Citation: Hewitt v Regina [2007] NSWCCA 353
Court: NSW Court of Criminal Appeal
Date: 17 December 2007
Judge(s): McClellan CJ at CL, Hall J, Price J
Background
The appellant pleaded guilty in the Lismore District Court to three offences under the Drug Misuse and Trafficking Act 1985: two counts of supplying a prohibited drug (151.7 grams of cannabis leaf and 194 grams of cannabis resin respectively) and one count of cultivating 40 cannabis plants using a hydroponic system. Police discovered the operation after intercepting telephone communications between the appellant and an associate, Geoffrey Knight, during a joint investigation in the Northern Rivers area in early 2006.
Freeman DCJ sentenced the appellant to a total effective term of two years and three months, with a non-parole period of one year and three months. The sentencing judge found that the appellant had not been candid in interview or in the witness box, rejected the claim that all drugs were for purely personal use, and treated two matters as aggravating factors: a prior cultivation conviction from 1991 and the finding that the offences formed part of "organised criminal activity."
The appellant sought leave to appeal on six grounds, arguing that the sentencing judge erred in identifying and weighing the aggravating factors, that the quality of the cannabis was improperly taken into account, and that the sentences were manifestly excessive.
Legal Issues
- Whether the prior conviction for cannabis cultivation was properly treated as a significant aggravating factor, given its age and relative minor nature.
- Whether the offences constituted "planned or organised criminal activity" within the meaning of s 21A(1)(n) of the Crimes (Sentencing Procedure) Act 1999, particularly given the relatively low level of planning involved.
- Whether the sentencing judge erroneously took into account the quality of the cannabis (resin versus leaf) as an aggravating circumstance, when that distinction is already reflected in the different maximum penalties prescribed by statute.
- Whether the sentences were manifestly excessive having regard to the appellant's circumstances and comparable cases.
Decision
The Court of Criminal Appeal identified errors in the sentencing judge's reasoning on two grounds. First, the Court found that the sentencing judge erred in characterising the offences as part of "planned or organised criminal activity" under s 21A(1)(n). The level of planning disclosed on the facts was relatively low and did not comfortably satisfy the statutory aggravating factor, meaning the judge had placed undue weight on this element.
Second, the Court accepted that the sentencing judge had impermissibly treated the fact that one of the drugs was cannabis resin (as opposed to cannabis leaf) as a further aggravating circumstance, when the higher maximum penalty for supply of cannabis resin already reflects that distinction in the legislative scheme. Taking the same factor into account twice amounted to double-counting.
Despite identifying those two errors, the Court concluded that the sentences actually imposed fell within the range appropriate for offences of this kind when assessed against comparable authorities. The Court reviewed several earlier decisions involving supply of cannabis resin and leaf in similar quantities and found the total effective sentence was not outside the permissible range. The appellant was a mature person with a prior cultivation conviction, had supplied cannabis commercially to others beyond personal use, and operated a moderately sophisticated hydroponic set-up.
Accordingly, notwithstanding the identified sentencing errors, the Court was not persuaded that the sentences were manifestly excessive. Leave to appeal was granted but the appeal was dismissed.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A prior drug conviction that is relatively minor and many years old may still be treated as a relevant aggravating factor in sentencing for a later drug offence, though the weight given to it must reflect its age and seriousness.
- Where a sentencing judge identifies "planned or organised criminal activity" under s 21A(1)(n) of the Crimes (Sentencing Procedure) Act 1999, the level of planning must genuinely support that characterisation; a low degree of coordination does not automatically satisfy the statutory aggravating factor.
- Under the Drug Misuse and Trafficking Act 1985, the distinction between cannabis resin and cannabis leaf is already embedded in the different maximum penalties prescribed for each. Treating that distinction as a further aggravating circumstance beyond the applicable maximum amounts to impermissible double-counting.
- Sentencing errors that are identified on appeal will not necessarily lead to a reduced sentence. Where the sentence ultimately imposed falls within the range established by comparable cases, the Court of Criminal Appeal will decline to intervene even after finding error in the judge's reasoning process.
- In dismissing the appeal, the Court affirmed that drug trafficking will ordinarily attract a custodial sentence absent very special circumstances, and that a mature offender with prior drug-related convictions is treated as having clear notice of the serious consequences of dealing in prohibited drugs.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1)(a), 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(1)(n)
Cases
- Regina v Hamid [2006] 164 A Crim R 179
- Fahs v Regina [2007] NSWCCA 26
- NCR Australia v Credit Connection [2005] NSWSC 1118
- Readburn v Regina [2007] NSWCCA 60
- Regina v Blair (2005) 152 A Crim R 462
- Regina v Boorer (CCA, unreported, 15 November 1990)
- Regina v Johnson [2004] NSWCCA 76
- Regina v McNaughton [2006] 163 A Crim R 381
- Regina v Reynolds [2004] NSWCCA 51
- Regina v Wickham [2004] NSWCCA 193
- Regina v Willard [2005] NSWSC 402
- Regina v Yildiz (2006) 160 A Crim R 218
- Sales v The Queen (CCA, unreported, 2 June 1989)