New South Wales Court of Criminal Appeal CITATION: DELFINO, Raymond Joseph v R [2008] NSWCCA 18 HEARING DATE(S): 29 January 2008 JUDGMENT DATE: 25 February 2008 JUDGMENT OF: McClellan CJ at CL at [1]; James J at [2]; Simpson J at [71] DECISION: Leave to appeal against sentence granted but the appeal against sentence dismissed. CATCHWORDS: CRIMINAL LAW — Sentencing — prior criminal history — parity in sentencing LEGISLATION CITED: Crimes (Sentencing Procedure) Act Drug Misuse and Trafficking Act Hantzis v Regina [2006] NSWCCA 387 Lowe v The Queen (1984) 154 CLR 606 CASES CITED : Olbrich v The Queen (1999) 199 CLR 270 Postiglione v The Queen (1996-1997) 189 CLR 295 R v Li & ors [2005] NSWCCA 154 PARTIES: DELFINO, Raymond Joseph v R FILE NUMBER(S): CCA 2007/3072 COUNSEL: T A Game SC (Applicant) L Lamprati SC (Crown) SOLICITORS: Galloways Solicitors (Applicant) S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0740 LOWER COURT JUDICIAL OFFICER: Finnane DCJ LOWER COURT DATE OF DECISION: 13 April 2007 IN THE COURT OF CRIMINAL APPEAL 2007/3072 McCLELLAN CJ at CL JAMES J SIMPSON J MONDAY, 25 FEBRUARY 2008 DELFINO, Raymond Joseph v R Judgment 1 McCLELLAN CJ at CL: I agree with James J. 2 JAMES J: Raymond Joseph Delfino applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Finnane on 13 April 2007 for an offence of knowingly taking part in the cultivation of a number of prohibited plants (cannabis) which were not less than the commercial quantity, that is not less than 250 plants. The applicant had pleaded guilty to the offence. 3 Knowingly taking part in the cultivation of not less than a commercial quantity of cannabis plants is an offence under s 23(2) of the Drug Misuse and Trafficking Act for which the maximum penalty is imprisonment for 15 years or a fine of 3500 penalty units or both. 4 The applicant was sentenced by Judge Finnane to a non-parole period of two years commencing on 20 July 2006 and a balance of the term of two years, that is a head sentence of four years. 20 July 2006 was the date on which the applicant had been arrested and from which he had remained in custody. By the time this application was heard the applicant had served the greater part of the non-parole period of the sentence. 5 The cultivation of cannabis plants in which the applicant knowingly took part occurred on a property near Narrabri in the year 2003. A number of other persons participated in the cultivation in 2003, including, in particular, a man named Demitrios Hantzis and a man named John Madau. 6 A much larger cultivation of cannabis plants occurred on the same property, or at least in the same general area, in the following year 2004. Hantzis and Madau and some other persons who had taken part in the 2003 cultivation also took part in the 2004 cultivation. However, the applicant did not take part in the 2004 cultivation. 7 Having regard to some of the grounds of appeal against sentence and some of the submissions in support of those grounds, it will be convenient, at this stage, to outline the history of the criminal proceedings against Hantzis, Madau and the applicant. Later in the judgment it will be necessary to examine the history of the proceedings in more detail. 8 In 2004 Hantzis and Madau and some other persons were arrested and charged for taking part in the 2004 cultivation. 9 On 10 June 2005 Judge Finnane sentenced Hantzis for taking part in the 2004 cultivation, his Honour not being aware of the 2003 cultivation. An appeal by Hantzis to the Court of Criminal Appeal against the sentence imposed by Judge Finnane was successful, the Court of Criminal Appeal re-sentencing Hantzis (Hantzis v Regina [2006] NSWCCA 387) 10 As I have already noted, the applicant was arrested for taking part in the 2003 cultivation on 20 July 2006 and was sentenced by Judge Finnane on 13 April 2007. On the same day 13 April 2007 Hantzis was sentenced by Judge Finnane for taking part in the 2003 cultivation. 11 On 1 May 2007 Judge Finnane sentenced Madau for the separate offences of taking part in the 2003 cultivation and taking part in the 2004 cultivation. 12 Judge Finnane sentenced the applicant on the basis of a brief set of agreed facts. According to those agreed facts the applicant's role in the cultivation was that of a harvester. He was also a party to a number of intercepted telephone calls in which he spoke with co-offenders about the progress of the harvesting and packing of the crop. Records showed that the applicant was on the property where the plants were being cultivated for a short period only between 30 March 2003 and 2 April 2003. The total value of the cannabis leaf being cultivated was approximately $700,000. 13 In his remarks on sentence his Honour referred to the criminal history of the applicant and the applicant's motivation for taking part in the cultivation. What his Honour said about these matters was made the subject of grounds of appeal and I will examine what his Honour said later in this judgment. 14 The applicant did not himself give evidence in the proceedings on sentence. The information which the sentencing judge had about the applicant was largely derived from a pre-sentence report and statements made by his legal representative from the Bar table. 15 His Honour found that the applicant had had some legitimate employment and before being arrested had been undergoing training to himself become a physical fitness trainer. While in custody he had worked in the making and assembling of pieces of computer equipment, a kind of work which was only made available to prisoners who had volunteered and who were regarded by the prison authorities as reliable. 16 His Honour allowed the applicant a discount of 20 per cent for his plea of guilty. His Honour concluded that the applicant had some possibility of rehabilitation and that that possibility would be increased if the applicant was supervised for an extended period while on parole. Accordingly, his Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act. 17 In his remarks on sentence his Honour referred to the fact that other persons had been sentenced by him for taking part in either or both of the 2003 cultivation and the 2004 cultivation and it will be necessary to refer to those parts of his Honour's remarks in more detail in dealing with one of the grounds of appeal against sentence. 18 There were four grounds of appeal against sentence, namely:- 1. The sentencing judge erred in applying or failing to apply the parity principle 2. The sentencing judge erred in finding that the applicant had involved himself in the cultivation for monetary gain 3. The sentencing judge erred in the significance given by him to the applicant's prior criminal history 4. The sentence is manifestly excessive 19 In counsel for the applicant's written submissions it was asserted that the errors were related and could be dealt with "in a narrative form", that is together rather than separately. However, it seems to me that, while some of the grounds of appeal are interrelated, there is utility in giving at least some separate consideration to the individual grounds of appeal. It is convenient to deal with the individual grounds of appeal in a different order from that in which they are set out in the formal statement of the grounds of appeal. Ground 2 — The sentencing judge erred in finding that the applicant had involved himself in the cultivation for monetary gain 20 In his remarks on sentence the sentencing judge said that the applicant had taken part in the cultivation "with the view to getting some reward for himself…some benefit to himself". Later in his remarks, after rejecting an assertion made by the applicant which was recorded in the pre-sentence report that the applicant had gone to the property to shoot pigs, his Honour said that the applicant had taken part in the cultivation "to get some money". 21 It was submitted by counsel for the applicant that these were findings of fact adverse to the applicant and could not be made unless the facts were established beyond reasonable doubt (Olbrich v The Queen (1999) 199 CLR 270 especially at 281) and that it had not been open to his Honour to find that the facts had been established beyond reasonable doubt. In particular, it was submitted that the applicant's criminal history was not a sufficient basis for the findings. 22 In my opinion, it was open to his Honour to be satisfied beyond reasonable doubt that the applicant had participated in the cultivation to get some reward or benefit for himself and, further, that that reward or benefit would be monetary. Such findings could properly be made on the basis of a combination of the applicant's previous criminal history which included drug offences, the value of the plants in the plantation, the fact that the applicant had travelled to the geographically remote area where the cultivation was occurring, the fact that the applicant had worked as a harvester in the plantation and the conversations the applicant had had with co-offenders about the progress and harvesting of the crop. 23 I would reject the second ground of appeal. Ground 3 — The sentencing judge erred in the significance given by him to the applicant's prior criminal history 24 In his remarks on sentence his Honour dealt with the applicant's criminal history at some length. His Honour said:- ""…he has a criminal history which started first in 1988. It could be said that from an early time he has been frequently before the Courts for drug offences; initially for possessing them then later administering them, and later for selling them. He has committed other offences, no doubt in connection with or influenced by the use of drugs. Those other offences are of a relatively minor nature. In 1995 he came before the District Court for a series of serious drug offences, at least on the face of it they appear to be serious. They involved a count of supplying a commercial quantity of a prohibited drug, supplying a prohibited drug, supplying a prohibited drug, supplying a prohibited drug and supplying a commercial quantity of a prohibited drug. He received five concurrent sentences of imprisonment with no term having a minimum any greater than two years and six months, the maximum being an additional two years. I can only assume that the judge who sentenced him took the view that what he was involved in was fairly minor. However, they were offences on indictment. Following that time he has been convicted of other offences, all of them before Magistrates, all of them summary, with at least two of them involving possession of drugs. He thus comes before me as a person who has been involved in the drug trade in an active way for many years…"" 25 An examination of the record of the applicant's criminal history shows that, so far as drug offences are concerned, he had up until 1995 had three convictions for supplying a prohibited drug, for which he was fined or given a community service order or placed on a recognizance. In 1995 he was sentenced to terms of imprisonment for the offences referred to by his Honour in his remarks on sentence, that is two offences of supplying a commercial quantity of a prohibited drug and three offences (actually four) of supplying a prohibited drug. After 1995 and before he committed the 2003 offence the applicant had only one conviction for a drug offence, being an offence of possessing a prohibited drug, for which he was fined $200, although, as his Honour noted, during this period he had convictions for other summary offences. 26 Having examined the applicant's actual criminal history it seems to me, as was submitted by counsel for the applicant, that the sentencing judge's conclusion, which would appear to have been based solely on the applicant's criminal history, that the applicant came before him in 2007 as a person who had been involved "in the drug trade in an active way for many years" did involve some exaggeration. However, the degree of exaggeration was only slight. 27 It was submitted by counsel for the applicant that it was not entirely clear how the sentencing judge had dealt with the applicant's prior criminal history. However, it was submitted that the sentencing judge would not have been warranted in regarding the applicant's prior criminal history (1) as a basis for making his findings about the applicant's motivation for taking part in the cultivation, (2) as a matter throwing doubt on the applicant's prospects of rehabilitation, (3) as a matter requiring the imposition of a more severe sentence, (4) as an important point of distinction between the applicant and his co-offenders so as to justify the imposition of a more severe sentence on the applicant. 28 As to (1), I have already held in dealing with the second ground of appeal that his Honour's findings about the applicant's motive for taking part in the cultivation could properly be based on a combination of a number of matters, only one of which was the applicant's criminal history. 29 As to (2), it was open to his Honour to find that the applicant's previous criminal history threw some doubt on his prospects of rehabilitation. In any event, his Honour proceeded to find that the applicant had some prospects of rehabilitation and that there were special circumstances warranting a proportionally longer than usual period in which the applicant would be eligible for release on parole. 30 It will be convenient to postpone a consideration of submissions (3) and (4) until I deal with the remaining grounds of appeal. Ground 4 — The sentence is manifestly excessive 31 It was submitted by counsel for the applicant that the sentence imposed on the applicant was manifestly excessive. In support of this submission counsel relied on what had been the applicant's role in the cultivation, that of a harvester, and the short period the applicant had been on the property. It was submitted that the applicant's criminal history was not such as to warrant a more severe sentence being imposed on the applicant. The sentencing judge had allowed the applicant a discount of 20 per cent for his plea of guilty, so that the sentencing judge's starting point, before allowing the discount for the plea of guilty, would have been five years. It was submitted that in sentencing the applicant the sentencing judge may have been influenced by a mistaken view about the extent to which the Court of Criminal Appeal had interfered with a sentence passed by his Honour on Demetrios Hantzis. 32 In my opinion, the sentence of four years imposed by his Honour on the applicant did not exceed the upper limit of the range of sentences within a proper exercise of his Honour's sentencing discretion. The conduct of the applicant included the making of the telephone calls in which he spoke with co-offenders about the progress of the harvesting and packing of the crop. I have found that the sentencing judge was entitled to find that the applicant's motivation for taking part in the cultivation was monetary gain. In my opinion, the applicant's criminal history, although I have found that there was a slight degree of exaggeration in his Honour's summary of it, was such that his Honour could properly conclude that considerations of deterrence, retribution and the protection of society required a more severe sentence. 33 I would reject the third ground of appeal. Ground 1 — The sentencing judge erred in applying or failing to apply the parity principle 34 In his submissions in support of this ground counsel for the applicant relied particularly on the sentences passed by Judge Finnane on Hantzis and Madau. 35 Earlier in this judgment I outlined the history of the criminal proceedings against Hantzis. 36 On 10 June 2005 Judge Finnane sentenced Hantzis for the offence of knowingly taking part in the cultivation in 2004 of not less than a commercial quantity of cannabis plants. In sentencing Hantzis for this offence his Honour took into account a further offence of deemed supply of cannabis based on the finding of more than 10 kgs of cannabis at Hantzis' home in Sydney. There was a further charge against Hantzis for a separate offence of knowingly taking part in the supply of a commercial quantity of cannabis leaf, for which Hantzis should have been sentenced by Judge Finnane but for which he was, unaccountably, not sentenced. 37 The 2004 cannabis plantation was very large, the estimated value of the crop being $40 M. There were on the property on which the plants were being cultivated a number of sheds and a number of items of plant and equipment for the cultivation of the cannabis plants and the drying of the harvested cannabis. 38 In his remarks made on sentencing Hantzis for the 2004 offence his Honour declined to find that Hantzis had been a principal in the criminal enterprise. However, he found that Hantzis had had a major or high-level management role. His Honour found that Hantzis' functions had included running the operation of cultivating a crop of cannabis plants from the end of February 2004 to 8 April 2004, when he was arrested; arranging the harvesting and packaging and transporting of the crop; recruiting workers; and arranging for the delivery of supplies to the plantation. 39 With regard to the subjective matters, his Honour found that Hantzis had followed a legitimate occupation as a brick layer, that he had a wife who was suffering severely from multiple sclerosis and that he was a person of good character who had no previous criminal convictions and who had good prospects of rehabilitation. His Honour allowed a discount of 25 per cent for Hantzis' plea of guilty. 40 In the proceedings for the sentencing of Hantzis the Crown submitted that his Honour should adopt a starting point of 15 years, which would have been equal to the maximum sentence for the offence. His Honour declined to adopt such a starting point. His Honour held that, after allowing a discount of 25 per cent for the plea of guilty, a head sentence of nine years would be appropriate, thereby indicating that he had adopted a starting point of 12 years. His Honour proceeded to impose a head sentence of nine years with a non-parole period of five years. 41 An appeal by Hantzis to the Court of Criminal Appeal against the sentence imposed by Judge Finnane was allowed. 42 The Court of Criminal Appeal held that there had been a fundamental error in not sentencing Hantzis for the offence of knowingly taking part in the supply of not less than a commercial quantity of cannabis leaf. The Court of Criminal Appeal further held that for an offender who was not a principal, even if he had played a major role in managing the plantation, the sentencing judge had erred in adopting a starting point of 12 years before allowing a deduction for the plea of guilty. The Court of Criminal Appeal held that an appropriate starting point would be eight years, so that an appropriate head sentence, after allowing the discount for the plea of guilty, would be six years and that this head sentence should be divided into a non-parole period and a parole period in the same proportions as those in which the sentence at first instance had been divided. 43 Accordingly, the Court of Criminal Appeal allowed the appeal, quashed the sentence imposed by Judge Finnane and imposed a head sentence of six years with a non-parole period of three years four months commencing on 8 April 2004 and expiring on 7 August 2007. 44 On 13 April 2007 Judge Finnane sentenced Hantzis for knowingly taking part in the 2003 cultivation. 45 In his remarks on sentence his Honour noted that he had previously sentenced Hantzis for taking part in the 2004 cultivation and that an appeal against the sentence imposed by his Honour had been allowed by the Court of Criminal Appeal. His Honour said that the result of the appeal was that "the non-parole period was reduced to three years four months but the head sentence remained". 46 The statement by his Honour that "the head sentence remained" was incorrect, because the Court of Criminal Appeal had in fact reduced the head sentence from nine years to six years. The applicant was sentenced on the same day as Hantzis was sentenced and, although his Honour in sentencing the applicant did not refer to the result of the appeal by Hantzis against his sentence for the 2004 cultivation, it does seem likely, as was submitted by counsel for the applicant, that his Honour in sentencing the applicant was under the mistaken impression that the Court of Criminal Appeal had not interfered with the head sentence of nine years which his Honour had imposed on Hantzis. 47 In his remarks on sentence his Honour noted that, at the time of sentencing Hantzis for the 2004 offence, he had been unaware of the 2003 offence and had sentenced Hantzis on the basis, which had turned out to be false, that in 2004 Hantzis had been a person of good character. 48 His Honour found that Hantzis' role in the 2003 cultivation had been a management role, much the same as the role he had played in the 2004 cultivation, the only difference being that the 2004 cultivation had been much larger. 49 His Honour made a finding that Hantzis' wife's multiple sclerosis had, if anything, become worse by 13 April 2007. 50 It was accepted in the proceedings for the sentencing of Hantzis for the 2003 offence that the sentencing principle of totality required that his Honour should have regard to the sentence he had imposed for the 2004 offence. The Crown prosecutor submitted that it would be appropriate to impose a sentence for the 2003 offence, such that the total period Hantzis would have to serve before being eligible for release on parole would be increased by one year. 51 The sentencing judge decided to impose a head sentence of five years with a non-parole period of two years. He decided to make the non-parole period of the sentence commence on 8 August 2005 so that it would expire on 7 August 2007, the same date that the non-parole period of the sentence for the 2004 offence would expire. 52 As I have already noted, Madau was sentenced by Judge Finnane on 1 May 2007 for the separate offences of taking part in the 2003 cultivation and taking part in the 2004 cultivation. 53 In his remarks on sentence his Honour described the role Madau had played in 2004 as one of harvesting. Madau had been a party to a number of telephone conversations in which he had spoken to co-offenders about the progress of the harvest and the packing of the leaf. His Honour found that Madau had played a similar role in 2003. In 2003 Madau had been on the property from 30 March 2003 to 4 April 2003. Accordingly, the role played by Madau in the 2003 cultivation was very similar to the role the applicant had played in that cultivation and the period during which each had been on the property was very similar. 54 Madau had a criminal history but it was very minor and he had never previously been sentenced to imprisonment. Madau had pleaded guilty and his Honour said that he would allow a maximum discount for the plea of guilty. 55 In his remarks his Honour said that he should endeavour to impose sentences on Madau which were consistent with the sentences he had imposed on other persons who had taken part in the cultivations. His Honour said:- ""Many of the workers from the 2004 crop received sentences of three years with non-parole periods of fifteen months and I mention Mr Mouzakis, Mr Spiliotopolous and Mr Dourampheys. Others have been sentenced to lesser periods for various reasons usually related to their background and the prospects of rehabilitation."" 56 His Honour proceeded to sentence Madau for each offence to a non-parole period of one year and a parole period of one year, making one sentence cumulative on the other to the extent of six months. 57 In his remarks on sentence in sentencing the applicant Judge Finnane demonstrated his awareness of the relevance of the principle of parity in sentencing. His Honour observed that the level of the sentence to be imposed on the applicant would have to be adjusted "to take into account sentences imposed on others both by me and on appeal from me by the Court of Criminal Appeal". His Honour said on p 3 of his remarks:- ""His case is different to that of others who have come before me for this offence; most of them for a similar offence in the following year, because he has been convicted of indictable drug offences. The other persons who have come before me, in the main have had convictions, if at all, for summary matters."" 58 It was submitted by counsel for the applicant that there was a lack of proper parity or proportionality between the sentence passed on the applicant and the sentences passed on Hantzis and Madau. 59 It was submitted that there should have been a much greater disparity between the sentence passed on the applicant and the sentences passed on Hantzis. Hantzis had had a managerial role and had been on the plantation for a much longer period than the applicant. 60 It was submitted that there was too great a disparity between the sentence passed on the applicant and the sentences passed on Madau. Madau's role in the 2003 cultivation had been very similar and of a very similar duration to that of the applicant. 61 Counsel for the applicant submitted that the ground given by the sentencing judge for distinguishing the applicant's case from those of the co-offenders, that the applicant had a criminal history including convictions for indictable offences, was an insufficient ground. 62 The principles relating to parity and proportionality in sentencing were stated by the High Court in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1996-1997) 189 CLR 295. In Postiglione Dawson J and Gaudron J said at pp 301-302, (omitting citation of authority):- ""The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v R , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality…"" 63 In R v Li & ors [2005] NSWCCA 154 Barr J, with the concurrence of at least three other members of a five judge Court of Criminal Appeal, discussed these principles at par 40-44 of his judgment. After referring to Lowe and Postiglione Barr J said at par 43 and 44:- ""[43] Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality: Postiglione v R (1997) 189 CLR 295 per Dawson and Gaudron JJ at 302. [44] What these authorities make clear is that disparity between sentences is not of itself a basis of appellate intervention but a factor to be weighed when the Court considers whether the sentencing process has been attended by error and, if so, whether the Court should intervene."" 64 I will now endeavour to apply these principles to the present case. 65 In my opinion, there were sufficient differences between the case of the applicant and the cases of the co-offenders to warrant the difference or lack of difference in the sentences. 66 According to what his Honour said in his remarks on sentencing Madau, his Honour had sentenced many of the "workers" (a class within which the applicant would fall) to sentences of three years with non-parole periods of 15 months. It was within his Honour's discretion to impose a more severe sentence of four years with a non-parole period of two years on the applicant, because he, unlike the others, had a criminal history which included convictions for indictable drug offences, indicating the need for the sentence imposed on the applicant to satisfy the sentencing purposes of deterrence, retribution and protection of society. 67 Hantzis and the applicant were not co-offenders, so far as the 2004 cultivation was concerned. The sentence passed on Hantzis for the 2003 cultivation in which Hantzis and the applicant were co-offenders was greatly affected by the application by his Honour of the principle of totality in sentencing and by the considerable weight given by the sentencing judge to Hantzis' subjective circumstances, including his wife's severe multiple sclerosis. 68 The difference between the sentence passed on the applicant and the sentence passed on Madau for fairly similar conduct can be justified on the basis of their different subjective features. Madau had only a very minor criminal history and had never previously been sentenced to imprisonment. The applicant had a much more serious criminal history including a number of convictions and prison sentences for drug offences including two offences of supplying not less than a commercial quantity of a prohibited drug. 69 I would reject the first ground of appeal. 70 Having rejected all the grounds of appeal against sentence I would, although granting leave to appeal against sentence, dismiss the appeal against sentence. 71 SIMPSON J: I agree with James J. ********** 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.