Beveridge v R

Subjective Features 8The sentencing judge found that the applicant at the time of sentencing was 39 years old, that he had been in a stable relationship for ten years with a woman by whom he had two children, that he had worked in various occupations, that he was generally of good character and that he was unlikely to re-offend.

The Sentencing of the Applicant 9The sentencing judge sentenced the applicant, and this application for leave to appeal was heard, before the recent decision of the High Court in Muldrock v The Queen [2011] HCA 39 in which the High Court held that R v Way [2004] NSWCCA 131; 60 NSWLR 168 had been wrongly decided. 10Applying the law as it had been stated in Way and subsequent New South Wales cases based on Way , the sentencing judge said that the standard non-parole period remained as a guide, even though the applicant had pleaded guilty, and made a finding that the present case fell below the mid-range of objective seriousness. 11The sentencing judge decided that an appropriate starting point for a head sentence was eight years and that this starting point should be discounted by 25 per cent because of the early plea of guilty. His Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act, in that the applicant had not previously been sentenced to any term of imprisonment and had good prospects of rehabilitation.

The Appeal 12The applicant relied on two grounds of appeal against sentence, which were:-

1. The learned sentencing judge erred in failing to properly identify where, on any given scale of objective seriousness, the offence fell and erred in imposing a sentence which reflected a degree of objective seriousness greater than that which was in evidence.
2. The sentence imposed was manifestly excessive. I will consider these grounds of appeal in turn.
3. The sentencing judge erred in failing to properly identify where, on any given scale of objective seriousness, the offence fell and erred in imposing a sentence which reflected a degree of objective seriousness greater than that which was in evidence. 13Relying on Way and subsequent New South Wales cases based on Way , counsel for the applicant submitted that, even though the applicant had pleaded guilty, the standard non-parole period remained as a reference point or guide post and the sentencing judge was required to find where the applicant's offence lay on the range of objective seriousness for the offence ( Vu v R [2006] NSWCCA 188 especially at [32] and [33]). 14The only finding which the sentencing judge had made about the level of objective seriousness of the applicant's offence was the finding I have already referred to, that the applicant's offence fell below the mid range of objective seriousness. It was submitted by counsel for the applicant that this finding did not comply, or at least did not fully comply, with what had been held to be the obligation of a sentencing judge in assessing the level of objective seriousness of an offence for which there is a standard non-parole period. 15It had been held by this Court in cases following Way that it was not sufficient for a sentencing judge merely to find that an offence fell above or below the middle of the range of objective seriousness; it was necessary for the sentencing judge to specify the extent or degree to which the particular offence departed from a notional offence in the middle of the range of objective seriousness. Counsel referred to R v Sellars [2010] NSWCCA 133 at [11] per McClellan CJ at CL and the cases there cited. In R v McEvoy [2010] NSWCCA 110 it was held that, when a sentencing judge decided that an offence fell below the middle of the range, the sentencing judge should find whether the offence fell substantially, significantly or only slightly, below a notional mid-range offence. 16Counsel for the Crown on the present application did not really dispute that the sentencing judge had erred in the way contended for by counsel for the applicant. However, it was submitted by the Crown that the sentencing judge's error was merely an error of process and did not of itself lead to a conclusion that the sentence imposed by the sentencing judge should be set aside as erroneous. 17If the law as stated prior to Muldrock were to be applied, then I would have held that the sentencing judge had erred but that his error was merely an error of process. An error by a sentencing judge in not specifying the extent or degree to which an offence departed from the middle of the range had been characterised as an error of process ( McEvoy at [89]; (Sellars at [11]). Such an error of process did not of itself lead to a conclusion that the sentence ultimately imposed was erroneous (M cEvoy at [89]; Sellars at [13]). It was still necessary to determine whether the sentence as ultimately imposed was manifestly excessive or manifestly inadequate. However, when a sentencing judge did not identify where an offence fell in the range of objective seriousness, there was an increased possibility that the exercise of the sentencing discretion might have miscarried ( Sellars at [13]). 18As indicated earlier in this judgment the High Court held in Muldrock that Way had been wrongly decided. The present application is not a suitable vehicle for a close examination of the decision of the High Court in Muldrock . However, it can be said with confidence that the first ground of appeal could not succeed, if the law as stated in Muldrock is applied. Indeed, the whole basis on which the first ground of appeal was founded has been undermined by the judgment of the High Court in Muldrock . Cases such as Sellars and McEvoy on which counsel for the applicant relied were based on Way . There is no suggestion in Muldrock that a sentencing judge is required to specify with precision the degree to which the objective seriousness of a particular offence departs from the objective seriousness of a notional mid-range offence.
4. The sentence imposed was manifestly excessive. 19Counsel for the applicant submitted that what it was established the applicant had done in the cultivation of the plants was more important in the sentencing of the applicant than was the fairly large number of plants in the plantation, Counsel cited R v Olbrich (1999) 199 CLR 270 at 280 [21]. All that it was established the applicant had done in the cultivation of the plants was that, on one day only, he had been at the site of the plantation and had watered and attended the plants. Counsel for the applicant also referred to the sentencing judge's findings that the applicant did not know how many plants there were in the plantation and that the applicant's knowledge of the cultivation was less than that of the co-offender Gordon-Smith. 20It was submitted by counsel for the applicant that, given the applicant's limited participation in the cultivation and his limited knowledge of the cultivation, the sentence imposed on the applicant was manifestly excessive. 21Both counsel for the applicant and counsel for the Crown referred to the decision of the Court of Criminal Appeal in R v Green and Quinn [2010] NSWCCA 313 and particularly to the schedule to the judgment of R S Hulme J in which his Honour summarised a number of previous decisions of the Court of Criminal Appeal on appeals against sentences for cultivating not less than a large commercial quantity of cannabis plants. 22In Green and Quinn the Crown appealed against the sentences which had been imposed on the respondents to the Crown appeal for cultivating not less than a large commercial quantity of cannabis plants. Complicating factors on the Crown appeal were that the Crown had not appealed against a lenient sentence which had earlier been imposed on a co-offender and that to allow the Crown appeal and re-sentence Green and Quinn might create a disparity with the sentence passed on the co-offender. The Crown appeal was allowed against both respondents by a majority of the five-judge bench and the two respondents were re-sentenced. The leading judgment for the majority of the Court of Criminal Appeal was the judgment of RS Hulme J. 23Subsequently, the High Court granted special leave to appeal on limited grounds relating to the creation of disparity with the sentence on the co-offender. On 3 August 2011 the High Court allowed the appeal, restoring the sentences which had been imposed by the original sentencing judge. No formal judgment has yet been published by the High Court. 24In these circumstances, it would be difficult for this Court to place reliance on certain parts of the judgment of R S Hulme J in the Court of Criminal Appeal or to regard any of the sentences imposed in Green and Quinn as affording clear guidance to whether the applicant's second ground of appeal should be allowed. However, it appears to me unlikely that the High Court's formal reasons when published will affect any of the summaries in the schedule to RS Hulme J's judgment or the comments in his Honour's judgment about those summaries. 25A comparison of the sentences in the cases summarised in the schedule to his Honour's judgment with the sentence imposed on the present applicant would certainly suggest that the sentence imposed on the applicant was a heavy one. However, I would accept as valid the comments about those sentences made by RS Hulme J at paragraphs [93] - [95] of his judgment. In these paragraphs of his judgment his Honour made the points, that many of the decisions summarised in the schedule were decisions on Crown appeals and, furthermore, had been given prior to the passing of the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 and that all the decisions had been given before the standard non-parole period for the offence was introduced. 26In paragraph [94] of his judgment his Honour said about the introduction of a standard non-parole period:- "When regard is had to the fact that the Judicial Commission statistics show that of 39 offenders sentenced between January 2002 and December 2008 and to whom the standard non-parole period did not apply, for cultivation of a large commercial quantity of cannabis plants, the highest sentence imposed was for a full term of 6 years (imposed on 4 offenders) and the mean sentence was 3 years (imposed on 10 offenders), it is clear that Parliament intended that sentences for the offence should increase. I do not of course ignore that the sentences reflected in the statistics will have been after discounts and other matters had been taken into account but the difference between the standard non-parole period and the statistics is too great to be accounted for solely by such matters. It was contemplated in R v Way (2004) 60 NSWLR 168 at [132] et seq. that such an increase might well be a consequence of the introduction of the standard non-parole periods." 27In Muldrock the High Court recognised that the introduction of a standard non-parole period for an offence might have the effect of increasing non-parole periods in sentences for the offence. At para [31] of the judgment the High Court said:- "It may be, as the Court of Criminal Appeal observed in Way , that for some Div 1A offences there will be a move upwards in the length of the non-parole period as a result of the introduction of the standard non-parole period. This is the likely outcome of adding the court's awareness of the standard non-parole period to the various considerations bearing on the determination of the appropriate sentence..." 28Applying what was said by the High Court in Muldrock , I would agree with RS Hulme J's conclusion that the introduction of the standard non-parole period of ten years for the present offence indicates that Parliament intended that sentences for the offence should increase. 29In my opinion, when regard is had to the maximum sentence of 20 years and to the standard non-parole period of ten years, which under Muldrock (para [27] of the judgment) are two legislative guideposts, it is not possible to say that the sentence passed on the applicant was unreasonable or plainly unjust. The second ground of appeal should be rejected. 30I concluded that, while leave to appeal should be granted, the appeal against sentence should be dismissed. 31HOEBEN J : I agree with James J.

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