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Court of Criminal Appeal 30 May 2013

Eyles v R

[2013] NSWCCA 128

DrugsFirearms & weapons
CRIMINAL APPEAL SENTENCE APPEAL MANIFEST EXCESS

Citation: Eyles v R [2013] NSWCCA 128
Court: NSW Court of Criminal Appeal
Date: 30 May 2013
Judge(s): Hoeben CJ at CL, Rothman J, McCallum J

Background

The appellant pleaded guilty in the District Court to cultivating cannabis by enhanced indoor means for a commercial purpose, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985. Police executing a search warrant at his home discovered a sophisticated hydroponic operation in the garage, comprising six purpose-built growing rooms containing 58 healthy cannabis plants averaging over a metre in height. The appellant had bypassed the electricity meter to run the operation at no cost.

The appellant was sentenced to three years imprisonment with a non-parole period of 18 months, after a 25% discount for his early guilty plea. The sentencing judge found that a major purpose of the enterprise was financial gain, including from the sale of dried cannabis already harvested from a previous crop. The judge also imposed concurrent fixed terms of six months for two related firearms offences involving possession of a plastic handgun.

The appellant sought leave to appeal on the grounds that the sentence was manifestly excessive and that the sentencing judge had erred in characterising the objective seriousness of the offending.

  • Whether the sentencing judge erred in characterising the objective seriousness of the cannabis cultivation offence
  • Whether the sentence of three years imprisonment was manifestly excessive having regard to comparable cases and sentencing statistics
  • Whether the sentencing judge's finding of special circumstances, and the resulting reduction in the non-parole period ratio, was affected by any error

Decision

McCallum J (with whom Hoeben CJ at CL and Rothman J agreed) rejected each ground of appeal. The court found that the sentencing judge's characterisation of the objective seriousness of the offending was well open on the evidence. The scale of the operation, the sophistication of the setup, the deliberate bypassing of the electricity meter, and the admitted commercial purpose all supported the judge's assessment.

The court also rejected the submission that the sentence was manifestly excessive. Sentencing statistics placed the sentence within the ordinary range for this type of offending. The comparable decision of Zepina v R [2010] NSWCCA 155 was of no assistance to the appellant: that case involved a smaller crop of 37 plants and a sentence of two years and six months that Whealy J had described as "a very lenient sentence indeed." The appellant's operation involved a larger crop, making it difficult to characterise the present three-year sentence as outside the permissible range.

On the special circumstances ground, the court found no error. The sentencing judge had reduced the non-parole period to 50% of the total term (well below the statutory default of 75%) based on the appellant's age, poor health, first custodial sentence, and rehabilitation prospects. The complaint that the judge failed to refer to the pre-sentence report in that context was not persuasive given the significant reduction in the non-parole period that the appellant had already received.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a finding of commercial purpose in cannabis cultivation can be sustained where the scale and structure of the operation, combined with admissions made to police, support an inference of financial motivation, even where the offender later qualifies those admissions at sentence.
  • A sentence of three years imprisonment for cultivating 58 cannabis plants by sophisticated enhanced indoor means for commercial purpose, after a 25% guilty plea discount, fell within the permissible sentencing range.
  • In dismissing the appeal, the court noted that Zepina v R, a case involving a smaller hydroponic operation that attracted a sentence described as "very lenient," did not assist an appellant seeking to have a larger operation treated more leniently.
  • Special circumstances justifying departure from the statutory 75% non-parole period ratio can properly be founded on a combination of factors, including a first custodial sentence, poor health, and positive rehabilitation prospects.
  • No error arises from a sentencing judge's failure to expressly reference the pre-sentence report in connection with a special circumstances finding where the non-parole period has already been substantially reduced below the statutory default.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1A), 33(2)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Firearms Act 1996 (NSW), ss 7(1), 36(1)

Cases:
- Zepina v R [2010] NSWCCA 155