R v Trimboli No. Scgrg-96-279 Judgment No. S6481

[1997] SASC 6481

R v TRIMBOLI

Full Court
Coram: Cox, Matheson, Williams JJ

Matheson J (ex tempore)

The appellant was charged in the District Court of South Australia with possessing cannabis for sale, particulars being that on 4 January 1996, at Angle Vale, he knowingly had cannabis, a prohibited substance, in his possession for the purpose of selling it to another person, the amount of cannabis being in excess of 10 kilograms.  The maximum penalty for the offence is 25 years imprisonment and a fine of $500,000.  The learned sentencing judge imposed a head sentence of three years, a non parole period of 18 months, and directed that both periods date from 17 October 1997.

There is really no dispute as to the facts.  On the date and at the place charged, the police raided a market garden property belonging to the appellant’s father, and found cannabis in a shed and in a suitcase in a bedroom.  The bedroom was occasionally occupied by the appellant, who also worked on the property.  The cannabis had been grown in the Riverland by persons who were related to the appellant and had been taken to the Angle Vale property for distribution.  The appellant was responsible for the sale of the cannabis in the suitcase, less a small amount for his own consumption.  His relatives would be responsible for the sale of the cannabis in the shed.  The total amount of cannabis was 10.6 kilograms worth approximately $123,000. 

The appellant's elderly father was charged with the same offence, but as a result of the appellant's subsequent offer to plead guilty, the case against his father did not proceed. Clearly it was a case then for a substantial reduction for the appellant's plea, and the learned sentencing judge made a reduction of one-third. He said that he started with a head sentence of four and a half years. Mr Peek, counsel for the appellant, has argued strenuously that was too high a starting point having regard to the authorities. He cited R v Mangelsdorf (1995) 66 SASR 60 and R v Frantzis and Batas (1996) 87 A Crim R 295.

The appellant is 42 years of age, married with two daughters.  The sentencing judge described him as contrite.  He does have a previous conviction for producing cannabis on 23 August 1994 for which he was fined $600.

The aspect of the case that has occasioned me most concern is the health of the appellant’s father and of the appellant himself.  The appellant's father is very seriously ill and the appellant himself suffers from diabetes, obesity and some degeneration of his spine.  These problems arouse sympathy, but I do not consider that they are of such an exceptional nature as to warrant the interference by this court in either the head sentence or the non parole period imposed. There was no evidence before the sentencing judge that the appellant's own problems could not be treated whilst he was in custody.

The amount of cannabis involved here was substantial, and the case clearly called for a substantial penalty.  As Doyle CJ observed in Mangelsdorf, supra, at p.68:

"This court has consistently stressed the need to recognise the severe penalties which Parliament has specified for such offences involving cannabis.  The court has emphasised that Parliament clearly expects the courts to impose sentences which are likely to deter people from engaging in commercial activity with respect to this drug. The seriousness of the offence, its prevalence,and the importance to be given to deterrence all combine to lead to the conclusion that ordinarily a sentence of imprisonment for such offences is to be expected, the duration of the sentence reflecting the quantity involved and hence the applicable statutory maximum."

It could perhaps be said, having regard to the cases to which Mr Peek referred, that the head sentence imposed was a severe one, but having given the matter anxious consideration, I am quite unpersuaded that it is so severe that this court should interfere.

As far as the non parole period is concerned, Mr Peek argued that it should have been less than half the head sentence, having regard to the health problems that I have mentioned, but the period that his Honour fixed was clearly within his sentencing discretion.

In his Grounds of Appeal the appellant also submitted that the sentence should have been suspended.  However, in my view, that would have been quite inappropriate, having regard to the amount of cannabis involved and to what was said in Mangelsdorf at p63, namely that "suspension will be justified only in truly exceptional circumstances".  Mr Peek did not really address any argument on this aspect.

In my opinion, for those brief reasons, the appeal should be dismissed.

Cox J

I agree.

Williams J

I agree.