REGINA v. GODDEN [2005] NSWCCA 160

CATCHWORDS: Sentencing - appeal against sentence - sentencing in cultivation cases - severity of sentence - whether sentence was unduly harsh - apparently excessive sentence - personal or subjective factors.

Drug (Misuse & Trafficking) Act 1985 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912

Summerville (CCA, unreported 9 September 1993) Westropp (CCA, unreported 14 April 1993) Daoulas (CCA, unreported 28 October 1993) Field (CCA, unreported 3 May 1996) Downie & Dandy (Victorian Court of Appeal, unreported 27 June 1997) CASES CITED: Puke (CCA, unreported 12 September 1997) Osenkowski (1982) 5 A. Crim. R. 394 Way (2004) 60 NSWLR 168 Clark (CCA, unreported 15 March 1990) Dopson (CCA, unreported 10 April 2003

REGINA v. PARTIES: GODDEN, Earl Robert

Crown: W. Dawe, QC. COUNSEL: App: M. Ramage, QC.

Crown: S. Kavanagh SOLICITORS: App: Fishburn Watson O'Brien

IN THE COURT OF CRIMINAL APPEAL 2004/3225

HUNT, AJA. GROVE, J. HALL, J.

FRIDAY 29 APRIL 2005 REGINA v. EARL ROBERT GODDEN Judgment 1 HUNT, AJA: I agree with Hall, J. 2 GROVE, J: I agree with Hall, J. 3 HALL, J: By application dated 28 June 2004, the applicant, Earl Robert Godden seeks the leave of the Court to appeal a sentence imposed upon him by his Honour Judge Freeman in the District Court sitting at Coffs Harbour on Thursday 10 June 2004. 4 On 2 February 2004, the applicant pleaded guilty to the following offence:- Cultivate a commercial quantity of a prohibited plant - 319 plants of cannabis: s.23(2) (Drug Misuse and Trafficking Act 1985) - maximum penalty 15 years imprisonment and/or fine of $385,000 (3,500 penalty units). 5 By amendment to the indictment, the offence charged was stated to have occurred between 13 October 2002 and 20 December 2002. 6 A further offence of possess prohibited drug (280 grams of cannabis leaf) was taken into account on a Form 1. 7 The sentence imposed by Judge Freeman was as follows:- Imprisonment for a total sentence of three years, two months commencing on 10 June 2004 and expiring on 9 August 2007. Non-parole period of two years expiring on 9 June 2006. Additional term of one year, two months commencing on 10 June 2006 and expiring on 9 August 2007. 8 His Honour made a finding of special circumstances.

Circumstances 9 In order to understand the issues raised on the appeal, it is convenient first to give a brief account of the background circumstances that can fairly be regarded as established and not in dispute, and otherwise a brief outline of relevant evidence. 10 The applicant's date of birth was 9 January 1961. He was accordingly 43 years of age as at the date of sentence. At the material time he occupied premises at 280B Upper Orara Road, Upper Orara. 11 On 19 December 2002, police executed a search warrant at the premises and found a number of different areas under cultivation and a total of 319 cannabis plants ranging in height from seedlings of 20 centimetres to plants of 150 centimetres. In a partitioned area of a shed or garage there were two separate hydroponic systems used to grow cannabis plants at different stages of maturity. This area had some 39 cannabis plants and 24 seedlings ranging in height from under 30 centimetres to 1.5 metres together with a quantity of loose marijuana (taken into account on the Form 1). Within the area in the shed or garage, was a hydroponic incubator complete with heating pads. 12 The sentencing judge in his remarks on sentence referred to an elaborate series of hydroponic cultivation areas, which included an incubator and heating pad containing seedlings. There was a further concealed area in which 10 small plants had been meticulously arranged and nurtured in trays, whilst another concealed area housed more mature plants. The sentencing judge commented upon the care and attention that had obviously been lavished upon the plants, so much that it could be described as "a highly professional cultivation". Whilst there are no doubt different levels of professionalism or sophistication in such matters, I do not consider his Honour's description to be is an inapposite one. 13 The applicant gave evidence before his Honour on 1 June 2004 that he had not intended to sell or distribute any of the plant material that he had been growing. The sentencing judge rejected his evidence in this respect. It is unnecessary to discuss in any detail the basis for his Honour doing so. It is sufficient to say that the evidence clearly entitled his Honour to arrive at the conclusion that he did. 14 During the currency of the offence charged, the applicant had been on a s.9 bond to be of good behaviour for 12 months. This bond was imposed in the latter part of the period the subject of the charge, namely, on 16 December 2002 for an offence of occasioning actual bodily harm. The sentencing judge referred to a history of marital discord that had existed between the applicant and his former wife. In addition, following his arrest and during the currency of his bail, the applicant was convicted for contravening an apprehended domestic violence order at Coffs Harbour Local Court on 25 March 2003. 15 On 9 December 2003, he was sentenced for a breach of bond (the breach of the Apprehended Domestic Violence Order placed him in breach of the bond that had been imposed on 16 December 2002) as well as a number of firearm offences for which he was fined.

The grounds of the application 16 The applicant relied upon four grounds as follows:- Ground One: The sentence was unduly harsh and severe. 17 Senior counsel for the applicant, Mr. M.C. Ramage, QC., submitted that the sentence imposed by Freeman, DCJ. was unduly harsh. Taking into account the discount of 20% for the plea, which his Honour allowed, it was accepted in this application that the sentencing judge had effectively commenced with a sentence of almost four years. 18 The submissions on this ground focused on the citation of sentencing statistics and case references (22 cases in all). These cases were said to illustrate the approach that various courts had taken when imposing sentences in cultivation offences including, in particular, those where there were a greater quantities of plants involved than in this case. 19 I will return to the question of sentencing statistics and deal firstly with the case references provided to the Court. The Crown's submission was that these cases illustrate that full-time custody has consistently been imposed for offences of cultivation. The Crown's written submissions very usefully summarised the facts and the outcome in each of the 22 cases cited by the applicant in his written submissions. I have, in particular, had regard to those cases to which attention was drawn by senior counsel for the applicant during his oral submissions. 20 The sentence of three years and two months with a non-parole period of two years imposed on the applicant for the offence charged under s.23(2) of the Drug (Misuse and Trafficking) Act 1985, having regard to the particular facts of the case, must, in my opinion, be regarded as a very substantial one. The question, however, is whether, having regard to the remarks on sentence and the facts of the case, it can be said that the sentence is manifestly excessive. In considering that question I have had regard, firstly, to decisions which provide a guide to sentencing in similar matters and, secondly, to the remarks on sentence having regard to the facts established by the evidence. Before doing so, I will refer briefly to the subject of sentencing statistics.

Sentencing Statistics 21 Both the applicant and Crown submissions address the question of statistics. Those relied upon by the applicant in relation to an offence of cultivation of not less than a commercial quantity of cannabis, establish that only 41% of offenders received full-time custodial sentences and 23% received periodic detention. The head sentences are said to range from six months to five years with 72% receiving sentences of three years or less. Only eight percent received a sentence in excess of four years. Non-parole periods ranged from six months to three years, six months with 72% receiving 18 months or less. On pleas of guilty, only 36% went to full-time imprisonment and 25% received periodic detention. The range of head sentences was from six months to five years with 67% receiving sentences of three years or less. The non-parole periods imposed ranged from six months to three and a half years with 72% getting 18 months or less.

Sentencing in cultivation cases 22 The Crown submissions make two general points in relation to the cases cited by the applicant:-

(i) The summary provided in the Crown submissions illustrate distinguishing features of each case and those cases have only limited value, as they reflect the merits of each case.

(ii) This Court will have regard to the proposition enunciated by Wood, J. (as he then was) in Regina v. Summerville (unreported, CCA, 9 September 1993, at p.4) in which his Honour observed that it is always difficult to discern a clear sentencing pattern from a mere review of sentencing outcomes, since there are inevitably substantial differences in objective and subjective circumstances between each case.

However, Wood, J. in Summerville stated that the decisions of this Court concerning sentencing appeals cited in that case not merely provided assistance, but his Honour by reference to them was able to reach the view that the sentence there in question was excessive to a point where it was outside the legitimate exercise of the sentencing discretion. Similarly, the prior decisions of this Court concerning sentencing appeals in relation to cultivation of cannabis in a quantity not less than the commercial quantity provide guidance in determining whether or not in this case there was a legitimate exercise of sentencing discretion. 23 I have isolated from the sentence decisions in question those which appear to have the greatest relevance. They are:-

• Regina v. Westropp (CCA, unreported 14 April 1993) - a sentence of three years imprisonment with a minimum term of 12 months for cultivating a commercial quantity. Dismissing the sentence appeal, Sully, J. stated that the sentence was well within range. Handley, JA. held that the applicant had received quite a lenient sentence. The maximum penalty was 15 years imprisonment. There is no reference in the judgment as to the number of cannabis plants.

• Regina v. Daoulas (CCA, unreported 28 October 1993) - a charge pursuant to s.23(2) of the Drug (Misuse & Trafficking) Act 1985. The sentence imposed by his Honour Judge Court, QC. was a minimum term of three years and six months imprisonment with an additional term of 14 months . The plantation comprised 861 cannabis plants with a potential street value of $1.6 million. It was a purely commercial enterprise. The offender participated with another, the co-offender being the principal participant in the illegal enterprise. The applicant's poverty had been caused by his loss of employment following his retrenchment. The appeal was upheld and a sentence of imprisonment substituted for a minimum term of two years and six months (not two years as set out in the Crown submissions) with an additional term of 10 months .

• Regina v. Field (CCA, unreported 3 May 1996) - the first charge related to cultivation of 395 cannabis plants whilst the second related to the cultivation of cannabis at another site involving the cultivation of 219 plants. In considering the Crown appeal in the matter, Gleeson, CJ. observed that the respondent was the subject of a good behaviour bond in respect of an offence of stealing and that constituted an aggravating feature. The sentencing judge had taken a further offence of cultivating 48 cannabis plants into account under the Criminal Procedure Act . At the time of that further offence the respondent was on bail in respect of the first two offence, which was a further and serious aggravating feature of the case. The respondent had been sentenced in respect of each of the two counts to concurrent sentences involving a minimum term of three months and an additional term of 20 months. Whilst the sentencing judge (Moore, DCJ.) considered that the respondent was an amateur, Gleeson, CJ. stated that the evidence had given the impression that he was "an enthusiastic amateur" . The Crown made good its challenge to the finding as to the respondent's intention in respect of the cultivations, but Gleeson, CJ. attached more significance to the objective number of plants that were produced in addition to evidence as to their condition observing that the quantity involved provided the respondent with the opportunity to deal with the cannabis if and when the time arrived as he chose. There was strong character evidence taken into account. The appeal was allowed and a sentence was substituted by way of concurrent terms of imprisonment involving a minimum term of two years with an additional term of eight months cumulative upon the minimum term.

• In Regina v. Puke (CCA, unreported 12 September 1997), the applicant appealed successfully in respect of a sentence comprising a minimum term of 18 months and an additional term of 18 months for cultivating 405 cannabis plants whilst taking into account the deemed supply of 603.4 grams of cannabis leaf in his possession. It was the applicant's first and only venture into drugs and this had come about because of financial difficulties. He was aged 45 years and had an unblemished record and was frank in his admissions to police and co-operated fully with them. He pleaded guilty at an early stage with deep expression and manifestation of remorse. There was strong evidence as to the applicant's good reputation having been held in high regard in his community. Smart, J. (Sully, J. agreeing) substituted a sentence of a minimum term of 12 months with an additional term of two years . 24 I am of the opinion that the sentence imposed by Freeman, DCJ. of three years and two months with a minimum term of two years is sufficiently out of line with sentences imposed in similar cases to establish, at least on first impression, that the sentence was excessive. However, in order to arrive at an ultimate conclusion on the question of the severity of sentence it is necessary to have regard to the particular facts established by the evidence before the sentencing judge and then to refer to and evaluate the remarks on sentence. One purpose in doing so is to identify whether there was a particular matter or matters that could explain a sentence which is, at least prima facie, excessive. 25 The applicant, as earlier noted, was, at the date of sentence, 43 years of age and he had a record involving minor convictions. I have earlier referred to the fact that the applicant was on a s.9 bond to be of good behaviour for 12 months during the currency of the offence with which he was charged and subsequently he was held in breach of bond on 9 December 2003. 26 The evidence established the following subjective or personal circumstances:-

• The applicant had obtained employment on a casual basis with Nestle in Coffs Harbour in July 2003. His full-time hours of employment were subsequently reduced to three days or 15 hours or 20 hours per week following a dispute with his former wife who, he claimed, absconded to Queensland with the two children. He was still in the employ of Nestle as at the date of sentence.

• The applicant had apparently been considered by the Local Court when determining the custody application, sufficiently responsible to be entrusted with the care and welfare of the two children, Rhiannon Godden born 11 April 1997, and Cody Godden born 25 March 2002. The children had been placed in his lawful custody at some earlier time in 2003 and formal orders were made to this effect on 1 December 2003. Arrangements were made for the mother to have access in accordance with the Court's orders.

• There was evidence from Rhiannon's classroom teacher that, having known the applicant for some 16 months, he had been an active and supportive parent-participant in school activities and had undertaken some volunteer work in relation to school activities.

• The evidence established that the applicant had smoked marijuana for 20 years but the last time he had done so was 12 months before (that is approximately June 2003). He stated that he gave up using the drug when he started full-time employment with Nestle. He was confident he would maintain his abstinence.

• The applicant expressed extreme remorse in respect of his offence and had a realisation as to the impact that it had had upon himself and his family. 27 It must be said that not each of these factors carries equal weight and, indeed, by themselves some of them cannot be regarded as having a high level of significance. In combination, however, they do provide support for the proposition that the applicant has taken worthwhile steps to become in specific respects a responsible member of the community and to put behind him his drug-taking habit. 28 Before analysing the sentencing judge's remarks, it is clear that profit-making activity from growing and selling illegal crops and drugs is an offence, the nature of which will usually attract a term of imprisonment: see the very strong statement in Regina v. Downie & Dandy (Victorian Court of Appeal, unreported, 27 June 1997) per Callaway, JA. (with whom the other members of the court agreed) cited in Regina v. Puke (CCA, unreported 12 September 1997) per Smart, AJ., with Sully, J. expressly agreeing. 29 I turn to the remarks on sentence. They contain a detailed account of the objective facts concerning the offence culminating in the sentencing judge's description of the plants, equipment and modification of the premises as noted in paragraph 12 as evidencing "a highly professional cultivation". The sentencing judge then dealt with the question as to the applicant's claims as to the proposed use of the plants, ultimately rejecting his account of them being only for his own requirement as "untenable". 30 The next issue considered in the remarks on sentence was whether the applicant's full-time custody of the two children of the marriage constituted "exceptional circumstances" on the question as to whether or not a sentence other than full-time custody however was appropriate. The reasons on sentence at some length (pp.3 to 5) were essentially directed to the issue of exceptional circumstances, which was decided adversely to the applicant. Towards the ends of the reasons given (at p.5), the sentencing judge then referred in fairly brief terms to:-

• the applicant's attachment to the children and the fact that his former wife did not propose to bring the children to visit him;

• the applicant's efforts at rehabilitation to end decades of cannabis use. 31 It was the last mentioned matter which appears to have led his Honour to the conclusion that a departure from the sentencing formula imposed by the legislation was appropriate in terms of special circumstances. One complaint made in the applicant's submissions (ground 5) is that the sentencing judge failed to make any positive finding in the applicant's favour as to his rehabilitation, merely noting "…the prisoner's efforts of rehabilitation include his decision to end decades of cannabis use". It was submitted that it was appropriate for his Honour to have regard to the prospects of the "cross roads" as referred to in the judgment of the Chief Justice of South Australia in Regina v. Osenkowski (1982) 5 A. Crim. R. 394 and that the applicant did not have a bad record and that there must be a risk that imprisonment would destroy reform. 32 In Regina v. Way (2004) 60 NSWLR 168, Spigelman, CJ. in particular at [103] to [107] when addressing the factors to be taken into account when sentencing referred to the provisions in the Crimes (Sentencing Procedure) Act 1999 which indicated that existing statutory and common law factors may still be properly taken into account in determining a sentence, even though they are not listed in s.21A(2) or (3). The Chief Justice went on to provide examples:- "… they may include, for example, hardship to the family where that qualifies as exceptional hardship ( Regina v. T (NSWCCA, 15 March 1990)), or the fact that the serving of the sentence will be unduly onerous by reason of illness ( Regina v. L (NSWCAA, 17 June 1996), or by reason of the fact that it will be served on strict protection: Regina v. Totten [2003] NSWCCA 207." 33 Before the effect of personal factors on the sentencing discretion are considered, the primary question is whether the apparently excessive sentence in this case is explicable by the presence of a matter or matters of such gravity as to warrant the sentence imposed. The additional question then is whether or not the sentencing judge failed to give proper weight to personal or subjective factors which together with the answer to the first question might also explain the apparently excessive sentence. 34 An examination of the reasons for sentence does not, I believe, reveal any particular or additional factor which would justify a sentence of the severity imposed. Beyond the number of plants involved, the sophistication of the cultivation of the cannabis plants and the intended use for them, I do not believe that there is any other additional matter of such seriousness as to warrant the level of the sentence in this case. Whilst there is some support for the proposition that there was inadequate consideration of the evidence relevant to rehabilitation, I do not consider it is necessary to endeavour to assess the extent to which this may have been responsible for a sentence of such severity. 35 When the sentencing decisions to which I earlier referred are taken into account along with the content of the remarks on sentence, I am of the opinion that a conclusion that the sentence imposed was manifestly excessive is inescapable. Ground Two: Failing to consider alternatives to service of a custodial sentence. 36 On the hearing of this application, the court raised a question as to the accuracy of a statement made by the sentencing judge in his remarks on sentence. It appeared, having regard to oral submissions made by counsel for the applicant during the sentencing hearing, that the statement may have been incorrect. The sentencing judge stated:- " It is common ground between counsel, in line with the authorities such as Regina v. Clark (CCA, 15 March 1990) and Regina v. Dopson (CCA, unreported 10 April 2003), that a sentence of full-time custody would be required for such a substantial involvement in cultivation unless there were exceptional circumstances." (see p.3 of the remarks on sentence, 10 June 2004). (Emphasis added) 37 It was contended by the applicant that this statement was erroneous for there was no common ground as to the need for a full-time custodial sentence. The Crown conceded that the trial judge's statement was in fact "overstatement". 38 The references to Regina v. Clark (CCA, unreported 15 March 1990) and Regina v. Dopson (CCA, unreported 10 April 2003) do not appear to be cases of any assistance. Clark (supra) involved the imposition of gaol sentences for trafficking (two charges of supplying amphetamine contrary to s.25 of the Drug Misuse and Trafficking Act 1985) and did not involve a cultivation offence. Dopson (supra) was a case in which the respondent pleaded guilty to a single count on indictment charging him with the cultivation of a prohibited plant, cannabis, in an amount no less than the commercial quantity (501 plants). The appeal by the Director of Public Prosecutions pursuant to s.5D of the Criminal Appeal Act 1912 against a sentence of two years imprisonment imposed by Graham, DCJ., the sentence being wholly suspended. On appeal, Bell, J. (with whom Hidden and Buddin, JJ. agreed) did not consider that the decision to suspend the execution of the sentence produced a result so manifestly disproportionate to the circumstances of the offence. The appeal was dismissed. 39 Based on the premise that a term of full-time custody was a matter of common understanding and that the decisions in Clark (supra) and Dopson (supra) were "authorities" , the sentencing judge erroneously approached the matter on the basis that a sentence of full-time custody was required as a matter of agreement supported by reference to authorities that were not relevant to the point. However, the question is whether or not that provides a sufficient base to warrant intervention by this Court. Given his Honour's finding that the cultivation of cannabis plants was not intended solely for the applicant's own consumption, a term of imprisonment was clearly the appropriate sentencing option. Accordingly, the erroneous statement by the judge as to the common understanding is not one which undermined or relevantly affected the sentencing process. Ground Three: Over-estimation of criminality Ground Four: Failure to take into account remorse Ground Five: Failure to take into account successful rehabilitation. 40 I have indicated in relation to the first ground that the trial judge's finding that the cultivation was a highly professional one was open on the evidence. I do not consider that there is any substance to ground 3. 41 As to grounds 4 and 5, these are incorporated in the discussion on personal or subjective factors in relation to ground 1, and accordingly do not need to be separately considered. 42 I am of the opinion that the sentence should be set aside and the applicant should be re-sentenced. I am in agreement with the sentencing judge's finding of special circumstances. I take into account the offence on the Form 1, being possession of 28 grams of cannabis leaf. I propose a term of imprisonment of a total sentence of two years and two months commencing on 10 June 2004 and expiring on 9 August 2006 with a non-parole period of one year and three months expiring on 9 September 2005. 43 Accordingly I propose the following orders:- 1. Application for leave to appeal against sentence granted. 2. Appeal allowed and sentence imposed in the District Court quashed. 3. In lieu thereof the applicant be sentenced, taking into account the offence on the Form 1, to imprisonment for two years and two months commencing on 10 June 2004 and expiring on 9 August 2006 with a non-parole period of one year and three months commencing on 10 June 2004 and expiring on 9 September 2005. 4. The appellant ordered released to parole on 9 September 2005. **********

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