Citation: DELFINO, Raymond Joseph v R [2008] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 25 February 2008
Judge(s): McClellan CJ at CL, James J, Simpson J
Background
The appellant participated in the cultivation of a commercial quantity of cannabis plants (at least 250 plants, with an estimated value of approximately $700,000) on a rural property near Narrabri in 2003. His role was that of a harvester, present on the property for only a few days between 30 March and 2 April 2003. He was arrested in July 2006 and pleaded guilty to knowingly taking part in the cultivation of not less than a commercial quantity of prohibited plants under the Drug Misuse and Trafficking Act, which carries a maximum penalty of 15 years imprisonment.
District Court Judge Finnane sentenced the appellant to a head sentence of four years, with a non-parole period of two years commencing from the date of arrest. A 20 per cent discount was applied for the guilty plea, and special circumstances were found, resulting in an extended parole period to support rehabilitation.
Several co-offenders were also sentenced for involvement in either or both the 2003 and 2004 cultivations on the same property. The appellant sought leave to appeal his sentence, contending it was disproportionate compared to those imposed on co-offenders and was otherwise attended by error.
Legal Issues
- Whether the sentencing judge erred in applying the parity principle when sentencing the appellant relative to co-offenders
- Whether the sentencing judge erred in finding the appellant's motive was monetary gain, without adequate evidentiary basis established beyond reasonable doubt
- Whether the sentencing judge gave excessive weight to the appellant's prior criminal history
- Whether the sentence was manifestly excessive
Decision
Monetary gain finding: The Court held it was open to the sentencing judge to find beyond reasonable doubt that the appellant participated in the cultivation for monetary reward. That conclusion could properly rest on a combination of factors: the appellant's prior criminal history (which included drug offences), the significant value of the crop, his travel to a remote property, and the intercepted phone calls in which he discussed the progress of harvesting and packing. The Court rejected the submission that these findings lacked an adequate evidentiary foundation.
Prior criminal history: The sentencing judge had described the appellant's criminal history as "serious" and a basis for greater weight being given to deterrence, retribution, and community protection. The Court accepted this characterisation. The appellant's record included multiple convictions for drug offences, among them two offences of supplying not less than a commercial quantity of a prohibited drug, for which he had previously received custodial sentences. The Court found no error in the weight given to this history.
Parity: The Court set out the applicable principles, drawing on established High Court authority, to the effect that a co-offender's lesser sentence can justify appellate intervention only where the resulting disparity is unjustifiable and gives rise to a legitimate sense of grievance. The Court found sufficient differences between the appellant and his co-offenders to warrant the sentencing differential. Other participants in the same "worker" category had generally received three-year sentences with 15-month non-parole periods. The longer sentence imposed on the appellant was within the sentencing discretion given his more serious criminal history. The sentence imposed on co-offender Hantzis was heavily influenced by the totality principle and by significant mitigating personal circumstances, including a family member's serious illness. Co-offender Madau had only a minor criminal record and had never previously been imprisoned.
Manifest excess: Having rejected each of the specific grounds, the Court found no basis for concluding the sentence was manifestly excessive.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A sentencing court may find beyond reasonable doubt that a participant in a large-scale cannabis cultivation was motivated by financial gain where that inference is properly available from the totality of circumstances, including criminal history, intercepted communications, and the scale of the operation.
- Prior convictions for serious drug offences, particularly commercial quantity supply offences attracting prior custodial sentences, can justify a materially heavier sentence than that imposed on co-offenders who lack comparable histories.
- Under the parity principle, a difference in sentences between co-offenders does not of itself ground appellate intervention; the Court must be satisfied the disparity is unjustifiable and produces a legitimate sense of grievance.
- Where co-offenders received lower sentences by reason of significant mitigating personal circumstances or the operation of the totality principle, those distinctions can justify an apparent sentencing differential without constituting error.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge retains a discretion to depart upward from a general sentencing range applied to a class of offenders where an individual offender's criminal history warrants greater emphasis on deterrence and community protection.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act (NSW), s 44(2)
- Drug Misuse and Trafficking Act (NSW), s 23(2)
Cases:
- Hantzis v Regina [2006] NSWCCA 387
- Lowe v The Queen (1984) 154 CLR 606
- Olbrich v The Queen (1999) 199 CLR 270
- Postiglione v The Queen (1996-1997) 189 CLR 295
- R v Li & ors [2005] NSWCCA 154