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R v Zahra No. Sccrm-98-175 Judgment No. S7010

R v Zahra No. Sccrm-98-175 Judgment No. S7010

Case [1998] SASC 7010 22 December 1998

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R v ZAHRA
[1998] SASC 7010

Court of Criminal Appeal: Millhouse, Olsson and Debelle J

Millhouse J. At the end of argument the Court was unanimously of the view that this appeal should be dismissed. We gave judgment accordingly.
My brothers Olsson and Debelle have now prepared reasons for their views. I agree in substance with both my brothers and now, on their behalf publish their reasons.
OLSSON J. The appellant in this matter was convicted, by verdict of a jury, of the offence of possessing cannabis for sale. When he came before a District Court Judge for sentence he pleaded guilty to a separate charge, on complaint, that, on 30 October 1997 at Beverley, he had in his possession $5000 in cash which, either at the time of such possession or subsequently, was reasonably suspected of having been stolen or obtained by unlawful means.
Because the two offences were the subject of separate proceedings the learned sentencing judge was unable to resort to the provisions of s18A of the Criminal Law (Sentencing) Act 1988.
In relation to the offence of possession for sale the appellant was sentenced to a term of 30 calendar months imprisonment. He received a separate sentence of six calendar months imprisonment for the unlawful possession offence, to be served concurrently with the drug offence. A non parole period of 15 calendar months was fixed. A submission that the sentences be suspended was rejected.
The appellant complains that the sentences imposed are manifestly excessive and that the custodial sentences ought to have been suspended. In particular it is contended that the learned sentencing judge erred in concluding that the offending had been committed against a background of involvement in commercial trading or dealing in drugs.
The appellant came before the court as a 39 year old man who had a number of prior convictions, mainly for illegal use and larceny committed as a juvenile between 1969 and 1976. He has had several convictions since then as an adult, but none of them for serious criminal offences.
The drug offence arose from the fact that the appellant was found in possession of just under 4 kilograms of female cannabis head, with some leaves mixed in.
The learned sentencing judge accepted that this was the product of six plants which had been cultivated by the appellant himself. He also accepted that the appellant was a personal user of cannabis. Indeed his own counsel had volunteered that he had been growing cannabis since 1992. He was accustomed to chewing, rather than smoking, it - to relieve back pain which he experienced.
As the learned sentencing judge pointed out, the appellant gave evidence at his trial that his intention had been to consume all of the cannabis himself and that none of it had been intended for sale. However, the jury verdict, given on the evidence bearing on that aspect, plainly negated such an assertion. The verdict, the learned sentencing judge said, clearly pointed to a commercial motive for the…

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 Zahra No. Sccrm-98-175 Judgment No. S7010

Details

AGLC: R v Zahra No. Sccrm-98-175 Judgment No. S7010 [1998] SASC 7010
Case: [1998] SASC 7010
Decision Date: 22 December 1998

CaseChat Overview and Summary

The case of R v Zahra, decided by the South Australian Supreme Court, involves an appeal against the sentences imposed on the appellant, who was convicted of possessing cannabis for sale and unlawful possession of $5000. The appellant argued that the sentences were manifestly excessive and that the custodial sentences should have been suspended. The Court of Criminal Appeal, consisting of Millhouse, Olsson, and Debelle JJ, unanimously dismissed the appeal. The court found that the sentencing judge had not erred in considering the appellant's involvement in a commercial dealing in drugs, as evidenced by the quantity of cannabis and the cash found in his possession. The court concluded that the sentences imposed were appropriate given the seriousness of the offences and the appellant's criminal history.

The primary legal issues addressed in the appeal were whether the sentences were manifestly excessive and whether the learned sentencing judge erred in not suspending the sentences. The court examined the appellant's criminal history, the nature of the offences, and the circumstances in which they were committed. The appellant had a history of criminal activity dating back to his youth, including illegal use and larceny. The drug offence involved the possession of almost 4 kilograms of cannabis, cultivated by the appellant himself. The court found that the appellant had intended to sell the majority of the cannabis, as evidenced by the large quantity and the presence of $13,000 in cash, of which $5,000 was unlawfully possessed.

The court held that the sentencing judge did not err in considering the appellant's involvement in commercial drug dealing as an aggravating factor. The concessions made by the appellant's counsel at first instance meant that the issue of past sales was effectively resolved. The court emphasised that the sentencing judge's role was to assess the seriousness of the offence and the surrounding circumstances, which included the commercial nature of the offending. The judge concluded that the appellant would have engaged in a moderate criminal enterprise by selling the cannabis had he not been apprehended. The court found that the sentences imposed were proportionate to the seriousness of the offences and the appellant's criminal history. The decision of the Court of Criminal Appeal was that the appeal should be dismissed, and the original sentences were upheld.

Orders