Young v The King - [2024] SASCA 83

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
YOUNG v THE KING
[2024] SASCA 83
Judgment of the Court of Appeal
(The Honourable Acting Chief Justice Livesey and the Honourable Justice Bleby)
28 June 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - MANUFACTURING, PRODUCING OR CULTIVATING - CANNABIS
Appeal against sentence. The appellant is a serious drug offender. He was found guilty by a judge alone of the District Court of cultivating controlled plants for sale and of trafficking in a large commercial quantity of cannabis. A single sentence of six years’ imprisonment was imposed with a non-parole period of three years.
The appellant was arrested on 9 September 2021 and was remanded in custody for a period of 36 days before being released on home detention bail on 15 October 2021. He spent one year, five months and nine days on home detention bail prior to being sentenced on 21 February 2024.
During sentencing, it was not raised by either counsel that the appellant had previously spent time in custody and on home detention bail. Consequently, these matters were not factored into the sentence by the sentencing judge.
The respondent accepted that it was necessary that the appellant be resentenced having regard to his time previously spent in custody and on home detention bail.
Held (by the Court) granting permission to appeal, allowing the appeal, setting aside the sentence and resentencing the appellant:
1.The Court adopts the same starting points as the sentencing judge, indicating a starting point of four and a half years’ imprisonment for the offence of cultivating controlled plants, and a starting point of six years’ imprisonment for trafficking in a large commercial quantity of cannabis.
2.Pursuant to s 26 of the Sentencing Act 2017 (SA) but for the reductions to be applied, the Court would have imposed a single sentence of six years’ imprisonment.
3.The Court grants the appellant five months’ credit for the time spent on home detention bail and full credit for the 36 days spent in custody.
4.Applying those reductions, the appellant is sentenced to a period of imprisonment of five years, five months and 24 days with a non-parole period of two years and ten months.

5. The sentence is to be backdated to commence on 21 February 2024.
Controlled Substances Act 1984 (SA) ss 32(1), 33B(3); Sentencing Act 2017 (SA) ss 20(1), 26, referred to.
Young v The King [2024] SASCA 47; R v Tsonis [2018] SASCFC 86; Ribbon v The Queen [2022] SASCA 15, considered.

YOUNG v THE KING
[2024] SASCA 83
Court of Appeal – Criminal: Livesey A/CJ and Bleby JA

THE COURT: This is an appeal against sentence for offences of cultivating controlled plants for sale and trafficking in a large commercial…

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 Young v The King

Details

AGLC: Young v The King [2024] SASCA 83
Case: [2024] SASCA 83
Decision Date: 28 June 2024

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, who had been convicted of cultivating cannabis for sale and trafficking in a large commercial quantity of a controlled drug. The dispute arose because the sentencing judge had not taken into account the periods the appellant had spent in custody and on home detention bail, as neither party had raised these matters during the sentencing hearing. The respondent conceded that this omission constituted a significant error, not a mere technicality, and that the sentence was therefore not amenable to rectification under s 20(1) of the Sentencing Act 2017 (SA). The Supreme Court of South Australia, constituted by Acting Livesey CJ and Bleby J, heard the appeal.

The primary legal issue before the Court was whether the sentencing judge's failure to consider the appellant's pre-sentence custody and home detention bail amounted to an error that necessitated allowing the appeal and resentencing the appellant. The Court was required to determine if this oversight was a substantial error that warranted setting aside the original sentence and imposing a new one, given the respondent's concession.

The Court accepted the respondent's concession that the failure to account for the time spent in custody and on home detention bail was a significant error that prevented the original sentence from being a just one. The Court reasoned that such periods are material considerations in sentencing and their omission meant the sentence did not reflect the true extent of the appellant's deprivation of liberty. Consequently, the Court allowed the appeal, set aside the original sentence, and ordered that the appellant be resentenced.

Orders

Orders of the court

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Background

Background to the litigation

During the sentencing process, neither party addressed the periods of time that the appellant had spent in custody and on home detention bail. Those matters not having been brought to the attention of the sentencing judge, they were not factored into the sentence. The respondent accepts that the error constituted by these failures is not a mere technicality and that the sentence is not amenable to rectification under s 20(1) of the Sentencing Act 2017 (SA) (‘Sentencing Act’). The respondent accepts that in these circumstances, the appeal must be allowed, the sentence set aside, and the appellant resentenced. The respondent’s concession is appropriate. Background On 8 September 2021, police searched a warehouse at Wingfield that the appellant had leased. Inside, they found a hydroponic cannabis set-up in three rooms. The set-up contained 16 cannabis plants in various stages of maturity. The kitchen was established as a drying room and contained 5.567 kilograms of dried female flowering cannabis head. That cannabis was worth between $34,400 and $69,000, depending on the quantities in which it was to be sold. On the wall were instructions about how to grow cannabis hydroponically. The next day, police searched the appellant’s home. They found a notebook with notes in the appellant’s handwriting. The notes contained instructions for the maintenance of cannabis plants, references to tents used to grow cannabis and a list of the cost of items used in cannabis cultivation. Police also found vacuum storage bags, substrates and fertiliser used for growing cannabis plants, a light shade, and drying racks. Police seized the appellant’s phone. The phone contained photographs of cannabis plants and video footage of the inside and outside of the Wingfield warehouse. Evidence from Google Maps showed that the appellant had attended the warehouse on seven occasions between 2 July and 9 September 2021. Inside the appellant’s car, police found keys to the Wingfield warehouse, large suitcases with garbage bags containing cannabis remnants and a Bunnings Warehouse receipt for a 10-pack of large vacuum resealable bags. The appellant was convicted of the offences on a trial by judge alone. This Court dismissed his appeal against conviction on 11 April 2024.[1][1] Young v The King [2024] SASCA 47.Sentencing The maximum penalty for the offence of cultivating controlled plants for sale contrary to s 33B(3) of the Controlled Substances Act 1984 (SA) (‘Controlled Substances Act’) is a fine of $75,000 or 15 years imprisonment, or both, where the offender is a ‘serious drug offender’. The maximum penalty for the offence of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act is a fine of $1,000,000 or imprisonment for life, or both. At the time of sentencing, the appellant was 50 years old. He is a serious drug offender. In 2005, he was fined without conviction for possessing cannabis and producing cannabis. In 2012, he entered a 12-month good behaviour bond without conviction for possessing prescribed equipment, cultivating more than the prescribed number of cannabis plants, and possessing a prohibited weapon. In December 2015, he was sentenced in the District Court for selling a commercial quantity of a controlled plant, two counts of cultivating a controlled plant for sale, and three counts of possessing prescribed equipment. He was sentenced on that occasion to three years and six months’ imprisonment, with a non-parole period of two years. That sentence was suspended on his entering into a bond to be of good behaviour for two years.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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