Mooney v R

Court of Criminal Appeal (NSW)|2016-11-15|Before: Ward JA, Campbell J, Adams J

Judgment

WARD JA: I agree with N Adams J.
CAMPBELL J: I agree with N Adams J.
N ADAMS J: The applicant seeks leave to appeal against sentences imposed upon him by English DCJ in the District Court at Campbelltown on 18 September 2015.
On 15 December 2015, the applicant's previous solicitor filed a notice of intention to apply for leave to appeal, an extension of time having been granted until that day. On 14 June 2016, the Registrar granted an extension of that notice until 15 August 2016. On 7 September 2016, it was again extended until 15 October 2016. The notice of application for leave to appeal was then filed within time on 15 September 2016. Grounds of appeal and written submissions were filed on the same date. Although an affidavit sworn by the applicant's solicitor on 14 November 2016 was filed at the hearing of the appeal explaining the delay in this matter, it does not appear to me that the applicant requires leave to apply out of time.
On 22 April 2015, the applicant pleaded guilty in the Local Court at Campbelltown to the following three charges: 1. Sequence 1: supply prohibited drug (55.3g of methylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the DMTA"). This offence has a maximum penalty of imprisonment for 15 years and/or a fine of 2000 penalty units ($22,000). 2. Sequence 2: supply prohibited drug (77.2g of methylamphetamine) contrary to s 25(1) of the DMTA. 3. Sequence 3: cultivate prohibited plant (21 cannabis plants) contrary to s 23(1)(a) of the DMTA. This offence has a maximum penalty of imprisonment for 10 years and/or a fine of 2000 penalty units ($22,000).

The facts

A statement of agreed facts was tendered before her Honour and the applicant was sentenced on the basis of those facts. Although that document largely addresses the facts of Sequences 1 and 2, which are not the subject of this application, it is necessary to set out those facts in order to understand the structure of the total sentence imposed and the principle of totality as it applied in this matter.
The agreed facts indicate that between March and June 2014 police investigated the mid-level supply of methylamphetamine by Matthew Stapleton. As part of this investigation, police were granted an authority to conduct a controlled operation in relation to the supply of prohibited drugs by Stapleton and any of his associates. Recordings made during this time revealed that Stapleton was a close associate of the applicant.
On 16 May 2014, Stapleton contacted an undercover operative and agreed to supply him with "two beers", which was said to mean two ounces of amphetamine. Stapleton subsequently telephoned the applicant and asked him to "drop that thing" to Stapleton's house by 2pm. The applicant told him that he was having lunch, but that he could go to his workplace and "grab" the amphetamine. Stapleton told the applicant that if he (Stapleton) was not at home, the applicant should "put them" in his barbecue or around the back of the house somewhere.
At 1:46pm on 16 May 2014, the applicant attended Stapleton's house. He was observed leaving the house eight minutes later.
At 2:22pm, an undercover operative attended Stapleton's house and negotiated the price for two ounces of "gas". The undercover operative gave Stapleton $3,000 for a small clear plastic container, which contained a wet yellow substance. The contents of that container were later analysed and found to be 55.3g of methylamphetamine with a purity of 11.5%.
At 12:23pm on 1 June 2014, Stapleton's brother Andrew Stapleton ordered two ounces (56g) of amphetamine from Stapleton for the purpose of on-selling to another person. Stapleton told him that he could obtain the drug that night. Stapleton subsequently telephoned the applicant and inquired whether he could take "two Bourbons" (a reference to the two ounces of amphetamine) to his mother's house for his "little brother Andrew" who resided there. The applicant agreed to do so and asked whether it was the "normal shit". Stapleton confirmed that it was amphetamine which was to be delivered. The applicant subsequently delivered 56g of amphetamine for Andrew Stapleton as agreed.
On 19 June 2014, a search warrant was executed at the applicant's home. While the applicant was outside securing his dog, police officers located a number of cannabis plants in one of the rear bedrooms. When asked about them, the applicant readily agreed that they were his. He told police that there were 21 plants and that they were self-watering. He told police that he had set up the equipment. The plants were growing in two temporary cupboards. One cupboard contained 20 plants of varying sizes, but all were below one metre in height. They were being grown hydroponically with the use of a single heat lamp, fan and a water filtration system. There was a larger plant in the second cupboard, which was still below one metre in height. That plant was also being grown hydroponically. The plants were valued by police at between $10,000 and $20,000.
The applicant admitted to being in possession of other drugs, being 61.3g of amphetamine in a container on top of the fridge and a further 15.9g of amphetamine in his bedroom. The total weight of amphetamine located at the applicant's home was 77.2g, with an estimated value of between $3,000 and $5,000.
The applicant was later interviewed by police, during which he said that the cannabis was for personal use. He told police that he did not intend to sell it. He agreed that there were 21 plants, which were all above 40cm in height. He indicated that he smoked approximately a gram of cannabis per day and that the 40cm plants were about four weeks old. He also told police that he was holding the "speed" on top of the fridge for a friend called "Fatty", being Stapleton. He made admissions concerning dropping off amphetamine for Stapleton on 16 May 2016. He told police that he had never taken any payment for holding or delivering the drugs for Stapleton. He stated that he knew that what he was doing was wrong and that he was remorseful for his actions. He told police that he felt "used" by Stapleton.

Reasons of the sentencing judge

Her Honour noted the early pleas of guilty in this matter and proceeded to set out the facts in some detail. She then went on to deal with the applicant's subjective characteristics. Her Honour noted that the applicant's family is supportive of him. In the opinion of the psychologist Mr Neil McDonald the applicant is someone suffering from low self-esteem who is "basically a very kind and helpful person". Her Honour noted that this made the applicant the very type of person whom drug dealers would inveigle into acting as couriers and warehousemen, being "naive individuals who have absolutely no idea of the extent of the criminal activity they are engaging in".
Her Honour noted that the applicant involved himself in the supply of a total of 188.5g of amphetamine and methylamphetamine, which is a significant quantity of illicit drugs. Her Honour found that, "The fact that he was not paid for his part of this organised criminal activity does not lessen his moral culpability greatly." Her Honour went on to note the considerable amounts of money involved on the part of the Stapletons. Her Honour then stated: "Indeed, the cannabis plants grown by the offender had the potential to yield between $10,000 and $20,000 had the crop been grown and harvested and sold. Of course the quantity and value of the drugs and the purity, if known, are not the sole nor principal determining factors for sentencing in relation to drug offences. More important is the role of the offender and his level of participation. Clearly, he was not someone supplying purely for the financial reward or gain. He did not display the trappings and wealth from [sic] someone actively preying upon others purely for financial reward. He was someone who had succumbed to pressure by others to involve himself in this criminal activity, however he was acting alone growing the cannabis, which itself is a serious criminal offence. Cannabis is not a harmless drug, as is so often thought by users to be the case, it is a drug which, particularly when hydroponically grown, causes significant mental health problems for many. The Crown concedes, however, that it cannot prove beyond reasonable doubt that the offender was growing the cannabis for financial reward or gain and he is entitled to have a finding made in his favour in that regard. It must be said, however, that it was a significant quantity of cannabis for his own use. He does make admissions to sharing cannabis with friends on occasions."
Her Honour went on to note that the applicant had been involved in his local cricket club and in animal rescue through volunteering to work at stalls at shows, collecting donations and assisting to find homes for rescue dogs. Her Honour ultimately found that the applicant had "excellent prospects for rehabilitation" and that he was "highly unlikely to reoffend". These findings were made on the basis that the applicant had given evidence before her Honour to the effect that he is aware of the dangers of the drugs that he supplied and how drugs can ruin families. He gave evidence that he will never allow himself to become involved in drug trafficking again.
In addition to the 25% discount in recognition of the utilitarian benefit of the early plea of guilty, her Honour allowed a further 15% discount for assistance provided by the applicant consistent with s 23(1) of the CSP Act.
In sentencing the applicant, the sentencing judge stated that the maximum penalty for the offence in Sequence 3 was imprisonment for 15 years.

Grounds of Appeal

The application made application for leave to appeal relying on the following two grounds: 1. Her Honour fell into error in sentencing on Sequence 3 which error infected the sentences imposed on Sequences 1 and 2 (Ground 1). 2. That the applicant be resentenced on Sequences 1 and 2 (Ground 2).
Ground 2 is in effect an application for the commencement date of the sentences imposed for Sequences 1 and 2 to be varied pursuant to s 59(1) of the CSP Act should this Court quash the sentence for Sequence 3.
The Crown accepted that the sentencing judge had misstated the maximum penalty for the Sequence 3 offence. The relevant maximum penalty is imprisonment for 10 years, but her Honour proceeded to sentence the applicant on the misapprehension that the maximum penalty was imprisonment for 15 years.
Counsel for the applicant relied upon the decision of this court in R v Baxter (2007) 173 A Crim R 284; [2007] NSWCCA 237, where Spigelman CJ observed at [54] and [60]: "54 A misstatement of the maximum penalty, in the course of sentencing, is plainly an important error. The significance of the maximum penalty was described in Markarian v The Queen ([2005] HCA 25; (2005) 79 ALJR 1048) where Gleeson CJ, Gummow, Hayne and Callinan JJ in a joint judgment said this: (at 1056) "[30] Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance… [31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick…" … 60 I accept that the applicant does not have to establish the sentence was manifestly excessive. To be a material error, it is enough that such error may, as a matter of inference, have infected the reasoning of the sentencing judge such that, absent error, some other and lesser sentence may have been imposed."
It was submitted on behalf of the applicant that, if this Court were to proceed to re-sentence the applicant, there were alternative sentencing options available to this Court in respect of Sequence 3 as follows: 1. Fully concurrent sentences of imprisonment for Sequences 2 and 3; 2. Sentences of imprisonment involving a lesser degree of accumulation; 3. Recording a conviction and taking no further action pursuant to s 10A of the CSP Act; 4. Imposing a fine; 5. Imposing a sentence until rising of the court; or 6. Fixing a shorter sentence on Sequence 2 with less accumulation on Sequence 3, resulting in a lower overall sentence.
At the hearing of the application, counsel for the applicant conceded that the last of these options was not one open to the Court as there was no complaint made concerning the length of the sentence on Sequence 2.
In response, the Crown accepted that the sentencing judge had acted upon a wrong principle of law: see Donaghey v R [2015] NSWCCA 119 per Bellew J (with whom Bathurst CJ and Simpson J, as her Honour then was, agreed) at [20] and Andreata v R [2015] NSWCCA 239 at [28] per Beech-Jones J (with whom Ward JA and Adams J agreed). Despite this, it was submitted that the manner in which her Honour structured the three sentences meant that only the first three months of the total sentence were solely referable to the sentence imposed in relation to Sequence 3 and that sentence has already been served. It was further submitted that the discrete offending of cultivating a prohibited plant encapsulated by Sequence 3 called for a degree of accumulation because the criminality involved could not be adequately reflected in the sentences for the supply offences.
The Crown relied upon the fact that the cannabis plants were being grown hydroponically and had an estimated value of between $10,000 and $20,000. Ultimately it was the position of the Crown that, if this Court were to intervene to re-sentence the applicant in relation to Sequence 3, taking into account the correct maximum penalty, no lesser sentence would be warranted at law in that this Court would impose the same partial accumulation on the sentence in any event.

Consideration

Error was conceded in this matter. The Crown misinformed the sentencing judge of the relevant maximum penalty at the proceedings on sentence and, regrettably, that error was not brought to her Honour's attention by the applicant's then counsel.
In Donaghey v R at [20], Bellew J (with whom Bathurst CJ and Simpson J agreed) described an erroneous statement of the maximum penalty by a sentencing judge as "material" in that it "had the capacity to infect the exercise of the sentencing discretion". More recently, Beech-Jones J (with whom Ward JA and Adams J agreed) observed in R v Andreata at [28]: "Given the significance of the maximum penalty to the sentencing process (Markarian v R [2005] HCA 25; 228 CLR 357 at [31]) it is difficult to conceive of a circumstance in which the misstatement of the maximum sentence would not result in House v R error except perhaps, for example, if the balance of the reasons demonstrated that the sentencing judge in fact acted on the basis of the correct maximum penalty."
I am satisfied that the error with respect to the maximum penalty may have infected the reasoning of the sentencing judge such that, absent error, some other and lesser sentence may have been imposed. In circumstances where there is no standard non-parole period prescribed for this offence, the maximum penalty fixed by the legislature is a significant yardstick.
Having found that Ground 1 is established, it is necessary for this Court to undertake an "independent exercise of its discretion:" Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35], [42] and [43]. That exercise is limited to the sentence imposed in relation to Sequence 3.
This Court is required to determine whether some lesser sentence is warranted in law or whether the "same sentence or a greater sentence is the appropriate sentence:" s 6(3) of the Criminal Appeal Act; Kentwell at [43]. This Court would only dismiss this appeal if it were to find that a no less severe sentence is warranted in law. Although this Court can receive evidence concerning events that have occurred since the time of sentence (Kentwell at [43]), no such evidence was before the Court in relation to this sentencing exercise.
The applicant received a fixed term of imprisonment for nine months for the offence of cultivating a prohibited plant contrary to s 23(1) of the DMTA. This offence has a maximum penalty of imprisonment for ten years and/or a fine of 2000 penalty units ($22,000).
In re-sentencing the applicant, I accept the factual findings made by her Honour regarding rehabilitation, remorse and the appropriate discount. Her Honour's finding concerning special circumstances is not relevant to the sentence imposed in relation to Sequence 3.
It was submitted on behalf of the applicant that if this Court proceeded to re-sentence the applicant there are alternatives to full-time custody that would be open to this Court as set out above at [27]. It was submitted that an effective sentence of imprisonment for three months was "…manifestly excessive having regard to the finding that the cannabis was for personal use, limited criminal history, an early plea and assistance to the authorities."
The applicant and the Crown joined issue at the hearing of this application as to the meaning of the finding of her Honour extracted at [19] above. Although no challenge was made to her Honour's characterisation of the objective seriousness of the offence, counsel for the applicant submitted that the passage is to be read as reflecting a finding by her Honour that the cannabis was for purely personal use, given the Crown's concession that it could not be proved beyond reasonable doubt that the plants were being grown for financial reward or gain. The Crown, on the other hand, submitted that the finding that the plants were not grown for financial gain does not mean that they were being grown purely for personal use. The Crown referred to the finding by her Honour that the applicant had made admissions to sharing the cannabis with friends on occasion and referred the Court to that part of the agreed facts where the applicant admitted that he had "grown it [cannabis] a lot".
It seems to me unnecessary to resolve this issue in order to sentence the applicant. The applicant's submission that the cultivation was purely for personal use was made in order to ground a submission that a non-custodial sentence was appropriate in this matter. Even if I were satisfied on the balance of probabilities that the cultivation was for personal use, I would not impose a non-custodial sentence in respect of Sequence 3 for two reasons.
First, the applicant was not being sentenced in relation to the Sequence 3 offence in isolation. He was being sentenced at the same time for two serious supply offences involving significant amounts of methylamphetamine and amphetamine. In those circumstances, it could not be suggested that the cannabis charge was an isolated instance of offending. Although no challenge is made to the sentences in relation to the supply charges, by reason of the principle of totality they are nonetheless relevant to the sentencing exercise.
Second, whether the plants were solely for the applicant's personal use or he would share cannabis with friends on occasion, the fact remains that they were being grown hydroponically with an elaborate watering system. The legislature regards the growing of cannabis plants by enhanced means, such as hydroponically, as more serious than growing them by conventional means. By way of demonstration, Schedule 1 to the DMTA prescribes that the commercial quantity of cannabis plants grown by enhanced indoor means is 50 plants whereas the commercial quantity for other cannabis plants is 250 plants. The applicant was found to be growing a quantity of plants that was almost half the commercial quantity.
I am not satisfied that any of the non-custodial options advanced on behalf of the applicant would be an appropriate sentence in relation to Sequence 3 given that the cannabis was being grown hydroponically and that offence was committed in the context of the other supply charges before English DCJ. Despite this, I am satisfied that, having regard to the correct maximum penalty and all of the other matters to which I refer above, I would arrive at a sentence less than that imposed by her Honour in the exercise of my independent sentencing discretion. I would impose a fixed sentence of imprisonment for six months. Given the discrete offending involved in this offence, I am satisfied that there should be a degree of accumulation. The offence involved a different drug and its criminality cannot be properly reflected in the imposition of a wholly concurrent sentence.
In order to reflect the sentence that I would impose for Sequence 3, it is necessary to alter the commencement dates of the sentences imposed by the sentencing judge for Sequences 2 and 3 under s 59 of the CSP Act. Section 59 provides that, "A court that quashes or varies a sentence of imprisonment imposed on a person (on appeal or otherwise) may vary the date of commencement of any other sentence that has been imposed on that person by that or any other court."
I would allow for partial accumulation of four out of the six months of the sentence to be imposed. Accordingly, I would vary the commencement date of the sentence imposed for Sequence 1 to 18 February 2016. The result is a sentence of imprisonment for two years and six months commencing on 18 February 2016 and expiring on 17 August 2017, with a non-parole period of 12 months to expire on 17 February 2017. I would vary the commencement date of the sentence imposed for Sequence 2 to 18 November 2015. The result is a sentence of imprisonment of three years commencing on 18 November 2015 and expiring on 17 November 2018 with a non-parole period of 12 months expiring on 17 November 2016.

ORDERS

I propose that the Court make the follow orders: 1. Grant leave to appeal. 2. Set aside the sentence imposed by English DCJ on 18 September 2015 in relation to Sequence 3 and, in lieu, substitute a fixed term of imprisonment for six months to commence on 18 September 2015 and to expire on 17 March 2016. 3. Vary the commencement date of the sentence imposed by English DCJ on 18 September 2015 in relation to Sequence 1 to 18 February 2016. That non-parole period is now due to expire on 17 February 2017. 4. Vary the commencement date of the sentence imposed by English DCJ on 18 September 2015 in relation to Sequence 2 to 18 November 2015. The non-parole period expired on 17 November 2016. 5. The first date on which the applicant will be eligible to be released on parole is 17 February 2017.

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: 14 December 2016

Drug (Misuse and Trafficking) Act 1985(NSW)

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