Casella v R

Court of Criminal Appeal (NSW)|2019-06-21|Before: Bathurst CJ, Beech-Jones J, Adams J

HEADNOTE [This headnote is not to be read as part of the judgment] Marcello Nello Casella (the applicant) pleaded guilty to a charge of concealing a serious indictable offence contrary to s 316(1) of the Crimes Act 1900 (NSW). The charge concerned the applicant knowing that Luigi Fato, Hank Pickett, Gary Vyse, Andre Turner and Malcolm Howarth had committed a serious indictable offence and knowing that he had information which might be of material assistance in securing the prosecution of those individuals, did fail without reasonable excuse to bring that information to the attention of a member of the police force or other appropriate authority. The serious indictable offence the subject of the count was in the cases of Mr Fato, Mr Pickett and Mr Vyse, the offence of cultivating a large commercial quantity of a prohibited plant, namely cannabis and in the case of Mr Turner and Mr Malcolm Howarth, the offence of cultivating a commercial quantity of a prohibited plant, namely cannabis. The applicant was sentenced to a term of full-time imprisonment for a period of 8 months with a non-parole period of 6 months. The applicant appealed against his sentence. There were four main issues on appeal. First, whether the applicant was denied procedural fairness during the sentencing proceedings on the issue of alternatives to full-time imprisonment. Second, whether the sentencing judge erred in failing to appropriately consider alternatives to full-time imprisonment. Third, whether the sentence imposed on the applicant was manifestly excessive. The final issue was whether in resentencing the applicant, an Intensive Correction Order was appropriate. Denial of procedural fairness 1. There was no denial of procedural fairness to the applicant during the sentencing proceedings on the issue of whether alternatives to full-time imprisonment were raised. The Crown in the Court below did not conduct the case on the basis that the question of a custodial sentence was not in issue. Senior Counsel for the applicant in the Court below made submissions both in chief and in reply that recognised the possibility of a custodial sentence: [48]-[53] (Bathurst CJ); [103] (Beech-Jones J); [109] (N Adams J). Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6; Pantorno v The Queen (1989) 166 CLR 466 at 473; [1989] HCA 18; Tweedie v R [2015] NSWCCA 71; Dang v R [2014] NSWCCA 47; R v Dennis [2015] NSWCCA 297 referred to. 1. There was no denial of procedural fairness to the applicant during the sentencing proceedings on the issue of whether the sentencing judge had suggested that he was considering a custodial sentence. A custodial sentence was treated as being an issue in the submissions and the sentencing judge said nothing to disabuse counsel of that fact. Further, the sentencing judge was under no obligation to disclose any preliminary views he may have had as to the appropriate sentence: [54]-[56] (Bathurst CJ); [103] (Beech-Jones J); [109] (N Adams J). Failure to consider alternatives to full-time imprisonment 1. The sentencing judge did not err in failing to consider alternatives to full-time imprisonment. The sentencing judge at least mechanically complied with the relevant requirements by stating, consistent with s 5 Crimes (Sentencing Procedure) Act 1999 (NSW), that having considered all possible alternatives, no penalty other than imprisonment was appropriate. The sentencing judge then considered the appropriate term of imprisonment to be imposed and stated that he had considered alternatives to full-time custody: [62]-[65] (Bathurst CJ); [103] (Beech-Jones J); [109] (N Adams J). Paul Campbell (a pseudonym) v R [2018] NSWCCA 87 discussed. Douar v R [2005] NSWCCA 455; Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 referred to. Manifest excess 1. Absent consideration of the manner in which the sentence is to be served, a sentence of 8 months imprisonment after a 20% discount for the applicant's plea, whilst severe, could not be said to be manifestly excessive. The concealed offences were serious ones involving cultivation of a prohibited plant in substantial amounts. The sentencing judge was entitled to conclude that the threshold requirement in s 5 Crimes (Sentencing Procedure) Act 1999 (NSW) had been reached: [80]-[88] (Bathurst CJ); [103] (Beech-Jones J); [109] (N Adams J). Hughes v R [2018] NSWCCA 2 referred to. 1. A sentence of 8 months to be served by way of full-time custody was manifestly excessive by virtue of the fact that it was ordered to be served by way of full-time custody. First, a sentence of 8 months imprisonment after a 20% discount was severe having regard to the fact that the maximum penalty for the offence at the time was 2 years. Second, little weight should be placed on the need for personal deterrence arising from the applicant's prior convictions in 1995. Third, the applicant's subjective case including his substantial contributions to the community and poor state of health should not be underestimated. Fourth, the applicant's sentence "sits uncomfortably" with the sentences imposed on Mr Vyse, Mr Malcolm Howarth and Mr Barry Howarth: [89]-[94] (Bathurst CJ); [103] (Beech-Jones J); [109] (N Adams J). Intensive Correction Order 1. In resentencing the applicant, the Court found that it was appropriate that the applicant was resentenced to a term of imprisonment of 6 months to be served by way of an Intensive Correction Order. An Intensive Correction Order gives effect to s 66 Crimes (Sentencing Procedure) Act 1999 (NSW): [95]-[100] (Bathurst CJ); [103]-[108] (Beech-Jones J); [109]-[111] (N Adams J). R v Fangaloka [2019] NSWCCA 173 considered.

Judgment

BATHURST CJ: The applicant, Marcello Nello Casella (the applicant) pleaded guilty to the following offence: "Between 9 January 2014 and 22 September 2014, at Griffith in the State of New South Wales, knowing that Luigi Fato, Hank Pickett, Gary Vyse, Andre Turner and Malcolm Howarth had committed a serious indictable offence and knowing that he had information which might be of material assistance in securing the prosecution of Luigi Fato, Hank Pickett, Gary Vyse, Andrew Turner and Malcolm Howarth, did fail without reasonable excuse to bring that information to the attention of a member of the police force or other appropriate authority."
The offence involved a contravention of s 316(1) of the Crimes Act 1900 (NSW). That subsection as it stood at the time of the offence was in the following terms: "316 Concealing serious indictable offence (1) If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years."
The serious indictable offence the subject of the count was in the case of Messrs Fato, Pickett and Vyse, the offence of cultivating a large commercial quantity of a prohibited plant, namely cannabis. The offence carried a maximum penalty of 20 years imprisonment and a 10 year standard non-parole period (Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act) s 23(2)(a), s 33(3)(b)). In the case of Messrs Turner and M Howarth, the offence was cultivating a commercial quantity of a prohibited plant which carried a maximum penalty of 15 years imprisonment (DMT Act s 23(2), s 33(2)(b)). For convenience, I will describe the offences as the concealed offences.
The applicant was initially committed for trial on two counts, namely a count of cultivating not less than the commercial quantity of a prohibited plant and second, a count of participating in a criminal group. The trial on the former count commenced on 16 May 2018 but on 25 June 2018, the offender was rearraigned and pleaded guilty to the charge to which I have referred above in full satisfaction of the indictment.
The applicant was sentenced to a term of imprisonment for a period of 8 months commencing on 21 September 2018 with a non-parole period of 6 months expiring on 20 March 2019. The applicant was released to bail pending his appeal.
The applicant has appealed against the sentence imposed on him on the following grounds: "1. The applicant was denied procedural fairness during sentencing proceedings on the issue of alternatives to full-time imprisonment and special circumstances. 2. The learned sentencing Judge erred in failing to appropriately consider alternatives to full-time imprisonment. 3. The sentence imposed is manifestly excessive."

Factual background

The applicant was sentenced on the basis of a statement of agreed facts which may be summarised as follows.
The applicant is a winemaker in Griffith and had known Luigi Fato for a number of years through a mutual friendship formed through family members.
In May 2013, Mr Fato and another co-offender Mr Hank Pickett formed a plan to cultivate a significant quantity of cannabis plants at a rural property in NSW. The property chosen was a property known as "Karoopa Farm" located at Crowther. From August 2013, Mr Fato and Mr Pickett gained access to the farm with the agreement and acquiescence of the farm manager (the co-offender Mr Malcolm Howarth) and his son (the co-offender Mr Barry Howarth).
To achieve their goal, Mr Fato and Mr Pickett sought assistance from the applicant in the nature of funding, equipment and knowledge of irrigation. The applicant possessed such knowledge as a result of his occupation as a winemaker.
The agreed statement of facts referred to lawful recordings of telephone intercepts and listening devices which it was said demonstrated that from 9 September 2013, the applicant was aware of the plan to cultivate a large quantity of cannabis plants at Karoopa Farm and that Mr Fato continued to seek the applicant's attendance at the farm and his funding and assistance in growing cannabis by outdoor means.
The statement of facts however noted that the Crown accepted that it could not establish beyond reasonable doubt that the applicant, although aware of Mr Fato and Mr Pickett's objectives, acted with that knowledge to assist them.
In a telephone call on 9 September 2013, the applicant agreed to meet Mr Fato and Mr Picket at Yass on 13 September 2013 in order to travel to Karoopa Farm with them. Mr Fato informed the applicant in the telephone conversation that he wanted to show him around the property in order to garner his support for his plan to cultivate cannabis. However, the applicant did not attend the meeting.
The agreed statement of facts recorded that the applicant visited Karoopa Farm on three occasions in the period of October to December 2013. The first was a brief initial visit in October 2013 when the applicant met Mr Fato and Mr Pickett and travelled with them to the farm. The second was in November 2013 when the applicant met Mr Fato and Mr Pickett and travelled with them to the homestead at Karoopa Farm where the applicant discussed with Mr Fato and Mr Pickett their request that he supply irrigation equipment and advice. On the third visit the applicant met Mr Fato, Mr Pickett and Mr Vyse at the farm, travelling with them to a site on the property known as Little Creek, located 3 kilometres from the homestead which had been chosen by Mr Fato and Mr Pickett as the location that they would plant a significant number of cannabis plants. The applicant spent approximately one hour at the site.
Approximately 3,000 cannabis cuttings were planted at Little Creek.
The statement of facts noted the following concerning the liability of the offender: "[10] While not involving himself in Fato's or Pickett's illegal activities at Karoopa Farm, in January 2014, the offender became aware, through his contacts with Fato, that a cannabis crop had been planted at the Little Creek site. While the offender did not know the exact number of plants that had been planted, he knew that it was well in excess of 1,000. The offender also knew that one of his employees, Andre Turner, had become involved in the cultivation of cannabis at the Little Creek site with Fato and Pickett. [11] Despite knowing that a significant cannabis crop was being cultivated at Karoopa Farm, and having information which was of material assistance in securing the prosecution of several offenders (including Fato, Pickett, Vyse, Turner and Malcolm Howarth), the offender failed without reasonable excuse to bring that information to the attention of NSW Police or other appropriate authority."
The police executed a search warrant at Karoopa Farm on 12 February 2014 where they located 2,750 cannabis plants at Little Creek.

The sentencing judgment

The sentencing judge after referring to the facts, which I have summarised above, stated that a "prior criminal record cannot be taken into account when determining the objective seriousness of the offence", although "it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community".
The sentencing judge noted that "significantly" in 1995, the applicant was convicted in Queensland on two counts of producing a dangerous drug exceeding 100 plants and a possession of things that had been used in the commission of a crime. He noted that on each charge the applicant was sentenced to a term of imprisonment for 5 years.
The sentencing judge accepted the submission of counsel for the applicant in the Court below on the considerations relevant to the assessment of the objective seriousness of the offence. He noted that they included: 1. The seriousness of the "serious indictable offence"; 2. The nature and context of the offender's relationship with the primary accused; 3. While falling short of a "reasonable excuse", an offender's motivation for withholding information; 4. The circumstances by which an offender knows or believes that a serious indictable offence has been committed; and 5. The value of the information in securing the conviction of the other accused if applicable by reference to the stage of their criminal proceedings.
The sentencing judge described the offence concealed as "a crime of some gravity". He stated that "[t]he number of plants sought to be cultivated were substantial" and "[t]he offender was aware that the proposed enterprise was to involve the cultivation of cannabis on an extremely large scale and of some sophistication". He noted that "[t]he principal offenders sought to engage the applicant in the enterprise by providing finance and expertise in irrigation". He noted that the applicant was "aware that the principals were to engage in criminality of a high order and that the principals were motivated by financial gain".
The sentencing judge noted the submission on behalf of counsel for the applicant that "there was a long-term relationship and friendship" between Mr Fato and Mr Turner "in circumstances where misplaced loyalty might well have led to the withholding of information". However, he stated that he could not conclude on the balance of probabilities, that "it was the sole motive" in the absence of the applicant giving evidence. He stated that ultimately, he was unable to determine the full extent of the motives of the applicant and that the fact that the applicant was motivated to protect professional or personal relationships did not significantly reduce the applicant's moral culpability. He stated that the applicant knew that the criminality was of a high order and that "his silence would allow it to continue". He stated that the applicant was aware that the proposed enterprise was a sophisticated one, highly organised and involved multiple individuals.
The sentencing judge stated that there was merit in the submission of the Crown that the attendance by the applicant prior to the period on the indictment informed the Court "about the extent, the depth and the quality of the information possessed by the applicant". He also seemed to accept the submission that the applicant could have provided information which would have significantly aided the authorities in their investigations, at least in regard to his employee Mr Turner. He recognised however that "considerable caution" needed to be exercised in ensuring that the applicant was not sentenced for conduct which is outside the conduct referred to in the agreed facts and which might amount to conduct which would support an offence for which the applicant was not charged.
In those circumstances, the sentencing judge expressed the view the offending was "objectively serious". He stated that it fell marginally above the mid-range of objective seriousness.
In dealing with the prior Queensland offending, the sentencing judge stated that having considered all relevant matters relating to the applicant and his strong subjective case, he was not of the view that greater weight needed to be given to the protection of the community. He stated that the sentence he proposed would "otherwise achieve the appropriate resolution between the purposes of sentence, including the need for personal and general deterrence".
In dealing with the applicant's subjective case, the sentencing judge noted that there were "common themes" in a number of testimonials tendered in his case. He noted that authors expressed feelings of shock upon becoming aware of the charge against the applicant who they described as "trustworthy, hard-working, honest and reliable". He noted that they all remarked about the applicant's "care for his family and his close family relationships".
The sentencing judge noted that a letter from the accountant that acted for the applicant's family companies, showed that the applicant's family conducted a wine business which had grown from operating small vineyards around the township of Griffith to a multinational company. The accountant noted that the company presently employed a thousand people and that as the businesses had grown, enhanced economic opportunities had flowed to the regional communities in which the applicant's family companies are based. The accountant noted that this had been in the form of "increased employment, direct donations and sponsorship of local health, education, cultural, sporting and other community organisations". A summary of the donations and sponsorships made revealed that the applicant's family companies had donated in excess of $7 million to the local community. The accountant also spoke of his own awareness that the applicant had volunteered his own time and money in relation to "causes concerning international irrigation and cropping, community-based sports shooting associations in Australia and overseas medical assistance".
The sentencing judge noted that the applicant's doctor attested to the character of the applicant. The applicant's doctor also referred to the deteriorating health of the applicant over the past several months during the course of the trial proceedings and the serious ill-health of the applicant's daughter who has undertaken extensive treatment and hospitalisation. The daughter's condition had apparently steadily worsened in recent times and the doctor had expressed an opinion that "stress and anxiety arising out of her father's position might have exacerbated the condition". The doctor also attested to the applicant's generosity including the purchase of dialysis equipment which had been donated to several countries.
There was also a testimonial from the business partner of the applicant referring to the applicant's "willingness and drive to donate to lesser privileged communities on a global scale". He referred to the donation of 71 dialysis machines throughout the South Pacific, Pakistan and Sri Lanka, and a further 24 machines currently in storage pending delivery to India. He also referred to the applicant's donations to the local Riverina community, in particular to his involvement with the application for the construction of a temple for the Hindu community.
Another testimonial referred to the applicant's involvement in green energy projects, including a large scale solar energy facility and waste water treatment plant covering the Griffith area.
The sentencing judge stated that he took into account the restriction upon the applicant's business pursuits as a result of his bail conditions.
The sentencing judge allowed a discount of 20% for his plea of guilty.
In dealing with the prospects of rehabilitation, the sentencing judge noted that whilst the offender had been convicted previously of a substantial involvement in the cultivation of cannabis, he resisted the attempts by the principals in the present case to become involved in the enterprise. The sentencing judge stated that having considered the applicant's background and the fact that the sentence to be imposed would operate as a significant personal deterrent, he was of the view that the applicant had "good prospects of rehabilitation".
The sentencing judge concluded, however, that no penalty other than imprisonment was appropriate. Because of the significance that conclusion has to Grounds 1 and 2 of the grounds of appeal, it is convenient to set out his reasoning in full: "No penalty other than imprisonment: For the purposes of sentencing I have regard to s 3A of the Crimes (Sentencing Procedure) Act and the factors referred to in s 21A of that Act. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act 1999, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. In sentencing the offender I am required to impose a sentence that properly reflects the objective seriousness of the offence and to fix a sentence that would ensure that the time the offender must spend in custody reflects all the circumstances of the offence, including the objective seriousness, the need for general deterrence and to meet the fundamental purpose of punishment, namely the protection of society. I have gone on to consider whether there are alternatives to full time custody however I am of the view that a sentence of imprisonment must be imposed."
In the circumstances, the sentencing judge imposed the sentence of 8 months imprisonment with a non-parole period of 6 months.

Ground 1 - The applicant was denied procedural fairness during sentencing proceedings on the issue of alternatives to full time imprisonment and special circumstances

a The applicant

The applicant submitted that the sentencing judge did not "fairly raise" the fact that he was considering a full-time term of imprisonment during the proceedings on sentence. He contended that foreclosed the opportunity for the applicant's counsel to "fully and fairly address his Honour on the alternatives to full-time imprisonment".
At the hearing, Queen's Counsel for the applicant accepted that alternatives for full time custody were touched on but in a "peripheral way". In written submissions, reference was made to the following submission made in chief by Senior Counsel for the applicant in the Court below: "It is a matter where your Honour can find that the s 5 threshold has not been passed, that's our primary submission. And that he can and ought to be released upon his own reconnaissance in these circumstances, bearing in mind all that's happened to him as a result of this charge."
Thereafter the Crown made the following submission: "The ultimate submission is that your Honour would find the s 5 threshold has been passed. The Crown says that there is significant importance here that should be placed on among other things general deterrence denouncing the conduct of the offender as well as specific deterrence in light of his prior criminal record."
The following submissions were made by Queen's Counsel for the applicant in reply: "Now, it seems that the initial point of contention is whether or not the s 5 threshold has or has not been passed. If, I don't concede it to, it is passed but if it were to be then there are alternatives to full time incarceration and one of those would be a s 12 bond. And that would be a matter that would be a matter of consideration from your Honour's point of view and as well as that there's the ICO, you don't need me to say it to your Honour but for the record I place it as being a relevant matter for your Honour's consideration. … Your Honour, full credit for the plea in terms of utilitarian value in these circumstances as well as an indication of contrition and remorse and the taking of responsibility should be afforded and it should assist in ensuring that after all this time in these circumstances an alternative to full time custody if threshold has been reached is afforded. I note my friend has not ruled out that as an appropriate or as possible determination in the context of the available options. If a custodial sentence is to be imposed, it can be served in another way, it should be suspended but it ought not to be imposed because as I've already indicated the objective seriousness despite all the dust it now having settled does not place this in the range where it is required or it is just, that's all I wanted to say, your Honour."
It should be noted that the reference in those submissions to s 5 is a reference to s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act).
The applicant submitted that the sentencing judge did not indicate "even in an implicit way" that full-time imprisonment was under consideration. He submitted that neither party was given the opportunity to address on this issue or on the question of special circumstances. In that context, it was noted that the sentencing judge did not mention the alternatives to full-time imprisonment which were available and why they were inappropriate, and also did not refer to special circumstances.
Queen's Counsel for the applicant noted that in the Court below counsel for the applicant stated that he was "targeting … a non-custodial penalty". He also referred to the submissions in reply, to which I have referred above, which he submitted made it clear that in the Court below that the applicant's counsel "was labouring under the clear view both in his written submissions and his oral submissions that this was a s 9 bond case".
Queen's Counsel for the applicant then referred to the Crown submission to the effect that the offence fell within the midrange of objective seriousness and that the applicant's prior record meant that a greater weight needed to be given to deterrence. He also noted what the Crown described his ultimate submission in the passage to which I have referred at [38] above.
Queen's Counsel for the applicant referred to the submission made on the application for bail as supporting the proposition that at least Senior Counsel in the Court below took the view that "full-time custody wasn't on the table".

b The Crown

The Crown submitted that the passages from the transcript to which I have referred show that a custodial sentence was clearly in play. He submitted it was quite appropriate for the Crown not to make the submission that only a sentence of full time custody was appropriate, submitting which of the alternatives should be adopted was a matter for the Court.
The Crown submitted that nothing was said by the sentencing judge which gave rise to any expectation of the sentence to be imposed. He submitted that Senior Counsel for the applicant below must have understood a custodial sentence was open because of his reference to an Intensive Correction Order (ICO) or a s 12 bond.
The Crown submitted that having regard to the short sentence imposed, it was not surprising that special circumstances were not dealt with. He also contended that it was irrelevant whether or not the bail application showed that Senior Counsel for the applicant in the Court below held any subjective belief as to what was in issue in the sentence hearing.

Consideration

It is self-evident that an offender is entitled to procedural fairness in sentencing proceedings. Further, as Gleeson CJ pointed out in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [34], "it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process". However, his Honour pointed out that "[t]he ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed".
Thus, procedural fairness may be denied in circumstances where the case is conducted on a particular basis by both parties and the sentencing judge deals with the matter in a different fashion without giving any indication that he or she proposes to do so. Similarly, if a judge expressly or impliedly represents to a party that it is unnecessary to deal with a particular issue and decides that issue adversely to the interests of a party, questions of procedural fairness may arise: see, for example, Pantorno v The Queen (1989) 166 CLR 466 at 473; [1989] HCA 18.
However, in the context of the present case, that did not mean that the sentencing judge had a duty to advise counsel for the applicant as to how he should conduct his case, or absent the circumstances referred to in [49] above, express any preliminary views that he or she may have formed on the appropriate sentence: Pantorno at 472. The position was summarised by Basten JA in Tweedie v R [2015] NSWCCA 71 at [54] in the following terms: "[54] I would add the following observations as to the complaint that the applicant was denied procedural fairness because the trial judge did not accept his, the applicant's, own assertions in the witness box of remorse. Procedural unfairness only arises where an offender has been denied an opportunity to pursue a particular submission or to call relevant evidence or in circumstances where some representation has been made to him that would dissuade him from taking a course which had been intended." See also R A Hulme J at [24]; Dang v R [2014] NSWCCA 47 at [45]; R v Dennis [2015] NSWCCA 297 at [47]-[48].
In the present case, there was no denial of procedural fairness. The Crown did not conduct the case on the basis that the question of a custodial sentence was not in issue. In the submissions made, both in chief and in reply by Senior Counsel for the applicant in the Court below (see [37] [39]), it was submitted that the s 5 threshold had not been passed but if it was, there were alternatives to full-time incarceration. The submissions thus recognised the possibility of a custodial sentence.
The Crown, in the submission to which I have referred at [38] above, expressly submitted that the s 5 threshold had been passed and emphasised the need for general and specific deterrence in light of the applicant's prior criminal record. The Crown said nothing to suggest that it was conducting its case on the basis that a custodial sentence was not in issue.
In these circumstances, there was no procedural unfairness to the applicant in the manner the case was conducted.
The other complaint was that the sentencing judge had not, even in an implied way, suggested that he was considering a custodial sentence. There are two answers to this submission. First, it was treated as being an issue in the submissions and the sentencing judge said nothing to disabuse counsel of that fact. Second, the judge was under no obligation to disclose any preliminary views he may have had as to the appropriate sentence.
The submissions made during the course of the bail application are irrelevant. They may have indicated that the applicant's counsel in the Court below was disappointed with the result. They do not show that the proceedings were procedurally unfair.
It follows that this ground has not been made out.

Ground 2 - The learned sentencing judge erred in failing to appropriately consider alternatives to full time imprisonment

The submissions

The applicant in his written submissions contended correctly that there was a three-stage process in sentencing an offender. First, a preliminary question of whether there are alternatives to the imposition of a sentence of imprisonment, second, if having concluded that no penalty other than a sentence of imprisonment is appropriate, determining the term of the sentence and third, once the term has been determined, a consideration of whether alternatives to full-time imprisonment are available and should be utilised: see Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [114], citing with approval R v Foster [2001] NSWCCA 215 at [30]; R v Zamagias [2002] NSWCCA 17 at [22]-[29]; Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 at [70]-[72].
The applicant in his submissions also referred to Paul Campbell (a pseudonym) v R [2018] NSWCCA 87 (Campbell) where Hamill J with whom the other members of the Court agreed, stated at [53] that "where a sentence of less than 2 years is imposed and there are clear alternatives available, the preferable course is to make it clear that such alternatives have been considered and explain why they are not appropriate".
The applicant submitted that in a case such as the present where the sentence fell far short of the two year threshold prescribed by s 68 of the Sentencing Procedure Act for an Intensive Correction Order (ICO), an offender would be entitled to expect that the alternatives would be seriously considered. He submitted that the comments made by the sentencing judge, to which I have referred at [34] above, were directed only to full time custody.
The Crown submitted that it was clear from the reasoning of the sentencing judge that a significant consideration was whether a sentence other than full-time custody would adequately reflect the objective seriousness of the offence. He submitted that this was consistent with sentencing principle referring to R v Zamagias at [28], Douar v R at [72], and Parente v R at [115].
The Crown submitted that Campbell did not hold that a mere failure to follow what Hamill J described as a preferential course would, of itself, amount to an error.

Consideration

As I indicated at [57] above the applicant in his written submissions correctly stated the approach to sentencing in cases of this nature.
Hamill J stated in Campbell that where a sentence of less than 2 years is imposed and there are clear alternatives to full-time custody, the preferable course is to make it clear that such alternatives have been considered and to explain why they are inappropriate. Whilst failure to adopt this course does not of itself involve error, it may lead the Court to consider carefully whether the correct process has been followed: Douar at [62]-[63], [74] and the cases there cited.
I have set out the brief reasons of the sentencing judge on this issue at [34] above. His Honour, at least mechanically, complied with the relevant requirements, albeit without elaboration. He stated first, that consistent with s 5 having considered all possible alternatives, no penalty other than imprisonment was appropriate. The next paragraph of his judgment seems to be directed to the appropriate term of imprisonment to be imposed. The final paragraph states that he has considered alternatives to full-time custody.
This ground of appeal has not been made out. However, the approach taken by the sentencing judge provides powerful support for what was said by Hamill J in Campbell. The approach taken by the sentencing judge leaves the offender and for that matter an appellate court, in a state of uncertainty of the reasons first, why the s 5 threshold has been met and second and more significantly in the present case, why alternatives to full time custody were rejected. However, no complaint was made concerning the adequacy of the reasons, c/f Taylor v R [2018] NSWCCA 255 at [52]-[54]; Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 279-280. As there was no appeal based on inadequacy of reasons and in light of the conclusions I have reached on Ground 3, the matter need not be considered further.

a The applicant

The applicant whilst recognising the limitation of the use which can be made of raw statistics, pointed to the statistics maintained by the Judicial Information Research System (JIRS) which showed that of the 70 cases on record in superior courts, 8 resulted in full-time custody whilst in the lower courts, of 101 cases on record, 12 resulted in full-time custody.
The applicant submitted that an important factor in assessing the relative gravity of an offence contrary to s 316 is the seriousness of the "serious indictable offence" being concealed. He submitted that even in the case of concealment of murder, sentences for the offence in question vary greatly, pointing in particular to cases where non-custodial sentences had been imposed.
The applicant pointed to the sentences imposed on Mr Vyse, Mr M Howarth and Mr B Howarth for their participation in the events giving rise to the offence. Mr Vyse who pleaded guilty to the offence of cultivating a prohibited plant, namely a large commercial quantity of cannabis, received a suspended sentence of 2 years after a combined discount of 50%. His involvement included cultivating the cannabis, purchasing equipment, doing errands, packing and watering cannabis, driving to various meetings and providing his vehicle. He was 47 years old with a prior record of similar matters and a history of health issues.
Mr M Howarth received a suspended sentence of 2 years after pleading guilty to the offence of taking part in the cultivation of a commercial quantity of cannabis. This was arrived at after a combined discount of 50%. His son, Mr B Howarth, organised for him to meet Messrs Fato and Pickett for the use of his property for the cultivation. Mr M Howarth was aware of the cultivation but "turned a blind eye" to it, permitted the use of his vehicle and watered the crop on one occasion. He was 62 years of age, had a limited criminal history and was a person of prior good character.
Mr B Howarth pleaded guilty to the offence of knowingly taking part in cultivating a commercial quantity of a prohibited drug, cannabis. He received an ICO of 2 years after a combined discount of 50%. He was involved in a number of communications with Mr Fato and Mr Pickett and assisted them in obtaining access to the properties where the crop was cultivated. He was 39 years of age with no criminal history and prior good character.
The applicant pointed out that the sentencing judge did not refer to any of these sentences. He noted that the sentences for which Mr Vyse and Mr M Howarth and Mr B Howarth were sentenced carried substantially greater penalties than the offence to which the applicant pleaded.

b The Crown

The Crown submitted that in circumstances where there was an offence for which a 2 year maximum penalty was prescribed and where the judge found the offence was slightly above midrange, it was difficult to see how a head sentence of 8 months was manifestly excessive.
The Crown emphasised that parity was not a ground of appeal.
The Crown referred to the fact that Mr Fato and Mr Pickett were the proprietors and each received sentences of 8 years with a non-parole period of 5 years for the offence. The Crown pointed to the fact that the applicant's contact was with Mr Fato and Mr Pickett, a matter he submitted was important.
The Crown also pointed to "the three visits to the property pre-dating the acquisition of knowledge that the offence was being committed".
So far as the offenders referred to by the applicant were concerned, the Crown pointed out that Mr Vyse was a caretaker in financial difficulty and was "lured" into providing assistance. He also said that "he had in fact served four months and two weeks in custody" and had significant health issues.
The Crown pointed out that in the case of Mr B Howarth, the judge who sentenced him accepted that Mr Fato and Mr Pickett had "enmeshed him into their plans", apparently telling him that he would make between $50,000 and $100,000 to secure the property. He noted that there was no evidence that Mr B Howarth played any physical part in the cultivation. The Crown also pointed out that Mr M Howarth who was the manager of the property where the offence took place and had "very little actual involvement in the crop". He submitted that the position of these persons was "quite different" to that of the applicant.
In relation to the applicant's submission that non-custodial sentences had been imposed for the concealment of the offence for murder, the Crown submitted that the concealed offences in the present case were "very serious" offences involving a sophisticated and organised criminal activity undertaken with the expectation of significant profit. He also pointed out that the seriousness of the underlying offences was only one of the relevant factors going to the objective seriousness of the offence under s 316.
The Crown also submitted that the applicant's "prior offending impacted on the need for general and specific deterrence to play a considerable role in the sentencing exercise".

Consideration

The principles by which a Court is to deal with this ground are well established. They were summarised in Hughes v R [2018] NSWCCA 2 at [86]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust. See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443]."
In considering the question in the present case it is necessary to consider first, whether it was unreasonable or plainly unjust to impose a term of imprisonment, second, whether the term of imprisonment itself was unreasonable or plainly unjust, and third, if not, whether the decision to impose a full time custodial sentence resulted in a manifestly excessive penalty.
The sentencing judge correctly set out the matters to be considered in determining the seriousness of the offence. So far as the first matter is concerned (the seriousness of the concealed offence), s 4 of the Crimes Act defines "serious indictable offence" as an indictable offence carrying a penalty of life imprisonment or a term of imprisonment of 5 years or more. It can thus encompass a wide range of offences. In the present case, the offences in question carried maximum penalties of 20 years and 10 years respectively.
Whilst the offences are serious, having regard to the maximum penalties imposed, they are not the most serious offences to which s 316 can apply. In addition to murder and manslaughter which carry maximum penalties of life imprisonment and 25 years respectively, a number of drug offences also carry maximum penalties in excess of those prescribed for the concealed offences, including knowingly cultivating a large commercial quantity of a prohibited plant other than cannabis for which a maximum penalty of life imprisonment is imposed (DMT Act s 33(3)(a)), or the offences of manufacturing or producing a large commercial quantity of a prohibited drug, or supplying a large commercial quantity of a prohibited drug, each of which also carry a maximum penalty of life imprisonment (DMT Act s 33(3)(a)).
However, of more significance is the fact that it was a relatively sophisticated operation involving the cultivation of a significant quantity of cannabis plants. The offences can only be described as serious. That is evident from the sentences imposed on the principals.
So far as the relationship with the primary offenders was concerned, it was accepted that Mr Fato was a long-term acquaintance of the applicant but there was no evidence of any existing commercial relationship.
There was no evidence to enable the sentencing judge to determine the applicant's motive and it was not contended that the sentencing judge was in error in concluding that the applicant could have provided information which would have significantly assisted the authorities in their investigation.
Against this was the fact that the concealment only took place between those dates when the plants were discovered, a period of little more than one month and the applicant's extremely powerful subjective case which I have summarised at [27]-[32] above.
Taking all these matters into account, absent consideration of the manner in which the sentence is to be served, a sentence of 8 months imprisonment after a 20% discount for the applicant's plea, whilst severe, could not be said to be manifestly excessive. The concealed offences were serious ones involving cultivation of a prohibited plant in substantial amounts which, if the plants had found their way into the community, had the potential to cause real harm. The powerful factors weighing in favour of the applicant are not sufficient in my view to compel the conclusion that the term of imprisonment was manifestly excessive. It is implicit in what I have said that the judge was thus entitled to conclude that the threshold requirement in s 5 of the Sentencing Procedure Act had been reached.
It remains to be considered whether the sentence was manifestly excessive by virtue of the fact that it was ordered to be served by way of full-time custody. It is in this area that a real difficulty arises from the failure of the sentencing judge to expose his reasons for his conclusion that the sentence needed to be served in that fashion.
In my opinion, a sentence of 8 months to be served by way of full-time custody was manifestly excessive. This is for the following reasons. First, as I have indicated, a sentence of 8 months imprisonment after a 20% discount for a plea was a severe one having regard to the fact that the maximum penalty for the offence at the time was 2 years.
Second, I would place little weight on the need for personal deterrence arising from the 1995 convictions. The offences occurred 19 years before the offence the subject of this appeal. Importantly on this issue, the applicant whilst concealing the offence declined to take any part in it.
Third, whilst the applicant's subjective case cannot obscure the seriousness of the offence, it should not be underestimated. The applicant has not only led an apparently blameless life since his 1995 convictions but has also made substantial contributions to the community. His state of health as attested to by his doctor is also a relevant consideration.
Fourth and importantly, the sentence sits uncomfortably with the sentences imposed on Mr Vyse, Mr M Howarth and Mr B Howarth, all of whom participated in the cultivation and received non-custodial sentences. It is true that Mr M Howarth and Mr B Howarth were convicted of the less serious offence of cultivating a commercial quantity of a prohibited plant. However, the fact remains that they received non-custodial sentences for an offence which carried a maximum penalty of 15 years imprisonment, whilst the applicant received a custodial sentence for an offence which did not involve active participation in the enterprise and which only carried a maximum penalty of 2 years imprisonment. The sentencing judge gave no reasons to justify the inconsistency in the approach and although Mr Vyse and Messrs Howarth played relatively minor roles in the cultivation of the plants, that fact and their particular subjective circumstances in my view does not justify the discrepancy.
In these circumstances, I am of the view the sentence was manifestly excessive.

Resentence

It is thus necessary to resentence the applicant. I have set out above all the facts and circumstances relevant to that exercise and I do not propose to repeat them.
For the reasons I have given, I am of the view that a sentence of imprisonment was appropriate. The concealed offences were serious and it is necessary to make it clear that persons who deliberately conceal serious offences can expect appropriate punishment. Further having regard to the applicant's prior convictions, some, albeit limited, element of personal deterrence is necessary.
In all the circumstances, a sentence of 6 months imprisonment after a discount of 20% for the plea of guilty is appropriate.
However, having regard to the other matters to which I have referred, particularly the applicant's subjective case and the sentences imposed on Mr Vyse, Mr M Howarth and Mr B Howarth, the sentence should not be served by way of full-time custody. An Intensive Correction Order is appropriate.
The power to make an Intensive Correction Order is found in s 7 of the Sentencing Procedure Act. Section 17D(1) provides that the Court must not make an order unless it has received an assessment report in relation to an offender, whilst s 17D(1A) relevantly provides that the Court is not required to obtain such a report if it is satisfied that there is sufficient information before it to justify the making of such an order. It was accepted that if the Court was of the view an Intensive Correction Order was appropriate, it had sufficient information to justify the making of such an order.
Section 73 of the Sentencing Procedure Act imposes standard conditions on the making of such an order, namely that the offender must not commit any offence and submit to the supervision of a Community Corrections Officer. Section 73A provides that the Court also must impose at least one of the additional conditions in s 73A(2), unless it is satisfied that there were exceptional circumstances. The Crown accepted that the Court in the present case would be entitled to conclude that there were exceptional circumstances if it was of the view that an Intensive Correction Order was appropriate. In my opinion, there are exceptional circumstances in the present case, if only for the reason that the applicant has been on conditional bail since 21 September 2018, on conditions including the surrendering of his passport and that he report three days a week to the Griffith Police Station.

Conclusion

In the result, I would make the following orders: 1. Grant the applicant leave to appeal. 2. Appeal allowed. 3. Quash the sentence imposed on the applicant on 21 September 2018. 4. Sentence the applicant to a term of imprisonment of 6 months to be served by way of an Intensive Correction Order. 5. Pursuant to s 73A of the Crimes (Sentencing Procedure) Act 1999 (NSW), impose the following conditions on the Intensive Correction Order: 1. The applicant must not commit any offence during the currency of Order 4. 2. During the currency of Order 4 the applicant must submit to supervision by a Community Corrections Officer.
Since writing the above, I have read the judgment of Beech-Jones J and N Adams J in draft. I agree with the comments made by their Honours.
BEECH-JONES J: Subject to addressing two aspects of the recent judgment of this Court in R v Fangaloka [2019] NSWCCA 173 ("Fangaloka"), I agree with the Chief Justice's reasons and proposed orders.
In Fangaloka this Court upheld a Crown appeal from the imposition of an Intensive Corrections Order ("ICO") under Part 5 of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Procedure Act").
The first aspect of Fangaloka that needs to be addressed is the statement by Basten JA (with whom Johnson and Price JJ agreed) that "in practice, Pt 5 is unlikely to be applied to very short sentences (for 6 months or a lesser period)" (at [56]). With respect, on my review of the Sentencing Procedure Act I cannot discern any basis for this conclusion. Subsection 5(2) of the Sentencing Procedure Act imposes a particular obligation on sentencing judges to give reasons for imposing custodial sentences of 6 months or less but otherwise the Sentencing Procedure Act does not provide any indication that the imposition of an ICO for a period of 6 months should be an unusual occurrence. In Fangaloka the ICO imposed by the sentencing judge the subject of the Crown appeal was for a period of 2 years. A conclusion that an ICO for a period of 6 months or less is something that is unlikely to be imposed was not essential to the outcome in that case and is not a statement that I regard as having any binding effect on this or lower Courts. I do not take anything from Fangaloka as precluding the imposition of an ICO for a 6 month term as proposed by the Chief Justice.
The second aspect of Fangaloka that needs to be addressed is the Court's construction of s 66 of the Sentencing Procedure Act which provides: 66 Community safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
In Fangaloka, Basten JA construed s 66 as follows (at [63]): "An alternative reading of s 66 is restrictive, rather than facilitative. Thus, the paramount consideration in considering whether to make an ICO is the assessment of whether such an order, or fulltime detention, is more likely to address the offender's risk of reoffending. That is, unless a favourable opinion is reached in making that assessment, an ICO should not be imposed. At the same time, the other purposes of sentencing must all be considered and given due weight." (emphasis added)
Read literally, the emphasised statement appears to extract from s 66 a prohibition on the imposition of an ICO unless the Court positively concludes that an ICO is more likely to address the offender's risk of reoffending as opposed to serving a sentence of full time custody. If that is what was meant then it appears to travel well beyond s 66. Nothing in s 66 purports to operate as a prohibition to that effect. On its face, s 66(2) only requires an assessment of whether making the order or serving the sentence by way of full‑time detention is more likely to address the offender's risk of reoffending. It does not appear to necessarily preclude the imposition of an ICO if, say, the outcome of the assessment is neutral because the offender has good prospects of rehabilitation and does not represent a danger to the community, irrespective of whether he or she is incarcerated or subject to an ICO. The imposition of an ICO in such a case would still be consistent with community safety. If this is truly the effect of Fangaloka, then I have significant doubts about whether it is correct. However, this matter was not the subject of argument and its correctness need not be resolved to determine this appeal. Given the findings of the sentencing judge and the Chief Justice, I am satisfied that imposing an ICO in this case gives effect to s 66.
N ADAMS J: I have had the advantage of reading the judgments of Bathurst CJ and Beech-Jones J in draft. I agree with the orders proposed by Bathurst CJ for the reasons his Honour has provided subject to the additional reasons provided by Beech-Jones J concerning the decision in R v Fangaloka [2019] NSWCCA 173 ("Fangaloka"). That decision was delivered on 2 August 2019, over a month after the hearing in the present matter.
First, I agree with Beech-Jones J that the decision in Fangaloka does not preclude the imposition of an Intensive Correction Order ("ICO") for a six month term as proposed by the Chief Justice.
Second, I agree with Beech-Jones J that s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act") on its face does not appear to necessarily preclude the imposition of an ICO unless the Court positively concludes that an ICO (as opposed to full-time custody) is more likely to address an offender's risk of reoffending. In any event, I agree with Bathurst CJ at [98] and Beech-Jones J at [108] that having regard to, inter alia, the applicant's subjective case, an ICO is appropriate in this matter. I too am satisfied that imposing an ICO in this case gives effect to s 66 of the Sentencing Act.

Amendments 30 August 2019 - [63] Amend sentence by removing "Whilst" at beginning of 1st sentence and "although" in 2nd sentence 30 August 2019 - [63] Amend 2nd sentence by adding "Whilst" at beginning 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: 30 August 2019

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