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Court of Criminal Appeal 1 July 2013

Tan v R

[2013] NSWCCA 164

Drugs
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE SIGNIFICANT REMORSE DEMONSTRATED LEAVE TO APPEAL GRANTED APPEAL ALLOWED

Citation: Tan v R [2013] NSWCCA 164
Court: NSW Court of Criminal Appeal
Date: 1 July 2013
Judges: Hoeben CJ at CL, Latham J, Barr AJ

Background

The appellant had been sentenced in the District Court to four years and six months' imprisonment, with a non-parole period of two years and nine months, for cultivating not less than a commercial quantity of a prohibited plant under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. A possession offence involving 36 grams of cannabis was taken into account on a Form 1.

Police executing a search warrant at the appellant's five-bedroom home discovered 53 cannabis plants growing under a sophisticated indoor hydroponic setup. Four of the home's five bedrooms were devoted entirely to the cultivation operation. The appellant admitted he was the principal, had personally purchased approximately $10,000 worth of equipment, and had diverted electricity to support the plantation. The anticipated gross return on harvest and sale was approximately $187,000.

The appellant pleaded guilty at an early stage. He was 33 at the time of the offence, had a limited criminal history of summary offences with no prior imprisonment, and demonstrated significant remorse. His gambling debts and drug dependency were identified as the motivating factors.

  • Whether the sentence of four years and six months' imprisonment was manifestly excessive in all the circumstances.
  • Whether the starting point of six years (before the discount for the early guilty plea) fell outside the appropriate sentencing range for this type of offence.

Decision

The Court unanimously granted leave to appeal and allowed the appeal, finding the starting point of six years was outside the appropriate range established by current sentencing practice.

Latham J (with whom Hoeben CJ at CL and Barr AJ agreed) accepted that sentencing statistics and reviews of comparable cases carry some utility in identifying the appropriate range, though they remain of limited weight and cannot substitute for an individual assessment of the full circumstances. The Court noted two qualifications on the comparison material: a table of District Court decisions carries less weight than sentences reviewed by an intermediate appellate court, and pre-2006 cases involving more than 250 plants must be treated with caution given the legislature's 2006 amendment reducing the commercial quantity threshold for enhanced indoor cultivation to 50 plants, which was intended to signal an increase in the gravity of such offences.

Reviewing the available material, including Court of Criminal Appeal decisions, a table of 26 District Court cases, and JIRS statistics, the Court found that for principals cultivating between 50 and 100 plants with no relevant prior convictions, confirmed sentences on appeal ranged between three and three and a half years, and the majority of guilty-plea cases in the statistics attracted between one and three years' imprisonment. A starting point of six years could not be sustained. The Court also found special circumstances warranted a moderate alteration to the statutory non-parole ratio to allow the appellant to address his gambling and drug addiction under supervision.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed on 27 April 2012 quashed.
  • In lieu, a non-parole period of two years and two months imposed, commencing 3 June 2011 and expiring 2 August 2013; balance of term of ten months, expiring 2 June 2014; the appellant to be released on 3 August 2013.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence may be characterised as manifestly excessive where the starting point adopted by the sentencing judge falls outside the appropriate range established by current sentencing practice, even in the absence of any other identifiable error.
  • Reference to sentencing statistics and comparable decisions can assist in identifying the appropriate range, but the sentencing discretion remains individual and must be exercised by reference to the whole of the offender's circumstances.
  • Cases decided before the 2006 legislative amendment to the Drug Misuse and Trafficking Act 1985 (which reduced the commercial quantity threshold for enhanced indoor cultivation from 250 to 50 plants) carry limited comparative value, because the amendment was explicitly intended to increase the perceived gravity of hydroponic cultivation offences.
  • A table of unreviewed District Court sentencing outcomes carries less persuasive weight than sentences confirmed or substituted by an intermediate appellate court, though such material is not without some utility.
  • A finding of special circumstances, justifying a departure from the standard non-parole ratio, may be supported where the offender has identified needs in relation to rehabilitation from drug and gambling addiction that require an extended period of supervised parole.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Act 2006 (NSW)

Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- Markarian v R [2005] HCA 25
- Nguyen v R [2012] NSWCCA 42
- Papworth v R [2011] NSWCCA 253
- Pham v R [2009] NSWCCA 266
- R v Daoulas NSWCCA (28 October 1993)
- R v Godden [2005] NSWCCA 160