quantity of cannabis exceeded ten kilograms. Accordingly, the maximum penalty for the offence is 25 years’ imprisonment and a fine of $500,000.00, or both. The defendant agreed to pay $100,000.00 in satisfaction of an application for forfeiture of his home at which the police located the cannabis.
Background
On 12 July 2007, police attended at the defendant’s premises. In a shed at the rear of the property, an associate of the defendant was observed to be in the process of heat-sealing bags of cannabis. The defendant was also engaged in packaging cannabis that day. Some cannabis had already been packaged. Other cannabis was in the process of being packaged. A total of approximately…

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 Tassone

Details

AGLC: R v Tassone [2011] SASCFC 7
Case: [2011] SASCFC 7
Decision Date: 4 March 2011

CaseChat Overview and Summary

In R v Tassone, the Court of Appeal considered an appeal against sentence. The appellant had been convicted of possessing cannabis for the purpose of sale, providing premises for its packaging, and assisting his nephew to avoid police detection. The quantity of cannabis involved exceeded ten kilograms, carrying a maximum penalty of 25 years' imprisonment. The appellant agreed to pay $100,000 for the forfeiture of his home where the cannabis was discovered.

The legal issues before the court concerned the appropriate sentence for the appellant's involvement in the commercial cannabis trade. Specifically, the court had to determine whether the sentence of four years and six months imprisonment, with a non-parole period of three years, was manifestly excessive given the appellant's role. The court also considered the relevance of the appellant's prior knowledge and involvement in the cannabis trade, as evidenced by hydroponic equipment found on the premises, and the fact that his nephew, who was directly involved in the supply and sale, had died.

The court reasoned that the appellant was not a passive participant but was actively involved in a commercial operation, accepting payment for his role in packaging the cannabis. While the appellant was not involved in the direct supply or sale, he was aware of his nephew's intention to sell the drug and provided his premises to facilitate this, specifically to evade police surveillance. The court noted that the appellant was not naive and acknowledged his involvement in the cannabis trade. The sentencing judge had correctly used the evidence of prior involvement, such as the hydroponic equipment, not to penalise past or future offending, but to demonstrate that the current offence was part of a broader engagement in the cannabis trade.

The Court of Appeal dismissed the appeal, finding that the sentence imposed by the sentencing judge was not manifestly excessive. The court upheld the sentence of four years and six months imprisonment with a non-parole period of three years.

Orders

Orders of the court

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Background

Background to the litigation

The quantity of cannabis exceeded ten kilograms. Accordingly, the maximum penalty for the offence is 25 years’ imprisonment and a fine of $500,000.00, or both. The defendant agreed to pay $100,000.00 in satisfaction of an application for forfeiture of his home at which the police located the cannabis.Background On 12 July 2007, police attended at the defendant’s premises. In a shed at the rear of the property, an associate of the defendant was observed to be in the process of heat-sealing bags of cannabis. The defendant was also engaged in packaging cannabis that day. Some cannabis had already been packaged. Other cannabis was in the process of being packaged. A total of approximately 17 kilograms of cannabis was found in the shed. The defendant’s associate was carrying $21,100.00 cash and the defendant had approximately $4,200.00 cash. Another amount of $500.00 cash was found in the shed. During the police search, the police located hydroponic equipment with its own dedicated power supply in the basement of the defendant’s premises. An examination of tables revealed remnants of green vegetable matter. The sentencing Judge accepted that the only relevance of this discovery was to demonstrate that the defendant had prior knowledge and involvement in the cannabis trade: Also located in your cellar was a sophisticated hydroponics set-up with dedicated mains power, tables, and remnants of green vegetable matter. Also on the property were a number of small potted cannabis plants. You cannot be penalised for previous offending nor any planned further offending and I do not do so. I use this material for the strictly limited purpose of rendering unavailable any submission that this offending was isolated, but rather it was committed as part of an involvement by you in the cannabis trade. During sentencing submissions, counsel for the defendant accepted that the defendant was not naïve. This was not a case of a person who was doing a favour for a friend. Counsel acknowledged that the defendant was involved in the cannabis trade. The defendant did not contest that the operation the police uncovered was a commercial operation. The street value of the drug, if sold in larger lots, was between $90,000.00 and $140,000.00. If the drug was sold in five gram deals on the street, its value was approximately $105,000.00 to $175,000.00. It was agreed that dried cannabis had been provided to the defendant by his nephew who had died by the time the defendant was sentenced. The defendant’s nephew was involved directly with both the supply of cannabis to the defendant and its eventual sale. The defendant had been approached by his nephew who requested the defendant to assist him in the commercial enterprise of selling cannabis. It was agreed that the defendant provided his premises for the packaging of cannabis for subsequent sale. It was accepted that the defendant knew how cannabis was to be packaged for the cannabis trade. The defendant was to receive payment for his part in the operation. However, the defendant was not involved in the supply or the subsequent sale of packaged cannabis. Nevertheless, the defendant was aware that his nephew proposed to sell the cannabis. The defendant agreed to assist because his nephew’s premises were under police observation. Alternative premises were consequently required for the packaging process.

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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