Burrows v R

Background

1. The applicant was involved in a serious motor vehicle accident on 18 March 2019, following which police attended his residence due to concerns they had about the welfare of his young son. Police observed what they believed to be "a hydroponic set up" inside a back room of the house. Police applied for and were granted a search warrant which was executed on the following day. Police located 39 cannabis plants growing outside the premises, between 100cm and 220cm high, surrounded by numerous gardening tools, fertilisers and potting mix. Those plants gave rise to the first count.
2. Police also located an indoor hydroponic cultivation tent inside the back room of the applicant's house. It had power cords entering it from both sides. Some 80 cannabis plants were located inside the tent; all were approximately 20cm in height. There were an additional two plants which were 60-90cm in height. All 82 plants had active root systems and leaf. They were located under an operating heat lamp and nurtured by nutrient enriched water facilitated by an irrigation system. An automatic track system which could be used to run an automatic lighting system running across the entire width of the room was also located.
3. Police also found potting mix, numerous growing agents, lights, exhaust fans, energy transformers and heating mantels in the premises, as well as a book "Indoor Marijuana Horticulture" in the kitchen cupboard with bookmarks located marking various stages of the growing process. The applicant in an electronically recorded interview admitted to owning the book, and to cultivating the cannabis plants within the indoor hydroponic cultivation tent by enhanced indoor means.
4. Police also located 5.395kg of dried cannabis leaf, a large amount of which was located on a drying rack or on a bed inside a bedroom. The indictable quantity of cannabis leaf is 1,000 grams.
5. Police also located a plastic bag concealed in the applicant's oven containing $8,450 in cash made up of $50 and $100 notes. The cash was located inside a zip lock bag, and some was bundled together by a band.
6. Finally, the police located two Berocca tubes in the offender's kitchen containing cannabis seeds amounting to 10 grams. In his electronically recorded interview, the applicant admitted to owning those seeds. He also admitted to cultivating the cannabis plants surrounding his property saying that he would use potassium or a bit of magnesium to "boost them a bit, you know, make em stronger".
7. Some further evidence was elicited from the applicant, both in chief and in cross-examination, during the hearing, but it is convenient to defer summarising that until addressing the proposed grounds of appeal.

The sentence imposed by the District Court

1. In his remarks on sentence, delivered orally immediately after the hearing on 1 February 2021, his Honour assessed each count on the indictment as being "below the mid-range of objective seriousness", adding that: "having regard to the quantity of plants and the obvious forethought involved in their cultivation, I don't assess those as at the low end of the range of seriousness".
2. Proposed ground 1 of the appeal does not challenge the assessment of objective seriousness. Instead, the applicant contends that the primary judge erred in three aspects of his reasoning leading to that conclusion. Those three aspects were said to be that: 1. it was an error to find beyond reasonable doubt that the cash found in the oven was the proceeds of the other crimes for sentence; 2. there was error in assessing the financial evidence, and 3. there was error in fixing sentence relevant to what was found to be a "cottage industry" of cannabis cultivation and supply, rather than focussing on the specific offences for sentence.
3. It was said that if error were established in relation to those matters, all of which directly informed the assessment of objective seriousness, material error would be made out. The Crown did not submit to the contrary.
4. All three aspects of this proposed ground relate to the following passage in his Honour's reasons, which is best reproduced in full: "Looked at globally, the offending represents a relatively small, moderately well organised cottage industry of cannabis cultivation conducted both indoors and outdoors for in my opinion profit. I say profit in spite of the offender's evidence that all of this was for his own personal use; this was evidence that he gave on oath before me. He said the purpose of cultivating both the indoor quantity and the outdoor quantity was to provide him with enough cannabis to last him for one to two years on the basis that at that stage he was smoking large quantities of it as set out in a report [by] Dr Furst. He was cross-examined concerning certain information that he had provided to police concerning his financial situation. He had a mortgage of $360 per month, he had a credit card with $14,000 owing on it which he had to pay off at the rate of $200 per month. He was consuming $50 to $100 per week of alcohol, there was an electricity bill of $1,500 per quarter and by the time Madam Crown had finally established through cross-examination what Mr Burrows' outgoings were for the week concerning rates and electricity (which amounted to some $475 per week) it became fairly clear that he was not earning [an] amount of money which would have covered his weekly expenses. There was some reference to an inheritance and there was some reference to some money he had acquired as a result of his twenty-five years in the construction industry but I am satisfied that the true explanation for the nature of the indoor cultivation of cannabis which, as I have already indicated, the indictment alleges was not less than the commercial quantity, was because he was engaged in a small commercial enterprise. I do not accept his evidence that the $8000 odd that was in the oven came from cash in hand for his business which he had failed to declare to the [ATO] and therefore, was guilty of the offence of tax evasion; I am satisfied the money was as a result of his cultivation. In short, as I have said, I am simply unpersuaded about the truthfulness of what he had to say concerning this all being all for his own personal use."
5. His Honour then turned to the applicant's subjective case. Importantly, he had been convicted for cultivating cannabis at the same premises in 2014. On that occasion he was placed on a s 9 bond for two years. His Honour recorded that at that stage he was growing some 66 cannabis plants in pots, which were around 1 metre in height and were estimated by police at the time to be valued at some $132,000. The primary judge observed that whether or not that was accurate was beside the point but that "[w]hat is important is that the offender was made aware, at least back at that time, about the valuable nature of the enterprise in which he was then engaged and which I consider that he was engaged in on this occasion with, as I have said, that knowledge as to the potential value of such a crop." His Honour stated that that called for a sentence which reflected the need for specific deterrence.
6. By reference to medical and psychiatric reports, the sentencing judge referred to the motor vehicle accident on the previous day, as a result of which the applicant suffered a traumatic brain injury, fractured ribs, a hemothorax, facial laceration, rotator cuff tear, and an injury to the spinal area between L1 and L4. The motor vehicle accident happened in circumstances where he had been consuming cannabis throughout the day and alcohol resulting in a blood alcohol reading of 0.10. By the time sentence was imposed for the cultivation offences, the applicant had been sentenced in the Lismore Local Court and had been placed on an 18 month intensive corrections order, which had been completed, apparently without further incident.
7. The sentencing judge referred to the ongoing rehabilitation for the traumatic brain injury, which seemed to have caused a reduction in his consumption of alcohol and cannabis, and the sentencing judge recorded that he had recently made an appointment to attend a rehabilitation facility.
8. The sentencing judge summarised the psychiatric evidence which contained a history of the applicant's drug use in Europe in 1990, and otherwise a relatively unremarkable upbringing, working as a wood machinist, yardman and forklift driver for many years. After working as a land developer he commenced a lawn mowing business in 2013. The applicant and his long time partner separated in May 2014, and that led to a rise in his use of cannabis and alcohol. The applicant told the psychiatrist that it was the cost of cannabis and his addiction to that drug that led him to cultivate it. The sentencing judge accepted that that may have been the impulse behind the initial idea to cultivate, but added "in my view that does not, to my mind, fully explain what I regard as the commercial nature of his activities." His Honour accepted the evidence that there was a low to moderate risk of recidivism, based on his longstanding use of the drug and his continued, albeit moderated, use of the drug.
9. His Honour then recorded that counsel then appearing for the applicant had appreciated that the offending was too serious to make an intensive correction order appropriate, as had been her original submission. His Honour had stated at the outset that the indicative sentences attracted a 25% discount for the applicant's prompt plea of guilt.

Ground 1 - errors in assessing objective seriousness

1. Ground 1 was said to be the principal ground, and the principal aspect of this ground concerned the $8,450 in $50 and $100 banknotes found in the zip lock bag in the applicant's oven.
2. The applicant gave evidence before the sentencing judge that the $8,450 was not money from the sale of drugs, but rather was money obtained from clients of his lawn mowing business on which he had not paid tax. His claim was that he was not selling any of the cannabis he had been cultivating, but it was instead all for his personal use. The primary judge rejected that evidence.
3. No issue was taken on appeal with his Honour's rejection of this claim. It was for the applicant to make out those matters, to the civil standard, and the primary judge had the benefit of seeing the applicant giving evidence and being tested on it. Even though the applicant was confessing to a federal taxation offence, it was common ground that acceptance of his evidence would have amounted to a mitigating factor in respect of the cultivation offences to which he had pleaded guilty and for which he was to be sentenced, and therefore had to be established by him to the civil standard.
4. However, the applicant submitted that insofar as the primary judge positively found that the cash found in the oven was the proceeds of the sale of cannabis, thereby contributing to the conclusion that there was a "moderately well organised cottage industry" and a "small commercial enterprise" rather than the cultivation for personal use, his Honour had to be satisfied beyond reasonable doubt, consistently with R v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
5. The applicant observed that the guilty plea was for possession of money which was the proceeds of crime, but that the offence had not been particularised, and it could not be inferred from admission of guilt which was inherent in taking that offending into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act that the crime in respect of which the $8,450 was the proceeds was the cultivation of cannabis.
6. A deal of time was consumed both before the sentencing judge and in this Court concerning the financial position of the applicant. He was cross-examined as to his income and expenditure, with a view to establishing that the $8,450 could not be undeclared income from the lawn-mowing business. It was put that the judge's reasoning reproduced above was insufficient to conclude, beyond reasonable doubt, that the $8,450 was the proceeds of sale of cannabis. It was said that the sentencing judge had failed to have sufficient regard to the credit card debt of $14,000. That debt was consistent, so it was said, with the applicant's cashflow running at a loss, which in turn told against the commercial sale of the cannabis.
7. It was also put that there was error in fixing a sentence relevant to what was found to be a "cottage industry" of cannabis cultivation and supply, rather than focussing on the specific offences for sentence. The applicant emphasised the vagueness and unhelpfulness of that term.
8. I accept the correctness of the applicant's submissions about what flowed from taking into account the proceeds of crime offence. As the applicant submitted, the acknowledgement of guilt to the proceeds of crime offence on the Form 1 did not carry with it an acknowledgement that the $50 and $100 bills in the zip lock bag found in the oven represented the proceeds of the sale of cannabis.
9. The Crown appeared to accept the next step in the applicant's submissions, namely, that if it were to be used as an aggravating factor in imposing sentence, then the Crown had to establish to the criminal standard that the banknotes represented the proceeds of sale of cannabis. The correctness of that approach was queried by Rothman J during the hearing, on the basis that the provenance of the banknotes was but one piece of evidence which contributed to the conclusion that the applicant's cannabis cultivation was not solely for personal use but had a commercial component.
10. In Shepherd v The Queen (1990) 170 CLR 573 at 579-580; [1990] HCA 56, Dawson J invoked Wigmore's metaphor of whether evidence of intermediate facts on which ultimate facts turned constituted "indispensable links in a chain of reasoning" or rather "strands in a cable". I am inclined to doubt that identifying the banknotes as the proceeds of the sale of cannabis was necessary to a conclusion that the applicant was selling at least some of his crop. That is to say, the provenance of the banknotes was not an indispensable link in a chain of circumstantial reasoning, but rather a piece of evidence supportive of the conclusion. One approach is to apply the test stated by Simpson J in R v Davidson (2009) 75 NSWLR 150; [2009] NSWCCA 150 at [74]: "Whether a fact on which the Crown relies as part of a circumstantial case is or is not 'indispensable' may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not 'indispensable'. Where the answer is in the negative, the fact is 'indispensable' and the jury should be directed accordingly."
11. Applying that approach, I incline to the view that a conclusion could be reached to the criminal standard that the applicant was selling cannabis for profit even if it were not established that the $8,450 was the proceeds of the sale of cannabis. But it is not necessary to take this inquiry any further. In light of the Crown's approach, let it be assumed, favourably to the applicant, that it was necessary for the sentencing judge to be satisfied to the criminal standard, both of the fact that the $8,450 represented proceeds of sale of cannabis (as opposed to some other crime) and that the applicant was selling at least some of the cannabis he was cultivating. Even so, I do not accept that there is any substance in this ground. To the contrary, it was well open to the primary judge to find beyond reasonable doubt that the cash in the oven was the proceeds of cultivation. The following considerations are to be borne in mind. 1. First, the number of plants cultivated by the applicant in the indoor hydroponic cultivation tent were a commercial quantity. Indeed they were substantially more (82 as opposed to 50) than a commercial quantity. To those 82 plants being grown indoors in the specialised tent must be added the 39 advanced plants growing outside. The idea that the 121 plants were grown merely for the use by a single person is highly improbable, to say the least. 2. Secondly, the equipment found at the premises (including the automatic lighting and irrigation system) demonstrated at the least a modest degree of sophistication. 3. Thirdly, the applicant agreed in cross-examination that when police executed the search warrant, they found electricity bills, for the most recent quarter, of some $1,500, representing usage in that period rather than outstanding bills, and that his bills for the last 8 months had totalled around three times that amount. That is a very substantial ongoing expense for an applicant who had limited means and lived otherwise very frugally. 4. Fourthly, the applicant admitted his guilt to the possession of 5.395 kilograms of dried cannabis leaf for the purpose of supply. While "supply" is broadly defined, and not all of the cannabis that is supplied is necessarily sold for profit, that admitted offending powerfully tells against the alternative hypothesis that the entirety of the applicant's crop was for personal consumption. 5. Fifthly, located in the applicant's premises were scales and an envelope with the applicant's handwriting on it. The applicant accepted that the handwriting was his but added "it's got nothing to do with, I don't sell it so I don't know what". The cross-examiner took the matter no further, and there was no re-examination. The handwriting includes three sums: 1. the addition of 4,000, 1,000 and 935 to yield 5,935; 2. the addition of 267 and 160 to yield 427, under which was written "Ezza", and 3. the subtraction of 815 from 1250, to which was then added 500, yielding 935. Concerning the reference to "Ezza", the applicant was asked: "Q. So Mr Burrows what are those writings there concerning apparently by the name Ezza or something by the name of Ezza? A. I don't know what it is really." It may readily be seen that the applicant's handwriting might relate to the prices for quantities of cannabis. It is difficult to see how they might relate to a lawn-mowing business with (according to the applicant's evidence) around 11 clients. The amounts of 5,935, 427 and 935 add to 7,297, which if it represents an amount of money is only around $1,000 less than the cash found in the applicant's oven. 1. Finally, the applicant had previously grown cannabis said to be valued at $132,000.
12. The fact that the applicant had a credit card debt of $14,000 does not detract from the conclusions that some of the cannabis was being sold and some of the proceeds of sale were represented by the bank notes in the applicant's oven. The applicant submitted that the sentencing judge failed to consider the possibility that the credit card debt represented the result of the applicant's living for some extended period of time beyond his means, consistently with him not selling cannabis for profit. It is certainly possible that the credit card debt reflects an accumulation of ordinary living expenses. It is also possible that it reflects the cost of the materials to sustain the cannabis cultivation, or a combination of living expenses and other expenses. But those possibilities, which are not of themselves especially probative of whether the cannabis was sold for profit and whether the banknotes represented the proceeds of its sale, do not detract from the force of the considerations summarised in the previous paragraph.
13. For all those reasons, it was amply open to find, to the criminal standard, that this was not a case of cultivation only for personal use, but included an element of sale for profit, which was fairly described as a "small cottage industry" or a "small commercial enterprise".
14. Although the applicant was critical of the sentencing judge for characterising the offending as a "small cottage industry", his Honour was required to address the applicant's case that he sold none of the commercial quantity of cannabis he admitted to growing, nor the dried cannabis which he admitted to supplying, and that the $8,450 in cash found in the oven was the proceeds of separate criminality, and the Crown case that some of the cannabis was being sold. Although everything that could be said to challenge the reasoning process was said, I see no error in the sentencing judge concluding that some of the cannabis was being sold, such that it might fairly be described as a "small cottage industry" or a "small commercial enterprise".
15. While there should be a grant of leave, this ground is not made out.

Ground 2 - manifest excess

1. The principal focus of the applicant's submissions on this ground was the indicative sentence for the first count. The very large majority of sentences imposed for cultivating an indictable quantity which is less than a commercial quantity of cannabis are imposed by the Local Court, and the indicative sentence of 18 months is, according to statistics collected by JIRS, very high. In oral submissions, counsel submitted, correctly, that the 18 months was higher than any sentence imposed for a s 23(1)(a) offence by the Local Court in the period from 24 September 2018 (when new community correction orders were introduced) to March 2021. Of course, the applicant, for good reason, was not sentenced in the Local Court. It may readily be inferred that because of the indoor cultivation of a commercial quantity offence, and perhaps also because of the prior offending, the offence giving rise to count 1 proceeded in the District Court. But even so, the indicative sentence is also higher than the only full-time custodial sentence (of 12 months) imposed by the District Court in that time period, during which there were 16 cases.
2. But no appeal lies from an indicative sentence. The question is whether the actual sentence, namely, an aggregate sentence of full-time imprisonment for 3 years and 6 months with a non-parole period of 20 months, for the entirety of the offending including that taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act was manifestly excessive.
3. The largest contributor by far to that aggregate sentence was the second count. The second count was the much more serious count of cultivating a commercial quantity of cannabis, carrying a maximum penalty of 15 years imprisonment. Taken into account in sentencing for that offence were two further offences, themselves serious. Still further, it must be borne in mind that this was the second offence of cultivation of which the applicant had been convicted, and that his consumption of cannabis was squarely linked to the serious offending which had itself led to police investigating his property. Still further, there was a finding of special circumstances and what on any view is an extremely generous adjustment of the ratio between the non-parole period and the balance of term, such that the non-parole period comprises some 48% of the total term, rather than the default position of 75%.
4. Even if the first count were put entirely to one side, a sentence of imprisonment of 3½ years for an offence of cultivating a commercial quantity of cannabis, and also incorporating sentences for the supply of some 5kg of dried cannabis and the proceeds of sale, in circumstances which involved moderate sophistication and at least some commercial gain, and where there was a need for specific deterrence because the offender had a previous conviction for the same offence, is not manifestly excessive, notwithstanding the guilty plea and the applicant's subjective case.
5. Further, and bearing in mind the limitations of sentencing statistics, but focussing merely upon the cultivation of a commercial quantity count, the 104 cases for which sentence was imposed in "NSW Higher Courts" between 24 September 2018 and 31 March 2021 include 8 for which a sentence in excess of 3 years was imposed, as well as 14 for which a sentence of 3 years (or, to be strictly accurate, a sentence between 31 and 36 months) was imposed.
6. Another way of putting this is, as the Crown submitted, that some 21% of persons sentenced in NSW Higher Courts for offending contrary to s 23(2)(a) since 24 September 2018 received sentences of imprisonment for 3 years or more. It is very likely that most of those had pleaded guilty, like the applicant, however, it is much less probable that the sentences took into account the other serious offending which was incorporated within the sentence imposed on the applicant.
7. In his written submissions, the applicant pointed to three particular cases: R v Roberts [2011] NSWDC 212, Crowley v R [2017] NSWCCA 99 and Kresovic v R [2018] NSWCCA 37. As the Crown submitted, it is difficult by pointing to particular examples to establish a ground of manifest excess. Further, none of those three instances was a case of an offender who had previously been found guilty of a cultivation offence, for whom considerations of specific deterrence were at the forefront.
8. For those reasons, the actual sentence of 42 months with a non-parole period of 20 months, bearing in mind the Form 1 offending, is not manifestly excessive.
9. It is not necessary to rely upon this, but that conclusion is confirmed by what occurred at the hearing. Prior to imposing sentence, his Honour had in fact indicated his inclination: "Look what I'm inclined to [do] Ms Anderson is an aggregate sentence of three years and six months. He's got outdoor and indoor plus those other matters on the form 1. You can take it that I'm not persuaded on the balance of probabilities that all of this was for his own personal use at all, but whilst I have settled upon what I think is an appropriate aggregate sentence of three years and six months I'm going to be somewhat generous in the finding of special circumstances in that the non-parole period will come in at 20 months which is actually less than 50% of the aggregate head sentence of three years and six months."
10. No submission was made that such a sentence would be manifestly excessive. To the contrary, counsel then appearing for the applicant said "Your Honour I think that's right".
11. Again, while there should be a grant of leave, this ground is not made out.

Orders

1. For those reasons, I propose the following orders:
2. Extend the time for filing a notice of appeal to 1 September 2021.
3. Grant leave to appeal.
4. Appeal dismissed.
5. ROTHMAN J: I agree with Leeming JA.
6. HARRISON J: I agree with Leeming JA.

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