R v Vallelonga - [2009] SASC 224

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v VALLELONGA
[2009] SASC 224
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kourakis)
31 July 2009
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - PRODUCING OR CULTIVATING
Appeal against sentence - appellant pleaded guilty to two counts of taking part in the production of cannabis contrary to section 32(1)(b) of the Controlled Substances Act 1984 (SA) - appellant sentenced to term of imprisonment of four years and nine months - non-parole period of two years and ten months fixed - whether sentence manifestly excessive - whether starting point adopted by sentencing Judge before taking into account guilty pleas too high - whether Judge had regard to personal circumstances of appellant.
Held: appeal allowed - matter remitted to District Court for further hearing - sentencing Judge led into error as to maximum penalty with respect to first count on basis of prosecution relying on weight of cannabis to determine appropriate penalty - correct measure for penalty determined by reference to number of plants produced - cannabis plants subject of second charge encompassed by first count - second count charged inappropriately.
Controlled Substances Act 1984 (SA) s 32; Criminal Law (Sentencing) Act 1988 (SA) s 10 and s 18A; Criminal Assets Confiscation Act 2005 (SA) s 24, s 95 and 224; Criminal Law Consolidation Act 1935 (SA) s 281, referred to.
R v Hietanen (1989) 51 SASR 510; R v Palaga (2001) 80 SASR 19, considered.

R v VALLELONGA
[2009] SASC 224
Court of Criminal Appeal: Gray, Vanstone and Kourakis JJ
GRAY J:

This is an appeal against sentence.
On 19 June 2009 the Court allowed the appeal and remitted the matter for further hearing to the District Court. The Court indicated that reasons for the Court’s decision would be published later. I now publish my reasons.
Pasquale Vallelonga, the defendant and appellant, was charged on Information with two counts of taking part in the production of cannabis contrary to section 32(1)(b) of the Controlled Substances Act 1984 (SA).[1] The particulars with respect to both counts alleged that the defendant knowingly took part in the production of cannabis between 16 February and 16 March 2007. The first count was committed at Mount Crawford and the second count at Salisbury.
[1] Section 32(1) of the Controlled Substances Act 1984 (SA) provides:
A person must not knowingly—
(a)   manufacture or produce a drug of dependence or a prohibited substance; or
(b)   take part in the manufacture or production of such a drug or substance; or
(c)   sell, supply or administer such a drug or substance to another person; or
(d)take part in the sale, supply or administration of such a drug or substance to another person; or
(e)have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.
The defendant pleaded guilty to both counts in the District Court on 7 July 2008. Convictions were recorded.
The defendant was sentenced, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), to the one term of imprisonment of four years and nine months. A non-parole period of two years and ten months was fixed. The sentencing Judge declined to exercise his discretion to suspend the sentence.
The only complaint advanced by the defendant with respect to the sentence was that it was manifestly excessive. It was said that the starting point of six years adopted by the sentencing Judge before taking into account the pleas of guilty was too high and that the Judge failed to have adequate regard to considerations of the personal circumstances of the defendant.
During the course of the appeal new issues emerged following concerns raised by the Court. This led to the adjournment of the appeal hearing to enable the parties to further consider their position.
On the resumed hearing, the Director of Public Prosecutions conceded that the appeal should be allowed and that there should be a remittal to the District Court to enable the defendant to seek to withdraw his plea of guilty to the second count, to allow the Director to seek leave to amend the particulars to the first count and for the defendant to be re-sentenced.
The Director accepted that the sentencing Judge had been inadvertently led into error as to the maximum penalty for the first count on the Information. The Director explained that the error resulted from a reliance on the weight of the cannabis in order to determine the appropriate penalty. The correct measure of the penalty for the offence of production of cannabis is by reference to the number of plants produced.[2]
[2] Controlled Substances Act 1984 (SA) section 32(5)(a).
In the within proceedings, the number of plants produced appears to have been between 65 and 80. It was submitted that the precise number of plants was not significant for the purpose of determining the maximum penalty, as at either end of that range the maximum penalty applicable is 10 years or a fine of $50,000 or both.[3] The Director conceded that it was appropriate for the defendant to be re-sentenced as it was likely that the mistake as to the applicable maximum penalty affected the starting point adopted by the Judge. This in my view was an appropriate concession.
[3] Controlled Substances Act 1984 (SA) section 32(5)(b)(ii).
As earlier noted, the second count against the defendant also alleged a taking part in the production of cannabis. The Director contended that the stripping, cleaning and preparation of cannabis for use, supply or sale could amount to a taking part in production for the purpose of the offence. Notwithstanding, the Director accepted that the charge as laid was problematic. The maximum penalty for the offence as charged could only be determined by reference to the number of plants produced. The plants from which the cannabis the subject of the second count had come were encompassed by the particulars supporting the first count. The defendant had pleaded guilty to the first count and was liable to be sentenced for taking part in the production of all of those plants. The gravamen of the offence was the involvement in the process of production and not possession.
Having incurred criminal liability with respect to the first count by pleading guilty to taking part in the production, inter alia of the very cannabis which formed the subject of the second count there was an element of double jeopardy in further charging the defendant for actions taken with respect to some of the same cannabis namely the stripping and cleaning up which took place at his home.
For these reasons the Director conceded that, on the facts as accepted by the prosecution at the time of sentencing, the second count was charged inappropriately. In my view this too was an appropriate concession.
During the course of the appeal the Court raised with counsel whether any confiscation proceedings had been issued against the defendant, and if so, the impact of those proceedings on the sentence to be imposed on the defendant.
The effect on the sentencing process of an order for confiscation of property is addressed by the Criminal Assets Confiscation Act 2005 (SA). Section 244 relevantly provides:
A court passing sentence on a person in respect of the person’s conviction of a serious offence—
(a)may have regard to any cooperation by the person in resolving any action taken against the person under this Act; and
(b)must not have regard to any forfeiture order that relates to the offence, to the extent that the order forfeits proceeds of the offence; and
(c)must have regard to the forfeiture order to the extent that the order forfeits any other property; and
(d)must not have regard to any pecuniary penalty order, or any literary proceeds order, that relates to the offence.
On 15 June 2007 a restraining order had been made under the Criminal Assets Confiscation Act in relation to properties and vehicles owned by the defendant. Section 224(c) requires a court to have regard to any forfeiture order made in relation to “other property” when sentencing. “Forfeiture order” is defined by section 3 as an order under section 47 that is in force. The order restraining the assets of the defendant was obtained under section 24 of the Act.
The Director submitted that it followed that there was no requirement pursuant to section 224 of the Act for the Judge to take into account the impact of forfeiture of assets as no forfeiture order had been made. However, the Director accepted that a judge was required to have regard to the nature and extent of forfeiture if it has occurred. Further, it was accepted that a court should have regard to the nature and extent of the forfeiture to be imposed because of the commission of the offence.[4]
[4] Section 10(1)(ka) of the Criminal Law (Sentencing) Act 1988 (SA) provides:
if a forfeiture of property (other than a forfeiture that merely neutralises a benefit that has been obtained through the commission of the offence) is, or is to be imposed, as a result of the commission of the offence—the nature and extent of the forfeiture; see also R v Errigo (2005) 92 SASR 562.
The Director submitted that none of the above considerations had application in the present proceedings. The Director advised the Court that no forfeiture order would be sought arising from the defendant’s offending. Instead, a pecuniary penalty order would be sought pursuant to section 95 of the Criminal Assets Confiscation Act. A pecuniary penalty order is referrable to the amount of benefit that accrued to the offender. For this reason it does no more than neutralise the potential benefit of the offending and as such should not be taken into account for the purpose of sentence.[5] Accordingly, in the particular circumstances outlined above, there was no error in the approach taken by the sentencing judge with respect to forfeiture.
[5] Criminal Assets Confiscations Act 2005 (SA) section 95.
Having regard to the foregoing, the defendant wishes to make application to withdraw his plea of guilty to the second count. As there is no appeal against conviction, it is appropriate for this application to be advanced in the District Court. The Director intimated that there would be no opposition to the application. The Director proposed to seek leave to amend the particulars to the first count to allege as an aggravating feature the approximate number of plants involved in the production.
In the circumstances the Court ordered that the appeal be allowed and the matter remitted to the District Court for the hearing of the application of the defendant to withdraw his plea of guilty to the second count, the application of the Director to amend the particulars to the first count to allege as an aggravating feature the number of plants involved in the production and the re-sentencing of the defendant.
VANSTONE J: Pasquale Vallelonga appealed against a sentence imposed in the District Court for two counts of taking part in the production of cannabis.
The matter initially came before this court on 16 June 2009. As a result of matters raised by the court, the hearing was adjourned to 19 June 2009. Upon the resumption of the hearing counsel for the Director of Public Prosecutions conceded that the appeal should be allowed. The Court made such an order. The sentence was set aside (if not explicitly, then implicitly) and the matter was remitted to the District Court.
The charges, as they appeared in the information, were as follows:
First Count
Statement of Offence
Taking Part in the Production of Cannabis. (Section 32(1)(b) of the Controlled Substances Act, 1984).
Particulars of Offence
Pasquale Vallelonga between the 16^th day of February 2007 and the 16^th day of March 2007 at Mount Crawford, knowingly took part in the production of cannabis, a prohibited substance.
It is further alleged that the amount of cannabis produced was in excess of 10 kgs.
Second Count
Statement of Offence
Taking Part in the Production of Cannabis. (Ibid)
Particulars of Offence
Pasquale Vallelonga between the 16^th day of February 2007 and the 16^th day of March 2007 at Salisbury, knowingly took part in the production of cannabis, a prohibited substance.
It is further alleged that the amount of cannabis produced was in excess of 2 kgs.
The allegation that the amount of cannabis produced was in excess of an amount of kilograms, as set out in the particulars of each count, was of no effect in invoking a higher than basic penalty range, since the penalty ranges for producing cannabis are determined by reference to the number of plants produced: s 32(5a) Controlled Substances Act 1984. The deposition of the exhibits officer, Brevet Sergeant Tepavcevic, recorded that 65 cannabis root balls were located at the Mount Crawford crop site. If the appellant fell to be sentenced on that basis, the maximum penalty for count 1 would be ten years imprisonment or a fine of $50,000 or both: s 32(5)B.(a)(ii) Controlled Substances Act 1984 (SA).
The allegation underlying count 2 was that a proportion of the Mount Crawford crop was cut and transported to the appellant’s Salisbury home, where it was found by police. Before the sentencing judge, counsel for the Director of Public Prosecutions accepted a defence submission to the effect that nine or ten plants, yielding about three kilograms of useable material, were taken by the appellant to his house. That was said to be his share of the enterprise. The penalty for a cannabis production of less than twenty plants (other than for personal use only) is imprisonment for two years or a fine of $2,000 or both: s 35(5)B.(a)(iii).
During submissions before the sentencing judge, counsel then appearing for the Director of Public Prosecutions advised the court that the applicable maximum for count 1 was “25 years imprisonment and/or a $500,000 fine”. He further said that the penalty for count 2 was a $50,000 fine or ten years imprisonment, or both. In both instances this was incorrect. When the judge came to sentence the appellant, he made no reference to the applicable maxima. I think it is highly likely that, had the judge recognised counsel’s error prior to sentence, he would have made reference to the correct maxima in his remarks so as to indicate that he had not relied on the submission. On this basis alone it was necessary to allow the appeal.
The other matter raised by the Court was as to count 2 on the information. As I have said, at all times the prosecution conceded that this count was based on the appellant’s possession, at his house property at Salisbury, of his share of the Mount Crawford crop. It is not to the point that, while at Salisbury, the appellant might have stripped the cannabis plants, an activity which in other circumstances might have rendered him liable to an offence of taking part in a production. He could not, properly, be convicted twice for the same production. The charge in these terms, laid on the basis outlined, was misconceived. At least one plea at bar would have been available to the appellant before the District Court after his plea of guilty to the first count.
As a result of these matters, it may well be that the sentence imposed by the judge was greater, because he was sentencing for two counts as opposed to one.
When the matter is dealt with again in the District Court, it will be for the judge who hears it to determine what is the true maximum penalty for count 1. It is certainly a practice that circumstances which render a defendant liable for punishment by reference to a higher penalty range need to be pleaded in the information: R v Hietanen (1989) 51 SASR 510, 512-515; R v Palaga (2001) 80 SASR 19, [84]-[96]. As it stands, no such circumstance is, effectively, pleaded. Where a charge fails to invoke a matter relevant to a higher penalty range, it would seem that the lowest range is applicable. If an application to amend the particulars is made, it will be for the judge to hear submissions and to rule upon whether such an amendment can be made without injustice. (See s 281 Criminal Law Consolidation Act 1935.)
It is for these reasons that I joined in the order of the court allowing the appeal.
KOURAKIS J:      I agree that the appeal should be allowed because the sentencing of the appellant proceeded on an erroneous basis. The error was that the applicable maximum penalty was 25 years imprisonment based on the weight of the cannabis produced, when on a charge of production of cannabis the maximum penalty is determined by the number of plants produced.[6] On the facts alleged against the appellant the maximum period of imprisonment which he was liable to serve, subject to a matter that I will mention shortly, was 10 years imprisonment,[7] because no more than 100 plants were cultivated.
[6]    Controlled Substances Act 1984 (2.4.06-2.12.07), s 32(5a).
[7]    Controlled Substances Act 1984 (2.4.06-2.12.07), s 32(5) B (a)(ii).
I agree with Vanstone J that, as the charge is presently particularised, no relevant circumstance of aggravation is pleaded that would expose the appellant to the maximum of 10 years imprisonment to which I have referred. In the absence of an amendment which particularises a number of plants equal to or greater than 20,[8] the maximum period of imprisonment faced by the appellant is two years.[9] It will be a relevant consideration in the exercise of the discretion on an application to amend that the number of plants cultivated was not disputed and that the appellant’s counsel did not take issue with the prosecutor’s submission that the relevant maximum period of imprisonment was 25 years.
[8] One fifth of the number of 100 plants prescribed by s 32(5a)(a) of the Controlled Substances Act 1984 (2.4.06-2.12.07).
[9] Controlled Substances Act 1984 (2.4.06-2.12.07), s 32(5) B (a)(iii).
I do not agree that a plea in bar is available to the appellant with respect to the second count in the information. The step in the production of cannabis[10] charged in the first count is the cultivation of the growing plants at Mount Crawford. The appellant cultivated those plants in his role as a joint venturer with, and gardener for, others. The step charged in the second count is the storage of that part of the harvest from those plants which was the appellant’s share of the proceeds of the joint venture. If the joint venture had not reached the stage of harvesting material, the acts charged by count one would have nonetheless amounted to the commission of the offence. Equally, if the appellant had not been the gardener, but had simply stored the harvest taken from the plants, the acts charged by the second count would also have constituted the offence of production. There is a clear distinction between the conduct charged on each count. If nothing more were known about the provenance of the cannabis at the Salisbury premises, there could be no complaint about the prosecution of the second count. However, given the factual basis on which the appellant pleaded, and which was accepted by the prosecution, it may be appropriate from a sentencing perspective that the appellant be sentenced, insofar as the cultivation is concerned, on one count only.
[10] Controlled Substances Act 1984 (2.4.06-2.12.07), s 32(1)(b) and (4)(a).
For these reasons I joined in the orders setting aside the sentence imposed in the District Court and remitting the matter to that Court for the determination of such further applications that may be made and the re-sentencing of the defendant.