Zefi v The Queen

Case [2021] SASCA 15

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ZEFI v THE QUEEN

[2021] SASCA 15

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)

1 April 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - MANUFACTURE, PRODUCTION OR CULTIVATION

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

Application for permission to appeal against sentence.

The applicant pleaded guilty to the following four offences: trafficking in a large commercial quantity of a controlled drug (cannabis); cultivating controlled plants (cannabis) for sale; unlawful possession of money; interfering with the supply of electricity.

After identifying individual notional starting points and guilty plea discounts for each of these offences, the sentencing Judge imposed a single head sentence of four years imprisonment and fixed a non-parole period of two years. 

As the first count was a “serious and organised crime offence” under s 96(9) of the Sentencing Act 2017 (SA), the sentencing Judge’s discretion to suspend the applicant’s sentence of imprisonment was conditioned upon satisfaction that exceptional circumstances existed for doing so. The sentencing Judge did not accept that the applicant’s health and family circumstances were sufficient to establish exceptional circumstances, and so declined to suspend the applicant’s sentence of imprisonment.

The applicant seeks permission to appeal against the sentence imposed on two grounds.  The first contends that the sentencing Judge erred in failing to take adequate account of the hardship to the applicant’s family, flowing from his leukemia and post-traumatic stress disorder, his wife’s migraines and the lack of additional support available to her, and his daughter’s disability and son’s haemophilia.  The second contends that the sentencing Judge erred in failing to find exceptional circumstances sufficient to suspend the applicant’s sentence.

Held, per Doyle JA (Kelly P and Bleby JA agreeing), refusing the application for permission to appeal:

1.      The sentencing Judge had regard to the full nature and extent of the family hardship relied upon by the applicant.  The precise weight to be attached to this consideration was a matter for the sentencing Judge, and there is nothing in the sentencing remarks in this case to indicate that his Honour’s discretion miscarried.

2.      The sentencing Judge’s discretion to suspend the applicant’s sentence of imprisonment did not miscarry.  His Honour was entitled to reject the submission that the applicant’s family circumstances gave rise to exceptional circumstances warranting suspension when considered in the context of the very serious nature of the applicant’s offending, and Parliament’s intention that suspended sentences not be generally available in respect of offending of this nature.

Controlled Substances Act 1984 (SA) ss 32(1), 33B(3); Summary Offences Act 1953 (SA) ss 41(1); Electricity Act 1996 (SA) ss 84(1)(b);

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Zefi v The Queen [2021] SASCA 15
Case
[2021] SASCA 15
Decision Date

CaseChat Overview and Summary

This matter concerned an application for permission to appeal against sentence by the applicant, Zefi, following his conviction for drug offences. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The primary legal issues before the Court were whether the sentencing judge had erred in his assessment of the applicant's family hardship and whether his discretion to suspend the sentence of imprisonment had miscarried. The applicant also sought to adduce fresh evidence in support of his appeal.

The Court, per Doyle JA (with Kelly P and Bleby JA agreeing), refused the application for permission to appeal. The Court found that the sentencing judge had properly considered the full extent of the family hardship presented and that the weight to be given to this factor was a matter for his discretion, which had not been shown to have miscarried. Furthermore, the Court held that the sentencing judge was entitled to reject the submission that the applicant's family circumstances constituted exceptional circumstances warranting suspension, particularly in light of the serious nature of the offending and the legislative intent regarding suspended sentences for such offences. The application to adduce fresh evidence was also refused, as the Court was not satisfied that the evidence was fresh in the relevant sense or that it would have altered the outcome of the appeal.

Orders

Orders of the court

Held, per Doyle JA (Kelly P and Bleby JA agreeing), refusing the application for permission to appeal:

1. The sentencing Judge had regard to the full nature and extent of the family hardship relied upon by the applicant. The precise weight to be attached to this consideration was a matter for the sentencing Judge, and there is nothing in the sentencing remarks in this case to indicate that his Honour’s discretion miscarried.

2. The sentencing Judge’s discretion to suspend the applicant’s sentence of imprisonment did not miscarry. His Honour was entitled to reject the submission that the applicant’s family circumstances gave rise to exceptional circumstances warranting suspension when considered in the context of the very serious nature of the applicant’s offending, and Parliament’s intention that suspended sentences not be generally available in respect of offending of this natur

Background

Background to the litigation

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Evidence

Evidence Before The Court

In my view, it has not been established that the sentencing Judge overlooked any relevant consideration, or that his decision not to suspend was unreasonable or plainly unjust in the relevant sense.Fresh evidence Upon being notified of the initial date for delivery of judgment in this matter, the Court was informed that the appellant wished to apply to adduce fresh evidence in support of his appeal. When the matter was called on, counsel for the appellant tendered an affidavit that exhibited a letter from the appellant’s doctor and a letter from his wife. The Court received those documents in order to determine the application to adduce fresh evidence. Having adjourned to consider the purported fresh evidence, I am not satisfied that the evidence is fresh in the relevant sense, or in any event that it would have made a difference to the outcome of the appeal. It is true that the report and letter provide some additional detail as to the frequency and severity of the appellant’s wife’s migraines, and their implications for her ability to care for the children. Those documents explain that she has been experiencing migraines on a fortnightly basis, and that they last up to three days. However, it is not apparent to me why this material could not have been produced at the time of the sentencing hearing, or even at the hearing of the appeal. Further, and in any event, even if this Court were to receive the evidence sought to be relied upon, I do not consider that it would alter the outcome. It is consistent with the evidence already before the Court, and to which regard has been had. It at most adds a bit of detail and colour to the existing evidence, but does not materially alter the position. For these reasons, I would refuse the application to adduce fresh evidence.Conclusion I would refuse the application to adduce fresh evidence, and the application for permission to appeal. BLEBY JA: I would refuse permission to appeal for the reasons given by Doyle JA.

Decision

Reasons for decision

For these reasons, I would refuse the application to adduce fresh evidence.Conclusion I would refuse the application to adduce fresh evidence, and the application for permission to appeal. BLEBY JA: I would refuse permission to appeal for the reasons given by Doyle JA.

Ratio Decidendi

Legal Principle Established

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