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Court of Criminal Appeal 25 November 2011

Beveridge v R

[2011] NSWCCA 249

Drugs
CRIMINAL LAW NO MATTER OF PRINCIPLE

Citation: Beveridge v R [2011] NSWCCA 249
Court: Court of Criminal Appeal, NSW
Date: 25 November 2011
Judge(s): Bathurst CJ, James J, Hoeben J

Background

The appellant pleaded guilty in the District Court to cultivating not less than a commercial quantity of cannabis plants, contrary to s 23(2) of the Drug Misuse and Trafficking Act. Police discovered 3,373 cannabis plants growing in a fenced clearing in a state forest, supported by a sophisticated watering system. The appellant was observed at the site tending the crop alongside a co-offender.

Judge Neilson sentenced the appellant to a non-parole period of three years and six months, with a balance of term of two years and six months. The offence attracted a standard non-parole period of ten years, which had applied since 1 January 2008, and the maximum penalty was 20 years imprisonment.

The appellant sought leave to appeal against that sentence, raising two grounds: that the sentencing judge failed to properly identify where the offence sat on the scale of objective seriousness, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by finding only that the offence fell "below the mid-range" of objective seriousness, without specifying the degree to which it departed from the notional mid-range offence (as required under the then-applicable R v Way framework).
  • Whether the sentence of six years (head sentence), resulting in a non-parole period of three years and six months, was manifestly excessive having regard to the standard non-parole period of ten years and the maximum penalty of 20 years.

Decision

Ground 1: Failure to identify objective seriousness with sufficient precision

At the time of sentencing, the applicable framework was that established in R v Way, which required sentencing judges to specify not merely whether an offence fell above or below the mid-range of objective seriousness, but to what degree. The Court of Criminal Appeal acknowledged that the sentencing judge's finding fell short of this requirement as it then stood.

However, the sentencing and the appeal were both conducted before the High Court's decision in Muldrock v The Queen [2011] HCA 39, which held that Way had been wrongly decided. Under Muldrock, the standard non-parole period is one of two legislative guideposts (alongside the maximum penalty), not a mechanism requiring precise placement on a seriousness spectrum. Given this development, the Court found no utility in remitting the matter for resentencing on this ground, and dismissed it.

Ground 2: Manifest excess

The Court applied the familiar principle from House v The King (1936) 55 CLR 499, that appellate intervention on a sentence requires the sentence to be unreasonable or plainly unjust. James J referred to Judicial Commission statistics showing that before the standard non-parole period was introduced, sentences for large commercial cannabis cultivation were considerably lower, with a mean sentence of three years and the highest recorded at six years. The Court accepted that Parliament intended the standard non-parole period to increase sentences for this offence, a position confirmed by the High Court in Muldrock. Viewing the sentence against the two Muldrock guideposts (maximum of 20 years; standard non-parole period of 10 years), the Court found the sentence was not unreasonable or plainly unjust, and dismissed this ground.

Orders Made

• Leave to appeal granted
• Appeal against sentence dismissed

Key Takeaways

  • Following Muldrock v The Queen, the standard non-parole period operates as a legislative guidepost alongside the maximum penalty, rather than as a reference point requiring precise calibration of where an offence sits on a seriousness spectrum. This superseded the Way approach that had required sentencing judges to specify the degree of departure from a notional mid-range offence.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that the introduction of a standard non-parole period signals a parliamentary intention to increase sentences for the relevant offence, and that historical sentencing statistics must be read in that context.
  • A sentence resulting in a non-parole period of three years and six months for cultivating 3,373 cannabis plants (well above the large commercial quantity threshold) was not found to be unreasonable or plainly unjust, assessed against a standard non-parole period of ten years and a maximum of 20 years.
  • Under Muldrock, appellate courts assess whether a sentence is unreasonable or plainly unjust by reference to both the maximum penalty and the standard non-parole period as the two primary legislative benchmarks.
  • Subjective features found by the sentencing judge, including the appellant's good character, stable family circumstances, and limited prior knowledge of the crop's full scale compared with a co-offender, were taken into account but did not render the resulting sentence excessive.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), ss 23(2), 33(3), Schedule 1
- Crimes (Sentencing Procedure) Act (NSW), s 44(2)
- Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- House v The King (1936) 55 CLR 499
- R v Olbrich (1999) 199 CLR 270
- Dinsdale v The Queen (2000) 202 CLR 321
- Vu v R [2006] NSWCCA 188
- R v Sellars [2010] NSWCCA 133
- R v McEvoy [2010] NSWCCA 110
- R v Green and Quinn [2010] NSWCCA 313