Solicitors:
A Cooney - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2014/149174
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 16 October 2016
Before: Hanley SC DCJ
File Number(s): 2014/149174
[2]
Judgment
HOEBEN CJ at CL:
The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon him by his Honour Judge Hanley SC on 6 October 2016 in the District Court of New South Wales at Penrith.
The applicant pleaded guilty to an offence contrary to s 23A(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for that offence is a fine of $462,000 or imprisonment for 18 years or both.
The particulars of the offence were:
That he, on 16 May 2014 at Medway in the State of New South Wales, did expose a child to the process of cultivation of a prohibited plant namely cannabis by enhanced indoor means, being a quantity of 137 plants.
After allowing a discount of 25 per cent for the applicant's plea of guilty, his Honour imposed a term of imprisonment with a non-parole period of 1 year 9 months commencing from 2 October 2016 and expiring 1 July 2018 with a balance of term of 1 year and 9 months expiring 1 August 2020.
The applicant was also sentenced in relation to two related offences on a s 166 Certificate. These offences comprised a charge of supply a prohibited drug, namely cannabis, contrary to s 25(1) of the Drug Misuse and Trafficking Act and a charge of allow premises to be used as drug premises, contrary to s 36(Y)(1) of the Drug Misuse and Trafficking Act. In respect of each of these offences his Honour entered convictions without further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The applicant relies upon the following grounds of appeal:
Ground 1 - His Honour erred in relation to findings as to the role of the applicant, particularly compared to that of the co-offender.
Ground 2 - The applicant has a justifiable sense of grievance as a result of the sentences imposed on the co-offender, Nadine Victory.
Factual Background
On Friday 16 May 2014 the applicant was being held at Bowral Police Station in relation to an unrelated matter. During the conversation he made admissions to cultivating 13 cannabis plants by enhanced indoor means and consented to a voluntary search of his home address. At about 5.30pm police in company with him went to his premises in Railway Parade, Medway. He guided police to a rear shed (shed 1) (approximately 2 metres by 1.5 metres in size) which he unlocked. Police found a large number of cannabis plants under growth lamps. The walls of the shed were insulated and there was a ducted air supply system. The applicant made admissions under caution to cultivating the plants.
In a second shed (shed 2) police located a number of seedlings in trays, separated between those having root systems and those which had recently been "struck" and were yet to establish a root system. A further search of shed 2 revealed a petitioned off area. It was in this room (approximately 1 metre by 3 metres by 1.5 metres high) that police located a number of mature cannabis plants under growth lamps. The room was insulated and there was a ducted air supply system. Under caution the applicant made admissions to cultivating the plants and striking the seedlings.
During a search of the family home which the applicant shared with the co- offender, Nadine Victory, and their three children aged three, five and ten years of age, police located a bedroom which had been divided to make three growth rooms. One of the growth rooms shared a common wall with the bedroom of the 10 year old child. The five and three year old children had beds in a room which they shared with their parents across the hall from the growth room.
In growth room 1 (approximately 2 metres by 2.5 metres) police located a number of juvenile cannabis plants under growth lamps. The room was insulated and had a ducted air system and a makeshift sink. There were a number of watering cans which were labelled with particular chemicals. Police also located two cardboard boxes containing drying cannabis head and stem.
In growth room 2 (approximately 2 metres by 2.5 metres) police located a number of mature cannabis plants under growth lamps. Access to the room was gained through growth room 1. This room was lined with insulation and had a ducted air system. Police also located a number of watering cans filled with chemicals.
In the garage police located two large bags of growth medium, approximately 100 litres of growth nutrient, and other chemicals to assist in the growth of hydroponic plants.
In the laundry area police located a number of jars all containing varying amounts of dried cannabis head. Each jar had a label indicating the variety of cannabis contained within. Police further located a box containing cannabis seeds. Also located in the same cupboard were a functioning set of electronic scales and plastic sandwich bags. During a search of the applicant's bedroom police located a quantity of money from a locked safe with PIN numbers supplied by the applicant.
When searching the kitchen police found a small cannabis plant in a pot. In the dining area they found two further cannabis plants in pots, a second safe containing 308 cannabis seeds and a number of handwritten documents rating the performance of properties of various strains of cannabis. During a search of the children's playroom police located a box of cannabis head and stem.
A summary of all the items located by the police, as set out in the facts sheet, was a total 137 cannabis plants, 308 cannabis seeds, 534.1g of dry cannabis head and stem, eight growth lights and eight transformers. Police noted that all the plants were grown in a growth medium which required considerable care and skill on behalf of the person tendering the plants. It was further noted that all plants were accompanied by a small marker which labelled a particular strain of cannabis. During the search of the family home the applicant was cautioned on several occasions and reminded of his right to withdraw his consent to the search if he wished. He was then charged.
On 5 November 2014 his Honour had sentenced the co-offender, Nadine Victory, to a suspended sentence of imprisonment pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 12 months. She had pleaded guilty to the same offence as the applicant. The relationship between the co-offender and the applicant was one of husband and wife. In those earlier proceedings involving the co-offender, his Honour made a number of findings adverse to the applicant. His Honour accepted that those comments were made without hearing from either the applicant or the co-offender. In the transcript at 5.1 his Honour observed:
"The finding which I made in relation to Nadine Victory was that her role based upon what she said to the police which was that she was aware of it. She could hardly not have been seeing as it was all throughout the house and that she only occasionally, when requested, put some water on some of the plants."
Proceedings on sentence
When considering the objective seriousness of the offence, his Honour had regard to the following matters:
1. There were 137 plants which placed the enterprise within a category determined by the legislature as one of a commercial quantity.
2. Since the range for a commercial quantity of plants was between 50 to 200 plants, this quantity was towards the upper end of the scale.
3. The role of the applicant in the commission of the offence was important. Having reviewed the evidence, his Honour concluded that the applicant was the principal involved in the setting up of the cannabis indoor plant process and was primarily responsible for its maintenance.
His Honour noted that reaching a firm conclusion on that issue had been made more difficult by the evidence of the applicant that he had a very minor role and was only involved in the growth of some of the plants due to the fact that he had a bad back for which he was receiving workers compensation. In considering that evidence his Honour took into account that in the Agreed Facts the applicant had made admissions under caution to cultivating the various plants at the individual sites that he was taken to by police.
On that issue his Honour also took into account the finding in Local Court proceedings that an amount of $7,500 found on the premises was the proceeds of crime. His Honour took into account the adoption by the applicant of evidence given by him in those Local Court proceedings.
The description by the learned magistrate of that evidence was:
"The most critical piece of evidence came from the accused himself when he was walking through the house with the officer in charge on 21 May. He said it in response to the observation of the police. He said "OK you've certainly got them on the hop then". His reply was "Yeah, I do one then shut it down and then I do some more". My view is that this indicated that the accused was carrying out the growing of cannabis previously before this crop and regularly."
His Honour noted that under cross-examination that exchange was put to the applicant and he agreed that it had taken place in those terms. It was by reference to the admissions in the Agreed Facts and to that evidence that his Honour was satisfied that the applicant was the principal involved in the setting up of the cannabis indoor plant enterprise and was primarily responsible for it.
Having made that finding, his Honour summarised the result as follows:
"The offender's role then, having accepted that he was a principal in the cultivation of the plants, needs an assessment in relation to the setup that was put into effect to grow the plants. The photographs of this are set out in exhibit C which were tendered before me today. They show a sophisticated watering and lighting system. Clearly a considerable amount of work and effort has been put into setting it up. There is insulation, many seedling plants, there is watering, there is also apparent from the material police located records of the growth of the various plants at various stages. It was clearly a very sophisticated system and not one that could be described as being ad hoc in any way. The cultivation I am satisfied was a significant one in relation to the quantity of plants and also into the sophistication of the system that was set up to grow them.
I am satisfied the offender was the principal involved in setting it up and also maintaining it. I am satisfied of that beyond reasonable doubt on the basis of the admissions in the "Agreed Facts", the evidence from the magistrate's Court that recited excerpts from the "walkabout" with the police on the day that the search was conducted and the general evidence in relation to the setup itself. In that respect this type of offender is distinguishable from those who have been described as "crop sitters". Accordingly, in assessing the objective seriousness of the offence and taking into account the fact that some of the drugs I would accept were grown for his own use in relation to treating his back injuries I would assess it at just below the objective midrange of objective seriousness." (Sentence judgment 6.5 - 7.3)
There was also an important concession made by counsel for the applicant in the sentence proceedings. There the applicant's counsel said:
"In that vexed question of accepting responsibility for his actions your Honour, he says that he was aware. He obviously accepts some role in the whole process. He pleaded guilty and a combination of those factors - I'd be asking your Honour to take into consideration he pleaded guilty at an early stage in relation to the matter. It is simply as to whatever he had greater responsibility or equal responsibility or some responsibility. I'm not suggesting, your Honour, he was the minor player." (Sentence transcript 6.10.16, p20 line 14)
That concession was made in circumstances where there were only two possible principals - the applicant and the co-offender.
Because the applicant had a prior criminal history, his Honour concluded that he was not entitled to the leniency of a first time offender and was not entitled to a finding that he was a person of prior good character. Apart from the degree of planning involved in setting up the cannabis cultivation process, his Honour did not identify any other aggravating factors.
In relation to mitigating factors, his Honour noted the plea of guilty at an early point in time and found that the applicant was at medium to low risk of re-offending. His Honour was not prepared to make a finding that the applicant was remorseful.
By way of further subjective factors, his Honour noted that the applicant was aged 41 at the time of sentencing, was separated from his wife and resided with his mother and his three children in rented accommodation. The children remained in his and his mother's care as a result of a Family Court order. The children do not live with Nadine Victory, their mother, but she sees them on a regular basis. The applicant had custody of the children since January 2015.
The applicant ceased formal education in year 9 and did not achieve the school certificate. As a result, he had a limited level of reading and writing skills. He was nevertheless able to obtain employment after he left school until a workplace injury to his back in 1997 put him out of the workforce. The applicant was on a "Work Cover" weekly wage at the time of the sentence hearing. He had used alcohol throughout his life and cannabis since 1998 to deal with the pain he suffered from his work injury.
His Honour found that after his arrest, the applicant sought the intervention of a drug and alcohol counsellor and had been abstinent from drugs for approximately 12 months. After being charged with the subject offences, he continued to attend ongoing drug and alcohol counselling sessions. Regular urinalysis had not detected illegal drugs.
His Honour took into account that the incarceration of the applicant would cause hardship to his three children who reside with him and his mother. His Honour did note, however, that in many respects his mother was the prime care giver to the children and was capable of looking after them in that eventuality. Nevertheless, his Honour was satisfied that although the hardship was not exceptional, the imposition of a custodial sentence would cause significant hardship to the children. His Honour took that into account when assessing the sentence.
His Honour took into account that because of his back injury, the applicant's time in custody would be more difficult for him. His Honour also took into account the significant delay which had occurred between the applicant's arrest and him being sentenced. His Honour accepted that this delay was due to the court system and was not something for which the applicant should be held responsible. His Honour noted that the delay had enabled the applicant to demonstrate the extent of his rehabilitation.
In relation to parity with the co-offender, his Honour found as follows:
"I sentenced the co-offender Nadine Victory to a suspended sentence of 12 months. Her role on my finding on the evidence before me was a very minor role in watering the plants on some infrequent occasions although tolerating their growth. There was evidence before me in her hearing that she was somewhat overborne by the offender. I do not take that factor into account in relation to sentencing this offender. However, for the purposes of parity and on the findings that I have made in relation to his involvement he is considerably more involved and culpable and that should be reflected in a difference in the penalties imposed in respect of both of them." (Sentence judgment, 11.4-12)
His Honour made a finding of special circumstances on the basis that the applicant would require a period of supervision in the community upon his release from custody. His Honour also took into account on that issue, the applicant's age and the steps he had made towards rehabilitation in the intervening period.
The appeal
Ground 1 - His Honour erred in relation to findings as to the role of the applicant, particularly compared to that of the co-offender.
The applicant sought to make out this ground of appeal by reference to three propositions:
1. There was a failure by his Honour to address the sworn evidence of the applicant as to his role in the offending.
2. There was undue reliance by his Honour on the findings of the Local Court magistrate in the proceeds of crime hearing.
3. There was a failure to properly resolve the contradictory positions presented by the applicant in his evidence and the evidence concerning the co-offender when she was sentenced.
(a) Sufficiency of evidence
In relation to the first of those issues, the applicant submitted that his Honour had to be satisfied to the criminal standard as to his role before he could properly act upon it. The applicant submitted that there was nothing in the Agreed Facts which of itself conclusively demonstrated that he occupied the position of principal in the enterprise. The applicant submitted that his evidence of having a minor role, was only partially challenged in cross-examination. In particular, the applicant relied upon evidence which he gave of being away from the house for an eight week period in Lithgow and therefore being unable to play any role in the cultivation process during that time.
Consideration
His Honour clearly did not accept the evidence of the applicant to the effect that he played only a minor role in the setting up and maintenance of the cannabis cultivation process. His Honour contrasted the evidence of the applicant that he occupied a very minor role with other evidence to the contrary. His Honour specifically referred to the admissions made by the applicant to police on two occasions during the walk through of having cultivated the plants and striking the seedlings (see [7] and [8] hereof).
The finding by the magistrate in relation to the proceeds of crime matter was important because it directly linked the applicant to the money found in the premises which was the proceeds of sale of some of the cannabis. An important admission made by the applicant in the proceeds of crime proceedings was put to him in these proceedings and he agreed that he had used the words attributed to him. His Honour was also entitled to rely upon the plea of guilty which involved an acceptance of responsibility for the growing of 137 cannabis plants.
In those circumstances, it was well open to his Honour to find beyond reasonable doubt that the applicant was a principal in the setting up and maintenance of the cannabis cultivation process. This was particularly so when regard was had to the very sophisticated nature of the process, as demonstrated by the Agreed Facts and the photographs which were tendered in the proceedings. It was of considerable significance that it was the applicant who led police in the walk through and who was able to provide the combination to open the safe found in the bedroom.
The evidence of the applicant spending eight weeks in Lithgow was confusing at best. It was given in the following circumstances:
"Q. He then said to you "You've certainly got them on the hop then?" and your answer was "Yeah, I do one then shut it down then do some more"?
A. Yes that was a period - I, we had done one, one before and when the police come around I was actually in Lithgow on an eight week course with the truck so - and the plants had been watered and well looked after and I hadn't been there for eight weeks so."
As was submitted by the Crown, it is not clear from that answer whether the applicant was referring to a previous unrelated cultivation where he claimed to have been away for a period of eight weeks, or to the cultivation in question. In any event, the answer appears to be at odds with the admissions made by the applicant in the Agreed Facts where he admitted to cultivating and striking the seedlings. Importantly, it was a matter which was not sought to be clarified in re-examination, nor was it relied upon by the applicant in submissions to his Honour.
(b) Reliance upon Local Court findings
In relation to issue (b), the applicant submitted that his Honour had impermissibly adopted and relied upon the findings of the Local Court magistrate in the proceeds of crime proceedings, rather than on the evidence which was adduced before him in the sentence proceedings. The applicant submitted that it was not open to his Honour to uncritically accept the findings of the Local Court, in particular the findings as to credibility of the applicant and the co-offender. The applicant submitted that his Honour should have disregarded those specific findings in the Local Court.
Consideration
The applicant's submissions in relation to issue (b) are misconceived. His Honour did not adopt the reasons of the Local Court magistrate, nor did his Honour adopt or use the credibility findings in the Local Court. What his Honour did was to have regard to the fact of the conviction of the applicant after a contested hearing of the proceeds of crime offence which directly linked him to money found in the premises as being money obtained from the sale of cannabis cultivated therein. The evidence given in the Local Court upon which the magistrate relied in part for this finding was specifically put to the applicant in these proceedings and adopted by him. It thereby became evidence before his Honour which his Honour was entitled to take into account.
(c) Reliance upon sentence proceedings of co-offender
In relation to issue (c), the applicant submitted that in determining that he was the principal in the cannabis cultivation process, his Honour had impermissibly relied upon the evidence given before him in the proceedings against the co-offender in 2014. The applicant submitted that his Honour should have restricted his consideration solely to the evidence before him in the sentence proceedings involving him.
Consideration
Contrary to the applicant's submission on this issue, his Honour was careful to restrict his findings to the evidence which was actually before him in the sentence proceedings. He explicitly said so (see [31]) hereof). There is nothing in his Honour's reasons to suggest that he acted otherwise than in accordance with that direction which he gave himself. The only evidence suggesting a greater involvement of the co-offender in the cultivation process came from the applicant and was to the effect that the co-offender and her son had played a major part in setting up the cultivation process. For the reasons already given, it was well open to his Honour to reject that evidence in the light of the compelling evidence to the contrary to which his Honour referred.
Moreover, his Honour was not required when sentencing the applicant to re-consider the factual findings upon which the co-offender was sentenced. As Basten JA explained in PG v R [2017] NSWCCA 179 at [23] - [24]:
"23 … although each co-offender was sentenced by the same judge, sentencing occurred on the basis of different statements of agreed facts and different evidence. It is by no means uncommon that, where pleas are negotiated and the basis of the plea is agreed, A will be sentenced on the basis that B was the principal and A played a lesser role, whereas B will be sentenced on the basis that A was the principal and it was B who played the lesser role. Usually, there will be no mechanism by which a sentencing judge can resolve such contradictory propositions. Nor is it open to this Court to do so. Accordingly, two co-offenders may be sentenced on entirely different bases. It is not open to A (having been sentenced first) to say, "I was sentenced on the basis that B was the principal, but B got the same sentence that I did and therefore my sentence must be reduced."
24 Sentencing does not take place on the basis of objective singular established truth, but on the basis of the evidence before the sentencing judge. Where, as is desirable, the one judge sentences all co-offenders, the urge for equal justice may seem to be frustrated by such factual inconsistencies, that does not give rise to a basis for intervention by this Court."
It follows therefore that Ground of Appeal 1 has not been made out.
Ground 2 - The applicant has a justifiable sense of grievance as a result of the sentences imposed on the co-offender, Nadine Victory.
As the applicant properly accepted in the course of oral submissions, this ground of appeal substantially depended upon the applicant making out Ground of Appeal 1. If the applicant were successful in persuading this Court that either the co-offender was the principal or an equal player in the setting up and maintenance of the cannabis cultivation process, then clearly the parity issue would have to be re-visited by this Court. Since Ground of Appeal 1 has not been made out, that issue does not arise.
It was also properly accepted by the applicant in oral submissions that on the issue of parity, his Honour was entitled to take into account his reasons when sentencing the co-offender, together with the evidence before him in these proceedings. When that exercise is carried out, there is no basis for any justifiable sense of grievance on the part of the applicant. He was the principal whereas the co-offender played only a minor part.
It follows that Ground of Appeal 2 has not been made out.
The order which I propose is that leave to appeal against sentence be granted but that the appeal be dismissed.
DAVIES J: I agree with Hoeben CJ at CL.
ADAMSON J: I agree with Hoeben CJ at CL.
[3]
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Decision last updated: 30 November 2017