New South Wales Court of Criminal Appeal CITATION : R v SILK [2003] NSWCCA 370 HEARING DATE(S) : 8 December 2003 JUDGMENT DATE : 8 December 2003 JUDGMENT OF : Sully J at 26; Hulme J at 1; Miles AJ at 27 DECISION : See paragraph 25 PARTIES : Regina Mike Dean Silk FILE NUMBER(S) : CCA 60299/03 COUNSEL : Crown: GIO Rowling Appellant: H Dhanji SOLICITORS : Crown: CK Smith Appellant: B Sandland LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0233 FILE NUMBER(S) : LOWER COURT Cooper DCJ JUDICIAL OFFICER : - 8 - IN THE COURT OF CRIMINAL APPEAL 60299/03 SULLY J HULME J MILES AJ Monday, 8 December 2003 REGINA v MIKE DEAN SILK Judgment 1 HULME J: On 3 April 2002, the police executed a search warrant at a 20 hectare property on which the applicant and his wife and children resided. In consequence of what the police found on that occasion the applicant was charged with a number of offences. He appeared for sentence before Cooper DCJ, when, on 27 March 2003 his Honour dealt with the charges. There are a variety of them. Some circumstances apply to the way his Honour dealt with some and not others and it will be necessary to differentiate between them. It will also be appropriate to deal with some quite differently from the way others are dealt with. 2 Once of the charges was of supplying cannabis leaf and in respect of that charge his Honour imposed a sentence of imprisonment of one year with a non-parole period of four months. An offence of cultivating cannabis, there being some 64 plants involved, was treated similarly and the sentence made concurrent with that on the supply charge. Each of those offences attracted what his Honour referred to as a minimum term of 12 months commencing on 3 April 2002 and what his Honour referred to as "a balance of term of four months commencing on 3 April 2003." 3 A second pair of charges involved the possession of firearms. One a Brno .22 calibre rifle and the second a Norica air rifle in circumstances where the applicant was not authorised to have such possession by license or permit. In respect of those charges his Honour sentenced the applicant to imprisonment for a minimum term of one year commencing on 3 April 2003 and a "balance of term of four months commencing on 3 April 2004." 4 The third group of charges involved two of possessing pistols without a license or permit to do so, one being an American Arms .22 calibre pistol and the other a Micros Unique .25 calibre pistol and a third charge of possessing "a prohibited weapon, to wit two Taser stun guns" without being authorised to do so by permit. In respect of those three offences, his Honour set a non-parole period of two years commencing on 3 April 2004 and a balance of term of one year commencing on 3 April 2006. 5 The effective sentence thus imposed was one of four years imprisonment with a one year non-parole period. 6 His Honour also dealt with what was referred to as a back up charge under s 36 of the Crimes (Sentencing Procedure) Act. His Honour observed that the offence was punishable only by a fine. He considered it inappropriate to impose a fine in addition to the custodial sentence he was imposing and found that the situation was one of extenuating circumstances involved in the sentencing process and ordered that that charge be dismissed. There were four other offences which his Honour treated as back up charges under s 36 of the Criminal Procedure Act, of not taking all reasonable precautions to ensure that two rifles and the two pistols were safely kept and in respect of those offences the applicant was sentenced to a fixed term of six months commencing on 3 April 2003 and expiring on 2 October 2003. 7 It seems clear that, as s 36 was then framed, his Honour had no power to deal with what he referred to as the "back up" charges. One option is for this Court to, accordingly, allow the application for leave to appeal and the appeal in respect of those offences and remit them to a magistrate to deal with. Another possibility canvassed was for them to be placed on a Form 1 and taken into account by this Court in a resentencing of the applicant. However, the applicant is not here and that alone makes it impracticable to take that course. 8 There seems to me to be no utility whatsoever in remitting the matters to a magistrate to have either the same or different penalties imposed. It is, to all intents and purposes, certain any penalty imposed would be of a custodial nature and be made concurrent with sentences which the applicant is otherwise serving. The sentences on these charges which Judge Cooper imposed were wholly concurrent with the sentence on other charges and have in any event expired. In these circumstances I propose that this Court refuse leave to appeal in respect of those offences. 9 In the balance of what I have to say I will limit what I have to say to the offences of supply and cultivate cannabis and the five offences, two of them involving rifles, two pistols and one involving the stun guns. 10 On the applicant's property the police found in the basement a well set up system for the purpose of the growing of cannabis including lights, chemicals and the provision of carbon dioxide gas. The applicant said that it had cost him something in the order of five to seven thousand dollars to set up the system. There was indeed evidence that he had had a standing order for gas extending back over a number of years. In one area of the basement, police found some seven and a half kilos of cannabis stalks and leaves drying, an amount which the trial judge accepted would, when dried, reduce to something of the order of 2 kilograms. That was the product of some ten plants which the applicant had harvested. There were, in addition, some four mother plants which the applicant used to take cuttings from, some ten plants each about a metre high, some ten plants each about 40 centimeters high and another 39 plants which were very small and which still required to be sexed. 11 The applicant indicated that essentially the system he had in place involved a change over and harvesting of 10 plants at intervals of something of the order of six to eight weeks. He said that the operation was principally for his own personal consumption although he indicated he gave some away to friends and sold some to friends and work colleagues. There is no reason to doubt his statements in that regard except insofar as they suggest that the cannabis supplied to others formed but a side line. 12 In the Probation and Parole Presentence Report, prepared, no doubt, on the basis of what the applicant told the officer who prepared the report, it is recorded that the applicant's estimate was that he was smoking about 14 grams of cannabis per day. That works out at something of the order of 100 grams a week or 800 grams over an 8 week period - the period when, according to what the applicant revealed to the authorities, he was producing something of the order of 2 kilograms. 13 So far as the firearms are concerned he said he had the rifles for the purpose of shooting vermin of one form or another on the property, that he had not sought a licence because with his record he did not believe he would be granted one: When asked about the pistols during the course of an electronically recorded interview, he declined to explain why he had them: He took the same stance in relation to the stun guns. However, the Applicant gave evidence before the sentencing judge and said his main purpose of owning the pistols was out of interest but he did consider using them for protection considering he lived so far out of town. He said his only use of the pistols had been to shoot tin cans. He said protection was the reason for the stun guns and he bought two for no particular reason. 14 Anyone with a suspicious turn of mind might well think his cannabis production was more likely to be the primary reason for this arsenal of weapons. 15 The applicant has a not insignificant criminal history. He was born in 1962. In 1983 he was convicted of having possession of a prohibited plant. In 1984 of attempting to cultivate a prohibited plant and of being a prohibited person in possession of fire arms. In 1996 he was convicted of cultivating a prohibited plant, possession of a prohibited drug and possession of a prohibited weapon. His history also includes a number of other offences including some involving alcohol, one being driving under the influence, two of having in excess of the prescribed concentration of alcohol, once in the low range and once in the high range. In totality his record suggests strongly that the applicant does not accept that the normal rules of society apply to him. 16 It was against that background that the sentencing proceedings before his Honour fell to be determined. However, as I have indicated the applicant gave evidence. His Honour remarked that while there was little in the prisoner's record that could be used in his favour, he had been working constantly as a bricklayer and over the past six years had been virtually in constant employment. His Honour recited some difficulties the applicant had had as a child but, although subjected to violence at that stage, he had not resorted to similar abuse, having a good relationship with his wife and young children. A reference from an employer was favourable and indicated that the applicant had been employed as a site manager and quantity surveyor for the past six years and his employer regarded him as honest, hard-working and reliable and looks forward to having him back on the job. Other evidence before the Court shows that the applicant, on his property, has taken to planting a substantial number of hardwood trees as an income earning venture. Part of his Honour's remarks, can conveniently be quoted in full: "A significant thing that came out of the prisoner's evidence was first of all his frankness about the offences and also the effect that having been in custody for almost 12 months has had upon him. He is now older than he was when he committed the earlier offences and he apparently now more than anything accepts the effects the offences and the addiction to cannabis has had not only on him but particularly on his wife and children" and a little later: "I do bear in mind the fact that he has demonstrated over the past 12 months in custody a desire to rehabilitate himself and his sincere wish to stop taking cannabis and not offend again. It is because of these matters that I consider there are special circumstances which entitle him to a longer period of liberty on parole than that which is normally provided by statute." 17 His Honour thought that there were: "Prospects of rehabilitation, he has shown genuine remorse for the offences and he has entered pleas of guilty to each of them." 18 Putting aside the back up charges to which I have referred, the first ground of appeal was that the sentencing judge erred in his application of s 44 (1) of the Crimes (Sentencing Procedure) Act 1999. That ground is made out because his Honour referred to the current version of that section which only applies to offences committed after 1 February 2003 and certainly had no application to offences committed when the applicant committed his. However, while I do not suggest the difference between the two versions of the section are immaterial, I am confident that the difference would not have affected the course which his Honour pursued. I also am of the view that applying the correct version of section 44 could not reasonably have resulted in what I may call head sentences shorter than those which his Honour imposed. 19 The second ground in this group was that the sentencing judge erred in failing to discount the applicant's sentence for the utilitarian value of his plea of guilty. It certainly is correct that his Honour did not specifically advert to any discount in that regard but it is clear that he was conscious of the plea and to my mind it is clear from the sentences imposed that he gave the applicant all the discount which he reasonably could. 20 The next ground is that the judge erred in failing to take into account the effect of cumulation in setting the non-parole periods. His Honour referred to the issue of totality and although he did not make any of the three groups of principal offences, to which I have referred, concurrent one with another except insofar as there was some overlapping of non-parole periods for one offence or group of offences with the parole periods of other offences his Honour dealt with earlier. I am not persuaded that his Honour did not properly reflect the principle of totality in the sentence finally imposed. 21 I have indicated enough to lead to the conclusion that, given his prior record, the applicant could well have been treated much more harshly, not only for the offence involving cannabis but, against a statutory maximum penalty of 14 years, in respect of the pistol offences. The overall sentence imposed was relatively modest, or at least not excessive or indicative of error in its overall length. 22 A ground of appeal which suggested that the sentencing judge erred in not making the sentence in relation to the pistols and the stun guns not concurrent, at least in part, with the sentences imposed for the rifle offences, fails on a similar basis. 23 It is obvious from what I have said that I do not regard the head sentences imposed and their combined effect, manifestly excessive. However, the ultimate result of an effective four year minimum term against an effective head sentence of five years not only exceeds the usual ratio of 75 percent, but also does not take account of his Honour's remarks to the effect that he considered that there were special circumstances which entitled the applicant to a longer period of liberty on parole than that which is normally prescribed by statute. Certainly, in imposing the sentence in respect of the pistol and stun gun offences his Honour's division of those sentences into non-parole periods of two years and a balance of term of one year is one which reflects a finding of special circumstances and is lower than the usual 75 percent which a non-parole period forms of the total term. But, in fixing the parole period of that sentence at only 12 months or one year his Honour does not seem to me to have taken account of his earlier statement. I do not think it possible to regard the change as a deliberate one on the part of his Honour. The probability is that the sentence ultimately imposed in these respects was caused by a mistake on his Honour's part. 24 In light of the findings which his Honour made findings which were extremely favourable to the applicant, it seems to me that this Court should alter the ratio of the effective non parole and parole periods of the applicant's sentence so as to reflect his Honour's finding of special circumstances and the intention which he indicated. That can be done by just altering the sentence imposed in respect of the pistol and stun gun offences and I would propose that this Court make an order which has the effect that in lieu of the four years which the applicant must serve in custody, sentences be imposed which reduces that period to 3 years – a time which I think, more accurately reflects his Honour's intention. It does reflect the favourable findings which his Honour made and in light of those findings is, in my view, an appropriate mark of the applicant's criminality. 25 What I would propose is this, that in respect of the two cannabis, two rifle, two pistol and one stun gun offences, the applicant be given leave to appeal. That in the case of the first four of these charges the appeal be dismissed. In the case of the last three of the charges, the appeal be allowed, the sentences imposed by Cooper DCJ quashed and in respect of each of those charges the applicant be sentenced to imprisonment for a term of three years commencing on 3 April 2004 and expiring on 2 April 2007, such period in each case to include a non-parole period of one year commencing on 3 April 2004 and expiring on 2 April 2005. 26 SULLY J: I agree. 27 MILES AJ: I also agree. ********** Last Modified: 12/22/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.