WILLIAMS v. REGINA; SAUNDERS v. REGINA [2006] NSWCCA 33

Court of Criminal Appeal (NSW)|2006-01-19|Before: Basten JA, Howie J, Hall J

CITATION: WILLIAMS v. REGINA; SAUNDERS v. REGINA [2006] NSWCCA 33 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Basten JA at 1; Howie J at 2; Hall J at 3

DECISION: Applicant Williams: (a) that the sentences imposed be set aside (b) that the applicant be re-sentenced by this court (c) that a finding of special circumstances should be made, having regard to his good prior character and rehabilitation prospects (d) that the sentence imposed should allow for the time Mr. Williams spent in custody from the date of his arrest on 4 January 2003 until the date of his release on bail on 19 February 2003 (e) the applicant be re-sentenced to a non-parole period of 18 months to commence on 30 August 2004 and to expire on 28 February 2006, on which date he is eligible to be released on parole. The balance of the term of sentence of 12 months, which will commence on 1 March 2006 will expire on 28 February 2007; Applicant Saunders: (a) grant leave to appeal (b) appeal dismissed.

CATCHWORDS: Criminal law - sentence - specially aggravated kidnapping - applicant's (Williams') offer to plead guilty - same sentence imposed on the applicant (Williams) and the co-offender - applicant (Williams) argued there should not have been a parity of sentences - whether sentence was manifestly excessive

LEGISLATION CITED: Crimes Act 1900 Criminal Appeal Act 1912

Curry [2002] NSWCCA 109 Lowe (1984) 154 CLR 606 Johnson [2003] NSWCCA 129 CASES CITED: Oinonen [1999] NSWCCA 310 Pennisi [2001] NSWCCA 326 Cardoso [2003] NSWCCA 15 Kelly [2005] NSWCCA 280 Collett & Anor (CCA, unreported 7 June 1974)

PARTIES: WILLIAMS, Bryan Charles v. REGINA SAUNDERS, Geoffrey Allen v. REGINA

Williams: A. Francis COUNSEL: Saunders: P. Lowe Respondent: J. Girdham

Williams: S. O'Connor SOLICITORS: Saunders: W. Whitby Respondent: S. Kavanagh

IN THE COURT OF CRIMINAL APPEAL 2005/1856 2005/2265

BASTEN, JA. HOWIE, J. HALL, J.

THURSDAY 23 FEBRUARY 2006 BRYAN CHARLES WILLIAMS v. REGINA GEOFFREY ALLEN SAUNDERS v. REGINA Judgment 1 BASTEN, JA: I agree with Hall, J. 2 HOWIE, J: I agree with Hall, J. 3 HALL, J: The court heard together applications for leave to appeal by Bryan Charles Williams and Geoffrey Allen Saunders in respect of sentences of imprisonment imposed upon each of them on 18 February 2005. 4 On 29 September 2004, the applicants pleaded not guilty to and stood trial upon indictments which alleged that they respectively on 15 December 2002 at Narara in the State of the New South Wales committed the following offences:-

(a) Specially aggravated kidnapping (in company and occasioning actual bodily harm), contrary to s.86(3) of the Crimes Act 1900 . The offence carried a maximum penalty of imprisonment of 25 years.

(b) Aggravated indecent assault (in company and victim under 16 years), contrary to s.61M(1) of the Crimes Act 1900 . The offence carried a maximum penalty of imprisonment of seven years. 5 On 29 September 2004, the applicant Geoffrey Allan Saunders, pleaded guilty to one count of cultivate prohibited plant. Sentencing for that offence was stood over and ultimately he was sentenced on 19 May 2005. This offence which involved the offence of cultivation of a prohibited plant (26 cannabis plants) with an offence of deemed supply of cannabis leaf (753.6 grams) was taken into account on a Form 1. The sentence imposed in respect of that matter was a fixed term of imprisonment of nine months, to commence on 24 August 2004 and to expire on 23 May 2005. The sentence was wholly concurrent with and subsumed within the sentence for the kidnapping offence. 6 At the trial, the Crown Prosecutor opened to the jury on the statutory alternate to the specially aggravated kidnapping offence, namely, aggravated kidnapping (in company) contrary to s.86(2)(a) of the Crimes Act 1900. A maximum penalty of 20 years is prescribed for such an offence. That count was added to the indictment. 7 On 15 October 2004, the jury returned a verdict of guilty to the statutory alternate offence in relation to each applicant. 8 On 18 February 2005, both applicants were sentenced to terms of imprisonment of four years with non-parole periods of two years. In the case of Mr. Saunders, the sentence was a term of imprisonment for four years to commence on 24 August 2004 (to take into account pre-sentence custody) and to expire on 23 August 2008, with a non-parole period of two years, to expire on 23 August 2006. 9 In the case of Mr. Williams, the sentence was a term of imprisonment for four years to commence on 30 August 2004 (to take into account pre-sentence custody) and to expire on 29 August 2008, with a non-parole period of two years, to expire on 29 August 2006.

(a) Mr. Saunders 10 In the application by Mr. Saunders, the grounds relied upon were that the learned sentencing judge had erred (a) in determining the maximum penalty available, and, (b) in imposing a sentence that was too severe. The former ground was not pressed.

(b) Mr. Williams 11 In the case of Mr. Williams, there were three grounds of appeal, namely:-

(a) An alleged failure to discount the sentence for the applicant's offer to plead guilty before the commencement of the trial to the offence of which he was ultimately convicted.

(b) The imposition of a sentence upon him and his co-offender which was said to give rise to a justifiable sense of grievance.

The facts 12 It is convenient to extract (from paragraphs 2.2 to 2.5) the summary of facts set out in the written submissions provided by Ms. A. Francis of counsel, who appeared on behalf of Mr. Williams;- "2.2 In summary, on 13 December 2002, the applicant's co-offender, Mr. Saunders, was cultivating marijuana plants in his garage. The victim, Mr. Foster, broke into the garage to steal a Peewee 50 motorcycle belonging to the applicant [Williams]. During the course of the break-in, a neighbour witnessing the incident alerted the police. Mr. Saunders came upon the victim in the garage who then escaped out the window he had broken in through. Mr. Saunders gave chase although he did not catch him. Whilst Mr. Saunders was absent, the police attended the scene, discovered the plants, obtained a search warrant and returned. Mr. Saunders was arrested that day in respect of the cultivation and the deemed supply of the plants offences for which he was on bail when he detained Mr. Foster. 2.3 On 15 December 2002, at about midday, Mr. Saunders and his wife 'picked up' the [victim] from a train station and took him back to their house. Mr. Saunders later contacted the applicant [Williams] who arrived at the house at 4.00 pm. Thereafter, until shortly after 6.00 pm, the two men detained Mr. Foster for the purpose of finding out who were Mr. Foster's accomplices in the break in. Importantly, the sentencing judge was satisfied that the offenders had no intention of hurting the victim. The victim was just shy of 15 years of age and whilst described by his Honour as 'street wise', a 'drug user', a 'thief' and a 'liar', his Honour was satisfied that the ordeal would have been a frightening and intimidating one. 2.4 His Honour was satisfied that the applicant's [Williams'] involvement was from only 4.00 pm until 6.00 pm. Over this period, the applicant, in company with Mr. Saunders, drove the victim to a picnic area in the Strickland State Forest and forced him to dig a hole. There was evidence to the effect that Mr. Saunders had admitted saying to the victim during the incident that it would be 'his bed for the night'. 2.5 The sentencing judge was satisfied that the victim was unreliable in his account in a number of important respects, namely, in relation to the allegation that he had been put in the boot of the car and in accordance with the jury's verdict to the extent that he alleged he had been hurt by the offenders during the ordeal."

Submissions on behalf of the applicants 13 Written and oral submissions were made on behalf of both applicants. I will deal firstly with those concerning Mr. Williams

(a) Mr. Williams 14 The submissions made on behalf of this applicant essentially raise three matters:-

(a) That, having regard to Mr. Williams' offer to plead guilty prior to the commencement of the hearing on 29 September 2004, there should not have been a parity of sentences.

(b) That there were a number of distinguishing factors relevant to the objective criminality of Mr. Williams and that of Mr. Saudners.

(c) That the sentence imposed on Mr. Williams of two years non-parole period with a balance of two years was manifestly excessive. 15 In oral submissions, Ms. Francis of counsel, on behalf of Mr. Williams, stated that the principal complaint made on behalf of her client was that the sentencing judge erred in failing to impose a sentence which distinguished between the two offenders, having regard to their respective criminality. 16 I will turn to deal with the grounds relied upon by the applicant Williams:- Ground 1: The sentencing judge erred by failing to discount the sentence for the applicant's offer to plead guilty before the commencement of the trial to the offence for which he was ultimately convicted

Ground 2: The imposition of the same sentence upon the applicant and his co-offender gives rise to a justifiable sense of grievance. 17 These two grounds were argued together. 18 In relation to the first ground, and, specifically in relation to the notional utility of the plea of guilty, the trial commenced on 29 September 2004 with the jury returning their verdicts on 13 October 2004. The offer was made two days prior to the commencement of the hearing. 19 The Crown contended that it would be difficult to identify any utilitarian value to be attached to the offer of a plea in relation to a joint trial and the only accused to offer a plea was the applicant Mr. Williams. Reliance was placed upon the decision of this court in Regina v. Curry [2002] NSWCCA 109. 20 Accordingly, so the argument of the Crown went, any discount in relation to the so-called notional utilitarian value of the plea could only be minimal, given that, in any event, a plea of guilty would not have meant that there would have been no trial. Further it was submitted that little if any preparation or Court time would have been saved. 21 The Crown further contended that this was not a case of a plea being offered and the offer being rejected out of hand. It is said that negotiations did not result in agreement and that the "agreed facts" drafted by the Crown were rejected by the applicant. This contention needs to be reviewed in light of the matters in paragraph [27]. 22 In relation to the question of the offer to enter a plea (at p.15 of the remarks on sentence concerning Mr. Williams) the sentencing judge stated:- "Another relevant factor insofar as Mr. Williams is concerned is that he offered to plead guilty to the alternative charge of detaining Mr. Foster in company, the charge of which the jury found him to be guilty, two days before his trial. This suggests that he recognised that his conduct in detaining Mr. Foster for about two hours was unjustifiable and inexcusable." 23 The complaint made on behalf of the applicant was that there was a significant difference in his case from that of Mr. Saunders in having offered to enter a plea of guilty as well as the fact that Mr. Saunders had committed this offence whilst subject to conditional liberty. The combination of those factors, it was said, ought to have resulted in a significantly ameliorated penalty. Reliance was placed, in this respect, upon Lowe v. The Queen (1984) 154 CLR 606. 24 In oral submissions, Mr. Francis contended that her client's offer to enter a plea should have resulted in a discount of 10%. In support of the contention that a discount ought to have been allowed on the sentence by reason of the applicant's offer, reliance was placed upon what was stated in Regina v. Bryan Steven Johnson [2003] NSWCCA 129 at [44] per Bell, J. with whom Giles, JA. and Carruthers, AJ. agreed, and upon what was said by Grove, J. (with whom Spigelman, CJ. and Sully, J. agreed) in Regina v. Oinonen [1999] NSWCCA 310 at [15] to [18]. The court was also referred to the decisions of this Court in Regina v. Pennisi [2001] NSWCCA 326 and Regina v. Cardoso [2003] NSWCCA 15. 25 In Pennisi (supra), the Court (Beazley, JA., Wood, CJ. at CL. and Carruthers, AJ.) stated at [25]:- "As events turned out, there was no utilitarian value in this case as the plea was not accepted. That does not reflect at all on the applicant and his offers to plead guilty to manslaughter were appropriately treated by her Honour upon the same basis as if they had been accepted; Re Tran [1999] NSWCCA 443 at [25] and Regina v. Cardoso [2003] NSWCCA 15." 26 In Curry (supra), this Court distinguished Oinonen (supra). In that case, in which the applicant stood with others on two counts of murder, the trial judge, Hidden, J., declined to give any discount for any notional utilitarian value of the plea of guilty to manslaughter that had been offered. That approach was upheld on appeal to this Court. The basis upon which the offer had been made was unclear. Studdert, J. (with whom Heydon, JA. and Buddin, J. agreed) observed that it would have been extraordinarily difficult for the judge to have assessed what, if any, discount could properly be given to the applicant's undefined offer, particularly in the setting of the joint trial. The offer was appropriately only taken into account as indicative of remorse. 27 In the present case, counsel for Mr. Williams sought and was granted leave to file an affidavit or an agreed statement as to what had transpired between counsel at the trial concerning the offer. A document was sent following the hearing of the appeal as to the relevant factual matters concerning the offer to enter a plea of guilty. The document contains the following:- "FACTS AGREED BETWEEN THE CROWN AND THE APPLICANT CONCERNING THE APPLICANT'S OFFER TO PLEAD GUILTY TO THE OFFENCE OF AGGRAVATED KIDNAPPING CONTRARY TO s.86(2) CRIMES ACT On the day that the trial was listed to commence, counsel for the applicant indicated to the Crown that the applicant was prepared to plead guilty to the offence of aggravated kidnapping contrary to s.86(2) Crimes Act. The Crown prepared a statement of facts in the event Saunders was willing to plead to the specially aggravated offence. There were no 'agreed facts' prepared in relation to Williams' offer to plead guilty to the aggravated kidnapping. The trial did not start on the morning it was listed to commence and was adjourned for two days. Again on the morning of the adjourned date, counsel for the applicant indicated that his client was prepared to plead to the offence of aggravated kidnapping and this offer was rejected by the Crown." 28 On the basis of the facts that have been disclosed, I am of the view that a discount of 10% ought to have been allowed in respect of the sentence imposed on the applicant Mr. Williams.

Ground 3: The sentence is manifestly excessive 29 In the written and oral submissions, reliance was placed upon what were said to be significant differences between both the objective and subjective factors concerning Mr. Williams in contrast to his co-offender, Mr. Saunders. 30 An examination of the relevant factual matters indicates that there were significant factors that distinguished the criminality of Mr. Williams from that of his co-offender. They may be summarised as follows:-

(a) It was Mr. Saunders who "picked up" (as it was described in the remarks on sentence) the victim, with his defacto wife present, in the vicinity of the railway station at Narara.

(b) It was Mr. Saunders who then took the victim in the car to Mr. Saunders' home.

(d) It was not until Mr. Saunders contacted Mr. Williams and advised that he had the victim with him and asked Mr. Williams to join him that the latter's involvement commenced.

(e) The period of detention by Mr. Saunders was approximately six hours. The period of detention involving Mr. Williams was two hours.

(f) Mr. Williams was 30 years of age at the time of the offence and was some seven years younger than Mr. Saunders.

(g) Mr. Saunders was, at the time that he committed the offence, on bail.

(h) The sentencing judge disregarded prior minor offences and regarded Mr. Williams as a man of good character. 31 In summary, it can be seen from the above that the applicant, Mr. Williams, was not the instigator of the offence and the unlawful detention was already on foot at the time that he was contacted by his co-offender. 32 The sentencing judge correctly identified the seriousness of the victim's detention by both applicants by having regard to the following factors:-

(b) the circumstances in which the victim was detained;

(d) the purpose of the detention. 33 There is no criticism of the sentencing judge's analysis of the relevant factual matters and accordingly the substantial issue arising is as to whether or not both offenders ought to have been regarded as relevantly indistinguishable in terms of their criminality. 34 The relevant passage in the remarks on sentence is as follows:- "… I have determined, balancing the objective against the subjective, and the aggravating against the mitigating, and taking into account deterrence, that the appropriate sentence is imprisonment for four years. I realise that there are some minor differences between the offenders, but I consider that each should receive the same sentence, notwithstanding those differences." (at p.16) 35 The Crown has submitted that there is no relevant disparity which would justify a sense of grievance, having regard to objective and subjective factors. The Crown has also submitted that should this Court resolve that there is a disparity, then it was contended that it should determine, in the exercise of its discretion, that it is not such as to attract appellate intervention: Regina v. Kelly [2005] NSWCCA 280. 36 The Crown further contended that the sentence was far from manifestly excessive, having regard to the nature of what was termed the "vigilante" action by both offenders and that such action must be condemned. The Crown also submitted, quite correctly, that the matter does call for a sentence that properly takes into account general deterrence whilst acknowledging the sentencing judge's finding that it was unlikely that either offender would re-offend. 37 The Crown fairly conceded that the relevant mitigating factors included the fact that there was no substantial injury or emotional harm to the victim, the fact that the offence was not planned and the fact that the applicant, Mr. Williams, had no previous (significant) criminal history as well as being a person of good character who was unlikely to re-offend and who had good prospects of rehabilitation. 38 I do not consider that the differences identified in paragraph [30] between the two applicants in terms of their criminality could be regarded as "minor", as suggested in the extracted passage in the remarks on sentence set out in paragraph [34] above. Whilst the offending conduct was, as the sentencing judge observed, unplanned and contrary to the characters of both of them, the points of distinction identified above lead to the conclusion that differential sentences were required as would properly reflect the criminality of each of them. In failing to make that distinction, I consider that the term of imprisonment of four years with a two year non-parole period was manifestly excessive in the case of Mr. Williams.

Appropriate sentence 39 The sentencing judge considered the factors referred to below as relevant. Those matters, which are also germane to Mr. Saunders, are:-

(a) That the person detained was, at the time, aged 14 years and 11 months. Notwithstanding, that he considered him to be a street-wise young man, a liar, thief and drug user, the sentencing judge correctly observed that there was no excuse for the detention.

(b) The circumstances of the detention commenced with the victim being picked up by Mr. Saunders and then being taken to Mr. Saunders' home. Both applicants took the victim to the Banksia Picnic Area in the Strickland State Forest. That episode was particularly reprehensible and must have occasioned considerable fear in the victim. The sentencing judge's finding that the detention must, for the victim, have been a "horrifying ordeal" is obviously correct.

(c) The period of detention was, so far as the applicant Mr. Williams was concerned, limited to the two hours as earlier discussed. This was not a detention directed towards the extortion of money or similar material advantage.

(d) The sentencing judge found that the purpose of the detention was to obtain information from the victim as to who were his accomplices in breaking into Mr. Saunders' garage and, as also found, the purpose of the detention was that Mr. Saunders and Mr. Williams intended to intimidate, frighten and punish the victim for his breaking into the garage on 13 December 2002, thereby bringing police attention to Mr. Saunders' cultivation of the cannabis plants, with the result that Mr. Saunders lost the plants and the leaf that he had harvested and was then charged with a cultivation offence. 40 It has been recognised that an offence of kidnapping gives rise to difficult sentencing questions: see Regina v. Collett & Anor (Court of Criminal Appeal, unreported, 7 June 1974 per Roden, J. at 18). The statutory offence of aggravated kidnapping (in company) contrary to s.86(2)(a) of the Crimes Act 1900 has a prescribed maximum penalty of 20 years imprisonment. In Collett (supra), Roden, J. (at p.18) emphasised that one important consideration in assessing a sentence in the case of a detention offence is likely to be the length of time for which the victim is detained. A second consideration will be the extent to which fear or terror may be occasioned in the detainee, how he or she is treated and what may be required of him or her by the captors. A third matter to which regard ought to be had to is the purpose of the detention. As there observed, it may be that the detention is for the purpose of obtaining money, or in order to achieve some political objective, or otherwise. A fourth matter which will influence the sentence is whether there were persons subjected to the ordeal and anguish that can be involved through fear for the well-being of a person detained, as for example, family members in cases of holding for ransom or holding hostages for other purposes. See also Regina v. Newell [2004] NSWCCA 183, Howie, J. (with whom Bell, and Hislop, JJ. agreed) at [32]. 41 Whilst Roden, J. in that case did not attempt to state an exhaustive list of relevant criteria, it can be seen that, having regard to the criteria specially referred to in [38], the present offence, though unmistakably a serious one, was in the lower segment of the possible range of sentences for offences under s.86(2)(a) of the Crimes Act 1900. 42 It is fortunate that offences of kidnapping are comparatively rare. That fact, of course, means that there is therefore no range or "tariff" available to guide the sentencing discretion. 43 The relevant matters identified by the sentencing judge and to which I have made reference are all relevant to assessing the objective seriousness of the offence. The relevant subjective factors were also identified by the sentencing judge. These included the fact that Mr. Williams was aged 30 years and seven months when he committed the offence, that he has close contact with his parents and siblings and was raised in a loving and supportive environment. He left school having completed the School Certificate and has been in regular full-time employment since leaving school. He was well regarded as an employee and as a friend by his employer and his position was said to be available to him on his release from prison. He is the father of two children, a daughter and a son who live with his former wife and with whom he has regular contact. 44 Importantly, Mr. Williams had only minor offences which the sentencing judge correctly disregarded for the purposes of sentencing him and he, as already noted, was properly regarded as a man of good character. 45 The sentencing judge's findings, which have not been challenged, that (a) the offence was an unplanned one and, (b) was contrary to the character of both Mr. Williams and Mr. Saunders were important in determining sentence. He also determined they did not intent to injure the victim and did not, in fact, injure him and that they were unlikely to re-offend. I accept with respect, the sentencing judge's finding that personal deterrence is not in these particular cases as important as it may be in others. 46 Having regard to the relevant distinguishing factors to which I have earlier referred, (including, in particular, that Mr. Saunders instigated the detention, the relevant period of detention by each applicant, that Mr. Saunders was significantly older than Mr. Williams and the offer to plead guilty made by Mr. Williams), I have concluded that a differential outcome in the sentencing of the two applicants is indicated with the applicant Mr. Williams receiving a lesser sentence than Mr. Saunders. 47 I have also concluded that the sentence imposed on Mr. Williams was excessive and accordingly should be set aside. 48 In respect of the applicant, Mr. Williams, I have concluded:-

(a) That the sentences imposed on him should be set aside.

(c) That a finding of special circumstances should be made, having regard to his good prior character and rehabilitation prospects.

(d) That the sentence to be imposed should allow for the time Mr. Williams spent in custody from the date of his arrest on 4 January 2003 until the date of his release on bail on 19 February 2003. 49 On this basis, I would re-sentence Mr. Williams as follows. He be sentenced to a non-parole period of 18 months to commence on 30 August 2004 and which will expire on 28 February 2006, on which date he is to be eligible to be released on parole and that the balance of the term of sentence of 12 months, which will commence on 1 March 2006 and will expire on 28 February 2007.

(b) Mr. Saunders 50 Mr. Lowe of counsel who appeared on behalf of the applicant Mr. Saunders sought to argue that the sentence imposed on his client was manifestly excessive, taking into account the fact that he was a first-time offender and the particular circumstances of the victim's incarceration. Mr. Lowe contended that the offence in question should properly be regarded as at the low end of the spectrum of offences of the kind in question. 51 In addition to the circumstances relevant to the objective seriousness of the offence to which reference has earlier been made, there are four matters that are particularly relevant to Mr. Saunders' criminality. I deal with each of those in turn. 52 Firstly, the purpose of the detention was related to or connected with Mr. Saunders' illegal activity in cultivating prohibited plants grown hydroponically inside his garage. The sentencing judge referred to the fact that the purpose of the detention was to obtain information from the victim as to who were his accomplices in the breaking-in of Mr. Saunders' garage. The sentencing judge added:- "… but I think that, in addition to this purpose, Mr. Saunders and Mr. Williams intended to intimidate, frighten and punish (the victim) for his breaking into the garage on 13 December 2002, thereby bringing police attention to Mr. Saunders' cultivation of the cannabis plants, with the result that Mr. Saunders lost the plants and the leaf that he had harvested and was charged with the cultivation of the plants and the deemed supply of the leaf." 53 Based on this finding, a reason or purpose for what has been described as the vigilante-type conduct was very much tied in or related to Mr. Saunders' illegal activity in the cultivation of the cannabis plants. This is an aspect that is relevant to both the objective seriousness of the offence, as well as to the relative culpability of Mr. Saunders as against Mr. Williams. Whether Mr. Saunders was motivated by revenge or simply anger at what had happened as a consequence of the break-in to his garage, is a matter that does not require resolution. The point is that his personal interest in the illegal cultivation was a factor which led to the commission of the aggravated kidnapping offence contrary to s.86(2)(a) of the Crimes Act 1900. 54 Secondly, it is not possible to leave out of account entirely in evaluating the sentence the fact that the offence of cultivate prohibited plant and the offence of deemed supply of cannabis leaf were taken into account on a Form 1 and as earlier noted, the applicant received a fixed term of imprisonment of nine months which was wholly concurrent with and subsumed within the sentence for the aggravated kidnapping offence. 55 Thirdly, at the time of the aggravated kidnapping offence, Mr. Saunders was on bail for the offence dealt with on the Form 1. This was a material aggravating factor to be taken into account in determining sentence. 56 Fourthly, whilst Mr. Saunders had the benefit of a finding that he was a person of unblemished character prior to being charged with the cultivation offence, that could be regarded as a generous finding on which the sentence determination proceeded. It was plain that prior to being charged with that offence he had been engaged for some period of time in cultivating cannabis by a method which itself suggests a certain level of sophistication. 57 In considering whether, having regard to the objective circumstances of the offence and the mitigating circumstances, the sentence imposed on Mr. Saunders was excessive, regard must be had to the above four matters. I have concluded, having regard to all of the circumstances, that the sentence imposed of four years with a two year non-parole period was an appropriate sentence and well within the discretion of the sentencing judge. 58 I accordingly have concluded that no error has been demonstrated and that the sentence, being within the sentencing judge's discretion, that no other sentence less severe is warranted in law and should have been passed: s.6(3) of the Criminal Appeal Act 1912. 59 I accordingly am of the view that the appropriate orders are as follows:-

(a) That the applicant, Mr. Saunders, be granted leave to appeal.

(b) That the appeal should be dismissed. **********

23/02/2006 - Incorrect dates - Paragraph(s) Decision, para 48(d), cover sheet

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