Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chaloner v R [2018] NSWCCA 59 Hearing dates: 4 April 2018 Date of orders: 04 April 2018 Decision date: 04 April 2018 Before: Basten JA at [1]; Rothman J at [22]; Garling J at [23] Decision: (1) Grant leave to appeal with respect to the aggregate sentence imposed on the applicant in the District Court on 2 March 2017. (2) Quash the sentence imposed by the District Court. (3) Sentence the applicant to imprisonment for an aggregate term of 5 years 3 months with a non-parole period of 3 years 3 months, to date from 20 December 2016. (4) The applicant will be eligible for release on parole on 19 March 2020. Catchwords: CRIME – appeal against sentence – finding of special circumstances – Crown conceded trial judge's nominal reduction of non-parole period affected by error –whether Court should intervene CRIME – appeal against sentence –applicant and co-offender received identical sentences – Crown conceded trial judgment affected by error - where co-offender's sentence quashed and co-offender resentenced for same error by differently constituted Court of Criminal Appeal – circumstances in which Court may depart from earlier decision CRIME – appeal against sentence – finding as to purpose for retaining parts of cannabis plant – whether for production of cannabis resin – whether finding open on evidence – inference drawn from surrounding circumstances Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 Cases Cited: Gumbleton v R [2017] NSWCCA 314 Kay v R; Ellis v R [2017] NSWCCA 218 Lin v R [2018] NSWCCA 13 and Tarrant v R [2018] NSWCCA 21 Category: Principal judgment Parties: Steven Allan Chaloner (Appellant) Regina (Respondent) Representation: Counsel: Mr T Game SC/Mr J Brock (Appellant) Mr D Kell SC/Mr M Pulsford (Respondent) Solicitors: Lawler Magill Solicitors (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2016/191690 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 2 March 2017 Before: Wells SC DCJ File Number(s): 2016/191690 Judgment 1. BASTEN JA: On 23 June 2016 a number of men were arrested at Mount Burrell in northern New South Wales and charged in relation to the enhanced indoor cultivation of cannabis and the supply of a significant quantity of cannabis leaf, together, in the case of the applicant, with a further charge of supply of cannabis resin. Four of the men were sentenced by Judge Wells. The principals and organisers were the present applicant, Steven Allan Chaloner, and Edward Garry Gumbleton. They were sentenced jointly, on 2 March 2017, but after the sentencing of two lesser offenders, Clinton Ellis and Zachariah Kay. 2. All four offenders appealed from their respective sentences of imprisonment. Ellis and Kay came before this Court in August 2017; [1] Gumbleton came before this Court later in 2017, [2] and the applicant comes before the Court in April 2018, the Court being differently constituted on each occasion. Separate hearings with respect to persons who may be described as "co-offenders" may be unavoidable and, in some cases, the fact of separate consideration will not matter. However, where a judge with full knowledge of a number of offenders has carefully structured the sentences imposed having regard to their respective levels of culpability, interference with one is likely to lead to claims of disparity, or at least disproportionality, on the part of others. [3] 3. With respect to Gumbleton and Chaloner, the separation is unfortunate, if only because they were sentenced together and on the basis of a common statement of agreed facts, with common representation. Both Mr Gumbleton and the applicant were sentenced in the District Court to aggregate sentences of 5 years 3 months with a non-parole period of 3 years 9 months. This Court reduced Mr Gumbleton's non-parole period to 3 years 3 months on the basis that the finding of special circumstances, which allowed the sentencing judge to vary the proportion of the sentence that might be spent on parole, pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), required more than a nominal reduction in the non-parole period. In this case, the Crown Advocate acknowledged that the same error affected the applicant's sentence, but nevertheless submitted that the Court should not intervene. 4. In the appeals of Ellis and Kay, an error was identified in the calculation of the amount of cannabis leaf discovered at the Mount Burrell property occupied by Mr Gumbleton. The correction, which caused this Court to intervene in the sentences imposed on Messrs Ellis and Kay, identified the correct weight of cannabis leaf seized from Mount Burrell (in round figures) as 60kg, rather than the 68kg on the basis of which the offenders had been sentenced. 5. That reduction could affect the putative sentence which would have been imposed on the applicant for the first offence, had he been separately sentenced on each offence. It would, potentially, have affected the aggregate sentence. However, the applicant was also sentenced with respect to 6.4kg of cannabis (in round terms) found at his property at Lennox Head. The correction to the amount found at Mount Burrell was offset by an increase in the amount found at Lennox Head, which should have been 14.3kg, rather than 6.4kg. The Crown Advocate conceded that there had been an error in the sentencing of the applicant on this basis. However, it was not an error relied upon by the applicant, for the obvious reason that the overall effect may have been to increase one of the putative individual sentences and decrease another. The total weight of cannabis leaf involved, and the basis of the aggregate sentence, was unchanged. 6. Finally, the applicant relied upon an alleged error unrelated to the matters relied upon by Mr Gumbleton and those acknowledged by the Crown Advocate. This matter related to the agreed fact that, of the 98kg of cannabis leaf, approximately half was in the form of saleable cannabis heads. The agreed facts said that, "[t]he rest, whilst not in typical saleable form may nevertheless be used in the production of cannabis resin." 7. The sentencing judge found that the purpose for which the rest was kept was in fact to produce cannabis resin. The applicant submitted that this conclusion was not an agreed fact and was not available on the evidence. This was not a ground relied upon by Mr Gumbleton; the applicant submitted it warranted a further reduction in his sentence. 8. While both Mr Gumbleton and the applicant had been content to adopt a common approach at the sentencing hearing, each had separate counsel for their respective appeals and each sought to reduce his sentence below that of the other. The sentencing judge had accepted that there were features distinguishing their respective levels of culpability, but had, quite appropriately, concluded that these features balanced each other out and therefore warranted identical sentences. In the absence of new material, this Court would not readily find error on the basis of a point of distinction which had not been raised before the sentencing judge. 9. The issues identified above may be disposed of without repeating the detail of the underlying offending, and the other factors taken into account on sentence, which were sufficiently recounted in this Court's judgments in Gumbleton and in Ellis and Kay. 10. With regard to the error identified in Gumbleton, this Court would require some compelling reason not to acknowledge the same error in the present case, even if it thought the Court had been wrong to intervene in Gumbleton, or had erred in resentencing Mr Gumbleton. None of these circumstances is established. First, there is no relevant point of distinction. Secondly, there is no basis to doubt the correctness of the identification in Gumbleton of error by granting a quite minor reduction of the non-parole period when giving effect to the finding of special circumstances. (A minor change will not always indicate error; it all depends on the purpose of the finding of special circumstances.) Thirdly, and contrary to the submission of the Crown Advocate, the Court in Gumbleton was correct to intervene to resentence Mr Gumbleton; this Court would perpetuate the error of the sentencing judge if it failed to take the same step with respect to the applicant. Accordingly, grounds 3 and 4 should be upheld and, subject to what follows, the applicant should be resentenced to a non-parole period of 3 years 3 months and an additional term of 2 years imprisonment. 11. With respect to the concession by the Crown Advocate that there had been an error in the calculation of the amounts of cannabis leaf, there is no basis for the Court to intervene. The total amount in supply the applicant was charged with supplying remained unchanged. 12. With respect to the first two grounds of appeal identified by the applicant, some further background is required. 13. Ground 1 referred to the conclusion of the sentencing judge "that the production of cannabis resin was a significant component of the offence of supply", said to be an error because there was "no reliable information about how much resin could be made or the value of any resin product." Ground 2 alleged procedural unfairness in concluding that "a significant amount of the cannabis plant material was to be used for the production of cannabis resin without allowing defence counsel an opportunity to respond." 14. Senior counsel for the applicant submitted that the finding of the sentencing judge, correctly stated as being made on the basis of a satisfaction beyond reasonable doubt, did not accord with the precise terms of the agreed facts. That was so; as noted above, the agreed fact was merely that the rest of the cannabis plant "may nevertheless be used in the production of cannabis resin", with no statement that that was the purpose for which it was retained. The sentencing judge did not misunderstand the agreed facts, but expressly found that, "there is sufficient evidence to conclude beyond reasonable doubt, that [that] was the purpose for which it was kept". [4] 15. There was evidence to support the conclusion that the significant quantity of cannabis plant which had been retained (some 48kg) was retained for that purpose. The amount itself was significant. As the sentencing judge noted, 63 grams of cannabis resin was found at the applicant's residence and he had pleaded guilty to the supply of that amount. Further, it would be wrong to ignore the circumstances in which the drugs were seized. The total weight of the cannabis plant was in the order of 100kg, the applicant had more than $12,000 in cash in his possession, and the operation involved numerous participants, together with a hydroponic system for growing the plants from cuttings. The judge had described the operation as follows: [5] "In terms of the more serious offences that each offender faces, that is the enhanced indoor cultivation of cannabis and the supplying of commercial quantity of cannabis, these two offenders were the principals, or organisers, of that enterprise. By the time the police arrived at the door, they had a streamlined, sophisticated system. They were in business akin to a factory production of growing cannabis and packaging and distributing it at a wholesale level." 1. While it is true that the agreed facts did not indicate that any equipment was found for the extraction of cannabis resin from the plants, that omission did not prevent the satisfaction of the sentencing judge as to the purpose for which the plants were kept. There was no other purpose identified either in the facts or the evidence. It was open to the sentencing judge to be satisfied, at the criminal standard, that the significant quantity of cannabis plant was being kept for that purpose. 2. Counsel for the offenders was conscious of the issue at the sentencing hearing. His written submission (there were no relevant oral submissions) stated: [6] "The total cannabis seized was 97.8kg, 48kg of which was saleable, the remainder of which may be used in the production of resin. Mr Chaloner and Mr Gumbleton instruct that the non-saleable cannabis was to be discarded." 1. The use of the term "instruct" properly acknowledged that there was no evidence to support that proposition; further, the submission conceded the potential value of the product, but did not suggest any other valuable use. The sentencing judge was entitled to reject this submission as implausible and inadequate to raise a reasonable doubt as to the purpose for which the material was retained. There was no procedural unfairness in drawing the obvious inference from the agreed fact. 2. Finally, ground 1, in slightly different terms to the principal submission, complained that there was "no reliable information about how much resin could be made or the value of any resin product". Both propositions were true; however, the sentencing judge made no finding in respect of either. 3. No error has been identified in the terms of grounds 1 and 2. 4. There being no reliance placed on the variation in the weights of the cannabis found at the separate premises, there is no need to interfere with the putative individual sentences indicated by the sentencing judge, which are adopted for the purpose of resentencing of this offender to an aggregate sentence. 5. The Court makes the following orders: 1. Grant leave to appeal with respect to the aggregate sentence imposed on the applicant in the District Court on 2 March 2017. 2. Quash the sentence imposed by the District Court. 3. Sentence the applicant to imprisonment for an aggregate term of 5 years 3 months with a non-parole period of 3 years 3 months, to date from 20 December 2016. 4. The applicant will be eligible for release on parole on 19 March 2020. 1. ROTHMAN J: I agree with the orders proposed by the presiding judge and with the reasons he has given. 2. GARLING J: I also agree. ********** Endnotes 1. Kay v R; Ellis v R [2017] NSWCCA 218. 2. Gumbleton v R [2017] NSWCCA 314. 3. See, for example, Lin v R [2018] NSWCCA 13 and Tarrant v R [2018] NSWCCA 21 at [3]-[4]. 4. Sentencing judgment, 2 March 2017, p 5. 5. Sentencing judgment, 2 March 2017, p 8. 6. Defendants' written submissions on sentence, par 5. 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. Decision last updated: 09 April 2018