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Court of Criminal Appeal 26 July 2012

Portolesi v R

[2012] NSWCCA 157

Drugs
CRIME APPEAL SEVERITY OF SENTENCE ENHANCED INDOOR MEANS S 166 OFFENCES WHETHER DOUBLE PUNISHMENT

Citation: Portolesi v R [2012] NSWCCA 157
Court: Court of Criminal Appeal, NSW
Date: 26 July 2012
Judges: Basten JA; Harrison J; Beech-Jones J

Background

The applicant was the owner of a rural vineyard property near Griffith, NSW. Police executing a search warrant discovered an elaborate indoor hydroponic cannabis growing operation housed across multiple sheds on the property. The operation involved 197 cannabis plants grown under heat lamps with sophisticated irrigation, security cameras, a mobile phone jammer, and electricity diverted by bypassing metering equipment. Police also located 3.337 kg of cannabis leaf on drying racks, a rifle, firearms, ammunition, and a small quantity of methylamphetamine.

The applicant pleaded guilty at the earliest opportunity to cultivating a commercial quantity of cannabis (197 plants) and supplying a prohibited drug (3.37 kg of cannabis leaf), as well as a range of ancillary offences including firearms possession, unlawful diversion of electricity, and drug possession. He received a 25% discount on his sentences for his early guilty pleas.

In the District Court, the applicant was sentenced to a total term of five and a half years, with a combined non-parole period of four years, commencing 6 January 2011. He applied to the Court of Criminal Appeal for leave to appeal on the grounds that the sentences were infected by legal error and were manifestly excessive.

  • Whether sentencing the applicant for both cultivating cannabis and supplying the same cannabis constituted impermissible double punishment, contrary to Pearce v R (1998) 194 CLR 610
  • Whether the supply offence added any extra criminality beyond the cultivation offence, such that partial accumulation of the sentences was justified
  • Whether the overall sentence was manifestly excessive
  • Whether the sentencing judge erred in declining to find special circumstances warranting a greater reduction in the non-parole period

Decision

Double punishment and concurrency. The Court rejected the argument that sentencing for both the cultivation and the deemed supply (arising from possession of the harvested cannabis leaf) constituted double punishment. While the cannabis plants and the harvested leaf originated from the same operation, the cultivation offence and the supply offence each contained distinct elements and concerned different physical subject matter. The Pearce principle against double punishment did not require the sentences to be served entirely concurrently.

Extra criminality from the supply offence. The Court accepted that the supply offence did add a degree of criminality beyond the cultivation offence, specifically the possession of 3.37 kg of harvested, dried, and packaged cannabis ready for distribution. This justified a modest degree of accumulation, and the six-month accumulation imposed by the sentencing judge was not shown to be in error.

Manifest excess. The Court found no error in the overall sentence. The operation was large-scale, sophisticated, and commercial in character. The applicant had directed police to the main growing shed and received appropriate credit for his early guilty pleas. The sentence, when assessed against comparable cases and the relevant statutory framework, was not manifestly excessive.

Special circumstances. The sentencing judge found special circumstances only to the technical extent necessary to maintain the statutory ratio between the overall term and the combined non-parole period. The Court found no error in declining to extend that finding further. A finding of special circumstances requires more than identifying distinctive features of an offender's background; the sentencing court must be persuaded that those features, such as a heightened need for rehabilitation, warrant varying the statutory ratio. The applicant's remorse, good rehabilitation prospects, age (37), and first-time imprisonment were considered but not found to reach that threshold.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Cultivating a commercial quantity of cannabis and supplying (by deemed possession) the harvested product from that same operation are distinct offences that can each attract separate penalties without constituting impermissible double punishment under the Pearce principle.
  • Where harvested cannabis has been dried and prepared in a condition ready for distribution, that conduct represents criminality additional to the cultivation itself, capable of supporting partial accumulation of sentences.
  • Under the approach affirmed in Muldrock v R (2011) 244 CLR 120, a finding of special circumstances requires the sentencing court to be satisfied that particular features of an offender's case, beyond merely identifying those features, genuinely warrant departing from the statutory ratio between the non-parole period and the balance of the term.
  • No error arose from the sentencing judge's treatment of first-time imprisonment, remorse, and rehabilitation prospects as considerations falling short of special circumstances in the context of a large-scale, commercial cannabis cultivation operation.
  • Sentences for ancillary offences listed in a s 166 certificate (Criminal Procedure Act 1986) may properly run concurrently with the primary sentence where the criminality of those offences is substantially reflected in the sentence for the principal offence, though separate weight may be given to offences such as firearms possession that carry distinct criminality.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 23, 25(1), 33
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), ss 7A, 36(1), 39(1), 65(3)
- Electricity Supply Act 1995 (NSW), s 64
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes Act 1900 (NSW), ss 33, 110

Cases
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Cassidy v R [2012] NSWCCA 68
- Kinchela v R [2010] NSWCCA 167
- R v Elphick [2010] NSWCCA 112
- R v Pearce (Court of Criminal Appeal, 18 December 1998, unreported)