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

1. THE COURT:  This is an appeal against sentence for offences of cultivating controlled plants for sale and trafficking in a large commercial quantity of cannabis. The sole ground of appeal is that the sentencing judge erred in the sentencing process in failing to bring to account the period of time that the appellant had spent in custody and the period of time that he had spent on home detention bail.

2. 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

3. 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.

4. 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.

5. 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.

6. 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.

7. 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

8. 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.

9. 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.

10. On sentencing, the judge observed that, in the appellant’s case, specific and general deterrence assumed particular significance because of his prior offending and because he had not benefited from the leniency shown to him in 2015 when he received a suspended sentence. The judge accepted that the appellant had a genuine intention and enthusiasm to find meaningful employment as a beekeeper and that he had an ambition to live a law-abiding life. He found, however, that the appellant still had much work to do towards his rehabilitation. He considered that the appellant was yet to recognise the seriousness of his offending or the harm caused by cannabis use. He observed that the offending represented an escalation of the appellant’s offending in 2015.

11. The judge observed that the appellant had skills that he could apply to live a productive and law-abiding life. He noted the appellant’s statement that he appreciated the seriousness of his actions. He was guardedly pessimistic in his assessment of the appellant’s prospects of rehabilitation. He considered that, while the appellant had not ‘exhausted the leniency of the court’, the appellant’s age and criminal history meant that he was running out of opportunities to turn his life around.

12. For the offence of cultivating controlled plants for sale, the judge indicated a starting point of four and a half years’ imprisonment. For the offence of trafficking in a large commercial quantity of a controlled drug, he indicated a starting point of six years’ imprisonment. He indicated that he would have ordered those two sentences to be served concurrently, as they arose from a single course of conduct. He determined to fix a single sentence reflecting the inherent criminality of the offending and imposed a single sentence of six years’ imprisonment.

13. The judge fixed a non-parole period of three years, in recognition of his view that both the appellant and the community would benefit from the appellant having a longer than usual period on parole. He noted that the appellant had support in the community and had the skills to live a productive life. He declined to suspend the sentence or to order that it be served on home detention.

    The appeal

14. As already noted, neither party made submissions before the sentencing judge in relation to time served in custody or as to credit for the appellant’s period on home detention bail. The judge having proceeded in ignorance of those matters, it is necessary to allow the appeal, set aside the sentence, and resentence the appellant.

    Resentencing

15. The appellant was sentenced on 21 February 2024. He was arrested on 9 September 2021 and remanded in custody until his release on home detention bail on 15 October 2021. That is a period of 36 days. He has also spent a period of one year, five months and nine days on home detention bail. During that period, he was subject to supervision and random drug testing. There was no breach of bail reported and there is nothing to suggest that the appellant was other than compliant with all conditions of his home detention bail.

16. We resentence the appellant as follows. We indicate the same starting points as the sentencing judge. That is, in relation to the offence of cultivating controlled plants for sale, we indicate a starting point of four and a half years’ imprisonment. In relation to the offence of trafficking in a large commercial quantity of cannabis, we indicate a starting point of six years’ imprisonment. Pursuant to s 26 of the Sentencing Act, but for the reductions to be applied, we would have imposed a single sentence of six years’ imprisonment.

17. There was no contest that it is appropriate to give the appellant full credit for the 36 days spent in custody. As to the period of one year, five months and nine days on home detention bail, there is no formula for determining the credit to be given. It is usually not appropriate to give full credit, day for day, but the discretion is nonetheless broad.[2] We give the appellant five months’ credit for the period spent on home detention bail.

    [2]     R v Tsonis [2018] SASCFC 86 at [86]; Ribbon v The Queen [2022] SASCA 15.

18. Applying those reductions to the indicated sentence of six years’ imprisonment, we sentence the appellant to a period of five years, five months and 24 days. Like the sentencing judge, we accept that the appellant would benefit from a longer than usual period on parole. We fix a non-parole period of two years and 10 months. The sentence is backdated to commence on 21 February 2024.