R v Tsonis

[2018] SASCFC 86

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TSONIS

[2018] SASCFC 86

Judgment of The Court of Criminal Appeal

(The Honourable Justice Lovell, The Honourable Justice Doyle and The Honourable Justice Hinton)

21 August 2018

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TIME SPENT IN CUSTODY

Appeal against sentence.

Following pleas of guilty, the appellant was convicted of three offences: trafficking in a commercial quantity of a controlled drug; cultivating a controlled plant for sale; and diverting electricity without proper authority. The sentencing judge imposed a sentence of four years six months imprisonment, taking into account a 10 per cent reduction for the appellant’s guilty pleas. The sentencing judge further reduced this sentence by six months on account of the time the appellant had already spent in custody and on home detention bail.  A non-parole period of two years imprisonment was fixed.

The appellant complains of three errors, namely that the sentencing judge erred:

1.      in his focus upon, and estimation of, the potential yield and profit from the cannabis plants the subject of the cultivation offence;

2.      in failing to give the appellant proper credit for the time he had spent in custody (seven months) and on home detention bail (13 months); and

3.      in imposing a sentence that was in any event manifestly excessive.

Held by the Court (allowing the appeal on ground 2):

1.      When determining the seriousness of a particular cultivation offence, within the range of cultivation offences attracting a particular maximum penalty, the number of plants is relevant, but so too is a range of other circumstances, including the potential yield and profit from the cultivation.

2.      When a defendant has spent time in custody on remand for the offences for which he is ultimately sentenced, it is appropriate to give full credit for the time spent in custody unless there is a reason founded in sound sentencing principles for exercising the court’s discretion to give less than full credit.

3.      The reason given by the sentencing judge in this case for giving less than full credit (essentially, the appellant’s repeated non-attending court and absconding from the police), was not a proper reason for doing so.

4.      It is unnecessary to determine ground 3.

5.      Appeal allowed. The appellant is resentenced to three years three months imprisonment, with a non-parole period of 14 months.

Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 33BB; Controlled Substances Act 1984 (SA) ss 32(2), 33B(3), 44(1)(d); Electricity Act 1996 (SA) s 85(1); Sentencing Act 2017 (SA) ss 26, 71, referred to.
R v Yavuz (2018) 130 SASR 231; R v Deng [2015] SASCFC 176; Trotta v Police [2008] SASC 16; R v Malesevic [1999] SASC 321; R v Rowe [2016] SASCFC 33; R v Hudson (2016) 125 SASR 171; K v SA Police (1994) 175 LSJS 195; Frank v Police (2000) 77 SASR 273; White v Police [2016] SASC 94;