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Court of Criminal Appeal 11 August 2005

Regina v Skorin

[2005] NSWCCA 276

Drugs
CRIMINAL LAW SENTENCE CROWN APPEAL GUILTY PLEA ASSISTANCE PROVIDED BY THE RESPONDENT

Citation: Regina v Skorin [2005] NSWCCA 276
Court: New South Wales Court of Criminal Appeal
Date: 11 August 2005
Judge(s): James J, Howie J, Rothman J

Background

The respondent pleaded guilty in the District Court to knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants. The offence involved a large plantation in regional NSW where 6,765 mature cannabis plants, estimated to be worth millions of dollars, were discovered and destroyed by police in March 2003. The respondent played an organisational support role: he sourced and supplied equipment, arranged food for plantation workers, helped organise harvesters, and participated in discussions after police raided the site.

The respondent was the nephew of the property owner on whose neighbouring land the irrigation source was located, and the cannabis plantation was on a property formerly owned by a company of which the respondent was a director. The District Court sentenced him to two years and two months imprisonment with a non-parole period of just under one year, taking into account his guilty plea and assistance provided to authorities.

The Crown appealed that sentence as manifestly inadequate. The respondent had also been sentenced on a back-up charge of possessing an unregistered firearm, but no complaint was made about that sentence on appeal.

  • Whether the sentence imposed by the District Court was manifestly inadequate for an offence of knowingly taking part in the cultivation of a large commercial quantity of cannabis plants
  • What weight should be given to the respondent's guilty plea and his assistance to authorities in determining the appropriate sentence
  • What starting point was appropriate given the respondent's role in the criminal organisation
  • How the Court of Criminal Appeal should approach re-sentencing following a successful Crown appeal

Decision

The Court of Criminal Appeal found the original sentence was manifestly inadequate. James J (with whom Howie J and Rothman J agreed) concluded that the sentencing judge had given excessive weight to the respondent's assistance and had not adequately reflected the seriousness of the offence and the respondent's role within the criminal organisation.

The Court found the respondent was not at the lowest level of the operation but occupied at least an intermediate position. He had been involved in organising logistics, sourcing equipment, monitoring police activity near the site, and communicating with co-offenders after the raid. These activities placed him above the level of a mere worker or courier.

The Court applied a starting point of eight years imprisonment, noting this was at the bottom of the available range for an offender at an intermediate level. It described this as a conservative figure appropriate in the context of a Crown appeal, consistent with the principle that sentences imposed after a successful Crown appeal are generally somewhat lower than what the sentencing court should originally have imposed.

From that eight-year starting point, the Court applied a combined discount of approximately 40 per cent for the guilty plea and the assistance provided. The Court noted that a letter from the NSW Crime Commission indicated much of the information the respondent provided was already known or was of limited operational value. Special circumstances were found, justifying a non-parole period of approximately 60 per cent of the total sentence rather than the standard two-thirds.

Orders Made

  • Crown appeal against sentence allowed
  • Sentence for the cannabis cultivation offence quashed
  • In lieu, a sentence of four and a half years imprisonment imposed, commencing 27 March 2005
  • Non-parole period of two years and nine months, commencing 27 March 2005 and expiring 26 December 2007
  • Earliest eligible parole date: 26 December 2007

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing court must accurately assess an offender's position within a criminal organisation, and that an intermediate role in a large commercial cannabis operation warrants a substantially higher starting point than the District Court applied here.
  • A combined discount of approximately 40 per cent for a guilty plea and assistance to authorities was appropriate where the assistance provided was largely of limited operational value and much of it was already known to investigators.
  • Where special circumstances are found, a non-parole period of around 60 per cent of the total sentence may be set, departing from the standard statutory ratio.
  • In re-sentencing after a successful Crown appeal, the Court of Criminal Appeal will generally impose a sentence somewhat below what the original sentencing court should have imposed, reflecting the principle articulated in R v Wall [2002] NSWCCA 42.
  • The maximum penalty for knowingly taking part in the cultivation of a large commercial quantity of cannabis plants under the Drug Misuse and Trafficking Act is 20 years imprisonment, underscoring the seriousness with which the legislature treats offending at this scale.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW)
- Criminal Appeal Act (NSW), s 5D
- Criminal Procedure Act (NSW)
- Drug Misuse and Trafficking Act (NSW), ss 23(2)(a) and 33(3)(b)

Cases:
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Khouzame [2000] NSWCCA 505
- R v Mills [2005] NSWCCA 175
- R v Wall [2002] NSWCCA 42