Stock v R [2011] NSWCCA 49 | Case summary

Ground 1 - insufficient weight given to remorse 16In written submissions the applicant complained that in his remarks, Black DCJ made no reference to the account taken of his contrition and remorse, matters which a sentencing judge was bound to consider. 17The applicant's plea, his frank admissions in the agreed statement, the profound remorse noted in the psychologist's report in evidence and the contrition and remorse evidenced by his settlement of related civil proceedings brought by the New South Wales Crime Commission under the Confiscation of Proceeds of Crime Act 1989, were all relevant to remorse and ought, it was argued, to have resulted in a lesser sentence than that imposed. While it was accepted that foregoing ill gotten gains could never mitigate sentence, it was submitted that regard had to be paid to assistance to authorities in resolving forfeiture proceedings, when that was consistent with demonstrated remorse. 18It was also argued that while the psychologist's report as to remorse was taken into account in relation to the question of rehabilitation, that was a different mitigating matter to the question of remorse, which had to be considered separately. It followed that his Honour erred in not taking remorse into account in the sentence imposed. 19In oral submissions it was also argued that there was a tension in the authorities as to the proper approach to be taken in a case where co-operation had been given in civil forfeiture proceedings, which should be resolved in this case. It was submitted that the Court should clarify that such co-operation should be taken into account when determining sentence. Public policy factors supported such an approach being taken. They included the benefit flowing to authorities who take such civil proceedings and to the courts who hear such cases. Defendants should also know at the earliest opportunity, that co-operation in civil forfeiture proceedings will be taken into account on sentencing. 20The Crown's case was that error of the kind necessary to permit appellate intervention in the sentencing judges' discretion, that is a failure to exercise the discretion, could not be established (see Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 330). In the sentencing proceedings it had not been submitted that co-operation in the civil proceedings should be accepted as reflecting the applicant's remorse. There was a further difficulty in that the submissions which were advanced as to what had transpired in those proceedings, had no evidential basis. 21It was also submitted that the psychologist's report as to remorse was arguably consistent with regret at the position in which the applicant found himself, rather than true remorse. The Crown challenged the weight which could be placed on that report, submitting that apart from the bare plea, there was no indication from the applicant himself as to remorse. The onus fell on him to establish that mitigating factor (see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270). 22What his Honour said as to mitigating matters which he took into account in determining the sentence was: "Now the next aspect to look at is - well there are two aspects, first of all, are there special circumstances here? If there are not, the non-parole period would be one of six years and nine months. If there are, that can be reduced. The other factor to look at is the impact of count 2 and I think it is sufficient to say that I accede to Mr Bassett's submission that this is part of the big picture which is covered by the gravity of count 1 and although it calls for its own individual sentence, there is no call here for accumulating in any way at all and it will be appropriate to impose a fixed term concurrent with the non-parole period for the count 1 offence. The factors upon which it is said that special circumstances could apply to vary the normal ratio are the report of Ms Robilliard in so far as it relates to the offender in person and his general background. There are some references which I think are helpful and the various submissions of Mr Bassett. In my view the significant thing here is first of all he is comparatively young, this is his first sentence of any significance. There are, I am satisfied, significant and very high prospects of rehabilitation. There are other things that have happened as a result of this. I refer to them but I have to refer to them with some caution because it is my view I cannot give too much weight to them. The Crime Commission becomes involved in these situations and imposes financial penalties, it is important that the public know that, significant financial loss has resulted. As yet there is no clear authority from the Court of Criminal Appeal that that is appropriate to be taken into account because it arises under separate and specific legislation. Perhaps one day there will be something authoritative about it but I make it clear I am referring to it in that way just so that everybody knows so that it is known that I have not ignored it but I do not think I can give it any significant weight but at the end of the day that is not going to prejudice the offender. Now the other aspects, it has disrupted his personal life, I can understand that and he does too. He was obviously - had made his choice for his future wife and it is a matter of great regret to him that that all has fallen away. It is quite understandable from her point of view and he acknowledges that but I think that is a matter which I can pay some attention to and I note the constructive and sensible approach he has taken as far as revoking his own bail and identifying targets that he has in mind to occupy himself with while in custody. So for all those reasons I am satisfied that special circumstances do apply and therefore that the non-parole period, and I to some extent bear in mind appropriate principles of parity with the other offenders, therefore the non-parole period which I impose is one of five years imprisonment. So on count 1 there will be a sentence of nine years commencing on 31 December 2008 and expiring on 30 December 2017. The non-parole period of five years will commence on 31 December 2008 and expire on 30 December 2013. In relation to count 2 there will be a sentence of twelve months imprisonment, a fixed term, commencing on 31 December 2008 and expiring on 30 December 2009. I take into account the Form 1 in relation to count 1 and I think that is all I need to say. 23From these remarks it is apparent that while not expressly referring to remorse, his Honour accepted that remorse had been established. That conclusion was plainly reflected in the sentence imposed. 24In the written submissions advanced for the applicant on sentencing, under the heading 'mitigating factors' the matters identified were good character, as attested by references in evidence; the motivation for the offence being the desire to repay a debt to his uncle, as evidenced by the psychiatrist's report; and various matters in that report establishing that he had good prospects of rehabilitation. His plea, his record, his subjective features, assistance to authority and the nature of his imprisonment were also all dealt with. 25Under the heading 'special circumstances' the submission made was that the non-parole period should be reduced, for the following special circumstances: " Special Circumstances 30. Section 44 of the Crimes (Sentencing Procedure) Act 1999 requires that the proportion of the total sentence served on parole must not exceed one third of the non-parole period unless special circumstances apply. 31. In relation to Mr Stock, the court should consider the following special circumstances: a. at his age a long custodial sentence will impact on his ability to effectively reengage in the community on release b. he regrets his offence and has shown remorse and shows good prospects of rehabilitation c. his criminality was partly motivated by a strong emotional connection to his uncle, Nathan Stock d. as a result of the criminality, Mr Stock has lost assets including his home he(sic) where the criminality took place. Purchased in 2005, it was valued at $800,000 prior to his arrest but sold at the(sic) (Robilliard report p 5.8) 32. The defendant does not presume to inform the court as to what should be established by the court for a non-parole period based on these special circumstances. However, the defendant asks the court to utilise its discretion to reduce the period. 33. If the court is not minded to accept that the offence lies in the low end of the mid-range as submitted, the defendant asks the court to apply the special considerations in establishing any non-parole period for whatever range it finds against the defendant, and to also apply the full 25% discount to that finding." 26In oral submissions it was put to his Honour that: "Your Honour in relation to special circumstances, this matter has had a devastating effect on Mr Stock in relation to his own personal assets because of certain properties that would have to be sold throughout the proceeding(sic) in what has been a down market at the time and certainly the property that was his home where the activities were taking place was sold at a significantly reduced amount at an auction to what it had been valued at prior to his arrest. Your Honour I don't think I need to go into those matters there any further, we've asked to - and also the prosecutor's mentioned the indication for the backdating and crediting of time already served. Perhaps one last point I should make and it's in the written submissions your Honour is that as soon as Mr Stock did plead, enter his plea in relation to the charges, he did seek himself to revoke his bail and go back inside so that he could confront what he knew would become a custodial sentence at some point. Your Honour unless you have questions to ask me based on those written submissions, I've nothing further to say orally." 27It follows that the conclusion that his Honour did not take the evidence before him as to remorse into account in determining sentence is not available. What weight he gave to that evidence was a matter for him (see R v Baker [2000] NSWCCA 85 at [11]). His Honour's conclusion that not much weight could be given to co-operation in the civil proceedings, reflected the fact that there was no evidence upon which any conclusions could be reached about those proceedings, or the nature of the co-operation provided. All that was known was what was put by way of the above submission. In that context I cannot see that his Honour erred. On appeal it was submitted that: "We submit that the Sentencing Act provides that the Court can proceed without formal procedures of evidence. I think that is still the case with the Sentencing Act, and it proceeded on an informal basis which was common ground between the parties. It is for that reason I have filed in Court the actual Court orders which form part of the Supreme Court file. There was a summons, a proceedings and a settlement. The settlement was by consent without conditions, so I cannot come forward and say he has handed over money in excess of what his crime was. That is not available to me. What I am saying is he genuinely did resolve these proceedings and resolve expensive and lengthy litigation." 28Even this material was not put before his Honour. 29It was also argued that there was a tension reflected in various authorities, flowing from the view, on the one hand, that co-operation in civil forfeiture proceedings could be taken into account on sentencing and on the other, that it was not available. 30In R v Murray (unreported, Court of Criminal Appeal, NSW, Barr J, 29 October 1997), Barr J observed: "However, it is an equally strong principle in my opinion, that no matter how strong the subjective features of a case, they must never be allowed to produce a sentence which fails to take account of the objective gravity of the case. In my opinion the applicant's co-operation with the authorities and the repayment of monies derived from her criminal activity did not merit a reduction of the sentence for assistance to the authorities. The applicant was entitled to rely on those circumstances as evidence, together with her plea of guilty, of the genuineness of her remorse and that is a finding that his Honour made in her favour. It was given effect to in the sentence imposed by his Honour. In the end I do not think that the applicant has demonstrated error on the part of the sentencing judge. Although I would grant leave to appeal, I would dismiss the appeal." 31In R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152, Sully J observed at [77]: "In my opinion, it would better accord with the manifest policy of the New South Wales legislation to adopt in relation to it the clear and resolute approach of the New Zealand Court of Appeal. Applying the principles thus established to the particular facts of the present case, it would be, in my opinion, and to borrow respectfully from King CJ, farcical to give the present respondent the consideration that he claims by reason of his cooperation with the Crime Commission in the matter of disgorging his ill-gotten gains from criminal activity of the enormity previously described and discussed. In such a case as the present one, the sanction of condign punishment by way of substantial imprisonment, and the sanction of disgorgement of ill-gotten gains, are intended by the legislature to be; should be seen by all concerned to be in fact; and should be enforced resolutely by the Courts as, complementary sanctions intended to strengthen each other, rather than as alternative sanctions which a resourceful offender can juggle in a way that effectively causes the one to weaken, rather than to strengthen, the other." 32When special leave was sought in the High Court, it was refused. It was observed in Kalache v The Queen S83/2000 [2000] HCATrans 713 at : "GLEESON CJ: The Court is of the view that this application for special leave to appeal should be refused. We do not consider that the case is a suitable vehicle for consideration of the issues sought to be raised on behalf of the applicant. We do not think that Justice Sully intended to say that co-operating in returning the proceeds of crime could not, as a matter of law, be taken into account in the sentencing process. If his Honour intended to say so, we would not agree with such a broad proposition. The Court is not persuaded that in the facts and circumstances of the present case there has been any miscarriage of justice." 33In R v Presta [2000] NSWCCA 40 it was observed at [29] by Grove J: "The next proposition advanced on behalf of the appellant was that his Honour erred in not taking into account on the matter of sentence the consent of the applicant to the forfeiture of his house. It would appear that pursuant to the Confiscation of Proceeds of Crime Act the appropriate authority had made application for forfeiture of the house. In terms of the statute it was manifestly clear that in every case of the counts that I have mentioned it was the very location used in the commission of the crimes. It is true that it is apparent that the appellant consented to the making of an order, but it is well nigh impossible to conceptualize any sustainable basis upon which he could resist. Nevertheless it was argued that it was a matter which his Honour could have taken into account in a slightly oblique fashion in the sense of confirming some contrition on the part of the appellant adding to the contrition which might be inferred from the plea of guilty which, amongst other things, has been pointed out by counsel for the appellant relieved the victims of the undoubtedly onerous prospect of having to give evidence and relive their experiences as they related them." 34Regina v Farah [2005] NSWCCA 67 was a case where the sentencing judge Sides DCJ had taken account of the orders made in the civil recovery proceedings, not as evidencing contrition (the confiscation having followed contested proceedings), but as featuring as a part of the punishment imposed for the offence. It was observed: "20 His Honour considered that expressions of remorse by the applicant were belated but were, nevertheless, genuine and should be reflected in the sentences his Honour would impose. 21 His Honour said in his remarks on sentence that he took into account in the applicant's favour the delay which had occurred in the sentencing of the applicant, especially the delay which had occurred after he had pleaded guilty, which had not been the applicant's fault. 22 His Honour said that he took into account in favour of the applicant that on 24 October 2003 Adams J of this Court had made an order against the applicant under the Criminal Assets Recovery Act that he pay to the New South Wales Treasury the sum of $32,200, which was approximately equivalent to the total amount of money the applicant had received from committing the three offences. Adams J's judgment is reported ( New South Wales Crime Commission v Farah (2003) 142 A Crim R 108). 23 In his judgment Adams J said that he accepted that the applicant had not derived any benefit from the money he had received, which he had almost immediately paid over to someone else, and that the order his Honour would be making was to be regarded as part of the punishment for the applicant's offences. At par 21 of his judgment Adams J said:- "It seems to me that the consequence of the order that I make, which should fairly be regarded as taking from the defendant considerably more than the financial benefit he obtained from his crime, is not a mere expropriation of his ill-gotten gains but is a penalty visited upon him for engaging in criminal activity. In short, it is part of his punishment. The mere fact that the proceedings are stated to be civil proceedings is a description of their procedural character. That they are aimed at punishing and deterring criminals is clear beyond question and that they are part of the structure for enforcing the criminal law of the State is not to be disguised by procedural trappings. Accordingly, the penalty in this case should be taken into account in measuring the level of the additional punishment to which the defendant will be liable when he is sentenced for the crimes that produced the proceeds referred to in the present order". 24 In his remarks on sentence Sides DCJ said he had been influenced by Adam J's order in deciding to make the three sentences he imposed concurrent with each other and not, at least to some extent, cumulative." 35It was also submitted that it was relevant to note that while there was no New South Wales legislation dealing with the account which could be taken of confiscation proceedings in later sentencing, there was both Commonwealth and Victorian legislation, between which there was a tension. They respectively provide: Proceeds of Crime Act 2002 (Cth) 320 Effect of the confiscation scheme on sentencing A court passing sentence on a person in respect of the person's conviction of an * indictable offence: (a) may have regard to any cooperation by the person in resolving any action taken against the person under this Act; and (b) must not have regard to any * forfeiture order that relates to the offence, to the extent that the order forfeits * proceeds of the offence; and (c) must have regard to the forfeiture order to the extent that the order forfeits any other property; and (d) must not have regard to any * pecuniary penalty order, or any * literary proceeds order, that relates to the offence. 321 Deferral of sentencing pending determination of confiscation order If: (a) an application is made for a * confiscation order in respect of a person's conviction of an * indictable offence; and (b) the application is made to the court before which the person was convicted; and (c) the court has not, when the application is made, passed sentence on the person for the offence; the court may, if satisfied that it is reasonable to do so in all the circumstances, defer passing sentence until it has determined the application for the confiscation order. Sentencing Act 1991 (Vic) 5 Sentencing guidelines ... (2A) In sentencing an offender a court- (a) may have regard to a forfeiture order made under the Confiscation Act 1997 in respect of property - (i) that was used in, or in connection with, the commission of the offence; (ii) that was intended to be used in, or in connection with, the commission of the offence; (iii) that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i) or (ii); (ab) if it is satisfied that property was acquired lawfully, may have regard to automatic forfeiture under the Confiscation Act 1997 in respect of property - (i) that was used in, or in connection with, the commission of the offence; (ii) that was intended to be used in, or in connection with, the commission of the offence; (iii) that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i) or (ii); (b) must not have regard to a forfeiture order made under that Act in respect of property that was derived or realised, or substantially derived or realised, directly or indirectly, by any person as a result of the commission of the offence; (c) may have regard to a pecuniary penalty order made under that Act to the extent to which it relates to benefits in excess of profits derived from the commission of the offence; (d) must not have regard to a pecuniary penalty order made under that Act to the extent to which relates to profits (as opposed to benefits) derived from the commission of the offence; (e) subject to paragraph (ab), must not have regard to any property forfeited under automatic forfeiture or a pecuniary penalty order made in relation to a Schedule 2 offence under that Act. (2B) Nothing in subsection (2A) prevents a court from having regard to a forfeiture order or civil forfeiture order made under, or automatic forfeiture occurring by operation of, the Confiscation Act 1997 as an indication of remorse or co-operation with the authorities on the part of the offender." 36It was argued that the common law position in New South Wales was akin to the statutory provision in Victoria, namely that both co-operation and compulsory confiscation could be taken into account on sentencing. The Victorian legislation was consistent with the approach adopted by Adams J in Farah . The orders there made were of a punitive kind and so were accepted as being available to be taken into account as an element of punishment for the offence. That approach is not available under the Commonwealth legislation, where the only account which could be taken of the confiscation, when there was co-operation, was that it was consistent with genuine contrition and remorse, as Barr J had accepted in Murray . 37It does not appear to me that there is such a restriction at present in New South Wales, albeit that position will alter with the enactment of the Crimes (Sentencing Procedure) Amendment Act 2010, which provides: 24B Confiscation of assets and forfeiture of proceeds of crime to be disregarded in sentencing (1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the consequences for the offender of any order of a court imposed because of the offence under confiscation or forfeiture legislation. (2) In this section: confiscation or forfeiture legislation means the following: (a) the Confiscation of Proceeds of Crime Act 1989, (b) the Criminal Assets Recovery Act 1990, (c) the Proceeds of Crime Act 2002 of the Commonwealth, (d) any other law prescribed by the regulations for the purposes of this definition. 38In this case, there was no suggestion that the confiscation to which the applicant had agreed, involved any element of punishment for his offences. There was no evidence as to what the settlement was, or the circumstances in which it was reached. Nor was it dealt with in the agreed facts. The submission that Black DCJ erred in the approach which he adopted to the question of remorse, as evidenced by co-operation in the forfeiture proceedings, was pressed on the basis that while evidence about that matter was not led, his Honour was entitled to proceed informally at the sentencing hearing, given the provisions of the Crimes (Sentencing Procedure) Act. In my view, that does not overcome the difficulty with the applicant's complaint. As discussed in GAS v R [2004] HCA 22; (2004) 217 CLR 198 at [30]: "Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed [R v Olbrich (1999) 199 CLR 270]. For that purpose, the judge must find the relevant facts [Cheung v The Queen (2001) 209 CLR 1 at 9-11 [4]-[10]]. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case [R v Olbrich (1999) 199 CLR 270 at 278 [15]]. The present appeal provides an example. The limitation arose from the absence of evidence as to who killed the victim, and the absence of any admission from either appellant that his involvement was more than that of an aider and abettor." 39Whether or not co-operation in civil forfeiture proceedings in a particular case may be accepted as evidencing remorse, depends on the circumstances revealed on the evidence. In some cases, it will not evidence remorse, rather a mere acceptance of the inevitable. In this case, given the absence of evidence as to what had occurred in the forfeiture proceedings, the conclusion which his Honour reached as to the weight which could be given to that factor was clearly correct. 40His Honour was also bound by s 21A(3) of the Crimes (Sentencing Procedure) Act , which provides that a mitigating factor to be taken into account in determining sentence is: (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), 41It follows that if an offender wishes to have account taken of particular matters claimed to evidence remorse, including any co-operation provided in civil forfeiture proceedings, evidence establishing what is relied on must be led. There are, of course, different ways in which such matters can be put into evidence, for example by way of agreed facts, documentary evidence, or evidence given by the offender. What the evidence reveals can have an impact on the view formed by the sentencing judge as to the existence and nature of any remorse found to have been shown. 42Here the applicant gave no evidence, nor was there any evidence led as to what had transpired in the forfeiture proceedings. Nor was that matter dealt with in the agreed statement of facts. The psychiatrist's report did deal expressly with remorse, but what was there noted by Ms Robilliard as having occurred was not entirely consistent with the agreed facts in a number of significant respects. In my view, not being frank with the psychiatrist as to such matters is not consistent with true remorse. Nor was what Ms Robilliard observed particularly suggestive of remorse, or an acceptance of responsibility for the applicant's offences. What Ms Robilliard observed was: "William acknowledged that he is upset and angry with his uncle Nathan for involving him in activities that led to these charges and consequent imprisonment, however, he stated that "ultimately I put myself here by agreeing to allow Nathan to set and by helping him". William expressed profound remorse over his involvement in this enterprise. From his perspective he said he feels "I've lost everything" including his trust in people. He said he definitely does not want to come back to gaol again. He said he was always satisfied with legitimate earnings and in future he will be very careful about whom he trusts, including members of his own family. ... The client's involvement in the events that culminated in his arrest and imprisonment were facilitated by his strong emotional connection to his paternal uncle, Nathan. There was a 3 year age gap between them and throughout life William described looking up to Nathan in a way he believes he would have an older brother. He perceived Nathan as good at various activities he admired, popular and well known in the district. His uncle always had money and was generous with it. When William began setting up his own business about a year prior to his arrest, Nathan helped him with handouts of cash which finally totalled around $75,000. William maintained he reluctantly agreed to allow his uncle to set up the cannabis growing enterprise on the property he was buying because it promised to yield him $10,000 a month which he would then have used to repay the loan. He said he was also mildly intimated by Nathan however William did not suggest he was forced into the agreement and stated clearly that he accepted responsibility for his own actions. He said he deeply regretted his decision and that the experience has damaged his trust in others especially in light of the relationship between himself and his uncle. " 43In my view this ground was not established. That his Honour was obliged to give remorse any greater weight than he did, is not apparent.

Ground 2 - manifest excess 44Black DCJ commenced his sentencing remarks with the explanation that but for the plea, he would have concluded that the sentence for this offence should be 12 years. From his subsequent remarks, it is apparent that this conclusion had regard to the objective seriousness of the offence, as well as relevant subjective factors. His Honour also had regard to the role played by other offenders and how they were sentenced. His Honour paid attention to the standard non-parole period, as he was obliged to do; took into account the Form 1 offence and applied the principal of totality. The result was that the sentence for both offences to which the plea was entered were made wholly concurrent. His Honour's view of the applicant's subjective circumstances also led to a conclusion that special circumstances existed, with the result that there was a very significant departure from the standard non-parole period of 10 years to 5 years. 45In written submissions the case advanced was that the head sentence was the heaviest, by 18 months, imposed for any like offence. In oral submissions it was conceded that this submission could not be pressed, given other judgments which had come to light, which showed that there were other cases where similar non-parole periods had been imposed for this offence, albeit with shorter head sentences. It was also conceded that schedules of comparative cases which had been provided were incomplete. 46It was acknowledged that this offence was a relatively new statutory construct, the section having been amended in 2006 to reduce the number of plants comprising a large commercial quantity for hydroponics from 1,000 to 200. The standard non-parole period introduced in 2008 under the Crimes (Sentencing Procedure) Act was 10 years. 47It was argued that as there were not many cases dealing with offences under what was a relatively new statutory regime, the most reliable consideration for comparing sentences was to look at sentences imposed in individual cases. Three schedules were provided. One in relation to the co-accused, one for matters dealt with in the District Court and one for those matters dealt with by this Court. The schedules identified the number of cannabis plants with which the offence in each case was concerned. It was argued that given lower sentences imposed in other cases where culpability had been found to fall in the mid-range, the comparison sought to be made supported the argument that this sentence was manifestly excessive. 48There is real difficulty with comparisons such as this, as this Court has repeatedly discussed. Of itself, that the sentence imposed on the applicant was higher than that imposed in other cases, is not a basis for finding manifest excess (see Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610J). As to the other cases relied on, there is the obvious difficulty that they were not referred to before Black DCJ and that there are relatively few of them. In R v Boney [2008] NSWCCA 313 it was observed: "72 It is also appropriate to refer to the Judicial Commission statistics. As at the present they show for offences under s33:- (i) of 82 offenders who pleaded guilty and were sentenced to prison, the head sentences ranged between 2 and 12 years, the median being 6 years and the non-parole periods or fixed terms ranged from 1 to 8 years, with the median being 3 years; and (ii) of 23 offenders who pleaded not guilty and were sentenced to prison, the head sentences ranged between 4 and 14 years, the median being 8 years and the non-parole periods or fixed terms ranged from 2 to 10 years, with the median being 5 years. 73 Being but 5 cases out of about 105, the cases relied on by Mr Dhanji can hardly be regarded as representative. Furthermore, the cases referred to by the Crown demonstrate the dangers of this Court being tempted to rely on only a few cases cited by counsel for an offender and reinforce the Court's long-held view expressed, for example in R v Campillo-Vaquere [2004] NSWCCA 271 at [77]:- "This Court has said on many occasions that it is not a proper approach to sentencing to seek to compare a sentence under challenge directly with that imposed on another offender (who is not a co-offender) simply because the 2 offenders may have similar characteristics and may have committed similar crimes - see e.g. Morgan (1993) 70 A Crim R 368 at 371; R v Lawson (1997) 142 FLR 323 at 324, per Hunt CJ at CL; R v Speechley [2002] NSWCCA 300 at [39]; R v Trevenna [2004] NSWCCA 43 at [50, 89 and 99] ... ." 49In Nguyen v Regina [2009] NSWCCA 283 an appeal from a sentence of 3 years, 3 months with a non-parole period of 2 years, 4 months as being manifestly excessive was dismissed, in circumstances where the applicant was involved in watering and fertilising 202 plants at night. Sentences imposed on other offenders for this offence were reviewed. In this case, the applicant relied on the decisions in Bui v R [2008] NSWCCA 314, Truong v R [2009] NSWCCA 41 and Thi Lan Nguyen v R [2009] NSWCCA 181. Hislop J observed at [20] that Truong and Thi Lan Nguyen : 'were concerned with a lesser offence, the maximum penalty for which was 15 years imprisonment and which did not attract a standard non-parole period. There was no reference to any Form 1 matters in either case. 50In Biu, Hislop J said: 'although the number of plants involved was somewhat higher (281). It held that the sentence imposed (of 5 years with a non-parole period of 3 years) was not manifestly excessive. It provides no guidance as to where the upper limits of the sentencing range lie. The standard non-parole period was not applicable, as Bui had pleaded guilty prior to 1 January 2008. There was one matter on a Form 1. 51His Honour concluded that no sentencing pattern or range relevant to the offence could be discerned from these cases, as the sample was too small and that the cases, save to a certain extent the case of Bui, were not comparable. Hislop J adhered to that view in Tran, after review of a number of other cases (see at [20]). There the sentencing judge had found that the offence fell below the mid-range, a conclusion considered to have been favourable to the applicant. The result was a sentence of 5 years and a non-parole period of 2 years 6 months. That offence involved 210 plants in circumstances where the applicant was found to be the entrepreneur and sole trader involved. 52In this case, like Hislop J, I am of the view that no sentencing pattern or range relevant to the offence can be discerned from the material relied on for the applicant. In my view, the comparison sought to be drawn with other decided cases did not establish that the sentence here imposed was excessive. 53The applicant's co-offenders, were each charged with cultivating a large commercial quantity of cannabis, as well as having other offences dealt with. Black DCJ was also the sentencing judge in these cases. They were: Nathan Stock (also 335 plants) - 3 and a half years, with a non-parole period of 9 months, after a discount of for plea and assistance - Form 1 offence possessing ecstasy Michael Stock (475 plants) - 5 years and 3months with a non-parole period of 3 years - Form 1 Offence bypassing electricity Simon Davidson (415 plants) - 2 years and 9 months with a non-parole period of 18 months to be served by periodic detention - second charge of concealing and Form 1 offences supply cocaine and cannabis Raymond Mitchell (415 plants) - 6 years with a non-parole period of 3 years 6 months - Form 1 bypass electricity 54The Crown argued that the sentence review on which the applicant relied itself showed that sentences being imposed on offenders for this offence might be considered to be too light and that the position should be corrected by an incremental upward trend in penalties (see Poyner v R (1986) 60 ALJR 616 and Hampton v R [2010] NSWCCA 278 at [63]). 55The schedules of cases relied on was admittedly not complete, but in my view, provided some support for the Crown submission. In the 25 cases reviewed, no sentencing exercise has resulted in a head sentence greater than the standard non-parole period of 10 years; severity appeals have all failed and the only Crown appeal on sentence has succeeded. That the standard non-parole period applied in all of these cases, however, was not apparent. It did not apply to the applicant and his co-offenders, albeit remaining a matter which required consideration in sentencing. 56The case advanced by way of reliance on the sentences imposed on the co-offenders, in my view also does not establish a manifestly excessive sentence in the applicant's case. That the applicant received the highest sentence of the co-offenders, 9 years with a non-parole period of 5 years, reflected both the conclusion reached as to his role and the impact of the account which had to be taken of the Form 1 offence. It is only necessary to refer to the sentencing remarks in respect of Nathan Stock and Raymond Mitchell, to explain why I have reached these views. The sentencing remarks in both those cases were in evidence below. 57Nathan Stock, the applicant's uncle and his elder by some 3 and a half years, also had a Form 1 offence taken into account, in relation to possession of 3 ecstasy tablets, which Black DCJ concluded had no significant impact on his sentence. Nathan Stock was found not to have been involved in the construction of the cultivation system of this sophisticated enterprise. He was a 'crop sitter', paid $50,000 by the applicant to have his name on the lease and to maintain the premises and equipment. He was not to participate in any dividends, but was also to receive a quantity of cannabis for his own use, from each crop. 58In sentencing Nathan Stock regard was paid to the standard non-parole period for the offence, an offence considered to be capable of causing significant damage to the community. His offence was found to be at the lower end of the range. Nathan Stock was also found to have offered and provided substantial assistance to police, including involvement in a controlled operation which exposed him to risk of immediate significant injury if not death, if discovered; a matter also accepted as demonstrating remorse. Note was also taken of resulting restrictive conditions and future assistance to be provided. Other aggravating and mitigating factors were considered. Drug dependence was dealt with and good prosects of rehabilitation were found. While full credit was said to have been given for the plea, what discount was given for assistance was not specified, although his Honour remarked that were it not for the assistance still to be given, the non-parole period could not have gone below 2 years. 59The result was a sentence of 3 years and 6 months imprisonment, with a non-parole period of 9 months, commencing 28 November 2007 and expiring 27 August 2008, to reflect significant disadvantage while earlier at liberty and future assistance. The result was that there would be no further return to custody, unless there was non-compliance with undertakings in relation to future assistance, in which case this offender would be at risk of a further period of 14 months imprisonment. Orders were also made as to supervision while on parole. 60While his Honour did not specify the amount of the discount given for assistance, from his observations as to the nature of the very considerable past and future assistance given, it must have been in the order of 50% (see SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249, per Howie J at [3]). Given the view which his Honour took of the nature of future assistance to be provided, the discount might have been higher. A discount of 50% would have reflected a starting sentence of 7 years, for this lower range offence, by comparison to the starting point of 12 years in the applicant's case, for his mid-range offence. It is difficult to see that the sentence imposed in this case, by comparison to that imposed on Nathan Stock reflected any error, particularly when it is considered that in the applicant's case, the penalty imposed also had to reflect the Form 1 offence with which the applicant was charged. 61Raymond Mitchell and the two others were concerned in the cultivation of a different cannabis crop, that which comprised the second count offence in the applicant's case. The sentencing remarks for Raymond Mitchell disclosed that the agreed value of the 415 cannabis plants there in question, double the prescribed quantity, were estimated to have a value of over $1 million. He had set up and cultivated the plants in a joint enterprise with others. It was found to have been a good, but not exceptional set up. The standard non-parole period was noted as denoting a head sentence of 13 years. There were no aggravating factors to be considered separately, but various mitigating matters, including the early plea, good prospects of rehabilitation and evident remorse and strong motivation to avoid further offending were noted. Reference was also made to subjective matters including age and personal trauma. A head sentence of 8 years was reduced to 6 on account of the early plea with a non-parole period of 3 years and 6 months, to reflect special circumstances found. 62Given the objective seriousness of the two offences and the differing subjective factors which had to be weighed, as well as the consideration which had to be given to the Form 1 offence in the applicant's case, a starting point of 8 years head sentence in Raymond Mitchell's case, by comparison to 12 years in the applicant's case, and non-parole periods of 5 years and 3 years, 6 months respectively, does not show a manifestly excessive sentence, notwithstanding that there were 355 plants the subject of the applicant's charge and 475 plants in Mitchell's case. Consideration also had to be given to the nature of the two operations, which were plainly different. Also to be considered is the entirely concurrent sentence given to the applicant in relation to the second charge, as a matter of totality. I am unable to come to the view that the error complained of has been established by way of this comparison. 63Before the trial judge, statistics on sentences imposed between July 2006 and July 2008 were relied on. The analysis undertaken for the applicant on appeal paid no regard to sentences imposed for offences under the previous statutory regime. A sharp upward increase in sentences for a particular offence which is considered to be too low, may result from actions taken by Courts themselves (see the discussion in Hampton v R [2010] NSWCCA 278 at [61] - [63]). Such an increase will be required, however, when the legislature increases the maximum penalty for an offence, that reflecting community standards in relation to the seriousness of the offence, which courts must uphold (see R v Slattery (1996) 90 A Crim R 519 at 524 and R v Jurisic (1998) 45 NSWLR 209). An increase in sentencing patters may also result when a standard non-parole period is implemented (see Tran v R [2010] NSWCCA 72 at [23]; Nguyen at [25] - [26]; R v AD [2005] NSWCCA 208 at [43] and R v AJP 2004] NSWCCA 434; (2004) 150 A Crim R 575). These considerations do not support the conclusion that the penalty here imposed was excessive, given the legislative amendment in 2006 and the introduction of a standard non-parole period in 2008. 64There were other difficulties with the case advanced for the applicant. Understandably there was no challenge to the sentencing judge's characterisation of the applicant's offence as a mid-range offence. Even in the case of a guilty plea, the standard non-parole period for a mid-range offence, in this case of 10 years, remains a signpost to which attention must be paid in sentencing (see R v AJP at [37] and R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338 at [47]). Nor was there any challenge to the conclusion that the applicant was the principal of a significant and reasonably sophisticated commercial enterprise, from which he expected to achieve a big return. The value of the cannabis seized was approximately $1 million. That being so, it is apparent that the sentence imposed on the applicant, with a non-parole period of 5 years was a lenient one. 65That conclusion is reinforced when it is considered that the sentence imposed had to take account of the Form 1 offence in relation to supply of 9.7kg of cannabis. The sentence imposed on the applicant had to reflect the totality of the criminality involved. While the total sentence could not exceed the maximum penalty for the principal offence, the sentence for that offence had to be increased, for the reasons discussed by Spigelman CJ in Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure ) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42]: "42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another." 66Finally, the overwhelming difficulty confronting the applicant on this appeal, it seems to me, is the 10 year standard non-parole period prescribed for this offence. The applicant was found to have committed an offence which fell into the mid-range, but received a non-parole period of 5 years after plea. While not binding, given the plea, the standard non-parole period was a matter which still had to be taken into account in the sentencing exercise (see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [122] - [124]). The conclusion that this was a mid-range offence has not been challenged. It follows that on any view the penalty imposed was not a heavy one, thus raising for consideration the provisions of s 6(3) of the Criminal Appeal Act 1912, which provides: "(3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal." 67I cannot see that a less severe sentence than that which was imposed is warranted. It follows that the appeal must be dismissed.

Stock v R

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