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…

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 Vallelonga

Details

AGLC: R v Vallelonga [2009] SASC 224
Case: [2009] SASC 224
Decision Date: 31 July 2009

CaseChat Overview and Summary

The appellant in the case, Vallelonga, was found guilty of two counts of participating in the production of cannabis, in contravention of section 32(1)(b) of the Controlled Substances Act 1984 (SA). Vallelonga was sentenced to a term of imprisonment of four years and nine months, with a non-parole period of two years and ten months. He appealed the severity of the sentence, arguing that the starting point adopted by the sentencing judge before taking into account his guilty pleas was too high and that the judge did not adequately consider his personal circumstances.

The legal issues for the court to decide were whether the sentence was manifestly excessive, whether the starting point adopted by the sentencing judge was too high, and whether the judge had regard to the appellant's personal circumstances. The court found that the sentencing judge had erred in calculating the maximum penalty for the first count based on the weight of the cannabis, rather than the number of plants produced. Additionally, the second count charged was inappropriate as the cannabis plants subject to the second charge were already encompassed by the first count.

The court allowed the appeal and remitted the matter to the District Court for a further hearing. The sentencing judge had been led into error in calculating the maximum penalty, and the court found that the sentence was manifestly excessive. The court did not find it necessary to consider the appellant's personal circumstances as the error in calculating the maximum penalty was sufficient to warrant a new sentencing hearing. The court did not make any final orders, as the matter was to be remitted to the District Court for further hearing.

Orders