Citation: REGINA v. GODDEN [2005] NSWCCA 160
Court: NSW Court of Criminal Appeal
Date: 29 April 2005
Judge(s): Hunt AJA, Grove J, Hall J
Background
The appellant pleaded guilty in the District Court at Coffs Harbour to cultivating a commercial quantity of cannabis, specifically 319 plants, contrary to the Drug Misuse and Trafficking Act 1985. The operation was characterised by the sentencing judge as "highly professional," involving elaborate hydroponic systems, an incubator, and multiple concealed growing areas on the appellant's rural property. A further offence of possessing 280 grams of cannabis leaf was taken into account on a Form 1.
District Court Judge Freeman sentenced the appellant to three years and two months imprisonment with a non-parole period of two years. The sentencing judge allowed a 20% discount for the guilty plea, which meant the starting point before discount was effectively close to four years.
The appellant sought leave to appeal on the grounds that the sentence was manifestly excessive, that his criminality had been over-estimated, and that the sentencing judge had failed to give adequate weight to his remorse and rehabilitation.
Legal Issues
- Whether the sentence of three years and two months was manifestly excessive having regard to comparable cases and sentencing statistics
- Whether the sentencing judge erred by treating full-time custody as required "as a matter of common understanding" rather than as a discretionary sentencing option
- Whether the sentencing judge over-estimated the appellant's criminality by characterising the operation as "highly professional"
- Whether sufficient weight was given to the appellant's remorse and rehabilitation as personal or subjective factors
Decision
Hall J (with whom Hunt AJA and Grove J agreed) undertook a detailed review of 22 comparable cultivation cases and available sentencing statistics. The statistics showed that 41% of offenders convicted of cultivating a commercial quantity of cannabis received full-time custody, with 72% receiving head sentences of three years or less and only 8% receiving more than four years. The Court found the three-year-two-month sentence, while substantial, had to be assessed against these comparators and the specific facts.
On the question of personal and subjective factors, the Court found the sentencing judge had not adequately accounted for matters including the appellant's remorse and progress toward rehabilitation. These factors, considered together, were sufficient to support a finding that the sentence was manifestly excessive, warranting intervention.
The Court rejected the ground that the sentencing judge had over-estimated criminality. The characterisation of the operation as highly professional was open on the evidence given the sophistication of the hydroponic systems, the use of an incubator, and the multiple concealed growing areas. However, the Court did identify an error in the sentencing judge's reasoning: his Honour had treated full-time custody as a matter of "common understanding" supported by cited authorities, when in fact those authorities did not stand for that proposition. The Court found this error did not itself undermine the sentencing process, since a custodial term was plainly appropriate given the rejected claim that cultivation was for personal use only.
Having found the sentence manifestly excessive, the Court resentenced the appellant to a total term of two years and two months with a non-parole period of one year and three months, both calculated from the original commencement date of 10 June 2004.
Orders Made
- Leave to appeal against sentence granted
- Appeal allowed and the District Court sentence quashed
- In lieu of the quashed sentence, the appellant sentenced to two years and two months imprisonment commencing 10 June 2004 and expiring 9 August 2006, with a non-parole period of one year and three months commencing 10 June 2004 and expiring 9 September 2005
- Appellant ordered released to parole on 9 September 2005
Key Takeaways
- A sentence of three years and two months for cultivating 319 cannabis plants in a sophisticated hydroponic operation was held to be manifestly excessive when measured against comparable cases and sentencing statistics, warranting resentencing to two years and two months.
- Inadequate allowance for personal or subjective factors, including remorse and rehabilitation, can provide sufficient grounds for appellate intervention even where the primary factual findings and characterisation of the offending are upheld.
- A sentencing judge's erroneous description of full-time custody as a matter of "common understanding" required by authority did not by itself vitiate the sentence where a custodial term was plainly the correct outcome on the facts.
- Sentencing statistics and comparable cases are relevant tools in assessing manifest excess, but the Court of Criminal Appeal treats them as guides rather than determinative benchmarks.
- The finding that the appellant's cultivation was not solely for personal use was clearly open and formed a central justification for the custodial sentence that was ultimately imposed.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases Cited:
- Summerville (CCA, unreported, 9 September 1993)
- Westropp (CCA, unreported, 14 April 1993)
- Daoulas (CCA, unreported, 28 October 1993)
- Field (CCA, unreported, 3 May 1996)
- Downie & Dandy (Victorian Court of Appeal, unreported, 27 June 1997)
- Puke (CCA, unreported, 12 September 1997)
- Osenkowski (1982) 5 A Crim R 394
- Way (2004) 60 NSWLR 168
- Clark (CCA, unreported, 15 March 1990)
- Dopson (CCA, unreported, 10 April 2003)