Michael Joseph Gattellari v R; Peter Jade McRae v R.

Introduction 1 BUDDIN J: The applicants, Michael Joseph Gattellari and Peter Jade McRae seek an extension of time within which to apply for leave to appeal against sentences imposed upon them in the District Court. Each of them originally pleaded guilty in the Local Court to a charge of cultivating not less than the large commercial quantity of cannabis plants. In all, 2742 plants were involved. The legislature has provided that 1000 plants constitutes a large commercial quantity. The maximum penalty for the offence is imprisonment for 20 years and/or a fine of 5,000 penalty units. 2 The applicants adhered to their pleas in the District Court where each of them received an identical sentence comprising a non-parole period of three years and two months with the balance of the term of the sentence of imprisonment being two years and seven months.

The evidence 3 The relevant factual background can be briefly stated. On 14 February 2005 police executed a search warrant upon an isolated property located at Binnaway in the western part of New South Wales. The applicants, together with two other men named Toan Huynh and Yinh Ngoc Phan, were arrested at the premises. Joseph Gattellari, the father of the applicant Michael Gattellari, was arrested at another location in a simultaneous raid. The property had been the subject of a covert police surveillance operation since 29 November 2004. During the course of the investigation, police entered the property on fourteen occasions. Whilst there, they obtained video and photographic evidence of the cultivation as it progressed. 4 Investigators discovered an extensive indoor cannabis cloning operation inside a large steel shed, which measured 80 metres by 20 metres, as well as a large outdoor crop site, which was the size of a soccer field, where the plants ranging in height from 20 cm to 1.5 metres (that is from seedlings to fully matured plants), had been planted. The crop site, which was set in thick bushland, was partitioned by chicken wire. It was serviced by two large water tanks and an irrigation system, including poly pipes, which ran throughout the crop site. 5 During the course of the investigation, police observed the applicants engaged in various aspects of the cultivation of the plants on no fewer than eight occasions. They were seen to be involved in managing the process of nurturing and watering mature mother cannabis plants for cloning as well as transporting the plants from the shed area to the crop site some 700 metres away. The applicants also tended and nurtured the crop site. A number of intercepted telephone calls between the applicants and Joseph Gattellari demonstrated that they reported to him. The crop was estimated to have a street value of approximately $5.5 million. 6 Although the applicants declined the opportunity to be interviewed by police, each of them gave evidence during the course of the sentence proceedings. That evidence was to the effect that a man named Anthony Taylor had been responsible for setting up the enterprise and that he had involved each of them in it. It appears that Taylor had broken his leg before the police surveillance commenced. The applicants gave evidence that as a result, he had not thereafter returned to the property. 7 It is evident from the following findings of fact, made by the sentencing judge in relation to the applicant Gattellari, that he played a prominent role in the offence: The evidence is not complete to enable the Court to be satisfied beyond reasonable doubt as to the offender's role in the original planting of these crops or whether he made a financial contribution and the Court does not do so. However, it is clear that from the time of an injury suffered to [sic] one Taylor that this offender and his co-offender McRae continued the organisation of these plantations, managed the cultivation and there is evidence of the conversations taking place on a day by day basis between them and between this offender and his father and in the use of words that are involved in the normal business that the Gattellaris had run as a means of hiding the true intent of that which was being done by this offender. There is no evidence as to what ultimately would have been done with the crop once it reached maturity although the Court can conclude that this offender together with his co-offenders would have seen the project through to harvesting whether Taylor returned or not and would have sought to obtain the best financial return that they could . I do not necessarily accept the evidence offered by this offender of his father's limited involvement as such evidence does not sit comfortably with the tapes or interpretations that can be placed on the tapes or with the evidence of the co-offender McRae. The crime of cannabis cultivation is prevalent. Such criminal activity is carried out for the purposes of reaping large financial rewards by the introduction of the proceeds of such cropping into the general populace and the introduction of such crops into the system of drug supply. This is done and no doubt was done on this occasion by the offender for large financial reward . This crime was attended to with a great deal of effort, persistence and organisation . …However, the offender's involvement required living in primitive conditions away from his loved ones and in circumstances where the crop had to be tended in the manner to which I have referred It is also clear that in Taylor's absence the offender and the offender McRae took over the role of being the persons in charge of the cultivation. It maybe that assistance was sought from his father from time to time however the scheme that was in existence was furthered by his efforts. I regard this offence with its organisation, its persistence and its continuance in the remote area as being above the middle of the range of any scale constructed for such an offence . (emphasis added) 8 The sentencing judge concluded that this applicant's principal motivation was "the opportunity for financial gain rather than out of some perceived need or coercion". His Honour concluded that his involvement in the enterprise continued for about three months after Taylor left the property. 9 The sentencing judge made identical findings in relation to the applicant McRae who admitted, whilst giving evidence, that he had been lured into the enterprise by the prospect of making a large amount of money. 10 It is to be observed that there was no challenge in this Court to any of the findings made by the sentencing judge in respect of either applicant. 11 The applicant Gattellari, who was aged 20 at the time of the offence, is the eldest of three children. Although he was unemployed at the time of the offence, he had previously been employed and was highly regarded by his employers. He has a strong network of community support and the promise of employment and accommodation upon his release from gaol. He had no criminal record and was found by the sentencing judge to be a person of good character. The applicant received a discount of 25% for his plea of guilty. The sentencing judge also observed that he had "proffered his own regret and remorse for this offence". 12 There was evidence, which his Honour accepted, that the applicant had worked assiduously in his position in the Metal Products Division of Prison Industries. He had also completed a number of courses whilst in custody. The sentencing judge assessed the applicant's future prospects as being "particularly positive". His Honour found "special circumstances" on account of his age, his "real prospect of rehabilitation" and the fact that it was his first time in prison. 13 The applicant McRae was aged 26 at the time of the offence. Although he had some minor convictions, the sentencing judge treated him as being a person of prior good character and thus entitled to leniency. There was a body of evidence which attested to his personal qualities. The sentencing judge described him as "a hardworking and reliable person normally dedicated to his family" which consisted of his de facto wife and two young children. His Honour found that he too had spent his time in custody productively. He likewise received a discount of 25% for his plea of guilty and was said to have expressed remorse for his actions. A finding of "special circumstances" was made in his favour for the same reasons that were advanced in respect of Gattellari.