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Court of Criminal Appeal 26 October 2000

R v SIROCIC

[2000] NSWCCA 447

Drugs
CULTIVATION OF PROHIBITED PLANTS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: SIROCIC v R [2000] NSWCCA 447
Court: NSW Court of Criminal Appeal
Date: 26 October 2000
Judges: Sheller JA, Dowd J, Smart AJ

Background

The appellant pleaded guilty in the District Court to cultivating prohibited plants, namely cannabis, under s 23(1)(a) of the Drug Misuse and Trafficking Act 1985. The charge arose from an incident on 20 March 1999 at Upper Orara, where police executing a search warrant found approximately 3,005 grams of cannabis material at the appellant's home.

The appellant's account was that while jogging in bushland that morning, he stumbled upon cannabis plants growing wild, estimated at around five feet eight inches tall. He returned later and broke off the branches, carrying them roughly 1.5 kilometres back to his home. He said his intention was to strip the plants for personal smoking. A related possession charge was taken into account on a Form 1.

The District Court judge sentenced the appellant to four years imprisonment with a minimum term of two years. The appellant sought leave to appeal out of time against both his conviction and the severity of his sentence. Only the severity appeal proceeded.

  • Whether the sentencing judge erred by failing to make findings as to the number of cannabis plants cultivated.
  • Whether the sentence of four years imprisonment with a minimum term of two years was manifestly excessive in all the circumstances.
  • Whether special circumstances existed justifying a variation in the ratio between the non-parole and additional terms.

Decision

The Court of Criminal Appeal found that the original sentence was manifestly excessive. The sentencing judge had not made findings about the number of plants involved, which was a relevant matter. The appellant's own evidence referred to taking three plants, and the Court proceeded on that basis.

The Court acknowledged the appellant's serious criminal history, which stretched back to 1978 and included a ten-year sentence for importing a prohibited substance, as well as multiple convictions for drug possession and supply. The pre-sentence report was notably unflattering, recording that supervising officers had cause to breach the appellant on every supervision order. These factors weighed significantly in the sentencing exercise.

Despite that history, the Court identified several mitigating factors that the original sentence had not adequately reflected. These included the spontaneous and opportunistic nature of the offending, the absence of any supply allegation, an early plea of guilty, and implicit contrition. Post-sentencing material also indicated some progress toward rehabilitation, including completion of a Christian instruction programme at Grafton Correctional Centre.

Balancing the seriousness of the offence and the substantial quantity of cannabis against the mitigating factors, the Court reduced the total sentence to 18 months imprisonment. The Court accepted that special circumstances existed but considered a non-parole period of 12 months adequate to address them.

Orders Made

  • Leave to appeal out of time granted.
  • Appeal allowed.
  • Sentence imposed on 9 December 1999 by Judge Twigg quashed.
  • In lieu thereof, the appellant sentenced to 18 months imprisonment commencing 9 December 1999 and expiring 8 June 2001, with a non-parole period of 12 months expiring 8 December 2000.
  • The appellant directed to be released on parole at the end of the non-parole period.

Key Takeaways

  • A failure by a sentencing judge to make findings as to the number of prohibited plants cultivated can constitute an error relevant to an appeal against sentence under s 23 of the Drug Misuse and Trafficking Act 1985.
  • Where an offence arises from a spontaneous, opportunistic act rather than planned cultivation, that character of the offending is a relevant mitigating consideration, even where the quantity of cannabis is substantial.
  • A serious and extensive criminal history in drug-related offending remains a significant factor in sentencing and will weigh against leniency, but does not preclude reduction of a manifestly excessive sentence.
  • Post-sentence evidence of rehabilitative progress is a matter the Court of Criminal Appeal may take into account when resentencing.
  • Under s 23 of the Drug Misuse and Trafficking Act 1985, the maximum penalty on indictment is ten years imprisonment; the Court noted that the summary maximum is considerably lower and may inform the appropriate range, though it does not set a ceiling for indictable proceedings.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(1)(a); s 3(1) (definition of "cultivate")

Cases
- R v Pilley (1991) 56 A Crim R 202
- R v Wong (1999) 108 A Crim R 531
- R v Davis [2000] NSWCCA 244
- R v Crombie [1999] NSWCCA 297