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[2010] NSWCCA 154
appellant. The appeal was allowed and the District Court sentences were quashed. For Count 2, LP was sentenced to a non-parole period of 2 years and a total term of 4 years, commencing 14 November 2008. For...
The Court of Criminal Appeal allowed the Crown's appeal because it considered the sentences too low for the seriousness of the cannabis cultivation and supply offences. It also found that the sentencing judge had not sufficiently assessed the cultivation offence's position below the middle range and had relied on uncertain assumptions about strict custody when setting the discount for assistance. The Court imposed higher sentences, allowed a 40 per cent combined discount for the pleas and assistance, and retained special circumstances.
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In R v LP [2010] NSWCCA 154, the New South Wales Court of Criminal Appeal considered a Crown appeal against sentences imposed after LP pleaded guilty to two cannabis offences. The judgment was delivered on 21 July 2010 by Hodgson JA, Whealy J and Buddin J. Buddin J gave the substantive reasons; Hodgson JA and Whealy J agreed with those reasons and the proposed orders ([1]–[3]).
No linked legislation citations have been extracted yet.
Count 1 was cultivating cannabis plants by enhanced means, in a large commercial quantity, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. The judgment records a maximum penalty of 20 years’ imprisonment and a standard non-parole period of 10 years. Count 2 was supplying a commercial quantity of cannabis leaf, contrary to s 25(2), with a maximum penalty of 15 years’ imprisonment ([3]). Five further offences were recorded on a Form 1 and taken into account at sentence. They included dealing with property suspected to be proceeds of crime, possessing a prohibited weapon, and possessing or using false instruments ([4]).
The police search on 14 November 2008 revealed a substantial indoor growing operation at the premises where LP lived with his parents. There were 274 cannabis plants in different stages of growth, cultivated with fluorescent lights, irrigation and other equipment. The agreed facts described the set-up as “well planned, sophisticated and professional” and stated that the estimated street value of the plants was $564,000 ([6]). Police also found 32,957.9 grams of cannabis leaf, which the agreed facts said belonged to LP and was possessed for supply. The leaf included 25,541.6 grams found in freezers, along with scales, resealable bags and a cash counter ([6]).
At the District Court hearing, the judge assessed the cultivation offence as below the middle range of objective seriousness, but did not say how far below. The judge identified a combined seven-year starting point for both offences and then allowed a 45 per cent discount for the guilty pleas and assistance to authorities. The judge attributed 12.5 per cent to future assistance and referred to LP serving his sentence in “strict custody” ([8], [11]). The resulting District Court sentences had an overall non-parole period of two years and an overall term of three years and ten months ([5]).
The Crown appealed on five grounds. These concerned the standard non-parole period, the size of the assistance discount, reliance on strict custody, alleged double counting of custody conditions, and manifest inadequacy ([13]). The Court allowed the appeal, quashed the original sentences and imposed replacement sentences ([24]).
The Court’s reasoning on the cultivation offence centred on the need to assess objective seriousness with adequate precision. The sentencing judge had found the offence below the middle range but had not assessed its relative position below that point. The Crown submitted that this was inadequate, relying on a body of recent Court of Criminal Appeal authority ([14]). The Court accepted the submission.
The Court did not treat the number of plants in isolation. It acknowledged that their number, maturity and condition were relevant. But the evidence also showed that LP was solely responsible for an operation with the hallmarks of an ongoing criminal enterprise. The operation was not a small “backyard” activity in which he had only a subsidiary role. The Court assessed the cultivation offence as below, but “not substantially below,” the middle of the range of objective seriousness ([15]). That assessment mattered because the 10-year standard non-parole period applied to Count 1 and, as the sentencing judge himself had recognised, remained a guide to the penalty ([8], [16]).
The Court also considered the supply offence serious in its own right. It cautioned against allowing the focus on the standard non-parole period for cultivation to obscure the gravity of supplying a commercial quantity. Buddin J concluded that the seven-year combined starting point for both offences fell well short of what their objective gravity required ([20]). Once that starting point was found inadequate, the final sentences were also manifestly inadequate, even after allowing for the pleas and assistance ([17], [20]).
The assistance issue required a more qualified assessment. The Court agreed with the sentencing judge’s description of LP’s assistance as being “of a very high order” ([12]). However, the scale of that assistance did not make every component of the discount justified. The sentencing judge had relied on the prospect of LP serving his sentence in strict custody, even though the evidence did not establish whether or when he would enter protection or what conditions would apply ([21]). The Court held that this was an error. It referred to RWB v R; R v RWB [2010] NSWCCA 147 and quoted R v Sukkar (2006) 172 A Crim R 151 on the need for evidence before an offender’s expected custodial conditions support a particularly large discount ([21]).
On re-sentencing, the Court allowed a combined discount of 40 per cent for the guilty pleas and assistance, with 10 per cent attributed to the offer of future assistance ([23]). It did not deny the value of the assistance. Rather, it recalibrated the discount in light of the error about custody conditions and the seriousness of the offending.
The Court ordered only a relatively modest degree of accumulation because the two offences had a common thread. It retained special circumstances, particularly to enable LP to reintegrate into the community following his first custodial sentence ([23]). These choices formed part of the new sentencing structure rather than displacing the Court’s finding that the original sentences were inadequate.
The judgment did not purport to create a new general sentencing code. It applied and restated principles from earlier Court of Criminal Appeal decisions. On assessment of objective seriousness, it relied on R v Hunter [2010] NSWCCA 54, R v Nicholson [2010] NSWCCA 80, R v Parkinson [2010] NSWCCA 89 and R v McEvoy [2010] NSWCCA 110 as recent examples supporting the Crown’s contention that a judge should assess how far below the middle range an offence falls ([14]). The judgment’s application is specific: the failure mattered in circumstances where a standard non-parole period applied and the factual circumstances pointed to an organised operation of substantial scale.
For the standard non-parole period, the judgment repeats that it was a “guide to the sort of penalty to be imposed,” as the sentencing judge had accepted ([8], [16]). The appeal court did not say that the standard non-parole period mechanically determined the sentence. Instead, it treated the 10-year period as a relevant statutory guide whose significance had to be reconciled with the particular offence and the offender’s circumstances.
The Court discussed R v Tran [2010] NSWCCA 72 as a comparison. There, the offender had pleaded guilty to cultivating 210 plants and received a non-parole period of five years and a total term of seven years and six months. The Court in Tran had reviewed other decisions and described a three-year non-parole period with a two-year balance as prima facie not manifestly excessive for a lower-role offender with 200–300 plants. Buddin J said that observation provided some assistance, but stressed that LP had to be decided on its own facts ([18]–[19]). Thus, the judgment did not treat the comparison as a binding tariff.
On discounts for assistance, the judgment applied RWB and Sukkar to the evidentiary issue raised by the sentencing judge’s assumption about strict custody ([21]). The relevant point was not that assistance should receive no recognition, but that a discount based on more onerous custody conditions required evidence of those conditions. The appeal court then selected a 40 per cent combined discount in this case ([23]). The decision does not establish that 40 per cent is a universal ceiling or standard rate.
The “after” position shown by this judgment is therefore an application of existing authorities to this appeal, not a broad change in the law. It confirms that assessment of relative objective seriousness, statutory sentencing guides, evidence about custody conditions, and the particular value of assistance are all relevant parts of a fact-sensitive sentencing exercise.
At [15], the Court said the cultivation offence fell “below, but not substantially below the middle of the range of objective seriousness.” In plain English, the Court accepted that some features reduced the offence’s seriousness compared with the most serious examples, but it did not regard the offending as far below the midpoint. The organised and ongoing character of the enterprise was central to that assessment.
At [16], the Court accepted that the standard non-parole period remained “a guide to the sort of penalty to be imposed.” This means it was not an automatic sentence, but it could not simply be acknowledged and then left unreconciled with a much lower sentence. The Court considered the 18-month non-parole period for Count 1 difficult to reconcile with the relevant guide in the circumstances.
At [20], the Court held that the combined seven-year starting point “fell well short” of the objective gravity of the offences. This is the clearest expression of the manifest inadequacy conclusion. The Court’s assessment covered both the cultivation offence and the commercial-quantity supply offence, rather than treating the supply offence as incidental.
At [21], the Court said it could not determine “if, or indeed when,” LP would go into protection, still less the conditions he would face. In plain English, possible future protective custody could not be treated as an established hardship when the evidence left its occurrence and conditions uncertain. The Court found error because the sentencing judge had relied on strict custody in fixing the discount.
At [23], the Court allowed a combined 40 per cent discount and specified that 10 per cent related to the offer of future assistance. This passage shows how the appeal court adjusted the discount while continuing to recognise both the pleas and assistance.
The judgment is relevant to sentencing appeals where the sentencing judge places an offence below the middle range of objective seriousness but does not explain how far below. Its significance is strongest in the circumstances addressed by the case: a statutory standard non-parole period applied, and the offence involved a sizeable, organised commercial cultivation operation ([14]–[16]).
It is also relevant where multiple serious offences are sentenced together and the judge uses a combined starting point. In LP, the appeal court considered the cultivation and commercial-quantity supply offences together and concluded that the seven-year starting point understated their combined objective gravity ([17], [20]). The decision’s reasoning is tied to those offences and facts; it does not supply a general sentencing table for other offending.
A further relevant pattern is a substantial discount for assistance to authorities where the sentencing judge takes account of expected protective or otherwise onerous custody. The judgment indicates that the expectation must be supported by evidence about whether the offender will be subject to those conditions and what they are likely to involve ([21]). Here, the Court could not determine whether or when protection would be required.
Finally, the decision concerns the combination of an early plea, assistance that the Court regarded as very high order, an offer of future assistance, and a first custodial sentence. It recognised those considerations while still finding that the original starting point and final sentences were inadequate ([12], [20], [23]). It should not be read as deciding that the same discount or accumulation is appropriate in materially different cases.
The supplied judgment contains no decisions after 21 July 2010 and therefore provides no information about how later courts treated R v LP. It cannot, on its own, establish whether later courts followed, distinguished, limited or developed its reasoning.
The judgment does identify the authorities it relied on at the time. It cites Hunter, Nicholson, Parkinson and McEvoy in support of the need to assess how far below the middle range an offence falls ([14]). It considers Tran as a sentencing comparison, while emphasising that the present appeal had to be determined on its particular facts ([18]–[19]). It relies on RWB and Sukkar concerning evidence of onerous custody conditions and assistance discounts ([21]).
These citations describe the legal context as presented in the 2010 judgment. They should not be mistaken for a later treatment history. Any assessment of subsequent citation, application or current status would require later judgments or other legal sources, which are not included in the supplied text.
The judgment leaves several matters unelaborated. First, although the Crown relied on s 23(3) of the Crimes (Sentencing Procedure) Act 1999, which provides that a lesser penalty for assistance must not be unreasonably disproportionate to the nature and circumstances of the offence, the Court did not separately develop a detailed test for applying that provision ([17], [23]). It altered the discount and sentences in this appeal but did not provide a general formula.
Second, the judgment does not define what degree of evidence will suffice to establish likely protective custody or its onerous character. It found the evidence insufficient to determine whether or when LP would enter protection and what conditions would apply ([21]). It did not specify a general evidentiary threshold.
Third, the 40 per cent discount is the result in this case, not an announced universal maximum. The Court recognised that the assistance was of a very high order, but also considered the custody assumption erroneous ([12], [21], [23]). The judgment does not set out how a different type, extent or risk profile of assistance would affect the appropriate discount.
Fourth, although the Crown alleged double counting of custody conditions between the assistance discount and special circumstances, the reasons focus on the uncertainty of the custody assumption and then retain special circumstances for reintegration after the first custodial sentence ([13], [21], [23]). The judgment does not separately explain a comprehensive method for avoiding or identifying double counting in other cases.
Finally, the judgment offers no subsequent citation history. Its later influence, and any qualification of the propositions it applies, cannot be determined from this source alone.
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JUDGMENT OF: Hodgson JA at 1; Whealy J at 2; Buddin J at 3
1 Allow the appeal. 2 Quash the sentences imposed in the District Court. DECISION: 3 In respect of count 2, the respondent is sentenced to a non-parole period of 2 years with a total term of 4 years imprisonment to date from 14 November 2008. The sentence will expire on 13 November 2012. 4 In respect of count 1, and taking into account the matters on the Form 1, the respondent is sentenced to a non-parole period of 3 years with a total term of 5 years and 6 months imprisonment to commence on 14 May 2009. The sentence will expire on 13 November 2014. 5 The respondent will be eligible for release on parole on 13 May 2012.
CATCHWORDS: CRIMINAL LAW - sentencing - Crown appeal - whether sufficient regard paid to standard non-parole period - whether discount for assistance appropriate
Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985
R v Hunter [2010] NSWCCA 54 R v McEvoy [2010] NSWCCA 110 R v Nicholson [2010] NSWCCA 80 CASES CITED : R v Parkinson [2010] NSWCCA 89 R v Sukkar (2006) 172 A Crim R 151 R v Tran [2010] NSWCCA 72 RWB v R; R v RWB [2010] NSWCCA 147
PARTIES: Regina LP
COUNSEL: P Miller (Crown) C Davenport SC (Respondent)
SOLICITORS: S Kavanagh (Solicitor for Public Prosecutors) William O'Brien & Ross Hudson Solicitors (Respondent)
IN THE COURT OF CRIMINAL APPEAL 2009/11590
HODGSON JA WHEALY J BUDDIN J
WEDNESDAY 21 JULY 2010 REGINA v LP Judgment 1 HODGSON JA: I agree with Buddin J. 2 WHEALY J: I agree with the reasons of Buddin J and the orders he proposes. 3 BUDDIN J: This is an appeal brought by the Crown, pursuant to s 5D of the Criminal Appeal Act 1912, against the asserted inadequacy of sentences imposed upon the respondent in the District Court in respect of two offences to which he had pleaded guilty. The first was an offence, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985, of cultivating by enhanced means a large commercial quantity of cannabis plants (Count 1). The legislature has specified that the large commercial quantity of plants is 200. This offence attracts a maximum penalty of 20 years imprisonment and/or a fine of 5000 penalty units and a standard non-parole period of 10 years is applicable to it. The second was an offence, contrary to s 25(2) of the same Act, of supplying a commercial quantity of cannabis leaf (Count 2). The legislature has specified that 25 kilograms constitutes a commercial quantity of that drug. This offence attracts a maximum penalty of 15 years imprisonment. 4 The respondent requested that five further offences, which were recorded on a Form 1 document, be taken into account when he was sentenced. They consisted of an offence of dealing with property suspected to be the proceeds of crime (which related to the discovery of $100,000 in cash), an offence of possessing a prohibited weapon, namely a pair of wooden nunchucks, an offence of unlawful possession of an article like a driver's licence to deceive, and offences of having and using a false instrument. 5 In respect of count 2, the respondent was sentenced to a total term of imprisonment of 2 years with a non-parole period of 12 months. That sentence was ordered to commence on 14 November 2008, the date upon which the respondent was taken into custody. In respect of count 1, and taking into account the matters on the Form 1 document, the respondent was sentenced to a total term of imprisonment of 3 years 4 months with a non-parole period of 18 months. That sentence was ordered to commence on 14 May 2009 and was thus accumulated by a period of six months upon the sentence imposed in respect of count 2. Accordingly, the overall effective sentence consists of a non-parole period of 2 years which is due to expire on 13 November 2010, and an overall total term of 3 years 10 months imprisonment which is due to expire on 13 September 2012. 6 An agreed statement of facts was tendered in the sentence proceedings. Its contents, with minor modifications, are set out below: On 14 November 2008 police executed a search warrant upon the premises in which the respondent was residing with his parents. A brief search of the premises was then conducted. In the first room (room 5), police found an amount of green vegetable matter resting on three steel poles. The three steel poles were acting as a form of drying rack for the green vegetable matter. The total cannabis leaf in this room was 2794 grams. Police located 246 small cannabis plants in a hydroponic garden/ nursery type set-up. The plants were being cultivated by bright fluoro lights which enhanced their growth. The plants were being watered by a complex irrigation system. There was also a large amount of growth chemicals and fertilisers located. As well as fertilizers police also located gas cylinder bottles and fans. During the search of the second room (room 6) a total of 8 mature cannabis plants as well as 8 small cannabis plants were found. The plants were being cultivated by fluoro lights and an irrigation watering system. Also found in room 6 was an A5 spiral notebook (which contained the fingerprints of the respondent) along with 15 blank growth charts. A completed growth chart was also located with handwriting upon it. The chart had all seven days of the week completed with the words 'bug stuff' 'Feed-boost', 'Boost', 'f spray', 'Liquid lead' and 'Flush from to turning-yellowing' appearing on it. This material appears to relate to the growing of cannabis. Various fans and electrical items were found and the fingerprint of the respondent was located on a red fan inside room 6. A quantity of cannabis leaf was also located in room 6 (274 grams). In the hallway area a portable 'blue way brand' air conditioner was found. In the third room searched (room 7) two irrigation silos were located. Each of the irrigation silos contained 300 pots. Inside the pots there was potting type mixture with a white substance. Most of the pots contained no plants. However a total of 12 cannabis small plants had sprouted. Running down the centre of each silo was a fluoro light. The silo was around 2 metres in height and around 1.5 metres in diameter. Both silos appear to be for commercial use by industrial plant growers. An electrical powered 'mulcher' was located in room 7. Around the mulcher were off cuts of shredded green vegetable matter. This device appeared to have been recently used to cut up dried green vegetable matter. A total of 2995g of cannabis leaf was located in this room. Also located in room 7 was a light shade. The fingerprint of the respondent was located on this item [and] on a fluorescent light attached to a power board in the kitchen area at the rear entry to the premises. The set up can only be described as well planned, sophisticated and professional. The entire plantation was indoors and not able to be seen from the outside. The total number of cannabis plants was 274. The plants were derived by enhanced indoor means. The smell of cannabis filled the entire premises and the surrounding area. The approximate street value of the cannabis plants is $564, 000. The upstairs area consisted of a living area with two separate rooms with sleeping quarters. Upon searching the room at the far end (room 8) police located seven credit/debit cards in the respondent's name. Also in the room was an amount of male clothing which suggested that the room was occupied by the respondent. In this room six mobile phones were recovered together with numerous mobile phone sim cards. A search of a built in wardrobe revealed four books (two of which contained the fingerprints of the respondent). All of the books were concerned with the growing of hydroponic cannabis. Two black spiral notebooks were recovered as well (one of which contained the fingerprints of the respondent). The handwriting in the exercise book appeared to represent notes and numbers logging growth. A pair of brown wooden numchucks (Japanese martial arts weapon) were found within room 8. (Form 1 offence) In a spare room (room 9) police located two separate deep freezers. A partial DNA profile recovered from swabs taken from the freezer on the east wall was found to match the DNA profile of the respondent. Inside both of the freezers a quantity of frozen green vegetable matter was found. The green vegetable matter was placed into 52 smaller (42cm x 30cm) plastic bags. The total weight of the cannabis leaf in these freezers was 25541.6 grams. Three sets of weighing scales and a 'Bachus' brand cash counter were recovered. A quantity of unused plastic resealable bags were also recovered (some of which contained the fingerprints of the respondent). A quantity of reflective silver material was found and seized. This type of material can be used in hydroponic cannabis gardens to reflect light. Inside another upstairs room (room 10) which is between the spare room (room 9) and the bathroom (room 11) there was a room containing a mattress and personal effects. This room appeared to be the master bedroom. A search of the upstairs bathroom (room 11) revealed a quantity of $100,000 of cash. The cash was hidden from view in the ceiling area (Form 1 offence). A money counter was located in room 8 and the fingerprint of the respondent was located upon it. In total 32957.9 grams of cannabis leaf was located at the premises. The cannabis leaf belonged to the respondent and he possessed it for the purposes of supply. A van was parked near to the premises. The owner of this vehicle advised police that the van was being used and driven at the time by the respondent. The vehicle was searched and found to contain fertiliser. The respondent was cautioned and placed under arrest. He was conveyed to Waverley Police Station where he declined to be interviewed. 7 Each of the respondent's parents pleaded guilty to allowing the premises to be used as drug premises and was released on a s 9 bond. 8 The offender gave evidence during the course of the sentence hearing. In light of that evidence, his Honour made the following findings about the cultivation offence: In this case there were 274 plants. Objectively that number is clearly above the minimum required to fall within the large commercial quantity but it is also not that far above that number. The evidence before me satisfies me that this was not a cultivation of 274 mature plants. A large number of the plants were in a variety of states of growth. In other words only a relatively few plants were mature and producing drug leaves. In my view, on any assessment objectively the offence could not be said to fall within the middle range of objective seriousness. Although the standard non-parole period has no direct application here given the offender's plea of guilty it remains a guide to the sort of penalty to be applied . As a result it is clear that the penalty imposed in this case must be one involving full-time custody that will be at least in terms of years. That penalty must be enhanced to take account of the matters on the Form 1. (emphasis added) 9 His Honour did not however accept the respondent's explanation for having the 32 kilograms of cannabis leaf in his possession. The respondent had claimed that it was unrelated to the cultivation matter and that he had, in effect, operated as a middleman who was merely holding the drug on behalf of a third party. Nor did his Honour accept his explanation for having the $100,000 in cash in his possession. In short, the account offered by the respondent was implausible and unsurprisingly, his Honour had little hesitation in rejecting it. 10 The respondent was born in September 1977 and was accordingly 31 years of age at the time that he committed these offences. A psychological report, prepared by Tim Watson-Munro, was tendered on his behalf. His formative years were unremarkable. He completed his HSC and was offered a place at university to undertake a course in Human Movement. As matters turned out, he deferred commencing the course and has never returned to it. In any event, he obtained work in the security industry and remained working in that capacity for a number of years. However in 2002 he was injured at work when he was stabbed with a syringe. As a consequence, the respondent had to take six months off work whilst he waited to see if he had been infected with a disease, such as HIV. Even though he was ultimately cleared of having contracted any such disease, he was no longer attracted to working in the security industry and commenced employment with a cleaning company. The respondent gave evidence that in the aftermath of the attack upon him, he had increased his use of cannabis, having been only an occasional user until that time. Indeed he maintained that by the time he committed the present offences, he had been consuming 2 grams a day. In 2005 the respondent was placed on a s10 bond for a period of 18 months for cultivating and possessing a prohibited plant, but had not otherwise attracted adverse attention from the authorities. The sentencing judge accepted that the respondent had managed, whilst in custody, to overcome his dependency upon cannabis, and that he intended upon his release from custody, to resume his university studies. 11 The most prominent feature of the respondent's subjective case was the fact that he had pleaded guilty to these offences in the Local Court and that he had also provided assistance to the authorities. That assistance concerned the involvement of other persons in very serious criminal activities that are quite unrelated to the present offences. The sentencing judge made the following observations about that aspect of the matter: ln short, the assistance provided is of a very high order. The police accept that it may well put the offender in some danger. It involves both past and future assistance. The fact that he has provided this assistance makes it clear that he has no intention of returning to criminal activity once released from custody. To my mind it makes it much easier to find that he has good prospects of rehabilitation in future. Had these offences gone to trial and the offender been convicted in my view a combined sentence of at least seven years of imprisonment would have been applied. Given the assistance provided by the offender I will allow a discount of forty-five percent from the sentence that might otherwise have been provided. I acknowledge that such a discount is unusually high. However, in my view the assistance here is of a very high order. I set 12.5 per cent of that discount as future assistance. I have been asked to find special circumstances. This is the first time in custody for the offender and due to the fact that he will certainly have to spend his time in strict custody, his incarceration will be more difficult for him. 12 The court was provided with the material concerning the assistance which the respondent provided to authorities. Although I share the sentencing judge's assessment that it is assistance "of a very high order", it will be necessary nonetheless to return to the question of the extent of the discount which was allowed by his Honour when considering the grounds of appeal. 13 The Crown relied upon the following grounds of appeal: GROUND 1: The discount given for assistance was too high. GROUND 2: His Honour fell into error in taking into account that the sentences would be served in strict custody. GROUND 3 : His Honour fell into error in double counting the conditions of custody in relation to the discount given for assistance and the finding of special circumstances. GROUND 4 : Insufficient consideration was given to the standard non parole period in relation to Count 1. GROUND 5 : The sentence is manifestly inadequate. 14 It is convenient to first consider Ground 4. As was observed earlier, the sentencing judge concluded that "the offence could not be said to fall within the middle range of objective seriousness". The Crown accepted that such a finding was open to the sentencing judge. Criticism was made however of the fact that his Honour did not then proceed to make any further assessment of how far below the middle of the range of objective seriousness, the offence lay. There is a considerable body of authority which supports the Crown's contention. For recent examples, see R v Hunter [2010] NSWCCA 54; R v Nicholson [2010] NSWCCA 80; R v Parkinson [2010] NSWCCA 89 and R v McEvoy [2010] NSWCCA 110. 15 The Crown properly recognised that issues such as the number of plants, as well as their state of maturity and overall condition were relevant sentencing considerations. Nevertheless, it was submitted that this was on any view of it, an offence of considerable objective gravity. Particular emphasis was placed upon the fact that the respondent was solely responsible for what was described as being a "well organised criminal enterprise". It was accordingly submitted that his role was critical to the success of the operation and that that was the decisive factor in determining the appropriate sentence. Even allowing for the fact that the respondent was a heavy user of the drug, I accept that this venture had all the hallmarks of an on-going criminal enterprise. It was no mere "backyard operation" in which the respondent performed a subsidiary role. Furthermore, the appropriate sentence also needed to take into account the matters on the Form 1 document. In my view, the Crown's characterisation of the offence as falling below, but not substantially below the middle of the range of objective seriousness, is entirely appropriate. 16 The Crown also accepted that the sentencing judge had to make due allowance not only for the fact that the offence fell below the middle of the range of objective seriousness but also for the respondent's favourable subjective features. Nevertheless, it was submitted that it was impossible to see how the non-parole period of 18 months which was imposed, could be reconciled with the requirement that the standard non-parole period of 10 years remains, as his Honour acknowledged, "as a guide to the sort of penalty to be imposed". A departure of that magnitude was, so it was submitted, demonstrative of error. In my view, the Crown's submissions should be accepted. It follows that Ground 4 has been established. 17 Allied to this submission, was a contention that each of the sentences was manifestly inadequate. As I have said, his Honour indicated that his starting-point of 7 years imprisonment was a "combined sentence" for both offences. It was submitted that the consequence of nominating such a starting point was to produce sentences, after the discount of 45% was afforded to the respondent for his plea of guilty and assistance to the authorities, which were manifestly inadequate. It was further submitted, pursuant to grounds 1-3, that the discount for assistance was itself too high. Finally, it was submitted that his Honour had failed to give effect to the statutory mandate contained in s 23(3) of the Crimes (Sentencing Procedure) Act 1999 which states that: [a] lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. 18 In support of the submission that the sentence which was imposed in respect of the cultivation offence was manifestly inadequate, the Crown referred to this court's decision in R v Tran [2010] NSWCCA 72. In that case the offender had pleaded guilty to cultivating 210 plants and was found to be the sole operator of the plantation. He migrated from Vietnam and had had difficulty adjusting to life in Australia. He suffered from depression and other physical ailments. He had a gambling habit and was a cannabis user and had a criminal record, including a prior conviction for cultivating 30 cannabis plants. That offender received a non-parole period of 5 years with a total term of imprisonment of 7 years 6 months imprisonment. The court reviewed a number of decisions concerning offences of a similar kind before concluding that the sentence was not manifestly excessive. Hislop J, with whom the other members of the court agreed, observed that: [t]he cases to which reference was made by senior counsel for the applicant are insufficient in number to establish a reliable sentencing range. However, the decisions in this Court in Bui, Nguyen and Phan establish that a sentence in the order of three years non parole period and a balance of term of two years prima facie would not be regarded as manifestly excessive in the case of an offender whose role was toward the lower end of the scale and where the number of plants was in the range of 200-300. [at para 20] 19 The respondent sought to derive some comfort from two of the sentences which were reviewed by Hislop J. Counsel nonetheless recognised that the sentences upon which reliance was placed were markedly lenient. Although I have derived some assistance from the observations made by Hislop J in Tran (supra), it remains for this court to determine the present appeal upon the particular facts of this case. 20 In my view, the starting point of 7 years which his Honour nominated for both offences, fell well short of what the objective gravity of the offences required. Although the focus has understandably been upon the cultivation offence given that a standard non-parole period applied to it, the supply offence was also an offence of considerable seriousness. The consequence is that the ultimate sentences which were imposed, even after allowing for an appropriate discount to be provided for the plea of guilty and assistance to the authorities, are manifestly inadequate. Accordingly, ground 5 is established. 21 In support of its contention that the discount which was awarded to the respondent for assistance was too generous, the Crown made particular criticism of the fact that his Honour had found that the respondent would be serving his sentence "in strict custody". That conclusion was arrived at notwithstanding the respondent's sworn evidence that at that stage he was not on protection. Furthermore, he gave evidence that he had declined to avail himself of that facility even though some of the persons about whom he had provided information were themselves in custody. The respondent did however say that if he was required to give evidence then he may be forced to seek protection. The court was informed that the occasion for the respondent to give evidence had still not arisen and that it was not clear when he would be required to do so. As matters presently stand, the court is simply not in a position to determine if, or indeed when the respondent will go into protection. A fortiori, the court is unable to determine what conditions might prevail should he do so. It follows that the sentencing judge has fallen into error: see RWB v R; R v RWB [2010] NSWCCA 147 [at paras 192-195]. In R v Sukkar (2006) 172 A Crim R 151, Howie J said: In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact. [at 154] 22 No argument was advanced on behalf of the respondent to suggest that the court should nonetheless decline, in the exercise of its discretion, to intervene should it conclude that the sentences were manifestly inadequate. 23 In re-sentencing I would allow the respondent a combined discount of 40% for his plea of guilty and assistance to the authorities. I would specify that of that discount, 10% should operate in respect of the respondent's offer to provide assistance in the future. As the sentencing judge did, I would order only a relatively modest degree of accumulation because of the common thread that linked the two offences. I would also maintain the finding of "special circumstances" and would do so, in particular, to enable the respondent to re-integrate into the community following what is his first custodial sentence. 24 I propose the following orders:
2 Quash the sentences imposed in the District Court.
3 In respect of count 2, the respondent is sentenced to a non-parole period of 2 years with a total term of 4 years imprisonment to date from 14 November 2008. The sentence will expire on 13 November 2012.
4 In respect of count 1, and taking into account the matters on the Form 1, the respondent is sentenced to a non-parole period of 3 years with a total term of 5 years and 6 months imprisonment to commence on 14 May 2009. The sentence will expire on 13 November 2014.
5 The respondent will be eligible for release on parole on 13 May 2012. **********
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R
LP
The appeal was allowed and the District Court sentences were quashed. For Count 2, LP was sentenced to a non-parole period of 2 years and a total term of 4 years, commencing 14 November 2008. For Count 1, with the Form 1 matters taken into account, he was sentenced to a non-parole period of 3 years and a total term of 5 years and 6 months, commencing 14 May 2009. The orders stated that the Count 2 sentence would expire on 13 November 2012, the Count 1 sentence on 13 November 2014, and LP would be eligible for parole on 13 May 2012.