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Rama v R [2006] ACTCA 25 | Case summary | Zoe

ACTACTCA

Rama v R [2006] ACTCA 25

[2006] ACTCA 25

Court of Appeal (ACT)|2006-12-11|Before: Warren CJ

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Source facts

Court

Court of Appeal (ACT)

Decision date

2006-12-11

Before

Warren CJ

Source

Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

FATOS RAMA v REGINA [2006] ACTCA 25 (11 DECEMBER 2006)

CRIMINAL LAW – appeal against sentence – multiple offences – damaging property with a view to gain – cultivating a prohibited plant – possessing a traffickable quantity of cannabis for the purpose of sale or supply – sentences to be imposed in relation to each offence –elements common to offences – partial cumulation of sentences – totality principle.

Crimes Act 1900 (ACT), s 116(2), s 354, s 434B

Crimes (Sentencing) Act 2005 (ACT), s 71

Drugs of Dependence Act 1989 (ACT), s 162, s 165

Putland v R (2004) 218 CLR 174

Pearce v The Queen (1998) 194 CLR 610

Mill v The Queen (1988) 166 CLR 59

Johnson v The Queen (2004) 205 ALR 346

R v Marash Rrethi (Supreme Court of the ACT, SCC 171 of 2004

R v Downie and Dandy [1998] 2 VR 517

DPP v Duong [2006] VSCA 78 (30 March 2006) at [17] – [19] per Warren CJ

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 18-2006

No. SCC 273 of 2004

No. SCC 218 of 2004

Judges: Higgins CJ, Gray and Moore JJ

Court of Appeal of the Australian Capital Territory

Date: 11 December 2006

IN THE SUPREME COURT OF THE ) No. ACTCA 18-2006

) No. SCC 273 of 2004

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 218 of 2004

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: FATOS RAMA

Appellant

AND: REGINA

Respondent

ORDER

Judges: Higgins CJ, Gray and Moore JJ

Date: 11 December 2006

Place: Canberra

THE COURT ORDERS THAT:

The appeal be allowed and sentences imposed to give effect to this judgment.

IN THE SUPREME COURT OF THE ) No. ACTCA 18-2006

) No. SCC 273 of 2004

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 218 of 2004

)

COURT OF APPEAL )

The appellant rented residential properties in false names over a period from September 2002 to May 2004. The houses that were rented were then used to hydroponically cultivate cannabis on a substantial scale and which the sentencing judge rightly described in his sentencing remarks as “a large scale commercial cannabis growing operation”. Further, as the sentencing judge also observed, the setting up of this operation involved significant damage to each of the individual premises as “walls were ripped down, ceilings ripped out, floors ripped out, and electrical and hydroponic water supply equipment was installed” for the purposes of this illicit operation. The sentencing judge took into account what was overall said to be crops involving about 169 kilos of cannabis with an estimated potential street value of around $1,000,000.00.
It was said that this was a major criminal enterprise carried on by organised criminal elements originating in Albania. Nevertheless, the sentencing judge accepted that the appellant was not a principal in that enterprise. The role that the appellant played that was put to, and apparently generally accepted by, the sentencing judge, was that of a person who had obtained the lease of the properties and who then acted in a caretaker-type role, emptying the letter boxes and otherwise assisting by unloading vans and the like. However, there is more to it than that, in that the agreed statement of facts speaks of the accused causing or being a party to significant damage to the premises in setting up the hydroponic systems and it does not seem that the sentencing judge overlooked this aspect. It was understood that overall, the damage to the various premises amounted to over $100,000.00.
A factor that the appellant claimed in his favour, by way of mitigation, was that, having got himself into debt due to gambling in respect of monies that he had borrowed for the purposes of sending to his family, he was manipulated into a position of committing these offences because of threats of what an Albanian organised crime group might do to his family in Albania unless he cooperated by committing these offences. The offences charged
The sentencing of the appellant is complicated by reason of the fact that there were charges arising out of significant damage to four of the properties in setting up the hydroponic system and the fact that there were also charges referable to three instances of possessing a traffickable quantity of cannabis for the purposes of sale or supply as a consequence of the cultivation at three of the properties. Whilst there were four charges of cultivating cannabis for the purpose of sale, in respect of the fifth property, the charge was one of participating in the cultivation of cannabis for the purposes of sale or supply. That left the sentencing judge with five separate episodes of criminality relating to the appellant’s activity in renting each of the places for the purposes of cultivating cannabis, but with other consequences such as the damage and possession charges referable to some, but not all, of the properties. Two houses were rented in late 2002 and the appellant acknowledged possession of a traffickable quantity of cannabis for sale or supply as a consequence of the cultivation on two dates in December 2003. Two other houses were rented in 2003 and the appellant acknowledged possession of a traffickable quantity for sale or supply as a consequence on two dates in June 2004. A further house was rented in May 2004 and is the subject of the charge of participating in the cultivation of cannabis for the purpose of sale or supply but has no other charges associated with it.
The sentences that the sentencing judge imposed were: · in respect of the four counts of damaging property with a view to gain (s 116(2) of the Crimes Act 1900 (ACT)), a sentence of 12 months imprisonment to date from 22 March 2006; · in respect of the four counts of cultivating a prohibited plant for the purpose of sale or supply (s 162(3)(b)(i) of the Drugs of Dependence Act 1989 (ACT)) and the count of participating in the cultivation of a prohibited plant (s 162(3) of the Drugs of Dependence Act 1989 (ACT)), a sentence of 12 months imprisonment to be served concurrently with each other and concurrent with the penalty for the offences of damaging property (s 116(2) of the Crimes Act 1900 (ACT)); · in respect of possessing a traffickable quantity of cannabis for the purposes of sale or supply (s 165(1)(c) Drugs of Dependence Act 1989 (ACT)), a sentence of five years imprisonment cumulative upon the sentences that he had imposed for the property damage offences and which, as a consequence, were set to commence from 22 March 2007. In respect of those offences of possessing a traffickable quantity of cannabis for the purposes of sale or supply, he imposed a non-parole period of three years which was also to commence from 22 March 2007 and that effectively meant that, in terms of his sentence, the appellant would not be released to parole before 21 March 2010.
There could be no question that for each of the offences charged, a sentence of imprisonment was the only appropriate penalty that should be imposed and Mr Tehan SC, who appeared for the appellant, did not seek to contend otherwise.
The maximum penalty on the charges concerning cultivation and as well as the charge that concerns possession for the supply and sale of cannabis is a substantial fine and imprisonment for 10 years. The maximum penalty on the charge of damaging property is a substantial fine and imprisonment for 15 years. The relevant principles
As a general principle, where more than one instance of criminality is involved, sentences are generally imposed in relation to each of the offences. Although s 434B of the Crimes Act 1900 (which deals with joinder of a series of offences) gives some scope for a single penalty to be imposed in respect of all the offences so joined, that circumstance may be regarded as exceptional and does not arise in a number of other jurisdictions (see Putland v R (2004) 218 CLR 174).
At the time of sentencing in this case, s 354 of the Crimes Act 1990 provided for directions that a court may give as to whether sentences are to be served cumulative upon another sentence. Section 354 (5) of that Act allowed for partial concurrency and cumulation of sentences. Now, s 71 of the Crimes (Sentencing) Act 2005 is to a similar effect but permits a direction to be given for sentences to be served concurrently or consecutively.
There is also a requirement that consideration be given by a sentencing court to the question of the effect of the total sentence and its appropriateness in all the circumstances. In respect of questions of concurrency and cumulation of sentences, in Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ said (at 623 [40]): To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
At [45] it was also said that: To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59).
In Mill v The Queen (1988) 166 CLR 59, Wilson, Deane, Dawson, Toohey and Gaudron JJ referred to the principle (at 62-63): The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56-57, as follows (omitting references): The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’. See also Ruby, Sentencing, 3rd ed (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
In Johnson v The Queen (2004) 205 ALR 346, Gummow, Callinan and Heydon JJ referred to the court’s observation in Pearce as to Mill by saying (at 356 [26]): The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected. …
When regard is had to these principles, there appears to be a fundamental difficulty with the sentences that were imposed in this case. The difficulty principally arises from the sentences of five years imprisonment imposed in respect of the three charges of possession of a traffickable quantity of cannabis for sale or supply. Each of those sentences equated to one half of the maximum sentence available on each of those charges. On any view, this is a heavy penalty to be imposed in respect of the particular charge. Although the quantity of cannabis is large, it is not the prosecution case that the possession was otherwise than a concomitant of the role that the appellant played in the cultivation offences. The sentencing judge said that he regarded these particular counts as being “the more substantial counts on the indictment”. Even so, the possession counts must be considered as charges that overlap with the cultivation and damage property charges. A sentence of five years on each of these, on the face of it, and in light of the penalties considered appropriate on the other charges, can be said to be disproportionate to the criminality involved. That is especially so when the setting for the offending in each of the possession cases was the cultivation and damage property charges and the sentencing judge proposed significant sentences of imprisonment on those charges. The disproportionate nature of the overall sentence is further exaggerated when the sentences for the possession charges are made, not merely partially, but wholly cumulative upon the sentences imposed for the property damage offences. It is also to be noted that the property damage offences themselves contain an element related to the expected gain that is part of the element common to all of the charges, that is the sale or supply of the cannabis. There is thus an element of overlap in the criminality involved.
To an extent, the sentencing judge recognised this in imposing concurrent and partly cumulative sentences. He also treated the offences in groups of a like kind rather than combining the original instances of criminality as a separate exercise to consider what that result might produce. Others might take a different approach but it cannot be said that the general approach which commended itself to the sentencing judge was not open to him. However, the flaw in the exercise undertaken by the sentencing judge seems to be in imposing a significantly high sentence on each of the possession counts and then fully accumulating that sentence upon the damage property counts. There is no doubt that the court could mark its disapproval of the possession count related to the significant quantity of cannabis derived from the cultivation of cannabis by substantially or even wholly cumulating one of those counts but it is difficult to see why the penalty settled upon in respect of each of those counts should be set as high as the sentencing judge did and then fully accumulated on the damage property counts. In whatever way the matter is approached, it must be said that in all the circumstances, the individual sentences in respect of the possession counts should not have exceeded two years imprisonment. To do so provides a punishment which reflects the objective seriousness of the offences of possession for sale, cultivation for sale and damage property for gain, having regard to the statutory maxima provided in respect of those offences. Comparative sentences
Mr Refshauge SC, the Director of Public Prosecutions, in his written submissions, referred to a number of sentences in various States relating to cultivation of cannabis by hydroponic means. They are attached hereto as Appendix A. Of those sentences, the highest penalty that was imposed was that in the Supreme Court of Western Australia for what appears to be a similar number of plants (although the ultimate quantity is speculative). That resulted in a sentence of six years imprisonment. In that case, the offender appears to have been treated as the sole principal. In other States, other sentences referred to, all of which seem to have the characteristic that the perpetrators were a principal, are generally about or under the four year mark. On the other hand, it does need to be borne in mind that the number of properties involved and the quantity of cannabis derived from the cultivation, in this case, are countervailing factors.
The sentencing judge made a specific point of the basis upon which he was sentencing the appellant. He said: As I say, I am sentencing you on the basis … that the evidence is entirely consistent with this, that you are the lower end of the scale here. You are effectively a labourer for this drugs syndicate and you came down here to rent properties, and set up the operation, and tend the plants. There is no indication that you were a major financial beneficiary of these operations and there is nothing in your assets or lifestyle that would suggest that the profits were going into your pocket.
If the appellant’s participation is limited in the way that the sentencing judge limited it, then an overall view of the comparative sentences provided by the Director, orientated as they are to principals in the offence of cultivation, indicates that the overall sentence imposed is significantly outside the general sentencing pattern for offences of this kind. At least in this respect, the very heavy sentences imposed for the possession of a traffickable amount of cannabis appears to have led to an overall sentence that may be described as excessive in all the circumstances. That conclusion leads to this court reconsidering the overall sentence in the context of the criminality involved. The appellant’s additional submissions
Apart from submitting that the sentence on possession of a traffickable quantity of cannabis for sale or supply was excessive by reason of the matters referred to, Mr Tehan SC submitted that there were matters considered by the sentencing judge that were indicative of error and ultimately resulted in an overall sentence that was too severe. The motive for the commission of the offences
It was put that whilst the sentencing judge accepted the appellant’s appreciation of the threat posed to his family in Albania, he did not give sufficient effect to this circumstance in the appellant’s motivation for the commission of the offences. However, the pre-sentence report was particularly explicit on this aspect. The author of that report observed: The offences were apparently due to a personal response to extreme circumstances. By allowing himself to be manipulated, Mr Rama is naively attempting to protect his family.
There is no reason to think that the sentencing judge did not have this consideration in mind when he was generally speaking of the fear of the possible consequences to his family in Albania from the activities of such organised crime groups. There is no reason to think that the sentencing judge did not take into account, as a factor favourable to the appellant, the circumstances under which the offending occurred. The naming of principals
Similar considerations apply to the sentencing judge’s remarks concerning the fact that this was not a case where there had been cooperation in naming the principals. By the sentencing judge referring to such cooperation as being a substantial mitigating factor, Mr Tehan submitted that this showed that the sentencing judge placed little or no weight upon the aspect of the appellant’s case as to why he committed the offence and his fear of reprisals. In our view, the reference that the sentencing judge made to the fact that the appellant had not named his principals does not indicate any misconception on the sentencing judge’s part which in any way detracts from the role that he had assigned to the appellant in the commission of the offence. The sentencing judge’s remarks on prevalence
In the course of his remarks, the sentencing judge referred to the offence as being one that is prevalent in the Canberra community. Mr Tehan submitted that the appellant should have had the opportunity to argue the issue and that it should not result in a more severe penalty. The reference made by the sentencing judge reflects remarks the sentencing judge made in another matter (which is one of the matters set out in Appendix A attached), that of R v Rrethi, (unreported, SCC 171 of 2004) where, in that case, his Honour said: You have come from Sydney to Canberra for the specific purpose of operating under two false names two commercial hydroponic cannabis operations in the Territory. This is unfortunately not an uncommon type of offence to come before these courts. It does seem to me that it is significantly in the public interest that this court send a strong message that persons who resort to this Australian Capital Territory for the purpose of cannabis will be subject to imprisonment.
His Honour’s remarks in the present case do not appear to reflect more than that which he had expressed in that earlier case. His comment on prevalence can be seen as expressing a view of the seriousness of the offending and the need for deterrence to be given a significant role in sentencing rather than an example of imposing an increased sentence. He is not to be taken as denying the appellant an opportunity of addressing the topic. Indeed, it was the appellant’s case on sentence that he did not come to Canberra because it was “an easy mark”. In R v Downie and Dandy [1998] 2 VR 517 at 522, Callaway JA (with whom Phillips CJ and Batt JA) agreed, observed: There may well be an analogy with the way courts have taken into account such matters as “a rising tide of public indignation” concerning sexual offences against children, that drug traffickers look for couriers of previously good character and people of a kind who are likely to excite the sympathy of the court if they are detected and arrested or conditions in prison as they bear on general deterrence. No one suggests that such matters should be the subject of evidence or that proof beyond reasonable doubt is an appropriate phrase to use in relation to them. If they are the subject of judicial notice, it is only in a very broad sense. If that analogy is correct, all that is required is that a court should be sure that an offence is prevalent before weighting the instinctive synthesis in favour of general deterrence and giving less weight to mitigatory factors, …. Even if the judge is sure that an offence is prevalent or locally prevalent, an increased sentence is not inevitable. There may be countervailing factors of greater significance. [references omitted]
Nor was this a case where it was suggested that this was an appropriate case to increase sentences to take into account increasing prevalence (cf DPP v Duong [2006] VSCA 78 (30 March 2006) at [17] – [19] per Warren CJ).
Despite Mr Tehan’s contentions to the contrary, the sentencing judge did not err in his approach to this topic. The prior conviction
The appellant is now 27 years of age and he came to Australia from Albania in 1999. He has been successfully involved in the sport of wrestling both in Albania and in this country.
He became an Australian citizen in 2002. He has apparently impressed those with whom he has been involved. However, one matter of concern is his conviction for offences concerning an incident of trafficking heroin in the middle of 1999. On his appeal in respect of that matter, he was sentenced to a fine of $250.00 and what is described as an “intensive correction order”. The sentencing judge made it clear that a person with a previous drug offence who involved themselves again in this type of activity must expect a “larger sentence”. Although not happily expressed, that seems, in the context of the sentencing remarks, to be an unexceptionable comment. It must be expected that a degree of leniency will be denied to a person in such a position. It certainly does not found a submission that, as a consequence, a disproportionately high total effective sentence was imposed. It cannot be said that the sentencing judge did not appreciate the circumstances concerning the particular offences before him or that he did not pay sufficient regard to the appellant’s subjective circumstances for the purposes of sentence.
In respect of these additional submissions, the sentencing judge has not been shown to have erred in his consideration of those matters. Nevertheless, the points made in favour of the appellant are still matters which this court must bear in mind in undertaking a re-sentencing of the appellant. The disposition of the matter
The matters earlier referred to concerning proportionality and totality are matters which indicate that the sentencing discretion in this case miscarried. The appeal is upheld. The appellant is to be re-sentenced by generally following the sentencing structure that the sentencing judge followed, but with the following variations: · On each of the four charges of damage property, the appellant is sentenced to 12 months imprisonment with the sentences on the first two of those charges (counts 2 and 4 on the indictment) to be served concurrently and to date from 22 March 2006, the date the appellant was taken into custody; · The sentences on the other two of those charges (counts 7 and 10 on the indictment) is to date from 22 September 2006 and be served partly concurrently with and cumulatively upon the sentences for the charges in counts 2 and 4 of the indictment; · On each of the four charges of cultivate a prohibited plant for sale or supply and the one charge of participating in the cultivation of a prohibited plant for sale or supply, the appellant is sentenced to two years imprisonment and as to the first two such charges (counts 1 and 5 on the indictment) that sentence is to date from 22 March 2006, the date the appellant was taken into custody; · The sentences on the three other such charges (counts 8, 11 and 12 on the indictment) is to date from 22 September 2006 and be served partly concurrently and cumulative upon the earlier sentences; · On each of the three charges of possessing a traffickable quantity of cannabis, the appellant is sentenced to two years imprisonment. The sentence on the first such charge (count 3 on the indictment) is to date from 22 March 2006, the date the appellant was taken into custody; · The sentence on the second such charge (count 6 on the indictment) is to commence from 22 September 2006 and the sentence on the third such charge (count 9 on the indictment) be fully cumulative upon that sentence and is to date from 22 September 2008.
The effect is to impose an overall sentence of four years and six months imprisonment to commence on 22 March 2006 and to end on 21 September 2010.
In respect of that sentence, a non-parole period of two years and three months is to be fixed to commence on 22 March 2006 and to end on 21 June 2008.
The appeal is allowed and sentences imposed to give effect to this judgment. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.