New South Wales Court of Criminal Appeal CITATION: Michael Joseph Gattellari v R; Peter Jade McRae v R. [2007] NSWCCA 5 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 22 January 2007 JUDGMENT DATE: 22 January 2007 JUDGMENT OF: Beazley JA at 32; Buddin J at 1; Hislop J at 31 DECISION: In each case leave to appeal is granted but the appeal is dismissed. CATCHWORDS: Cultivation of large commercial quantity of cannabis by co-offenders - assessment of value of pleas of guilty - whether sentences manifestly excessive - question of parity Regina v Atonio (2005) 154 A Crim R 183 CASES CITED: R v Bloomfield (1998) 44 NSWLR 734 R v Morgan (1993) 70 A Crim R 368 R v Thomson & Houlton (2000) 49 NSWLR 383 Michael Joseph Gattellari (Applicant) PARTIES: Peter Jade McRae (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2006/2342; 2006/1853 C Smith (Applicant/Gattellari) COUNSEL: G Jauncey (Applicant/McRae) JA Girdham (Crown/Respondent) S O'Connor (Applicant/Gattellari) SOLICITORS: Michael Bellingham (Applicant/McRae) S Kavanagh (Solicitor for Public Prosecutions/Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/0276 LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ LOWER COURT DATE OF DECISION: 24 January 2006 IN THE COURT OF CRIMINAL APPEAL 2006/2342 2006/1853 BEAZLEY JA BUDDIN J HISLOP J MONDAY 22 JANUARY 2007 MICHAEL JOSEPH GATTELLARI v REGINA PETER JADE McRAE v REGINA Judgment Introduction 1 BUDDIN J: The applicants, Michael Joseph Gattellari and Peter Jade McRae seek an extension of time within which to apply for leave to appeal against sentences imposed upon them in the District Court. Each of them originally pleaded guilty in the Local Court to a charge of cultivating not less than the large commercial quantity of cannabis plants. In all, 2742 plants were involved. The legislature has provided that 1000 plants constitutes a large commercial quantity. The maximum penalty for the offence is imprisonment for 20 years and/or a fine of 5,000 penalty units. 2 The applicants adhered to their pleas in the District Court where each of them received an identical sentence comprising a non-parole period of three years and two months with the balance of the term of the sentence of imprisonment being two years and seven months. The evidence 3 The relevant factual background can be briefly stated. On 14 February 2005 police executed a search warrant upon an isolated property located at Binnaway in the western part of New South Wales. The applicants, together with two other men named Toan Huynh and Yinh Ngoc Phan, were arrested at the premises. Joseph Gattellari, the father of the applicant Michael Gattellari, was arrested at another location in a simultaneous raid. The property had been the subject of a covert police surveillance operation since 29 November 2004. During the course of the investigation, police entered the property on fourteen occasions. Whilst there, they obtained video and photographic evidence of the cultivation as it progressed. 4 Investigators discovered an extensive indoor cannabis cloning operation inside a large steel shed, which measured 80 metres by 20 metres, as well as a large outdoor crop site, which was the size of a soccer field, where the plants ranging in height from 20 cm to 1.5 metres (that is from seedlings to fully matured plants), had been planted. The crop site, which was set in thick bushland, was partitioned by chicken wire. It was serviced by two large water tanks and an irrigation system, including poly pipes, which ran throughout the crop site. 5 During the course of the investigation, police observed the applicants engaged in various aspects of the cultivation of the plants on no fewer than eight occasions. They were seen to be involved in managing the process of nurturing and watering mature mother cannabis plants for cloning as well as transporting the plants from the shed area to the crop site some 700 metres away. The applicants also tended and nurtured the crop site. A number of intercepted telephone calls between the applicants and Joseph Gattellari demonstrated that they reported to him. The crop was estimated to have a street value of approximately $5.5 million. 6 Although the applicants declined the opportunity to be interviewed by police, each of them gave evidence during the course of the sentence proceedings. That evidence was to the effect that a man named Anthony Taylor had been responsible for setting up the enterprise and that he had involved each of them in it. It appears that Taylor had broken his leg before the police surveillance commenced. The applicants gave evidence that as a result, he had not thereafter returned to the property. 7 It is evident from the following findings of fact, made by the sentencing judge in relation to the applicant Gattellari, that he played a prominent role in the offence: The evidence is not complete to enable the Court to be satisfied beyond reasonable doubt as to the offender's role in the original planting of these crops or whether he made a financial contribution and the Court does not do so. However, it is clear that from the time of an injury suffered to [sic] one Taylor that this offender and his co-offender McRae continued the organisation of these plantations, managed the cultivation and there is evidence of the conversations taking place on a day by day basis between them and between this offender and his father and in the use of words that are involved in the normal business that the Gattellaris had run as a means of hiding the true intent of that which was being done by this offender. There is no evidence as to what ultimately would have been done with the crop once it reached maturity although the Court can conclude that this offender together with his co-offenders would have seen the project through to harvesting whether Taylor returned or not and would have sought to obtain the best financial return that they could . I do not necessarily accept the evidence offered by this offender of his father's limited involvement as such evidence does not sit comfortably with the tapes or interpretations that can be placed on the tapes or with the evidence of the co-offender McRae. The crime of cannabis cultivation is prevalent. Such criminal activity is carried out for the purposes of reaping large financial rewards by the introduction of the proceeds of such cropping into the general populace and the introduction of such crops into the system of drug supply. This is done and no doubt was done on this occasion by the offender for large financial reward . This crime was attended to with a great deal of effort, persistence and organisation . …However, the offender's involvement required living in primitive conditions away from his loved ones and in circumstances where the crop had to be tended in the manner to which I have referred It is also clear that in Taylor's absence the offender and the offender McRae took over the role of being the persons in charge of the cultivation. It maybe that assistance was sought from his father from time to time however the scheme that was in existence was furthered by his efforts. I regard this offence with its organisation, its persistence and its continuance in the remote area as being above the middle of the range of any scale constructed for such an offence . (emphasis added) 8 The sentencing judge concluded that this applicant's principal motivation was "the opportunity for financial gain rather than out of some perceived need or coercion". His Honour concluded that his involvement in the enterprise continued for about three months after Taylor left the property. 9 The sentencing judge made identical findings in relation to the applicant McRae who admitted, whilst giving evidence, that he had been lured into the enterprise by the prospect of making a large amount of money. 10 It is to be observed that there was no challenge in this Court to any of the findings made by the sentencing judge in respect of either applicant. 11 The applicant Gattellari, who was aged 20 at the time of the offence, is the eldest of three children. Although he was unemployed at the time of the offence, he had previously been employed and was highly regarded by his employers. He has a strong network of community support and the promise of employment and accommodation upon his release from gaol. He had no criminal record and was found by the sentencing judge to be a person of good character. The applicant received a discount of 25% for his plea of guilty. The sentencing judge also observed that he had "proffered his own regret and remorse for this offence". 12 There was evidence, which his Honour accepted, that the applicant had worked assiduously in his position in the Metal Products Division of Prison Industries. He had also completed a number of courses whilst in custody. The sentencing judge assessed the applicant's future prospects as being "particularly positive". His Honour found "special circumstances" on account of his age, his "real prospect of rehabilitation" and the fact that it was his first time in prison. 13 The applicant McRae was aged 26 at the time of the offence. Although he had some minor convictions, the sentencing judge treated him as being a person of prior good character and thus entitled to leniency. There was a body of evidence which attested to his personal qualities. The sentencing judge described him as "a hardworking and reliable person normally dedicated to his family" which consisted of his de facto wife and two young children. His Honour found that he too had spent his time in custody productively. He likewise received a discount of 25% for his plea of guilty and was said to have expressed remorse for his actions. A finding of "special circumstances" was made in his favour for the same reasons that were advanced in respect of Gattellari. The applications 14 The first ground of appeal is that the sentencing judge "erred in the treatment of the plea of guilty". In determining the discount to be afforded to the applicants for the plea of guilty, the sentencing judge made the following observations: Conviction on trial would, in the view of this Court, result in a sentence of seven years and eight months imprisonment. I have taken into consideration the offender's plea of guilty as a show of contrition and as having public utility and being given as soon as possible after the Crown brief was served and with the public utility and the show of contrition I reduce that sentence by 25 per cent to five years nine months imprisonment. 15 The applicants complain that a discount exceeding 25% should have been extended to them to reflect both the utilitarian value of the plea as well as the contrition which it was contended that they had shown. To put the matter another way, the applicants were entitled, it was submitted, to a discount of 25% for the utilitarian aspect of the plea, a figure which is at the top of the range identified in R v Thomson & Houlton (2000) 49 NSWLR 383, and then a further discount for the separate question of the contrition which they had expressed. 16 Whilst it is not entirely clear what the sentencing judge intended in the passage to which I have just referred, I am prepared to proceed upon the basis that the discount of 25% was intended to reflect the various aspects of the plea of guilty, including the question of contrition. It was not contended that the sentencing judge erred in approaching the matter in this fashion. In Thomson (supra) this Court observed: Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. (at par 160) 17 Central to the applicants' submission however is the contention that a discount of 25% was required for the utilitarian value of the plea alone. In Regina v Atonio (2005) 154 A Crim R 183 Hislop J, with whom James and Hall JJ agreed, observed: The guidelines in R v Thomson create no presumption of, or entitlement to, a particular discount – R v Scott [2003] NSWCCA 286 at [28]. The submission that a plea of guilty coming at the earliest opportunity should automatically result in a 25% discount, seeks to convert the upper limit of a guideline range into a rule. A discount of 10 - 25% is within the guideline range. The determination where the discount should fall in a particular case is a matter for the discretion of the sentencing judge. The fact that the discount given is less than 25% does not bespeak error. [at par 43] 18 For similar reasons I would reject the submission advanced by the applicants. 19 In any event, a discount of 25% which incorporated the various aspects of the plea was within the sentencing judge's discretion, particularly as the pleas of guilty were entered many months after arrest, albeit whilst the matter was still in the Local Court. Moreover, the evidence of contrition was not such as to entitle the applicants to any significant discount. Neither of them had, for example, made admissions to the police. Furthermore, the evidence given by the applicants during the course of the sentencing hearing (which was not embraced in its entirety by the sentencing judge), did not reveal a level of remorse which called for any particular leniency. Indeed by the time the pleas were entered, it would appear that the Crown case against them was a very strong one, a matter which was relevant to the question of contrition. I would reject this Ground of Appeal. 20 The applicants next complain that the sentences imposed upon them are manifestly excessive particularly when proper regard is had to the findings made by the sentencing judge as to their roles in the offence and the subjective matters upon which they were entitled to rely. 21 In support of this submission, the applicants rely upon statistics maintained by the Judicial Commission in respect of the offence currently under consideration. It is contended that those statistics indicate that both the overall sentence and the non-parole period which was imposed is at the top of the range for offences of this kind. 22 The limited utility of that material is well recognised: R v Bloomfield (1998) 44 NSWLR 734. That limitation is underscored in the present context because the raw data does not reveal critical information such as the role of the offender or the quantity of drugs involved. Nor does it indicate whether important subjective considerations, such as assistance to authorities, were taken into account. Moreover in my view, the cohort of cases referred to in the statistics is not sufficiently large to enable a proper assessment to be made as to the appropriate range for offences of the present type. 23 The applicants also seek to draw comfort from what were asserted to be comparable cases. The limits of that type of exercise are also well-recognised and require no elaboration in the present context: R v Morgan (1993) 70 A Crim R 368. Nor is it possible to discern a clear range of sentence from the cases cited particularly as in a number of them the offenders were re-sentenced following a successful Crown appeal. The utility of a number of other decisions to which the Court's attention was drawn is reduced because an important feature of the sentencing process in those cases was that assistance had been provided to the authorities. 24 In any event, it has not been demonstrated that the sentences imposed fell outside the legitimate range of penalty available to his Honour in the proper exercise of his sentencing discretion. Notwithstanding the favourable subjective features upon which the applicants could rely, the offence which they committed was one of considerable objective gravity. The applicants each played a significant role in endeavouring to bring this well-planned enterprise to fruition. Moreover, they were motivated to do so purely for commercial gain. The quantity involved was more than double the large commercial quantity. Finally and importantly, the legislature has indicated its view of the seriousness of the matter in setting the maximum penalty at 20 years imprisonment. I would reject this ground of appeal. 25 Finally, the applicants complain that they entertain a justifiable sense of grievance by reason of the sentences subsequently imposed upon their co-offenders, Phan and Huynh. Phan was sentenced to a non-parole period of 1 year and 8 months with a balance of term of 10 months. He had a prior conviction for which he received a fully suspended sentence. Phan was sentenced upon the basis that his role was subsidiary to that of the applicants to whom he reported. He also made partial admissions to police when arrested. More importantly he received a discount of 50% for his assistance to the authorities. That included his having provided a detailed statement in which he implicated all of the other people who were involved in the cultivation. As a consequence he was serving his sentence in protective custody. 26 Huynh was sentenced to a non-parole period of 2 years with a balance of term of 12 months. His role was also found to be a limited one. He was described as being a "paid worker [who] is at the bottom of the rung". He received a discount of 25 % for his early plea of guilty and a further discount "in the order of 10%" for contrition. He presented a powerful subjective case which included the fact that he was serving his sentence in strict protection. 27 Given the significant points of distinction between the circumstances of Phan and Huynh on the one hand and those of the applicants on the other it was appropriate, as counsel realistically conceded, that there be some differentiation between the sentences imposed upon each of them. It was the extent of the differentiation which occasioned complaint. 28 Nevertheless, given all the matters to which I have referred, I do not regard the disparity between the various sentences as being of such a character as to give rise to a justifiable sense of grievance on the part of the applicants. It follows that this Ground of Appeal must also fail. 29 As the Court has already extended the time within which each of the applications for leave may be made, the order that I propose in each case is that leave to appeal be granted but that the appeal be dismissed. 30 BEAZLEY JA: I agree. 31 HISLOP J: I also agree. 32 BEAZLEY JA: The orders of the Court are those proposed by Buddin J. ********** 23/01/2007 - Incorrect paragraph number on coversheet - Paragraph(s) coversheet 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.