REGINA v SALDANERI [2001] NSWCCA 480 | Case summary

JUDGMENT 1 SPIGELMAN CJ: The Applicant pleaded guilty to one count of supplying a prohibited drug, namely cannabis, contrary to ss25(1) and 29 of the Drug Misuse and Trafficking Act 1985. He was sentenced by his Honour Judge Luland QC in the Campbelltown District Court on 23 February 2001. He asked that another offence of cultivating a prohibited plant be taken into account on a Form 1. His Honour sentenced the Applicant to imprisonment for twenty months to commence on 23 February 2001 and to expire on 22 October 2002. His Honour fixed a non-parole period of fifteen months to expire on 26 May 2002. 2 His Honour did not make a direction that the Applicant be released at the expiration of the non-parole period. It was common ground that he was required to do so pursuant to s50(1) of the Crimes (Sentencing Procedure) Act 1999. Accordingly it will be necessary for this Court to vary the trial judge's orders by making a direction in accordance with that section. 3 On 26 November 1999 police attended the premises of the Applicant at Fairfield. Those premises were divided into three flats in one of which he resided with his family. When the police entered the other flats they found a significant operation of cultivating cannabis. In one flat they found a room divided into three smaller areas each containing artificial lighting, a fan and a power system as well as watering systems and a number of pots containing cannabis plants. In the second flat the room was also divided into three separate areas. Again there were pots and separate seedling boxes under artificial lighting. In the kitchen there were a number of containers of dried cannabis leaf. There were indications that growing had been in progress since about May 1999. There was also found paraphernalia often found in connection with drug supply, including two sets of scales. In total 169 plants were found by police with an average height of about one metre. In addition there was a total of 5,017.5 grams of cannabis leaf. 4 Reference was made to R v Thomson and Houlton (2000) 49 NSWLR 383 which held that the utilitarian value of a guilty plea would be in the range of ten to twenty-five percent. His Honour indicated the appropriate sentence was one of two years imprisonment, from which he deducted four months for the plea, that is sixteen percent. In his remarks on sentence his Honour said: " … I have had regard to his plea of guilty which, although it did not come at the first reasonable opportunity, I am prepared to accept came at an earlier stage of proceedings which had the utilitarian benefit of the Crown not having to proceed to a trial." 5 As I indicated in my judgment in Thomson and Houlton at [153], the determination of where within the range a discount should fall, is in the discretion of the sentencing judge. In this case, the fact that the plea was not at the earliest opportunity indicated that a percentage at the top of the range was not appropriate. In Thomson and Houlton at [154] I referred to two findings which would "generally affect the appropriate level of discount". One was the timing of the plea. The other is not often referred to in appeals to this Court. It should not be ignored. I indicated that the difficulty of assembling evidence and the length and complexity of the trial would increase the utilitarian value of the plea. The circumstances in this case were not particularly complex. Nor was a trial likely to be of any great length. 6 In these circumstances a discount of sixteen percent was well within his Honour's discretion. This ground of appeal should be rejected. 7 It was also submitted that his Honour failed to give "any effective weight to the Applicant's subjective features". This submission was based on the particular structure of his Honour's ex tempore reasons. 8 His Honour referred to the objective circumstances of the case, specifically the quantity of drugs involved. His Honour then suggested a period of two years imprisonment and identified the discount for the plea. His Honour then referred to hardship to the family and indicated that that hardship, in the circumstances, would not justify taking a different course than the imposition of a full time custodial sentence of two years as discounted for the plea. 9 The submission is that this reference, at one part of his Honour's reasons, represented the whole of his Honour's consideration of subjective features. Indeed, in the written submissions the structure of this part of the reasons was referred to as an "equation". That is not, in my opinion, a correct understanding of his Honour's reasons. 10 His Honour had set out, over more than two pages, the whole of the subjective circumstances put before the Court, before making reference to the subjective circumstances of the offender in the passage upon which reliance is placed. In doing so his Honour referred to a number of different aspects of the Applicant's personal history and current situation. His Honour specifically said: "I have had regard to all of the subjective factors that have been spelled out in the pre-sentence report and in addition there was tendered on his behalf a report from a psychologist … " His Honour proceeded to summarise the effect of that report. 11 His Honour gave full consideration to the subjective features in a passage of his reasons prior to his Honour arriving at the starting point of two years. 12 The Applicant also submitted that his Honour failed to determine whether to suspend the sentence pursuant to s12(1) of the Crimes (Sentencing Procedure) Act 1999. Section 12(1) empowers a Court that imposes a sentence of imprisonment of not more than two years to make an order suspending the sentence. The Applicant referred to the decision in R v Blackman and Walters [2001] NSWCCA 121, in which s12(1)(a) was described as involving a two stage approach, first identifying that a term of imprisonment was called for and then determining that the term should be suspended. In that case, the Court referred to R v Dinsdale (2000) 202 CLR 321 per Kirby J and R v JCE [2000] NSWCCA 498. 13 It was submitted that in the present case the second step was not separately taken. That may be so. Indeed, that step was not taken at all. His Honour did not suspend the sentence. He gave express reasons for not doing so. 14 The position under the New South Wales legislation is quite different from that which was considered by the High Court in Dinsdale. The West Australian legislation there under consideration required a court not to use a sentencing option unless it was satisfied that it was not appropriate to use any option listed before that option in the structure of the legislation. (See for example at par [11] per Gleeson CJ and Hayne J.) In this State, s5(1) merely provides that a court should not impose a sentence of imprisonment unless it is satisfied that no other sentence is appropriate. 15 In the present case his Honour gave express consideration to the fact that only a sentence of full time custody was appropriate. His Honour said: "Those who do engage in the supply of drugs must expect when they are caught to be dealt with by courts seriously." 16 His Honour referred to authorities in this Court to the effect "… it should be only in exceptional cases that persons substantially involved in the supply of drugs be sentenced in any way other than full time custody." 17 His Honour went on to find that the involvement of the Applicant was "substantial" and concluded: "The only appropriate manner in which I can deal with this, given the objective seriousness, is by way of imposing a full time custodial sentence." My Byrne SC, who appeared for the Applicant, submitted that the authorities to which his Honour referred preceded the reintroduction of suspended sentences by s12 of the Act. Nevertheless, counsel appearing at trial had emphasised the option of suspension. His Honour plainly intended his remarks to deal with this submission by rejecting it. It was open to his Honour to do so. 18 His Honour gave express reasons for his decision to choose the particular sentencing option which his Honour chose. Nothing more was required of him (see JCE at [19]). This ground of appeal should be rejected. 19 The final submission was that the sentencing judge erred in failing to find special circumstances. It was submitted that the Applicant's potential for rehabilitation, the significance of the early plea and the fact that imprisonment will be particularly burdensome upon the Applicant due to his family situation, constituted such circumstances. The issue of the proper construction of "special circumstances" for the purpose of imposing a lower non-parole period, will be considered in this Court by a bench of five later this week. I am content in the present case to proceed on the basis that all of the factors identified by counsel for the Appellant were capable of constituting special circumstances, although all were taken into account by his Honour in determining the head sentence. 20 I agree with the reasoning of Howie J in R v Keong [2001] NSWCCA 416 at [15] that the finding of special circumstances is in part a finding of fact. This Court should be very slow to review such a finding. 21 The matters now relied upon by the Applicant were fully before his Honour. His Honour made reference to these matters when outlining the circumstances of the Applicant. In my view his Honour was entitled to conclude that the matters did not involve special circumstances which justified a lower non-parole period. His Honour had taken the matters into account in fixing the head sentence. In my opinion, no error appears in his Honour's reasoning in this regard. 22 The Court should make the following orders: 1 Leave to appeal against sentence granted.

REGINA v SALDANERI

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Cases Cited (5)

Cited By (6)