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Court of Criminal Appeal 12 December 2008

R v BUI, BUI v R

[2008] NSWCCA 297

Drugs

Citation: R v BUI, BUI v R [2008] NSWCCA 297
Court: NSW Court of Criminal Appeal
Date: 12 December 2008
Judges: Hodgson JA, James J, Price J

Background

The respondent pleaded guilty in the District Court to cultivating not less than a commercial quantity of cannabis plants by enhanced indoor means and exposing her children to the cultivation process, an offence under s 23A(2) of the Drug Misuse and Trafficking Act. Police executed a warrant at her home and found 110 cannabis plants across two locked areas of the property. Her four children, aged between 4 and 13, were present at the address.

The sentencing judge, Coorey DCJ, sentenced the respondent to two years imprisonment but suspended the sentence under s 12 of the Crimes (Sentencing Procedure) Act, citing the exceptional hardship that imprisonment would cause to her children. The Crown appealed, arguing the sentence was manifestly inadequate.

Separately, the respondent sought, at a late stage, to appeal against her conviction on the basis that the facts as found did not support a lawful conviction under s 23A(2).

  • Whether the respondent's intended appeal against conviction should be permitted out of time, given that the admitted facts and sentencing findings may not have supported each element of the offence under s 23A(2)
  • Whether providing premises for cannabis cultivation, without direct participation in the growing process, constitutes "cultivating" under s 23A(2)(a)
  • Whether keeping children out of locked rooms where cultivation occurred could satisfy the element of "exposing a child" to the cultivation process under s 23A(2)(b)
  • Whether the circumstances relating to the respondent's four children were "truly exceptional" so as to warrant the substantial reduction in sentence that resulted in a suspended term

Decision

Conviction appeal refused. The Court refused to grant an extension of time to appeal against conviction. Even accepting that the respondent's direct role in cultivation was limited to providing the premises, pleading guilty to the offence carried the admission of all elements, including taking part in the cultivation. The Court was not persuaded that the legal argument had sufficient merit to justify reopening the conviction at this stage.

The "exposure" element. The Court addressed the argument that locked doors insulated the children from the cultivation process. It found this contention unpersuasive in the context of a guilty plea that admitted the statutory element, and declined to grant leave to contest the conviction on this basis.

Crown sentence appeal dismissed. The central question on the Crown appeal was whether the hardship to the respondent's children rose to the level of "truly exceptional" circumstances. The Court acknowledged that imprisonment frequently causes hardship to an offender's family, and that such hardship must genuinely be exceptional before it can justify a significant reduction in sentence. The Crown also argued that it would be paradoxical to allow hardship to children to reduce a penalty for an offence whose very elements include exposing children to a cultivation process.

Despite that tension, the Court concluded it was open to the sentencing judge to find truly exceptional circumstances. The relevant combination included four young children, the youngest with serious developmental problems, no other adult capable of assuming their care, and a prior history in which the children had suffered severe emotional disturbance when separated and placed in the care of the Department of Community Services. The prospect that imprisonment would again result in their separation into separate foster homes supported the finding. Because the sentencing judge's finding of exceptional circumstances was open on the evidence, the resulting suspended sentence could not be characterised as manifestly inadequate.

Orders Made

  • Extension of time to appeal against conviction refused
  • Crown appeal against sentence dismissed

Key Takeaways

  • Hardship to an offender's children can warrant a substantial reduction in sentence, but only where the circumstances are "truly exceptional," not merely severe or compelling in the ordinary sense.
  • A combination of factors, including the number and ages of children, a child's serious developmental needs, the absence of any alternative carer, and a demonstrated history of severe harm when children were previously separated, may together constitute truly exceptional circumstances.
  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that where a sentencing judge's finding of exceptional circumstances is open on the evidence, the resulting sentence will not be set aside as manifestly inadequate merely because a different outcome was reasonably available.
  • The fact that an offence under s 23A(2) of the Drug Misuse and Trafficking Act expressly includes exposing children to a cultivation process does not automatically preclude reliance on hardship to those children as a mitigating factor, though the Court acknowledged the tension in that position.
  • Leave to appeal against conviction will not readily be granted where the applicant pleaded guilty and seeks to argue, after sentence, that the admitted facts did not support each element of the offence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23A, 33AD
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Appeal Act 1912 (NSW), s 5D
- Electricity Supply Act (NSW), s 64

Cases:
- R v Liberti (1991) 55 A Crim R 120
- R v Togias (2001) 127 A Crim R 23
- R v Wall [2002] NSWCCA 42