Citation: R v Whalen, Andrew John and Willer, Brett J. [2003] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 13 March 2003
Judge(s): Hodgson JA; Dowd J; Barr J
Background
Two appellants were convicted at trial in the District Court following a four-week jury trial concerning cannabis cultivation at Wherrol Flat in NSW during early 1998. Police had located six sites in the area on which cannabis plants were growing, and the appellants were arrested near one of those sites at night, having been observed inspecting plants. Telephone intercepts and surveillance evidence were also relied upon by the Crown.
The appellants faced three counts: cultivating a commercial quantity of cannabis (376 plants), an alternative count of cultivating a lesser quantity (78 plants), and supplying cannabis leaf. The jury returned guilty verdicts on counts one and three. Because count two was framed as an alternative, no verdict was taken on it at trial.
On appeal, both appellants challenged their convictions and sought leave to appeal their sentences. The central dispute on appeal concerned whether the evidence supported conviction on the commercial cultivation count, and whether procedural and evidentiary errors at trial had miscarried.
Legal Issues
- Whether the trial judge was required to give a direction under s 165 of the Evidence Act 1995 regarding the identification of inanimate objects (in particular, whether specific plants found at multiple sites were those cultivated by the appellants)
- Whether the defence case was put fairly before the jury
- Whether the alternative count of simple cultivation (count two) was an appropriate charge in the circumstances
- Whether the Court of Criminal Appeal could substitute a guilty verdict on the alternative count for the verdicts returned by the jury on counts one and three
- Whether the original sentences were excessive, and what re-sentencing was appropriate following substitution of the lesser verdict
Decision
The Court of Criminal Appeal, with Hodgson JA delivering the leading judgment and Dowd J and Barr J agreeing, concluded that errors had occurred at trial sufficient to undermine the convictions on counts one and three. In particular, the court considered whether the evidence linking the appellants to all cultivation sites (particularly the more distant sites needed to establish the commercial quantity) had been adequately tested and presented to the jury, and whether proper directions had been given.
The court determined that the appropriate course was not a retrial but rather the substitution of a verdict of guilty on count two (simple cultivation of 78 plants) in place of the verdicts on counts one and three. The court was satisfied that the jury's findings, to the extent they supported the lesser count, were not vitiated by any material error. The court applied the principle that a substituted verdict is available where the evidence and the jury's underlying findings are capable of sustaining the lesser offence.
On sentence, the court declined to grant leave to appeal against the original sentences on the assumption that the conviction appeal would be dismissed. However, the substitution of the lesser verdict had three significant consequences: the maximum penalty for simple cultivation is ten years rather than fifteen; the count three conviction had influenced totality adjustments; and both appellants had offered guilty pleas to count two before trial, which the Crown had not accepted. Those factors justified a discount for the utilitarian value of the offered plea and a more favourable view of contrition.
Hodgson JA assessed that the combined effect of these considerations warranted approximately halving the sentences imposed at trial. The court resentenced accordingly.
Orders Made
- For each appellant: verdict of guilty on count two substituted for the verdicts of guilty on counts one and three; verdicts of guilty on counts one and three quashed and verdicts of acquittal entered on those counts
- Appellant Whalen sentenced to imprisonment for two years and three months commencing 1 March 2002, with a non-parole period of eighteen months expiring 31 August 2003; directed to be released on parole on 31 August 2003
- Appellant Willer sentenced to imprisonment for one year and nine months commencing 1 March 2002, with a non-parole period of twelve months expiring 28 February 2003; directed to be released on parole forthwith
Key Takeaways
- The Court of Criminal Appeal confirmed that it may substitute a verdict of guilty for a lesser alternative offence where the jury's underlying findings support that lesser charge and have not been tainted by material error at trial.
- Where an alternative count was placed before the jury but no verdict was taken on it (because it was framed as an alternative to a count on which the jury convicted), the appellate court retains the power to enter a verdict on that count in appropriate circumstances.
- A guilty plea offered before trial and not accepted by the Crown remains a relevant consideration on resentencing, supporting both a utilitarian discount and a more favourable assessment of contrition.
- Evidentiary directions under s 165 of the Evidence Act 1995 concerning the identity of inanimate objects may be required in cases where such identification forms a significant inferential step in the Crown's case.
- In substituting a lesser verdict, the court recalibrated the sentence to reflect the lower maximum penalty for simple cultivation, the removal of the totality-adjusting effect of the supply conviction, and the mitigating circumstances arising from the pre-trial plea offer, resulting in sentences approximately half those originally imposed.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 6, 7
- Criminal Procedure Act 1986 (NSW), s 99
- Evidence Act 1995 (NSW), ss 54, 165
Cases:
- Checconi (1988) 34 ACrimR 160
- Crupi (1995) 86 ACrimR 299
- Hamzy (1994) 74 ACrimR 341
- Locchi (1991) NSWLR 309
- R v Birks (1990) 19 NSWLR 677
- R v Clout (1995) 41 NSWLR 312
- R v Sultana (1992) 74 ACrimR 27
- Shepherd v The Queen (1990) 170 CLR 573
- Theos (1996) 89 ACrimR 486