AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 30 March 2011

Stock v R

[2011] NSWCCA 49

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Stock v R [2011] NSWCCA 49
Court: NSW Court of Criminal Appeal
Date: 30 March 2011
Judges: McClellan CJ at CL, Buddin J, Schmidt J (judgment delivered by Schmidt J)

Background

The appellant was the principal organiser of a sophisticated indoor cannabis cultivation operation on a property he owned. Police executing a search warrant found 335 cannabis plants growing in purpose-built rooms, with an estimated street value of approximately $1 million. The appellant had paid a co-offender $50,000 cash and a pound of cannabis per month to maintain the operation, and the setup costs alone were approximately $60,000.

The appellant was sentenced in the District Court on 4 November 2009 to nine years imprisonment (with a five-year non-parole period) for cultivating a large commercial quantity of cannabis by enhanced indoor means under the Drug Misuse and Trafficking Act 1985, and a concurrent 12-month term for concealing a serious offence. A further supply offence involving 9.7kg of cannabis was taken into account on a Form 1. The maximum penalty for the primary offence was 20 years, with a standard non-parole period of 10 years.

The appellant sought leave to appeal his sentence, arguing the sentencing judge had given insufficient weight to his remorse and to the financial settlement he reached with the NSW Crime Commission in related civil forfeiture proceedings.

  • Whether the sentencing judge gave insufficient weight to the appellant's contrition and remorse, including remorse said to be demonstrated by settling civil forfeiture proceedings brought by the NSW Crime Commission.
  • Whether co-operation in civil forfeiture proceedings should, as a matter of principle, be taken into account as a mitigating factor on sentence.
  • Whether the sentence imposed was manifestly excessive.

Decision

Ground 1: Remorse and civil forfeiture proceedings

Schmidt J found no error in the sentencing judge's treatment of remorse. The sentencing judge had in fact taken into account the psychologist's report on remorse, the plea of guilty, and the financial impact of the civil proceedings. The argument that remorse and rehabilitation are entirely separate matters requiring separate analysis did not, of itself, establish that his Honour had overlooked remorse.

On the question of whether co-operation in civil forfeiture proceedings should be recognised as a mitigating factor, Schmidt J declined to resolve the broader tension the appellant identified in the authorities. The submission had not been made in that form at the sentencing hearing, and crucially, there was no evidential basis before the Court for the claims about what had occurred in the civil proceedings. That evidentiary deficiency was fatal to the ground.

Ground 2: Manifest excess

The Court dismissed the contention that the sentence was manifestly excessive. The sentencing judge had found the offence fell in the mid-range, a characterisation that was not challenged on appeal. The standard non-parole period of 10 years, though not binding given the guilty plea, remained a significant sentencing reference point. After a plea, the appellant received a non-parole period of five years for a mid-range offence against a 10-year standard. The Court found that a less severe sentence was not warranted, and the provisions of s 6(3) of the Criminal Appeal Act 1912 did not compel intervention.

Orders Made

  • Leave to file the appeal out of time was granted.
  • Leave to appeal was granted.
  • The appeal was dismissed.

Key Takeaways

  • No error was established in the sentencing judge's treatment of remorse merely because the remarks on sentence discussed it in the context of rehabilitation rather than as a separately enumerated mitigating factor, provided the matter was genuinely considered.
  • A submission that co-operation in civil forfeiture proceedings should mitigate a criminal sentence will fail without an adequate evidentiary foundation for what occurred in those proceedings, regardless of the policy arguments in favour of recognising such co-operation.
  • The Court of Criminal Appeal declined to use this case to resolve the broader question of whether, and to what extent, co-operation in civil forfeiture proceedings should be treated as a mitigating factor, leaving that issue open for a case where it is properly raised and evidenced.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will substitute a sentence only where a different sentence is both warranted in law and should have been passed; where the sentence already imposed is lenient relative to the standard non-parole period, intervention to reduce it further is unlikely.
  • In dismissing the appeal, the Court confirmed that the standard non-parole period, while not binding after a plea of guilty, remains a significant and relevant sentencing indicator.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Crimes Act 1900 (NSW), s 316(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Confiscation of Proceeds of Crime Act 1989 (NSW)
- Proceeds of Crime Act 2002 (Cth)

Key Cases:
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- GAS v R [2004] HCA 22; (2004) 217 CLR 198
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
- Hampton v R [2010] NSWCCA 278
- Nguyen v R [2009] NSWCCA 283