Ground 4 - error in the commencement dates for counts 2 and 3, and totality
46 The effect of the sentences was that the Applicant received an aggregate term of imprisonment of 8½ years and an aggregate non-parole period of 5½ years. The Applicant says that for the 3 offences charged this was neither just nor appropriate and a lesser degree of accumulation was required.
47 His Honour said in this regard:
"On the matter of totality for the number of separate offences I would recognise the conjunction of the two drug offences and allow some concurrency there and then in relation to the firearms offences also allowing for some concurrency and at the end there would still be a suitable period of parole to allow for the effect of any accumulation. "
48 His Honour accumulated count 2 by 12 months and accumulated count 3 by a further 18 months. The Applicant says that the 2 drug offences should have been accumulated only by 6 months and the firearms offence accumulated by another 6 months. This would have the effect that his non-parole period would expire on 25 March 2011.
49 In Cahyadi v Regina [2007] NSWCCA 1 Howie J (with whom Price and Adams JJ agreed on this aspect of the judgment) said at [27]:
"… [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality."
50 Similarly, in R v MMK [2006] NSWCCA 272 the Court said:
"[11] …It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence…"
51 Although the sentencing judge made reference to the matter of totality for the offences there is no indication that he approached the matter in the manner discussed in Mill v R (1988) 166 CLR 59 at 62-63, R v Pearce (1998) 194 CLR 610 at 624 and subsequently in Johnson v The Queen (2004) 78 ALJR 616 at [18]-[27]. When the principle of totality is viewed, the overall criminality of the offences did not justify a sentence of imprisonment of 8½ years and a non-parole period of 5½ years and was outside the appropriate range of discretion for the reasons that follow.
52 There was a close connection between the first two counts being the cultivation of the cannabis plants and the supply of cannabis oil. Indeed, given the size of the cultivation and the amounts of cash found, the main purpose of it must have been for the supply of the prohibited drug in one form or another. In making the sentences for those offences concurrent only to the extent that the sentencing judge did means that the sentence was excessive in terms of the overall criminality of the drug business being conducted by the Applicant. Compared with a number of cultivations that have come before the courts, this was a relatively small operation, and part of its reason was no doubt connected with the use of the marijuana by the Applicants. In terms of the overall criminality for the drug offences his Honour appropriately sentenced the Applicant to a longer period for count 2. But to accumulate that sentence by 12 months was outside the proper range of discretionary judgment bearing in mind the connection between the 2 offences and the longer sentence given for count 2.
53 Although his Honour did not find that the purpose of the possession of the firearms was related to the drug business being conducted his Honour saw it as a relevant factor that the unauthorised firearms were held by a person who was also involved in the cultivation of prohibited drugs. Further, his Honour referred to the policy of the legislature to ensure that there is no unauthorised and unnecessary proliferation of firearms. The fact that a drug cultivation business was being conducted from the premises increases the risk of the proliferation of those weapons because of the increased risk of a break-in.
54 In all the circumstances, a proper application of the principle of totality would have resulted in an overall sentence of 7½ years with an aggregate non-parole period of 4½ years. His Honour ought to have directed that sentences in respect of counts 1 and 2 should have been served concurrently. The result would have been, therefore, that the Applicant's non-parole period in respect of count 2 would have expired on 25 March 2009. His Honour was not in error in accumulating the sentence for count 3 in the way he did. However, the correction to the accumulation that ought to be made in relation to the sentence for count 2 has the result that the overall sentence is reduced to 7½ years with an aggregate non-parole period of 4½ years expiring on 25 September 2011.
Appeal by Annette Mack
55 There was evidence given by Mrs Beverley Mack at the sentencing hearing to the effect that the Applicant Annette Mack was the submissive one in the marriage. The evidence was that Wayne Mack made the decisions in the family and that Annette was not a confident person and she would go along with what Wayne would suggest and was easily led.
56 Mrs Beverley Mack said that she had some concern as to Annette Mack's level of intellectual function. That view receives support from the report of Mr Alex Edgar, forensic psychologist, whose testing placed Annette Mack at the top end of the Borderline range with her skills being superior to 8% of the population.
57 Mrs Beverley Mack's evidence about her daughter-in-law's submissiveness is also borne out by what Mr Edgar said in his report as follows:
"[The Applicant's] responses indicated she wants to be accepted and involved with others but is hesitant due to her fear of being rejected or humiliated by them. She likely experiences feelings of unease and anxiety and perceives herself to be socially inept and inadequate, consequently she likely undervalues her achievements and engages in self-criticism, frequently feeling alone and isolated. Her test results suggest she restricts her social environment more so since her involvement in the offences and this compounds her depressive symptomatology."
58 Although the sentencing judge referred to the report of Mr Edgar he made no reference to his assessment of the Applicant in terms of the psychometric and personality testing conducted by him. His Honour, however, touched on this issue when he said this:
"It is submitted to me that she was only the partner of her husband in this matter [i.e. the propagation of drugs] and of course I have already dealt with her husband and that in fact it was his operation and she was in the position of a wife who had to go along. However she herself was a user of cannabis and therefore must be taken to have known exactly what was happening …"