Gumbleton v R

Court of Criminal Appeal (NSW)|2017-11-17|Before: Bathurst CJ, Hulme J, Wilson J, Mr J

Solicitors: Law Magill Solicitors Solicitor for Public Prosecutions File Number(s): 2016/191654 Decision under appeal Court or tribunal: District Court Date of Decision: 2 March 2017 Before: Wells SC DCJ File Number(s): 2016/191654

Judgment

BATHURST CJ: I agree with the orders proposed by R A Hulme J and with his Honour's reasons.
R A HULME J: Edward Garry Gumbleton ("the applicant") was sentenced in the District Court at Lismore by her Honour Judge Wells on 2 March 2017. Her Honour imposed an aggregate sentence of imprisonment for 5 years 3 months with a non-parole period of 3 years 9 months. The applicant will become eligible for release on parole on 19 September 2020.
Details of the offences and the sentences the judge indicated she would have imposed if she was not imposing an aggregate sentence are as follows: Offence Provision of the Drug Misuse and Trafficking Act 1985 (NSW) Maximum penalty Indicative sentence Knowingly take part in the cultivation, by enhanced indoor means, of cannabis plants for a commercial purpose s 23(1A) Imprisonment for 15 years and/or a fine of 3500 penalty units 2 years 7 months Knowingly take part in the supply of not less than the commercial quantity of cannabis, namely 67.79kg s 25(2) Imprisonment for 15 years and/or a fine of 3500 penalty units 4 years 6 months Supply a prohibited drug, namely 23.55kg of cannabis leaf s 25(1) Imprisonment for 10 years and/or a fine of 2000 penalty units 3 years

The applicant seeks leave to appeal upon the following grounds: 1. Her Honour erred in not giving effect to the finding of special circumstances. 2. The fact that her Honour imposed the same sentence on the applicant as his co-accused Chaloner left him with a legitimate sense of grievance.
Ground 2 relates to the sentencing of a co-offender, Steven Chaloner, who was sentenced jointly with the applicant.
A further ground contending that the sentence was manifestly excessive was abandoned at the hearing of the application.

Ground 1 - error in relation to finding of special circumstances

Ground 1 may be dealt with immediately because I am satisfied that it has merit.
The sentencing judge found special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on the basis that the applicant would spend "a longer period upon release [on parole] under supervision in order to best facilitate [his] rehabilitation and avoid the risk of re-offending".
Without a finding of special circumstances, the judge was required to sentence such that the non-parole period was at least three quarters of the aggregate sentence. That has the effect that in the present case, without the finding of special circumstances, the non-parole period would have been at least 3 years 11.25 months; rounded down, 3 years 11 months. The finding of special circumstances therefore reduced the non-parole period by only two months.
A finding of special circumstances was well open to be made in this case. It was indicated in a Pre-Sentence Report that the applicant had used cannabis for most of his adult life. He had ceased the use of drugs for about 5 years from the age of 28 but acknowledged that since then he had been using the drug regularly until his arrest for the present offences. He also disclosed to the author of the report that he had used cocaine and ecstasy as well. The author indicated that the applicant would benefit from a period of supervision by Community Corrections and that a case plan would focus upon referral to the drug and alcohol services for programs, counselling or rehabilitation as deemed appropriate; referral or monitoring of appropriate mental health service intervention; regular reporting to Community Corrections; and home visits at the applicant's approved address.
In MD v R [2015] NSWCCA 37 at [39]-[43], Gleeson JA (with the agreement of Johnson and Hall JJ) identified principles relating to a ground of appeal asserting that a sentencing judge failed to reflect a finding of special circumstances. At [43] his Honour said: "The starting point with appeals asserting such error is to ascertain 'what can be gleaned of the judge's intention from the sentencing remarks': Maglis v R [2010] NSWCCA 247 at [24] (Howie AJ)."
There is nothing in the judge's sentencing remarks that would indicate that she had in mind an extremely modest reduction of the non-parole period.
Mr Stratton SC took the Court to the decision of this Court in Dawson v R [2013] NSWCCA 61. That was a case in which a judge had found special circumstances but imposed an overall sentence where the non-parole period was 72.2 per cent of the overall head sentence. For the individual sentences the judge imposed non-parole periods that were 60 to 66 per cent of the individual sentences. Schmidt J (with whom Price and McCallum JJ agreed) said (at [46]), "[t]hat result was not explained and did not reflect his Honour's conclusions as to special circumstances".
Mr Stratton also took the court to my judgment in El-Ahmad v R [2015] NSWCCA 65 where (with the agreement of Beazley P and Adamson J) I said (at [50]): "Gleeson JA recently collected authorities relevant to a ground such as this in MD v R [2015] NSWCCA 37 at [38]-[43] and it is unnecessary to restate them. As the Crown submits, a finding of special circumstances is discretionary and this Court will be slow to intervene in relation to such judgments made at first instance. However, it rather makes a mockery (to adopt the expression of Howie J in R v Sutton [2004] NSWCCA 225 at [30]) of finding special circumstances to reduce the non-parole period of a total term of 5 years 6 months by only 6 weeks. In my view, the discretion has miscarried."
It must be acknowledged, as the Crown submitted, that the judge followed her finding of special circumstances by saying: "They each have good prospects of rehabilitation. They have been two very able and largely law-abiding, hard working men who have, in many ways, made valuable contributions to the community. However their rehabilitation, and those subjective circumstances, are not the only matters to which the Court must have regard. The Court must have regard to imposing sentences that reflect deterrence, by imposing sentences that would not only deter them from offending again, but deter other members of the community from committing such offence."
The following submission by the Crown must also be accepted: "The degree of adjustment of the statutory ratio consequent upon a finding of special circumstances was a matter for the exercise of the sentencing judge's discretion."
Accepting those matters, however, I am satisfied that the modest reduction of the non-parole period of only about two months failed to give any practical effect to the stated purpose of finding special circumstances. Accordingly, I am satisfied that the exercise of the sentencing discretion miscarried.
This ground should be upheld and the Court should re-exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and s 6(3) of the Criminal Appeal Act 1912 (NSW).

Facts

There was no dispute that the summary of the facts set out in the judge's remarks on sentence was sufficient and accurate. That summary was as follows: "The factual circumstances are set out in agreed facts … They show that at about 10.15am on 23 June 2016 police attended a rural property at Kyogle Road, Mount Burrell with a search warrant. That property consisted of an old house with a garage underneath. Police found these two offenders and five other males named Dion Wales, Richard Lumsden, Shane Douglas, Zac Kay and Clinton Ellis. … The offender Gumbleton was a resident of the property, having rented the property for nine years. The residence had four bedrooms and a central lounge-room. In the lounge-room there was a table with a number of chairs and a series of small plastic tubs each containing cannabis leaf. There were numerous pairs of scissors and a Cryovac machine on the table, along with written ledgers that, in part, concerned this enterprise. The agreed facts state that the room was used solely for trimming and packaging of cannabis leaf into the Cryovac bags. In a bedroom adjacent to that lounge-room there were three 80 litre barrels of cannabis leaf and a tarpaulin on the floor full of cannabis leaf. It is reasonably open in the circumstances to find that the cannabis leaf was kept ready to be taken into the central lounge for trimming and bagging. Police also found 19 one pound bags of Cryovac sealed cannabis throughout the house. The only inference properly available is that this was done in preparation for commercial sale. Under the house there was a carport and a series of wardrobes. One wardrobe had a false backing and provided entry into the cavity under the house. Police opened another locked door beyond the wardrobe that led into a room where there was a sophisticated enhanced hydroponic system. There were plants growing under lighting systems and a number of nutrients and chemicals in the vicinity. There were 46 plants that ranged between 70 centimetres and 1 metre in height. In another shed the police found an 80 litre barrel of cannabis leaf and other items used in the cultivation of cannabis plants. Police searched vehicles at the residence. In Chaloner's car they found $6,300. A further search revealed $1,065.00 inside Chaloner's wallet and a diary belonging to Chaloner with written ledgers and figures. Another co-accused Douglas indicated that he had been recruited, in effect, to cut up cannabis leaf for money and he had worked there for three days in total before the police arrived. He had not been staying there but had been coming and going. Another co-accused, Lumsden, was interviewed at the scene. Four pound bags of cannabis were found in the boot of his car, but he claimed not to know how it got there. He said that he had been staying at the house for three or four days before the police arrived and declined to say what he was doing there. Another co-accused, Dion Wales, was interviewed and declined to answer any questions about his presence at the property. No drugs were located in his vehicle. The total net weight of the cannabis leaf seized at that property was 67.79 kilograms. The commercial quantity is 25 kilograms, and the large commercial quantity is 100 kilograms. As a result of that search, and material found there, the police proceeded to the offender Gumbleton's other residence at Larnook, another rural location in the area. There they found 23.55 kilograms of cannabis which included 18 one pound bags of cannabis, obviously again in preparation for commercial supply, and two 80 litre drums containing cannabis leaf. Police went to the second residence of the offender Chaloner at Lennox Head. … The premises were searched and police found 6.461 kilograms of cannabis leaf in 33 sealed bags, cannabis resin in the amount of 63.23 grams, a notebook and red diary and $5,000 in cash. The offender Gumbleton was interviewed by police that same day and made admissions to setting up the hydroponic system and growing the plants from cuttings. He admitted that he was the owner of ten one pound bags of cannabis located on his bed. He declined to answer questions in relation to the trimming of cannabis and denied that the cannabis in the ten pound bags had been grown hydroponically. He admitted that he lived there for about eight or nine years and it was a rental property. When he was asked about the diary ledger entries, he declined to answer questions. He also declined to answer questions about the cannabis leaf found at the Larnook property. The offender Chaloner was also interviewed that day. He admitted that a diary or ledger found by the police was his, as well as the wallet. However he claimed that the $6,300 in cash was money he had won at the races [at] Eagle Farm and the $1,000 located in his wallet was left over from the weekend. In the context of all of the incriminating material located at the property, it clearly is not possible to accept that money was won by him at the races. His fingerprints were found on the hydroponic lights in the room under the house where the cannabis plants were growing. The contents of the ledger found in his possession indicated that the co-accused present, were employed as trimmers and that they were being paid about $200 per pound of trimmed cannabis leaf. The ledger indicated that Lumsden was paid about $255 for trimming half a kilogram. Wales trimmed 1.35 kilograms and was paid $605. Douglas trimmed almost a kilogram and was paid $440. Kay trimmed close to 2 kilograms and was to be paid $865. Ellis trimmed over one and a half kilograms and received $745. There were other entries with the names of trimmers and various amounts. The total cannabis leaf seized amounted to almost 100 kilograms, including 97.8 kilograms from the three searches concerning these two offenders. They are not both charged with that total amount. There are some differences in the charges and lesser amounts are applicable to them individually. That figure though indicates the scope of the entire enterprise in which they are involved in the commercial production, preparation and distribution of an illegal drug. The agreed facts indicate that about half of that total amount was found in the form of saleable cannabis heads, the rest, though not in typical saleable form as indicated by the facts, can be used in the production of cannabis resin. There is sufficient evidence to conclude beyond reasonable doubt, that was the purpose for which it was kept given that about 63 grams of cannabis resin was found at the Chaloner's residence and he has pleaded guilty to that offence. The total amount of cash seized from him was in excess of $12,000."

Personal circumstances of the applicant

The judge first set out some detail of the personal circumstances of the co-offender Chaloner. She concluded by saying: "He was assessed as having a medium to low risk of re-offending and on the basis of all of the material and his otherwise good character, that would appear to be accurate. The difficulty for him, in the future, will be reintegrating without socialising with the same people and taking up the same habit."
Her Honour then summarised the personal circumstances of the applicant as follows: "The same can be said for the offender Gumbleton. He was aged 44 at the time of the offending, being born on 16 April 1972. He has no offending of a similar nature to these matters on his record, but he has a serious matter of assault which led to a sentence of imprisonment. That is not a penalty that Mr Chaloner has attracted in the past. Mr Gumbleton was sentenced to a total term of 18 months imprisonment with a non-parole period of 12 months back in 2009 in relation to assault occasioning actual bodily harm. There was a prior similar offence back in 2003 when he was given the benefit of a s 10 bond, and an assault prior to that in 1994, [for] which he was fined. He has not committed any criminal offences since that serious matter for which he was imprisoned in 2009. He too has a very good work history and is spoken of very highly by those people who have provided references. As I have said of Mr Chaloner, and applies equally to them both, that apart from their involvement in this activity, they otherwise seemed to have led, quite pro-social lives in the community. The offender Gumbleton had a less fortunate upbringing than that of his co-offender. It was quite … dysfunctional because he was exposed to very violent physical abuse by his father who was an alcoholic. His mother died when he was in his mid-teens. Those are very strong factors suggesting early destabilisation during important years in his development and are relevant when having regard to his overall subjective circumstances. He had a challenge in his life when he had to become the sole carer of his two young children who had been sexually abused by his ex-wife's de facto partner. The result was that he suffered some mental health repercussions. He now, though, has been in a stable relationship for a significant period of time and has the two children, as well as two grandchildren. Leading up to the offending, like Chaloner, he was a regular abuser of cannabis and had used it for many years. He also mixed in a peer group who used cannabis regularly and that "de-sensitised" him to the adverse impact of drugs on society. He has abstained from the use of cannabis since he has been charge[d], and is highly remorseful. He is described as having a medium risk of re-offending, which is probably attributed to his ongoing struggle with his mental health."

Objective seriousness of the offence

There was no challenge to the judge's assessment of the objective seriousness of the offences which she expressed as follows: "The Court is required to consider the relevant factors in relation to the objective seriousness of the charges. In terms of the more serious offences that each offender faces, that is the enhanced indoor cultivation of cannabis and the supplying of commercial quantity of cannabis, these two offenders were the principals, or organisers, of that enterprise. By the time the police arrived at the door, they had a streamlined, sophisticated system. They were in business akin to a factory production of growing cannabis and packaging and distributing it at a wholesale level. By virtue of the level of sophistication, these activities had been ongoing for some time. Their offending is particularly serious because they recruited other men in the community as employees in order to maximise the amount that could be packaged. They committed the offences for financial gain and were they not apprehended, they could have anticipated quite high profits. Again, in relation to these more serious offences, there were significant quantities of the drugs. The charge of supplying drugs in a commercial quantity, namely 67.79 kilograms of cannabis falls in the middle range of weights for such an offence. It is, though, the other factors that are also relevant in having regard to the overall operation and the objective seriousness. Overall the offences fall towards the upper end of the middle range of objective seriousness."
There was no challenge to this assessment. I agree with it.

Parity in relation to other co-offenders

The judge referred to the prior sentencing of the co-offenders Ellis and Kay. She said they were of "passing relevance"; "they had far less objectively serious roles given that they were in the employ of these two offenders". They were each sentenced to an overall term of 3 years 4 months imprisonment.
In terms of parity between the applicant and the co-offender Chaloner the judge referred to there being similar circumstances, both objective and subjective, but there were some differences. However she said: "[W]hen regard is had to the overall circumstances and involvement of both offenders, it is very difficult to distinguish between them. There are features that mitigate one and not the other and vice versa."
In support of Ground 2, Mr Stratton SC identified a number of features which he said should have brought about a sentence that was less than that imposed upon Mr Chaloner.
First, it was submitted that the evidence suggested that Chaloner was in charge of the finances and thereby had a higher role in the enterprise than the applicant. However, the judge found that the pair were the principals or organisers of the enterprise (see above at [22]) and it must be borne in mind that the business was being conducted in premises rented by the applicant. Moreover, it was not suggested at the sentence hearing that the roles of the applicant and Chaloner were distinguishable.
Secondly, it was submitted that the applicant's level of openness and co-operation with police was greater. It is correct that the applicant made some admissions whilst Chaloner gave a false account about the source of cash found in his possession. But it is also the case that the applicant declined to answer police questions on a number of topics. Both offenders entered early pleas of guilty. Overall, there is little to distinguish the levels of their co-operation.
Finally, it was submitted that the applicant had a more favourable subjective case than Chaloner. In some respects this is correct, but there are countervailing considerations. Overall, her Honour made the favourable finding in relation to both that "[t]hey have been two very able and largely law-abiding, hard working men who have, in many ways, made valuable contributions to the community".
Balancing such differences as there were between the applicant and his co-offender, the sentencing judge was correct to find "it is very difficult to distinguish between them".

Re-sentencing

In my view the aggregate term of imprisonment imposed by the primary judge was a correct exercise of the sentencing discretion, as was the nomination of the indicative sentences for each of the individual offences. I would not assess the sentences any differently. The finding of special circumstances should be maintained. Re-sentencing should be confined to the setting of a non-parole period that gives practical effect to it.

Orders

I propose the following orders: 1. Leave to appeal against sentence granted. 2. Sentence imposed in the District Court on 2 March 2017 quashed. 3. In lieu, sentence the applicant to imprisonment for an aggregate term of 5 years 3 months with a non-parole period of 3 years 3 months. The sentence will date from 20 December 2016. The applicant will become eligible for release on parole when the non-parole period expires on 19 March 2020.
WILSON J: I agree with R A Hulme J.

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: 14 December 2017

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