Vanson v The King - [2024] SASCA 62

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
VANSON v THE KING
[2024] SASCA 62
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
16 May 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PROCEDURE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - OTHER SUBSTANCES AND OFFENCES INVOLVING MULTIPLE SUBSTANCES OR OFFENCES
Appeal against sentence.
On 15 June 2022, police located 26 cannabis plants in three hydroponic grow rooms at the applicant’s property. The dry usable cannabis material had a potential value of between $10,000 and $15,000.
The applicant pleaded guilty to three offences, namely, diverting electricity from a power system contrary to s 85(1)(a) of the Electricity Act 1996 (SA), cultivating a commercial quantity of controlled plants for sale, and possessing prescribed equipment, contrary to ss 33B(2) and 33LA(1) of the Controlled Substances Act 1984 (SA).
The sentencing judge imposed a total head sentence for the three counts of three years six months and 25 days with a non-parole period of one year and nine months, applying the discount for the applicant’s pleas of guilty. Her Honour declined to suspend the sentence or to order that the sentence be served on home detention.
The applicant submitted that there was a tension between the judge’s finding that the applicant’s prospects of rehabilitation justified a shorter non-parole period and the caution her Honour expressed in respect of the question of whether to suspend the sentence.
The primary issue on appeal was whether the failure to suspend the sentence or to order that it be served on home detention was unreasonable or plainly unjust.
Held (by the Court), granting permission to appeal but dismissing the appeal:
1.The learned sentencing judge did not fail to take into account the positive indicators of the applicant’s steps towards rehabilitation when considering the question of suspension.
2.The objectives of community protection and general and specific deterrence spoke heavily against the imposition of a non-custodial sentence.
3.While there was scope for leniency, the applicant had a long association with illicit drugs. The offending was serious and it was motivated by profit. The failure to suspend the sentence or to order that it be served on home detention was not unreasonable or plainly unjust.

Controlled Substances Act 1984 (SA) ss 33B(2), 33LA(1); Electricity Act 1996 (SA) s 85(1)(a), referred to.
R v Dell [2016] SASCFC 156; R v Filipponi [2016] SASCFC 148; R v Hevko [2018] SASCFC 22; R v Hibeljic [2018] SASCFC 35; R v Hosking (2017) 128 SASR 37; R v Reiner (1974) 8 SASR 102; R v Young (2016) 126 SASR 41, considered.

VANSON v THE KING
[2024] SASCA 62
Court of Appeal – Criminal: Livesey P, Bleby and David JJA

THE COURT: This is an application…

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 Vanson v The King

Details

AGLC: Vanson v The King [2024] SASCA 62
Case: [2024] SASCA 62
Decision Date: 16 May 2024

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia, comprising Livesey P, Bleby and David JJ, considered an appeal by an applicant against the sentence imposed for drug trafficking offences. The applicant was found to have operated a sophisticated hydroponic cannabis cultivation setup at his property, with an anticipated yield of approximately 5 kg of cannabis with a market value between $10,000 and $15,000. The dispute centred on whether the sentencing judge erred in failing to suspend the applicant's sentence or order it to be served by way of home detention.

The legal issues before the Court were whether the sentencing judge's decision not to suspend the sentence or impose home detention constituted an "outcome error," meaning it was unreasonable or plainly unjust. The applicant also raised three complaints of "process error," alleging flaws in the sentencing judge's reasoning that led to the conclusions against a non-custodial sentence.

The Court acknowledged factors that might have recommended leniency, including the applicant's age, family responsibilities, and a 15-year period without convictions prior to the current offending. However, the Court weighed these against the seriousness of the offence, which was motivated by profit, and the applicant's prior history of drug offending, including a previous suspended sentence for possessing amphetamines for sale. The Court concluded that while there was scope for leniency, as evidenced by a relatively short non-parole period, the objectives of community protection and general and specific deterrence weighed heavily against a non-custodial sentence. Therefore, the Court found that the failure to suspend the sentence or order home detention was neither unreasonable nor plainly unjust.

The Court granted the applicant permission to appeal but ultimately dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

The primary issue arising on the appeal is whether the failure to suspend the sentence or to order that it be served on home detention was unreasonable or plainly unjust. The applicant cast this complaint as a species of outcome error. He also prosecuted three complaints of process error in the sentencing judge’s reasoning to the conclusions against suspension and home detention.Background On 15 June 2022, police attended at the applicant’s property at Gawler South. They located 26 cannabis plants in three hydroponic grow rooms. They also found 75 light globes, 27 ballast boxes, 28 light shades and a carbon filter. There was a set of scales and a bag of cannabis in the kitchen. In the laundry were pieces of cardboard and paper, both of which displayed growing instructions. The electricity at the property had been diverted. It was a well-organised hydroponic setup. Police arrested the applicant and another man, Sartain, at the scene. The cannabis plants were healthy and thriving. Twelve were of medium size, immature and not yet flowering. The anticipated yield of the crop was approximately 5 kg of dry useable cannabis plant material, with a potential value on the market of between $10,000 and $15,000. At the time of sentencing, the applicant was 45 years old and had been married for 14 years. He and his spouse have two children. The elder, the applicant’s stepdaughter, attends university. The applicant’s son is at high school. Both children are dependent on the applicant. The applicant’s wife wrote a letter to the Court, explaining the importance of the applicant’s role in both children’s lives. The applicant’s offender history report discloses a considerable course of offending between 1997 and 2008. This mostly comprised driving and dishonesty offences between 1997 and 2005. In 2008, the applicant was convicted of possessing amphetamines for sale in 2005. He received a suspended sentence. In November 2005 he was fined for producing cannabis. In 1997 he was fined for possessing cannabis and equipment to administer cannabis. He has, over time, received a total of eight suspended sentence bonds. He has only been before a court for breach of bond on one occasion. Prior to sentencing for the present offending, the applicant had not been convicted of any offence for 15 years. The applicant had a difficult childhood. His parents separated when he was seven and he attended several different schools. He had no relationship with his father. His mother suffered from alcoholism and had a number of relationships characterised by emotional abuse and domestic violence. The applicant left home when he was 16. The applicant’s father-in-law, with whom the applicant had a close relationship, died suddenly four years before the offending. In consequence, the applicant’s mother-in-law and brother-in-law moved into a granny flat on the applicant’s property. The mother-in-law’s health had declined, and the brother-in-law required care as a result of suffering a brain injury some years ago. The applicant played an active role in his care.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In short, there were factors that recommended leniency. However, as the above discussion shows, several of those factors were qualified. The offending was serious. It was motivated by profit. The applicant had a long association with illicit drugs and had previously been engaged in the sale of amphetamines. Notwithstanding that there was scope for leniency, which was reflected in a relatively short non-parole period, the objectives of community protection and general and specific deterrence spoke heavily against the imposition of a non‑custodial sentence. It cannot be said that the failure to suspend the sentence or to order that it be served on home detention was unreasonable or plainly unjust.Conclusion We grant permission to appeal but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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