Nguyen v The Queen [2016] VSCA 198

Court of Appeal (Vic)|2016-08-11|Before: Mr P, Redlich JA

DPP v Nguyen (Unreported, County Court of Victoria, Judge Carmody, 23 September 2015)

CRIMINAL LAW - Appeal - Sentence - Cultivation of commercial quantity of narcotic plant (cannabis) - Theft of electricity - Trafficking in drug of dependence - Total effective sentence 3y 6m, sentence 2y 6m on charge of cultivation of commercial quantity of cannabis - Whether manifestly excessive - Evidence indicating offender's role akin to that of principal - No attempt by offender to contest characterisation of role - Current sentencing practice for comparable offending - Need for consistency in sentencing crop sitters and principals - Sentence not outside range - Appeal dismissed - s 72A.

CRIMINAL LAW - Mitigating factors - Risk of deportation - Illegal resident - Expired visa at time of sentence - Difficulty drawing comparison to cases involving offender with existing visa - No error in not taking risk of deportation into account - Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288; Da Costa Junior v The Queen (2016) 74 MVR 489; Konamala v The Queen [2016] VSCA 48; Schneider v The Queen [2016] VSCA 76, discussed - Migration Act 1958 (Cth) ss 41, 501, 501CA.

SENTENCING - Principles - Current sentencing practice ('CSP') - Consistency in sentencing - Jurisdiction of appellate court to correct CSP - Not limited to where determinative of appeal - Not limited to Crown appeal - Role of CSP in providing yardstick for range of sentences - Fairness as a matter of judicial discretion in not re-sentencing prisoner according to proposed increase in sentences - CSP for cultivation of commercial quantity of narcotic plant - Sentences in upper category of seriousness unduly low - Compressed range of sentences for mid-range offending - Current sentencing inadequate - Need for higher sentences for mid-range offending - Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658; Ashdown v The Queen [2011] VSCA 408; (2011) 37 VR 341; Harrison v The Queen (2015) 74 MVR 58; Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658; DPP v Werry (2012) 37 VR 524; Poyner v The Queen (1986) 66 ALR 264; R v Pidoto [2006] VSCA 185; (2006) 14 VR 269, Nguyen v The Queen [2010] VSCA 127, discussed.

CONSTITUTIONAL LAW - 'Matter' as federal requirement for jurisdiction - Limitation of 'matter' not applicable to State courts - DPP v Werry (2012) 37 VR 524, discussed - Australian Constitution.

For the Intervenors (Law Institute of Victoria and Criminal Bar Association)

1 On 4 September 2015 the appellant pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant, two charges of theft of electricity and one charge of trafficking in a drug of dependence. Following a plea hearing on 23 September 2015, the appellant was sentenced as follows:[1]

[Drugs, Poisons & Controlled Substances Act 1981 s 72A]

[Drugs, Poisons & Controlled Substances Act 1981 s 71AC]

5 years' imprisonment with a non-parole period of 4 years

Compensation Order ($11,395.45 to Energy Australia) on Charge 2.

Compensation Order ($5,419.10 to AGL Retail Energy) on Charge 3.

Forfeiture Order pursuant to s 32(1) of the Confiscation Act 1997.

Disposal Order pursuant to s 77(1) of the Confiscation Act 1997.

2 x Compensation Orders pursuant to s 86 of the Sentencing Act 1991.

Forensic Sample Order pursuant to s 464ZF(2) of the Crimes Act 1958.

2 In his application for leave to appeal against sentence, the appellant relied upon two grounds of appeal. On 18 January 2016, Maxwell P granted leave to appeal solely on the first ground.[2] That ground is as follows:

The sentence imposed on charge 1, orders for cumulation on charges 2, 3 and 4, total effective sentence and non-parole period is manifestly excessive in view of:

a. The appellant's personal circumstances:

i. First time offender;

ii. Relative youth at 28 years of age at the time of the offending;

iii. Early plea of guilty;

Impact of incarceration on mental ill health including during a two month period of 23 hour 'lock down' whilst on remand;

v. Prospects for rehabilitation; and

vi. Deportation.

b. The objective seriousness of the offending:

Role confined to knowledge of growth method and provision of instruction;
No evidence of quantum of financial betterment to be expected.
Orders for cumulation on charges 2, 3 and 4 were excessive and offended principles of totality because those offences were substantially related to the offending at charge 1.

3 Prior to the hearing of the appeal, the appellant sought leave to add a second ground of appeal. I would grant that leave. Under proposed ground 2, the appellant submits that the sentencing judge erred in failing to take into account in mitigation the burden on him of his likely deportation at the conclusion of his term of imprisonment.

The appellant relied upon his role as being of a lesser order than a principal within the criminal enterprise and various mitigating factors personal to him, to support his ground that the sentence was manifestly excessive. The appellant placed particular reliance upon current sentencing practice ('CSP'), submitting that the sentence imposed was not in conformity with existing sentencing standards as reflected in a number of cited cases and the Sentencing Advisory Council's ('SAC') Major Drug Offences Report ('Drug Offences Report').[3] The seriousness of the appellant's conduct placed him in the mid category for this offence.
CSP plays an important role in ensuring that there is reasonable consistency in the sentencing process, that like cases are treated in a like manner, different cases are treated differently and sentencing principles are applied in a consistent manner. CSP does not mark the outer boundaries of the sentencing discretion, but it does provide a yardstick against which the impugned sentence could be measured. None of the matters upon which the appellant relies supported the conclusion that the sentence did not bear an appropriate relativity to CSP. The appellant failed to demonstrate that the sentence was beyond the range of sentences reasonably open to the learned judge under the existing sentencing standards.
As to ground 2, I entertain serious reservations as to whether, by analogy, one can invoke the reasoning from Guden v The Queen,[4] Konamala v The Queen,[5] Da Costa Jnr v The Queen[6] and Schneider v The Queen,[7] as to the mitigatory relevance of the appellant's prospect of deportation. In each of those cases the offender at the time of sentencing had an existing visa to reside in Australia. The circumstances of those offenders appears qualitatively different from the appellant who is not lawfully resident in Australia, because his or her visa has expired. It is however, unnecessary to finally resolve that question. I would grant leave to appeal on the second ground, but I am neither persuaded that his Honour made an error in dealing with the appellant's risk of deportation or that that it should have resulted in a different sentence.
In response to the appellant's contention that the sentencing judge was constrained by prevailing sentencing standards to impose an even lower sentence than that fixed by the sentencing judge, the Director of Public Prosecutions (the 'Director') submitted that CSP for the mid category of seriousness of cultivating a commercial quantity of cannabis required correction as it was too narrow and too low. In my opinion, it is clear that there is a need to correct CSP, though not necessarily for all of the reasons the Director initially advanced. The argument on the substantive appeal showed that like cases for the mid category of seriousness of the offence of cultivation of a commercial quantity of narcotic plant are not dealt with in a like manner, the objective seriousness of the offence has not been adequately reflected in CSP, and there is a lack of consistency in the application of sentencing principles. Tate and Whelan JJA, whose reasons I have had the benefit of reading in draft, have reached the same conclusion. I regard the present appeal as an appropriate occasion to provide a warning that, in the future, sentencing courts should, by increments, increase the sentences to be imposed for such offending in the mid category of seriousness.
For the reasons that follow I would dismiss the appeal.

5 At the time of offending, the appellant was 28 years old. He was raised in Vietnam and arrived in Australia in May 2011 under a family-sponsored visitor visa. The appellant's mother and two sisters live in Australia. He overstayed that visa, and, since 14 May 2011, has been an illegal immigrant in Australia.[8] He married his wife, an Australian citizen, in 2014.

6 Between 1 October 2014 and 12 March 2015, the appellant, along with a number of other associates, engaged in the cultivation of a commercial quantity of narcotic plant across two properties and organised hydroponic equipment for the cultivation of narcotic plant at a third property. The appellant was living in a house in Maidstone ('the Maidstone house') and his mother owned a house in Ardeer ('the Ardeer house'). There was a further house in Tarneit ('the Tarneit house'), about which the appellant had discussions with his associates and was seen visiting in January 2015.

7 The appellant and his associates were the subjects of an extensive investigation between 20 October 2014 and 12 March 2015 by the Australian Crime Commission, involving the monitoring of over 11,550 phone conversations and surveillance. The phone conversations concerned the cultivation of cannabis, including growing techniques; when to water plants; when to provide nutrients and chemical to the plants; methods on how to identify a bug infestation on the plants; and how to dry the narcotic plant leaves when harvested. On 12 March 2015, police executed search warrants on the Maidstone, Ardeer and Tarneit houses.

8 The search of the Ardeer house revealed that three rooms had been modified for the purposes of narcotic plant cultivation, including false walls concealing the hydroponic set up in each room. Plasterboard and black plastic covered the windows in these rooms. A reticulated watering system was set up to water and feed the narcotic plant plants. High powered lighting and chemicals were used to assist the growth of the plants. One hundred and eleven plants in various stages of growth were located at the Ardeer house, weighing 17.5168 kilograms in total. A van registered to the appellant was also seen in the driveway of the Ardeer house on three occasions in the month prior to the search.

9 The search of the Tarneit house uncovered a hydroponic set up for the cultivation of narcotic plants in five rooms. High powered lighting was suspended from the ceiling. There was a reticulated watering system, and modifications to internal walls had been made. One hundred and thirty plants in various stages of growth weighing a total of 21.42 kilograms were seized.

10 Two hundred and forty-one narcotic plant plants were seized in total from the Ardeer house and the Tarneit house, weighing a combined total of 38.9368 kilograms. This amounted to approximately 2.5 times by the number of plants, or 1.5 times by the weight of the plants, the threshold for a commercial quantity.[9] Although the quantity of plants in each house was sufficient to found a charge of cultivation of a commercial quantity of cannabis, charge 1 on the indictment was laid on the basis of the quantity of the plants cumulatively cultivated at the Ardeer and Tarneit houses.

12 Equipment for the purpose of theft of electricity was located at the Ardeer house, including one electrical bypass; 34 light globes; 35 light shrouds; 36 electrical transformers; and two power boards. $11,395.45 worth of electricity was stolen using the electrical bypass between 1 October 2014 and 12 March 2015. This constituted charge 2.

13 During the search of the Tarneit house, the police found one electrical bypass; 67 light globes; two power boards; 81 electrical transformers; and 25 light shrouds. The electrical bypass at the Tarneit house was used to steal $5,419.10 worth of electricity between 13 February 2015 and 12 March 2015. This constituted charge 3.

14 At the Maidstone house, the police located hydroponic equipment including 213 light shrouds; eight electrical transformers; 143 light globes; five power boards; and five tubs of assorted light fittings. Also located at the Maidstone house was 320.7 grams of narcotic plant (cannabis) in the appellant's possession for the purposes of sale. This constituted charge 4.

15 It is convenient to first address ground 2 as the appellant did on the appeal.

16 The appellant submits that the sentencing judge was wrong not to take into account the burden on him of the risk of his deportation at the conclusion of his term of imprisonment.

17 The appellant overstayed his family-sponsored visitor visa after its expiry on 14 May 2011. He has been an illegal immigrant in Australia since that time. Having married an Australian citizen on 1 July 2014, the appellant hoped to remain in Australia under a partner visa and had thus far been unsuccessful in obtaining a partner visa. Legal advice from an immigration lawyer was provided to the appellant that, should he be sentenced to a term of imprisonment for more than 12 months, his partner visa application may be refused on character grounds. The advice also records that a previous application lodged on the appellant's behalf was rejected on account of the charges he faced. That advice was tendered on the plea, and the sentencing judge noted the contents of that letter.[10]

18 In his sentencing remarks, the judge noted the appellant's status as an illegal immigrant. He said: [11]

[Defence counsel] submitted that any sentence higher than 12 months' imprisonment would result in your deportation to Vietnam. That matter is an administratively [sic] factor outside my control, and whilst noting the potential impact deportation will have on you and your family, it is not a factor in your favour. You have offended whilst being an illegal immigrant. The principles of general and specific deterrence combined with denunciation of your conduct must result in a term of imprisonment for you.

19 The appellant relies upon these remarks as disclosing error. He submits that his position is analogous with the circumstances considered in Guden,[12] that serving a sentence while under the expectation of deportation following completion of the sentence increases the burden of imprisonment that would otherwise be felt by an offender.

20 In Guden, the Court considered the relevance of the prospect of an offender's deportation as a sentencing consideration:[13]

In our view, authority does not require, and there is no sentencing principle which would justify, a conclusion that the prospect of an offender's deportation is an irrelevant consideration in the sentencing process. As a matter of principle, the converse must be true. Like so many other factors personal to an offender which conventionally fall for consideration, the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release.

It follows that, subject always to the state of the evidence before the sentencing court, the prospect of deportation of the offender is a proper matter for consideration in determining an appropriate sentence. The Queensland Court of Appeal pointed out in Simard that this is not a sentencing consideration which can be called in aid by an offender who has Australian citizenship. But, with respect, this is simply an illustration of the infinite variety of personal circumstances which fall for consideration.

As the Crown properly conceded on this appeal, the fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, we respectfully agree with the view expressed by the NSW Court of Criminal Appeal in Kwon that, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach, as the court there did, this may well be viewed as a serious 'punishing consequence' of the offending.

Of course, as this Court made clear in Griffiths, the sentencing court cannot be asked to speculate. If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed - as in Griffiths - as 'a completely speculative possibility'.

What Nettle JA said in R v Tabone, in relation to the comparable question of the risk of confiscation of property following a conviction, applies with equal force here. That is, in the absence of evidence or an appropriate concession by the Crown, there will be no error in a judge declining to take into account the possibility of deportation. Indeed, in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken. It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship.

22 The Director submits that the reasoning in Guden should not be applied as there is a qualitative material difference between an offender who does not possess a visa and has no prospect of getting one, and one who enjoys legal residence in Australia and faces the risk of deportation. He also submits that no submission was made on the plea that the appellant's burden of imprisonment would be made harder due to his potential deportation and that in any event the judge implicitly took that fact into account in his reasons. Finally he submits the factor was not a mitigating factor of particular significance.

23 I do not consider from the broad tenor of the judge's remarks that the judge took into account any burden that might be caused by the risk of deportation. That it was not considered is rendered the more likely because it was not the focus of attention on the plea.

24 It is therefore necessary to consider whether the prospect of deportation should have been taken into account as a mitigating factor. I turn first to the relevant provisions of the Migration Act 1958 (Cth) ('the Act') under which the appellant's potential claim to lawful residence in Australia might arise. The appellant originally arrived in Australia under a family sponsored visitor visa, namely, Visa Subclass 679. Clause 679.611 under sch 2 of the Migration Regulations 1994 (Cth) ('the Regulations'), as was in force at the relevant time, stated that a 'family sponsored visitor visa', was subject to condition 8503 of sch 8 of the Regulations. Condition 8503 provides that the holder of the relevant visa will not after entering Australia, be entitled to the grant of a substantive visa, other than a protection visa.

25 Section 41 of the Act gives the relevant Minister a discretion to waive the 'no further stay' condition:

41 Conditions on visas

(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

...

(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).

26 The Minister's discretion to waive that condition constitutes the first prerequisite to the grant of a partner visa.

27 The appellant argues that the Act generally discloses a policy inimical to the grant of a visa in his circumstances. Although not strictly applicable to the appellant as he does not yet have a visa, s 501(3A) of the Act, amended in 2014,[15] provides in mandatory terms that the Minister must cancel a visa granted to a person if certain conditions are satisfied:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

28 Section 501(6)(a) of the Act provides that a person does not pass the character test if 'the person has a substantial criminal record (as defined by subsection (7))'. Section 501(7) relevantly provides:

(7) For the purposes of the character test, a person has a substantial criminal record if:

(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

(c) the person has been sentenced to a term of imprisonment of 12 months or more; ...

29 On the face of it, even if a partner visa were to be, or had been granted, on the basis of s 501(3A) and s 501(6)(a) of the Act, the appellant's expectation of being deported following a term of imprisonment exceeding 12 months, appears to be well founded. Section 501CA, however, confers upon the Minister a discretion to revoke any decision made under s 501(3A) to cancel a visa. Section 501CA relevantly provides:

501CA Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

...

30 The Minister thus retains a broad discretion to revoke the original decision to cancel a visa if, despite the person failing the character test, 'there is another reason why the original decision should be revoked'. It would likely follow that the onus of proving that the Minister should so exercise his discretion to revoke the cancellation of an existing visa should be borne by the person whose visa was cancelled.

31 Furthermore, a person whose visa has been cancelled is entitled to seek a merits review of a decision not to revoke the cancellation. Section 500(1)(ba) of the Act provides:

Applications may be made to the Administrative Appeals Tribunal for review of ... decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

32 This Court has recently considered the effect of the changes made to the Act and the migration regime since Guden. In Konamala,[16] after referring to one of the passages set out above in Guden,[17] the Court said:[18]

Self-evidently, whether the prospect of deportation in a given case will make the burden of imprisonment more onerous will depend on the prisoner's personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated. On the other hand, the prospect of deportation might be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community.

In Guden it was recognised that - subject always to the state of the evidence before the sentencing judge - the prospect of deportation is a proper matter for consideration in determining an appropriate sentence. Despite the changes to the Act, that must remain so. Without evidence bearing on the issue, although it may be said with some confidence that the visa of an offender in the applicant's position will be cancelled, it cannot be assumed that the Minister will not revoke the original decision to do so.

33 In Da Costa[19] this Court compared the position before the 2014 amendments to the Act with the current position:[20]

Now, as previously, the offender knows that he is at real risk of deportation because of his conviction of the criminal offence. Now, as previously, he must live with the uncertainty surrounding what will be a discretionary decision by the Minister. Previously, the relevant discretion related to cancellation of the visa. Now, the discretion relates to revocation of the cancellation decision. (The Minister being bound by statute to cancel the visa, no occasion arises at that point for any consideration of the circumstances of the individual.)

It is neither necessary nor appropriate for the Court to investigate whether, in practice, the process will be different. We assume that, under the former provisions, when the Minister was considering whether to cancel a visa, submissions were made on behalf of the offender that no such decision should be made. It must be assumed that, in the future, an application for revocation as a cancellation (assuming the provisions do not change again in the meantime) will be supported by the very same considerations as would hitherto have supported a submission that no cancellation decision should be made.

34 The Court concluded in Da Costa that, while the applicant was correct to argue that the changes to the Act constituted fresh evidence, it was not persuaded that a different sentence should be passed. Critical to that determination was the consideration that it was 'a matter of speculation as to what the responsible Minister may or may not do when an application for revocation is made following the automatic cancellation decision.'[21] The same outcome resulted in the recent decision of Schneider.[22]

35 The appellant, at the time of sentencing, resided illegally in Australia, having overstayed his visa since May 2011, and his initial application for a partner visa had been unsuccessful. In Guden, Konamala, Da Costa and Schneider, the offender at the time of sentencing had an existing visa to reside in Australia. The appellant here did not. I entertain serious reservations as to whether, by analogy, one can invoke the reasoning from those cases. The nature of the expectation an offender may enjoy of remaining in Australia where the offender resides in Australia legally under a visa at the time of sentencing, but whose visa is liable to be cancelled and who lives with the uncertainty of not knowing whether an application for the revocation of the decision to cancel the visa will succeed, does appear qualitatively different from that of an offender who is not lawfully resident in Australia, because his or her visa has expired. In the former circumstance, the cancellation of an existing visa could be said to be attended by a sense of real loss of the prospect of settling in Australia which the offender had previously secured. In the latter circumstance, the offender has not lost an existing right, but only the possibility of securing a visa. What may be said is that the offender's prospect of settling in Australia has been diminished.

36 I find it unnecessary however to determine whether that qualitative difference between the appellant and an offender legally residing in Australia disentitles the appellant to call in aid in mitigation that prison will be more burdensome because of the risk of deportation. It is entirely speculative whether the Minister may grant a waiver of the 'no further stay' condition so as to enable the appellant to pursue an application for a partner visa. Even if the appellant's risk of deportation was a relevant mitigatory factor, it was not of an order that leads me to conclude that a different sentence should be imposed.

37 I would grant leave to appeal on this ground, but the ground cannot be upheld.

38 Under ground 1, the appellant first submits that the sentencing judge gave inadequate weight to one or more of a number of specified matters, resulting in a manifestly excessive sentence.

39 The appellant first contends that the sentencing judge failed to give sufficient weight to particular personal mitigatory circumstances of the appellant. The mitigating features relied upon by the appellant included his difficult personal background, in particular his separation from his mother and sisters following their departure to Australia when he was 15 years old, his early plea of guilty, the absence of any prior convictions, and his relative youth. He argues that his prospects of rehabilitation were strong given his general good character, completion of high school education and engagement in full-time work in the hospitality industry until 2010 before his arrival in Australia. He notes further that, as a condition of his immigration visa, he was unable to work in Australia.

40 The sentence judge, in his sentencing remarks delivered on the same day as the plea, referred to matters personal to the appellant. He made explicit reference to the appellant's age, guilty plea, the acceptance of personal responsibility for the offending, that he was willing to facilitate the course of justice, his mental health, and his visa status. The judge took into account in mitigation that the appellant had committed the offences at the relatively young age of 28,[23] and had no previous convictions.[24] The judge referred to the appellant's early history in Vietnam, in particular the separation of his parents when he was 15 years' old due to the presence of considerable family violence.[25] He noted that the appellant continued to receive the support of his wife, mother and sisters. He also took account of the reference by the appellant's sister indicating the appellant's remorse and how helpful he had been to her family.[26]

41 Notwithstanding that the judge addressed each of these matters raised on the plea, the appellant argues that the absence of specific reference to his prospects of rehabilitation in the sentencing remarks, reinforces the proposition that they were not given adequate weight. As to such a complaint, this Court has often had cause to observe that the absence of reference to a specific matter in sentencing reasons does not of itself establish that it has been overlooked or that its absence necessarily bespeaks error. There is no obligation upon the judge to refer to every matter taken into account in the instinctive synthesis of material factors undertaken in sentencing.[27] Nothing said by his Honour suggests that he was not alive to the appellant's prospects for rehabilitation. Moreover, the absence of reference to the appellant's prospects of rehabilitation in his sentencing remarks, is readily explained by the fact that his counsel on the plea, said only as to rehabilitation that the appellant's previous good character leads to 'consideration of [is] his prospects for rehabilitation and risk of reoffending and the burden of incarceration'. Nothing else was said on this issue. Given the focus of attention on the plea by the appellant's counsel was as to the high risk of deportation and the sort of sentence that might avoid that risk, it is not surprising that rehabilitation was not the subject of greater attention.

42 The appellant further argues that a mitigatory feature of special significance which was given less prominence than it deserved was the unusual burden of imprisonment borne by him. In support of this submission the appellant relies upon his major depression and anxiety, diagnosed in the psychological assessment undertaken by Dr Watson-Munroe ('Watson-Munroe report'). Consistently with the position taken on the plea, the appellant does not rely upon his diagnosis of depression as a sentencing consideration enlivening the principles in R v Verdins.[28] He submits that his anxiety is exacerbated by the prospect of deportation from Australia after he serves his term of imprisonment. He also relies upon the impact of the riots at the Metropolitan Remand Centre ('MRC'), following which he spent a period of two months in 23 hour 'lock down' involving his confinement to a cell. It is submitted that, while he serves his time of imprisonment, the appellant is unlikely to receive the kind of treatment he requires given the limited resources available and his lack of proficiency in English. Additionally, he points to his isolation in custody given his limited grasp of English and the difficulty he faces in supporting his wife, who suffers from bipolar disorder, while in custody. It was submitted during the hearing that, if the Court was inclined to re-sentence the appellant, the recent diagnosis of the appellant's mother with cancer and the need to care for her was an additional factor in mitigation to be taken into account. Save for the last of these matters, all of these considerations were raised on the plea.

43 The judge stated in his sentencing remarks that he took into account the Watson-Munroe report tendered on behalf of the appellant in which the psychologist had opined that the appellant was suffering from major depression with features of anxiety disorder. The report also stated that the appellant's symptoms were compounded by his being in custody, that the rigors of his confinement had been exacerbated by the MRC riots, his extended confinement in his cell and the prospect of likely deportation to Vietnam. Each of these matters was emphasised by the appellant's counsel on the day that sentence was imposed. In circumstances where defence counsel eschewed any submission that the appellant's mental illness caused or contributed to the offending and thereby enlivened the principles in Verdins, it was not necessary that the judge say any more than that he had taken into account the appellant's psychological state in the context raised by the psychologist.

44 I am not persuaded that the sentencing remarks or the sentence imposed demonstrate that his Honour failed to give sufficient weight to any of these aspects of the appellant's personal circumstances.

45 The second primary argument raised by the appellant is that the sentence was beyond the range permitted by CSP which constrained the judge to impose a lower sentence. The issue of CSP had been explored at some length on the plea. The parties had made submissions on the basis of the SAC's Sentencing Snapshot 165, dated August 2014, for the offence of commercial cultivation ('SAC snapshot').[29] The prosecution submitted that, while the Sentencing Snapshot was of less utility than it might otherwise have been, as it predated this Court's guideline judgement in Boulton v The Queen[30] regarding the imposition of a Community Corrections Order as an alternative to custodial punishment, it indicated that terms of imprisonment for this offence extended from five months to six years. Attention was drawn to the median term of imprisonment of two years and three months' imprisonment, and the most common term of imprisonment being two to three years' imprisonment.[31] On the basis of the use of two properties in the offending, plants in various stages of growth and the presence of a number of co-offenders, the prosecution submitted that the appellant's offending was 'mid-range'. Defence counsel submitted that the appellant's offending fell short of mid-range offending on the basis that the commercial quantity involved in his case was only 1.5 times the threshold for a commercial quantity, by the weight of the plants.

46 The judge's sentencing remarks reflect careful consideration of the relevant aggravating and mitigating features of the case. As to the aggravating factors present in the factual matrix, the judge placed considerable emphasis on the gravity of the offending and the appellant's culpability for it. He referred to authority which emphasised that the maximum penalty for the offence of 25 years' imprisonment reflected the relative seriousness of the offence of cultivation of a commercial quantity of cannabis.[32] He set out a list of factors which elevated the seriousness of the appellant's offending above the lowest category of offending:

The seriousness of your offending or in this particular offending is

(a) the planning involved,

(b) the period of time engaged with is approximately six months,

(c) the fact that there are two separate grow houses involved in your offending,

(d) the leftover equipment, if I can use that term, the equipment for this type of activity which was found at your own home in the garage,

(e) the commercial quantity is either two and half times by the number of plants, or 1.5 times by the weight of the plants, and

(f) the diversion of power and the set-up generally of the houses indicates a level of sophistication.[33]

47 He also stated that he had taken into account CSP.[34] He determined that general deterrence and denunciation were to be given significant weight in offences of this nature. That finding contributed to his conclusion that the 'objective seriousness of [the appellant's] offending disqualifies a community corrections order as an appropriate penalty, either on its own or in combination with a term of imprisonment'.[35]

48 On appeal, the appellant pressed the submission that his total effective sentence, and secondly his individual sentence on charge 1, were inconsistent with CSP by reference to the three cases mentioned in Maxwell P's reasons for granting leave to appeal, namely, Latif v The Queen,[36] McGrath v The Queen[37] and Barton v The Queen.[38] Each of those cases involved greater quantities of narcotic plant but lower sentences were imposed. He now place particular reliance upon the SAC's Drug Offences Report, in particular for the offence of cultivating narcotics, examining current sentencing practice from 2008-09 to 2012-13,[39] which took into account multiple charges faced by an offender convicted of commercial cultivation. In the 403 cases in which sentences were imposed on a charge of cultivation of a commercial quantity of a narcotic plant in the Drug Offences report,[40] the median term of imprisonment was two years and three months, for sentences where cultivating a commercial quantity of narcotic plants was the principal charge.[41] The appellant submits that the sentence imposed upon him was disproportionate to the objective seriousness of the offending as reflected by the current sentencing practice so disclosed. While conceding that his role was that of an 'organiser', as described by the judge on the plea, the appellant maintains that his offending was 'towards the lower end' of the spectrum.

49 It is necessary to determine a primary question which was much in issue as to the role of the appellant in the cultivation. That will inform the question as to the category of seriousness of the appellant's conduct and in turn will identify the relevant CSP that must be considered.

The role of the appellant; the category of the appellant's offending

50 On the plea, the appellant's counsel admitted that the appellant was in possession of the two crops, was cultivating them, and was to benefit financially from their ultimate sale. Thus on the appeal the Director contended that all of the admitted facts indicated that the appellant played a role comparable to that of a principal. The appellant contended that he could only be described as an 'organiser,' but not a principal.

51 Appellate courts will seek to identify the applicable range by characterising the objective seriousness of the offence as falling within the low, mid or the high range of seriousness of the offence. Hayne J described this range as the 'permissible range of disposition' in AB v The Queen.[42] In Nash v The Queen,[43] and again in Vernon Board v The Queen,[44] this Court cited the passage from Anderson v The Queen,[45] as to the importance of current sentencing practices in the identification of the sentencing range applicable to the case at hand and which reaffirmed and endorsed the statement by Redlich JA in Ashdown v The Queen[46] that:[47]

... it is [current sentencing practice], as revealed by those comparable cases concerned with the relevant category of seriousness of the offence, that will generally inform the range of sentences that are reasonably open to the sentencing judge

52 It was also said in Ashdown that there may also be a further narrowing of the range by asking whether the offence falls towards the lowest end, the middle or the upper end of that applicable range. Such focus upon the relevant range of sentences, or in times gone by, to the 'tariff' or 'going rate', provides guidance as to an indicative range for the category of seriousness of the subject offence and implies that the range is not unlimited.[48]

53 Although it was not in issue on the appeal that the judge was correct to place the appellant's offending above the lowest category, the appellant asserted that he should have been placed toward the low end of the mid category of seriousness of this offence. The appellant submits that while the cultivation can properly be described as a sophisticated operation, involving two premises for cultivation and a third house storing the cultivated product and additional equipment, the appellant was not to be treated as though he was a principal in the offending.

54 The appellant submits that the prosecution evidence as to the nature of his role was extremely limited. He submits that it was not established that he attended the Tarneit house on more than one occasion and the Ardeer house on three occasions. The prosecution, he asserts, offered no evidence as to his involvement in setting up the Ardeer or Tarneit houses for the purpose of cultivation or in growing the crop beyond instructions he had provided for its propagation in phone conversations. While it was acknowledged on the plea and accepted on appeal that the appellant was motivated by financial gain from the ultimate sale of the crop, he argues that there was no evidence of the quantum of financial betterment he could have expected from the offending. Further, in oral submissions, counsel for the appellant submits that it was not open on the evidence to hold the appellant responsible for the financial investment required to secure the equipment and material necessary for cultivation or for the equipment found in his possession in his home. The appellant also submits that there was no evidence as to his responsibility for setting up the electrical bypass on charges 2 and 3.

55 The Director submits the detailed list of factors relied upon by the judge demonstrated the gravity of the offence. He argues that the judge was correct to apply those factors to the appellant and to accord considerable significance to the number of plants on each property and the number of properties involved. The appellant having pleaded guilty to the charges and having admitted on the appeal that the facts enabled his role to be characterised as an organiser, the Director submits that the absence of additional evidence, to which the appellant draws attention did not alter the admitted character of his offending. The Director drew upon the lesser sentence imposed on a co-offender who pleaded guilty to a single charge of cultivation of a commercial quantity of cannabis. An Quoc Chu was described as a crop sitter, was 55 years old, without prior convictions and also lacked the status of an Australian resident. He was sentenced to twelve months' imprisonment. The Director contends that the nature of his offending did not place it at the lower end of the scale of seriousness of the mid category of this offence, but well within the mid-range of seriousness of this offence.

56 Whether an offender should be characterised as a principal or as discharging functions similar thereto is ultimately to be assessed on a case by case basis. It will not always be the case that a criminal enterprise will have a hierarchical structure or that the role played by each participant will be clearly delineated. Even where it is, the particular role may not possess all of the same characteristics as other principals within the enterprise.

57 The agreed facts tendered on the plea established the appellant's intimate connection with two of the three premises involved in the offending, the appellant resided in the Maidstone house and his mother owned the Ardeer house.[49] There was no evidence that the appellant received instructions to perform the acts he had undertaken in furtherance of the criminal enterprise; rather, the evidence, namely, the considerable number of phone calls between the appellant and the other offenders, pointed strongly to the cultivation of narcotic plants being undertaken, at least in large part, under the appellant's tutelage. The monitored phone conversations disclosed the general nature of his offending conduct. In those conversations, the appellant gave highly technical and critical advice as to the propagation of the crop, essential to the commission of the offences. I have earlier referred to their general content.

58 The scale of the operations was considerable. Sophisticated hydroponic equipment was used in the two premises and elaborate steps of concealment were taken. The theft of electricity amounted to the considerable sum of $16,814.55. Only the appellant was charged with the theft of electricity. By his plea of guilty to theft of the electricity over the entire period for both properties, he indicated his acceptance of responsibility for an integral aspect of the operations from the commencement of cultivation and throughout its entire duration.

59 The appellant's Maidstone house contained sophisticated equipment, including a large number of light shrouds; electrical transformers; light globes; power boards; and assorted light fittings, being equipment of the sort that that been used in the two houses converted for hydroponic cultivation. This equipment gave further support to the inference that his role in the operations was a prominent one in the enterprise of cultivation. If he did not own or have any financial interest in the property found in his possession, no such assertion was ever made during the plea. The Mercedes van, registered to the appellant, was seen in the driveway of the Ardeer house on three occasions in the month prior to the search.

60 On the plea the appellant's counsel made much of the fact that there was no evidence that he set up the electrical bypass systems, that there was no evidence of what his financial benefit from the crops would be, described by his counsel as 'betterment,' and no evidence of his specific role in the hierarchy. But unlike most pleas, no assertions from the Bar table,[50] or evidence was forthcoming that sought to qualify or explain the inference which the prosecutor submitted was to be drawn from the admitted facts, namely that the appellant played a leadership role and was an organiser. The appellant was either unwilling to provide instructions to his counsel or have them revealed, which would have disclosed the nature of his relationship with others (if there were any) that he implied by his submission on the plea had an interest in or may have benefitted from the crop. He refrained from explaining the extent of his prospective financial betterment, his role in the theft of the electricity, or the reason for his possession of the large amount of hydroponic equipment found in his home.

61 On the appeal, counsel who now appears for the appellant, maintained the position that the absence of such evidence meant that the inferences to be drawn from the admitted facts were limited. In particular it is submitted that it could not be said that the appellant's role was akin to that of a principal and that a distinction between an organiser and a principal was required. I do not accept either of these contentions.

62 It was not for the Crown to undertake some general burden of proving all facts relevant to sentence.[51] Where an offender wishes to limit the extent of the inferences to be drawn from established facts or to rely upon further facts in mitigation to qualify the conclusions that would otherwise be drawn from the admitted facts, the practical burden of proof falls upon the offender as the party seeking to rely on that fact.[52] That is to say it is for the offender to prove matters favourable to him or her where a contested issue arises.[53] As I have said, that burden is often discharged by assertion made from the Bar table during the plea if the sentencing judge is prepared to act upon such submissions.[54] If the judge intimates that he or she is not prepared to do so, the offender must adduce evidence of that fact.

63 The admitted facts demonstrated that the appellant was an organiser with a financial interest in the crop and was to be regarded as equivalent to a principal. It was for the appellant to at least assert facts if he wished to contest that characterisation.[55] He made no attempt to do so.

64 The aggravating features which the judge took into account well supported the finding that the gravity of the offending was high and fell well within the mid-range of seriousness. More than a thousand of the intercepted telephone calls concerning cultivation of cannabis did not relate to either premises the subject of the charges, thus demonstrating that the appellant's charged offending could not be regarded as isolated conduct. Although the sentencing judge did not say that he found the appellant to have played a leading role, or one akin to a principal, the evidence which the judge summarised, dictated that conclusion. As counsel who appeared on the appeal submitted, the sentence that was imposed was consistent with a finding that the appellant played a leading role and was culpable as a principal. In my opinion the sentencing judge was well entitled to approach the issue in that way. The CSP that was relevant was that applicable to a principal involved in cultivation of a commercial quantity of a narcotic plant.[56]

Approach to the comparable cases and current sentencing practice

65 Before turning to the competing contentions as to what is demonstrated by the cases cited and the Drug Offences Report, it is necessary to say something as to the important function which current sentencing practice and comparable cases play in advancing the underlying value of equality under the law and the search for unifying principles in the task of sentencing.

66 The joint reasons of French CJ, Crennan and Kiefel JJ emphasised in Green v The Queen[57] that the notion of 'equal justice' embodies the norm expressed in the term 'equality before the law' and has been called 'the starting point of all other liberties.'[58] They quoted with approval the passage from the joint reasons in Wong v The Queen[59] that 'equal justice requires identity of outcome in cases that are relevantly identical' and 'requires different outcomes in cases that are different in some relevant respect.'[60]

67 Gleeson CJ stated in Wong that the administration of criminal justice functions as a system which is intended to be fair, and systematic fairness necessitates reasonable consistency. Gleeson CJ said:[61]

All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.

68 The plurality in Hili v The Queen,[62] approved this statement, saying that the search for that consistency requires that sentencing judges must have regard to what has been done in comparable cases.[63] The statement of Gleeson CJ in Wong was again repeated with approval in the joint reasons in Elias v The Queen.[64]

69 In R v Pham,[65] comparable cases were stated to serve a twofold purpose. The first, that such decisions may 'provide guidance as to the identification and application of relevant sentencing principles'.[66] The second, to decide whether they yield 'discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence'.[67] These purposes advance the requirement of reasonable consistency. They advance the underlying value of equality under the law and the search for unifying principles.[68] By the requirement that a discretionary decision must be made in conformity with well settled principles, the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.[69]

70 In Ashdown[70] I referred to the requirement in s5(2)(b) of the Sentencing Act that the sentencing court must have regard to current sentencing practice.[71] The term is to be understood as a particular, though not exclusive, reference, to the kinds of sentences that are imposed for that offence in  comparable  cases.[72] The Sentencing Advisory Council has defined it 'as those sentences imposed over a recent period of time on "like" cases.'[73]

71 The need for the judge to be provided with what has been done in other (more or less) comparable cases was stressed in the joint reasons in Barbaro v The Queen.[74] In Hili, the plurality referred to Director of Public Prosecutions (Cth) v De La Rosa[75] and the use of information about sentences that have been passed in other cases, that history of sentencing establishing a range of sentences that have in fact been imposed. The importance of the sentencing patterns disclosed by that history were recognised by the plurality in Hili to be of considerable significance, in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.[76] As the plurality state in Hili, Barbaro and Pham, those comparable cases, whilst not marking the outer bounds of the sentencing discretion, may well establish a range of sentences which have been imposed. Past sentences provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence.[77]

72 Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases. Thus for example, in Dao v The Queen[78] Nettle JA (as he then was) emphasised that the consistency stated in Wong required that the impugned sentence be in step with 'relevant comparators'.[79]

73 Cases are likely to be  comparable  where the objective seriousness of the offender's conduct is similar to that of the subject offence. As I said at [51], appellate courts, including the High Court, may seek to identify the applicable range by characterising the objective seriousness of the offence as falling within the low, mid or the high range of seriousness of [80]e offence.80

74 None of this is to say that the range of sentences so disclosed is necessarily the correct range, or otherwise determinative of the upper and lower limits of sentencing discretion. As the plurality stated in both Hili and Barbaro, the history of sentences in other cases from which a range may be drawn does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits.[81] The past does not fix the boundaries within which future judges must, or even ought, to sentence. As this Court has so often repeated,[82] CSP does not create a ceiling or floor beyond which a judge may not go. A judge may conclude that the gravity of the offending is deserving of a sentence higher or lower than any previously imposed for an offence of that category of seriousness.

75 The cases which were the subject of specific submissions on the leave application and which were further addressed on appeal may now be considered in the light of the appellant's role in the cultivation. Both parties were able to draw upon cases which supported their submissions, thus demonstrating that the sentencing standards for mid range offending are quite inconsistent. Some of the cases considered involved conduct which fell outside the relevant category of seriousness for the subject offence but they nevertheless provided assistance in identifying indicative outer limits of the appropriate sentencing range. Neither party suggested that there was some feature of the case that required the judge to fix a sentence that fell outside existing sentencing standards

76 The first case was McGrath.[83] The offender was sentenced on one charge of cultivation of a commercial quantity of cannabis, one charge of theft of electricity and one charge of possession of drugs. The total effective sentence was two years and eight months' imprisonment, with a non-parole period of 16 months. On the individual charge of commercial cultivation, a sentence of two years and six months' imprisonment was imposed. The prisoner had pleaded guilty to cultivating 8.5 times the threshold for a commercial quantity, namely 211.96 kilograms (175 plants). The offending was undertaken alongside at least four co-accused. Three separate properties were involved, a factory, a Williamstown premise and the prisoner's residential home. He was described as the principal for the crop grown at his own home. He was found to have played a significant role for the second property and a limited role for the third property. He was paid $6000 in his role for the cultivation of the crop. The operations involved sophisticated hydroponic equipment. The period of offending was seven and a half months. The mitigating factors bearing upon McGrath's case were his relative youth, his prospects of rehabilitation and his lowered moral culpability for the offending as he suffered from a serious drug addiction and was in a precarious financial situation at the time of the offending.

77 In Latif,[84] the offender Azmi was sentenced on one charge of cultivation of a commercial quantity of narcotic plant to two years and four months' imprisonment, with a non-parole period of 15 months. He pleaded guilty to cultivating 1.61 times the threshold for a commercial quantity, namely 161 plants.[85] One property was involved, and sophisticated hydroponic equipment and an electrical bypass were used. The offending was undertaken alongside two co-accused. Azmi was found to have played a lesser role than his two co-offenders, the latter being described as the principals of the operation. He was said to have rented the factory and paid for shipping containers. There was evidence that not only had he been seen to attend the premises on a number of occasions, but that he had also been seen tending to the plants by placing nutrients into the watering system. The period of offending in Azmi's case was 19 days. There were compelling mitigating factors obtained in Azmi's case. These included the existence of a dysthymic depressive illness attracting the principles in Verdins, his previous good character and his relative youth, being 27 years old at the time of the offending. He also was found to have good prospects of rehabilitation and enjoy family support.

78 In Barton,[86] the offender was sentenced on one charge of cultivation of a commercial quantity of narcotic plant to two years' imprisonment, with a non-parole period of nine months. He pleaded guilty to cultivating 5.3 times the threshold for a commercial quantity, namely 132 kilograms (160 plants).[87] The offending was undertaken individually. One property was involved. The period of offending was some five months. The mitigating factors were his entrenched and significant addiction to cannabis, it being accepted that the crop was grown partially for his own use. Barton was also found to have suffered from long-standing depression. He had no relevant prior convictions, exhibited remorse and had good prospects of rehabilitation.

79 By contrast, in Bui v The Queen,[88] the offender was sentenced to a total effective sentence of five years' imprisonment, with a non-parole period of three years. On the individual charge of cultivation of a commercial quantity of cannabis, he received a term of four years and six months' imprisonment. He pleaded guilty to cultivating two times the threshold for a commercial quantity, namely 56.54 kilograms (94 plants). The appellant was a principal, the offence took place over a period of three months, he had a history of prior very similar offending, and there were no significant mitigating factors. The offending was undertaken individually, with financial gain being the sole motivation. One property was involved, with sophisticated hydroponic equipment used on the premises. The period of cultivation of the crop was two months. Bui had arrived in Australia as a refugee 20 years ago and, at the time of the offending, was 65 years' old. He also had relevant prior convictions, having been sentenced to a suspended sentence of twelve months' imprisonment and a Community Corrections Order of twelve months' duration for trafficking narcotic plant in circumstances very similar to the present offending where three rooms in a house had been converted to cultivation.

80 In Nguyen v The Queen,[89] the offender was sentenced on the charge of cultivation of a commercial quantity of narcotic plant to a term of three years' imprisonment, with a non-parole period of two years. He pleaded guilty to cultivating approximately two times the threshold for a commercial quantity, namely the yield weight of 47.3 kilograms.[90] The offending was undertaken in a group, with the accused being described as the principal cultivator. The crop was grown on one property, with extensive and sophisticated hydroponic equipment and an electrical bypass on the premises as well as on a second property set up for the purpose of commercial cultivation. The period of the offender's involvement in cultivation was three months. Strong evidence in favour of mitigation was found, the offender suffering from post-traumatic stress disorder and major depression. He had no prior convictions, had exhibited remorse and had good prospects of rehabilitation. The table of cases annexed to this case showed that only one sentence greater than the sentence imposed in Bui had ever been imposed.

81 The respondent relied upon the 2013 decision of Nguyen v The Queen.[91] The offender in that case cultivated a commercial quantity of narcotic plants in large numbers over three locations. In all, well over 1,000 plants were discovered. The offender had no prior convictions. He was 60 years of age at the time of sentence and had come to Australia as a refugee from Vietnam. After a trial he had been found guilty of four charges of cultivating a narcotic plant in a commercial quantity, one charge of trafficking in a narcotic plant and four charges of theft of electricity. The County Court judge imposed a total effective sentence of six years and nine months' imprisonment with a non-parole period of four years nine months. On each of four charges of cultivation of a commercial quantity of narcotic plants the appellant was sentenced to five years' imprisonment. He was sentenced to a term of one year nine months' imprisonment on each of the four charges of theft. This Court found that the sentences imposed were not manifestly excessive.

82 It was observed in Bui that since 2007, sentences imposed for the offence of cultivating a commercial quantity of narcotic plants where the offender was a principal range from 15 months (where the offender received a discount for agreeing to give evidence against a co-offender) to six years nine months.[92] Sentences both higher and lower than that imposed on the appellant for commercial quantities comparable or higher to that for which the appellant was charged, namely, two and half times by the number of plants, or one and a half times by the weight of the plants, could be identified.

Drug Offences Report examining sentences from 2008-09 to 2012-13

83 The limitations upon the proper use of statistics and sentences passed in other cases are well known. They can and should provide guidance and stand as a yardstick against which to examine a particular sentence, but they are not to be regarded as some sort of 'benchmark'. Bearing in mind this limitation, the respondent argued that as the sentencing statistics in the Drug Offences Report were compiled on the basis of the total effective sentence imposed in each case, their application to the present case, in which the total effective sentence included the sentences imposed for theft of electricity and trafficking, was limited. Further, it was said that the appellant was treated appropriately for the severity of his offending, reflected by the fact that the median term of imprisonment imposed in the second cluster of 202 cases ('Cluster 2')[93] was higher than the sentence imposed on the appellant. The imposition of a sentence of two years and six months' imprisonment on the charge of commercial cultivation upon the appellant was said to be consistent with the sentences imposed for mid-range offending.

84 It was recognised by both parties that the Drug Offences Report contains two relevant clusters of cases involving commercial cultivation.[94] In the first cluster of 201 cases ('Cluster 1'), all of the offenders were crop-sitters or played an ancillary role. They were typically involved in a short period of offending and were relatively youthful offenders with less likelihood of previous criminality. The median term of imprisonment for Cluster 1 cases was two years.[95] In Cluster 2 cases, 77 per cent of offenders played a principal or proprietary role. There was typically a longer duration of offending, involving offenders older than 35 years of age and with a criminal history. The median term of imprisonment for Cluster 2 cases was three years.[96] The appellant submitted that, having regard to the qualitative nature of the offender and the offending reflected by each cluster, his personal circumstances and his role was more akin to Cluster 1 cases. The total effective sentence he should have received, it was submitted, should have fallen toward the lower end of the spectrum, either in Cluster 1 or in the bottom range of Cluster 2. For reasons I have already given this submission cannot be sustained.

85 Cluster 1 and Cluster 2 in the Drug Offences Report rely upon total effective sentences for offending which included the primary offence of cultivation of a commercial quantity of cannabis.[97] The total effective sentences are likely to also include a charge of theft of electricity but it is unlikely that a sentence for trafficking (on which the appellant was also sentenced) will also be found within most of those total effective sentences. Had the appellant not received an additional sentence for trafficking, the appellant's total effective sentence would have been three years' imprisonment, the median term of imprisonment for Cluster 2 cases. As the appellant's role is properly to be characterised as mid-range offending involving participation akin to that of a principal, the Cluster 2 cases show that the sentence imposed on the appellant, fell within CSP.

86 It is plain enough that CSP as exposed by this analysis does not show that a sentence of two years and six months' imprisonment on charge 1 was beyond a sound exercise of the sentencing discretion. The sentence imposed does bear an appropriate relativity to the existing range of sentences that have been imposed for this category of seriousness of the offence. For mid-range offending, the Drug Offences Report is an indicator that a total effective sentence of three years and six months' imprisonment which includes a sentence of two years and six months' imprisonment on charge 1 was reasonably open.

Cumulation of part of the sentences for theft of electricity and trafficking

87 The appellant also submitted that as charges 1, 2 and 3 arose from conduct on the same two properties, the judge's orders for cumulation of three months' imprisonment on each of charges 2 and 3, was also excessive. During oral submissions, the appellant conceded that the product of each houses involved a commercial quantity and, as such, the principle of totality would not necessarily be offended by some cumulation in respect of charges 2 and 3.

88 The submission that the orders for cumulation were excessive cannot be sustained. The offence of commercial cultivation of a narcotic plant and the offence of theft of electricity are commonly found to arise from the same set of facts and orders for cumulation on the charges of theft of electricity are not unusual.[98] What is less common is the combination of sentences for those offences with a sentence for the offence of trafficking.

89 I would adopt as apposite to the present case, the observations made in Nguyen v The Queen[99] by Kaye AJA (as his Honour then was), with whom Redlich and Whelan JJA agreed,[100] as to the significance of orders of cumulation of terms of imprisonment for theft of electricity upon a sentence of cultivating a narcotic plant in a commercial quantity The thefts were sophisticated, and premeditated. They were for the purposes of undertaking an enterprise, the motive for which was greed. The thefts increased the profitability of the illicit enterprise and were also designed to conceal the enterprise from detection. The principles of denunciation and general deterrence were therefore of significance.

90 In respect of charge 4, the appellant submits that 6 months cumulation of that sentence was excessive in light of his absence of prior convictions and because his conduct arose against the background of charge 1. I reject that submission. The appellant's engagement in trafficking indicated more expansive involvement than cultivation alone. It was a discrete offence. As such, the appellant's trafficking in addition to the other offences with which he was charged served to emphasise that general deterrence and denunciation loomed large in the sentencing synthesis. The orders of three months cumulation of each of the sentences of electricity and six months' cumulation on the trafficking charge was well within a sound exercise of the sentencing discretion and did not offend the principle of totality. Those orders did not result in a total effective sentence that was excessive.

91 The contention that the non-parole period was excessive is also without substance. Although there is no usual ratio between the head sentence and the non-parole period, sentencing practice shows that ratios 'between 60 and 66% and up to 75% of the head sentence are not regarded as uncommon'.[101] Sentencing practice provides a guide for the sentencing judge as to what ratio may be appropriate.[102] It bears noting that the non-parole period imposed in the instant case was approximately 72 per cent of the total effective sentence. That ratio is far from unusual.

93 The Director foreshadowed on the leave application that he would submit on the appeal that CSP for the mid category of seriousness of cultivating a commercial quantity of cannabis, into which the appellant's conduct fell, required correction as, despite the increasing prevalence of the offence, it remained too low and too narrow and had given rise to inconsistency in sentencing of such offenders. Maxwell P relied on this consideration in support of the grant of leave.[103]

94 On the hearing of the appeal the Director submitted that regardless of the outcome of the appeal this was a case in which it was appropriate for the Court to state that there should in the future be an upward correction in sentencing for this category of the offence. At the invitation of the Court, the Law Institute of Victoria ('LIV') and the Criminal Bar Association ('CBA') filed joint submissions as interveners on this issue. They contend that this is not the occasion to correct current sentencing practice, if it should be corrected, as it would not be determinative of the appeal. They drew upon the dissenting reasons of Ashley JA in Ashdown, that the Court should decline to entertain the Director's submission on the ground that the issue was 'not before the Court requiring its determination and that the jurisdiction to quell that dispute is not engaged'.[104] They submit that it is only on a Crown appeal, and then only in circumstances where the prisoner has pleaded not guilty, that an appellate court may undertake this course. Otherwise, a correction to sentencing practice could not result in the imposition of a higher sentence in the case before the Court.

95 During the course of oral submissions the LIV and CBA appeared to qualify this submission. They acknowledged that on both prisoner's and Director's appeals the Court of Appeal may express views on matters of sentencing standards 'that may not necessarily determine the appeal' but that it must be related to the appeal 'in more than a theoretical fashion.' It was contended there was no sufficient nexus in the present case between the examination of CSP for mid category offending which had been explored on the substantive appeal and any possible correction of CSP for that category of offence. Therefore the Court should refrain from any commentary upon the adequacy of CSP.

96 For the reasons that follow, each aspect of that submission must be rejected. The circumstances in which an appellate court may address the adequacy of CSP are not so circumscribed.

97 First the contention that an appellate court may not correct CSP unless it is determinative of the appeal is inconsistent with the established line of authority referred to in my judgment in Ashdown,[105] with whom Maxwell P agreed, and to which I shall make some further reference. In Winch v The Queen,[106] a prisoner's appeal which preceded Ashdown, the Court expressed the view that sentencing standards for the offence of recklessly causing serious in injury 'by glassing' was too low though it was not determinative of the appeal. The reasoning in Ashdown has been approved or applied in a number of subsequent decisions of this court.

98 In Director of Public Prosecutions v Werry,[107] a bench of five judges, by way of dicta, affirmed the entitlement of an appellate court to express its views as to the adequacy of current sentences in an appropriate case. I agree with the conclusions reached by Tate and Whelan JJA in their respective reasons, that there is nothing said in Werry that precludes a decision in this appeal that CSP for this offence should be increased in the future.

99 The view that CSP may be reviewed and increased in the future was again stated in Director of Public Prosecutions v Daing.[108] In Director of Public Prosecutions v CJA[109] and again in Anderson v The Queen,[110] it was recognised that where one of the circumstances set out in Ashdown exists, a review of CSP may be warranted.[111] In Hogarth v The Queen,[112] a prisoner's appeal, the Court, applying Ashdown, expressed the opinion that CSP for aggravated burglary was inadequate, and should be uplifted though it was not determinative of the appeal. In Harrison v The Queen,[113] also a prisoner's appeal, the Court applying Ashdown found CSP with respect to negligently causing serious injury in driving a motor vehicle was too low and stated that it should in the future be increased though it did not affect the outcome of the appeal. By definition the prospect of a warning that in the future CSP should be corrected will not be determinative of the appeal.

100 All of the above cases including Winch, that applied the reasoning in Ashdown, were prisoner's appeals.

101 Appeals, whether on the ground of manifest excess (prisoner's appeal) or manifest inadequacy (Crown appeal), will be dismissed where it is found that the sentence imposed fell within the range that was reasonably open, but that does not preclude the appellate court from exercising its jurisdiction to provide guidance as to CSP.

102 Second, the cases to which I shall now turn also illustrate that a warning that there should be a future upward correction in the sentencing standard applies to both prisoner's and Crown appeals. The joint reasons of the High Court in Poyner v The Queen,[114] that an intermediate court of appeal may, by way of warning, indicate that in the future, sentencing for a particular offence should be incrementally increased were given in the context of a prisoner's appeal. Poyner had appealed to the New South Wales Court of Criminal Appeal against his sentence. Street CJ delivering the judgment of the New South Wales Court of Criminal Appeal observed that the prisoner challenged the sentence imposed on the basis that it was markedly greater than the pattern of sentences for that category of offending.[115] The Chief Justice evaluated the significance of the sentencing pattern that had been demonstrated by the cases to which the court had been referred and said 'that it was timely to correct that sentencing pattern and to indicate the level of sentence appropriate for facts such as the present' and that the sentencing pattern 'should be corrected by this Court in the exercise of its jurisdiction in that regard.'[116] His Honour identified a number of factors - all being reasons subsequently listed in Ashdown[117] - that justified that course.[118] The sentence originally imposed was significantly reduced though not by so much as to conform with what was found to be an inadequate existing sentencing standard. That, it appears, gave rise to the appeal to the High Court.

103 The 'jurisdiction' to correct CSP to which Street CJ referred in Poyner in the course of the prisoner's appeal, was the jurisdiction to establish matters of principle 'for the governance and guidance of courts having the duty of sentencing convicted persons'.[119] The power extends to doing what is necessary to avoid errors or inconsistency in sentencing. An appellate court may do so by establishing standards of sentencing or by indicating an appropriate sentence range or a category of seriousness of an offence, the jurisdiction not being confined to circumstances where the individual sentence before the court is corrected.[120]

104 An example of the court's overarching jurisdiction may be found in R v Pidoto[121] where the prisoner's appeal was allowed and the prisoner resentenced. Callaway JA observed: [122]

One of the functions of an appellate court is to decide the instant case. What I have written so far discharges my obligation in that regard. Another function of an appellate court is to decide more far reaching questions of law and practice. That is the function discharged by the other members of the Court in their judgment. I agree with it in part, particularly their Honours' identification of the difficulties faced by sentencing judges in forming a reliable opinion about the relative harmfulness of trafficking in different kinds of drugs of dependence.

105 The joint reasons of the High Court in Poyner drew upon the judgment of Bray CJ in R v Barber[123] and Nader J in Breed v Pryce.[124] Both were prisoners' appeals against sentence. They were specifically referred to as examples of appeals where the Court had expressed the view that past sentences for a particular offence were too low. In both cases a warning was given that in the future there should be an upward trend in sentencing. The High Court described those cases as providing useful guidance as to the course that may be followed but added that such cases 'do not state a binding principle'.[125]

106 There are decisions of other intermediate appellate courts to the effect that such a warning may be given in prisoner's appeals where the outcome remained unaffected by the warning. For example in R v D,[126] a prisoner's appeal, Doyle CJ reviewed sentencing standards in cases involving multiple counts of serious sexual offending, all of which included unlawful sexual intercourse. He then corrected the sentencing standard in these terms:[127]

This review of the decisions of this Court leads me to think that in future the sentences imposed for cases like this should be increased for persons who commit such offences in the future. By this I mean cases involving a course of conduct including unlawful sexual intercourse with a child, and committed by a person in a position of trust and authority.

107 In the prisoner's appeal in Hampton v The Queen[128] Hulme J, with whom Beazley JA (as she then was) and Latham J agreed, approved the observations in R v McIvor,[129] also a prisoner's appeal in which Howie J (with whom Tobias J agreed) said:[130]

In support of the third ground of appeal the applicant has called in aid sentencing statistics and they reveal, as is often the case, that the sentences actually imposed do not appear to reflect the statutory maximum penalty of 20 years. The sentencing statistics are frequently being used to displace the maximum penalty so that the sentencing court and this Court are being asked to have regard to the highest sentence that has been imposed in order to determine the appropriate sentence to be imposed in the instant case. The statistics indicate to me that the range of sentences being imposed for multiple armed robbery offences is too low

... Some of the sentences on their face seem to me to be manifestly inadequate in light of the large number of offences for which sentence was being imposed or that were being taken into account. ...

108 In the prisoner's appeal in Stock v The Queen,[131] Schmidt J delivering the primary judgment of the Court referred to the Crown argument that the sentence review on which the applicant had relied, itself showed that sentences being imposed on offenders for the relevant offence might be considered to be too light and that the position should be corrected by an incremental upward trend in penalties.[132]

109 The assertion that the court's jurisdiction to correct CSP is limited to cases where the prisoner has pleaded not guilty rests upon the further false assumption that a court is bound to give effect to the expectation of the prisoner who has pleaded guilty, that he would be sentenced in conformity with existing CSP. It is erroneous to think that appeals proceed upon the basis that the appellate court may not apply a sentence standard that is higher than the prevailing standard on a prisoner's appeal where the prisoner has pleaded guilty.

110 This appeal was conducted on the basis that, the respondent having pleaded guilty, the adequacy of the appellant's sentence should be assessed in accordance with CSP. If he fell to be resentenced, he should be sentenced in accordance with prevailing sentencing practice.[133] While fairness to the prisoner will ordinarily dictate that course, it does not have to always be so. The joint reasons of the High Court in Poyner state that the approach of giving of a warning before increasing a sentencing standard is 'not a binding principle.'[134] Hence it was observed in Ashdown, that giving a warning that a sentencing standard would in the future be uplifted was 'not necessarily a prerequisite for increasing the prevailing standard of sentence before increasing the range of penalties'.[135] A prisoner's plea of guilty does not bar consideration of the adequacy of existing practice and the application of a corrected standard to the appeal then under consideration.

111 Doyle CJ in R v D[136] did not consider it necessary for the court to always give a warning before increasing the range of penalties for a particular type of offending. In addition to Poyner v The Queen, Doyle CJ cited the reasons of King CJ in Yardley v Betts and other authority for that position.[137] He then said:[138]

Nevertheless, as the cases cited recognise, warnings do have a part to play in the sentencing process. I consider it appropriate that the heavier penalty should be imposed in cases in which a conviction is recorded hereafter or a plea of guilty is entered hereafter. Although the heavier range of penalties could be applied in the present case, I consider that as a matter of fairness the present case should be dealt with by reference to the standard reflected in the previously decided cases to which I have already referred.

112 The Court in Hampton v The Queen[139] took issue with the statement by Howie J in McIvor[140] that the applicant was entitled to be sentenced in accordance with the actual range of sentences being imposed rather than by the range that the Court might think is appropriate. Hulme J, with whom Beazley JA (as she then was) and Latham JA agreed, said:[141]

Such an approach is adopted when a court has to sentence for an offence decades or so old and sentencing standards have changed in the interim. However to adopt it as a general proposition would be to emasculate the role of this Court in ensuring that sentencing levels are appropriate and, if too low, are adjusted upwards. Among the most obvious examples of this are the decisions of this Court in R v Henry and R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209 and although both of those cases were decided by 5 judge benches, such a Court has no more power than does the Court when constituted by 3 judges. Furthermore, it is difficult to reconcile Howie J's remarks with the observations of 5 members of the High Court in Poyner v R.

113 The reference by Hulme J to the observation in Poyner appears to be a reference to the statement that 'there is no binding principle' that a warning must be given. Hence in Ashdown, it was said that the Crown will not 'usually seek to justify the sentence imposed'[142] by inviting the Court to apply a higher standard of sentence than the existing standard. The absence of a binding principle requiring a court to give warning before increasing a prevailing standard of sentences for particular crimes has been confirmed or applied on numerous occasions.[143]

114 Considerations of fairness that may arise on either a prisoner's or Crown appeal will usually explain why an intermediate court of appeal chooses not to visit a prisoner with the proposed increase in the standard of sentence. That is however a matter of discretion, not binding principle.[144] Statements of this Court that fairness dictated in a particular case that a prisoner who had pleaded guilty should not be visited with an uplifted sentencing standard reflects merely the unchallenged assumption upon which the Courts will ordinarily be invited to and do proceed. None of those cases involved consideration of the issue which in such a way as to be binding on future courts.[145]

115 Courts, moved by considerations of fairness, generally determine the appeal by reference to the existing sentencing practice rather than a standard that the Court considers should in the future apply. But an appellate Court does not approach an appeal on the basis that the prisoner cannot be sentenced on the basis of a corrected sentencing standard. For example in Director of Public Prosecutions v Faure,[146] a Crown appeal was allowed in this Court on the ground that the sentence was wholly disproportionate to the gravity of the offence and was manifestly inadequate. The prisoner had pleaded guilty. He submitted that any change in sentencing standards should be introduced gradually and in the future. In rejecting that submission the Court said that any inconsistency between the new sentence the Court was to impose and existing practice, since the maximum penalty had been increased, was to be explained on the basis that the Court distinguished those decisions since the maximum had been increased.[147]

116 The possibility that existing sentencing standards may be corrected has the potential to affect the outcome of the appeal. It would be antithetical to an appellate court's overarching duties, were the court to be denied jurisdiction to correct an existing sentencing practice because the offender assumed that the impugned sentence would necessarily be assessed according to existing sentencing practice. The fact that a prisoner has pleaded guilty does not deprive an appellate court of jurisdiction to impose a sentence in accordance with the sentencing standard that the court thinks appropriate rather than the existing sentencing practice. On a prisoner's appeal based upon a ground of manifest excess, even though the sentence imposed manifestly exceeded CSP, the application of a corrected sentencing standard may result in the appeal failing or in the sentence being reduced but by an amount less than would have been required had CSP applied. On a prisoner's appeal, if for any reason the court is considering imposing a more severe sentence than the sentence first imposed, the court must give the appellant a warning that the appellant faces that possibility.[148]

117 No reason having been shown why this Court should not address the adequacy of CSP for cultivation of a commercial quantity of a narcotic plant, I turn then to the reasons advanced by the Director as to why there should be a correction to the prevailing standards for offending falling within the mid category of seriousness of the offence.

Does CSP for mid category seriousness for the offence of cultivation of a commercial quantity of a narcotic plant require correction?

118 Drawing upon the circumstances enumerated in Ashdown, the Director submitted that current sentencing practice should in the future be uplifted. In his written submission the Director contended that the offence has become more prevalent; that there has been a persistent error in the manner in which the relevant category of offender has been treated; and the objective seriousness of particular conduct has been wrongly categorised. In oral argument the last of these arguments was not pressed. Rather senior counsel further submitted that CSP discloses that the band of sentences for mid category seriousness for this offence is not only too low but is compressed and too narrow. He also submitted that CSP failed to adequately address the objective seriousness of this category of the offence resulting in significant inconsistency in the application of sentencing principles and the manner in which this category of the offence has been treated.

119 In granting leave Maxwell P observed that a review of sentence appeals concerning this offence revealed that similar or lower sentences had been imposed for offending involving much greater quantities of cannabis. There were also comparable cases where lower sentence have been imposed. Thus, the ground of manifest excess was considered at least arguable. The President considered however that the appeal provided an opportunity for the Court to consider the adequacy of CSP to which he had drawn attention some time previously in Nguyen v The Queen.[149] Maxwell P drew attention to three 'Sentencing Snapshots' published by the SAC for the offence:

The President concluded that the ground of manifest excess in this case raised the question whether sentences being imposed for this offence adequately reflect the objective seriousness of the offending.

120 The first SAC Snapshot published for this offence in March 2008 dealt with the five years commencing 2002-3.[153] In that year 15 people were charged with this offence. In the following four years the number varied between 51 and 68 people. It showed that terms of imprisonment ranged from 1 year to 6 years while the median length of imprisonment was 2 years 6 months.[154] The average length of imprisonment ranged from 2 years 1 month in 2003-4 to two years 11 months in 2002-3.[155] What is of significance is the fact that the median and average sentences have not materially altered over the period between 2002 and 2015.

121 The Sentencing Snapshot for the period 2004-05 to 2008-09 for this offence[156] shows that in each of the years considered, the number of persons charged with this offence varied between 50 and 69, the average length of imprisonment ranged from 2 years and 1 month to 2 years and 7 months.[157]

122 During the period of this Snapshot, this Court published its decision in Pidoto[158] which held that it is the quantity of the drug of dependence which justifies its characterisation as 'commercial' and not any property of the drug in question.[159] The Court adverted to the fact that the view had prevailed that cannabis and its derivatives were less dangerous than many other prohibited drugs and that sentencing courts had acted upon that basis,[160] but that more careful consideration of the empirical evidence had led to recognition that cannabis could no longer be described as 'comparatively innocuous'.[161] The Court referred to sentences under the Drugs Poisons & Controlled Substances Act 1981 which showed that offences committed with respect to drugs such as heroin had been treated for sentencing purposes as 'inherently more heinous and serious than offences involving cannabis'.[162] The Court emphasised that the sentencing court is precluded from bringing to bear any view about the tendency of the drug of dependence to cause harm.

123 By the commencement of this millennium, judicial perceptions as to the harmfulness of cannabis had changed and commercial trafficking in cannabis was recognised to be notorious although in some jurisdictions it was still regarded as a soft drug.[163] In Clohesy v The Queen[164] Buchanan JA said:

The possession of a commercial quantity of cannabis is a serious offence. Its gravity is reflected in the maximum penalty that Parliament has assigned to it. As the Full Court said in R v Pastras:

Those who have experience in the administration of the criminal justice system know that the prolonged use of marijuana can cause great harm, particularly to psychologically vulnerable individuals.

Leniency is not to be shown to a person who deals in marijuana on the basis that the drug is harmless. The legislation is predicated upon it being harmful . The principle of general deterrence is of special importance in relation to the crime of possession of a commercial quantity of a narcotic drug. Generally the offence requires the imposition of an immediate custodial sentence, which would usually only be avoided by exceptional countervailing factors.[165]

124 The Sentencing Snapshot for the period 2006-07 to 2010-11,[166] shows that the number of persons committing this offence in each of the years increased to 84 in the final year of that period under review.[167] The average length of imprisonment imposed during this period ranged from two years one month to two years seven months. Thus the average sentence remained in substance the same as for the previous period.

125 The period 2008-09 to 2012-13 for this offence were reviewed by the SAC in its Drug Offences Report.[168] The total number of offences each year maintained the increased level shown in the final year of the previous period reviewed. As with the previous two periods, there was little difference in the average sentences. The Cluster 2 analysis to which I have already made extensive reference (concerning principals) showed the median term of imprisonment to be 3 years and the range of sentences to be between 6 months and 6 years and 9 months,[169] the latter being the highest sentence imposed for offending in the uppermost category of seriousness.[170]

126 The SAC also undertook an analysis for the five year period 2010-11 to 2014-15.[171] During this period this offence was charged on 414 occasions with the median at 2 years.[172] In the final year, 2014-15, there was a noticeable reduction in the number of persons sentenced for this offence following the steady upward trend in previous years. The reduction in the last year coincided with a reduction across the board for sentences for all criminal offences in the Supreme and County Courts. The SAC suggested that the reduction in cultivation offences for that year needed to be considered in that context. The Director submitted this year to be an anomaly attributable to unrelated factors which are not indicative of a decrease in the prevalence of this type of offending.

127 Senior counsel for the LIV and CBA, whilst acknowledging that between 2010 and 2014 the number of cases per year hovered between 82 and 99, pointed to the decrease in the number of cases in the final year which it was submitted should not be ignored as an anomaly.

128 If reliance is placed upon the prevalence of an offence as warranting an increase in CSP, the frequency of the offence at the time that the impugned CSP became settled becomes relevant. A relevant question then is whether there has been an increase in the prevalence of the offence since that time. As CSP appears to have remained relatively static since at least 2004, the substantial increase in the number of offences from 2008-09 assumes a particular significance. That increase in the number of offences remained constant until 2014-15. But there is presently uncertainty as to why there was a significant reduction in the number of offences in the last year. I accept the LIV submission that the increased prevalence of the offence over the preceding six years must be viewed with some caution and should not be acted upon unless it can be shown that the trend of increased prevalence has resumed.

129 In his submissions the Director confined attention to the median and average sentences for this offence since 2010, contending they had remained steady. But the first two snapshots to which I have referred are of at least equal importance in that they show that CSP has remained relatively steady since 2004 notwithstanding the continuing increase in the number of offences throughout this decade save for 2014-15.

130 CSP as reflected by the statistics and comparable cases shows that offenders who were principals or organisers of others and who cultivated crops at the upper end of the mid category had never received a sentence above five years three months and very commonly received sentences in the two to three year range. Sentences falling at the lower end of this range were also imposed on crop sitters who actually fell within the lowest category of seriousness. Thus it was submitted there had been no adequate distinction drawn in sentencing practice between the lowest category of seriousness reserved for offenders such as crop sitters and who generally had no financial interest in the crop and those who were principals or organisers.

131 The Crown produced Tables A and B on the appeal which examined cases falling into each of the three categories of seriousness of offending. Those Tables indicated that a number of individual sentences were as low as two years for this mid category of seriousness of the offence of cultivation of a commercial quantity.

132 The LIV and CBA submit in their written case that the Director has not identified a particular category of this offence that requires correction but complains in the broad about CSP for this offence. In oral submission it was further contended that the Director now limited his submission to the upper category of seriousness of this offence as imposing a floor to this offence which is too low. I do not accept that this was the purpose of the Director's submission. The Director eschewed any intent to focus upon the adequacy of CSP for the upper category, maintaining that his argument was confined to the mid category of this offence into which the appellant fell. As Whelan JA observed during oral argument, the Director only sought to use the sentences imposed in the upper category to demonstrate the primary submission that sentencing for mid-category offending has been compressed in part because of the ceiling fixed by sentences in the highest category.

133 The Director referred to a series of cases[173] showing that in the upper category of seriousness where there are many times the commercial quantity threshold, there appears to be an upper limit around 5 years and 3 months which has not changed significantly over time. These cases illustrate the fact that CSP has effectively settled on an upper limit on sentences for this offence. It was said that this ceiling has had the effect of suppressing the lowest and mid-category seriousness offending into a narrow band of between one and three years resulting in demonstrable inconsistency in the application of that narrow band to the two categories of offending. Thus a court sentencing for the mid-category of this offence would be constrained to impose a sentence within the narrow band, otherwise the sentence would equate with sentences applied to the upper category of offending. The Director further submitted that at the bottom end of the range the sentences imposed have overlapped with sentences in the lowest category applied to persons who are no more than crop sitters. Senior counsel described the sentences in the mid category of seriousness to be a 'mess' and 'all over the place.' CSP permitted like cases to be treated unequally.

134 In his written case the Director had advanced the circumstance that 'the objective seriousness of particular conduct had been wrongly categorised', but in oral argument it was explained that the complaint was not that there had been an error in categorisation of the offending conduct, but that there had been a consistent error in evaluating the objective seriousness of offences falling within mid-category seriousness. That remained the focus of the Director's submission.

135 The LIV and CBA submitted there was no such error; that one should have regard to the relative commercial nature of different drugs of dependence; that the financial return from cultivation of cannabis is substantially lower than commercial importation or trafficking in other drugs of dependence. Reliance was placed upon the principle discussed in Director of Public Prosecutions v Maxwell.[174] Allied to this point was the submission that the weight of cannabis reaching the consumer is considerably lower than at the point of cultivation. It is said that the financial realities of cultivation are relevant to the objective gravity of the offence, to specific and general deterrence and to community protection. I reject the contention that the financial return from cultivation of a commercial quantity of cannabis explains or could justify existing CSP.

136 Pidoto makes clear that no distinction in harmfulness is to be made between a narcotic plant and other drugs of dependence. As Pidoto further explains, the quantity which Parliament specified as the amount constituting a 'commercial quantity' of a particular drug was lowered by the Sentencing and Other Acts (Amendment) Act 1997. The amount specified for each drug of dependence was determined by calculating how much of that drug was necessary to produce a profit of between $100,000 and $250,000.[175] The statutory presumption was that the quantities selected as the 'commercial quantity' for each drug of dependence would lead to a 'consistency of monetary value' across the range of drugs. Therefore the starting point is that the profit return from a bare commercial quantity of each drug is of the same order. That is not to say that evidence of the financial reward received or anticipated by an offender is of no relevance to the objective gravity of an offence involving a drug of dependence, particularly if the amount derived or to be derived is unusually high or low.

137 It was a matter of significance that the LIV and CBA accepted in oral argument that based upon the analysis of the SAC and the further information furnished by the parties, that sentencing in the relevant area could be described as 'chaotic' and demonstrated inconsistent sentencing in relation to both crop sitters and principals. Despite conceding the unsatisfactory and inconsistent standards for both crop sitters and principals, it was submitted that an absence of numerical equivalence did not necessarily demonstrate inconsistency in the application of principle. It was conceded during argument that the inconsistencies in sentencing for this particular category of seriousness of the offence was indicative of an inconsistency in the application of sentencing principles. All other things being equal, it was accepted that if someone was a principal and a beneficiary of the cultivation, then absent unusual circumstances, sentencing principles would dictate a particular range of sentencing outcomes if the relevant sentencing principles were applied with consistency.

138 The substantive appeal involved a detailed examination of current sentencing practice for a mid-category offence of cultivation of a commercial quantity of a narcotic plant. The examination of comparable cases and the Drug Offences Report informed an assessment of the existing range of sentences for this category of the offence and whether the sentence imposed fell within or outside that sentencing practice. This information revealed the narrow breadth of the applicable range and the inadequate demarcation of this standard from the lower and upper categories of seriousness for this offending. Consideration of these issues on the substantive appeal leads inexorably to the conclusion that some guidance as to principle and correction to the sentencing standards for this category of offending is urgently needed.

139 It is instructive that over the last decade this Court has directed attention to the seriousness of this offence, its increasing prevalence and the inadequacies of the existing practice. A useful starting point is Doan v The Queen.[176] T Forrest AJA (with whom Nettle and Harper JJA agreed) said:[177]

The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 years imprisonment. Whilst there is no doubt that the role played by the appellant was of a menial nature, it was nonetheless necessary for the crop to flourish. The maximum penalty fixed by parliament unambiguously demonstrates how seriously the community views this conduct (see DPP v Duong). Recently in this Court emphasis has been placed upon the importance attached to sentencing judges having regard to the maximum sentence fixed by Parliament (see Nguyen v The Queen, DPP v CPD). This court has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence (The Queen v Mason) and that the link between general deterrence and the increasing prevalence of this offence is readily apparent.

140 Nettle JA (with whom Harper JA agreed) further observed that there should be no doubt that in cases involving cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations so that 'an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.'[178]]

141 Next in Nguyen v The Queen[179] Maxwell P said:[180]

As has been regularly pointed out in sentencing decisions, this is an offence for which Parliament has set the highest fixed maximum in the criminal calendar: 25 years' imprisonment. As Buchanan JA noted in DPP v Duong, the maximum of 25 years shows unambiguously how seriously the community, through the Parliament, views this conduct.

And it is of course irrelevant which drug is being cultivated. So much was made clear by the decision of this Court in Pidoto. Since that 2006 decision the sentencing regime has remained unchanged. There has been no move to establish a scheme under which the sentencing court is expected to decide whether one drug is more harmful than another. As the Court said in Pidoto, this is a quantity-based sentencing regime. Although quantity will not bear an arithmetical relationship to sentence, the quantity involved is a very significant matter in sentencing for these offences.

This Court has referred regularly in the last 12 months to the obligation of sentencing judges to have regard to the maximum sentence fixed by Parliament. As the Court said in DPP v CPD:

The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice. But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty.

In Duong, Buchanan JA said:

Generally this offence requires substantial punishment. The increasing number of hydroponic crops of cannabis detected in the last few years is material ...

In The Queen v Mason, his Honour said:

General deterrence is an important consideration in sentencing for the offence of cultivation of a commercial quantity of cannabis.

The link between increasing prevalence and general deterrence is self-evident.

142 Maxwell P then recorded the Crown's acknowledgement that a sentence of three years' imprisonment with a minimum of two was common for the offence and that such a sentencing practice was not consistent with what Parliament intended by setting such a high maximum. He then said:

According to the Sentencing Advisory Council's Sentencing Snapshot No 48 for this offence, over the five years 2002-03 to 2006-07 102 people were imprisoned for this offence. The prison terms ranged from one year to six years. The most common term imposed was two years, and the median was two years and six months. In only one of the 102 cases did the sentence exceed five years. (Five years is, of course, only 20 per cent of the maximum).

It may be that the figures up to 30 June 2007 reflect a pre-Pidoto view that cannabis was, relatively speaking, a harmless drug, or at least less harmful than other drugs of dependence. That view might partly explain what seems on the face of it to be a very low sentencing practice. But as Buchanan JA said in Duong:

The grave harm which cannabis grown by modern methods can inflict has been noted by many judges. Generally the offence requires substantial punishment.

What the Sentencing Advisory Council has published reflects a statistical range in which sentencing for the offence over that five-year period was capped at six years. An upper limit of six years seems impossible to reconcile with the statutory maximum of 25 years, since the figures for the five year period presumably include some cases of the more serious kind. It seems to me that the Victorian community would be entitled to ask why sentences for this offence have been consistently under - or well under - one-fifth of the maximum.[181]

143 Referring to the table of sentences for this offence annexed to the reasons for judgment Maxwell P then observed that the decisions set out in the table

raise real questions about sentencing consistency for this offence and also about whether current sentencing practice can be viewed as adequate in the light of the statutory maximum.[182]

144 The table of sentences set out in Nguyen v The Queen[183] was referred to in Bui where Redlich and Whelan JJA observed that despite the maximum penalty for the offence being 25 years, the appellant was able to call upon comparable cases and the Drug Offences Report to advance an argument that current sentencing practice cannot accommodate the sentence imposed in this case. The appellant argued that that sentence was at the very top end of sentences for this offence and the Crown accepted that it was at the top end. They observed in passing that the fact that such a submission could be made may indicate that something has gone astray in current sentencing practice, at least in the case of offences that fall within the more serious category of the offence.

145 CSP for cultivation of a commercial quantity of cannabis has remained static for more than a decade. That standard predates the Court's decision in Pidoto in 2006 despite the fact that the sentencing standards pre-Pidoto had been informed by the view that cannabis was a relatively less harmful drug.

146 The relevant statutory regime which has fixed the quantity of narcotic plant by reference to its realisable monetary value and the maximum penalty of 25 years demonstrate the seriousness with which the legislature views this offence. The materials published by the SAC for all offences which carry a maximum penalty of 25 years imprisonment show that the median sentence for cultivation of a commercial quantity of a narcotic plant for the period July 2009 to June 2014 including this particular category of the offence is 2.25 years, which is the lowest median for any of these offences and by a considerable margin.

147 The range of sentences for this particular category of seriousness of an offence became compressed at a low level, perhaps more than a decade ago. The sentence given to the appellant for mid category seriousness of offending was the same as that given to other offenders guilty of much less serious conduct. On the other hand, sentences can be found of the same order which were imposed for offending significantly more serious than that of the appellant. CSP has not adequately distinguished between significantly different degrees of criminality.

148 Not only is the range compressed but it is also apparent that the highest sentences imposed on a principal for cultivating a commercial quantity together with the lowest sentences imposed for cultivating a large commercial quantity have become a ceiling for the offence of cultivating a commercial quantity. CSP of the last decade does not reflect the objective seriousness of mid category offending having regard to the sentencing regime and the maximum penalty.

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