Kerr v Regina

R v Godden [2005] NSWCCA 160 R v Giammaria & Karagiannis [2006] NSWCCA 63 R v Quan [2006] NSWCCA 382 CASES CITED : Hantzis v R [2006] NSWCCA 387 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 AJO v R [2008] NSWCCA 28

PARTIES: Lewis Arthur Kerr (App) Regina (Resp/Crown)

COUNSEL: P R Boulten SC (App) G Rowling (Resp/Crown)

SOLICITORS: D Quigley (App) S Kavanagh - DPP (Resp/Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/2865

HODGSON JA KIRBY J BUDDIN J

Thursday 6 March 2008 Lewis Arthur KERR v REGINA Judgment 1 HODGSON JA: I agree with Kirby J. 2 KIRBY J: Lewis Arthur Kerr ("the applicant") seeks leave to appeal against the sentence imposed on 23 February 2007 by the Chief Judge of the District Court, Justice Blanch. Mr Kerr entered an early plea to an indictment which may be summarised as follows: Count 1 : That on 8 November 2005, he did cultivate not less than a commercial quantity of a prohibited plant (cannabis) (s23(2)(a) and s33(2)(b) Drug Misuse and Trafficking Act 1985: maximum penalty 15 years imprisonment and/or a fine of $385,000).

Count 2 : That on 8 November 2005, he supplied not less than a commercial quantity of a prohibited drug (cannabis) (s25(2) and s33(2)(b) Drug Misuse and Trafficking Act 1985: maximum penalty 15 years imprisonment and/or a fine of $385,000).

Count 3 : That he dealt with the proceeds of crime (s193B(2) Crimes Act 1900: maximum penalty 15 years imprisonment). 3 When sentencing on count 1, his Honour was asked to take into account a matter on a Form 1, namely that, at his property near Glen Innes, he had at the time of his arrest, $5,700 cash reasonably suspected of having been stolen or otherwise unlawfully obtained. 4 Taking that matter into account on count 1, his Honour imposed three identical sentences in respect of counts 1, 2 and 3, each concurrent. The sentences were as follows:

Imprisonment comprising a non parole period of 3 years to commence on 4 January 2007 and to expire on 3 January 2010; with an additional term of 2 years to commence on 4 January 2010 and to expire on 3 January 2012. 5 The selection of the commencement date took account of the time Mr Kerr had spent in custody after his arrest and before being released to bail (between 9.11.05 and 22.12.05). 6 The applicant relies upon a single ground of appeal, that the sentence was manifestly excessive. Before considering that ground, I should describe the circumstances in which the offences were committed and say something about Mr Kerr's subjective case, as presented to the sentencing Judge.

The offences. 7 Mr Kerr was a farmer with a number of properties in the Glen Innes area. On 8 November 2005, the police obtained a warrant to search one of these properties. The warrant was executed at 11.15 pm. Within the main bedroom of the homestead, the police found $5,700 cash, which became the offence on the Form 1. Adjacent to the homestead was a locked shed. Inside the shed there was a coolroom used as a "sophisticated hydroponic setup". There were high-powered lights and water trays with a drip feed system attached. Growing under the lights were a number of plants which appeared to be cannabis. The plants were later tested and confirmed to be cannabis. Outside the coolroom there were seedlings, which were also later tested and confirmed as cannabis. They were covered with black plastic and were growing under a lighting system. 8 The police continued their search, examining what was described as a "chicken shed". They found blue and yellow drums and a number of hydroponic troughs, as well as multiple pairs of scissors. There was also a large gas powered lamp. Suspended from the ceiling were lengths of bailing wire. Outside the chicken shed, the police noticed black polypipe running from the creek. They followed the pipe which led to a pump and a large crop site. The crop site consisted of three separate plots, each fenced with a six foot high chicken wire fence. Polypipe drip lines fed water to each plot. The area was covered with fawn coloured bird netting. Altogether 366 cannabis plants were found during the search (count 1). 9 The police had information that items may be buried on the property. They found an area covered by dirt and a number of logs. The dirt and logs were removed, revealing 16 grey 200 litre plastic drums with screw top lids. Within four of the drums there were 166 sealed bags containing what was later tested and found to be cannabis heads. The combined weight of the cannabis was 44.86 kilograms (count 2). 10 The search resumed the next day. The police noticed an area where the rock pattern appeared to have been disturbed. It was covered by a branch. The branch was removed as well as soil, revealing the plastic lid of a drum. Within the drum were bags which contained $79,700 in cash (count 3). 11 The applicant gave evidence on sentence. He said that he had been conducting the operation for about three years before his arrest (T13). He was approached by a person, whom he named, with the idea. That person received a share of the proceeds. He employed four or five others who, likewise, obtained a share (T13). He gave the following evidence, which was relevant to count 2, the supply count: (T8) "Q. Now there was 44 kilograms approximately of cannabis found in drums on your property. How long had that been there? A. Well some of it had only been put there that year but some of it has been accumulated over the last three years." 12 The matter came to light as a result of an operation by the New South Wales Crime Commission. The police interviewed a number of persons said to have been involved, obtaining "induced statements" from them. As a consequence, as the sentencing Judge remarked, "nobody else was prosecuted". That plainly rankled with Mr Kerr since one of those involved was a woman with whom he had been having an affair, Ms Michelle Griffith. Mr Kerr told the parole officer who compiled the Probation and Parole Report (30.10.06), and repeated to a psychologist (Gorrell: report 20.11.06), that Ms Griffith had been involved in the distribution of cannabis, from which she derived income. At a time when he was ambivalent about continuing with the enterprise, she effectively blackmailed him into pressing on by threatening to advise the police and expose their affair to his wife. Counsel for the applicant, in written submissions, said that Mr Kerr was "not cross examined to controvert these facts" (at [5]). 13 The sentencing Judge dealt with this aspect as follows: (ROS: 5) " … he and his wife had not been enjoying a happy relationship for a good period of time. She was working but not contributing anything to the property itself, and he ended up forming a relationship with another woman, and it is this woman who he says encouraged him to keep growing cannabis and selling it at a time when he thought that he would like to stop. She apparently is one of the persons who was induced to make a statement." 14 His affair with Ms Griffith ended some time before his arrest. Indeed, he began a relationship with another woman who gave evidence on his behalf at the sentencing hearing (T19). Notwithstanding the role of Ms Griffith, Mr Kerr acknowledged responsibility. The report from the psychologist included the following: (p10) "He takes full responsibility for his offences and at no time did he seek to water down his offences or pass responsibility onto anyone else." 15 It was, as his Honour remarked, clearly a "commercial venture for gain" (ROS: 3). Mr Kerr gave the following evidence concerning his role in that venture: (T13) "Q. So it'd be fair to say you were the principal in this matter, it's your cannabis grown on your property and you're paying other people to cultivate for you, which you're paying them to do? A. Yeah, you could say that." 16 Let me turn from the offence to the offender.

The subjective case. 17 A very strong subjective case was presented on behalf of Mr Kerr. He was born in May 1954 in Glen Innes. He came from a large family. He was still very young when his father was injured at the saw mill. His father, thereafter, could not work. He left school at the age of 14 years. He began working as a cook with a shearing shed. He ultimately worked as a cook for the University of New England and the Menzies Hotel. He opened restaurants in Glen Innes and was involved in catering. He married and had four children, all now adults apart from his youngest, who was seven years old at the date of the trial. 18 His Honour accepted that Mr Kerr had no criminal convictions, noting that a s10 Bond had been imposed after his arrest, arising from a charge of malicious damage. The charge related to a dispute with Ms Griffith, the person with whom he had an affair at the time of the offence. His Honour said: (ROS 4) " … I believe the offender is entitled to have me deal with him on the basis that he has got no prior criminal history." 19 In 1992, Mr Kerr purchased a farm. He was described by the sentencing Judge as a "hard working dedicated farmer" who had been, until these offences, regarded as "one of the pillars of the community in the country" (ROS 4). Indeed, he was still so regarded by many who provided references which were placed before the sentencing Judge. His Honour included in his remarks one episode, the subject of evidence before him, which demonstrated his "good qualities". His Honour said this: (ROS 7) " … when he was arrested he and spent almost two months in custody he found it very hard being in prison, and when he was in prison he met a young prisoner called Reid who has had a long history of drinking and violence and has a long criminal record. Mr Reid, as is the case with so many people who end up in gaol in that situation had nowhere to go when he got out. The offender offered him the chance to go and live on his farm, Mr Reid took that up and he has been on the farm now for a period of 18 months, and he says that he believes that learning to be a farmer, and the work involved in it, and living by the natural limits of daylight and dark and the hard work involved has made a significant change to his life, and he has been out of trouble. … " 20 There was, in addition, evidence which furnished an explanation (although not an excuse) for the serious criminal conduct of Mr Kerr. The 16 years he had spent as a farmer coincided with a prolonged and severe drought. His brother-in-law, who had worked on the property, described it as "a dustbowl". Mr Kerr told the psychologist that, during those 16 years, he had only earned "a respectable profit" in two years (Gorrell report p5). He attempted to combat the drought by diversification, including grain growing, superfine wool and free range eggs. One gathers that each of these ventures had been unsuccessful. More recently, and on a fairly large scale, he had begun breeding dogs and had at last found a business which held some promise. However, at the time he began growing cannabis, financially it was a struggle to survive. He participated successfully in farm debt mediation with his bank and avoided foreclosure. At the time of his arrest, he was supplementing his income by working two days a week as a cook. 21 The sentencing Judge, having referred to this hardship, said this: (ROS 3/4) "There is no doubt, therefore, that a prison sentence has to be imposed, and that prison sentence must be one which contains significant elements of general deterrence. That is so because farmers cannot solve their problems by embarking on illegal activities such as this. The distribution of drugs in our community is a major scourge, and although cannabis is seen as being a less serious drug than many of the other drugs in the community nonetheless it is regarded as a harmful drug, and the distribution of it must be deterred." 22 Later in his remarks, his Honour again underlined the importance of general deterrence, saying this: (ROS 8) " … it is regarded as important for courts when imposing sentences such as this to pass a sentence which clearly gives a message to the community, and in this case to the community of farmers that even though you get into problems, problems that everyone can understand and sympathise with, it does not excuse embarking upon a course of criminality such as this which has wider ramifications in the rest of the community in respect of the distribution of drugs. For that reason there has to be a gaol sentence imposed which does reflect the principles of general deterrence." 23 His Honour noted that there was an early plea of guilty and unquestionably Mr Kerr was remorseful. The sentencing Judge was confident that Mr Kerr would never commit another criminal offence. He noted that, at least after his arrest, he was found to be severely depressed when assessed by a psychologist. 24 His Honour found special circumstances arising from the fact that this was Mr Kerr's first time in gaol and that, when released, he would require a longer period under supervision.

Submissions by the parties. 25 Mr Boulten SC, for the applicant, did not suggest patent error. His Honour had correctly stated the sentencing principles to be applied. Counsel acknowledged that the offences were serious and that the need for general deterrence "was high". Yet, an examination of the sentencing statistics, maintained by the Judicial Commission, and of cases recently decided by this Court, demonstrated, it was submitted, that the sentences imposed were excessively severe. 26 Counsel then analysed each count. The statistics and decided cases were to be considered against the background of an early plea of guilty (attracting a 25% discount) and a very strong subjective case. Count 1 was the charge of cultivating a commercial quantity of cannabis plants. A "commercial quantity" is defined by the Drug Misuse and Trafficking Act 1985 ("the Act") as 250 plants. The threshold for a "large commercial quantity" was 1,000 plants. Here there were 366 plants. Assuming a discount of 25% for the plea of guilty, the starting point must have been about 6 years 8 months. That, it was suggested, was simply too high when compared either to the statistics or the principles enunciated in recent cases. Reference was made to R v Godden [2005] NSWCCA 160, a case where the offender was charged with the cultivation of a commercial quantity of cannabis plants (319 plants). The sentence under appeal, imposed in the District Court after a plea of guilty (attracting a discount of 20%), was 3 years and 2 months, with a non parole period of 2 years. That sentence was set aside as too severe, even though the offender had been on a bond at the time of the offence. Hall J (Hunt AJA and Grove J agreeing), after an extensive examination of the statistics and caselaw, said this: (at [35]) " … I am of the opinion that a conclusion that the sentence imposed was manifestly excessive is inescapable." 27 The Court substituted a sentence of 2 years and 2 months, with a non parole period of 1 year 3 months, taking account of a Form 1 offence involving a quantity of loose marijuana (cf R v Giammaria & Karagiannis [2006] NSWCCA 63; R v Quan [2006] NSWCCA 382; Hantzis v R [2006] NSWCCA 387). 28 Moving to count 2, the charge of having supplied a commercial quantity of cannabis, many of the same comments can be made. In determining whether the sentence was excessive, one must take account of the early plea of guilty and the very strong subjective case. Under the Act, a "commercial quantity" of cannabis, in the context of a charge of deemed supply, is defined as 25 kilograms. A "large commercial quantity" involves the supply of 100 kilograms. Here the cannabis weighed 44.86 kilograms. The statistics in respect of all offenders suggested that most received sentences of 3 years or less. Less than 18% received more than 4-1/2 years. Again it was submitted that his Honour's starting point (6 years 8 months) was simply too high. 29 In responding to these submissions, the Crown drew attention to the fact that his Honour was dealing with three serious offences. He approached the matter in what was termed "the old fashioned way", that is, adopting the sentencing practice used before Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. According to the Crown, if the offences were looked at individually, as Pearce required, and appropriate consideration given to questions of accumulation and concurrence, the overall sentence was appropriate. This Court would not be persuaded, therefore, that a lesser sentence was warranted in law (s6(3) Criminal Appeal Act 1912). 30 His Honour, shortly before passing sentence, said this: (ROS 8/9) "I should also say that in respect of these offences although there are three separate offences they are really all part of the one commercial operation and for that reason I believe that the same sentence should be passed in respect of each of them, and the sentences should be concurrent." 31 It should be acknowledged at once that, looked at individually, divorced from the companion offences, the sentences imposed appear to be manifestly excessive. However, his Honour chose to make all sentences concurrent. Did this involve a departure from Pearce v The Queen, as the Crown suggested? Should he have fixed lesser sentences on each count and then partially accumulated such sentences? If so, is a lesser sentence than the sentence imposed (5 years with a non parole period of 3 years) warranted in law? 32 Pearce v The Queen certainly marked a departure from previous sentencing practice. Before Pearce, where there were multiple offences, it was customary to select the most serious offence and use it as the vehicle for reflecting the totality of the offender's criminality. Concurrent sentences would be then imposed in respect of the remaining offences. 33 The effect of Pearce v The Queen upon that practice was summarised in R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 by Simpson J (Mason P agreeing): (at 67) "[7] … Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong. [8] As a result of the decision of the High Court in Pearce , the question of whether to accumulate sentences for multiple offences has taken on a new dimension. Following Pearce , a judge is required to fix 'an appropriate sentence' for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in cases of multiple offences committed as part of a single, discrete, episode of criminality, the sentence for an individual offence is the reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced." (citations omitted) 34 Here, count 1 (cultivation of a commercial quantity of cannabis plants) involved the seizure of 366 cannabis plants on 8 November 2005 during the course of the police search. The plants represented future profits of the commercial venture. Count 2, the seizure of 44.86 kilograms of cannabis, represented a harvest from previous crops. It was available for supply and was, under the Act, deemed to have been supplied. Count 3, the $79,700 cash, one would infer, was the product of cannabis that had been supplied. These offences, although part of the same commercial operation, represented quite different stages of production, and different aspects of Mr Kerr's criminality. After Pearce v The Queen it was not appropriate, I believe, to simply make the sentences concurrent. 35 The applicant was sentenced in respect of three serious charges, each carrying a maximum penalty of 15 years imprisonment. The cases and the statistics referred to by counsel for the applicant are of limited assistance, since they do not combine three serious offences, as this case does. The nature and timing of each offence suggested there ought to have been accumulation. In my view, no lesser sentence than imprisonment for 5 years with a non parole period of 3 years was warranted in law. There seems to me no purpose in restructuring the sentences to achieve the same overall result (cf AJO v R [2008] NSWCCA 28 at [33]).

Order. 36 I therefore propose that leave to appeal against sentence should be granted, but the appeal should be dismissed. 37 BUDDIN J: I agree with Kirby J.

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