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Court of Criminal Appeal 24 April 2006

Regina v Giuseppe MAMMONE

[2006] NSWCCA 138

Drugs
CRIMINAL LAW CROWN APPEAL GUILTY PLEA WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: Regina v Giuseppe MAMMONE [2006] NSWCCA 138
Court: NSW Court of Criminal Appeal
Date: 24 April 2006
Judge(s): McClellan CJ at CL, James J, Hall J

Background

The respondent pleaded guilty to knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants, an offence under the Drug Misuse and Trafficking Act. Police executing search warrants on two adjoining rural properties near Fifield discovered 6,765 mature cannabis plants irrigated by an elaborate system drawing water from a dam on land owned by the respondent.

Evidence established the respondent's involvement in several ways: he allowed water from his property to supply the plantations, cleared land for a drying tent, inspected the crops on multiple visits, attempted to recruit harvest workers, purchased a marquee for use as a drying tent, and permitted a generator he owned to be used in the operation. The plants were grown on a neighbouring property associated with the respondent's nephew.

The Crown appealed to the Court of Criminal Appeal under s 5D of the Criminal Appeal Act, arguing that the District Court sentence of a two-and-a-half-year non-parole period was manifestly inadequate. The respondent had also been subject to a sentence for shooting with intent to cause grievous bodily harm throughout the entire period of the cannabis offending, having been placed on periodic detention from August 2001.

  • Whether the sentence imposed by the District Court was manifestly inadequate for an offence of knowingly taking part in cultivating not less than a large commercial quantity of cannabis plants
  • How to weigh the respondent's advanced age (73 at sentencing), health, guilty plea (entered on the day of trial), and other subjective factors against the objective seriousness of the offending
  • Whether the Court should exercise its discretion to decline to allow the Crown appeal despite finding error in the sentence

Decision

James J found that the original sentence was manifestly inadequate. The District Court judge erred in setting too low a starting point for the sentence, and the overall result did not reflect the serious objective circumstances of the offending. The Court found no discretionary reason to decline to allow the Crown appeal.

The Court acknowledged several mitigating features, including the respondent's age of 73, his health, and his guilty plea. However, the plea was entered on the very day the trial was to commence, warranting only a modest discount of approximately 12.5 percent.

James J adopted a starting point of six and a half years before applying the plea discount, producing a head sentence of five years and eight months. Special circumstances were found based on the respondent's advanced age and health, justifying a non-parole period set at approximately 60 percent of the head sentence rather than the usual two-thirds. McClellan CJ at CL, agreeing with James J, described the enterprise as a major commercial criminal operation and characterised the proposed sentence as the minimum appropriate given the factual findings and subjective circumstances. Hall J also agreed.

Orders Made

  • Crown appeal allowed
  • Sentence imposed in the District Court on 3 November 2005 quashed
  • Respondent re-sentenced to imprisonment for five years and eight months, commencing 17 December 2003
  • Non-parole period of three and a half years, commencing 17 December 2003 and expiring 16 June 2007
  • Additional term of two years and two months
  • Earliest eligible parole date: 16 June 2007

Key Takeaways

  • A guilty plea entered on the day of trial, rather than at an earlier opportunity, attracted only a modest discount of approximately 12.5 percent from the starting-point sentence.
  • Under the Drug Misuse and Trafficking Act, a large commercial quantity of cannabis plants is defined as 1,000 plants, and the maximum penalty for the relevant cultivation offence is 20 years imprisonment.
  • Committing a serious drug offence while already subject to a sentence for another offence, and therefore on a form of conditional liberty, was treated as a significant aggravating factor.
  • Special circumstances justifying a departure from the standard non-parole ratio can be found in a combination of the offender's advanced age and poor health.
  • In dismissing any basis to decline the Crown appeal, the Court confirmed that a manifestly inadequate sentence does not become acceptable merely because the offender has favourable subjective circumstances such as age and health.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), ss 23(2)(a), 33(3)(b)
- Criminal Appeal Act (NSW), s 5D
- Crimes (Sentencing Procedure) Act (NSW), ss 3A, 21A, 44
- Confiscation of Proceeds of Crime Act (NSW)

Cases:
- R v Simpson (2001) 53 NSWLR 704
- R v Skorin [2005] NSWCCA 276
- R v Wall [2002] NSWCCA 42