Laughton v R

Court of Criminal Appeal (NSW)|2019-12-09|Before: Macfarlan JA, Davies J, Hidden AJ, MacFarlan JA

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/348014 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 6 April 2018 Before: Wilson DCJ File Number(s): 2015/348014

Judgment

MACFARLAN JA: On 6 April 2018 the applicant was sentenced in the District Court to an aggregate sentence of imprisonment for 5 years, with a non-parole period of 3 years, in respect of offences of knowingly taking part in the cultivation of a commercial quantity of cannabis plants contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the DMT Act") (count 1) and supplying 21.1 grams of methylamphetamine contrary to s 25(1) of the DMT Act (count 2). Two further offences were taken into account on a Form 1 in respect of count 1.
The sentence was fixed to commence on a date that rendered it partially concurrent and partially cumulative upon another sentence that was imposed on the applicant on an earlier occasion for offences of aggravated break and enter and assault.

The agreed facts

A Statement of Agreed Facts was signed on behalf of the parties and tendered before the sentencing judge. The facts agreed were to the following effect.
In July 2015 a police strike force was established to investigate the applicant's involvement with prohibited drugs. During that investigation, police obtained telephone intercept warrants for two telephone numbers that they believed belonged to the applicant. They also undertook physical and electronic surveillance of the applicant.
At that time, the applicant was living with a co-offender, Mr Aaron Dixon, in a unit at Toongabbie. Another co-offender, Ms Alanna Colebrook, also resided there from time to time. The premises were leased to Mr Dixon by his mother, who owned the property.
On 30 September 2015 police intercepted a number of text messages, including the following passing between the applicant and Ms Colebrook: "i. The cubes are too wet and they are causing root rot. Rot travelling up stem. ii. Last pic has healthy roots. The tops of cubes need some cardboard or similar squares cut out so they cover top of cubes. Green moss develops otherwise. iii. Cool I thought the healthy roots was good sign. Il fix them up tonight. 7:30 wake up? Oh and I put that last one back in the cube by the way lol. It fell out a bit to start off with so I took it out to have a look. There's also a few leaves with spots on them I don't know if it's something to do with nutrients or not I'll send u pic tonight. I couldn't find the ph n nutri reader to check that. I'll have a better look tonight."
The Statement of Agreed Facts did not identify which of the applicant or Ms Colebrook sent these messages but the sentencing judge proceeded on the basis that the message commencing "Last pic" was sent by the applicant. The police also intercepted communications in which the applicant said that he was "working on the kids", "giving the kids a drink" and "being inside the room all day looking after the kids", referring in each case to the cannabis plants.
After the applicant was arrested and during the execution of a search warrant at the Toongabbie unit, police discovered that one of the three bedrooms in the upstairs area of the unit had been converted to allow for the hydroponic cultivation of cannabis. The room had been divided into two separate rooms with 58 cannabis plants growing, at various stages of maturity, beneath light units consisting of a discharge lamp, ballast (a device that regulates electric current), a mount and reflectors. Also found in the room were fertilisers, hoses and other equipment used to enhance the cultivation of the cannabis plants. These matters related to count 1 against the applicant.
In the room, police also found 21.1 grams of methylamphetamine (count 2), 64.1 grams of gamma-butyrolactone (Form 1: supply), 128.2 grams of cannabis leaf (Form 1: possess) and various items of drug paraphernalia, including water pipes and syringes, for the administration of drugs. The applicant's fingerprints were found on the drug paraphernalia and on two hydroponic growth shades in the room that contained the 58 cannabis plants.
The Statement of Agreed Facts signed by the applicant also recorded that Mr Dixon admitted assisting the applicant with watering and tending to the cannabis plants and engaging in coded telephone conversations with the applicant in which they referred to the cannabis plants as "kids".

The sentencing judgment

In addressing the objective seriousness of the offences, the sentencing judge quoted the following observations of McCallum J (with whom Hoeben CJ at CL and Simpson JA agreed) in Yeung v R [2018] NSWCCA 52 concerning the effect of the High Court decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39: "24 I understand the decision in Muldrock to hold that a sentencing judge is not required to articulate a determination placing the offence for which an offender is to be sentenced at a point along a hypothetical range, such as 'below mid-range' or 'just below mid-range' … However, it remains an essential task to undertake an evaluative assessment of the objective seriousness of the offence, for the reasons explained by Simpson J in [Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118] at [71]-[77]."
Having referred to the maximum penalty applicable to count 1 (15 years imprisonment and/or a fine of $385,000), his Honour noted that the number of plants concerned was eight more than a commercial quantity for the purposes of a supply offence and that the 21.2 grams of methylamphetamine the subject of count 2 was many times greater than the amount required for a deemed supply offence (3 grams) and an indictable quantity (5 grams) (sch 1 of the DMT Act).
His Honour then found that the applicant was the person primarily responsible for the cannabis plant cultivation enterprise and noted: "The cultivation of the plants was undertaken in enhanced conditions utilising a discharge lab ballast mount and reflectors. Growth shades, hoses, fertilizers and other equipment were also located by the police. The plain inference was that this was intended to increase the profitability of the enterprise by reason of increased yield. Financial gain was plainly a motivation. … Concerning the submissions advanced on behalf of the offender, there is no evidence as to what the level usual for cultivations of this type might be. It is clear that the offending involved a high degree of sophistication in order to enhance the growth of the plants to increase the yield. I do not intend to formulate or articulate the seriousness of the offending by reference to a hypothetical range. I find that the objective seriousness of the offence was moderate with respect to the first count."
His Honour then made the following findings concerning the objective seriousness of the count 2 offence: "Having regard to the fact that the amount of the drug in question is more than seven times the level for deemed supply and four times the amount of the indictable offence, I consider the objective criminality to be greater than moderate. In making that assessment, I have given careful consideration to the effect that the supply of this drug has in the community, and the activity was no doubt in by the offender for profit."
His Honour then addressed the applicant's subjective case. Having found that the applicant had an extensive criminal record, his Honour then, relevantly to the issues arising on the appeal, said the following concerning the applicant's employment history: "It was further submitted for the offender that he 'develops a good work ethic' but that his previous convictions had been a serious impediment to him 'moving on with a non-criminal lifestyle'. There was no evidence which demonstrated any work ethic. His previous convictions have resulted from choices which he made in the past and ought not be regarded as an excuse for antisocial lifestyle. Counsel submitted that he appears to return to drug and criminal activity. That is obviously indisputable given the nature of the present charges against him. Further it was submitted on behalf of the offender that his ability to hold down employment was a credit to him and assists him with prospects of rehabilitation. Again there is no evidence before me of the offender's employment history. To suggest that it was a credit to him and may assist in rehabilitation are, respectfully, submissions without foundation. It is telling that the offender has offered no evidence at the sentence hearing. The only evidence that provided any insight into his behaviour was a report by Katy Martens, psychologist, dated 7 February 2017. That report was obtained by his then solicitor in relation to the previous offences of assault and aggravated break and enter. It was tendered by the Crown at the sentence hearing in relation to the current matter. Given that the report was not commissioned for this sentence and that the offender did not himself seek to rely upon it I approached the psychologist's report with caution. The report is also based upon an untested history provided by the offender himself in circumstances where he was aware that the purpose of the report was to assist him in relation to the earlier sentence. The report by Ms Martens notes the offender at the time was 42 years old and had a criminal history which spanned 2005-2015. … The offender told the psychologist that 'he can't excel again because of my criminal history'. Instead of pursuing employment opportunities such as they may have been the offender chose to engage in criminal behaviour resulting in, amongst other things, the present charges against him. So far as I am aware that is the only evidence as to the offender's work history. It is completely uncorroborated, no evidence as to the matters referred to in the report have been offered by the offender on the sentence hearing. In those circumstances I do not accept the submission that the offender has a good work ethic."
His Honour reached the following conclusions concerning remorse and the prospects of rehabilitation and reoffending: "It is plain from that report [of Ms Martens] that as at February 17 [2017], the offender had no insight into his past offending behaviour, lacked any desire to participate in rehabilitation and tended to blame others for his failings. Absent evidence, there is no reason to think those traits have changed. In considering the offender's subjective case, it must be observed that there is no evidence offered to the Court of any remorse or good character. Given the value of rehabilitation programs in the past, it is highly unlikely, in my view, that he would be a good candidate for successful rehabilitation. I find the likelihood of reoffending is regrettably, in those circumstances, high."
Later, his Honour rejected the applicant's submission that special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be found on the basis of a need of the applicant for time to achieve rehabilitation. His Honour declined to find that there was a prospect of rehabilitation occurring.

Ground 1: objective seriousness of count 1

In support of this ground of appeal, the applicant submitted that "his Honour's finding, that Count One involved a high degree of sophistication, and accordingly the objective seriousness of count one was 'moderate' was not open to his Honour on the facts of this case". The applicant then submitted that the use of the term "moderate" indicated that the objective seriousness of count 1 was assessed as "mid-range".
These submissions should be rejected for two reasons. First, the sentencing judge did not place the offence at mid-range on a hypothetical range of offences of escalating seriousness. Secondly, even if he did, such a finding was open to him.
As to the first reason, his Honour, as noted at [12] above, quoted the observation in Yeung at [24] to the effect that although a sentencing judge must make an evaluative assessment of the objective seriousness of the subject offence, the judge is not required to place the offence on a "hypothetical range, such as below mid-range or just below mid-range".
Against this background, the sentencing judge later said that he did "not intend to formulate or articulate the seriousness of the offending by reference to a hypothetical range" (emphasis added). His Honour's description in the very next sentence of the objective seriousness of the first count offence as "moderate" cannot be taken as intended to do what he had just said that he would not do. His Honour used the term "moderate" simply to indicate that he regarded the offence as serious, without any attempt being made to compare it to other possible offences of the same type. Moreover, when his Honour described the offence as having involved "a high degree of sophistication in order to enhance the growth of the plants to increase the yield", his Honour was not engaging in any comparison with the level of sophistication involved in other offences of the same type. This is clear from his statement in the immediately preceding sentence that "there is no evidence as to what the level usual for cultivations of this type might be".
Secondly, even if his Honour's statements are to be understood as classifying the count 1 offence as "mid-range", the applicant has not demonstrated any appellable error. As has often been said, assessment of the objective seriousness of an offence is "classically within the role of the sentencing judge" and an appellate court is to be "very slow" in setting aside what is the exercise of a "broadly based discretion" (Mulato v The Queen [2006] NSWCCA 282 at [37] and see also at [46]).
The following matters support the conclusion that, whilst the objective seriousness of count 1 might well have been assessed by other judges as other than mid-range, such an assessment, if made by his Honour, would not have been outside the bounds of a proper exercise of his discretion.
First, his Honour found that the applicant was the person "primarily responsible" for the enterprise and provided to Ms Colebrook advice, seemingly based on significant experience and expertise, as to how to avoid root rot in the plants (see [7] above). The Statement of Agreed Facts also indicated that the applicant spent considerable time looking after the cannabis plants and that the co-offender, Mr Dixon, assisted the applicant in caring for them (see [11] above).
Secondly, the count 1 offence involved the applicant knowingly taking part in the cultivation of cannabis plants of not less than the applicable commercial quantity (s 23(2)(a) of the DMT Act). Under Schedule 1 to the DMT Act the applicable commercial quantity is 250 plants unless the plants are cultivated "by enhanced indoor means", in which case the commercial quantity is 50 plants. The subject cultivation involved 58 plants.
Section 3 of the DMT Act provides that "cultivation by enhanced indoor means" refers to cultivation of a plant that occurs inside a building or structure involving any one or more of the following: "(i) the nurture of the plant in nutrient-enriched water (with or without mechanical support), (ii) the application of an artificial source of light or heat, (iii) suspending the plant's roots and spraying them with nutrient solution."
In this case, both (i) and (ii) were satisfied when only one would have been sufficient to establish the applicable element of the offence. Further, the artificial lighting system that the applicant used involved the use of ballasts which rendered it more sophisticated than might otherwise have been the case.
Thirdly, s 6 of the DMT Act provides that a person "takes part in the cultivation or supply of a prohibited plant" if, inter alia, "the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation … ". An offence against s 23(2)(a) may therefore arise out of a very limited involvement in the cultivation, for example, by visiting a house irregularly to water the plants. The applicant's involvement was considerably greater than this. He had primary responsibility for the enterprise, gave instructions to Ms Colebrook about how to look after the plants and spent considerable time looking after them himself. As well, he was living in the unit where the crop was cultivated.
Fourthly, the fact that the applicant's offence did not have a number of other features that would have made it a more serious offence, such as that the number of plants exceeded the commercial quantity by more than the eight relating to the applicant's offence, did not preclude a finding that the offence fell within the mid-range.
For these reasons, I reject ground 1.

Ground 2: the objective seriousness of count 2

As noted earlier, the sentencing judge's finding as to the objective seriousness of count 2 was as follows: "Having regard to the fact that the amount of the drug in question is more than seven times the level for deemed supply and four times the amount of the indictable offence, I consider the objective criminality to be greater than moderate. In making that assessment, I have given consideration to the effect that the supply of this drug has in the community, and the activity was no doubt [engaged] in by the offender for profit".
The applicant submitted that, by these observations, the sentencing judge intended to characterise the objective seriousness of count 2 "somewhere between mid-range and higher than mid-range" on a spectrum of offences of varying seriousness. It is not however clear that his Honour intended to do this. At least, his Honour's expressions did not in my view suggest that he considered the offence may be up to "higher than mid-range". As I see it, his Honour at most characterised the offence as somewhat more serious than one falling at the mid-point on the spectrum. Whatever precise intent may however be attributed to his Honour in this respect, I do not consider that error has been established. I refer in this respect to the observations made in [23] above concerning appellate intervention in relation to findings of objective seriousness.
The particular matters that the applicant relied upon in support of this ground of appeal were the following: "a. There was no indicia of greater supply indicating a substantial involvement in trafficking (such as mobile phones, packaging, significant amounts of cash, lists of transactions etc); b. There was no evidence of enhanced purity of the drug, thereby increasing the value and potentially the sophistication of any supply operation; c. There was evidence of a significant history of drug misuse by the Applicant, contained within the Martens report tendered in the Crown case, as well as his fingerprints on the 'drug paraphernalia for the administration of drugs (including water pipes and syringes)' meaning that the submission that he was a 'user dealer' was not only open, but perhaps inevitable."
As a general response to (a) and (b), it may be said that these matters, even if accurately stated, would not necessarily contradict his Honour's finding. The fact that more serious instances of an offence may be envisaged does not of itself contradict a finding as to objective seriousness.
As to (a), there was in any event evidence of the applicant's use of two mobile phones on which numerous calls were intercepted. As well, the applicant's pleas of guilty to offences of the supply of different types of drugs were relevant to the extent of his involvement in supply (Pak v R [2015] NSWCCA 45 at [30]).
As to (b), the absence of evidence of "enhanced purity of the drug" was not of any particular significance. In assessing the objective seriousness of the offence, his Honour properly took into account the fact that the amount of methylamphetamine supplied was over seven times the trafficable quantity (3 grams) and four times the indictable quantity (5 grams) (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67]; Lee v R [2019] NSWCCA 106 at [59]; Yacoub v R [2019] NSWCCA 57 at [45]).
As to (c), Ms Martens' report contained evidence of only limited relevant drug use. Although the applicant used other drugs earlier in his life, from about the age of 28 his use of drugs appears to have been largely confined to methylamphetamine. He was aged 40 at the time of the subject offences. In this respect, Ms Martens recorded the following concerning the applicant's drug use: "He described a pattern of daily use until his arrest at age 30. Since this time, he has reportedly continued to use methamphetamine "here and there'. Mr Laughton estimated that he last misused illicit drugs 'a couple of years' ago, and he endorsed maintaining abstinence in custody".
Whilst evidence of significant drug use may have some relevance to the objective seriousness of an offence (see for example R v Henry [1999] NSWCCA 111 at [273] and Dang v R [2013] NSWCCA 246 at [30]), there was no evidence of such drug use by the applicant at the time he committed the count 2 offence, much less any evidence that he was in the "grip of an addiction" (see Dang at [30]). The present case is unlike Cicciarello v R [2009] NSWCCA 272, for example, where the offender sold drugs to "support his addiction to Ice" (at [12]). This Court considered that the offender in that case "was not selling for greed or for financial gain, he was selling to feed a drug habit that he had acquired" (at [17]).
Other evidence to which the applicant referred in (c) quoted at [34] above was that his fingerprints were on the drug paraphernalia. This evidence was however consistent with occasional, casual drug use only, particularly when there was evidence that at least one other person resided in the unit and that a third person stayed there from time to time.
For these reasons ground 2 should be rejected.

Ground 3: the applicant's prospects of rehabilitation

In support of this ground of appeal, the applicant submitted that the sentencing judge erred in finding that there was no evidence to support the applicant's submission that he had a history of employment which displayed a "work ethic". The applicant submitted that the report of the psychologist, Ms Martens, in fact provided evidence to support the submission.
Ms Martens' report did not however provide that support. It records that after leaving school halfway through Year 11, the applicant completed a mechanic's apprenticeship and a two year TAFE course in auto electrics. Between the ages of 22 and 30 he owned and managed successful mechanics businesses, and, later in that period, a machining and fabrication business as well. At about age 30, Ms Martens recorded that the applicant chose to close the businesses "citing the high workload and poor work-life balance as his reasons". He commenced "running a subsidiary company for a forklifting company making battery boxes" but was arrested and incarcerated at age 30 which caused him to lose his position. From that time he had difficulty maintaining his employment, due, he said, to his criminal history.
Certainly for an eight year period the applicant conducted his own businesses, but he had ceased to do that 10 years prior to committing the subject offences and over another year before the date of Ms Martens' report. The sentencing judge not unfairly observed in respect of this period that "[i]nstead of pursuing employment opportunities such as they may have been the offender chose to engage in criminal behaviour resulting in, amongst other things, the present charges against him".
In light of the above, I conclude that there was no error in his Honour declining to accept the applicant's submission that he "has a good work ethic".
As his Honour's conclusion was consistent with Ms Martens' report, the applicant's submission that his Honour "selectively place[d] weight on parts" of Ms Martens' report does not arise. I observe however that in any event it would have been open to his Honour to differentiate between parts of Ms Martens' report as there may be reasons for accepting some parts of such a report (because for example they record statements against interest) and not others.
This disposes of the basis of the applicant's attack on the sentencing judge's conclusions that the applicant would not be "a good candidate for successful rehabilitation" and that the "likelihood of reoffending is regrettably … high".
There was no other basis available to the applicant to attack these conclusions as they were arrived at after considering the applicant's undoubtedly significant criminal history and his attitude to rehabilitation as expressed to Ms Martens. In this respect, Ms Martens recorded him as saying that drug and alcohol courses were of no use because "he already knew it all anyway" but that he had engaged in the courses because it "looks good on paper". His Honour found that the applicant "had no insight into his past offending behaviour, lacked any desire to participate in rehabilitation and tended to blame others for his failings".
For these reasons, ground 3 should be rejected.

ORDERS

For the reasons above, none of the applicant's proposed grounds of appeal have merit. In these circumstances, I propose the following orders: 1. Grant leave to appeal against sentence. 2. Dismiss the appeal against sentence.
DAVIES J: I agree with Macfarlan JA.
HIDDEN AJ: I agree with Macfarlan JA.

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: 23 December 2019

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