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Court of Criminal Appeal 25 November 2010

GRECO v REGINA

[2010] NSWCCA 268

Drugs
OFFENDERS NO ERROR DEMONSTRATED

Citation: GRECO v REGINA [2010] NSWCCA 268
Court: NSW Court of Criminal Appeal
Date: 25 November 2010
Judge(s): Beazley JA, James J, Hall J

Background

The applicant was charged with knowingly taking part in the cultivation of 9,995 cannabis plants under s.23(2) of the Drug Misuse and Trafficking Act 1985, an amount far exceeding the large commercial quantity threshold of 1,000 plants. The plantation was discovered in February 2003 at a rural property near Dubbo, with an estimated wholesale crop value of approximately $18.74 million. The applicant was not present when police executed the search warrant, and he evaded arrest for approximately five years, including a period of roughly two years during which he effectively disappeared.

The applicant played a significant role in establishing and maintaining the plantation. He arranged and paid for the construction of a dam, recruited workers, transported equipment, and spent considerable personal funds on infrastructure. He was sentenced in the District Court in September 2009 to a total term of five years and six months imprisonment, with a non-parole period of three years and three months.

Separately, the NSW Crime Commission obtained a forfeiture order against the applicant under the Criminal Assets Recovery Act 1990 for $407,084, relating to other illegal activities in the relevant six-year period rather than the cannabis operation itself, which had not reached harvest. The applicant sought leave to appeal his sentence on three grounds.

  • Whether the sentencing judge was required to reduce the sentence because the applicant had already suffered a significant financial imposition through a forfeiture order under the Criminal Assets Recovery Act 1990
  • Whether the sentencing judge failed to give adequate effect to the principle of parity when comparing the applicant's sentence to that of a co-offender, Mr Mangano
  • Whether the sentencing judge erred by not allowing a greater discount for delay in the proceedings and the applicant's rehabilitation

Decision

Ground 1: Forfeiture order under the Criminal Assets Recovery Act

The Court held that the sentencing judge was not required to reduce the sentence by reason of the forfeiture order. The order related to proceeds of other illegal activities during a six-year period, not to the cannabis plantation itself. Because the crop was never harvested, the applicant received no financial benefit from the offence for which he was sentenced. Critically, the forfeiture order did not meet the threshold of creating a "disproportionate or exceptional effect" on the applicant, and no exceptional circumstances were established that would require the order to be factored into the sentence.

Ground 2: Parity with co-offender Mangano

The Court found no error in the parity analysis. The key distinction was that Mr Mangano received a combined discount of approximately 50% for both his guilty plea and assistance provided to authorities. The applicant received no such discount for assistance and was not entitled to one. Once that difference was properly accounted for, no legitimate grievance arose from any apparent disparity in the non-parole periods. The Court also confirmed that the forfeiture order issue was irrelevant to the parity question.

Ground 3: Delay and rehabilitation discount

The sentencing judge had already applied a six-month discount for delay. The Court found no error in this assessment. A meaningful distinction exists between delay caused entirely by circumstances beyond an offender's control and delay caused or extended by the offender's own decision to abscond. Here, the applicant had evaded arrest for approximately two years, and the sentencing judge gave careful consideration to all relevant aspects of the delay, including the staleness of the offence and the applicant's demonstrated rehabilitation prospects.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A forfeiture order under the Criminal Assets Recovery Act 1990 does not automatically reduce a custodial sentence; the sentencing court is only required to take such an order into account where exceptional circumstances exist or the order has a disproportionate effect on the offender.
  • Where a forfeiture order relates to separate illegal activities rather than the offence being sentenced, its relevance to the sentencing exercise is significantly diminished.
  • In dismissing the parity ground, the Court of Criminal Appeal confirmed that differences in sentence between co-offenders can be justified by one offender having received a discount for assistance to authorities that the other was not entitled to claim.
  • No error was established in the delay discount where the applicant's own decision to abscond contributed materially to the length of the delay; a distinction applies between self-caused delay and delay entirely outside an offender's control.
  • Under s.23(2) of the Drug Misuse and Trafficking Act 1985, participation in a large-scale commercial cannabis plantation carrying an estimated wholesale value close to $19 million warranted a total sentence of five years and six months even where the crop never reached harvest.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s.23(2)
- Criminal Assets Recovery Act 1990 (NSW), s.27
- Criminal Assets Recovery Regulations 2000 (NSW)

Cases
- Regina v Brough [1995] 1 NZLR 419
- Regina v Kalache [2000] NSWCCA 2
- Regina v Mangano [2006] NSWCCA 35
- Regina v Reeves [2002] NSWCCA 33