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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: Court of Criminal Appeal
Date: 28 August 2015
Judge(s): Basten JA at [1]; Garling J at [39]; Hamill J at [124]

Background

The applicant pleaded guilty in the District Court to cultivating a large commercial quantity of cannabis by enhanced indoor means, contrary to section 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). Police discovered a sophisticated hydroponic operation on a rural property near Oallen, with close to 2,000 cannabis items in various stages of growth, together with nine additional plants in an underground bunker. The applicant was found to have acted as an employee in the operation for approximately one month, not as a principal or organiser.

Berman DCJ sentenced the applicant to a non-parole period of four years and a head sentence of seven years, incorporating a 25% discount for the early guilty plea. The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

The applicant sought leave to appeal on three grounds: that the sentencing judge placed too much weight on the standard non-parole period; that he erred in finding that approximately 2,000 of the seized items were "plants" for the purposes of the offence; and that the sentence was manifestly excessive due to insufficient regard for the applicant's subjective circumstances.

Legal Issues

  • Whether the sentencing judge erred by placing too much emphasis on the standard non-parole period and treating it as having determinative significance.
  • Whether the sentencing judge erred in finding that the number of growing cannabis plants was close to 2,000, given that many items were small cuttings and only a small sample had been examined for root development.
  • What evidentiary status the analyst's certificates under section 43 of the Drug Misuse and Trafficking Act held in relation to establishing the number of "growing plants."
  • What the proper scope of appellate review of factual findings on sentence is, and in particular whether an appellate court is limited to intervening only where a finding was not "open" on the evidence.
  • Whether the sentence was manifestly excessive having regard to the applicant's subjective circumstances and role.

Decision

Ground 1: Emphasis on the standard non-parole period

The Court of Criminal Appeal rejected this ground. The sentencing judge had candidly expressed the view that sentences for this class of offence generally did not reflect the seriousness the legislature intended, but he explicitly acknowledged that personal view and declined to act on it, instead sentencing consistently with the approach of the Court of Criminal Appeal (at [7]). The sentence actually imposed was not outside the range indicated by earlier decisions of the Court. No error in the treatment of the standard non-parole period was established (at [7], [108]-[109]).

Ground 2: Factual finding as to the number of plants

The Court examined whether the analyst's certificates under section 43 of the Drug Misuse and Trafficking Act were evidence of the number of "growing plants." Basten JA held that section 43 does not provide for a determination of whether a particular item is a "growing plant," and its broad definition of "plant" does not distinguish seeds, parts of plants, and whole plants from each other. Accordingly, the certificates were not evidence of the number of growing plants, and direct evidence from someone who had inspected the items was required (at [14]-[15]).

On the central factual question, the applicant contended that a cutting becomes a plant only when it develops a root. Following the Victorian Court of Appeal in Francis-Wright, the Court accepted that proposition (at [11]). The analyst had personally examined a random sample of six plants from each of two growing trays (totalling 12 from 790), all of which had roots. The sentencing judge drew an inference that a large proportion of the unexamined items also had roots, relying on the 100% sample result and observations from video and photographs that all items were of similar size and apparent good health (at [15], [87]-[88]). The Court found that inference was open to the sentencing judge and that he was entitled to be satisfied beyond reasonable doubt that the number of growing plants was in the order of 2,000, without requiring numerical precision (at [37]). The incidental comment that items without roots would shortly have developed them was not an integral part of the factual finding and did not infect the conclusion (at [103]).

Scope of appellate review of facts on sentence

Basten JA examined in detail the proper scope of appellate review of factual findings on sentencing appeals under section 6(3) of the Criminal Appeal Act 1912 (NSW). His Honour expressed concern that statements in R v O'Donoghue, read closely, may suggest that factual error can only be found where there is effectively an error of law (at [32]). Basten JA concluded that the Court's jurisdiction extends to intervening where it is satisfied the sentencing judge made a mistake with respect to a particular factual finding that was material to the exercise of the sentencing discretion, consistent with the language in House v The King and the approach confirmed in Kentwell v The Queen (at [33]-[34]). Hamill J agreed with this analysis (at [133]). Garling J applied the conventional formulation that the finding must be one that was not "open" to the sentencing judge (at [99]). All three judges agreed the ground failed on either approach, making it unnecessary to resolve the tension between those formulations (at [137]).

Ground 3: Manifestly excessive sentence

The Court found that the sentence was not manifestly excessive. The sentencing judge carefully considered the nature of the offence, the significant margin by which the number of plants exceeded the commercial quantity threshold, the applicant's limited role as an employee, his early guilty plea, and his subjective circumstances including a difficult personal history and prior serious offending (at [120]). Comparison with a range of similar cases showed the sentence fell within the available range (at [119]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An analyst's certificate under section 43 of the Drug Misuse and Trafficking Act 1985 (NSW) certifies the nature of the substance analysed but does not constitute evidence of the number of "growing plants" for sentencing purposes, because the section does not provide for a determination of whether a particular item is a "growing plant" (at [14]-[15]).

  • A cutting becomes a plant for the purposes of the cannabis cultivation offence when it develops a root; it does not need a full root system and need not be shown to be viable (at [11]).

  • Where a sentencing judge finds most items in a large batch are growing plants by drawing an inference from a 100% positive random sample, combined with visual observations that all items are of similar size and apparent health, that inference can be open to the sentencing judge and sufficient to establish the finding beyond reasonable doubt (at [15], [101]).

  • A finding of fact adverse to an offender on sentence must be established beyond reasonable doubt before it can be taken into account as an aggravating factor (at [17]).

  • The Court of Criminal Appeal, constituted by Basten JA and Hamill J (with Garling J applying the existing formulation without deciding the point), expressed the view that the "open to the sentencing judge" standard drawn from O'Donoghue is unduly restrictive: the jurisdiction under section 6(3) of the Criminal Appeal Act 1912 (NSW) extends to cases where the appellate court is satisfied the sentencing judge made a mistake with respect to a material factual finding, consistent with House v The King and Kentwell v The Queen, though the tension in the authorities was noted as potentially requiring resolution by a specially constituted bench (at [34], [133]-[136]).

Legislation and Cases Referenced

Legislation
- 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
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 23, 33, 36Z, 43; Sch 1
- 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
- Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284
- Camm v R [2009] NSWCCA 141
- CO v R [2011] NSWCCA 148
- Colville v R [2015] NSWCCA 149
- Crawford v R [2013] NSWCCA 269
- Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19
- 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
- Kardoulias v R [2005] NSWCCA 456; 159 A Crim R 252
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Kyriakou v The Queen [1988] 9 Leg Rep SL 4
- Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
- M v The Queen (1994) 181 CLR 487
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 351
- Muldrock v R [2011] HCA39; (2011) 244 CLR 240
- Peters v R [2013] NSWCCA 324
- The Queen v Francis-Wright [2005] VSCA 79
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Clarke [2014] NSWDC 35
- R v Ion (1996) 89 A Crim R 81
- R v Khouzame [2000] NSWCCA 505
- R v Kurtic (1996) 84 A Crim R 57
- R v Kyriakou (1987) 29 A Crim R 50
- R v Ly [2010] NSWDC 229
- R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
- R v O’Donoghue (1988) 34 A Crim R 397
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- SBF v R [2009] NSWCCA 231; 198 A Crim R 219
- Singer v Berghouse (1994) 181 CLR 201
- Turnbull v Medical Board (NSW) [1976] 2 NSWLR 281
- Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73