HEWITT v REGINA

HEWITT v REGINA - [2007] NSWCCA 353 - NSWCCA 2007 case summary — Zoe

[29]

(a) Ground 1: His Honour erred by treating the applicant's prior conviction for cultivating cannabis as a matter of serious aggravation 14 As the Crown observed in its submissions, s.21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 should be read according to the common law principle, namely, that proportionality requires that the upper limit of a sentence be set by the objective circumstances: Regina v Johnson [2004] NSWCCA 76; Regina v Wickham [2004] NSWCCA 193 at [24] and Regina v McNaughton [2006] 163 A Crim R 381 at [12], [24]. 15 In Regina v Hamid [2006] 164 A Crim R 179 at [145], Johnson J (Hunt AJA and Latham J agreeing) said:- "The principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions: Regina v McNaughton … at [24]-[25]. However, the respondent's prior convictions are pertinent to an assessment as to where, within the boundary set by the objective circumstances, a sentence should lie by reference to his attitude of disobedience towards the law and increased weight to be given to retribution, personal deterrence and the protection of society: Regina v McNaughton at [26]." 16 The Crown acknowledged that the sentencing judge appears to have accepted the submission made by the Crown that the previous conviction was a matter of aggravation. Expressed in those terms, the Crown accepts that that was an error. 17 It, however, submitted that on the basis that this Court came to the view that the sentencing judge took the previous record of the applicant into account in an impermissible way, then in the circumstances, no lesser sentence was warranted. 18 In the written submissions on behalf of the applicant, it was contended that the applicant's conviction in 1991, which resulted in a fine of $1,500 reflected both the fact that the matter was clearly at the lower end of the range of objective seriousness as well as the applicant's very favourable subjective circumstances. It did not justify a conclusion that the applicant's criminal record demonstrated that the commission of the offences here in question constituted a continuing attitude of disobedience of the law or provide a proper basis for the sentencing judge to treat the 1991 cultivation conviction as "a matter of considerable concern and serious aggravation" of the instant offences. It was further submitted for the applicant that his Honour failed to take into account evidence suggesting that the applicant was no longer smoking cannabis at the time of sentence and had taken positive steps to address his cannabis addiction. 19 In stating, as the sentencing judge did, "Clearly, the fact that he had been caught before, however small, however long ago, is a matter of considerable concern and serious aggravation", Mr Boulten SC submitted his Honour erred and that it was likely that this aspect impacted on the length of each sentence. However, the Crown submitted, whether or not there was error in this respect, the question was whether or not any lesser sentence was warranted. I will return to that question following consideration of the remaining grounds relied upon.

[46]

• An organised criminal activity based on the activities of a number of people participating in the supply of prohibited drugs. 34 In oral submissions, Mr Boulten stated:- " The deemed supply of cannabis leaf was fairly standard, and I must say deemed supply of one and a half kilograms of leaf there is nothing attendant about the objective facts of his possession of that cannabis for the purposes of supply which dictate that it be described as being part of a planned and organised criminal activity. Likewise his possession of the home made resin in the sock in the drawer in the bedroom does not, in my submission, allow the conclusion that his possession of it albeit for the purposes of supply was part of a planned and/or organised criminal activity. Likewise the growing of the cannabis was not such as to lead to such a conclusion even though it did involve, as it were, a hydroponic system that involved the use of lights. There was nothing special about the way that this small system in the back bedroom was being utilised to describe it in a way which justifies the determination that this was part of a planned and organised criminal activity. There were a number of lamps used, the plants were clearly fertilised, but so too you might think would all marijuana plantations be fertilised. It would be almost unthinkable that people would just throw the seeds in the ground and watch them grow. You have to water them, and if you grow them inside you need to put a light on them. We submit that for instance the absence of automatic watering systems, and air-conditioning systems that are often seen in hydroponic operations allows the conclusion that this was a fairly standard small scale hydroponic crop which did not allow for the conclusion his Honour drew that it was a part of a planned and organised criminal activity." 35 It was argued on behalf of the applicant that, against the notion that the offences were part of an organised criminal activity, were the fact that:-

[50]

• The police did not find "the usual trappings" of a drug dealer. 36 I have examined the transcript of the intercepted telephone calls between the applicant and Knight in the period 29 January 2006 and 12 February 2006. The applicant admitted in evidence that at least some of these calls related to giving Knight cannabis (his evidence was that they related to one supply of two ounces of cannabis). He said that he had obtained timber supplies from Knight (who operated a mill for several years) in relation to his contract fencing business. He said in the ERISP that he had known Knight for approximately 30 years. He claimed that he gave the two ounces to Knight, one for Knight himself and one for a person referred to on the taped conversation only as "old mate". In return, he said he received an allowance on the price of timber next obtained from Knight. 37 The intercepted telephone conversations between the applicant and Knight do not record any discussion about type, quality or price of cannabis and they arguably relate to the one occasion involving the abovementioned supply of cannabis to Knight. They do not support a conclusion that the applicant and Knight were discussing the subject of ongoing drug supply or any other transaction than the one to which I have referred. 38 The offence of supply prohibited drug (Count 2) was an offence that plainly required and involved a degree of planning. 39 The sentencing judge, however, was enjoined by s.21A(2) against taking into account any aggravating feature if it is an element of the offence charged. That injunction has been extended to circumstances that are "an inherent characteristic of the offence charged": Yildiz (supra) at [37] per Simpson J. 40 However, this principle, of course, does not mean that the degree to which the "inherent characteristic" exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor: Yildiz (supra) at [37] per Simpson J. 41 The sentencing judge did not, with respect, in his conclusion, make appropriate allowance for the fact that the supply and cultivation offences necessarily involved a degree of planning. I would apply the same description of planning as occurred in this case to that utilised by Hoeben J in Readburn v Regina [2007] NSWCCA 60 (Sully and Bell JJ agreeing), namely, that the evidence revealed a "low level of planning". 42 I have concluded that the sentencing judge erred in concluding that the offences were part of an organised criminal activity. The wording of s.21A(2)(n) conveys more than simply that the offence was planned: Fahs (supra) per Howie J at [21]. As Howie J there observed, the fact that there was a level of planning in the offences does not necessarily give rise to an aggravating factor in terms of s.21A(2)(n).

[54]

• The applicant's evidence was that he had made the cannabis resin himself from "the rubbishy cannabis matter that was in those bags" for his personal use. 44 It was submitted on behalf of the applicant that the bulk of the cannabis leaf and resin was of low quality and therefore difficult to market. The quality of the drugs, it was said, impacted on the potential profitability of the enterprise, a significant feature of the objective seriousness of the offence. 45 The complaint made was that the sentencing judge, in effect, expressed the view that the quality of the drug was irrelevant. The sentencing judge stated, inter alia:- "… This Court is not here to reach any firm conclusions about the quality of the merchandise for sale or supply by the offender and it is not even here to reach any conclusions about whether he was a successful supplier of cannabis. The only conclusion I am required to reach is whether he was in fact engaged in this, what the Crown describes as, organised criminal activity." (Remarks on Sentence, pp.3-4) 46 It was contended, in this respect, that the sentencing judge was in error. This was asserted upon the basis that it was relevant to an assessment of the objective criminality of the offending conduct to assess the likely profitability of the enterprise. Reliance was placed upon what was said by Grove J in Regina v Blair (2005) 152 A Crim R 462 at 472, [56]:- "A prominent reason for determining that the offence does not answer the description of one that falls into the mid-range of seriousness for an offence of the relevant kind is that … the weight of the prohibited drug was in the lower part of the range of defined commercial quantity and it was an extremely low purity." 47 In response, the Crown contended that the legislation relating to the supply of prohibited drugs involves a scale of seriousness that is reflected in the increase in maximum penalties available as the quantity of prohibited drugs increases. This, it was said, reflects the legislature's view that the greater the quantity of prohibited drugs supplied, the more serious is the criminality. 48 The Crown further observed that the comments by the sentencing judge and which are extracted above, were made in the context of his assessment of whether or not the applicant was involved in "organised criminal activity". 49 The Crown alternatively argued that if there was error in not taking into account the quality of the cannabis then it did not appear that his Honour had given any impermissible weight to that fact by increasing the appropriate sentence. 50 This was not a case in which the evidence established in any detail or specificity the purity levels of the cannabis leaf or cannabis resin. I do not consider that the sentencing judge was in error in relation to the significance of the quality of the material when the evidence did not, in my opinion, oblige him or permit him to reach any worthwhile conclusions about the quality of the cannabis materials.

[55]

(d) Ground 4: His Honour failed to take into account the fact that the applicant was likely to have consumed himself some of the cannabis leaf and resin 51 On behalf of the applicant, reliance was placed on his evidence to that effect that much of the material was for his own use. By his plea, it was acknowledged that at least some of both the cannabis leaf and cannabis resin was in his possession for the purpose of supply to others. However, it was argued that it was a mitigating factor that it was likely that some of it would be for his own use. 52 In support of this contention, it was said that there was no dispute but that the applicant had been a significant and chronic smoker of cannabis. Accordingly, so the argument ran, there was little reason to doubt his claim that he would have used some, if not most, of the leaf and resin himself. 53 The criticism made is that nowhere in the remarks on sentence did the sentencing judge comment on how the applicant's intention to use some of the material himself impacted on the objective criminality of the offence. The greater the likelihood of personal use, the less would have been available for supply to others. This, it was said, would go in mitigation of the penalty. 54 Accordingly, the submission was that the sentencing judge over-valued the objective criminality of each of the charges. 55 The Crown relied upon the amount specified in the indictment and the agreed statement of facts and certificate from the Division of Analytical Laboratories which were tendered without objection. 56 The plea of guilty, it was observed by a person with knowledge of the relevant facts, is to be taken as a formal admission by that person of the necessary legal ingredients of the offence. 57 The evidence the applicant gave as to personal use was said to be vague. No attempt was made to quantify the amount that he would have consumed himself. 58 The Crown further contended that the sentencing judge was in the best position to make an assessment of the applicant from seeing him give evidence and from hearing the evidence. The sentencing judge plainly did not accept that the applicant had been truthful and reliable in a number of respects. 59 Reliance was also placed upon the fact that the sentencing judge did find that he began the cultivation "not only for his own purposes" but in a commercial way for the purpose of supplying to Knight and others (remarks on sentence, p.7). 60 The sentencing judge correctly emphasised that the applicant's credibility was undermined by his conflicting evidence and his initial untruthfulness in the ERISP. In those circumstances, his Honour was not constrained to accept the applicant's evidence that the cannabis material was primarily for his own use. The sentencing judge did not, in my opinion, overvalue the objective criminality of each of the charges.

[57]

(f) Ground 6: The sentences were manifestly excessive 63 On the conclusion earlier expressed, the sentencing judge erred in giving undue weight to the applicant's 1991 conviction and in characterising the offences as part of an organised criminal activity. 64 The issue then becomes whether the sentences imposed were manifestly excessive in light of those conclusions. In other words, was the objective criminality of the offences assessed at an appropriate level, having regard to the other findings made and the relevant circumstances of the offences. 65 In considering the sentence imposed, it is also, of course, necessary to have regard to the applicant's subjective circumstances. In this respect, there were favourable matters in terms of the applicant's work history and the fact that he has not previously had a custodial sentence imposed upon him. Regard is also to be had to the references which were tendered at the sentencing hearing. 66 The question of penalty involves the relationship between s.3 (which defines "cannabis leaf" and "cannabis resin" and s.32 of the Drug Misuse and Trafficking Act which prescribes penalties for offences dealt with on indictment not involving commercial quantities and the present offences fall within that category. The supply offences, as earlier indicated, were created by s.25 of the Act. 67 The Judicial Commission statistics which were provided to the Court in respect of s.25 supply prohibited drug (including deemed supply, cannabis resin - less than the commercial quantity) reveal terms of sentence in respect of seven cases of which only three were subjected to custodial sentences. In one case, the offender was sentenced to a term of imprisonment of five years, a second to 48 months and a third to 12 months imprisonment. The sentences were imposed from October 1999 to September 2006. 68 In respect of the same offences, the statistics in respect of non-parole period and fixed terms in relation to three cases reveal six months in one case, 12 months in a second case and 24 months in a third case. The statistics, of course, do not constitute a guide against which to evaluate the sentences imposed in the present proceedings. They are general information only and the statistics are based on a very small number of cases. 69 In Regina v Boorer (CCA, unreported 15 November 1990, Gleeson CJ Grove and Loveday JJ), this Court dismissed an appeal imposed by the District Court in respect of one offence of supplying cannabis leaf and to another of supply cannabis resin. The sentencing judge imposed a sentence on each charge comprising a minimum term of two years and an additional term of eight months, the sentences to be served concurrently. 70 The offender at the time of arrest had three bags containing a block of cannabis resin weighing 28 grams (as against 194 grams in the present case) and seven small and five larger bags containing cannabis leaf and an unspecified amount of cannabis resin. The drugs seized had an estimated street value of $5,000 or, if sold in smaller quantities, not less than $9,000. The sentencing judge was satisfied the drug was for ultimate resale. The offender was aged 29 years and had prior convictions relating to the misuse of drugs. 71 In Sales v The Queen (CCA, unreported 2 June 1989), this Court (Kirby P, Lee and McInerney JJ) re-sentenced on appeal the appellant in respect of two charges of supplying a prohibited drug under s.25 of the Drug Misuse and Trafficking Act 1985. The first charge was the supply of cannabis leaf. The second was in the same terms, except it related to the supply of cannabis resin. The drug in leaf form consisted of 827 grams of cannabis resin and 110 grams of cannabis leaf. 72 This Court imposed a sentence of four years and six months for the offence of supply cannabis resin. The offender was a mature man (38 years). He had been in regular employment. He had had drug convictions in 1972 (possessing a dangerous drug and possessing instruments fro smoking the drug and a conviction for selling a drug of addiction). 73 This latter case was plainly a more serious case to the present (827 grams v 194 grams of cannabis resin). The total amount of cannabis resin in Boorer is, as noted above, unclear from the judgment, but appears to have involved lesser quantities than in the present case. It, however, provides an example of a case falling in the general range relevant to which the present case belongs. 74 Notwithstanding the very persuasive submissions of Mr Boulten, I have concluded that, notwithstanding the sentencing errors identified above, the sentence imposed is within the range of sentences for the offences in question. 75 Courts have, of course, made it clear that drug trafficking will result in custodial sentences unless there are very special circumstances. The extent of supply in this case was of a limited nature. However, the applicant is a mature man who, by reason of his earlier experiences, can hardly be unaware of the serious consequences of dealing in prohibited drugs. 76 I, accordingly, would grant leave to appeal, but order that the appeal be dismissed. 77 PRICE J: I agree with Hall J. **********

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