New South Wales Court of Criminal Appeal CITATION: R v LP [2010] NSWCCA 154 HEARING DATE(S): 12 July 2010 JUDGMENT DATE: 21 July 2010 JUDGMENT OF: Hodgson JA at 1; Whealy J at 2; Buddin J at 3 1 Allow the appeal. 2 Quash the sentences imposed in the District Court. DECISION: 3 In respect of count 2, the respondent is sentenced to a non-parole period of 2 years with a total term of 4 years imprisonment to date from 14 November 2008. The sentence will expire on 13 November 2012. 4 In respect of count 1, and taking into account the matters on the Form 1, the respondent is sentenced to a non-parole period of 3 years with a total term of 5 years and 6 months imprisonment to commence on 14 May 2009. The sentence will expire on 13 November 2014. 5 The respondent will be eligible for release on parole on 13 May 2012. CATCHWORDS: CRIMINAL LAW - sentencing - Crown appeal - whether sufficient regard paid to standard non-parole period - whether discount for assistance appropriate Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 CATEGORY: Principal judgment R v Hunter [2010] NSWCCA 54 R v McEvoy [2010] NSWCCA 110 R v Nicholson [2010] NSWCCA 80 CASES CITED : R v Parkinson [2010] NSWCCA 89 R v Sukkar (2006) 172 A Crim R 151 R v Tran [2010] NSWCCA 72 RWB v R; R v RWB [2010] NSWCCA 147 PARTIES: Regina LP FILE NUMBER(S): CCA 2009/11590 COUNSEL: P Miller (Crown) C Davenport SC (Respondent) SOLICITORS: S Kavanagh (Solicitor for Public Prosecutors) William O'Brien & Ross Hudson Solicitors (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/11590 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ LOWER COURT DATE OF DECISION: 5 March 2010 IN THE COURT OF CRIMINAL APPEAL 2009/11590 HODGSON JA WHEALY J BUDDIN J WEDNESDAY 21 JULY 2010 REGINA v LP Judgment 1 HODGSON JA: I agree with Buddin J. 2 WHEALY J: I agree with the reasons of Buddin J and the orders he proposes. 3 BUDDIN J: This is an appeal brought by the Crown, pursuant to s 5D of the Criminal Appeal Act 1912, against the asserted inadequacy of sentences imposed upon the respondent in the District Court in respect of two offences to which he had pleaded guilty. The first was an offence, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985, of cultivating by enhanced means a large commercial quantity of cannabis plants (Count 1). The legislature has specified that the large commercial quantity of plants is 200. This offence attracts a maximum penalty of 20 years imprisonment and/or a fine of 5000 penalty units and a standard non-parole period of 10 years is applicable to it. The second was an offence, contrary to s 25(2) of the same Act, of supplying a commercial quantity of cannabis leaf (Count 2). The legislature has specified that 25 kilograms constitutes a commercial quantity of that drug. This offence attracts a maximum penalty of 15 years imprisonment. 4 The respondent requested that five further offences, which were recorded on a Form 1 document, be taken into account when he was sentenced. They consisted of an offence of dealing with property suspected to be the proceeds of crime (which related to the discovery of $100,000 in cash), an offence of possessing a prohibited weapon, namely a pair of wooden nunchucks, an offence of unlawful possession of an article like a driver's licence to deceive, and offences of having and using a false instrument. 5 In respect of count 2, the respondent was sentenced to a total term of imprisonment of 2 years with a non-parole period of 12 months. That sentence was ordered to commence on 14 November 2008, the date upon which the respondent was taken into custody. In respect of count 1, and taking into account the matters on the Form 1 document, the respondent was sentenced to a total term of imprisonment of 3 years 4 months with a non-parole period of 18 months. That sentence was ordered to commence on 14 May 2009 and was thus accumulated by a period of six months upon the sentence imposed in respect of count 2. Accordingly, the overall effective sentence consists of a non-parole period of 2 years which is due to expire on 13 November 2010, and an overall total term of 3 years 10 months imprisonment which is due to expire on 13 September 2012. 6 An agreed statement of facts was tendered in the sentence proceedings. Its contents, with minor modifications, are set out below: On 14 November 2008 police executed a search warrant upon the premises in which the respondent was residing with his parents. A brief search of the premises was then conducted. In the first room (room 5), police found an amount of green vegetable matter resting on three steel poles. The three steel poles were acting as a form of drying rack for the green vegetable matter. The total cannabis leaf in this room was 2794 grams. Police located 246 small cannabis plants in a hydroponic garden/ nursery type set-up. The plants were being cultivated by bright fluoro lights which enhanced their growth. The plants were being watered by a complex irrigation system. There was also a large amount of growth chemicals and fertilisers located. As well as fertilizers police also located gas cylinder bottles and fans. During the search of the second room (room 6) a total of 8 mature cannabis plants as well as 8 small cannabis plants were found. The plants were being cultivated by fluoro lights and an irrigation watering system. Also found in room 6 was an A5 spiral notebook (which contained the fingerprints of the respondent) along with 15 blank growth charts. A completed growth chart was also located with handwriting upon it. The chart had all seven days of the week completed with the words 'bug stuff' 'Feed-boost', 'Boost', 'f spray', 'Liquid lead' and 'Flush from to turning-yellowing' appearing on it. This material appears to relate to the growing of cannabis. Various fans and electrical items were found and the fingerprint of the respondent was located on a red fan inside room 6. A quantity of cannabis leaf was also located in room 6 (274 grams). In the hallway area a portable 'blue way brand' air conditioner was found. In the third room searched (room 7) two irrigation silos were located. Each of the irrigation silos contained 300 pots. Inside the pots there was potting type mixture with a white substance. Most of the pots contained no plants. However a total of 12 cannabis small plants had sprouted. Running down the centre of each silo was a fluoro light. The silo was around 2 metres in height and around 1.5 metres in diameter. Both silos appear to be for commercial use by industrial plant growers. An electrical powered 'mulcher' was located in room 7. Around the mulcher were off cuts of shredded green vegetable matter. This device appeared to have been recently used to cut up dried green vegetable matter. A total of 2995g of cannabis leaf was located in this room. Also located in room 7 was a light shade. The fingerprint of the respondent was located on this item [and] on a fluorescent light attached to a power board in the kitchen area at the rear entry to the premises. The set up can only be described as well planned, sophisticated and professional. The entire plantation was indoors and not able to be seen from the outside. The total number of cannabis plants was 274. The plants were derived by enhanced indoor means. The smell of cannabis filled the entire premises and the surrounding area. The approximate street value of the cannabis plants is $564, 000. The upstairs area consisted of a living area with two separate rooms with sleeping quarters. Upon searching the room at the far end (room 8) police located seven credit/debit cards in the respondent's name. Also in the room was an amount of male clothing which suggested that the room was occupied by the respondent. In this room six mobile phones were recovered together with numerous mobile phone sim cards. A search of a built in wardrobe revealed four books (two of which contained the fingerprints of the respondent). All of the books were concerned with the growing of hydroponic cannabis. Two black spiral notebooks were recovered as well (one of which contained the fingerprints of the respondent). The handwriting in the exercise book appeared to represent notes and numbers logging growth. A pair of brown wooden numchucks (Japanese martial arts weapon) were found within room 8. (Form 1 offence) In a spare room (room 9) police located two separate deep freezers. A partial DNA profile recovered from swabs taken from the freezer on the east wall was found to match the DNA profile of the respondent. Inside both of the freezers a quantity of frozen green vegetable matter was found. The green vegetable matter was placed into 52 smaller (42cm x 30cm) plastic bags. The total weight of the cannabis leaf in these freezers was 25541.6 grams. Three sets of weighing scales and a 'Bachus' brand cash counter were recovered. A quantity of unused plastic resealable bags were also recovered (some of which contained the fingerprints of the respondent). A quantity of reflective silver material was found and seized. This type of material can be used in hydroponic cannabis gardens to reflect light. Inside another upstairs room (room 10) which is between the spare room (room 9) and the bathroom (room 11) there was a room containing a mattress and personal effects. This room appeared to be the master bedroom. A search of the upstairs bathroom (room 11) revealed a quantity of $100,000 of cash. The cash was hidden from view in the ceiling area (Form 1 offence). A money counter was located in room 8 and the fingerprint of the respondent was located upon it. In total 32957.9 grams of cannabis leaf was located at the premises. The cannabis leaf belonged to the respondent and he possessed it for the purposes of supply. A van was parked near to the premises. The owner of this vehicle advised police that the van was being used and driven at the time by the respondent. The vehicle was searched and found to contain fertiliser. The respondent was cautioned and placed under arrest. He was conveyed to Waverley Police Station where he declined to be interviewed. 7 Each of the respondent's parents pleaded guilty to allowing the premises to be used as drug premises and was released on a s 9 bond. 8 The offender gave evidence during the course of the sentence hearing. In light of that evidence, his Honour made the following findings about the cultivation offence: In this case there were 274 plants. Objectively that number is clearly above the minimum required to fall within the large commercial quantity but it is also not that far above that number. The evidence before me satisfies me that this was not a cultivation of 274 mature plants. A large number of the plants were in a variety of states of growth. In other words only a relatively few plants were mature and producing drug leaves. In my view, on any assessment objectively the offence could not be said to fall within the middle range of objective seriousness. Although the standard non-parole period has no direct application here given the offender's plea of guilty it remains a guide to the sort of penalty to be applied . As a result it is clear that the penalty imposed in this case must be one involving full-time custody that will be at least in terms of years. That penalty must be enhanced to take account of the matters on the Form 1. (emphasis added) 9 His Honour did not however accept the respondent's explanation for having the 32 kilograms of cannabis leaf in his possession. The respondent had claimed that it was unrelated to the cultivation matter and that he had, in effect, operated as a middleman who was merely holding the drug on behalf of a third party. Nor did his Honour accept his explanation for having the $100,000 in cash in his possession. In short, the account offered by the respondent was implausible and unsurprisingly, his Honour had little hesitation in rejecting it. 10 The respondent was born in September 1977 and was accordingly 31 years of age at the time that he committed these offences. A psychological report, prepared by Tim Watson-Munro, was tendered on his behalf. His formative years were unremarkable. He completed his HSC and was offered a place at university to undertake a course in Human Movement. As matters turned out, he deferred commencing the course and has never returned to it. In any event, he obtained work in the security industry and remained working in that capacity for a number of years. However in 2002 he was injured at work when he was stabbed with a syringe. As a consequence, the respondent had to take six months off work whilst he waited to see if he had been infected with a disease, such as HIV. Even though he was ultimately cleared of having contracted any such disease, he was no longer attracted to working in the security industry and commenced employment with a cleaning company. The respondent gave evidence that in the aftermath of the attack upon him, he had increased his use of cannabis, having been only an occasional user until that time. Indeed he maintained that by the time he committed the present offences, he had been consuming 2 grams a day. In 2005 the respondent was placed on a s10 bond for a period of 18 months for cultivating and possessing a prohibited plant, but had not otherwise attracted adverse attention from the authorities. The sentencing judge accepted that the respondent had managed, whilst in custody, to overcome his dependency upon cannabis, and that he intended upon his release from custody, to resume his university studies. 11 The most prominent feature of the respondent's subjective case was the fact that he had pleaded guilty to these offences in the Local Court and that he had also provided assistance to the authorities. That assistance concerned the involvement of other persons in very serious criminal activities that are quite unrelated to the present offences. The sentencing judge made the following observations about that aspect of the matter: ln short, the assistance provided is of a very high order. The police accept that it may well put the offender in some danger. It involves both past and future assistance. The fact that he has provided this assistance makes it clear that he has no intention of returning to criminal activity once released from custody. To my mind it makes it much easier to find that he has good prospects of rehabilitation in future. Had these offences gone to trial and the offender been convicted in my view a combined sentence of at least seven years of imprisonment would have been applied. Given the assistance provided by the offender I will allow a discount of forty-five percent from the sentence that might otherwise have been provided. I acknowledge that such a discount is unusually high. However, in my view the assistance here is of a very high order. I set 12.5 per cent of that discount as future assistance. I have been asked to find special circumstances. This is the first time in custody for the offender and due to the fact that he will certainly have to spend his time in strict custody, his incarceration will be more difficult for him. 12 The court was provided with the material concerning the assistance which the respondent provided to authorities. Although I share the sentencing judge's assessment that it is assistance "of a very high order", it will be necessary nonetheless to return to the question of the extent of the discount which was allowed by his Honour when considering the grounds of appeal. 13 The Crown relied upon the following grounds of appeal: GROUND 1: The discount given for assistance was too high. GROUND 2: His Honour fell into error in taking into account that the sentences would be served in strict custody. GROUND 3 : His Honour fell into error in double counting the conditions of custody in relation to the discount given for assistance and the finding of special circumstances. GROUND 4 : Insufficient consideration was given to the standard non parole period in relation to Count 1. GROUND 5 : The sentence is manifestly inadequate. 14 It is convenient to first consider Ground 4. As was observed earlier, the sentencing judge concluded that "the offence could not be said to fall within the middle range of objective seriousness". The Crown accepted that such a finding was open to the sentencing judge. Criticism was made however of the fact that his Honour did not then proceed to make any further assessment of how far below the middle of the range of objective seriousness, the offence lay. There is a considerable body of authority which supports the Crown's contention. For recent examples, see R v Hunter [2010] NSWCCA 54; R v Nicholson [2010] NSWCCA 80; R v Parkinson [2010] NSWCCA 89 and R v McEvoy [2010] NSWCCA 110. 15 The Crown properly recognised that issues such as the number of plants, as well as their state of maturity and overall condition were relevant sentencing considerations. Nevertheless, it was submitted that this was on any view of it, an offence of considerable objective gravity. Particular emphasis was placed upon the fact that the respondent was solely responsible for what was described as being a "well organised criminal enterprise". It was accordingly submitted that his role was critical to the success of the operation and that that was the decisive factor in determining the appropriate sentence. Even allowing for the fact that the respondent was a heavy user of the drug, I accept that this venture had all the hallmarks of an on-going criminal enterprise. It was no mere "backyard operation" in which the respondent performed a subsidiary role. Furthermore, the appropriate sentence also needed to take into account the matters on the Form 1 document. In my view, the Crown's characterisation of the offence as falling below, but not substantially below the middle of the range of objective seriousness, is entirely appropriate. 16 The Crown also accepted that the sentencing judge had to make due allowance not only for the fact that the offence fell below the middle of the range of objective seriousness but also for the respondent's favourable subjective features. Nevertheless, it was submitted that it was impossible to see how the non-parole period of 18 months which was imposed, could be reconciled with the requirement that the standard non-parole period of 10 years remains, as his Honour acknowledged, "as a guide to the sort of penalty to be imposed". A departure of that magnitude was, so it was submitted, demonstrative of error. In my view, the Crown's submissions should be accepted. It follows that Ground 4 has been established. 17 Allied to this submission, was a contention that each of the sentences was manifestly inadequate. As I have said, his Honour indicated that his starting-point of 7 years imprisonment was a "combined sentence" for both offences. It was submitted that the consequence of nominating such a starting point was to produce sentences, after the discount of 45% was afforded to the respondent for his plea of guilty and assistance to the authorities, which were manifestly inadequate. It was further submitted, pursuant to grounds 1-3, that the discount for assistance was itself too high. Finally, it was submitted that his Honour had failed to give effect to the statutory mandate contained in s 23(3) of the Crimes (Sentencing Procedure) Act 1999 which states that: [a] lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. 18 In support of the submission that the sentence which was imposed in respect of the cultivation offence was manifestly inadequate, the Crown referred to this court's decision in R v Tran [2010] NSWCCA 72. In that case the offender had pleaded guilty to cultivating 210 plants and was found to be the sole operator of the plantation. He migrated from Vietnam and had had difficulty adjusting to life in Australia. He suffered from depression and other physical ailments. He had a gambling habit and was a cannabis user and had a criminal record, including a prior conviction for cultivating 30 cannabis plants. That offender received a non-parole period of 5 years with a total term of imprisonment of 7 years 6 months imprisonment. The court reviewed a number of decisions concerning offences of a similar kind before concluding that the sentence was not manifestly excessive. Hislop J, with whom the other members of the court agreed, observed that: [t]he cases to which reference was made by senior counsel for the applicant are insufficient in number to establish a reliable sentencing range. However, the decisions in this Court in Bui, Nguyen and Phan establish that a sentence in the order of three years non parole period and a balance of term of two years prima facie would not be regarded as manifestly excessive in the case of an offender whose role was toward the lower end of the scale and where the number of plants was in the range of 200-300. [at para 20] 19 The respondent sought to derive some comfort from two of the sentences which were reviewed by Hislop J. Counsel nonetheless recognised that the sentences upon which reliance was placed were markedly lenient. Although I have derived some assistance from the observations made by Hislop J in Tran (supra), it remains for this court to determine the present appeal upon the particular facts of this case. 20 In my view, the starting point of 7 years which his Honour nominated for both offences, fell well short of what the objective gravity of the offences required. Although the focus has understandably been upon the cultivation offence given that a standard non-parole period applied to it, the supply offence was also an offence of considerable seriousness. The consequence is that the ultimate sentences which were imposed, even after allowing for an appropriate discount to be provided for the plea of guilty and assistance to the authorities, are manifestly inadequate. Accordingly, ground 5 is established. 21 In support of its contention that the discount which was awarded to the respondent for assistance was too generous, the Crown made particular criticism of the fact that his Honour had found that the respondent would be serving his sentence "in strict custody". That conclusion was arrived at notwithstanding the respondent's sworn evidence that at that stage he was not on protection. Furthermore, he gave evidence that he had declined to avail himself of that facility even though some of the persons about whom he had provided information were themselves in custody. The respondent did however say that if he was required to give evidence then he may be forced to seek protection. The court was informed that the occasion for the respondent to give evidence had still not arisen and that it was not clear when he would be required to do so. As matters presently stand, the court is simply not in a position to determine if, or indeed when the respondent will go into protection. A fortiori, the court is unable to determine what conditions might prevail should he do so. It follows that the sentencing judge has fallen into error: see RWB v R; R v RWB [2010] NSWCCA 147 [at paras 192-195]. In R v Sukkar (2006) 172 A Crim R 151, Howie J said: In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact. [at 154] 22 No argument was advanced on behalf of the respondent to suggest that the court should nonetheless decline, in the exercise of its discretion, to intervene should it conclude that the sentences were manifestly inadequate. 23 In re-sentencing I would allow the respondent a combined discount of 40% for his plea of guilty and assistance to the authorities. I would specify that of that discount, 10% should operate in respect of the respondent's offer to provide assistance in the future. As the sentencing judge did, I would order only a relatively modest degree of accumulation because of the common thread that linked the two offences. I would also maintain the finding of "special circumstances" and would do so, in particular, to enable the respondent to re-integrate into the community following what is his first custodial sentence. 24 I propose the following orders: 1 Allow the appeal. 2 Quash the sentences imposed in the District Court. 3 In respect of count 2, the respondent is sentenced to a non-parole period of 2 years with a total term of 4 years imprisonment to date from 14 November 2008. The sentence will expire on 13 November 2012. 4 In respect of count 1, and taking into account the matters on the Form 1, the respondent is sentenced to a non-parole period of 3 years with a total term of 5 years and 6 months imprisonment to commence on 14 May 2009. The sentence will expire on 13 November 2014. 5 The respondent will be eligible for release on parole on 13 May 2012. ********** 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.