Santarelli v White - [1991] TASSC 169

Serial No B55/1991
List “B”

COURT: SUPREME COURT OF TASMANIA

CITATION: Santarelli v White [1991] TASSC 169; B55/1991

PARTIES:  SANTARELLI, Claudio Benito
  v
  WHITE, Graeme Ross

FILE NO:  LCA 14/1991
DELIVERED ON:  3 October 1991
JUDGMENT OF:  Slicer J
CATCHWORDS:

Sentence—Honest belief.

Judgment Number: B55/1991
Number of paragraphs: 19

Serial No B55/1991
File No LCA 14/1991

CLAUDIO BENITO SANTARELLI v GRAEME ROSS WHITE

REASONS FOR JUDGMENT SLICER J

3 October 1991

The applicant, by way of motion to review, seeks to have set aside a sentence of 12 months' imprisonment imposed following his conviction for an offence contrary to s52(1) of the Poisons Act, namely the cultivation of the prohibited plan Indian hemp. He had been sentenced to shorter but concurrent sentences in relation to other charges laid under the Poisons Act and the Police Offences Act, but no complaint is made about those penalties.

In essence the basis of the motion to review is that the sentence was manifestly excessive and grounds 2 and 3 (as amended) really provide particulars of that ground.

Facts

On 31 January 1991 police went to a property in the Scottsdale area, where they found three enclosures containing over 500 Indian hemp plants. The enclosures were surrounded by fencing and irrigated by a system operated by a petrol driven pump. They located a further 50 plants being dried within a shed situated on the property. Later the applicant was seen to drive onto the property and begin to harvest some plants in one of the enclosures. He was interviewed and admitting planting, cultivating and harvesting the plants. It was not suggested that any other person was involved in the project. The court was told that the estimated street value of the crop was $110,000.

Mitigation

The applicant was aged 54. He had an extensive record dating back to 1958. That record comprised mainly of property offences although containing three convictions for offences involving violence and two for possession of firearms. He had been sentenced to actual terms of imprisonment on six occasions, the last being in 1986. Although most of his convictions for dishonesty predated 1971, his overall record showed a consistent and marked disdain for lawful conduct. Although this was his first conviction for an offence involving a prohibited plant or substance, it could not be said that he was entitled to any mitigating benefit for general good character. A number of other matters were put in mitigation in relation to his health, family situation and background. As such the material showed little which would make the applicant's position exceptional.

The main thrust of the plea in mitigation was the future intention of the applicant as to the disposal of the illicit crop. In response to questions asked by the police he claimed that although he knew his activities to be illegal he believed that the government of Tasmania would legalise the use of cannabis. He held that belief because of public debate on the subject contained in various books and…

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 Santarelli v White

Details

AGLC: Santarelli v White [1991] TASSC 169
Case: [1991] TASSC 169
Decision Date: 3 October 1991

CaseChat Overview and Summary

Claudio Benito Santarelli brought a motion to review against a sentence of 12 months' imprisonment imposed following his conviction for cultivating Indian hemp, a prohibited plant, in violation of the Poisons Act. The court was tasked with determining whether the sentence was manifestly excessive and whether it had taken into account all relevant factors, including the defendant's intention to store the crop until legalisation. The defendant's primary argument was that his belief in the eventual legalisation of cannabis should have mitigated his sentence. The court found that while the defendant's belief was honest, it did not absolve him of the knowledge that his actions were illegal at the time of cultivation. The court emphasised that the sentence should reflect the commercial value of the prohibited plants and the nature of the unlawful conduct. The court also addressed the argument regarding parity with other cases, noting that each case must be judged on its own merits and that a mechanistic approach to sentencing was inappropriate. Ultimately, the court concluded that the sentence, while at the upper end of the appropriate range, did not depart from the range of penalties suitable for the offence, and therefore dismissed the motion to review.

Orders