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Court of Criminal Appeal 21 July 2010

R v LP

[2010] NSWCCA 154

Drugs
CRIMINAL LAW SENTENCING CROWN APPEAL PAROLE PERIOD

Citation: R v LP [2010] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 21 July 2010
Judge(s): Hodgson JA, Whealy J, Buddin J

Background

The respondent pleaded guilty in the District Court to two serious drug offences: cultivating by enhanced means a large commercial quantity of cannabis plants (274 plants, with a large commercial quantity set at 200), and supplying a commercial quantity of cannabis leaf (approximately 25.5 kilograms, with a commercial quantity set at 25 kilograms). The offences arose from a police search of a sophisticated indoor hydroponic cannabis operation at the respondent's parents' premises. Five further offences, including dealing with suspected proceeds of crime involving $100,000 cash and possession of a prohibited weapon, were taken into account on a Form 1 document at sentencing.

The sentencing judge imposed a total effective sentence of 3 years and 10 months with a non-parole period of 2 years. The Crown appealed, arguing the sentences were manifestly inadequate, particularly given the applicable 10-year standard non-parole period for the cultivation offence and the generous discount applied for assistance to authorities.

  • Whether the sentencing judge gave sufficient regard to the standard non-parole period of 10 years applicable to the large commercial cannabis cultivation offence
  • Whether the discount applied for the respondent's plea of guilty and assistance to authorities was appropriate in the circumstances
  • Whether the sentencing judge erred in the extent of the discount where the respondent had not yet given evidence and had not entered protective custody

Decision

The Court of Criminal Appeal found the original sentences were manifestly inadequate. The sentencing judge had not given sufficient weight to the standard non-parole period of 10 years prescribed for the large commercial cannabis cultivation offence, which serves as a statutory benchmark reflecting the legislature's assessment of the objective seriousness of such conduct.

The court also found error in the discount applied for assistance. The respondent had offered to provide assistance but had not yet been called to give evidence, and there was no evidence he had entered or would enter protective custody. Applying the principle from R v Sukkar, discounts for plea and assistance exceeding 40 per cent require, at a minimum, evidence that the offender will serve the sentence, or a substantial part of it, in more onerous conditions than the general prison population. The respondent had led no such evidence.

On resentencing, the court applied a combined discount of 40 per cent for the plea of guilty and assistance, specifying that 10 per cent of that figure related to the offer of future assistance. The court maintained a finding of special circumstances to assist with the respondent's reintegration into the community following his first custodial sentence, and imposed only a modest degree of accumulation given the common thread linking the two offences.

Orders Made

  • Crown appeal allowed
  • Sentences imposed in the District Court quashed
  • Count 2 (supply): non-parole period of 2 years, total term of 4 years imprisonment, commencing 14 November 2008, expiring 13 November 2012
  • Count 1 (cultivation, with Form 1 matters): non-parole period of 3 years, total term of 5 years and 6 months imprisonment, commencing 14 May 2009, expiring 13 November 2014
  • Respondent eligible for release on parole on 13 May 2012

Key Takeaways

  • The Court of Criminal Appeal confirmed that the standard non-parole period for large commercial cannabis cultivation (10 years) must be given meaningful weight at sentencing, and failing to do so can render a sentence manifestly inadequate.
  • A combined discount for plea and assistance exceeding 40 per cent requires evidence that the offender will serve their sentence, or a substantial part of it, in more onerous conditions than the general prison population. An offender who asserts such disadvantage bears the responsibility of leading that evidence.
  • Where an offender has offered future assistance but has not yet given evidence and has not entered protection, the court cannot simply assume that harsher custodial conditions will follow. This uncertainty limits the discount available for assistance.
  • Modest accumulation of sentences remains available where multiple offences share a common thread, and a finding of special circumstances can be maintained to facilitate rehabilitation in a first custodial sentence.
  • In dismissing any suggestion the court should exercise its discretion not to intervene, the Court of Criminal Appeal noted the respondent advanced no argument for restraint once manifest inadequacy was established.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 25(2)

Cases:
- R v Sukkar (2006) 172 A Crim R 151
- RWB v R; R v RWB [2010] NSWCCA 147
- R v Hunter [2010] NSWCCA 54
- R v McEvoy [2010] NSWCCA 110
- R v Nicholson [2010] NSWCCA 80
- R v Parkinson [2010] NSWCCA 89
- R v Tran [2010] NSWCCA 72