Citation: Regina v Hanna [2000] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 20 March 2000
Judge(s): Abadee J; James J
Background
The appellant pleaded guilty in the District Court to two serious drug offences: cultivating not less than a commercial quantity of cannabis, and supplying not less than a large commercial quantity of cannabis leaf. The offences arose from a police search of his property in January 1997, which uncovered nearly 600 mature cannabis plants in his market garden, over 219 kilograms of cannabis leaf stored in a shed, and almost $14,500 in cash concealed throughout his home.
District Court Judge Backhouse sentenced the appellant to a minimum term of three years, four months and 17 days imprisonment, with an additional term of one year and three months. The additional term was marginally above the statutory one-third proportion ordinarily applied under the Sentencing Act 1989.
The appellant sought leave to appeal that sentence in the Court of Criminal Appeal, arguing that the sentencing judge had erred by failing to expressly consider whether "special circumstances" existed that would justify departing from the standard sentencing ratio.
Legal Issues
- Whether the sentencing judge erred by failing to expressly refer to "special circumstances" under section 5(2) of the Sentencing Act 1989 when structuring the sentence.
- Whether the factors raised by the appellant (guilty plea, first offender status, character references, marriage and parenthood, and assistance to authorities) amounted to material capable of constituting special circumstances.
- Whether, even if error were established, the Court of Criminal Appeal should intervene and re-sentence under section 6(3) of the Criminal Appeal Act 1912.
Decision
Abadee J, with whom James J agreed, refused leave to appeal. The court found that the sentencing judge's silence on the question of special circumstances did not, in itself, establish error. Her Honour was an experienced sentencing judge, and the absence of express reference to special circumstances did not necessarily mean she had overlooked the issue. It was also noted that the question of special circumstances had not been raised by the appellant's own counsel at the time of sentencing.
On the substantive question, Abadee J expressed doubt that the matters relied upon by the appellant, whether considered individually or together, would have constituted special circumstances justifying a departure from the standard ratio. The court was not satisfied that the material before the sentencing judge rose to that level.
Critically, the court held that even on the assumption that error had occurred, this was not a case warranting intervention. Given the serious objective facts of the offending, including the scale of the cultivation operation, the large quantity of cannabis leaf, and its evident commercial purpose, the court concluded that no different or lesser sentence would have been appropriate. The provisions of section 6(3) of the Criminal Appeal Act effectively precluded re-sentencing where the outcome would not have differed.
Orders Made
- Leave to appeal the sentence refused.
Key Takeaways
- A sentencing judge's failure to expressly mention "special circumstances" under section 5(2) of the Sentencing Act 1989 does not automatically establish error, particularly where the issue was not raised by the defence at the sentencing hearing.
- An experienced sentencing judge may be taken to have considered relevant statutory factors even where those factors are not named explicitly in the sentencing remarks.
- Where an appellant argues special circumstances based on a guilty plea, first-offender status, character evidence, family circumstances, and assistance to authorities, those matters considered jointly or separately may not, without more, meet the threshold required under the legislation.
- Under section 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will decline to intervene even where error is assumed, if the court is satisfied that no different sentence would have resulted.
- In dismissing this application, the Court of Criminal Appeal confirmed that the objective gravity of the offending, including the scale and commercial nature of a cannabis cultivation and supply operation, can be a decisive factor in declining re-sentencing.
Legislation and Cases Referenced
Legislation:
- Sentencing Act 1989 (NSW), s 5(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- R v Astill [No 2] (1992) 64 A Crim R 289
- R v McGuiness (NSW Court of Criminal Appeal, 17 September 1999, unreported)