18 A third answer to the Applicant's submission is that there are 2 features of this case that argue for a more severe penalty than in R v Godden. One is that the offence taken into account here was substantially more serious than that taken into account in Godden's case. I do not forget the limited use to which offences on a Form 1 may, in accordance with Re Attorney-General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] 56 NSWLR 146 at [42] be put - but even if attention in that regard is confined to retribution, it seems to me that possession of 5.7 kilograms of cannabis leaf worth $50,000 - the salary for an honest year's work for many people - well justifies a substantial increase in the penalty that would otherwise be appropriate.
19 The second feature that tends to make the Applicant's offence more serious is that his sole motivation seems to have been profit. He denied any drug use himself. In R v Godden, although the sentencing judge had rejected the proposition that all the cultivation was for that purpose, it would seem that he had accepted that some was - see at [29] and [39].
20 To these matters I would add the following. The actus reus of the offence charged consists simply of cultivation of not less than 250 plants and, since the cultivation of more than 999 constitutes the commission of a more serious offence, not more than that number. It is reasonably to be inferred that the harm that has inspired Parliament's legislation against cannabis and the profit that is calculated to flow from cultivation of any particular crop are likely to be broadly proportional to the number of plants. The Applicant would seem clearly to have been the principal, indeed the only person involved in the enterprise. It is to be inferred he stood to make all the profits from the enterprise and, to the extent it was relevant, that he knew the size of the operation in which he was engaged and the numbers of plants which he was cultivating.
21 Given the circumstances detailed in the preceding paragraph it would seem to me that it is only the number, and perhaps size, of the plants that prevents the Applicant's offence, in terms of its objective seriousness, from falling into a worst category. And while I am prepared to assume that the size of the plants is of some significance, I would not regard that significance as high. It is to be inferred that the Applicant's object was to cultivate the plants to as profitable a stage as possible. If one puts aside as absurd his statement that he did not know that it is illegal to possess marijuana plants in this state, his criminality was deliberate.
22 278 plants is about 27% of the maximum number encompassed by the statutory offence. 40 months is but 22% of the statutory maximum. Of course sentences should not simply be proportional to quantity - R v Doan (unreported, CCA, 27 September 1996), Postiglione (1991) 57 A Crim R 301, Wong & Leung v R [2001] 207 CLR 584 - but when consideration is given to all of the factors relevant thereto, the objective criminality in the Applicant's offence does not suggest any excessiveness in Judge Maguire's starting point. A fortiori is this so once it is recognised that, given the impact on an offender's life, actual imprisonment for a lengthy period is more than twice as severe as imprisonment for half that time - see R v Sciberras [2006] NSWCCA 268 at [50]; R v Amurao [2005] NSWCCA 32 at [65].
23 Of course, subjective matters have also to be taken into account. The Applicant could pray in aid Judge Maguire's finding that he has good prospects of rehabilitation and his good record (although this latter factor is of less weight in the case of deliberate drug offending - R v Nemes (unreported, CCA, 28 August 1997) and the cases there cited). Furthermore, the authorities make it clear that subjective factors must not be allowed to overwhelm the sentencing process at the expense of giving proper weight to an offence's objective seriousness - R v Camilleri (unreported, CCA, 8 February 1990).
24 The value of the crop also argues compellingly for there being no error, adverse to the Applicant, in the sentence imposed. Bearing in mind the other factors to which I have referred, to punish deliberate criminality yielding a crop with a street value of over half a million dollars with a penalty of only that imposed on the Applicant is not calculated to inspire confidence in the sentencing process and makes unsurprising the fact that sentences to date do not seem to have operated as a major deterrent to the cultivation of marijuana.
25 If the effect of R v Godden is to deny the logic and consequences of the above approach then, with respect to the experienced judges who decided it, one would have to query its correctness and, possibly, that of the decisions on which it was based. The same observation may be made in respect of the decision of Quan v R [2006] NSWCCA 382 to which the Court was also referred.
26 Accordingly, I would not uphold the first ground of appeal.