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

1. 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.

1. 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

1. 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

1. 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.

1. 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 articles. His aim was to cultivate the crop and store it until reforming legalisation when he would be able to obtain an early, lawful market share.

1. The prosecution did not challenge any of this material. As the prosecutor told the court:

"I take no issue with what Mr Ellis has said ... because that's exactly what he [the defendant] did say to the police at the time. The only thing I would say to your Worship is that there has been no talk of making marihuana legal to make this enter the defendant's mind. We can't say what was in his mind. We can only say what he told us and we don't take any issue with that ..."

That may be correct but in cases where the prosecution is faced with an explanation dependent solely upon a claimed state of mind, and it wishes to have an appropriate penalty considered by the court, then it should challenge the assertion and require the taking of evidence to enable the court to assess the honesty of the belief. In this case the court was obliged to sentence on the basis of the assertion.

1. On that material the applicant contended that the court could not pay regard to any potential unlawful commercial distribution. That proposition is only partially tenable. The reality was that the applicant was involved in an activity which he knew to be unlawful at the time he undertook such activity. The value of the crop was considerable. He was committing an unlawful act, knowing it to be unlawful and he had an expectation that he would obtain a substantial reward (albeit lawful) as a consequence of his unlawful actions. The sentence should reflect the commercial value of the prohibited plants at the time of the offence and the nature of the unlawful conduct. It may be that where there is evidence of future unlawful distribution or the expectation thereof, such evidence could be regarded as an aggravating factor. As the prosecutor told the court:

"... but your Worship, in my respectful submission, has to take into account what the situation is at the moment and not what it may have been in the future".

Parity

1. Ground 2 of the motion to review claims error in the failure to impose a sentence less than the one imposed in the case of R v Lade and Bishop, CCA 12/1991. That is not the correct approach to the determination of sentence. In the course of his submissions to the magistrate, counsel for the applicant appeared to regard the decision as determining a form of bench mark because having referred the court to the authority, stated:

"They provide examples of sentences which are inappropriate for Mr Santarelli. I am not saying that a custodial sentence as a deterrent for growing mightn't be appropriate, but a six months' sentence in his unusual circumstances is, in my submission, inappropriate."

The submission is dependent upon a mechanistic approach to the sentencing process. In the case of R v Lade and Bishop (supra) neither person had been sentenced as a principal. The decision itself drew attention to the danger attendant upon a use of statistics or of comments made in other cases. See Underwood J at p6.

1. The Tasmanian courts have consistently rejected this approached. See:

Reynolds v R, CCA 46/1974

The Queen v O'Brien, CCA 43/1987.

1. This ground of the motion to review is rejected except in so far as it can be used as a particular to the ground alleging manifest excess.

Purpose of Cultivation

1. Ground 3, as amended, claimed that the magistrate erred in that he gave undue weight to the possibility that the crop might end up on the illicit market. It is true that the magistrate devoted a substantial portion of his comments on passing sentence, to that issue, but that was reflective of the plea in mitigation. The magistrate commented that given the value of the crop there was danger that the applicant would either be vulnerable to temptation or pressure with the attendant risk. It is true that the comments on passing sentence leave something to be desired in delineating the factors to which the magistrate paid attention, but it cannot be said that he could not pay regard to the question of future risk. However the basis on which he approached the question of penalty could not be said to have taken into account factors beyond the ingredients of the offences charged. See:

Halden v R (1983) 9 A Crim R 30.

1. The ground cannot be made out and can only be considered as a particular of ground 1.

Manifestly Excessive

1. The magistrate was entitled to sentence the applicant on the basis that he was the principal to an illegal enterprise with a value of approximately $110,000. The cultivation was for commercial gain, and it was irrelevant to the question as to whether the substance might find itself onto an illicit market. That may be regarded as a factor going in aggravation. The magistrate was entitled to pay regard to the possibility that there might be some future illicit dealing. But the factor should have little weight in the determination of sentence. The question of the appropriateness of the sentence will be decided on that basis.

1. The cultivation was of a commercial nature and its value considerable. The applicant could not be regarded as a first offender. The sentence of 12 months' imprisonment must be considered in the light of all the circumstances surrounding the offender and the offence.

1. The range of penalties in respect of offences concerning cultivation of substantial quantities of Indian hemp varies according to a multitude of circumstances.

1. It is true that the sentence should not be made upon the basis which assumes guilt of a more serious offence. See:

The Queen v Di Simone (1980) 147 CLR 383.

1. But in this case there needs to be demonstrated a departure from the range of penalties appropriate to the commission of this offence especially given the penalty range provided by the parliament, namely the maximum period of imprisonment of two years. I am not persuaded that the sentence imposed was outside the range of penalties appropriate to an operation of the size undertaken by the applicant. In coming to that conclusion I am paying regard to the principles of sentencing as enunciated in:

Young v Lowe, CCA 7/1985

Brooks v Harvey, 75/1983

Fox v Greig, 13/1979

Turner v McKenna, 73/1983

R v Lade and Bishop (supra).

I would regard this sentence as lying at the upper range of the appropriate penalty and it may be that I would have imposed a slightly less severe sentence. But that is not the role of a court determining an appeal against sentence.

1. In my opinion the sentence imposed in this case does not fall outside the appropriate range of penalties. As such it could not be said to be manifestly excessive.

1. For the above reasons the motion to review will be dismissed.