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19
Court of Criminal Appeal 28 August 2015

Clarke v R

[2015] NSWCCA 232

Also reported as (2015) 254 A Crim R 150
Drugs
CRIMINAL APPEAL SENTENCE GUILTY PLEA PROPER SCOPE OF APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Clarke v R [2015] NSWCCA 232
Court: NSW Court of Criminal Appeal
Date: 28 August 2015
Judge(s): Basten JA at [1]; Garling J at [39]; Hamill J at [124]

Background

The appellant pleaded guilty in the District Court to cultivating a large commercial quantity of cannabis by enhanced indoor means, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). The large commercial quantity threshold for that offence is 200 plants. The sentencing judge found that close to 2,000 growing cannabis plants were involved.

The appellant was not a principal in the operation but played a significant role as a paid employee in what the sentencing judge described as a sophisticated undertaking, lasting approximately one month. He received a sentence of seven years imprisonment with a non-parole period of four years, reduced by 25% to reflect the utilitarian value of his guilty plea.

The standard non-parole period for the offence is ten years. The sentencing judge imposed a period well below that, in part because of subjective matters in the appellant's favour, while acknowledging his own view that courts had generally not given sufficient weight to the seriousness with which the legislature treated such offences.

  • Whether the sentencing judge erred by placing excessive emphasis on the standard non-parole period (Ground 1)
  • Whether the sentencing judge erred in his finding as to the number of "plants" within the meaning of the Drug Misuse and Trafficking Act 1985 (NSW), including whether the analyst's certificates provided proper evidence of the number of growing plants (Ground 2)
  • Whether the sentencing judge failed to properly take into account the appellant's subjective circumstances (Ground 3)
  • Whether the sentence was manifestly excessive

Decision

Ground 1 (standard non-parole period): The Court rejected this ground. The sentencing judge had acknowledged his own view that sentences for this type of offence had been below where they should be, but had nonetheless imposed a sentence consistent with the range established by prior decisions of the Court of Criminal Appeal. That acknowledgment did not demonstrate error, and the sentence was within the accepted range.

Ground 2 (the plant count and certificates of analysis): This ground raised the most detailed analysis. A central question was whether items described as small cuttings or seedlings qualified as "growing plants" under the Act's definition of "cannabis plant." Following Victorian authority in The Queen v Francis-Wright, the Court accepted that a cutting becomes a plant when it develops roots, without needing a full root system or demonstrated viability. The Court also noted a significant evidentiary issue: the analyst's certificates under s 43 of the Act provided prima facie evidence of the identity of the substance analysed, but the definition of "plant" in s 43(6) expressly includes any part of a plant. This meant the certificates did not, by themselves, prove the number of "growing plants" for the purposes of the offence. Despite this, the Court ultimately considered the ground in light of how the factual dispute was resolved below and the standard of appellate review applicable to findings of fact on sentence.

Ground 3 (subjective circumstances) and manifest excess: The Court rejected both the contention that subjective matters were not properly weighed and the manifest excess argument. The sentence was not shown to be outside the range available to the sentencing judge having regard to the objective seriousness of the offence and the appellant's circumstances.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A cutting of cannabis does not constitute a "plant" for the purposes of the Drug Misuse and Trafficking Act 1985 (NSW) until it has developed roots, following the approach taken by the Victorian Court of Appeal in The Queen v Francis-Wright; viability or a full root system is not required.
  • Analyst certificates issued under s 43 of the Drug Misuse and Trafficking Act 1985 (NSW) establish the identity and quantity of the substance analysed, but because s 43(6) defines "plant" to include any part of a plant, those certificates do not by themselves constitute prima facie evidence of the number of "growing plants" for the purposes of the cultivation offence.
  • In dismissing Ground 1, the Court of Criminal Appeal confirmed that a sentencing judge who expresses reservations about prevailing sentencing levels, but nonetheless sentences within the accepted range, does not thereby demonstrate appellate error.
  • Appellate review of findings of fact made on sentence is governed by the general principles applicable to error-based review, requiring the appellant to demonstrate that a finding was not open rather than merely that an alternative finding was available.
  • No error was established in the sentencing judge's treatment of the appellant's subjective circumstances, and the sentence with a non-parole period of four years against a standard of ten years was not manifestly excessive given the scale and sophistication of the operation.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 23, 33, 36Z, 43; Sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A, 54B
- Criminal Appeal Act 1912 (NSW), ss 5, 5F, 6
- Criminal Procedure Act 1986 (NSW), s 33
- Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71

Cases:
- AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
- AB v R [2014] NSWCCA 339
- Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
- Aoun v R [2011] NSWCCA 284
- Filippou v The Queen [2015] HCA 29
- Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 351
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 240
- Kyriakou v The Queen [1988] 9 Leg Rep SL 4
- Camm v R [2009] NSWCCA 141
- Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222
- Crawford v R [2013] NSWCCA 269
- Colville v R [2015] NSWCCA 149