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Court of Criminal Appeal 14 August 2002

Regina v Boundy

[2002] NSWCCA 319

Also reported as (2002) 132 A Crim R 482
Drugs
SENTENCING SENTENCE MANIFESTLY INADEQUATE EFFECT OF DELAY SINCE SENTENCING ON RE SENTENCING

Citation: Regina v Boundy [2002] NSWCCA 319
Court: New South Wales Court of Criminal Appeal
Date: 14 August 2002
Judges: Mason P, Hulme J, Smart AJ

Background

Police executed a search warrant at the home of the respondent, a man who lived there with his de facto partner and two children. Officers found large quantities of cannabis leaf and drying plants throughout the house, cannabis in a vehicle parked outside, nine plastic bags of cannabis, seeds, cultivation books, and 13 young cannabis plants growing in pots at the rear of the property. The total weight of vegetable matter seized was approximately 49.21 kilograms, well above the statutory commercial quantity threshold of 25 kilograms.

The respondent pleaded guilty in the Local Court to three charges: supply of a commercial quantity of cannabis leaf, supply of a prohibited drug (cannabis leaf), and cultivation of 13 cannabis plants. At sentencing in the District Court, Judge Hosking SC characterised the respondent as a small backyard grower who intended primarily to smoke the cannabis himself and sell only a little on the side. His Honour imposed a 12-month suspended sentence for the commercial supply charge and good behaviour bonds for the remaining two charges.

The Crown appealed, contending that the sentences, particularly for the principal commercial supply offence, were manifestly inadequate given the nature and scale of the operation.

  • Whether the sentencing judge erred in finding that the saleable quantity of cannabis was appreciably less than a commercial quantity, given the statutory definition of cannabis leaf and the evidence available.
  • Whether the characterisation of the respondent as a small backyard grower was justified on the evidence.
  • Whether a suspended sentence for an offence of supplying a commercial quantity of cannabis was manifestly inadequate.
  • What effect the delay between the original sentencing and the Crown appeal should have on the re-sentencing exercise.

Decision

The Court of Criminal Appeal upheld the Crown appeal in relation to the principal charge. The Court agreed with the Crown that the sentencing judge's finding that the respondent was merely a small backyard grower was unduly benign. Even accepting that a significant portion of the total weight comprised stems, roots, and moisture, and even allowing for the respondent's personal use, the saleable cannabis leaf was likely to have been in the range of 18 to 24 kilograms. That remained a very substantial quantity and the offence was a serious one.

On the question of how to treat the weight of the seized material, the Court took a nuanced position. The Court accepted that the sentencing judge was entitled to recognise that the statutory commercial quantity was met and that the actual saleable portion was probably less than 25 kilograms, given that recently harvested, rain-soaked plants inevitably contain unsaleable stems and excess moisture. However, that factual finding could only go so far in mitigation. The guilty plea was to supply of a commercial quantity, and the mitigating effect of a lower saleable weight operated on penalty, not guilt.

The Court then turned to the effect of delay. By the time of the appeal hearing and judgment, the respondent had secured employment and was demonstrating genuine rehabilitation. The Court found that imposing full-time custody at that point would disrupt a rehabilitation trajectory that was clearly underway, and that this was a relevant consideration. The Court concluded that a sentence of two years and six months' imprisonment, served by way of periodic detention, was appropriate for the commercial supply offence.

The Crown appeals against the good behaviour bonds for the cultivation and the lesser supply offence were dismissed, also on account of the delay that had elapsed since sentencing.

Orders Made

  • Crown appeal against the good behaviour bonds for the cultivation of 13 cannabis plants and the lesser supply charge dismissed.
  • Crown appeal against the 12-month suspended sentence for commercial supply of cannabis leaf allowed; that sentence quashed.
  • In lieu, the respondent sentenced to 2 years 6 months' imprisonment to be served by way of periodic detention, with a non-parole period of 18 months, commencing 23 August 2002.
  • The respondent ordered to report to the Periodic Detention Centre, Grafton, prior to 7 pm on 23 August 2002.
  • Release on parole fixed for 22 February 2004.

Key Takeaways

  • A suspended sentence for supplying a commercial quantity of cannabis was found to be manifestly inadequate, even where the actual saleable quantity of the drug was likely less than the statutory threshold of 25 kilograms.
  • Under the Drugs (Misuse and Trafficking) Act, the statutory definition of cannabis leaf includes stems of non-growing plants, and the charge properly reflects the full weight of material seized, including moisture from recently harvested plants. Any argument that the useable quantity was lower operates as mitigation on penalty, not as a challenge to guilt.
  • Where a sentencing judge lacks precise evidence about the saleable portion of seized cannabis, the judge may draw on experience and common sense to estimate that proportion, but the estimate must remain consistent with the evidence and cannot produce a characterisation of an offender that is unduly benign.
  • Delay between the original sentence and re-sentencing on a Crown appeal is a significant factor. The Court of Criminal Appeal declined to impose full-time custody and instead imposed periodic detention, in recognition of the respondent's rehabilitation and employment in the intervening period.
  • In dismissing the Crown appeals on the two lesser charges, the Court reinforced that delay can be a sufficient independent basis to decline intervention, even where the original sentences might otherwise have been open to criticism.

Legislation and Cases Referenced

Legislation:
- Drugs (Misuse and Trafficking) Act 1985 (NSW), ss 3, 23(1), 25(1), 25(2), 29
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Blanco (unrep) CCA 22/10/78
- R v Clark (unrep) CCA 15/3/90
- Rex v Geddes (1936) 36 SR 554
- R v Dodd (1991) 57 A Crim R 349
- R v Rushby (1977) 1 NSWLR 594
- R v Swann (unrep) CCA 17/7/92
- R v Burnett & Ors (1996) 85 A Crim R 76
- R v Peel (1971) 1 NSWLR 247
- Postiglione v R (1996-97) 189 CLR 295
- R v Doan (2000) 50 NSWLR 115
- R v Parsons & Poore [2002] NSWCCA 296
- R v Olbrich (1999) 199 CLR 270