R v Toft - [2024] SASCA 13

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v TOFT
[2024] SASCA 13
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
22 February 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - MANUFACTURING, PRODUCING OR CULTIVATING - CANNABIS
Appeal against sentence.
The respondent pleaded guilty to, cultivating a large commercial quantity of controlled plants, possessing prescribed equipment and to diverting electricity.
The offence of trafficking in a large commercial quantity of a controlled drug is a ‘serious and organised crime offence’ within the meaning of s 96(9)(b) of the Sentencing Act 2017 (SA) (‘Sentencing Act’). The effect of this designation is that a court may only suspend a sentence of imprisonment imposed for this offence if it is satisfied that exceptional circumstances exist for doing so.
On 8 February 2021, police attended at a property in Hillbank and discovered 286 cannabis plants in varying stages of growth, and eight tents set up to grow cannabis hydroponically. Police also located a large amount of prescribed equipment throughout the house. They also found a vacuum-sealed bag containing eight bags that contained a total of 3.62 kilograms of dry, 100 per cent female, flowering cannabis plant material. Each separate bag contained approximately one pound of cannabis. Electric power had been diverted from the premises. The property was owned by the respondent’s parents. The judge found that the respondent had acquiesced to a proposal by the co-accused to use the property to cultivate cannabis.
In sentencing, the judge found that the respondent’s offending was done to alleviate a financial burden experienced by the respondent’s parents.
The judge had regard to a psychological report undertaken by Dr Balfour. She characterised Mr Balfour’s opinion as being that the respondent ‘had serious mental health conditions that were operative at the time of the offending’. She relied on that characterisation in concluding that there was a basis for moderating the emphasis on personal and general deterrence that would otherwise be required in sentencing for the offences.
The judge imposed a total head sentence of three years and 11 months with a non-parole period of two years. She suspended the sentence on the basis that there were exceptional circumstances that justified an order suspending the sentence. In this regard, she relied on a combination of factors. These were the respondent’s psychological conditions and their effect on him, the fact that he did not offend as part of a serious criminal organisation to fund a lavish lifestyle for himself, that he was motivated to remain offence-free, his experiences as a child, his present role…

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 Toft

Details

AGLC: R v Toft [2024] SASCA 13
Case: [2024] SASCA 13
Decision Date: 22 February 2024

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the respondent, Mr. Toft, who had pleaded guilty to cultivating a commercial quantity of cannabis. The sentencing judge had imposed a term of imprisonment. The Crown appealed against this sentence, arguing it was manifestly inadequate.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence imposed by the sentencing judge was so lenient as to be outside the bounds of a proper exercise of discretion, thereby justifying appellate intervention. The Court was required to consider the principles governing appeals against sentence, particularly the threshold for finding a sentence "manifestly inadequate."

The Court acknowledged that appellate courts should be slow to interfere with a sentencing judge's discretion. However, it held that where a sentence is demonstrably too lenient, failing to adequately reflect the seriousness of the offence and the need for general deterrence, intervention is warranted. In this instance, the Court found that the sentencing judge had placed undue emphasis on certain mitigating factors and had not given sufficient weight to the gravity of cultivating a commercial quantity of cannabis and the need to deter others from engaging in such conduct.

Consequently, the Full Court allowed the Crown's appeal, quashed the original sentence, and substituted a more severe sentence of imprisonment that better reflected the objective seriousness of the offence and the sentencing principles applicable to drug trafficking offences.

Orders