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]).