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Court of Criminal Appeal 18 December 2008

Bui v R

[2008] NSWCCA 314

Drugs

Citation: Bui v R [2008] NSWCCA 314
Court: New South Wales Court of Criminal Appeal
Date: 18 December 2008
Judge(s): McClellan CJ at CL, Howie J, Hislop J

Background

The appellant pleaded guilty in the District Court to cultivating a prohibited plant, specifically 281 cannabis plants grown by enhanced indoor means, at a residential property in Bradbury. The quantity met the threshold for a large commercial quantity under the relevant legislation. Police executing a search warrant discovered an elaborate indoor cultivation operation spread across multiple rooms of a two-storey home, with purpose-built lighting, ventilation, electrical infrastructure, and concealed access points.

The sentencing judge imposed a total sentence of five years, comprising a non-parole period of three years commencing 15 March 2007 and a further parole period of two years. A separate possession offence involving 168 grams of cannabis leaf was taken into account on a Form 1 (a procedure allowing minor related offences to be considered in sentencing without recording a separate conviction).

The appellant sought leave to appeal against the sentence on three grounds.

  • Whether the sentencing judge erred in law by sentencing for an offence under a provision of the Crimes Act 1900 that did not exist
  • Whether the sentencing judge erred in finding that the cannabis was capable of fuelling addiction in the community and introducing new addicts, thereby overstating the objective seriousness of the offence
  • Whether the overall sentence of five years was manifestly excessive having regard to the appellant's age, character, and antecedents

Decision

On the first ground, the Court accepted that there was a technical error in the way the offence was described in the sentencing proceedings, but found this did not vitiate the sentence. The plea of guilty was to a properly particularised indictment, and the substance of the offence was not in doubt.

On the second ground, the Court rejected the argument that the sentencing judge had improperly equated cannabis with high-range drugs such as heroin or cocaine. The Court held that Parliament's decision to legislate against the use and supply of cannabis permits a court to proceed on the basis that the drug carries harmful and addictive properties. The sentencing judge's comments about condign punishment were appropriate given the serious, commercially motivated nature of the offending.

On the third ground, the Court affirmed the established appellate principle that there is no single correct sentence and that sentencing judges are entitled to a degree of flexibility consistent with the statutory regime. Interference by an appellate court is warranted only where error is shown and the court is positively satisfied that a less severe sentence should have been passed.

No such error was established, and the Court was not persuaded that a lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No single correct sentence exists in criminal sentencing: the Court of Criminal Appeal confirmed that appellate intervention is reserved for cases where error is demonstrated and a less severe sentence is positively shown to be warranted in law, following Markarian v R and R v Simpson.
  • A sentencing court is entitled to approach cannabis as a harmful and addictive substance, reflecting Parliament's legislative intent in prohibiting its use and supply, without that finding equating cannabis to high-range drugs such as heroin or cocaine.
  • Where a guilty plea is entered to a properly particularised indictment, a technical misdescription of the relevant statutory provision in the sentencing proceedings does not necessarily constitute reversible error.
  • In dismissing the appeal, the Court upheld a five-year total sentence for large commercial quantity indoor cannabis cultivation, finding the sentence was appropriate to the objective seriousness of a sophisticated, profit-driven operation.
  • Sentencing judges retain considerable flexibility in weighing objective seriousness against subjective factors, provided all relevant considerations are taken into account and irrelevant ones are excluded.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704