Crowley v R

Court of Criminal Appeal (NSW)|2017-05-03|Before: Johnson J, Adamson J, Campbell J

The applicant's submissions

Ms Hawkins, who appeared on behalf of the applicant, submitted that the sentencing judge ought to have assessed the objective seriousness of the offence as "at the lowest end of the spectrum" as the legislation relating to enhanced means of cultivation was directed at "hydroponic and aeroponic cultivation with organised crime links in elaborate setups for higher yield commercial profits in the black economy". She referred to the Second Reading Speech for the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill which was introduced into the Parliament on 25 May 2006. She submitted that the applicant's offending conduct was wholly removed from this scenario since it involved merely lights, soil and pot plants with pedestal fans.
It was accepted on behalf of the applicant that he was guilty of the offence against s 25(2)(a) because of the indoor setting and the lights. However, Ms Hawkins characterised the applicant's conduct as the cultivation of "cannabis plants for personal use in soil under artificial lights in a home garage with a few pedestal fans" and submitted that the objective seriousness of this offence "could not have been much lower". She contended that the sentencing judge's finding that the system was "sophisticated" revealed error when the evidence established that it was a "rudimentary set-up".
Ms Hawkins also criticised her Honour for using the quantity of plants to conclude that the seriousness was above mid-range and referred to Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [73] (Gaudron, Gummow and Hayne JJ). She submitted that of the 128 plants, about half were less than a metre tall and the other half were "very immature". She relied on R v Seman (Court of Criminal Appeal (NSW), 15 May 1992, unrep per Wood, Allen and Abadee JJ).

Ground 2: the finding of readiness to supply

The applicant submitted that it was for the Crown to prove that there had been actual supply and it had failed to discharge the onus of proof. Ms Hawkins argued that her Honour was in error in taking into account apparent readiness for supply when the evidence did not support the finding.
Ms Hawkins submitted that her Honour's remarks about the applicant's readiness to supply fell foul of the following principle in The Queen v De Simoni at 389, per Gibbs CJ (Mason and Murphy JJ agreeing): "However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."

Ground 3: the sentencing judge erred in assessing the relevance of the applicant's childhood exposure to cannabis

Ms Hawkins submitted that the applicant's cannabis cultivation in the family home had "normalised" the use of cannabis for medicinal purposes and explained the applicant's offending. She relied on Bugmy v The Queen, where the offender's exposure from a young age to criminal behaviour and deprivation was held to be a relevant consideration in his favour on sentencing since it tended to lessen his moral culpability.

The statutory framework

In order to appreciate the legislative context of the offence under s 25(2)(a) to which the applicant pleaded guilty it is necessary to set out the relevant statutory provisions.
Section 3 of the Act contains the following definitions: commercial quantity, in relation to a prohibited plant or a prohibited drug, means a number or amount, if any, specified opposite the prohibited plant or prohibited drug in Column 4 of Schedule 1. cultivate, in relation to a prohibited plant, includes: (a) sow or scatter the seed produced by the prohibited plant, and (b) plant, grow, tend, nurture or harvest the prohibited plant. cultivation by enhanced indoor means, in relation to a prohibited plant, means cultivation of the plant: (a) that occurs inside a building or structure, and (b) that involves any one or more of the following: (i) the nurture of the plant in nutrient-enriched water (with or without mechanical support), (ii) the application of an artificial source of light or heat, (iii) suspending the plant's roots and spraying them with nutrient solution.
Section 23 relevantly provides: "Offences with respect to prohibited plants (1) A person who: (a) cultivates, or knowingly takes part in the cultivation of, a prohibited plant, (b) supplies, or knowingly takes part in the supply of, a prohibited plant, or (c) has a prohibited plant in his or her possession, is guilty of an offence. (1A) A person who: (a) cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is: (i) not less than the small quantity applicable to the prohibited plants, and (ii) less than the commercial quantity applicable to those prohibited plants, and (b) cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose, is guilty of an offence. . . . (2) A person who: (a) cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants, (b) supplies, or knowingly takes part in the supply of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants, or (c) has a number of prohibited plants in his or her possession which is not less than the commercial quantity applicable to prohibited plants, is guilty of an offence. . . . (6) In this section and section 23A, cultivating a prohibited plant for a commercial purpose includes cultivating the plant: (a) with the intention of selling it or any of its products, or (b) with the belief that another person intends to sell it or any of its products."
Schedule 1 of the Act provides that, in respect of cannabis plant, the amount (in column 4) for a commercial quantity is 50 cannabis plants where the cannabis plant is "cultivated by enhanced indoor means" and otherwise, 250 cannabis plants.
The maximum penalty for offences under s 23(1A) and s 23(2) is, for cannabis plants, 15 years, except for quantities not less than a large commercial quantity, where the maximum is 20 years: s 33(1)(a), (2)(b) and (3)(b).

The effect of the plea in light of the elements of the offence

As the applicant pleaded guilty to an offence under s 23(2)(a), he is taken to have accepted that he cultivated at least 50 cannabis plants by enhanced indoor means. According to the agreed facts, he cultivated 128 cannabis plants inside the rooms attached to the garage by the application of an artificial source of light. These matters are sufficient for the offence. It is not an element of the offence with which he was charged that such cultivation be undertaken for a commercial purpose, or that he supply the plants to anyone else.
The Second Reading Speech which accompanied the bill which contained the amendments to the Act relating to cultivation by enhanced indoor means can be used as extrinsic evidence to indicate the purpose of the amending Act and thereby aid its interpretation: s 34(2)(f) of the Interpretation Act 1987 (NSW). It is of little utility in the present case. There is no doubt that the applicant's conduct fell within s 23(2)(a), as is indicated by his plea to the offence. The number of plants, 128, only amounted to not less than a commercial quantity because they were cultivated by enhanced indoor means. The definition of "cultivation by enhanced indoor means" requires only one of the means set out in (i), (ii) and (iii) of (b) for the definition to be satisfied, once the cultivation occurs "inside a building or structure": s 3.

Grounds 1 and 2

These grounds overlap to a considerable extent and will be dealt with together.
The sentence of three years for an offence for which the maximum penalty is fifteen years indicates that, although her Honour properly characterised the applicant's criminality as mid-range, its seriousness was not overrated in the sentence imposed. That the cultivation took place in a home which had been adapted for the purpose with pedestal fans and lighting did not lessen its criminality. The number of plants was over twice the threshold required for a commercial quantity. The Crown was not required to prove that the cultivation was for a commercial purpose. These matters were not elements of the offence under s 23(2). Nor were they aggravating factors as such, since they merely formed part of the circumstances of the offence which had to be considered by the sentencing judge along with other relevant matters and could, if established be taken into account in mitigation. The offence of supply of not less than a commercial quantity of cannabis plant was not more serious than the offence to which the applicant pleaded guilty since all offences under s 23(2) carried the same maximum penalty: R v Hooper [2004] NSWCCA 10 at [26] per James J (Howie J and Smart AJ agreeing); and SBF v The Queen (2009) 198 A Crim R 219; [2009] NSWCA 231 at [104]-[105] per Johnson J (Spigelman CJ and McClellan CJ at CL agreeing).
The applicant sought to persuade the sentencing judge that he was cultivating cannabis for his personal use. Had her Honour accepted his evidence to that effect, this would have been a mitigating factor. As a mitigating factor, it had to be proved only on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. The sentencing judge was entitled not to accept the applicant's evidence that he cultivated the cannabis as a hobby and for his own use. It was open to her Honour to be sceptical of his evidence that he did not supply the cannabis, having regard to the strong circumstantial evidence that this was the very purpose of cultivation on such a scale. It might be accepted, as Campbell J has observed in [48] below, that scales and resealable bags are common household items. However, the photographs taken in the course of the execution of the search warrant (which were tendered by the Crown and admitted without objection) show that the resealable bags of various sizes were used for the storage of cannabis head. In the context of the present case, I regard not only the number of plants, but the presence of a set of scales and resealable bags as incriminating. In addition, the cost of electricity to keep the lights and fans operating for the hours specified by the applicant to the police would have been substantial. Her Honour was entitled not to accept the applicant's evidence which, if true, would have left him without any means to defray the cost of cultivation.
I do not regard R v Seman as providing any particular assistance. In the present case, there is ample support for her Honour's findings in the agreed facts. Moreover the finding of the sentencing judge in R v Seman that "the police have found a commercial crop of cannabis" was a conclusion which this Court found was not open to his Honour. In the present case, the fact that the number of plants constituted a "commercial quantity" was a matter of statutory definition, and not in issue, having regard to the agreed facts and the plea of guilty.
Grounds 1 and 2 have not been made out.

Ground 3: the blame attributed by the applicant to his mother and the principles in Bugmy v The Queen

As the applicant relied on Bugmy v The Queen in support of this ground, it is appropriate to consider the circumstances of that case. The appellant's background was characterised by alcohol abuse and violence when growing up, a lack of formal education, and a long record of convictions and incarceration including for offences of violence. He also had a history of head injury and of auditory hallucinations. The High Court considered that, where an offender's abuse of alcohol was a reflection of the environment in which he was raised, as is the case for some offenders raised in communities characterised by alcohol abuse and alcohol-related violence, it should be taken into account as a mitigating factor on sentence. The High Court also found that it was relevant to the Court's residual discretion to dismiss a Crown appeal against sentence on the grounds of manifest inadequacy.
Ms Hawkins contended that the sentencing judge failed to take into account the applicant's upbringing in which the use and cultivation of marijuana was normalised by his mother who smoked and cultivated it herself and adapted the garage for that purpose.
I regard the applicant's situation as wholly different from that of Mr Bugmy. Mr Bugmy was charged with offences of violence, to which he pleaded guilty. He was in custody on remand at the time of the offences, the consequences of which were that a correctional services officer lost the sight in one eye when the appellant threw a ball from a pool table at the officer. The appellant's act was impulsive, violent and against his interests. By contrast, the conduct of the applicant in the present case was deliberate, planned, and, potentially, profitable. It required substantial investment in infrastructure (some of which was already in place) and electricity. It also required considerable time and skill to grow seedlings from seeds, and plants from cuttings struck from mature plants. It is not a mitigating factor that the applicant's parents smoked cannabis when the offence to which he pleaded guilty was the cultivation of not less than a commercial quantity of cannabis. The applicant's education and employment history showed that, whatever part his parents' drug-taking had played in his childhood, he was able to make his way in the world, gain an education and work as a real estate agent for several years. That he was able to stop smoking cannabis when he was away from his parents' place shows that he could control his use. At the time of the execution of the search warrant he was 36 years old and had a nine-year old son.
I regard her Honour's use of the word "blame" in the context of the applicant's evidence in which he sought to attribute responsibility for his conduct to his mother as not only open on the evidence but also entirely apposite. The applicant's mother died about a year before the search warrant was executed. She had been demented for a decade prior to her death and had not smoked, or cultivated, cannabis during that period. Unlike the appellant's conduct in Bugmy v The Queen, the cultivation of a commercial quantity of cannabis is hardly an impulsive, counterproductive act to the consequences of which a person can be said to be inured as a result of childhood influences. Rather it is a skill which requires knowledge, diligence, equipment, and consistent application.
Ground 3 has not been made out.

Proposed orders

I propose the following orders: 1. Grant leave to appeal. 2. Appeal dismissed.
CAMPBELL J: I agree with Adamson J that the leave to appeal should be granted and the appeal should be dismissed. Subject to what follows I respectfully agree with her Honour's reasons.
I would not regard the statement in the agreed facts, that "Also located in the house were clear resealable bags and a set of scales" as incriminating. Probably every kitchen in every home in Australia is equipped with clip-lock snack bags and kitchen scales. There is nothing in the agreed facts to indicate that these items were other in the kitchen or to put it another way were located in proximity to the cannabis stock pile the police found, other drug paraphernalia, or unaccounted for cash (there is none of this in this case). More importantly, the learned sentencing judge made no such finding. She accepted there was "no indicia that [the applicant] was selling" cannabis, despite her finding that "[the applicant] was ready to supply". Indeed she did not say that she rejected the applicant's evidence that the resealable bags and scales were in the kitchen and "were there for the normal sort of use that most people would use them" (Reasons p. 2).
Her Honour rejected the applicant's explanation of cultivation for personal use as she was clearly entitled to do. Correctly, however, she did not use the absence of another "rational explanation" (Reasons p. 4) as evidence of a commercial purpose. As Adamson J points out commercial purpose is not an element of the offence. The learned sentencing judge very carefully made clear that she relied upon the number of healthy plants, the sophistication of the hydroponic setup, and its apparent capacity to infer that the applicant was in a position to supply had he chosen to do so. In circumstances where she rejected the applicant's "innocent" explanation the factors her Honour identified supported the finding she made which was clearly relevant to the question of the objective seriousness of the offending.

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Sch1 Interpretation Act 1987(NSW)

Judgment

JOHNSON J: I agree with Adamson J.
ADAMSON J: The applicant seeks leave to appeal against a sentence imposed on him for the offence of cultivation of not less than the commercial quantity of a prohibited plant (cannabis) under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Act). On 24 August 2016 the applicant was sentenced to a term of imprisonment of three years which commenced on 24 August 2016, with a non-parole period of two years.
The applicant seeks leave to appeal on the following grounds: 1. The sentencing judge erred in the assessment of the objective seriousness of the offence which resulted in the sentence being manifestly excessive. 2. The sentencing judge failed to apply the principles in The Queen v De Simoni (1981) 147 CLR 383 in finding, and taking into account, that the applicant was ready to supply cannabis if it had not already occurred. 3. The sentencing judge erred in finding that the applicant "blamed" his mother for his offending contrary to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
Except where otherwise indicated, all references to statutory provisions in these reasons are references to the Act.

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