Citation: Michael Joseph Gattellari v R; Peter Jade McRae v R [2007] NSWCCA 5
Court: NSW Court of Criminal Appeal
Date: 22 January 2007
Judge(s): Beazley JA, Buddin J, Hislop J
Background
Two applicants sought leave to appeal against sentences imposed in the District Court for cultivating a large commercial quantity of cannabis plants. Both had pleaded guilty in the Local Court to cultivating 2,742 cannabis plants at an isolated rural property near Binnaway in western New South Wales. The threshold for a "large commercial quantity" under the relevant legislation is 1,000 plants, and the maximum penalty is 20 years imprisonment and/or a substantial fine.
Police executed a search warrant in February 2005 after conducting covert surveillance of the property since late 2004. Officers observed both applicants on at least eight occasions performing tasks central to the operation, including nurturing mother plants, cloning cannabis, and transporting plants from an indoor shed to a large outdoor crop site. The estimated street value of the crop was approximately $5.5 million.
The sentencing judge found that after a man named Anthony Taylor (said to have established the enterprise) left the property due to injury, both applicants took over as the persons in charge of the cultivation. Each received an identical sentence of a three-year-and-two-month non-parole period, with a balance of term of two years and seven months. Both then sought leave to appeal out of time.
Legal Issues
- Whether the 25% discount applied for the pleas of guilty was adequate, given the timing and circumstances of those pleas
- Whether the sentences were manifestly excessive having regard to the objective and subjective features of the offending
- Whether the applicants had a justifiable sense of grievance arising from parity, given the significantly lighter sentences imposed on co-offenders Phan and Huynh
Decision
On the question of the plea discount, the Court found no error in the sentencing judge's approach. The applicants had not contested the sentencing judge's factual findings on appeal, and the Court was satisfied that the 25% discount properly reflected the utilitarian value of the pleas in the circumstances.
On manifest excess, the Court rejected the argument that the sentences were disproportionate. The offending was characterised by considerable organisation, persistence, and scale. The sentencing judge had placed the offending above the middle range of seriousness, and the Court of Criminal Appeal found no error in that assessment. The legislature's decision to set the maximum penalty at 20 years imprisonment was also noted as reflecting the serious view taken of such offending.
On parity, the Court acknowledged that the co-offenders Phan and Huynh received substantially lower sentences. However, the differences were explicable. Phan received a 50% discount for significant assistance to authorities, including providing a detailed statement implicating all other participants, and was consequently serving his sentence in protective custody. Huynh was found to occupy the lowest role in the operation and received additional credit for contrition. Both co-offenders had subsidiary roles, whereas the applicants had taken charge of the entire cultivation after Taylor's departure. The Court found the disparity did not give rise to a justifiable sense of grievance.
The Court granted leave to appeal in both cases but dismissed both appeals.
Orders Made
- In each case, leave to appeal is granted but the appeal is dismissed.
Key Takeaways
- A parity complaint will not succeed where the sentencing differentials between co-offenders are explained by substantial differences in role, assistance to authorities, and subjective circumstances.
- A 50% discount for assistance to police, including providing a detailed statement implicating other participants, can justify a markedly lower sentence compared to co-offenders who received only a standard early plea discount.
- In dismissing the appeals, the Court of Criminal Appeal confirmed that offending above the middle range of seriousness for large-scale commercial cannabis cultivation will attract significant custodial sentences, notwithstanding positive subjective features such as youth, good character, and remorse.
- No error was established in applying a 25% guilty plea discount where the applicants had pleaded guilty at the Local Court stage and the sentencing judge's factual findings remained unchallenged on appeal.
- The legislative maximum penalty is a relevant reference point: the Court noted that Parliament's decision to set a 20-year maximum signals the gravity with which such offending is regarded.
Legislation and Cases Referenced
Legislation:
- Relevant drug offence provisions establishing the "large commercial quantity" threshold of 1,000 cannabis plants and a maximum penalty of 20 years imprisonment (specific Act not identified in the judgment text)
Cases:
- Regina v Atonio (2005) 154 A Crim R 183
- R v Bloomfield (1998) 44 NSWLR 734
- R v Morgan (1993) 70 A Crim R 368
- R v Thomson & Houlton (2000) 49 NSWLR 383