Solicitors:
R Bakos - Applicants
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2016/191644;2016/191650
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 13 December 2016
Before: Wells SC DCJ
File Number(s): 2016/191644;
2016/191650
[2]
Judgment
HOEBEN CJ at CL:
Offences and sentence
The applicants each pleaded guilty in the Local Court to a charge that on 23 June 2016 they did knowingly take part in the supply of not less than the commercial quantity of cannabis leaf, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty is imprisonment for 15 years.
Sentence proceedings in respect of both applicants were conducted jointly before her Honour Judge Wells SC on 12 December 2016 in the District Court at Lismore.
On 13 December her Honour pronounced the following sentences:
Kay - Imprisonment with a non-parole period of 1 year and 10 months, commencing 29 September 2016 and expiring 28 July 2018, with a balance of term of 1 year and 6 months, expiring 28 January 2020.
Ellis - Imprisonment with a non-parole period of 2 years and 6 months, commencing 29 September 2016 and expiring 28 March 2019, with a balance of term of 10 months, expiring 28 January 2020.
Her Honour allowed a reduction of 25 per cent in respect of each sentence because of the utilitarian value of the early plea of guilty.
Each applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against those sentences on the following grounds:
KAY
Ground 1 - The sentencing proceedings miscarried because the Agreed Facts overstated the cannabis leaf subject of the charge.
Ground 2 - Her Honour made an error of fact in finding that the offence was placed [in the] "upper range for quantity alone".
Ground 3 - Her Honour erred in that she was significantly mistaken as to the market value of the cannabis.
Ground 4 - Her Honour erred by imposing identical head sentences as between Ellis and Kay and that the [applicant] has a justifiable sense of grievance as a result of the disparity and lack of proper proportion between his sentence and the sentence imposed on the co-offender, Clinton Ellis.
Ground 5 - The sentence imposed was manifestly excessive.
ELLIS
Ground 1 - The sentencing proceedings miscarried because the Agreed Facts overstated the cannabis leaf subject of the charge.
Ground 2 - Her Honour made an error of fact in finding that the offence was placed [in the] "upper range for quantity alone".
Ground 3 - Her Honour erred in that she was significantly mistaken as to the market value of the cannabis.
Ground 4 - Her Honour erred in failing to give any weight to a material consideration in that the [applicant] was motivated to commit the offence primarily for the receipt of cannabis for use in his pain management issues and less importantly for the receipt of money.
Ground 5 - The sentence imposed was manifestly excessive.
FACTUAL BACKGROUND AND SENTENCE PROCEEDINGS
In the statement of Agreed Facts before her Honour, the following was set out:
1. That the cannabis leaf subject to the indictment was located by police in the "bedrooms and lounge-room of the residence"; and
2. The net weight of "trimmed, untrimmed, left over cannabis leaf and cannabis stem located in the bedrooms and lounge-room of the residence" was 67.79 kgs.
It was common ground in the sentence appeal that this was incorrect and that the total weight of cannabis located at the Mt Burrell property was 59.984kgs and that the net weight of cannabis located in the bedrooms and lounge-room of the residence was 42.442kgs. In other words, the amount of cannabis, the subject of the charges was overstated by 25.348kgs. This error was discovered after her Honour had sentenced both applicants.
The error occurred without any fault on the part of her Honour. Accordingly, when reviewing her Honour's analysis of the facts, the correct weight of the cannabis needs to be kept in mind.
On 23 June 2016 police arrived and executed a search warrant at a residence in Kyogle Road, Mount Burrell. There were seven men present, including the two applicants.
There was a house and sheds on the property and also a motor vehicle.
The house had four bedrooms with a central lounge-room. In the lounge-room there were plastic tubs around a table and on the floor. Inside each tub were various amounts of cannabis leaf. There were numerous pairs of scissors on a table and a Cryovac machine on another table. There was cannabis already sealed in Cryovac bags. Elsewhere in the house there was a considerable pile of green vegetable matter on a tarpaulin in a room and several barrels of cannabis leaf distributed throughout the bedrooms. The central lounge-room, with the two large tables, was used for trimming and packaging cannabis and set up so several people could sit around the tables trimming and sealing cannabis heads in Cryovac bags.
Police found 19 one pound [or 450 gram] Cryovac bags of cannabis leaf ready for commercial distribution.
A notebook was found which included a number of entries bearing each of the applicants' names with amounts written next to them which indicated that they were paid $200 per pound of cannabis trimmed.
Her Honour regarded this as the only reasonable inference which could be drawn from the notebook, although it was impossible to determine the total amount which they were paid because of the disarray in which the records were kept. Her Honour found that "the fact that they were paid, or to be paid $200 per pound of cannabis trimmed is one indication amongst others, of the value of this illegal drug".
Her Honour noted that the commercial quantity of cannabis leaf was 25kgs and that the large commercial quantity was 100kgs. Her Honour specifically found that this placed the offence "in the upper range for quantity alone in relation to this type of drug" (Sentence judgment, 2.8).
Each applicant gave evidence. Their evidence was largely the same. They each said that they spoke to one of the co-accused at the Nimbin Hotel at different times. He was a person they knew socially and they said that they were invited to the property as a social occasion to share a few beers and have a barbecue. It was not clear from the evidence whether the applicants knew before they went to the property, that they would be helping with the trimming of cannabis leaf.
On this issue, her Honour set out her conclusions as follows:
"Going by the pictures that were taken by the police on 23 June when they arrived, and going by the concessions by both offenders, that they had been going to this property for between about five and ten days, although each ultimately settled on five to six days, over a period of two weeks, the only conclusion that can be drawn, that I draw beyond reasonable doubt, is that each of them, despite their denials and hesitation about the state of their knowledge, knew from the first day about the nature and extent of the operation at the house. There is evidence before the Court that the principal organisers had a wider operation at Lennox Head and Larnook, but it cannot be suggested that these offenders had any knowledge or participation in that. There simply is no evidence and it is not reflected in the charge. However, their evidence in relation to their lack of knowledge about what was happening, at least for a few days at the house where they were arrested, is not accepted.
The credibility of each of the offenders was very low. The denials they made about the quantities of the drug and even the presence of the Cryovac packaging system is not at all believable. The quantities of drugs can be readily seen all around where they sat. Some of it is in other rooms. There is nothing to suggest that those rooms were locked or likely to be locked and as they admitted, both of them were there for a significant number of hours on the several days that they were at the property." (Sentence judgment, 3.3 -3.9)
Based on the incorrect information which she had been given as to the quantity of cannabis involved, her Honour assessed the value of the drugs, the subject of the charges, at between $654,000 and $915,000. Her Honour noted that the price per pound for cannabis around the Nimbin area could have been as low as $3,200. Her Honour concluded "Nevertheless this was a highly valuable commodity, given the quantity of it and also reflects a sophisticated operation" (Sentence judgment, 4.3).
Her Honour reviewed the subjective case of each of the applicants. In relation to Kay, her Honour noted that he was born in 1973 and was aged 43 when he came before the court. He had a limited criminal record which included one offence of possessing a prohibited drug in 2009. Her Honour did not regard that as a matter of significance.
Kay lived alone and had resided in Nimbin since he was aged 10. He had been casually employed as a labourer since leaving school. He has been an occasional user of cannabis for most of his adult life. He regretted the offending and, according to the author of the pre-sentence report, he appeared to have realised the seriousness of his behaviour. There were references from various members of the local community which favourably commented on him. Those references indicated that he was a good person who could be trusted and was generally respected. He had done some voluntary work in the community.
Her Honour noted that Ellis was born in 1964 and was aged 52 when he came before the court. He was the father of three children and had played a role in their lives. Their mother confirmed this and said that he not only had been actively involved in the upbringing of the children, but had also been very supportive of her. He had been involved in voluntary work in the local community, particularly with the bush fire brigade. Although they were separated, they had successfully shared the parenting of the children.
One son had joined the Army and had assisted Ellis financially and another child was still at school. Ellis had some medical problems, including an injury to his right knee. When on bail for these matters, he broke his ankle but would make a full recovery. Like Kay, his drug screen tests showed no evidence of using cannabis. There were a number of other references that spoke well of him in a manner similar to those provided to the Court in relation to Kay.
In the pre-sentence report, Ellis advised that he had used various drugs over the years but had stopped using most substances in 2011. Occasionally he still used cannabis for pain management. He was a social drinker and at times suffered symptoms of depression and anxiety, but not so serious as to require medication.
When considering the objective seriousness of this offending, her Honour had regard to the maximum sentence which indicated that the legislature regarded the offending as serious. Her Honour assessed the offending as at the lower end of mid-range. She assessed the applicants as low level participants in what was otherwise a large and sophisticated operation. Her Honour regarded the level of participation and involvement in the offending by each of the applicants as the same.
Her Honour set out the salient features of the applicants' offending as follows:
"The factors taken into account in formulating the objective seriousness are first of all there was a large total quantity located at the premises, of over 67 kilograms which falls in the upper-end of the spectrum for offences of this kind. I have considered the usual evidence that is heard in matters of this kind and was in this matter that people are not interested in cannabis leaf and are only interested in cannabis heads. In considering the relative seriousness however the offence is knowingly taking part in a commercial quantity of cannabis leaf [emphasis added]. For that reason the quantity falls at the serious end.
Though they are not the principal offenders it was a reasonably sophisticated operation. They were part of a production line where buckets of cannabis were all around, cannabis heads were being trimmed and bagged in a Cryovac packing system to be sold by the pound. This was a very commercial operation. I accept that the broader scheme was not known to them but what can be seen in the photographs taken by the investigating police at the time they arrived paints the clearest picture.
This was not a one-off occasion either when the police arrived on 23 June. On their own account this had been going on since about 1 or 2 June, which is when they confirmed in evidence-in-chief that they were approached at the Nimbin Hotel to come and enjoy a "social occasion", as they put it. On their respective accounts they went five to six or perhaps ten occasions, each time staying for several hours. They are not to be sentenced for all of those separate occasions but it is relevant to take into account that 23 June was not some isolated event rather part of a pattern of conduct.
Their involvement was deliberate and pre-meditated. They must have realised, and ultimately the concession was they did realise from the start, that what they were involved in was illegal, particularly on the part of the offender Ellis who appeared before this court in 2013 when he was sentenced to a period in prison in relation to his own activities involving enhanced cultivation of cannabis. Both offenders had every opportunity to consider what they were involved in each day that they went out there and up until the day they were caught red-handed by the police.
As noted their roles, though, are not that of principals. Their role was to be part of the production line as trimmers who were manicuring the cannabis. Nevertheless their contribution was a necessary part of the overall objective of this criminal activity which was to sell large quantities of cannabis for profit in the local community. They were each motivated by financial gain even though they said they were not ultimately paid. Coincidentally they each thought they would be paid on the day the police arrived. There is a reasonable inference available that they expected to be paid at least $200 per pound and each offender thought that he would receive some payment in cash or in cash and cannabis." (Sentence judgment, 6.4 - 7.9)
Although her Honour was not able to differentiate the roles of the applicants, their subjective cases were different. For Kay, this would be his first time in prison before which time he was largely a person of good character.
In the case of Ellis, he was sentenced to a term of imprisonment on 21 June 2013 for the enhanced cultivation of cannabis. This included a 12 months non-parole period out of a total term of 2 years and 6 months, with other related cannabis matters being taken into account. At that time, he was found by the court to be a person of good character with good prospects of rehabilitation. Her Honour noted that that was an incorrect conclusion by the court in that this offence occurred roughly four months after his parole period for the earlier offending had concluded.
Her Honour did not regard the medical problems of Ellis as having much impact upon sentence. Despite his earlier experience of prison, it did not seem to deter him from engaging in this offending.
Her Honour found special circumstances in favour of Kay because of his previous good record and because this would be his first time in prison. Her Honour also considered that Kay had good prospects of rehabilitation. Her Honour gave effect to that finding of special circumstances by reducing the non-parole period in his sentence. Her Honour was not prepared to make a finding of special circumstances in favour of Ellis.
Her Honour took into account the purposes of sentencing and in particular, the need for specific deterrence. This was particularly so in the case of Ellis, but also applied to a lesser extent to Kay. Her Honour noted that it was necessary to deter other persons who might decide to commit similar offences. Her Honour had regard to the protection of the community and rehabilitation. Her Honour was not prepared to find that each applicant was remorseful, particularly in the case of Ellis.
Her Honour went on to observe:
"This offending, particularly being in this range of a commercial quantity, suggests, that it involves substantial drug trafficking. It is noted as the offender Ellis was keen to point out that it did not involve them growing cannabis, nor did it involve them actually supplying to members of the community, but they were clearly engaged in a sophisticated and large operation that would distribute these illegal drugs in the broader community.
There is a principle that generally speaking those who are engaged in substantial drug trafficking, as they were, means that usually a sentence of full-time imprisonment must follow, unless there are exceptional circumstances." (Sentence judgment, 9.9 - 10.3)
Her Honour was not prepared to find exceptional circumstances.
THE APPEAL
As can be seen from some of the observations of her Honour, the quantity of cannabis involved in the offending played a part in her Honour's assessment of the objective seriousness of the offending. Through no fault of her Honour, the amount of cannabis involved was less than that which she took into account. In those circumstances, it is not possible to argue, as the Crown sought to do, that this error did not affect the exercise of her Honour's sentencing discretion.
In my opinion, the application of Kentwell v The Queen [2014] HCA 37; 252 CLR 601 is attracted. There the majority (French CJ, Hayne, Bell and Keane JJ) said:
"42 … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. …" [Footnotes omitted]
To similar effect, this Court (Bathurst CJ with whom Beazley P and R A Hulme and Schmidt JJ agreed) said in Lehn v R [2016] NSWCCA 255; 93 NSWLR 205:
"67 Whether or not it is necessary to re-exercise the sentencing discretion generally, as distinct from the discrete component of the sentence affected by the error, depends ultimately on the construction of s 6(3) of the Criminal Appeal Act. The subsection is predicated on error of the nature of that described in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505. The subsection is in the following terms:
"6 Determination of appeals in ordinary cases
…
(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
68 As was stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, the task of statutory construction must begin with a consideration of the text itself, although the meaning of the text may require consideration of the context which includes the general purposes and policy of the provision: at [47]; see also Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. The text of the section under consideration in this case, where it applies, requires a court to form an opinion as to whether some other sentence, whether more or less severe, is warranted in law. The section, as a matter of language, does not provide that if a discrete error is found, the sentence can be adjusted to take account of that error. It seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence, although, as pointed out in Kentwell at [43], not necessarily to resentence."
Re-sentence
One has to have regard to the state of affairs at the time of re-sentence. Before the Court were two affidavits by the applicants, dated 9 August 2017. In the case of Kay, since his incarceration he has completed courses in metal fabrication, work safety and operating a forklift. At the time of swearing the affidavit, he was working as a chainsaw operator. He deposed that when he is released, he would leave the Nimbin area and using his new skills, look for work in North Queensland. He deposed that he has learned a salutary lesson and had no intention of ever committing an offence which could place him in prison again.
Ellis had completed a certificate in horticulture, a working at heights course and had renewed his work safety card in the construction industry. He found his time in prison to be more difficult because of his broken ankle.
Counsel for the applicants submitted that once regard was had to the correct quantity of cannabis involved, the sentences imposed on the applicants should be reduced so that, at least in the case of Kay, he would qualify for the imposition of an ICO rather than a custodial sentence. In making that submission, counsel stressed that the quantity of cannabis involved was not greatly above that required for a commercial quantity and was significantly less than that specified in the Agreed Facts and to which her Honour had had regard when imposing sentence.
Counsel submitted that in the case of Ellis, he was not motivated only by financial gain but required a quantity of cannabis for personal use because of continuing pain in an injured knee. Counsel stressed that the applicants were relatively menial workers performing a menial job, they were only at the premises for approximately five days and that the payment which they were to receive was modest when regard was had to the quantity of cannabis involved.
Counsel submitted that in the case of Ellis, although he had a previous offence on his record, the offending on this occasion was qualitatively different to the earlier offending. The earlier offending had involved the cultivation of cannabis whereas his involvement on this occasion was much less and relatively minor. He submitted that when regard was also had to the use by Ellis of cannabis to self-medicate, even if a custodial sentence were to be imposed, it should be significantly reduced from that given by her Honour.
Counsel submitted that in the case of Kay, he was a first offender, his position in the hierarchy was minor and as indicated by his affidavit, he had learned his lesson and was genuinely remorseful.
Consideration
While the quantity of cannabis involved is an important consideration, it is not determinative when considering the objective seriousness of the offending. It is true that 67kgs of cannabis is significantly more than 42kgs. Nevertheless, both involve a substantial quantity and both substantially exceed the amount required to give rise to the offence of knowingly take part in the supply of a commercial quantity of cannabis leaf.
Moreover, the reduction in the amount of cannabis involved in the offending does not significantly impact upon the matters identified by her Honour as going to the objective seriousness of the offending, i.e. the maximum sentence for this offence, that the drug supply operation was large and sophisticated, that the quantity of cannabis was still substantial, although they were not principal offenders that the applicants performed an essential function in the operation, that they were well aware of the size and sophistication of the operation which had been continuing for at least two weeks, that their involvement was deliberate and premeditated and that they were motivated by financial gain. These were all relevant and important considerations which fully justified her Honour's assessment that the offending was mid-range, albeit at the lower end of mid-range.
In the independent exercise of the sentencing discretion, I do need to say something about the "principle" often quoted by this Court that for "those who are engaged in substantial drug trafficking, a sentence of fulltime imprisonment must follow unless there are exceptional circumstances". In that regard, I am mindful of the recent decision of this Court in Robertson v R [2017] NSWCCA 205.
There, Simpson JA (with whom Harrison and Davies JJ agreed) concluded that R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported) which first articulated that principle had been applied too rigidly by this Court.
Having comprehensively reviewed the case law where that principle has been applied and which lately has been subjected to some criticism, her Honour set out her conclusions as follows:
"68 It will be seen from the above that the language varies from case to case. Some judges (Hunt J in Clark, Priestley JA in Cacciola, Handley JA in Saba, Howie J in Gu, Fullerton J in Smaragdis) employ language of mandate (although Priestley JA was also at some pains to place emphasis on the need for attention to be given to the individual circumstances of each case, and the individual discretion of each sentencing judge). All, it is true, also recognise that "exceptional circumstances" might permit departure from the "principle", without identifying the kind of exceptional circumstances that might qualify. Other judges, more cautiously, use language reflecting recognition of sentencing practice.
69 What has consistently been stated as a "principle" is (in my opinion), no more than and is properly to be seen as a conclusion drawn from a history of sentencing in respect of relevant offences. Without legislative authority, it could not be more. The decisions upon which the "principle" is based are entitled to significant respect as the result of considered decisions and the experience of sentencing judges and appellate courts. Sentences imposed in the past, in relevantly similar circumstances, can and do provide significant guidance to sentencing judges. But they give rise to no binding precedent: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [29]. They are not statements of principle. Far less are they prescriptions for sentencing judges. The High Court has, more than once, used the metaphor of a "yardstick" constituted by prior sentencing decisions against which a sentencing judge may measure a proposed sentence: see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45 at [54]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41]."
I respectfully agree with her Honour's analysis and with her observation that too rigid an application of what was said in Clark might well involve a two-stage sentencing process (see Robertson at [95]).
Having said that, I would observe that once it has been established that an offender has engaged in substantial drug trafficking, compelling circumstances would need to be adduced on his or her behalf to bring about a result where a non-custodial sentence was imposed, albeit it is not necessary that those circumstances be "exceptional".
In this case, even having regard to the reduced quantity of cannabis involved, the circumstances of each applicant were not such as would provide a proper basis for an ICO or other non-fulltime custodial sentence.
In the case of Ellis, having regard to the objective seriousness of his offending and his modest subjective case, in my independent exercise of the sentencing discretion, I would have imposed a sentence equal to or greater than that imposed by her Honour. Accordingly, I have concluded that no lesser sentence than that imposed by her Honour is warranted in law in his case.
In the case of Kay, in my independent exercise of the sentencing discretion my conclusions are largely in accord with those of her Honour except that I would adjust the head sentence to better reflect the difference between his subjective case and that of Ellis.
Accordingly, the orders which I propose are as follows:
In the matter of Ellis v R
1. Leave to appeal against sentence is granted.
2. The appeal is dismissed.
In the matter of Kay v R:
1. Leave to appeal against sentence is granted.
2. The sentence imposed by Wells SC DCJ on 13 December 2016 is quashed.
3. In lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 1 year and 10 months, commencing 29 September 2016 and expiring 28 July 2018, with a balance of term of 1 year and 2 months, expiring 28 September 2019.
DAVIES J: I agree with Hoeben CJ at CL.
BELLEW J: I agree with Hoeben CJ at CL.
[3]
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Decision last updated: 08 September 2017