Citation: Hantzis v The Queen [2006] NSWCCA 387
Court: Court of Criminal Appeal, New South Wales
Date: 4 December 2006
Judge(s): Basten JA, Hidden J, Bell J
Background
The appellant pleaded guilty in the District Court to two charges arising from a commercial cannabis-growing operation on a farm near Narrabri. The first charge was cultivating a commercial quantity of cannabis plants under the Drug Misuse and Trafficking Act 1985 (NSW). The second charge was supplying a commercial quantity of cannabis leaf under the same Act.
The District Court sentenced the appellant to nine years imprisonment with a five-year non-parole period. The sentencing judge adopted a starting point of 12 years, then applied a discount for the guilty plea. A separate offence of supply was taken into account when sentencing on the first charge.
On appeal, the appellant argued the sentence was manifestly excessive. The Court of Criminal Appeal also identified a separate, fundamental error: the sentencing judge had failed to impose a distinct sentence for the second charge at all.
Legal Issues
- Whether the starting sentence of 12 years for the cultivation charge was manifestly excessive, having regard to comparable cases and the objective and subjective circumstances.
- Whether the sentencing judge failed to sentence the appellant separately for each offence, as required.
- Whether the Court of Criminal Appeal had power under the Criminal Appeal Act 1912 (NSW) to deal with the second charge when no sentence had actually been imposed for it.
Decision
On manifest excess: The Court accepted that "instinctive synthesis" is a recognised sentencing methodology, referring to the process of weighing multiple factors to reach a considered conclusion rather than applying a mechanical formula. However, taking into account the objective criminality, the appellant's subjective circumstances, and the related supply charge, the Court found the 12-year starting point was too high. An appropriate starting sentence, before any reduction for the guilty plea, would have been eight years.
On failure to sentence separately: The Court identified that the sentencing judge had not imposed any discrete sentence on the second charge. Under the principle in Pearce v The Queen (1998) 194 CLR 610, separate sentences are required for each offence. This was characterised as a fundamental error in the sentencing process.
On the Court's power to remedy the error: Section 7(1A) of the Criminal Appeal Act 1912 (NSW) permits the Court to pass such sentence as it thinks proper in respect of another offence when interfering with an overall sentence. The Court held that a purposive construction of that provision allowed it to act even where no sentence had been specifically imposed below. It treated the sentencing judge as having inadvertently imposed a single "general" sentence covering both charges, which could be varied under the provision.
On the appropriate sentence for the second charge: The Court found a complete overlap in the criminality underlying both charges; the cultivation was self-evidently for the purpose of supply. Because the appellant had been appropriately sentenced for that conduct on the first charge, no additional imprisonment was warranted for the second charge. A fixed term of two years, served concurrently with the first sentence, satisfied the public interest in the administration of justice.
Orders Made
- Time to file the application for leave to appeal extended to 2 June 2006.
- Leave to appeal granted against the sentence imposed on the cultivation charge on 10 June 2005.
- Appeal allowed; original sentence set aside.
- On the cultivation charge: non-parole period of three years and four months from 8 April 2004 (expiring 7 August 2007), with a balance of sentence of two years and eight months commencing 8 August 2007 (expiring 7 April 2010).
- On the supply charge: fixed term of two years imprisonment from 8 April 2004 (which had already expired on 7 April 2006), served concurrently.
Key Takeaways
- A sentencing judge is required to impose a separate sentence for each offence before the court, even where the underlying criminality overlaps significantly; failure to do so constitutes a fundamental error.
- Under a purposive construction of s 7(1A) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal held it could address a charge for which no sentence had been imposed below, treating the overall sentence as one that could be varied to correct the omission.
- Where two offences share a complete overlap in criminality, a court may impose a concurrent sentence for the second offence that results in no additional time served, provided the first sentence already captures the totality of the relevant conduct.
- The "instinctive synthesis" methodology for sentencing involves weighing multiple factors to reach a considered conclusion; the Court confirmed it must be applied with reference to comparable cases and must not produce a result that is disproportionate to objective and subjective circumstances.
- In exercising discretion to extend time for filing an application for leave to appeal, the Court considered the presence of fundamental sentencing error, the absence of prejudice to the prosecution, and the public interest in the regularity of the administration of criminal justice.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 50
- Criminal Appeal Act 1912 (NSW), ss 7, 10
- Criminal Procedure Act 1986 (NSW), s 167
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 25, 32, 33
- Crimes Act 1958 (Vic), s 569
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Wong v The Queen (2001) 207 CLR 584
- Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048
- McL v The Queen [2000] HCA 46; (2000) 74 ALJR 1319
- Ryan v The Queen (1982) 149 CLR 1
- Giammaria v Regina; Karagiannis v Regina [2006] NSWCCA 63
- R v Mangano (2006) 160 A Crim R 480
- Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291
- R v Gallagher (1991) 23 NSWLR 220
- R v Lawrence & Ors [1980] 1 NSWLR 122