[2013] NSWCCA 115
Brennan v R [2018] NSWCCA 22
Cherdchoochatri (2013) 277 FLR 126
[2013] NSWCCA 118
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Clarke v R (2015) 254 A Crim R 150
[2018] HCA 32
Filippou v The Queen (2015) 256 CLR 47
[2015] HCA 29
GAS v The Queen (2004) 217 CLR 198
Source
Original judgment source is linked above.
Catchwords
[2013] NSWCCA 115
Brennan v R [2018] NSWCCA 22
Cherdchoochatri (2013) 277 FLR 126[2013] NSWCCA 118
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Clarke v R (2015) 254 A Crim R 150[2018] HCA 32
Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29
GAS v The Queen (2004) 217 CLR 198[2004] HCA 22
Hanh Thi Nguyen v R (2011) 208 A Crim R 432[2011] NSWCCA 92
House v The King (1936) 55 CLR 499[1936] HCA 40
JM v R (2014) 246 A Crim R 528[2014] NSWCCA 297
Kresovic v R [2018] NSWCCA 37
Leach v The Queen (2007) 230 CLR 1R v Tran [2011] NSWDC 135
R v Nong [2010] NSWDC 227
R v Simpson (2001) 53 NSWLR 704[2001] NSWCCA 534
R v Tran [2017] NSWDC 397
R v Uzabeaga (2000) 119 A Crim R 452[2000] NSWCCA 381
R v Wei [2014] NSWDC 33
Shortland v R (2013) 224 A Crim R 486[2013] NSWCCA 4
Stock v The Queen (2011) 206 A Crim R 574[2011] NSWCCA 49
The Queen v Olbrich (1999) 199 CLR 270[1999] HCA 54
The Queen v Pham (2015) 256 CLR 550
Judgment (12 paragraphs)
[1]
The Applicant's Subjective Circumstances
The Applicant was born in September 1979. He was aged between 33 and 35 years at the time of the offences. He was 37 years old at the time of sentence.
The Applicant has a limited criminal history which records that he appeared at the Bankstown Local Court on 18 December 2013 and was fined for stating a false name or home address as a driver of a motor vehicle. In addition, he was placed on a 12-month bond under s.10 Crimes (Sentencing Procedure) Act 1999 for an offence of driving whilst suspended.
The Applicant did not give evidence at the sentencing hearing.
Presentence reports of Mr Bruce McSoriley, Community Corrections Officer, dated 27 February 2017 and 6 March 2017 were tendered at the sentencing hearing. A report of Mr Bradley Jones, forensic psychologist, dated 1 March 2017 was tendered in the Applicant's case together with a number of character references. Those reports revealed the following features concerning the Applicant and his background.
The Applicant has two children from his first marriage. At the time of his arrest, he was living with the two children and his second wife in premises at Glen Alpine, the location of the Form 1 offences referred to earlier (at [44]-[46]).
According to the presentence report, the Applicant was born and raised in Vietnam. He was the eldest in a family of four children. His parents divorced when he was 10 years old and he was raised by his mother as a sole parent. The Applicant graduated from high school in Vietnam. He remained close to his father who died in 2010.
The Applicant migrated to Australia in 1998 as an overseas student. He became an Australian citizen in 2002. He completed English studies in Australia and undertook a diploma course in finance and banking at TAFE. Whilst studying, he undertook part-time employment as a cleaner, process worker and a kitchen cook. After completing his TAFE studies, the Applicant secured employment in the finance industry and worked as a financial broker for a Sydney firm, after which he purchased a restaurant in Sydney in 2004 before selling it two years later.
The Applicant returned to Vietnam in 2006 where he worked in a family business before returning once again to Australia in 2009. After his return to Sydney, the Applicant worked in real estate brokering.
[2]
The Sentencing Hearing and Remarks on Sentence
Course of the Sentencing Hearing
The Applicant was committed for sentence from the Burwood Local Court on 29 August 2016.
The sentencing hearing came before his Honour Judge King SC for the first time on 3 March 2017. Mr James QC appeared for the Applicant. A presentence report had been prepared by Mr McSoriley which was provided to the parties. In light of some material in the presentence report, the Applicant sought an adjournment of the proceedings to allow further information concerning the Applicant to be obtained from overseas. The Crown was ready to proceed and opposed any adjournment of the sentencing hearing. It was determined that the matter could commence before his Honour, with the Crown papers being tendered and the hearing being adjourned part heard until 12 May 2017.
At the commencement of the resumed hearing on 12 May 2017, an updated presentence report of Mr McSoriley was tendered together with the Applicant's criminal history. His Honour raised with the Crown and Senior Counsel for the Applicant a number of issues and concerns with respect to the Statement of Agreed Facts (T9-12, 12 May 2017). In response to an enquiry by the Court, the Crown informed the sentencing Judge that a co-offender (Phuong Nam Pham) had been sentenced by his Honour Judge Norrish QC although the sentencing remarks had not yet been requested (T12, 12 May 2017 ). His Honour then raised what was said in the Agreed Statement of Facts concerning the role of the Applicant with it being made clear that the Court would make its own assessment concerning the Applicant's role and his level of criminality (T13-14, 12 May 2017). Extensive submissions were made on behalf of the Crown and the Applicant before his Honour stood the matter over to 19 May 2017 for sentence.
Mr James QC submitted that the Applicant's offences were not "above mid-range" in relation to the large commercial quantity and commercial quantity offences (T21, 12 May 2017). A little later, Senior Counsel for the Applicant submitted that the Applicant's culpability in each case was "below mid-range" and that a finding of special circumstances should be made (T25, 12 May 2017).
In the course of submissions, the Crown conceded that the Applicant did not visit any of the premises which were the subject of the charges (apart from his own) (T26, 12 May 2017). It was emphasised that the Applicant was subject to conditional liberty at the time of the Lakemba offence (Sequence 2) as a result of the bond imposed on 18 December 2013 (T28, 12 May 2017). The Crown submitted that the Applicant had "an irreplaceable role" as real estate agent for each set of commercial premises and was a principal although he "managed to distance himself from the dirtier side of the criminal organisation" (T30-31, 12 May 2017). The Crown did not submit the Applicant was "the top dog arranging the entire enterprise", but did submit he had a very important role in the enterprise (T31, 12 May 2017).
[3]
Sentencing For Offences of Cultivation of Large Commercial or Commercial Quantities of Prohibited Plants by Enhanced Indoor Means
Before moving to consider the grounds of appeal, it is appropriate to refer to the class of offences for which the Applicant was sentenced.
As the sentencing Judge observed, an examination of past sentencing decisions for offences of this type in this State does not reveal offending of the magnitude of that of the Applicant by reference to the number of premises involved.
The offences for which the Applicant was sentenced were enacted by the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Act 2006. In the second reading speech with respect to that legislation, Ms Carmel Tebbutt (on behalf of the Attorney General) said (Hansard, Legislative Assembly, 25 May 2006):
"In recent years NSW Police have detected a significant increase in the number of hydroponic cannabis operations conducted in domestic dwellings, as well as an increasing tendency for these operations to involve organised crime syndicates. Cannabis plants cultivated by hydroponic and other enhanced indoor means grow much faster than plants grown by traditional outdoor methods, and produce between five and seven times the yield. The current quantity amounts in the Drug Misuse and Trafficking Act at which maximum penalties apply for cannabis cultivation offences are based upon the yield, harvest patterns and profitability of outdoor, or "bush grown" cannabis. They are not an accurate reflection of the commerciality of hydroponic cannabis operations. This bill addresses this inequity."
The Minister continued in the second reading speech:
"Schedule 1 amends the Drug Misuse and Trafficking Act 1985. Item [1] inserts in the Act a definition of 'cultivation by enhanced indoor means' in relation to a prohibited plant. The two leading methods of enhanced indoor cannabis cultivation - hydroponics and aeroponics - are covered by the definition. Item [16] inserts a new plant category into schedule 1 of the Act entitled 'Cannabis plant cultivated by enhanced indoor means', with the commercial and large commercial quantities being set at levels five times lower than for outdoor cannabis to reflect the much higher yields produced by this method. This means that existing maximum penalties for cultivation offences involving commercial and large commercial quantities will cut in at these lower levels in respect of cannabis cultivated by enhanced indoor means to reflect the commerciality of operations of this size. The bill makes no change to existing small and indictable cannabis quantities, with current maximum penalties continuing to apply in these cases."
[4]
Ground 5 - Claim that the Applicant was Denied Procedural Fairness
It is appropriate to consider firstly Ground 5, a ground added at the sentencing hearing.
Submissions of the Parties
Ms Kluss, counsel for the Applicant, submitted that her client had been denied procedural fairness as the sentencing Judge had not sufficiently placed Senior Counsel for the Applicant on notice with respect to the approach which his Honour took to the factual basis for sentence as adopted in the remarks on sentence. It was submitted that the approach taken by his Honour had effectively reversed the onus of proof in the proceedings so as to require the Applicant to prove that he was not the organiser of the various cultivations or occupied a position at or near the peak of hierarchy of the offenders.
It was submitted that practical injustice had resulted for the Applicant in the way in which the sentencing Judge approached this aspect of fact finding on sentence.
The Crown submitted that there was no procedural unfairness in the manner in which the sentencing Judge determined the factual basis for sentence. It was submitted that the sentencing Judge had made clear that the Court was not bound by an agreement between the parties as to the role of the Applicant and that his Honour was correct in adopting this approach. It was submitted that his Honour gave the Applicant's Senior Counsel an opportunity to address on the issue and that submissions were made in this respect.
The Crown submitted that the Applicant had not lost an opportunity to make submissions to the Court on the aspect raised by the sentencing Judge and that no practical injustice had resulted in this case. The parties had been put on notice by his Honour of the Court's concerns and there was no lost opportunity for the Applicant to make submissions on his role in the various cultivations.
Decision
In Nguyen v R [2015] NSWCCA 268, Price J (Hoeben CJ at CL and Button J agreeing) said at [45]-[46]:
"45 It is well established that a sentencing judge is not bound to accept agreed facts that are presented to him by the Crown and the defence. A judge's sentencing discretion must be exercised in the public interest. A judge is not obliged to refrain from questioning facts even though they may be agreed: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 per Kirby at [606]; R v Uzabeaga [2000] NSWCCA 381 [(2000) 119 A Crim R 452)] per Bell J at [34].
46 When a sentencing judge considers that an offender has a higher degree of culpability than detailed in the agreed facts, the judge, as a matter of procedural fairness, must give the parties an opportunity to address the judge's view: Uzabeaga at [35]-[38]."
[5]
Ground 1 - Claim of Error in Assessment of Objective Criminality of Offending
Submissions of the Parties
Ms Kluss submitted in support of this ground that it was unclear at which point his Honour found the objective criminality of the offending, though there could be no doubt from the sentence imposed that his Honour found it to be very high. It was submitted as well that there was no evidence from which to base any finding of the level of offending save for the number of plants, and the number of premises associated with the cultivations as described in the Statement of Agreed Facts.
It was submitted for the Applicant that the fact that no other persons were (at the time of sentencing of the Applicant) identified as being responsible did not elevate his objective criminality to being responsible for the whole of the criminal enterprise. It was submitted that the sentencing Judge appeared to have assessed the Applicant's role as being substantially responsible for the criminal enterprise when this was not the basis of the offending placed before the Court by the Crown and was not supported by the evidence.
The Crown submitted that it was open to the sentencing Judge to find that the objective seriousness of each of the offences approached the mid-range of objective seriousness on the evidence before the Court on sentence. The Crown pointed to the terms of the definitions of "cultivate" in s.3 and "take part in" in s.6 of the Drug Misuse and Trafficking Act 1985 and submitted that the concept of knowingly taking part in the cultivation of cannabis plants covers a wide range of acts.
The Crown submitted that the characterisation of the objective seriousness of the offences was open to the sentencing Judge in this case.
Decision
This Court has recognised repeatedly that the characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing Judge: Mulato v R [2006] NSWCCA 282 at [37]. A challenge to a characterisation of the objective seriousness of an offence must be founded upon one of the errors specified in House v The King (1936) 55 CLR 499; [1936] HCA 40: R v Fahda [2013] NSWCCA 86 at [4].
His Honour found that the Applicant's offences approached the mid-range of objective seriousness for each of the large commercial quantity and commercial quantity offences (R v Tran at [63] reproduced at [64] above). His Honour explained his findings with respect to the Glen Alpine property where the Applicant was a principal concerning the crop in his own home.
[6]
Ground 2 - Claim that Insufficient Weight was Given to the Applicant's Subjective Circumstances
Submissions of the Parties
It was submitted for the Applicant that the documentary evidence tendered at the sentencing hearing for the Applicant indicated that there were many positive features of his character, work record and his reputation in the community. Counsel submitted that although the sentencing Judge assessed the Applicant as having a low risk of reoffending and reasonable prospects for rehabilitation, these positive findings did not appear to have impacted the sentence.
The Crown submitted that the sentencing Judge identified specifically and considered the Applicant's subjective circumstances in the remarks on sentence and made positive findings with respect to some of them. It was submitted that the Court had regard to these matters in the process of instinctive synthesis and that the weight to be given to these factors was effectively an issue for the sentencing Judge.
Decision
This Court is a court of error and, in order to establish a basis for intervention, it is not sufficient for an applicant to assert that a sentencing Judge gave insufficient weight to one factor or another: Zhao v R [2016] NSWCCA 170 at [59]. The circumstances in which matters of weight will justify intervention by this Court are narrowly confined: Vaiusu v R [2017] NSWCCA 71 at [29].
It is apparent from the remarks on sentence that his Honour had regard to the Applicant's subjective circumstances arising from the documentary evidence and made a number of findings favourable to the Applicant after that assessment. The Applicant stood to be sentenced for a significant number of offences of very considerable seriousness involving his conduct in arranging leasing of premises for large commercial quantity cultivation and undertaking commercial cultivation in his own home where he lived with his partner and two children. His Honour had regard to the Applicant's subjective case and made findings which were taken into account on sentence.
It has not been demonstrated that the sentencing Judge gave insufficient weight to the Applicant's subjective circumstances in the determination of sentence in this case.
I would reject the second ground of appeal.
[7]
Ground 3 - Claim of Error in Not Making a Finding of Special Circumstances
Submissions of the Parties
Counsel for the Applicant submitted that a finding of special circumstances ought to have been made as this was to be the Applicant's first time in custody and that he would require assistance to address issues identified in the report of Mr Jones, psychologist. In oral submissions, Ms Kluss submitted that Ground 3 may be of greater practical significance if the Court found error and moved to resentence the Applicant.
The Crown submitted that his Honour's finding with respect to special circumstances was a discretionary finding of fact in respect of which the Court would be slow to intervene. It was submitted that the particular aspects relied upon by the Applicant with respect to special circumstances were considered by the sentencing Judge when he addressed issues of the Applicant's first time in custody, family hardship and the Applicant's depression and other disorders and gambling issues. The Crown submitted that it was open to the sentencing Judge to decline to make a finding of special circumstances in this case.
Decision
In R v Fidow [2004] NSWCCA 172, Spigelman CJ observed at [22] that simply because there is present in a case a circumstance which is capable of constituting a "special circumstance" does not mean that a sentencing Judge is obliged to vary the statutory proportion referred to in s.44 Crimes (Sentencing Procedure) Act 1999.
As Spigelman CJ observed in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at 719-720 [73], as a practical matter, there are unlikely to be many cases in which the Court of Criminal Appeal will interfere with respect to a finding concerning special circumstances unless the non-parole period is found to be manifestly inadequate or manifestly excessive. A claim of manifest excess is contained in the fourth ground of appeal to which I will shortly turn.
No error has been demonstrated in the sentencing Judge's approach declining to make a finding of special circumstances in this case.
The Applicant has not made good the third ground of appeal.
[8]
Ground 4 - Claim that the Sentence was Manifestly Excessive
Submissions of the Parties
Counsel for the Applicant made submissions in support of this ground by reference to other sentencing decisions and sentencing statistics.
It was submitted for the Applicant that the cases presented by the Crown to the sentencing Judge did present a pattern of sentencing relevant to the individual counts on the indictment and the relative indicative sentences which the Applicant submits points to both the indicative sentences and aggregate sentences being manifestly excessive. Reference was made to Nguyen v R [2009] NSWCCA 283, Phan v R [2010] NSWCCA 8 and Tran v R [2010] NSWCCA 72. It was noted that a sentence of imprisonment for seven years and six months with a non-parole period of five years was passed in Tran v R for an offence of knowingly taking part in the cultivation of a large commercial quantity of cannabis plants by enhanced indoor means, but it was submitted that the offender in that case made admissions that he had set up the operation and tended the plants and intended selling the plants for profit and that he had a prior offence of cultivation on his record.
Counsel for the Applicant submitted that sentencing statistics assisted the Applicant in support of this ground. The Applicant relied upon sentencing statistics from the Judicial Information Research System for large commercial quantity cultivation offences by enhanced indoor means between 2008 and 2017, with 135 cases revealing a range of full terms from 18 months to nine years' imprisonment.
It was submitted for the Applicant that the aggregate sentence was unreasonable or plainly unjust so that the manifest excess ground should be upheld in this case.
The Crown submitted that the comparative cases and the sentencing statistics do not assist the Applicant in this case to make good the ground asserting manifest excess. It was noted that the sentencing Judge considered the cases relied upon at the sentencing hearing before reaching the conclusion that the decisions did not assist in the passing of sentence. The Crown submitted that the decisions relied upon by the Applicant in this Court did not assist to demonstrate a range of sentences in support of a claim of manifest excess.
With respect to sentencing statistics, the Crown submitted that reliance upon bare statistics involving 135 cases with a range of head sentences from 18 months to nine years and with non-parole periods ranging from six months to six years did not assist the Applicant on this appeal. The Crown submitted that, even on the statistics presented, the indicative sentences imposed on the Applicant are within range, albeit at the higher end which is said to be appropriate given the findings made concerning the Applicant's objective criminality.
[9]
With respect to sentencing decisions for this category of offence, a helpful and relatively recent examination of the large commercial quantity cases may be found in the judgment of Garling J in Clarke v R (at [96] above).
It is useful to refer to a number of sentencing decisions which relate to offences involving a single property used for large commercial quantity cultivation by enhanced indoor means. Consideration of the cases referred to in the table does not support the Applicant's claim of manifest excess by reference to the indicative sentences in this case.
Case Number of Properties Number of Cannabis Plants Cultivated by Enhanced Indoor Means Head Sentence and Non-Parole Period
Nguyen v R [2009] NSWCCA 283 1 suburban property 202 cannabis plants 5 years 7 months
NPP 3 years 3 months
Tran v R [2010] NSWCCA 72 1 suburban property 210 cannabis plants 7 years 6 months
NPP 5 years
R v Nong [2010] NSWDC 227 1 suburban property 227 cannabis plants 3 years 4 months
NPP 20 months
R v Ly [2010] NSWDC 229 1 suburban property 227 cannabis plants 4 years 4 months
NPP 2 years 2 months
Phan v R [2010] NSWCCA 8 1 suburban property Number of plants not specified 5 years
value of crop approx. $500,000.00 NPP 3 years
R v LP [2010] NSWCCA 154 1 suburban property 274 cannabis plants 6 years
NPP 3 years 6 months
Co v R [2011] NSWCCA 148 1 suburban property 266 cannabis plants 7 years 6 months
NPP 4 years
Hanh Thi Nguyen v R [2011] NSWCCA 92 1 suburban property 317 cannabis plants 6 years 5 months
NPP 4 years 9 months
Stock v The Queen (2011) 206 A Crim R 574; [2011] NSWCCA 49 1 rural property 335 cannabis plants 9 years
NPP 5 years
Crawford v R [2013] NSWCCA 269 1 rural property 319 cannabis plants 7 years 6 months
NPP 5 years 7 months
R v Clarke [2015] 254 A Crim R 150; [2015] NSWCCA 232 1 rural property 1,997 cannabis plants 7 years
NPP 4 years
Duong: 4 years
R v Duong & R v Phan [2016] NSWDC 414 1 suburban property 653 cannabis plants NPP 2 years
Phan: 5 years
NPP 2.5 years
[10]
Statistics may serve as a yardstick by which a sentencing Judge may assess a proposed sentence and an appellate court may assess a challenge of manifest excess: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at 565 [47]. This Court has recognised the limitations of bare sentencing statistics which do not provide detailed information as to the circumstances of the offence and the offender so that statistics are, at best, a blunt tool for assessing whether or not a sentence is manifestly excessive. They provide no real assistance to the Applicant in this case.
The Applicant was fortunate that his separate criminality contained in the offences relating to cultivation of a commercial quantity in his own home were placed on a Form 1 to be taken into account on sentence for Sequence 8. The Form 1 cultivation offence exposed the Applicant's children to the cultivation process so that the observations of the Minister in the second reading speech for the 2006 Act (at [76]) are pertinent. In sentencing the Applicant for the Sequence 8 offence, it was necessary for the sentencing Judge to give greater weight to the need for personal deterrence and the community's entitlement to exact retribution for serious offences: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at 425-426 [22]. A longer sentence for the Sequence 8 offence would result: Abbas v R at 426 [23]. The sentence for Sequence 8 factored into the aggregate sentence so as to increase it from what would have applied if the Form 1 matters did not exist.
It may be said that the indicative sentences were substantial and the aggregate sentence passed was very substantial. However, to observe that a sentence is "very heavy" when compared to other sentences is not, without more, to conclude that it exceeded the bounds of sentencing discretion: The Queen v Pham at 568 [56]. The Applicant committed offences of a number and magnitude which required the imposition of a very substantial sentence after taking into account all factors relevant to the imposition of sentence, including the Applicant's subjective circumstances.
It is necessary for sentencing courts to give effect to the legislative purpose underpinning the creation of this new class of offence in 2006. As the extracts from the second reading speech for the 2006 Act make clear (at [74]-[78] above), there was a deep concern with respect to the role of organised crime in the commission of offences of this type. Experience in the courts since 2006 has done little to dispel community concern that organised crime remains involved in this class of offending for the purpose of obtaining substantial rewards from criminal activity. Concern has been expressed as to whether sentences passed for this class of offence have given effect to the legislative intention behind the 2006 Act (see [84]ff above). Decisions of the Court of Criminal Appeal have sought to emphasise the legislative purpose concerning this class of offending and it is important for the Court, in determining the present case, to emphasise once again that purpose.
[11]
Conclusion
The Applicant has not succeeded upon any of his grounds of appeal.
I propose that leave to appeal against sentence be allowed but that the appeal be dismissed.
N ADAMS J: I have had the significant advantage of reading the judgment of Johnson J in draft. I agree with his Honour's disposition of Grounds 2, 3 and 5. As for Ground 1, I respectfully disagree with his Honour's finding that no error is disclosed. I am satisfied that the sentencing Judge made factual findings regarding the Applicant's criminality which went beyond the evidence contained in the agreed facts. I also respectfully disagree with his Honour's conclusion that the aggregate sentence imposed on the Applicant is not unreasonable or plainly unjust (Ground 4). To put that in positive terms, I am satisfied that the aggregate sentence imposed is manifestly excessive.
For the purposes of this judgment, I adopt Johnson J's summaries of the relevant facts, submissions, transcript of the proceedings on sentence and reasons of the primary Judge. I am grateful to his Honour for his detailed exposition of the relevant principles.
Ground 5 - That his Honour erred by not according the Applicant procedural fairness in the conduct of the sentencing hearing in that his Honour did not afford the Applicant's counsel an opportunity to be heard in relation to the factual basis upon which he proposed to sentence
In relation to Ground 5, I agree that the complaint that the Applicant was not afforded procedural fairness in the conduct of the sentencing hearing cannot be sustained. The transcript of the proceedings on sentence shows that, not only did his Honour indicate that he would not be bound by the statement of agreed facts as to the Applicant's role, but also that the Applicant's Senior Counsel was able to and did in fact provide detailed submissions as to what finding should be made on this issue. Despite this, I am satisfied that his Honour fell into error in relation to the ultimate finding he made in this regard. I will consider this below in relation to Ground 1.
Ground 2 - That his Honour gave insufficient weight to the subjective circumstances of the Applicant
As for Ground 2, I agree with Johnson J that no House v The King (1936) 55 CLR 499; [1936] HCA 40 ("House v The King") error is disclosed by way of patent error in relation to the "weight" to be given to the Applicant's subjective features, although I will return to the question of possible latent error in this regard in my consideration of Ground 4.
Ground 3 - That his Honour erred in not making a finding of special circumstances and adjusting the ratio of the head sentence to the non-parole period
[12]
Amendments
15 October 2018 - [151] - Amendments to Table.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 October 2018
R v Fahda [2013] NSWCCA 86
R v Fidow [2004] NSWCCA 172
R v LP [2010] NSWCCA 154
R v Ly [2010] NSWDC 229
R v Nguyen; R v Tran [2011] NSWDC 135
R v Nong [2010] NSWDC 227
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Tran [2017] NSWDC 397
R v Uzabeaga (2000) 119 A Crim R 452; [2000] NSWCCA 381
R v Wei [2014] NSWDC 33
Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4
Stock v The Queen (2011) 206 A Crim R 574; [2011] NSWCCA 49
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Tran v R [2010] NSWCCA 72
Vaiusu v R [2017] NSWCCA 71
Vu v R [2018] NSWCCA 122
Wong v R [2010] NSWCCA 160
Zhao v R [2016] NSWCCA 170
Texts Cited: ---
Category: Principal judgment
Parties: Tony Tran (Applicant)
Regina (Respondent)
Representation: Counsel:
Ms S Kluss (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Ross Hill & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2015/245153
Publication restriction: ---
Decision under appeal Court or tribunal: District Court NSW
Jurisdiction: Criminal
Citation: R v Tran [2017] NSWDC 397
Date of Decision: 19 May 2017
Before: King SC DCJ
File Number(s): 2015/245153
The Offences, Indicative Sentences and Form 1 Matters
The Applicant pleaded guilty to five counts of knowingly taking part in the cultivation by enhanced indoor means of not less than the large commercial quantity of cannabis plants contrary to s.23(2)(a) Drug Misuse and Trafficking Act 1985, for which the maximum penalty is 20 years' imprisonment with a standard non-parole period of 10 years. In addition, the Applicant pleaded guilty to one count of knowingly taking part in the cultivation by enhanced indoor means of not less than the commercial quantity of cannabis plants contrary to s.23(2)(a), for which the maximum penalty is 15 years' imprisonment with no applicable standard non-parole period.
At all relevant times, the large commercial quantity for cannabis plants was 200 plants and the commercial quantity was 50 plants: s.23(2)(a), s.33(1)(a), (3)(b) and (4) and Schedule 1, Drug Misuse and Trafficking Act 1985.
It was the case that, with respect to each of the premises, the cannabis plants were being cultivated by enhanced indoor means: Crowley v R [2017] NSWCCA 99 at [29]-[35].
The sentencing Judge nominated the following indicative sentences for the large commercial quantity offences:
1. Sequence 8 - offence committed at Greenacre between 6 December 2012 and 5 July 2013 involving 418 plants - taking into account two offences on a Form 1, eight years' imprisonment with a non-parole period of six years;
2. Sequence 7 - offence committed at Stanmore between 17 September 2013 and 20 October 2013 involving 377 plants - imprisonment for six years and eight months with a non-parole period of five years;
3. Sequence 6 - offence committed at Kingsford between 13 June 2013 and 19 October 2013 involving 281 plants - imprisonment for six years with a non-parole period of four years and six months;
4. Sequence 5 - offence committed at Punchbowl between 22 March 2013 and 24 July 2013 involving 360 plants - imprisonment for six years and eight months with a non-parole period of five years;
5. Sequence 2 - offence committed at Lakemba between 8 May 2014 and 28 October 2014 involving 353 plants - imprisonment for six years and eight months with a non-parole period of five years.
For the commercial quantity offence (Sequence 4) committed at Croydon between 7 April 2013 and 21 March 2014 involving 177 plants, an indicative sentence of five years' imprisonment was noted.
The Applicant requested the sentencing Judge to take into account on sentence for Sequence 8, two further offences which related to the Applicant's own residential premises:
1. Sequence 11 - an offence at Glen Alpine on 21 August 2015 of enhanced indoor cultivation involving a commercial quantity of prohibited plants (80 cannabis plants), which exposed a child to the cultivation process contrary to s.23A(2) Drug Misuse and Trafficking Act 1985 which (if prosecuted separately) was punishable by a maximum penalty of 18 years' imprisonment;
2. Sequence 12 - an offence at Glen Alpine on 21 August 2015 of using or consuming electricity without authority contrary to s.64(1) Electricity Supply Act 1995 for which the maximum penalty (if the offence was prosecuted separately) was imprisonment for five years.
In reply, Mr James QC emphasised that the Applicant should be sentenced for his role in the offences, noting that there was no evidence of the Applicant having a "management role" or being involved in growing the crops (T33-34, 12 May 2017).
Remarks on Sentence
Given the issues raised in the Applicant's grounds of appeal, it is appropriate to set out parts of his Honour's remarks on sentence delivered on 19 May 2017.
After reciting the facts as contained in the Agreed Statement of Facts (R v Tran at [6]-[36]), the sentencing Judge referred to submissions made concerning the Applicant's role in the offences (at [37]-[39]):
"37 The Crown has submitted that the Court would find that the offender is a principal in relation to each of the offences. Mr James AM QC on behalf of the offender has submitted that the Court is restricted to sentencing the offender purely on the basis of the statement contained in the agreed facts, at para 25, that is, his role in relation to the above offences is 'confined to the negotiation and arrangement of the leases of the premises with the knowledge that they were to be used for the indoor cultivation of cannabis', as relating to each of the six offences that he is to be sentenced in respect of.
38 When the matter was last before the Court on 12 May 2017, having had the opportunity to read the facts which had been tendered on 3 March 2017, I indicated to the parties that I regarded the determination of the role of the offender to be a matter for the Court to determine and that the Court was not bound by any assertion in the agreed facts that the offender's role was so limited as previously referred to.
39 I accept in relation to the six offences for which he is to be sentenced (excluding the Form 1 offence) that the only evidence that the Crown was able to establish in relation to those offences was that the offender was responsible for negotiating, arranging and causing the leases to be entered into. However, there are matters relevant to his moral culpability beyond the bald statement contained in the agreed facts."
His Honour referred to authorities concerning fact-finding on sentence, including Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, O'Neil-Shaw v R [2010] NSWCCA 42 and Cherdchoochatri v R (2013) 277 FLR 126; [2013] NSWCCA 118, before turning to aspects relevant to determination of the role of the Applicant (at [44]-[64]):
"44 In Hanh Thi Nguyen [2011] NSWCCA 92, Simpson J stated, with Davies J agreeing, when dealing with the issue as to whether in the circumstances of that matter the offender could have been legitimately regarded as a principal:
'The role of principal involves at least some of the following characteristics:
1. Contributing financially to the cost of setting up the operation;
2. Standing to share in the profit (as distinct from receiving payment);
3. Some management of the operation; and
4. Some decision making'.
45 This list is not exhaustive.
46 As previously referred to, the only evidence of the offender carrying out any task in relation to each of the six matters in respect of which he is to be sentenced is that he arranged the leasing of the premises knowing that they were to be used for the cultivation of cannabis plants by indoor means.
47 The sentencing task has been made difficult for the Court because the facts have been sanitised of contextually relevant information. For example, there is no reference whatsoever in relation to any crops as to the stage of plant growth. Were the plants seedlings, cuttings which had taken root, or mature plants, or somewhere in between? Were there plants at any one location at various stages of growth, indicating a commitment to effect continuous production? There is no information in respect of any of the premises, including the premises relevant on the Form 1, as to the prospective value of any crop at maturity, or as seized.
48 There is no evidence as to the lease or rental fees relevant to any of the properties, including the Form 1 property. In respect of the commercial premises, and only in respect of Lakemba, is there any reference relevant to the assessment of the cost of leasing the premises. A one‑month rental bond in the amount of $7,800 had been provided to secure the premises. Those premises were originally leased or rented by the offender on 8 May 2014. Their possible use for the production of cannabis plants ended on 23 October 2014, when the search warrant was executed. That is a period of approximately five months. On that basis, if the rental bond represented one month's rent, the rent for the period of approximately five months would be $39,000.
49 In respect of information as to the equipment being utilised at each of the premises, there is in reality only relevant information in respect of Lakemba, being the reference in the facts to 126 high pressure sodium lamps, 146 lampshades, 137 transformers, eight power boards, temporary walls, and a water bath.
50 In respect of all other premises including Glen Alpine, there is nothing more than a simplistic anodyne description of a generic nature:
'Inside the premises, police located a sophisticated, hydroponic cannabis cultivation system, consisting of complex light, air filtration and extraction systems, and a self‑replenishing system.'
51 Not even that much of a description is provided in relation to the premises at Glen Alpine, which are simply referred to as a 'sophisticated hydroponic growing system containing 80 cannabis plants in the basement', with the additional information that the power had been diverted.
52 There is no information in the facts in relation to any other premises as to whether a similar process had occurred, that is, diverting the electricity.
53 Although each of the premises was subject to the execution of a search warrant, during the course of which it is standard practice by the investigating authorities to take photographs and/or a video recording, not a single photograph or video has been produced to the Court which might allow the Court to make some assessment of the matters that I have just referred to.
54 There is no evidence provided by the facts in relation to any of the premises as to whether there was any evidence of any past completed harvesting or processing, that is, drying plants or heads, nor evidence of any materials that might be utilised in the processing to bag up quantities.
55 Of particular note is that the premises at Stanmore were leased on 17 September 2013 and their use terminated on 20 October 2013 when the search warrant was executed. That is a period of approximately one month, an insufficient period for the maturation of any crop unless already well matured plants had been put into the premises after they were leased.
56 The longest period between the leasing of the premises and the termination of their use by the execution of the search warrant is in respect of the Croydon premises which were rented on 7 April 2013 and searched on 21 March 2014, a period of approximately 11 months, a period during which it would be entirely possible for at least one crop to have been grown to harvest, and a further crop, at least, substantially if not completely, also grown to harvest.
57 If it can be reasonably assumed that Lakemba provides some reasonable evidence of the lease costs applicable to the other premises, which, although in different suburbs, were all within the central metropolitan region, and also the likely amount of equipment that may have been required for at least each of the large commercial crops if not also the Croydon or Glen Alpine commercial crops, it is obvious that there must have been a very substantial investment in the overall undertaking, and the resources so substantial that substantial loss could be sustained as over time various premises were detected, searched and put out of operation. Nonetheless, from time to time further substantial investment was made in new premises to replace what was lost.
58 The first lease agreement was on 6 December 2012. The last lease entered into was on 8 May 2014. This is a period of activity by the offender, in relation to locating premises and entering into leases, of approximately 18 months.
59 The period over which the combined premises potentially operated is from 6 December 2012 in relation to the rental of the Greenacre premises until the search of the Lakemba premises on 23 October 2014, a period of almost two years. However, that ignores the offender's commission of the offences contained on the Form 1. As previously indicated, there is no information before the Court other than that Glen Alpine was searched on 21 August 2015 and that a hydroponic crop of 80 plants with the electricity diverted was located. From the first leasing of the Greenacre premises on 6 December 2012 until the detection of the Glen Alpine premises and their search on 21 August 2015 is a period of approximately two years and nine months.
60 A number of the premises were potentially in operation for co-extensive periods - Greenacre, Kingsford, Punchbowl and Croydon, although each not for the whole of the total period covered from first lease to final search. In respect of Greenacre, there was a seven month period from leasing to search, being the period from 6 December 2012 to 5 July 2013. In respect of Kingsford, the period was from 13 June 2013 to 19 October 2013, a period of approximately four months. In respect of Punchbowl, a period of approximately four months from 22 March 2013 to 24 July 2013. In respect of Croydon, a period of approximately 11 months from 7 April 2013 to 21 March 2014. In respect of Lakemba, a period of approximately five months from 8 May 2014 to 23 October 2014. In respect of Stanmore, a period of approximately one month from 17 September 2013 to 20 October 2013.
61 The offender was the person responsible for arranging the leasing of each of the premises with the knowledge that they would be used for the purposes of cultivating cannabis plants by enhanced means.
62 His commission of the offences in his own residence at Glen Alpine indicates that he was well aware of the means of production and had the necessary skills to himself run the operation in the basement of his own home. He was not some naïve person who had been brought into someone else's scheme with limited knowledge, a limited role and limited participation. The facts disclose an extensive and expensive criminal operation in respect of which, before entering into any lease, the offender had to have an intimate knowledge as to what was required for the purposes of production: that is, he had to be able to find appropriate premises that would provide the space, the security and the facilities that might be needed for the production. His conduct was essential to the location and commencement of production at each of the premises.
63 In relation to each of the six offences for which he is to be sentenced, each can be regarded, although there are differences in the quantity of plants, as being an offence approaching the mid-range of objective seriousness. In respect of the offence relating to his residential premises at Glen Alpine it is reasonable to regard him as clearly being the principal and clearly having a high moral culpability in respect of that offence.
64 The assessment of an appropriate sentence for this offender in respect of each of the six offences must have regard to what is demonstrated by the facts, being a criminal enterprise of a very substantial and significant nature and in respect of which his role was essential and his moral culpability high, as he full well knew the nature of the activity to be engaged in."
His Honour then referred to principles concerning Form 1 offences (at [65]-[66]) before returning to the Applicant's role in the offences (at [67]-[75]):
"67 Any sentence imposed on the offender in relation to these offences must reflect the individual offence within the overall conduct as demonstrated by what he actually did.
68 In relation to the six offences there is little point in trying to ascribe a descriptive term to his role. As I have already indicated his role was essential and carried out over a significant period of time with full knowledge of the purpose.
69 It is significant in respect of these matters that with one exception, in relation to the premises at Lakemba, no other person was ever identified by the authorities as having any role at all to play in the individual offence.
70 The offender has not given evidence on sentence. He did not participate in a record of interview or at any time offer assistance to the authorities to identify any other person in respect of the commission of any of the offences.
71 Where an offender seeks to be dealt with on the basis of some mitigating circumstance, such as a lesser role, it is for the offender to provide appropriate evidence to assist the Court in finding such a lesser role on the balance of probabilities. The offender has not done so.
72 This matter first came before me on 3 March 2017 at which time on the application of Mr James AM QC the matter was adjourned so that further materials could be obtained. The Crown bundle was tendered, and the matter returned before me on 12 May 2017.
73 In the intervening period I had had the opportunity to read the agreed facts. When the matter returned, apart from indicating that I did not regard myself as bound by the agreed passage in the facts as to role, I also inquired of the Crown, in the circumstances where so many premises had been the subject of search warrants, as to whether or not any other person had been arrested in relation to any of the offences, such information being essential, if there had been other persons arrested, to any issue of parity. It was not until the Court made that inquiry that the Prosecution first informed the Court that there had been two persons arrested in relation to the Lakemba premises. The Prosecution was unable to provide the Court with the reasons on sentence of Judge Norrish in respect of Phuong Nam Pham, on 15 December 2015, nor in respect of Thanh Chung Nguyen, on 21 October 2016, although the DPP representative was able to provide some facts and the notes of an officer of the DPP in relation to the sentencing of Nguyen. It was apparent that despite knowing of the other persons charged in respect of Lakemba, the Prosecution had not sought to obtain the remarks on sentence in each case of Norrish QC DCJ.
74 Fortunately, my associate was able on that day to obtain the revised judgments from Norrish QC DCJ's associate, and they were provided to each of the parties when available so that any necessary submissions could be made and entertained on that day rather than any further delay caused.
75 I have read each of the decisions of Norrish QC DCJ in relation to Pham and Nguyen so that I might consider whether there are any parity issues to be taken into account. In each case there are significant differences between the conduct of those individuals and/or the number of offences in respect of which they were dealt with, and while I have taken into account the sentences that were imposed on them, in my view there is no significant issue in relation to parity, each of the matters being capable of substantial distinction from this offender."
The sentencing Judge then considered the Applicant's subjective circumstances including the various reports and references tendered in the defence case (at [76]-[112]).
His Honour considered (at [113]-[119]) other sentencing cases which had been referred to in submissions:
"113 The Crown provided a short schedule of cases relating to large commercial quantities grown by enhanced indoor means. The schedule contains little detail other than the number of plants, whether it was a plea of guilty, the sentence imposed and some very brief facts. The cases referred to are Bui [2008] NSWCCA 314, Nguyen [2009] NSWCCA 283, Phan [2010] NSWCCA 8, and Tran [2010] NSWCCA 72. The schedule itself in its form was of no assistance. Accordingly, I have located each of the relevant cases and perused them to determine whether they had any particular relevance to the sentencing in this matter.
114 In each case, the offending related to a single offence. The circumstances of these matters and this offender are so substantially different that I have not found any assistance from going to the cases referred to in the Crown's schedule.
115 As a result I have also turned to the statistics available through JIRS which can now be tunnelled down to individual cases where they have been reported either at first instance or as a result of an appeal to the Court of Criminal Appeal. I note that there are a very significant number of offences, in excess of 80, recorded in the statistics.
116 I have, however, despite the time spent to try and find relevant matters which might provide some guidance, been unable to find any matter of a like nature to the offending by this offender. As the Court of Criminal Appeal has remarked on many occasions, the statistics are a very blunt tool.
117 I have taken into account in determining the appropriate sentences the maximum provided by the section and also had regard to the standard non‑parole period as a guide, although I note in respect of all of these matters that the offender has pleaded guilty."
The sentencing Judge turned to the Applicant's criminal history, his prospects of rehabilitation and the discount to be applied for his pleas of guilty (at [118]-[119]):
"118 In view of the offender's lack of past relevant criminal offending, and despite the period of time over which these offences occurred, I am of the view that there is a reasonable prospect of rehabilitation and a low prospect of reoffending.
119 As previously referred to, he is entitled to a 25% discount in respect of each offence for the utility of the plea. I intend to proceed by way of an aggregate sentence, and as a result I am required by the legislation to provide an indicative sentence in relation to each of the individual offences before the Court for sentence. I will deal with them in the same order as I have dealt with them as rearranged from the facts."
His Honour specified the indicative sentences for the offences (as set out earlier at [8]-[9]) and then continued (at [127]-[131]):
"127 It will be evident to the parties from those indicative sentences that I have not found special circumstances. I note the letter to the Court from the offender's current wife and the psychological report suggesting that she is suffering from a major depressive disorder and receiving treatment for it and is living in more constrained circumstances, having lost the benefit of any income from whatever source that her husband brought into the family relationship. She now relies solely on the Newstart allowance and is said to have had to move properties to something more affordable. She is said to have suffered from insomnia, weight loss, low mood, feelings of helplessness, suicidal ideation with planned intention and high anxious arousal about her future. Those symptoms caused clinically significant distress and impairment on her social, occupational and other important areas of functioning, which are likely to remain poor for the period her husband remains detained. That is of course one of the unfortunate consequences of one's partner committing serious criminal offences. Specifically in respect of the hardship in respect of family in King v R [2010] NSWCCA 202 at [18] it was said:
'Hardship to an offender's family caused by imprisonment is generally an irrelevant consideration and can only be taken into account in highly exceptional circumstances in justifying a non‑custodial sentence: R v Edwards (1996) 90 ACrimR 510 at 516.'
128 There are circumstances, however, that whilst not sufficiently exceptional to justify a non-custodial sentence, are sufficiently exceptional in a suitable case to justify a finding of special circumstances: R v Grbin [2004] NSWCCA 220; R v Murphy [2005] NSWCCA 182.
129 In this matter, I have taken into account all of the matters that I have previously referred to. While the offender had a minimal criminal record and nothing relevant as I have previously said, it is impossible to regard him as being a person of good character in the light of the extensive offending and the substantial and significant nature of it.
130 The Court is required to impose not simply a sentence that reflects an individual charge, but also the overall offending conduct. Any sentence must reflect the objective seriousness of the offence as well as the need for general and specific deterrence, as well as meeting the fundamental purpose of punishment: the protection of society.
131 In relation to matters such as this where the offending is difficult to detect and where offenders, at whatever level of involvement, are frequently protected by any individual who is in fact arrested in respect of the offence, general deterrence is an extremely important factor. The imposition of an aggregate sentence must take into account by way of the totality of the offending and the need for the sentence to provide an effective deterrent to others. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act that there is no possible alternative other than a penalty of imprisonment. Appropriately, no submission has been made to the contrary."
The sentencing Judge declined to make a finding of special circumstances (at [135]):
"As I have previously referred to, I can discern no special circumstances in relation to this matter. The fact that it is the offender's first time in custody is not of itself a special circumstance, nor is there any other relevant factor combined with that that has persuaded me that special circumstances are appropriate. In particular, I note that the sentence has a balance of term or potential parole period of three years and four months. The regulations provides for a maximum three year period of supervision on parole in almost all circumstances. The potential parole period is four months more than might already be the subject of supervision."
His Honour imposed the aggregate sentence referred to at [3] above.
In view of the first offence on the Form 1 in the Applicant's case, it is pertinent to note the following statement by the Minister in the second reading speech:
"Item [8] introduces offences into the Act with respect to the enhanced indoor cultivation of prohibited plants in the presence of children. The aggravated offences take the same form as those included in the recent Drug Misuse and Trafficking Amendment Bill 2005, and recognise the inherent risks to children of exposure to the hydroponic process, such as fire, electrocution, extreme heat, dangerous chemicals, insecticides and fumes as well as toxic gases and airborne bacteria. Maximum penalties for the aggravated offences will be 20 per cent higher than for existing offences."
Also relevant to the present case was the following statement by the Minister:
"Due to the widespread practice among organisers of hydroponic cannabis operations to steal electricity from the grid to operate their lights, ventilators and other equipment, the bill also amends the Electricity Supply Act 1995 to increase maximum penalties associated with this practice."
The Minister concluded the second reading speech in the following way:
"In summary, the measures in the bill constitute yet another decisive response by the Government to developments in drug crime as they emerge. The new laws have been designed in such a way as to specifically target the commercial cultivation of prohibited plants through hydroponic and other enhanced indoor means, and will ensure that maximum penalties for these offences accurately reflect the level of commerciality and criminality involved."
It may be seen from the second reading speech that the mischief to which the 2006 legislation was directed included the suppression of organised criminal activity, whereby extremely valuable cannabis crops could be cultivated in residential or commercial premises in urban areas utilising hydroponic cultivation measures and illegally diverted electricity. The legislation was directed at suppressing a lucrative market where valuable crops were cultivated in places which were effectively hidden in plain sight in urban communities. As the Minister made clear in the second reading speech, there was a substantial increase in penalties for these offences when compared to available sentences and past sentencing practices for offences of cultivation and supply of cannabis under the pre-existing law. This was achieved in practice by reducing the large commercial quantity for cannabis plants cultivated by enhanced indoor means to 200 plants (from 1,000 plants for other forms of cultivation) and the commercial quantity to 50 plants (from 250 plants for other forms of cultivation).
As the Minister made clear in the second reading speech, the legislation was directed to the cultivation of large commercial and commercial quantities of prohibited plants by enhanced indoor means. For large commercial quantity offences, the maximum penalty was imprisonment for 20 years. For commercial quantity offences, the maximum penalty was imprisonment for 15 years.
Amendments made by the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Act 2006 came into force on 14 July 2006.
In 2008, a standard non-parole period of 10 years was introduced for offences of cultivating a large commercial quantity of cannabis plants by enhanced indoor means: Crimes (Sentencing Procedure) Amendment Act 2007.
A number of decisions of the Court of Criminal Appeal and the District Court have referred to sentencing for this class of offence. In Pham v R [2009] NSWCCA 266, Latham J (Young JA and Hidden J agreeing) referred (at [14]) to the second reading speech for the 2006 Act and then considered submissions made by reference to decisions for offences committed under the penalty regime which existed before the commencement of the 2006 Act. Latham J emphasised (at [20]) the need to direct attention to the regime created by the 2006 Act:
"This analysis suffers from the same flaw as the comparison sought to be made with Godden and Quan, namely, the applicant is not comparing like with like. In the light of the legislative change to the relevant quantity for the purpose of exposing offenders to a maximum penalty of 15 years imprisonment for the cultivation of not less than 50 plants, it is simply not correct to draw an analogy with other sentences imposed under an entirely different penalty regime. Under the Drug Misuse and Trafficking Act the quantity of the drug, and its relationship to the categories 'indictable', 'commercial' and 'large commercial', are significant determinants of the seriousness of the offence ; R v Sciberras [2006] NSWCCA 268 ; (2006) 165 A Crim R 532 ; R v Truong [2006] NSWCCA 318. The applicant's offence is prima facie more serious than like offences under the former penalty regime considered by this Court."
On more than one occasion, concern has been expressed by sentencing Judges that sentences imposed for offences created by the 2006 Act did not appear to meet the legislature's intention for such offences. In R v Nong [2010] NSWDC 227, his Honour Judge Berman SC said at [1]-[3]:
"1 HIS HONOUR: Guanglong Nong appears for sentence today after having pleaded guilty at an early stage to an offence of knowingly taking part in the cultivation of a large commercial quantity of cannabis by enhanced indoor means. That is a relatively new offence created as a result of community concern of high quality cannabis being grown in indoor locations, that high quality cannabis having high concentrations of tetrahydrocannabinol, and thus causing more harm to the community than more traditional methods of cannabis cultivation.
2 Not only was the offence created but it carries with it a standard non parole period of ten years. Both the creation of the offence and the [relevant] standard non parole period are clearly an indication of the seriousness with which offences of this type are to be considered.
3 I will say at once that the authorities on which the Crown and Mr Brassil rely would perhaps suggest that the legislature's intention has not yet been met."
When sentencing a co-offender of Mr Nong in R v Ly [2010] NSWDC 229, his Honour Judge Berman SC expressed similar sentiments at [8]:
"I earlier sentenced Mr Nong. At the time I commented that from the information available to me regarding other sentences imposed upon those convicted of cultivating a large commercial quantity of cannabis by enhanced indoor means do not appear to have reflected the seriousness with which the legislature says such offences should be treated. The sentencing statistics and cases which I was provided with today have only confirmed that view. Nevertheless, it is not for me to make an example of this offender in order to correct what I believe is an inappropriate leniency being offered to people who have committed this offence. Given the standard non-parole period of ten years, it is remarkable that the sentencing statistics would suggest that the longest head sentence imposed for an offence of this kind is only seventy per cent of the standard non-parole period."
In Stock v R (2011) 206 A Crim R 574; [2011] NSWCCA 49, Schmidt J (McClellan CJ at CL and Buddin J agreeing) noted at 587 [46] the "relatively new statutory construct" made by the 2006 Act which saw the large commercial quantity set at 200 plants as opposed to the pre-existing level of 1,000 plants, with a standard non-parole period of 10 years being introduced in 2008 for large commercial quantity offences. Schmidt J referred to a number of sentencing decisions for offences under the 2006 Act with her Honour observing (at 588 [52]) that no sentencing pattern or range relevant to the offence can be discerned from the material relied on for the Applicant in that case. Schmidt J observed (at 589 [54]-[55]) that the schedules of cases provided to the Court furnished some support for the Crown submission that sentences imposed on offenders for this offence might be considered to be too light.
The Court in Stock v R dismissed a sentence appeal from a sentence of nine years' imprisonment with a non-parole period of five years for one large commercial quantity offence committed on a rural property (335 plants).
In Co v R [2011] NSWCCA 148, RS Hulme J (Giles JA and Adams J agreeing) referred to the observations of his Honour Judge Berman SC in R v Ly in the context of dismissing a sentencing appeal for a large commercial quantity by enhanced indoor means offence. The applicant had been sentenced to imprisonment for seven years and six months with a non-parole period of four years for a large commercial quantity offence committed in suburban residential premises (266 plants). His Honour said at [27]-[29]:
"27 The principal argument advanced was that the Applicant's sentence was very high by comparison with almost all other sentences imposed in the District Court for offences of a like nature.
28 That proposition, particularly insofar as the head sentence is concerned may be accepted. However, note might also be made of remarks of Berman DCJ in R v Hung Phuc LY (unreported, 7 October 2010):-
... other sentences imposed upon those convicted of cultivating a large commercial quantity of cannabis by enhanced indoor means do not appear to have reflected the seriousness with which the legislature says such offences should be treated.
29 I have not found it necessary for the purposes of resolving this appeal to carry out any comprehensive review of the sentences to which his Honour referred although it is fair to say that the statistics provide a deal of support for his Honour's view. Those statistics, the latest of which reflect sentences imposed prior to December 2009, show that of twenty five offenders who pleaded guilty to the offence of cultivating a large commercial quantity of cannabis by enhanced indoor means, the median head sentence imposed was of 4 years and the median non-parole period was of 2 years. Even making allowance for offenders' pleas, the latter figure is so far removed from the standard non-parole period of 10 years as to be surprising."
RS Hulme J then referred (at [30]-[35]) to a number of decisions of this Court which supported the conclusion that the sentence imposed at first instance in Co v R was not manifestly excessive: Phan v R [2010] NSWCCA 8; Tran v R [2010] NSWCCA 72; R v LP [2010] NSWCCA 154; Wong v R [2010] NSWCCA 160 and Pham v R [2011] NSWCCA 3.
His Honour Judge Berman SC returned to this topic in R v Nguyen; R v Tran [2011] NSWDC 135 where his Honour said at [1]-[3]:
"1 HIS HONOUR: It is undeniable that the community has become increasingly concerned about the hydroponic cultivation of cannabis. That concern is reflected in an amendment to the Drug Misuse and Trafficking Act creating the offence of cultivating a prohibited plant by enhanced means.
2 The concern arises because of a growing awareness that cannabis cannot accurately be described as a soft drug; that it causes substantial harm both to the users of that drug, and to the community in general; and because the enhanced means usually have the effect of increasing the concentration of tetrahydrocannabinol in the plants, which make the drug thereby produced much more potent.
3 In those circumstances it is incumbent upon the Courts to respond appropriately when offences such as those currently before me are detected."
Later in that decision, his Honour noted (at [34]) that almost all of the cases on a schedule handed up by defence counsel in that case concerned offenders with Vietnamese names. His Honour noted that the explanation offered for this was that the offenders' instructing solicitor was Vietnamese and he had contacts in the Vietnamese community.
It must be observed, however, that the names of offenders referred to in cases mentioned in this judgment point to a preponderance of Vietnamese offenders especially in cases involving cultivation by enhanced indoor means in the Sydney metropolitan area (as opposed to rural areas).
In R v Wei [2014] NSWDC 33, his Honour Judge Berman SC observed (at [1]) with respect to persons who became involved in offences of this type as "crop sitters" or labourers:
"It seems now relatively commonplace for uneducated Asians illegally in Australia to be approached by those involved in what must be fairly large scale cannabis supply, to look after their hydroponic cannabis growing operations."
In R v Clarke [2014] NSWDC 35, his Honour Judge Berman SC referred again to the pattern of sentencing for offences of this type. His Honour said at [1]-[2]:
"1 HIS HONOUR: The offence to which Joshua Jack Clarke has pleaded guilty carries with it a maximum penalty of 20 years imprisonment and a standard nonparole period of ten years. The parties today have reminded me of what I earlier said about sentencing for offences of this type. In R v Ly [2010] NSWDC 229 I said that from information available to me, sentences imposed upon those convicted of cultivating a large commercial quantity of cannabis by enhanced indoor means do not appear to have reflected the seriousness with which the legislature says such offences should be treated. Nothing I have seen since handing that decision down in October 2010 has caused me to alter my view.
2 Nevertheless, as I noted in Ly, it is not for me to take an idiosyncratic view, different from those of my judicial brethren, and more importantly it is not for me to take a view inconsistent with that of the Court of Criminal Appeal when it has considered appeals regarding sentences for offences of this type."
In Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232, the Court of Criminal Appeal dismissed an appeal from the sentence imposed by his Honour Judge Berman SC in R v Clarke, being imprisonment for seven years with a non-parole period of four years for one large commercial quantity offence committed on a rural property (1,997 plants). Basten JA said at 153-154 [6]-[7]:
"6 In earlier remarks the judge referred to his own earlier reasoning in R v Ly and stated that 'sentences imposed upon those convicted of cultivating a large commercial quantity of cannabis by enhanced indoor means do not appear to have reflected the seriousness with which the legislature says such offences should be treated.' The judge then noted that it was 'an idiosyncratic view' and not consistent with the view taken by this Court with regard to sentences for such offences.
7 These reasons demonstrated a real and understandable dilemma. There is no doubt that, with respect to some offences for which standard non-parole periods are specified, more weight is given to the standard than in other cases. That is partly because there appears to be a degree of arbitrariness in fixing the standard periods. However, for present purposes, the significance of the statement by the sentencing judge is that, because it expresses a reasonable and understandable concern, it is not possible to support a ground which alleges that he placed 'too much emphasis on the standard non-parole period' (being ground 1 on the proposed appeal). At least that is so unless it could be said that he did not follow his own precept. However, as explained by Garling J, the sentence imposed was not outside the range indicated by earlier judgments of this Court. It follows that ground 1 cannot succeed."
In the leading judgment of the Court in Clarke v R, Garling J said at 169-170 [112]-[120]:
"112 The Court has been referred to a significant number of cases which have dealt with similar offences. I will shortly mention two of these.
113 No one case will be identical with the issues presented here. The factors to which this Court has in the past had regard include the size, sophistication and complexity of the indoor-enhanced cultivation; the number of plants or quantity of cannabis produced by the operation and seized by the police; the role of the particular offender, namely whether the offender was a principal or an employee, or in some cases merely a watchman; and the various subjective circumstances applicable. Usually, but not universally, the sentences imposed have followed early pleas of guilty, and involved discounts of about 25%.
114 In 2013, this Court in Crawford v R [54], imposed a sentence of imprisonment of a non-parole period of 5 years and 7 months, and a total term of 7 years and 6 months in circumstances where there was a total of 319 plants and 3.476kg of cannabis leaf seized from a sophisticated hydroponic cultivation system.
115 The offender, in that case, who had engaged in the conduct because of financial difficulties, was considerably more mature than the applicant in the present case, and was regarded as the principal.
116 In Co v R [55], this Court dismissed an appeal against a sentence of 7 years and 6 months imprisonment including a non-parole period of 4 years where the applicant nurtured 266 plants for a period of 3 months and was fully involved in all aspects of the cultivation process, and as well, intended harvesting the plants for himself with the intention of selling the harvested leaf. The applicant was 44 at the time of his arrest and had no prior criminal history. He had had a difficult childhood including being a refugee from Vietnam.
117 As well, this Court was provided with a printout of statistics of a variety of offences against the section under which the applicant was charged.
118 The Court's approach to other cases and to statistics is well-known and does not need to be restated. I have carefully read and considered all of the cases to which reference has been made. The factors applicable in each case vary amongst themselves. In some cases, when compared with this case, the offenders were older. Some had no previous criminal history, others did. In some cases the quantity of drugs was less, in other cases somewhat greater.
119 No precise comparison is possible. However, having carefully read and considered those cases, what can be discerned is that the sentence imposed here did not fall outside either the top or bottom end of the ranges so as to enable it on that account to be described as manifestly excessive.
120 Nor am I persuaded that this is so. The sentencing Judge paid careful attention to the nature of the offence, the significant margin by which the number of plants exceeded the level required for a commercial quantity, the early plea of guilty, the subjective factors of the applicant and the sophistication of the operation, including his limited role in it."
In the course of dismissing an appeal against sentence for an offence of cultivating a commercial quantity of cannabis plants by enhanced indoor means in Kresovic v R [2018] NSWCCA 37, Hoeben CJ at CL (Campbell and N Adams JJ agreeing) observed at [46]:
"When assessing the objective seriousness of offences of this kind 'What can be discerned by way of 'unifying principles' from the cases is that two important factors relevant to the sentencing in this area are the scale and sophistication of the cultivation and the role of the offender, whether as a principal or a 'babysitter' or something in between'. (Beech-Jones J (at [46]) in Andreata v Regina [2015] NSWCCA 239 (Ward JA and Adams J agreeing.) The findings made by his Honour demonstrate that he gave careful consideration to these important factors. No error of the kind required in House v The King has been established and accordingly, this ground of appeal has not been made out."
In Vu v R [2018] NSWCCA 122, this Court dismissed a sentence appeal from an aggregate sentence of eight years' imprisonment with a non-parole period of four years for commercial quantity offences committed in four residential properties in the Sydney metropolitan area. Like the Applicant's case, the offences in Vu v R involved multiple locations. However, the present Applicant's offences involve seven separate locations with five of the offences involving large commercial quantities.
Cultivation of cannabis plants by enhanced indoor means is not a phenomenon confined to the State of New South Wales. Sentencing courts in Victoria have been called upon to consider the approach to sentencing for offences of this type. A feature which has been emphasised in Victoria is the practice of stealing electricity as part of criminal enterprises of this type. It has been said that offences of stealing electricity add to the cultivation offences in two important ways, by making the enterprise more profitable and assisting in the concealment of the enterprise: Nguyen v R [2013] VSCA 63 at [30]. In Vu v R, I observed (at [77]) that offences of this kind involve a substantial unlawful diversion of electricity, a valuable community service.
It may be seen that the New South Wales Parliament intended by the 2006 Act, fortified by the inclusion of a standard non-parole period of 10 years for large commercial quantity offences from 2008, that there be a substantial sentencing response by the Courts to offences of this type.
What has been said so far by this Court or the District Court with respect to sentences imposed for such offences is to be considered now in the context of the Applicant's case where his offences are virtually unprecedented in nature with five large commercial quantity offences relating to five separate premises in different places in the Sydney metropolitan area and a commercial quantity offence relating to another metropolitan location. In addition, the Applicant's Form 1 offences involved a commercial crop in his own residence in Sydney.
It is understandable that the sentencing Judge considered that this case occupied a different category when compared to earlier sentencing decisions in this State for offences under the 2006 Act.
Recently, in DL v The Queen (2018) 92 ALJR 764; [2018] HCA 32, Bell, Keane, Nettle, Gordon and Edelman JJ said at 772 [39] (footnotes omitted):
"Notwithstanding the adversarial nature of criminal proceedings, the public interest in the sentencing of offenders is such that the sentencing judge (or the appellate court in the case of re-sentencing) is not constrained by any agreement between the parties as to the appropriate range of sentence or by concessions made by the prosecutor. Where, however, the judge (or the appellate court in the case of re-sentencing) is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court."
In reciting these principles, their Honours adverted to the well-known principles in GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at 211 [30]-[31].
As the summary of the sentencing proceedings set out above (at [57]-[61]) indicates, the sentencing Judge made clear to the parties on 12 May 2017 that he was concerned with respect to aspects of the material tendered at the sentencing hearing and that it was a matter for the Court to make findings of fact for the purpose of sentence. His Honour placed the very experienced Senior Counsel appearing for the Applicant at first instance on notice of these issues. The Applicant was given an opportunity to make submissions or to seek to call evidence on these issues if he wished. Submissions were made by Senior Counsel for the Applicant and the Crown in the District Court after his Honour's indications. The findings made by the sentencing Judge in his remarks on sentence explained his approach and indicated how he had reached his findings by reference to the evidence on sentence.
As the sentencing Judge observed, the Applicant's offences included an unusual combination of offences concerning six separate premises where cultivation was being undertaken by enhanced indoor means together with cultivation of that type taking place in the Applicant's own residential property. The Applicant's offences involved direct involvement by him in what was happening inside his own home, which was conduct of the same type which was being undertaken in the various premises in the metropolitan area with respect to which he played a key role in arranging the leasing of the premises.
It has not been demonstrated that the Applicant was denied procedural fairness in the sentencing process. Rather, the sentencing Judge placed the Applicant and his legal representatives on notice in accordance with the requirements of the law and then heard submissions and determined the matter upon the basis that it was for the Court to make findings of fact on sentence.
As the High Court of Australia has made clear, there is a significant public interest in the sentencing of offenders by the Courts. His Honour exercised the sentencing function in this case in a manner which did not involve any denial of procedural fairness (or practical injustice) to the Applicant.
Having made clear his concerns in this regard, his Honour proceeded to hear submissions and then pass sentence in a manner which complied with the law.
Before leaving this ground, it is appropriate to observe that his Honour's concerns about the material placed before the sentencing Court were understandable. It was reasonable to expect that more evidence of a type seen on sentence for offences of this type would have been tendered, including photographs and evidence concerning the maturity of the crops. Likewise, it was to be expected that the Crown would place before the Court the sentencing remarks for other persons sentenced with respect to one or other of these drug crops: Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4 at 497 [70]-[71].
I would reject the fifth ground of appeal.
Consistent with the Statement of Agreed Facts, his Honour found that the Applicant was responsible for arranging the leasing of each of the six premises with the knowledge that they would be used for the purpose of cultivating cannabis plants by enhanced indoor means. His Honour noted, consistent with his indication to the parties during the sentencing hearing, that there were matters relevant to the Applicant's moral culpability "beyond the bald statement in the agreed facts". In particular, his Honour concluded that the Applicant had to be able to find premises that would provide the space, security and facilities for cannabis plants to be cultivated.
As the Crown noted, the Applicant's plea of guilty to each of the knowingly taking part in the cultivation offences at the commercial and large commercial quantity levels indicated his knowledge or belief that amounts of plants of or above those quantities would be cultivated (R v CWW (1993) 32 NSWLR 348 at 355), and his conduct fell comfortably within the broad definitions of "cultivate" and "take part in" in the Drug Misuse and Trafficking Act 1985.
By arranging the leasing of each of the premises which were the subject of the large commercial quantity and commercial quantity offences, the Applicant displayed a level of criminality which may be categorised properly as approaching the mid-level of objective seriousness.
It has not been demonstrated that his Honour erred in his assessment of the objective seriousness of the offences.
I would reject the first ground of appeal.
The Crown submitted that the Applicant pleaded guilty to six separate offences carried out over a significant period of time involving a total number of 2,040 cannabis plants. It was submitted that the sentencing Judge had regard to the substantial objective gravity of the Applicant's offences and other relevant factors, including the need for specific and general deterrence to be reflected on sentence.
The Crown submitted that it had not been demonstrated that the aggregate sentence was manifestly excessive.
Decision
The Applicant contends that the aggregate sentence was manifestly excessive. In Newman v R [2018] NSWCCA 208, the Court observed at [47]:
"When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:
(1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;
(2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;
(3) it is not to the point that this Court might have exercised the sentencing discretion differently;
(4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and
(5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust."
It is necessary to keep in mind the origin of these offences in 2006 (at [74]-[80] above), the maximum penalties and the standard non-parole period for large commercial quantity offences. The references to sentencing cases for this class of offence (at [83]-[100] above) do not assist the Applicant in his claim that the indicative sentences and the aggregate sentence are manifestly excessive.
The Applicant pleaded guilty to six separate offences relating to six separate properties which had been committed over a significant period of time. The scope of the Applicant's offending may be discerned from the following table which summarises the range of dates, premises and quantities of cannabis plants together with the percentage by which the quantity in question exceeded the statutory threshold and identification of the indicative sentences specified:
SEQ Number of Cannabis Plants Location/Search Warrant Date Maximum Penalty % over Threshold Indicative Sentence
Large commercial quantity Greenacre 20 years 8 years
8 418 cannabis plants 5/07/13 SNPP 10 years 109% NPP 6 years
(incl. Form 1 offences)
5 Large commercial quantity Punchbowl 20 years 80% 6 years 8 months
360 cannabis plants 24/07/13 SNPP 10 years NPP 5 years
4 Commercial quantity Croydon 15 years 254% 5 years
177 cannabis plants 21/03/14
6 Large commercial quantity Kingsford 20 years 40.5% 6 years
281 cannabis plants 19/10/13 SNPP 10 years NPP 4½ years
7 Large commercial quantity Stanmore 20 years 88.5% 6 years 8 months
377 cannabis plants 20/10/13 SNPP 10 years NPP 5 years
2 Large commercial quantity Lakemba 20 years 76.5% 6 years 8 months
353 cannabis plants 28/10/14 SNPP 10 years NPP 5 years
Both specific deterrence and general deterrence play an important part on sentence for this class of offending as does the need for adequate punishment and denunciation of the offending conduct: s.3A(a), (b) and (f) Crimes (Sentencing Procedure) Act 1999. Persons who commit these offences do so for the purpose of substantial financial gain and there is a significant level of organisation involved concerning the selection and use of both residential and commercial premises for these illegal purposes. The number of premises in this case fortifies the conclusion that this was organised criminal activity in which the Applicant played a very important role. The sentencing Judge was correct to emphasise the importance of specific and general deterrence in sentencing the Applicant.
The sentencing Judge had regard to the objective gravity of the offences and the Applicant's subjective circumstances, together with all pertinent sentencing principles including the need for specific and general deterrence. The indicative sentences fixed were substantial, but each was open in the circumstances of the case. The aggregate sentence imposed upon the Applicant was a very substantial one, at least compared with other sentencing decisions for offences of this type. That said, as has been emphasised already, the Applicant's offences extend significantly beyond other offences of this type which have been prosecuted in the courts, in particular by reference to the number of properties involved.
An aggregate sentence of considerable magnitude was called for in this case. It has not been demonstrated that the aggregate sentence imposed upon the Applicant was unreasonable or plainly unjust.
I would reject the fourth ground of appeal.
As for Ground 3, I agree with Johnson J that no House v The King error is disclosed in the exercise of the sentencing Judge's discretion not to vary the statutory ratio in this matter under s.44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"). The sentencing Judge was not in fact satisfied that there were any special circumstances in this matter. Decisions such as R v Fidow [2004] NSWCCA 172, referred to by Johnson J at [137], establish that just because there are circumstances capable of amounting to special circumstances, it does not follow that a sentencing Judge is obliged to vary the statutory ratio between the head sentence and non-parole period. It will always be a matter of judicial discretion. It is of interest to note, however, that as Button J recently observed in Brennan v R [2018] NSWCCA 22 at [72]-[78], evidence shows that the statutory ratio was varied following findings of special circumstances in more than 91% of cases where a non-parole period was imposed in the seven-year period up to 2013. As his Honour observed at [78], there is no reason to conclude that this percentage has changed in more recent years. Spigelman CJ had earlier noted in Fidow v R that "[t]here is evidence that findings of special circumstances have become so common that it appears likely that there can be nothing 'special' about many cases in which the finding is made." (at [20]).
Ground 1 - That his Honour erred in his assessment of the objective criminality of the offending
In relation to Ground 1, Johnson J has set out at [122] the relevant principles to apply when an assertion of error on the part of a sentencing Judge is made regarding the finding of objective seriousness on appeal. I adopt those principles for the purpose of my reasons. In the present matter, the sentencing Judge categorised the objective seriousness as "approaching the mid-range". Thus, his Honour found that the objective seriousness of each offence was below mid-range, which is broadly consistent with the submission made on behalf of the Applicant before the sentencing Judge that the finding should be "below mid-range".
I am not satisfied that any error is disclosed in a finding of objective seriousness of approaching mid-range for each of the six offences. Such findings were within the sentencing Judge's discretion and no House v King error is disclosed in that regard. As the sentencing Judge found, the Applicant's role of negotiating, arranging and causing the leases to be entered into was essential. Furthermore, the various leases were entered into over a period of more than two years with the Applicant knowing that the premises were being leased for the purposes of cultivating large commercial quantities of cannabis.
Despite this, the complaint made by the Applicant under Ground 1 goes further than a simple challenge to the finding of objective seriousness within any notional range. Rather, this ground also challenged some of the findings of fact made by the sentencing Judge which not only went beyond what was contained in the agreed facts but which were aggravating factors not able to be proven beyond reasonable doubt on the evidence before his Honour. I have considered the submissions on this issue and had regard to the relevant portions of his Honour's reasons and am satisfied that at least some of these complaints have been made good. Before turning to the relevant passages of the sentencing Judge's reasons on this issue at [39]-[72] (most of which is extracted in Johnson J's reasons at [63]-[65]), it is necessary to first have regard to the relevant principles regarding fact finding on sentence.
The authorities clearly establish that a sentencing Judge is not permitted to make findings of fact in a way adverse to the interests of an offender unless they are established beyond reasonable doubt whereas it is sufficient that facts favourable to the offender be established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] ("The Queen v Olbrich"); Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41] and Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64] and [66] ("Filippou v The Queen").
As the High Court observed in Filippou v The Queen at [70], sometimes it is not possible for the Court to ascertain everything that is relevant to the sentencing exercise, including the relevant facts, but when that occurs the sentencing Judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard. Nor is the Court bound to adopt the view of the facts most favourable to the offender: Filippou v The Queen at [72]. Nor is the sentencing Judge bound by any agreements as between the Crown and the offender on matters such as role or moral culpability: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at 211 ([30]-[31]); DL v The Queen (2018) 92 ALJR 764; [2018] HCA 32 ("DL v The Queen") at 772 ([39]); R v Uzabeaga (2000) 119 A Crim R 452; [2000] NSWCCA 381 at 458 ([34]).
An agreed statement of facts tendered for the purposes of sentencing is a formal admission of those facts for the purposes of sentence. If some facts on sentence are not agreed then it is necessary for the sentencing Judge to resolve any factual disputes by evidence adduced and by applying the respective onus and standards of proof: O'Neil-Shaw v The Queen [2010] NSWCCA 42 ("O'Neil-Shaw v The Queen") at [26].
The sentencing Judge in the present matter observed at [38] of his reasons that he "regarded the determination of the role of the offender to be a matter for the Court to determine and that the Court was not bound by any assertion in the agreed facts" as to the offender's role. In support of this observation his Honour referred to the decisions in O'Neil-Shaw v The Queen, Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 and Cherdchoochatri (2013) 277 FLR 126; [2013] NSWCCA 118. I note that in Chow v Director of Public Prosecutions, Kirby JA observed (at 606F) that "[a] statement of agreed facts may appear to the sentencing judge to be inadequate for sentencing purposes", that a "judge may feel the need for further material" and that "the parties cannot forbid the judge to seek such assistance".
At [108]-[110] of his reasons, Johnson J has extracted passages from the decisions in Nguyen v R [2015] NSWCCA 268 ("R v Nguyen") and DL v The Queen on this issue. It is pertinent to note the factual basis for the appeal in Nguyen v R. In that decision a statement of agreed facts and a record of interview were tendered by the Crown at the proceedings on sentence. In the statement of agreed facts it was asserted that the offender was to be sentenced on the basis that he was a courier. His Honour indicated he was not bound by that concession by the Crown. The matter was adjourned and further evidence was called by the Crown on the next occasion. His Honour ultimately was not satisfied on the balance of probabilities that the applicant was a courier.
The offender in Nguyen v R appealed to this Court on the basis, inter alia, that the Judge erred in finding his role was higher than a courier. It was in that context that the Court (Price J, with whom Hoeben CJ at CL and Button J agreed) noted (at [46]) that "a sentencing judge is not bound to accept agreed facts that are presented to him [or her] by the Crown and the defence" and that nor is he or she "obliged to refrain from questioning facts even though they may be agreed". As discussed above, that matter concerned a finding as to the proper classification of the offender's role as a "courier". What occurred in that matter differs to the Applicant's case.
Turning to the factual findings by the sentencing Judge in this matter, I make the following observations.
At [39], [46] and again at [61] of the reasons, the sentencing Judge states that the only evidence of the Applicant's involvement in these offences is that he was responsible for negotiating, arranging and causing the leases to be entered into, with the knowledge that they would be used for the purposes of cultivating cannabis plants by enhanced means. This is consistent with the agreed facts and the Applicant's pleas of guilty to these offences.
At [39] his Honour noted that there are matters relevant to the Applicant's moral culpability that go beyond the "bald statement" of facts contained in the agreed facts. His Honour articulated that this included the fact that in order for the Applicant to be in a position to find appropriate premises, he would have to have some knowledge of what would be required for the respective cultivations. Again, this finding is an available inference to draw from the agreed facts before his Honour and the nature of the offences to which he pleaded guilty.
At [44] his Honour referred to the decision of Simpson J (as her Honour then was) in Hanh Thi Nguyen v R (2011) 208 A Crim R 432; [2011] NSWCCA 92 where her Honour noted at [4] that the role of a principal involves at least some of the following four characteristics: contributing financially to the cost of setting up the operation; standing to share in the profit (as distinct from receiving payment); some management of the operation; and some decision making. His Honour followed this by repeating that the only evidence of the offender carrying out any task in relation to each of the offences is that he arranged the leasing of the premises knowing that they were to be used for the cultivation of cannabis plants by indoor means. It is not clear whether his Honour then made any findings regarding the indicia identified by Simpson J.
From [47] to [55] of his reasons the sentencing Judge recounted in some detail what evidence was not included in the agreed facts and thus not before the Court for the purposes of sentencing. A real question arises as to how his Honour had regard to these matters in the sentencing proceedings. His Honour made no express findings in these passages but nor did he state that he could not have regard to any of them either.
At [56] his Honour speculates that in relation to the Croydon premises, "it would be entirely possible for at least one crop to have been grown to harvest, and a further crop, at least, substantially if not completely, also grown to harvest". There was no evidence as to how many crops were grown nor the size of the plants before his Honour. The Applicant stood to be sentenced on the fact that 177 plants were found on those premises at the time of the execution of the search warrant on 21 March 2014.
At [57] his Honour speculates as to what the leasing costs could have been for the premises in which these indoor crops were cultivated given they were all "within the central metropolitan region". His Honour further speculated as to the likely amount of equipment required for some of the larger crops and commented that:
"It is obvious that there must have been a very substantial investment in the overall undertaking, and the resources so substantial that substantial loss could be sustained as over time various premises were detected, searched and put out of operation. Nonetheless, from time to time further substantial investment was made in new premises to replace what was lost."
Although it is to be accepted that there may well have been a "very substantial investment" in these cultivations as described by his Honour, there was no evidence at all before the Court that it was the Applicant who had made that substantial investment.
At [62] his Honour referred to the offences committed by the Applicant on the Glen Alpine premises which were placed on the Form 1 in relation to the count pertaining to the Greenacre premises. The Form 1 matters concerned the fact that 80 plants were found to be growing in the cellar of the Applicant's home and that the Applicant had used, consumed or wasted electricity without authority contrary to s.64(1) of the Electricity Supply Act 1995. His Honour noted that the Applicant was "well aware of the means of production and had the necessary skills to himself run the operation in the basement of his own home". Again, this is relevant to the seriousness of the facts in relation to the Form 1 matters but could not provide sufficient evidence to establish beyond reasonable doubt that the Applicant was responsible for all of the other cultivations as well.
After making the findings of objective seriousness and moral culpability at [63] and [64], his Honour noted at [69] that it is "significant" that (except for the Lakemba premises) no other person was ever identified by the authorities as having any role at all to play in the individual offence. His Honour does not articulate why this fact is significant. I am satisfied that his Honour is here suggesting that there were in fact no other persons involved in the cultivations besides the Applicant. His Honour makes no reference to parity in this passage which would be the only other way in which evidence of co-offenders might be relevant.
At [70] his Honour notes that the offender did not give evidence nor participate in a record of interview nor offer any assistance to the authorities to identify any other co-offenders. His Honour then observed at [71] that, "where an offender seeks to be dealt with on the basis of some mitigating circumstance, such as a lesser role, it is for the offender to provide appropriate evidence to assist the Court in finding such a lesser role on the balance of probabilities. The offender has not done so".
It is unclear what his Honour was referring to when he found that the Applicant had failed to discharge his onus of establishing that he had a lesser role in the cultivations in the context of no other offenders being identified. The Crown informed the Court during the proceedings on sentence that there was no evidence that the Applicant had ever been present at any of the premises where the drugs were cultivated (as noted by Johnson J above at [60]). During the hearing of the appeal in this Court, counsel for the Crown described the Applicant's conduct as being similar to an "accessory before the fact". Despite this, his Honour appears to make a finding at [70]-[71] that the Applicant had not discharged his onus of establishing that his role was limited to being the participant responsible for the leasing.
The absence of any evidence as to the identification of other co-offenders is not a fact capable of establishing beyond reasonable doubt that the Applicant was responsible for the entire criminal enterprise. Nor did it require the Applicant to assist authorities in order to discharge some evidentiary onus in this regard.
Although his Honour noted on a number of occasions that the only evidence before him in the agreed facts was that the Applicant's role was to negotiate, arrange and cause the leases to be entered into, it is open to conclude that his Honour was not satisfied that the Applicant's involvement was confined to those actions. The sentencing Judge's reasons at [47]-[55] suggest that his Honour formed the view that the Applicant had full knowledge of all of the activities pertaining to each of the cultivations during the whole of each lease. That knowledge apparently included how many harvests there were and the general financing of the overall operations. His Honour also appears to have been satisfied that it was the Applicant who was responsible for all of the crops.
There was evidence that at the time of the first of these offences the Applicant was a real estate broker (he provided his business card to the first two lessors). The presentence report dated 27 February 2017 (updated on 6 March 2017) stated that the Applicant described that he was introduced at the Sydney Casino to a criminal group who offered him "a way to satisfy his debts by organising rental properties obtained through his real estate connections". In the report of Mr Bradley, forensic psychologist, it is stated that the Applicant told him that, at a time when he carried a significant financial debt for his father's medical treatment, he was offered an opportunity to arrange rental properties for the purpose of growing cannabis and that he would be paid a commission.
It may well be the case that when sentencing an offender a suspicion exists that his or her involvement may be more than is disclosed in the evidence or admitted (and this case is no exception), but that is no basis to elevate those suspicions to findings of fact. Even accounting for the fact that a sentencing Judge is not bound by any concession by the Crown as to an offender's role, nor bound to accept an offender's explanation for his offending, it is not open to a sentencing Judge to make factual findings adverse to an offender in the absence of any evidence of those matters and where any available inferences could not rise to proof beyond reasonable doubt.
In the present matter his Honour stated on a number of occasions (at [39], [46] and [61]) that the evidence of the Applicant's involvement was that he had the responsibility for negotiating, arranging and causing the leases to be entered into. Despite this, I can find no other reason for his Honour's detailed examination of the potentially aggravating factors at [47]-[55] nor his findings at [71]-[72] regarding the failure of the Applicant to discharge his onus other than that these matters were somehow taken into account by his Honour. There was certainly no express statement by his Honour that he could make no findings on those issues on the state of the evidence before him
For these reasons I am satisfied that his Honour erred in relation to the fact-finding process regarding the Applicant's criminality and that a real doubt exists as to the proper factual basis upon which he sentenced the Applicant. I would have upheld Ground 1.
Ground 4 - That the sentence imposed was unreasonable or plainly unjust
Ground 4 contends that his Honour imposed a sentence that was unreasonable or plainly unjust. The principles in relation to such a ground are well established. As Johnson J observes at [149] they were recently summarised in Newman v R [2018] NSWCCA 208.
In determining whether a ground of manifest excess in relation to a sentence is established, and in this case an aggregate sentence, an appellate court will usually have regard to all of the relevant sentencing considerations. These considerations include the statutory guideposts (in this case a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years imprisonment), the gravity of the offending, the length of the indicative sentences, the principle of totality, the Applicant's subjective circumstances, the Judicial Commission statistics, and any assistance to be derived from other appellate decisions.
I have already dealt with the sentencing Judge's factual findings above. The Applicant's subjective circumstances (as summarised by Johnson J at [48]-[55]) were largely favourable. The sentencing Judge also made favourable findings regarding the Applicant's rehabilitation and future prospects. The Applicant's only prior offending was in 2013 for driving offences for which he was placed on a s.10 bond under the Sentencing Act. The sentencing Judge noted at [80] that, although a bond is a form of conditional liberty, that matter could have "no adverse effect on the sentences to be imposed".
The Applicant pleaded guilty to these offences in the Local Court and no issue was taken that he was entitled to a discount of 25% for those early pleas. Section 53A(2)(b) of the Sentencing Act requires that, when providing the indicative sentences for the purposes of imposing an aggregate offence, a sentencing Judge is required to consider all of the matters that are relevant under Part 3 of the Sentencing Act. Part 3 of the Act includes s.22 which concerns discounts for pleas of guilty. Thus, the application of the 25% discount for the Applicant's pleas of guilty was to be applied to each of the indicative sentences.
There is no statutory requirement for a sentencing Judge to indicate what an indicative sentence is prior to the discount being applied but the starting points for the indicative sentences can be arrived at by working backwards. In the present matter it would appear that the notional starting points for each of the indicative sentences would have been as follows. For sequence 8, the starting point would have been 10 years and eight months imprisonment with a non-parole period of eight years. For sequence 4, the starting point would have been six years and eight months imprisonment. For sequence 6, the starting point would have been eight years with a non-parole period of six years. In respect to sequences 2, 5 and 7, assuming the commencement date of the sentences was 21 August 2015, the starting point would have been eight years, 10 months and 19 days imprisonment with a non-parole period of six years and eight months.
The Applicant's appeal is against the aggregate sentence imposed on him. It is well established that the indicative sentences are not themselves amenable to appeal. Despite this, the indicative sentences may be a guide to whether error is established in relation to the aggregate sentence: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]. Johnson J has undertaken the task of comparing the indicative sentences imposed on the Applicant with sentences imposed in other decisions.
At [153] of his judgment, Johnson J has set out a table referring to a number of sentences for offences contrary to s.23(2)(a) of the Drug Misuse and Trafficking Act 1985 which involve a single property used for large commercial cultivation by enhanced indoor means. His Honour considered that the cases referred to in that table do not garner support for the Applicant's claim of manifest excess by reference to the indicative sentences in the present case. With respect to his Honour, I am not persuaded that is the case. I do not propose to address all of these decisions but the following are of relevance.
In Tran v R [2010] NSWCCA 72, the offender was the sole operator and financier of cultivation at a residence premises in Moorebank. He admitted to police that he had total control of the 210 plant crop and intended to sell the harvest at Kings Cross. Having pleaded guilty, the offender was sentenced to seven years and six months imprisonment with a non-parole period of five years, taking into account a 25 percent discount for his early plea. An appeal against the severity of the sentence was dismissed.
In R v LP [2010] NSWCCA 154, the offender was resentenced (following a successful Crown appeal) for an offence contrary to s.23(2)(a) of the Drug Misuse and Trafficking Act 1985, with five Form 1 offences being taken into account, those being: dealing with $100,000 suspected to be proceeds of crime; possessing a prohibited weapon; unlawful possession of an article (a drivers licence) to deceive; and offences of having and using a false instrument. The offender was also sentenced with respect to supply charge contrary to s.25(2) of the Drug Misuse and Trafficking Act 1985 in relation to 25kg of cannabis leaf. The offender was the sole organiser of the cultivation of 274 plants grown at his residence, which he shared with his parents. The offender was allowed a 40% discount for his early plea and assistance to Police. With respect to the s.23(2)(a) offence (taking into consideration the Form 1 offences and the early guilty plea discount but excluding the discount for his assistance), the offender was sentenced to imprisonment for seven years and four months with a non-parole period of four years.
In Co v R [2011] NSWCCA 148, the offender had leased and resided in premises where 266 plants were cultivated. He was found to have been fully involved in all aspects of the cultivation and intended to sell the cannabis following its harvest. The offender was sentenced to imprisonment for seven years and six months with a non-parole period of four years which was upheld by the Court.
In Stock v The Queen (2011) 206 A Crim R 574; [2011] NSWCCA 49, the offender owned property where cannabis was cultivated contrary to s.23(2)(a). He had established the property for cannabis production, paying a co-offender $50,000 and a pound of cannabis a month to keep a lease of the property in his name and to maintain the property and plants. The total setup cost was $60,000. Taking into account a Form 1 offence for supply of 9.7kg of cannabis, the offender was sentenced to nine years imprisonment with a non-parole period of five years. An appeal against the severity of the sentence was dismissed.
Finally, in Crawford v R [2013] NSWCCA 269, following a successful appeal, the offender was resentenced in relation to cultivating cannabis contrary to s.23(2)(a) and to supplying 3.476kg of cannabis contrary to s.25(1). The offender owned the property where the cultivation of 319 plants took place. The setup was highly sophisticated and the offending was motivated by profit. The Court resentenced the offender to a total term of seven years and six months imprisonment with a non-parole period of five years and seven months with respect to both offences.
In each of these cases the offender had a high level of involvement in the cultivation operations. Consistently, this involved organising, financing and being directly part of the cultivation for the purposes of deriving profits through the illegal sale of cannabis. Most of the head sentences imposed were approximately seven years and six months. The nature of the Applicant's offending, although serious, involving six offences and playing a role "essential" to the cultivations, is markedly different. There was no evidence before his Honour that the Applicant was directly involved in any of the six cultivations or had even visited any of those premises. Nor was there any evidence that the Applicant was the "top dog arranging the entire enterprise" as was conceded by the Crown at the sentence proceedings. The number of charges against the Applicant must be balanced as against his role. I have been unable to locate any case where an offender received a higher sentence than the Applicant did for offences of this nature, even given the scale of the operation.
Although it is clear that the discount is to be applied to the indicative sentences and not the aggregate sentence, in order to attempt to identify what the notional starting point might have been in general terms for the sentence imposed on the Applicant (and in circumstances where the same discount of 25% was to be applied to each indicative sentence), it is to be noted that the notional starting point for the aggregate sentence without allowance made for the 25% discount is a sentence of just over 17 years and nine months imprisonment.
I accept that, as Johnson J has observed at [155], the Form 1 matter was very serious and that needed to be reflected in the indicative sentence in relation to which it was to be taken into account. Although the Form 1 offences suggest that, by the time of his arrest, the Applicant was growing a smaller crop in his basement, that evidence is insufficient to establish that the Applicant was growing all of the crops on the evidence before the Court.
I agree with Johnson J that no particular assistance can be obtained from the Judicial Commission statistics in this matter given the particular facts and subjective circumstances in the Applicant's case. Despite this, it is relevant to note that those statistics show that of the 98 aggregate/effective sentences imposed for cultivating or knowingly take part in the cultivation by enhanced indoor means of a prohibited plant between January 2008 and March 2018, the Applicant's aggregate sentence of 13 years and four months is the highest by a significant degree.
In undertaking the evaluative process of seeking to reach a finding as to whether the aggregate sentence imposed on the Applicant is manifestly excessive or "too severe", I have had regard to all of the factors relevant to the sentencing exercise. I accept, as Johnson J has stated at [156], that the Applicant committed offences of a number and magnitude which required the imposition of a very substantial sentence. I also agree that sentences imposed for offences of this nature following the 2006 amendments to the Drug Misuse and Trafficking Act 1985 and the introduction in 2008 of a standard non-parole period of 10 years do not appear to reflect those legislative changes. Despite this, I am satisfied that an aggregate sentence which suggests a starting point of nearly 18 years imprisonment for negotiating and leasing these properties knowing they would be used by a criminal syndicate for the cultivation of large commercial quantities of cannabis is manifestly excessive. I would have allowed this ground of appeal as well.
Given that mine is a minority judgment, I do not propose to undertake the task of resentencing the Applicant.