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Court of Criminal Appeal 8 November 2013

Crawford v R

[2013] NSWCCA 269

Drugs
CRIMINAL LAW SENTENCE APPEAL ASSERTED MULDROCK ERROR PAROLE PERIOD AS SIGNIFICANT NEED TO RESENTENCE

Citation: Crawford v R [2013] NSWCCA 269
Court: Court of Criminal Appeal
Date: 8 November 2013
Judges: Gleeson JA, R A Hulme J, Adamson J

Background

The applicant, a man in his early sixties, pleaded guilty in the District Court at Lismore to cultivating a large commercial quantity of cannabis by enhanced indoor means and to supplying cannabis. Police had discovered a sophisticated underground hydroponic operation beneath a shed on his rural property, containing 319 cannabis plants and nearly 3.5 kilograms of harvested cannabis leaf. The system included artificial lighting, ventilation, and a highly sophisticated watering setup.

The applicant had a prior Queensland conviction from 1991 for almost identical conduct, for which he had served a term of imprisonment. His stated motivation in both instances was financial gain. The District Court sentenced him to nine years imprisonment with a non-parole period of six years and nine months for the cultivation offence, with a concurrent three-year fixed term for the supply offence.

The applicant sought leave to appeal, arguing that the sentencing judge had applied a now-discredited approach to the standard non-parole period, failed to find special circumstances, and imposed a manifestly excessive sentence.

  • Whether the sentencing judge applied the impugned two-stage approach described in R v Way rather than the correct approach mandated by Muldrock v The Queen
  • Whether the judge gave adequate reasons for departing from the standard non-parole period
  • Whether the judge erred by failing to find special circumstances to justify a shorter non-parole period
  • Whether the sentence for the cultivation offence was manifestly excessive
  • Whether, if resentencing was required, post-incarceration personal circumstances should be taken into account

Decision

The Court identified Muldrock error in the sentencing judge's approach. The judge had been sentencing under the framework then considered correct in R v Way, which required treating the standard non-parole period as a benchmark anchored to offences of mid-range objective seriousness. The High Court overturned that approach in Muldrock just four months after the applicant was sentenced, holding that the standard non-parole period is one of two legislative guideposts to be considered alongside the maximum penalty, not a starting point requiring justification for departure.

The sentencing remarks disclosed that the judge had categorised the offence by reference to where it sat relative to the "mid-range" and had given the standard non-parole period a significance that Muldrock had since condemned. That constituted error sufficient to warrant resentencing.

On the special circumstances ground, the Court found no error. No submission had been made to the sentencing judge to find special circumstances, and the Court saw no basis on which such a finding could have been made in any event. The applicant's co-operative conduct in custody and his age did not, in the Court's view, attract that finding.

In resentencing, the Court took into account the objective seriousness of the offending, the applicant's prior near-identical conviction and the personal deterrence it underscored, the importance of general deterrence, the utilitarian value of the early guilty plea (a 25 per cent reduction applied), and personal matters arising since incarceration including a coronary event, his wife's ongoing ill-health, and his adult son's serious illness. The Court adopted a starting point of ten years, reduced it by 25 per cent for the plea, and imposed a total sentence of seven years and six months with a non-parole period of five years and seven months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court for the cultivation offence quashed
  • In lieu: imprisonment comprising a non-parole period of 5 years and 7 months, with a balance of term of 1 year and 11 months, dating from 31 May 2010, with the earliest parole eligibility date of 31 December 2015
  • The sentence for the supply offence was not disturbed

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing under the R v Way framework after Muldrock constitutes error, even where the original sentencing predated Muldrock, because the High Court's decision corrected the law rather than changed it.
  • Under Muldrock, the standard non-parole period operates as one of two legislative guideposts alongside the maximum penalty; it is not a starting point from which a sentencing court must justify departure by reference to mid-range seriousness.
  • A prior conviction for virtually identical conduct, followed by a term of imprisonment and then deliberate replication of that offending for financial gain, renders personal deterrence a significant sentencing consideration.
  • Post-incarceration personal circumstances, including health events and family hardship, are properly considered when a Court of Criminal Appeal undertakes resentencing, even where they arose after the original sentence.
  • The absence of any submission on special circumstances at the original sentencing did not preclude the applicant from raising the issue on appeal, but the Court found no factual basis on which such a finding could have been supported.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 25(1), 32(1)(h), 33(3)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2), s 54B(2), Pt 4 Div 1A
- Criminal Appeal Act 1912 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Zreika v R [2012] NSWCCA 44