Eyles v R

Judgment 1HOEBEN CJ at CL: I agree with McCallum J. 2ROTHMAN J: I agree with McCallum J. 3McCALLUM J: Jeffrey Paul Eyles seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to an offence of cultivating prohibited plants (cannabis) by enhanced indoor means for a commercial purpose contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is a fine of 3500 penalty units or imprisonment for 15 years, or both: s 33(2)(b) of the Act. The applicant was sentenced to a term of imprisonment with a non-parole period of eighteen months and a balance of term of eighteen months, giving a total sentence of 3 years imprisonment. 4The applicant also pleaded guilty to two firearms offences. There is no ground of appeal in respect of the sentences passed for those offences. Both arose from the applicant's possession of a plastic handgun. The laying of two charges reflects the fact that the applicant was not licensed and the handgun was not registered. The first was a charge of unauthorised possession of a prohibited pistol contrary to s 7(1) of the Act, which carries a maximum penalty of imprisonment for 14 years with a standard non-parole period of 3 years. The second was a charge of possessing an unregistered firearm contrary to s 36(1) of the Firearms Act 1996. The maximum penalty for that offence, if the firearm is prohibited (as it was in the present case), is imprisonment for 10 years. 5At the time sentence was passed, the applicant was also dealt with for a series of offences on a "form 1" in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999. All of those offences arose out of the circumstances underlying the main drug charge. 6The applicant pleaded guilty to all offences at the earliest opportunity. The learned sentencing judge allowed a discount of 25% to reflect the utilitarian value of those pleas. 7The charges arose from the execution of a search warrant at the applicant's home. The applicant was not present when police arrived to execute the warrant. The search revealed the existence of a large sophisticated hydroponic cannabis plantation in the garage of the home. The windows of the garage were covered with black plastic tape. Substantial changes had been made to the premises including the installation of large electronic fans to allow fresh air to be drawn into the garage. 8Within the garage were six purpose-built individual growing rooms, each consisting of a high wattage globe suspended above a growing tray. Some of the lights were operated with timers, while others were operated manually. The plants were serviced with watering trays and electric water pumps, which fed high nutrient water to the plants. 9The six growing rooms were found to contain 58 cannabis plants described in the agreed statement of facts as being of very high quality and healthy, having an average height of over a metre. 10The search revealed that the applicant had bypassed the electricity meter so as to service the cultivation at no cost. 11In addition to the 58 growing plants, police located a plastic tub containing an amount of drying cannabis next to a fan; a small packet of cannabis seeds in a kitchen cupboard; a plastic tub containing eight individually packaged quantities of dried cannabis leaf and head in a bedroom and two further plastic shopping bags of dried cannabis head in a bedroom cupboard. Police also found an outdoor cannabis plot, which appeared to have been harvested recently. The outdoor plot contained a single remaining living cannabis plant. The cannabis drying in the garage, the packets of cannabis in the bedroom, the cannabis seed and the single outdoor plant formed the basis of four of the charges taken into account on the form 1 (two of possessing a prohibited drug; one of supplying a prohibited drug and one of cultivating a prohibited drug). Also on the form 1 were two charges of consuming electricity without authority and altering an electricity meter without authority. 12The plastic handgun was found in a bedroom. It was described in the statement of facts as a BB type gun with an operating slide, trigger assembly and magazine clip. No rounds of ammunition were located within the gun. 13The applicant returned home during the execution of the warrant. He was arrested and agreed to participate in an electronically recorded interview. He made full admissions as to his responsibility for the construction and complete operation of the hydroponic system and possession of the other cannabis. The applicant told police that the cannabis drying in the garage had been freshly harvested from the outdoor plot. He admitted that he intended to package and sell that cannabis. He also admitted that the packaged cannabis in the bedroom had been harvested from the original crop of hydroponic plants grown before the existing crop found by police. He stated that the entire system had been established for the sole purpose of growing cannabis for sale and financial gain and that he hoped to make $10,000 from its sale. 14As to the plastic handgun, the applicant admitted that it was his. He said that he had owned it for many years. He did not know whether it worked and had never fired any projectile from it. 15The applicant gave evidence at the proceedings on sentence in which he appeared to resile from his admissions to police that the cannabis had been cultivated for sale and financial gain. He said that, until about two months before the execution of the search warrant, he had been a heavy user of cannabis. He gave the following evidence: Q. And essentially you'd told them that you were intending to sell the crop, do you remember saying that? A. Yes I did say that but .. Q. Why did you tell them that? A. Well I was caught with so much and I just - I'd been in rehabilitation, I'd put myself in about two months before that and I just felt silly that I'd been caught with so much marijuana and I just didn't want to lie to them and if someone had've come along I probably would've sold it, I didn't know what else to say at the time, I was pretty flustered. 16He later reiterated that evidence, saying that he had no concrete plans set in place with a buyer; that he didn't even own a mobile phone and that he didn't know what he was planning to do but that he acknowledged he probably would have sold the cannabis "if someone had have turned up with the money". In response to a series of leading questions from his solicitor, he said that he had not in fact taken any steps to find a buyer and that the commercial purpose of the cultivation was, in that sense, hypothetical. 17The judge considered that evidence but was satisfied that a major purpose of the enterprise was financial, to raise money by selling the bulk of the proceeds of the crop for profit or financial gain. That finding was plainly open on the evidence and is not challenged (except perhaps obliquely) on the present application. His Honour made the obvious point that, if the offender had been meaning to give up cannabis, he would have had no personal use for the large quantity of plants found. Those findings informed his Honour's assessment of the overall criminality of the offending, which his Honour found entailed "a sophisticated setup" involving the deliberate and conscious bypassing of the electricity system. 18As to the firearms offences, the judge was not satisfied that the possession of the gun was in any way related to the drug matters, evidently accepting what the applicant told police on that issue. His Honour regarded those offences as "comparatively minor". 19The judge noted that the applicant was 56 years of age and was in poor health. His Honour was not satisfied beyond reasonable doubt as to any aggravating features of the offences. He accepted that the applicant was rehabilitating himself and had encouraging prospects in that respect. He took into account the plea of guilty and allowed the maximum discount of 25%. His Honour indicated that, but for the plea, the overall sentence would have been one of 4 years imprisonment. Applying the discount to reflect the utilitarian value of the plea, his Honour imposed an overall sentence of 3 years. His Honour determined not to accumulate the sentences in respect of the firearm. 20The judge made a finding of special circumstances based on the fact that this would be the applicant's first custodial sentence and having regard to his poor health, which his Honour accepted would make custody "somewhat more oppressive" for him, together with the positive indications of rehabilitation. On the strength of that finding, his Honour fixed a non-parole period of 18 months, which is 50% of the aggregate sentence (compared with the statutory requirement in the absence of special circumstances of 75%). 21For the firearms offences, his Honour imposed a fixed term of six months for each offence, to be served concurrently with the sentence imposed for the drug offence (which took into account the additional charges on the form 1). 22For reasons which will emerge, it is necessary to deal with the fourth ground of appeal first. Ground 4 is: The sentencing judge erred in sentencing to a plea under s 23(1)(a) of the Drug Misuse and Trafficking Act 1985. 23Some explanation is required. The applicant was charged by means of a court attendance notice which alleged the commission of an offence contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985. That section creates an offence of cultivating prohibited plants by enhanced indoor means for a commercial purpose. The section specifically applies where the number of plants is less than the commercial quantity, which was not the case here. The commercial quantity of cannabis plants cultivated by enhanced indoor means is 50. The number of plants cultivated by the applicant exceeded that, being 58 plants. It will be necessary to return to the significance of those matters. 24The applicant pleaded guilty to the offence alleged in the court attendance notice. That is, he admitted that he cultivated a number of prohibited plants by enhanced indoor means for a commercial purpose. 25In his remarks on sentence, the learned sentencing judge said: The first offence was contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act cultivating by enhanced indoor means a prohibited plant namely cannabis and the quantity was commercial because it exceeded fifty, not by very many but that is why it is commercial. The maximum penalty for that is fifteen years imprisonment and/or a fine. 26Ground 4 as articulated in the notice of appeal focuses on the fact that his Honour is recorded as having sentenced following a plea to an offence against s 23(1)(a) of the Act. At the hearing of the present application Mr Bassett, who appeared for the applicant, conceded that the reference in that passage of the remarks on sentence to "s 23(1)(a)" is probably a transcription error, since his Honour's remarks on sentence were delivered orally and the phrase "section 23(1)(a)", read aloud without punctuation, sounds the same as the phrase "section 23(1A)". 27Not withstanding that concession, which was fairly and properly made, some confusion remains. The Drug Misuse and Trafficking Act creates two separate but similar offences related to the commercial cultivation of prohibited plants. Pursuant to s 23(1A), it is an offence to cultivate prohibited plants by enhanced indoor means for a commercial purpose (my emphasis). As already noted, that offence expressly applies to the circumstance where the number of plants is fewer than the commercial quantity (which, for cannabis plants cultivated by enhanced indoor means, is 50). 28Separately, s 23(2)(a) creates an offence of cultivating a commercial quantity of prohibited plants (my emphasis). Thus in the case of cultivation of cannabis plants by enhanced indoor means, the Act criminalises (in separate sections) the cultivation of fewer than 50 plants for a commercial purpose and the cultivation of more than 50 plants, which attracts the characterisation of being commercial simply by reference to the number of plants. Significantly, each offence carries the same penalty being (in the case of cannabis plant) a fine of 3,500 penalty units or imprisonment for 15 years or both: see s 33(2) of the Act. 29In the present case, there were more than 50 plants and accordingly the applicant could have been charged with an offence of cultivating the commercial quantity (for cultivation by enhanced indoor means) of cannabis plants contrary to s 23(2) of the Act. 30The fact that it was a case in fact involving more than 50 plants where that was not an element of the offence appears to have introduced a degree of confusion at the proceedings on sentence. The Crown opened by providing to the Court (among other things) the statistics maintained by the Judicial Commission of New South Wales in respect of sentences imposed for the offence described as "s 23 - cultivate by enhanced indoor means prohibited plant (cannabis plant - commercial quantity)", which describes s 23(2). 31The applicant's legal representative then proceeded to lead evidence from the applicant directed to qualifying or resiling from his admissions to police concerning the commercial nature of the undertaking. According to the statement of facts (tendered by consent), the applicant had told police that he had harvested the cannabis from the outdoor plot with the intention of packaging and selling it; that the packaged cannabis located in the spare bedroom had been cultivated and packaged for the purpose of sale and that the entire system was established for the sole purpose of growing cannabis for sale and financial gain, with a self-imposed sales target of $10,000. 32The applicant's evidence at the proceedings on sentence (to the effect that, in truth, he simply found himself with too many cannabis plants after ridding himself of his own addiction) would have been relevant to mitigate an offence under s 23(2), where the possession of more than 50 plants is taken to have a commercial aspect but is amenable to a more innocent explanation. However, that evidence potentially derogated from the applicant's plea to a charge under s 23(1A), since cultivation for a commercial purpose is an element of that offence and is taken to have been admitted by the plea of guilty. 33The transcript of the proceedings on sentence does not record counsel's addresses, but there was certainly no issue raised by the Crown during the evidence as to the appropriateness of relying on evidence potentially inconsistent with the plea. 34Those aspects of the conduct of the proceedings on sentence may, in turn, have introduced some measure of confusion in the mind of the sentencing judge, reflected in his Honour's statement that "the quantity was commercial because it exceeded 50, not by very many but that is why it is commercial". 35To the extent that those remarks do reflect any confusion (which is by no means clear), I am nonetheless not persuaded that the sentencing judge was distracted from his proper task to any significant degree. As already noted, Parliament regards the cultivation of less than the commercial quantity of cannabis plants by enhanced indoor means concededly for a commercial purpose as being an offence of equal seriousness to the offence of cultivating the commercial quantity of cannabis plants by enhanced indoor means. 36The judge referred to the correct section and the correct maximum penalty. His Honour undertook a careful evaluation of the overall criminality of the offending. If there was any misapprehension, which may be doubted, it was evidently confined to the proposition that the element of commerciality derived from the number of plants, whereas that element derived from the applicant's own admission. In my view, ground 4 must be dismissed. 37Ground 1 is: The sentencing judge erred in finding that the objective degree of seriousness of the offence was in the mid to high range and sentenced him on that basis. 38It is convenient to consider that ground together with ground 2, which is: The sentencing judge gave undue weight to the factor that the appellant carried out the offences for commercial purposes 39The judge did not make a finding in the terms expressed in ground 1. The applicant submitted that his Honour "made such a finding without expressly stating so". The basis on which it is said that might be inferred is not entirely clear. The applicant sought to sustain the submission with the contention in ground 2 that the judge gave undue weight to the commercial purpose of the enterprise. Mr Bassett submitted that, whilst the applicant had the ability to organise the production of the plants, he had "no setup at all in relation to their commercial exploitation". 40The applicant further submitted that the judge "gave no consideration to the fact that the number of plants being 58 was derived more by accident than a commercial design. The entire crop was cloned from between four and eight plants". 41The principal difficulty with those contentions is that they overlook the plea which, as already noted, necessarily entailed an admission that the plants were cultivated for a commercial purpose. That was an admission as to the purpose for which the plants were cultivated. To suggest that the applicant's possession of more than 50 plants was merely a misfortune derogates from that admission. Even leaving aside that issue, I see no error in the judge's assessment of the overall criminality of the applicant's offending. His Honour's finding that the setup was sophisticated and involved deliberately bypassing the electricity system was plainly open. His Honour had appropriate regard to the fact that the Parliament has marked cultivation by indoor enhanced means as a very serious offence. I do not think there is any substance in those grounds. 42Ground 3 is: Given that the number of plants was at the very lowest end of the threshold for commercial quantity, the sentence was at the high end for this threshold range under the Act and was harsh and severe. 43To the extent that this ground relies on the number of plants, it perpetuates the misconception considered above in respect of the other grounds. The applicant pleaded guilty to an offence an element of which is that his cultivation of the plants was for a commercial purpose. He in fact cultivated more than the number of plants required to establish the offence and, in any event, that is not the sole determinant of its seriousness. 44To the extent that ground 3 is otherwise to be understood as a complaint that the sentence was manifestly excessive, in my view it must be rejected. The applicant submitted that the judge found that the maximum sentence for the cannabis offences including the electricity on form 1 was 5 years. The applicant appears to have understood that as a reference to the sentencing statistics considered by his Honour. In fact, it is clear from the remarks on sentence that his Honour was referring (correctly) to the fact that the maximum sentence for one of the electricity offences on the form 1 was 5 years. 45The sentencing statistics provided by Mr Bassett to this Court reveal that the present sentence was within the pattern of those statistics. 46Mr Bassett invited the Court to consider, as a comparable case, the decision of this Court in Zepina v R [2010] NSWCCA 155. I do not think that decision provides any support for the applicant's case. There the offender's operation, as with the applicant's in the present case, was described as being sophisticated; while the plants seized there numbered 37 in comparison with the 58 found in the applicant's garage. In both instances an early plea of guilty was entered resulting in the application of a 25% discount to the sentences imposed. In each case there was a finding of special circumstances allowing a departure from the statutory ratio resulting in a non-parole period equal to 50% of the aggregate sentence. Significantly, the two year and six month sentence the subject of appeal in Zepina was described by Whealy J (as his Honour then was) as a "very lenient sentence indeed". In view of that characterisation of the sentence imposed in what Mr Basset contended, and I accept to be, a comparable case, it can hardly be said that the sentence the subject of the present appeal fell outside, or was even towards the upper limits of, the permissible range for an offence of this type, especially when one considers that the applicant's operation had yielded a somewhat larger crop. 47Separately, the applicant complains that, in making his finding of special circumstances such as to warrant reducing the ordinary ratio of the non-parole period to the balance of term, his Honour did not refer to the pre-sentence report. It is difficult to understand that complaint in circumstances where the non-parole period was 50%, rather than the usual 75%, of the total term imposed. 48I am not persuaded that the sentence entailed error. The orders I propose are that leave to appeal be granted but that the appeal be dismissed.