Wei v R

Court of Criminal Appeal (NSW)|2015-04-08|Before: Beazley P, Hulme J, Adamson J

Solicitors: Legal Aid of New South Wales (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/218962 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 6 March 2014 Before: Berman DCJ File Number(s): 2013/218962

Judgment

BEAZLEY P: I agree with Adamson J.
RA HULME J: I agree with Adamson J.
ADAMSON J: The applicant sought leave to appeal against the sentence imposed by Berman DCJ in the District Court at Sydney on 6 March 2014 in respect of the following: Section Offence Max. Penalty Sentence Imposed Count 1 S 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). Cultivate prohibited plant (cannabis) by enhanced indoor means Imprisonment for 15 years 3 years 6 months with a non-parole period of 2 years Form 1 S 25(1) of DMTA Deemed supply cannabis leaf (833g) Imprisonment for 10 yrs (on indictment); 2 yrs (summarily) Form 1 S 64(1) of Electricity Supply Act 1995 (NSW) Consume electricity without authority Imprisonment for 5 yrs (on indictment); 2 yrs (summarily)

The grounds of appeal

The grounds of appeal in respect of which leave was sought were: 1. The sentencing judge erred in placing undue weight upon the applicant's status in Australia as an illegal immigrant. 2. The sentencing judge failed to give appropriate weight to the applicant's plea of guilty. 3. The sentence was manifestly excessive.
At the conclusion of the hearing before this Court on 8 April 2015, the Court was satisfied that the second and third grounds had been made out. Accordingly it made the following orders: 1. Leave to appeal granted and appeal allowed. 2. Quash the sentence imposed in the District Court on 6 March 2014 and in lieu thereof, taking into account the offences listed on the Form 1, sentence the offender to imprisonment comprising a non-parole period of 1 year 6 months with a balance of the term of the sentence of 1 year 1 month. 3. The sentence is to date from 18 July 2013. 4. The offender became entitled to release on parole upon the expiration of the non-parole period on 17 January 2015.
My reasons for the orders are as follows.

Facts

The following narrative is derived from the Agreed Facts which formed the basis of the plea and were tendered on sentence and admissions made to the Community Corrections Officer who prepared the pre-sentence report.
In 2009 the applicant, who was Malaysian, travelled to Australia and overstayed his visa. He was deported to Malaysia in 2011. He changed his name and obtained a new passport, which he used to return to Australia in April 2012 on a 3-month visa. He also overstayed this visa.
From about June 2013 the applicant lived and worked in a four-bedroom brick veneer house in Epping which had been wholly converted, save for the rear living room and kitchen, for the purpose of growing cannabis plants. The applicant knew the work to be illegal but he undertook it in order to obtain a ticket back to Malaysia, which he could not otherwise afford.
When police conducted covert surveillance they saw the applicant come and go from the house over a two-day period. At 7.20am on 18 July 2013 police executed a search warrant and forced entry to the premises. The applicant was lying on a single bed in the rear living room. A plastic clip lock bag containing 833g of cannabis leaf was found beside his bed. This was the subject of the supply charge that was taken into account on the Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Four rooms in the house were set up with light shades, light globes and black pots in which 135 cannabis plants, at various stages of maturity with heights from 45cm to 1m, grew. An irrigation system had been constructed. There were three power boards and 82 transformers in the roof cavity above one of the rooms. The electricity had been bypassed from the grid and the power supply was being used to power the lights, fans and transformers which were being used in the cultivation of cannabis. This was the subject of the unauthorised use of electricity charge which was also taken into account on the Form 1.
The applicant was taken to Ryde Police Station, cautioned and interviewed with the assistance of an interpreter. He told police that the house was already set up when he arrived and that he was paid $200 per week to live there and mix fertiliser into the water for the plants. He had been living there for several weeks and had received $600-$800.

The sentence hearing

At the sentence hearing the Crown tendered documents which included: the Court Attendance Notices; a signed Form 1; a statement of Agreed Facts; a criminal history; a custodial history and a pre-sentence report. Mr Jones, who appeared on behalf of the applicant, handed up Judicial Commission sentencing statistics for offences contrary to s 23 of the DMTA.
Mr Jones submitted that the applicant's plea of guilty had been entered at the first available opportunity. The Crown specifically conceded in reply: "We agree he should receive the maximum benefit for his earliest plea, it was indicated upon arrest of the utilitarian value of the plea [sic]. . .."
Mr Jones submitted that the sentencing judge should accept from the immediate admissions he made to the police that the applicant was remorseful. He also relied on the applicant's lack of criminal history. Mr Jones submitted that the applicant had very limited education and that he was exposed to exploitation by reason of his limited education and financial difficulties. Mr Jones also contended that a finding of special circumstances was appropriate having regard to the fact that the applicant spoke very little English and would be unable to gain access to rehabilitation services in custody. Moreover, he had neither friends nor family in Australia who could visit him in gaol.

The remarks on sentence

The sentencing judge prefaced the remarks on sentence with the following observation: "It now seems 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."
His Honour narrated the facts which are set out above. His Honour referred to the applicant's deportation following his first trip to Australia and the circumstance that he had changed his name and returned. The sentencing judge found that the applicant "appears to have been simply a labourer who looked after the plants and received money and the promise of an air ticket in return".
His Honour addressed the questions of remorse and the plea of guilty together in the following way: "The offender appears willing to take the blame for his misconduct without assisting the authorities to identify anyone else involved. He, of course, is not to be punished for this but questions of remorse have to be examined in the light of the attitude expressed by the offender. There is no real evidence of remorse. The plea of guilty was a recognition of the inevitable; he was found sleeping in the premises. There is no evidence that he regrets his actions apart of course from being disappointed at being arrested and sent to gaol."
His Honour accepted that there were special circumstances on the basis of the applicant's poor English skills but said that "there will only be a relatively small adjustment from the statutory ratio".
The sentence of three and a half years with a non-parole period of two years gives rise to a ratio between the non-parole period and the head sentence of 57%.

Ground 1: placing too much weight on the applicant's status as an illegal immigrant

Mr Hunt, who appeared on behalf of the applicant in this Court, contended that the sentencing judge had placed too much weight on the applicant's status as an illegal immigrant in circumstances where the applicant's conduct, although illegal, had not been the subject of a charge. Mr Hunt submitted that, while these matters were relevant as background and served to explain the economic imperative which inclined the applicant to undertake work which he knew to be illegal, they were insufficient to outweigh the applicant's lack of convictions and early guilty plea.
There are difficulties in making out this ground, not least because one cannot discern from the sentence precisely what weight was given to which of the many factors which his Honour took into account when sentencing the applicant. Moreover, the sentencing discretion is a matter of instinctive synthesis and not mathematics: Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465 at 476; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [39].
Although the sentencing judge's prefatory remark about the prevalence of the type of offending in which the applicant was engaged among illegal immigrants with limited English may suggest that his Honour was particularly focussed on this circumstance, I did not consider that a fair reading of the remarks on sentence bore this out. Nor did I consider it reasonable to infer that the length of the sentence imposed could be accounted for by reason of the weight the sentencing judge gave to the applicant's status in Australia as an illegal immigrant.
I was not persuaded that the first ground had been made out.

Ground 2: the sentencing judge failed to give appropriate weight to the applicant's plea of guilty

Mr Hunt contended that the inference was open that the sentencing judge had not applied the maximum discount (of 25%), which was accepted by the Crown to be appropriate, when imposing the sentence. In support of this submission Mr Hunt relied on the fact that, although the plea of guilty was referred to in the remarks on sentence, his Honour did not expressly quantify the percentage discount. Further, Mr Hunt submitted that, if the 25% had been applied, the starting point for the sentence was four years and eight months, which was excessive having regard to his Honour's findings as to the applicant's limited involvement.
The Crown submitted that this Court could infer that the sentence imposed had been discounted to take account of the utilitarian value of the plea. The Crown relied on the brevity of the sentence hearing. It was accepted by Mr Hunt that the sentencing hearing, including the oral delivery of reasons, would have taken no more than half an hour. Accordingly, the submissions made by counsel as to the early plea and the appropriate discount would have been fresh in the sentencing judge's memory when his Honour delivered the remarks on sentence. The Crown distinguished the present case from cases such as Convery v R [2014] NSWCCA 93 at [28]-[30] where the only available inference was that the discount had not been applied as the undiscounted sentence exceeded the maximum sentence. The Crown submitted that there was nothing about the mathematics of the sentence to indicate that the discount had not been applied because it could safely be inferred that the starting point was either four years and eight months (if a 25% discount were allowed) or four years and five months (if a 20% discount were allowed).
The sentencing judge is a very experienced judge and can be taken to be familiar with all relevant principles of sentencing and the Crimes (Sentencing Procedure) Act. This Court ought not, in my view, lightly infer that a task which is undertaken regularly and under significant time pressure has been undertaken with such obvious omission as to fail to apply a discount for a plea of guilty, the magnitude of which, 25%, was not controversial.
Nonetheless, I was persuaded by Mr Hunt's submissions that this occurred in the instant case and served to explain the length of the sentence imposed on the applicant, which I regarded as manifestly excessive. That the sentencing judge referred to the plea of guilty in the context of remorse, but not in the context of its utilitarian value, provided some indication that its significance in the latter context may have been overlooked. Whether a plea of guilty indicates remorse depends on many factors. For example, if an offender, as in the present case, has been caught "red-handed", it may be that no inference that he or she is remorseful can be drawn from the plea.
However, the purpose of s 22 of the Crimes (Sentencing Procedure) Act is to be distinguished from the purpose of s 21A(3)(i). Section 22 provides: "22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court."
The remorse shown by the offender (which may be indicated by a plea of guilty, particularly an early one where the evidence against the offender is not strong) is a mitigating factor to be taken into account in the offender's favour under s 21A(3)(i). However, the purpose of s 22, which requires the court, when passing sentence, to take into account the fact of the plea, its timing and the circumstances in which the offender indicated an intention to plead, is utilitarian. The strength of the Crown case, while relevant to remorse, is irrelevant to its utilitarian value in the context of s 22: R v Sutton [2004] NSWCCA 225 at [11]-[12] per Howie J, Studdert and Dunford JJ agreeing. The Parliamentary intention behind s 22 (which was regarded as confirming the court's existing practice) is evident from the following passage of the Second Reading Speech to the Crimes (Sentencing Procedure) Amendment Bill 2010 (NSW) (Parliamentary Debates, Legislative Council, 23 November 2010, page 27866): "Clearly, the earlier a plea is entered, the greater are the savings for the justice system. Consistent with current case law, an explanation of the circumstances of a late plea may not result in any significant discount because the timing was so late that no utilitarian value was derived from it."
This Court said in its guideline judgment in respect of discounts for pleas of guilty, R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 that: a sentencing judge should explicitly state that a plea of guilty has been taken into account; sentencing judges are encouraged to quantify the effect of the discount for the plea (although failure to do so does not vitiate the sentence if it is otherwise clear that it has been taken into account); and the percentage discount is referable to the timing of the plea, which affects its utilitarian value.
In the present case the sentencing judge neither quantified the discount for the plea; nor said that it had been taken into account. The only reference to the plea in the remarks on sentence was in connection with the issue of remorse. I did not regard the present case as one in which it can be safely inferred that a sentencing judge has applied an unstated (but not disputed) discount (cf. R v Lawrence [2005] NSWCCA 91 at [13]- [15] per Spigelman CJ; Devine v R [2009] NSWCCA 261 per Fullerton J). Indeed the absence of a relevant mention and the magnitude of the sentence imposed were sufficient to satisfy me that no discount was applied. I was persuaded that this ground has been made out.

Ground 3: manifest excess

The statistics that were provided to his Honour were also relied upon by Mr Hunt in this Court. Although the facts and circumstances of individual cases cannot usefully be discerned from the statistics, the latter may provide a useful indication of past sentencing practices. The sentence imposed by his Honour (if the discount had been taken into account) would appear to be at odds with the sentencing practices disclosed by those statistics.
I regarded the length of the sentence imposed to be both exorbitant and inconsistent with his Honour's careful findings about the limited extent of the applicant's involvement in the cultivation. The applicant was found, in substance, to be no more than a gardener and lodger who had been used as a pawn by those who stood to profit from the venture. His continuous presence in the house exposed him to a substantial risk of detection, which was not commensurate with the meagre income he received for his efforts. His limited English, his immigration status and his parlous financial circumstances made him prey to such exploitation.
It is generally appropriate, where a sentence is found to be manifestly excessive, to preserve the sentencing judge's findings and structure in so far as they have not been the subject of challenge on appeal. I had some reservations about whether his Honour intended to adjust the ratio between the non-parole period and the total term from the statutory ratio of 75% to 57% since his Honour said that there would "only be a relatively small adjustment from the statutory ratio"; however, I considered that this aspect of his Honour's decision ought not be disturbed, no challenge having been made to it.
In my view, the sentence imposed by his Honour needed to be discounted by 25% to rectify the error found with respect to the second ground. Mr Hunt did not wish to be heard against this approach. Nor did the Crown submit that this was not an appropriate way of re-sentencing the applicant, if the Court was persuaded that the second and third grounds had been made out.
This produced the effect, as appears from the orders set out above, of reducing the head sentence from three years and six months to two years and seven months and reducing the non-parole period from two years to one year and six months.

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