AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 17 December 1999

Regina v M L Edwards

[1999] NSWCCA 411

Drugs
(NO QUESTION OF PRINCIPLE)

Citation: Regina v M L Edwards [1999] NSWCCA 411
Court: NSW Court of Criminal Appeal
Date: 17 December 1999
Judge(s): James J, Sperling J

Background

The applicant pleaded guilty in the District Court to one count of knowingly taking part in the cultivation of a prohibited plant (cannabis), contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act 1985. The offence carried a maximum penalty of ten years' imprisonment. The plea was entered when the matter was called on for trial, approximately four years after the offence, in full satisfaction of an indictment that had included the more straightforwardly framed charge of cultivating a prohibited plant.

The underlying facts were serious. Police attended a farm property and found 185 cannabis plants up to one metre tall growing in a shed under a sophisticated hydroponic irrigation system. The applicant admitted ownership of the property and the plants, acknowledged involvement in the growing operation over approximately one year, and was found in possession of over $100,000 in cash that she admitted came from cannabis sales. Her de facto husband, who was absent at the time, had taken a load of cannabis to Sydney to sell.

At the sentencing hearing, the applicant initially denied any involvement, then made only grudging concessions about occasionally activating the watering system and placing plants in front of a fan. The District Court judge found her evidence unconvincing, accepted the admissions she had made to police, and sentenced her to a minimum term of nine months and an additional term of nine months. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge failed to account for the four-year delay between arrest and sentence
  • Whether the sentencing judge failed to give proper weight to the guilty plea as entered at the first available opportunity
  • Whether the sentencing judge wrongly characterised the applicant's role as more than that of a low-level accomplice
  • Whether the sentence was founded on a factual finding of trafficking without evidentiary support
  • Whether the sentence was, overall, manifestly excessive

Decision

The Court of Criminal Appeal found it unnecessary to resolve each ground individually, having concluded that the sentence was manifestly excessive. Sperling J, with whom James J agreed, accepted that the objective criminality was serious: the operation was large-scale, sophisticated, and commercial in purpose, even though the number of plants fell short of the statutory threshold for a "commercial quantity." The applicant's admissions to police provided a sound basis for finding she was actively involved, not merely a passive bystander.

On the subjective side, the Court acknowledged that the sentencing judge had already found the applicant to be somewhat subservient to the will of her de facto husband, who was characterised as a violent man. The Court did not disturb that finding, but weighed it against the applicant's initial false denials at the sentencing hearing and her evident unwillingness to accept responsibility. Her plea, while saving the cost of a trial, was entered late and in circumstances that diminished its weight as evidence of remorse.

On the delay ground, the Court found no error. The burden falls on an applicant to prove a mitigating matter, and the sentencing judge was not obliged to conclude the delay was anything other than the applicant's own fault, given that an earlier offer to plead guilty might well have been accepted. There was also no clear basis on which to attribute the delay to the prosecution.

Despite rejecting most of the individual grounds, the Court held that a total sentence of eighteen months was excessive when all the subjective features were properly weighed together. The appropriate disposition was a sentence approximating the time the applicant had already spent in custody, and the Court substituted a fixed term that expired on the date of its judgment.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Original sentence set aside
  • Applicant sentenced to a fixed term of imprisonment of five months, one week and two days, commencing 9 July 1999 and expiring 17 December 1999

Key Takeaways

  • In dismissing all but the manifest excess ground, the Court of Criminal Appeal confirmed that individual grounds of appeal need not be resolved once manifest excess is established.
  • A guilty plea entered only when a matter is called on for trial, accompanied by initial false denials at the sentencing hearing, carries limited mitigating weight as evidence of remorse.
  • Where delay between arrest and sentence is alleged as a mitigating hardship, the burden rests on the applicant to prove the delay was not of their own making; a sentencing judge does not err by declining to find unusual hardship where that burden is not discharged.
  • The distinction between "cultivating a prohibited plant" and "knowingly taking part in the cultivation of a prohibited plant" under the Drug Misuse and Trafficking Act 1985 does not necessarily confer a lesser degree of criminality, as both offences carry the same maximum penalty and the appropriate sentence depends on what the offender actually did.
  • Subjective features, including a coercive domestic relationship and an otherwise law-abiding period before sentence, can collectively render an otherwise warranted custodial sentence manifestly excessive when weighed against objective criminality.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 6, 23(1)(a)

Cases
- Downie (1997) 95 A Crim R 299
- Jurisic (1998) 45 NSWLR 209
- Kirkwood [1982] QdR 158
- Puke (NSW CCA, 12 September 1997, unreported)