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21
Court of Criminal Appeal 7 September 2015

Andreata v Regina

[2015] NSWCCA 239

Drugs
SENTENCE APPEAL SUPPLY CANNABIS APPLICANT RE SENTENCED.

Citation: Andreata v Regina [2015] NSWCCA 239
Court: Court of Criminal Appeal, New South Wales
Date: 7 September 2015
Judge(s): Ward JA, Adams J, Beech-Jones J (Beech-Jones J delivered the leading judgment; the others agreed)

Background

The applicant pleaded guilty in the District Court to two offences under the Drug Misuse and Trafficking Act 1985: cultivating not less than a commercial quantity of cannabis plants using enhanced indoor (hydroponic) means, and supplying 2.45 kg of cannabis leaf. Police had discovered an elaborate multi-room hydroponic set-up in a rented house in Hoxton Park following a fire brigade attendance in January 2013.

At the sentencing hearing, the applicant accepted that 61 plants were being cultivated but disputed the Crown's higher figure of 133. He gave evidence that his role was confined to "babysitting" the crop, meaning ensuring the irrigation timers were supplied with water, and that he was not the principal. The sentencing judge accepted he was not the principal but was not positively satisfied his role was as limited as he claimed.

On 8 July 2014, the District Court sentenced the applicant to six years imprisonment (non-parole period three years) for the cultivation offence and a concurrent fixed term of three years for the supply offence. The applicant sought leave to appeal all aspects of those sentences.

  • Whether the sentencing judge erred by applying the wrong maximum penalty when sentencing for the supply charge.
  • Whether the sentencing judge erred by applying a 20% rather than a 25% guilty plea discount to the cultivation charge.
  • Whether the sentence imposed for the cultivation charge was manifestly excessive.

Decision

Wrong maximum penalty for supply: The Crown conceded this error. The sentencing judge had referred to an incorrect maximum penalty when imposing the sentence for the supply charge. This concession was accepted and constituted an error warranting appellate intervention.

Guilty plea discount: The applicant argued he was entitled to a 25% discount rather than the 20% applied. Beech-Jones J rejected this ground. The 25% figure identified in R v Thomson; R v Houlton is a guideline, not a fixed entitlement, and sentencing judges retain a discretion to depart from it. The sentencing judge's reasoning for allowing only 20% disclosed no error.

Manifest excess on the cultivation charge: Beech-Jones J accepted this ground. Taking into account the sentencing judge's findings, including that the applicant cultivated 61 plants (only 11 above the commercial quantity threshold for enhanced indoor cultivation), was not the principal, had significant subjective matters in his favour, and was a first-time custodial offender, a head sentence of six years was not proportionate to the objective seriousness of the offence as found. The court was persuaded that a lesser sentence was warranted for both offences.

Re-sentencing: On re-sentencing, the Court imposed a fixed term of 12 months for the supply charge commencing 8 July 2014, and a head sentence of three years for the cultivation charge with nine months of partial cumulation, yielding a total effective head sentence of three years and three months. Special circumstances were found, producing a non-parole period of 18 months on the cultivation charge. The combined minimum period in custody was 21 months, with eligibility for parole in April 2016.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by the District Court on 8 July 2014 for both the cultivation and supply offences set aside.
  • In lieu thereof, the applicant sentenced to:
  • A fixed term of 12 months imprisonment for the supply offence, commencing 8 July 2014 and expiring 7 July 2015.
  • For the cultivation offence, a non-parole period of 18 months commencing 8 October 2014 and expiring 7 April 2016, with a balance of term of 18 months commencing 8 April 2016 and expiring 7 October 2017.

Key Takeaways

  • Where a sentencing judge applies the wrong statutory maximum penalty, that constitutes a recognised sentencing error justifying appellate intervention, even where the Crown concedes the point.
  • The 25% guilty plea discount established in R v Thomson; R v Houlton functions as a guideline rather than a fixed entitlement; a sentencing judge may apply a lesser discount where the circumstances warrant it, without falling into error.
  • Proportionality between objective seriousness and the sentence imposed is critical: the Court of Criminal Appeal held that a head sentence of six years was manifestly excessive where the quantity cultivated only marginally exceeded the commercial threshold and the offender's role, while not fully disclosed, was found not to be that of the principal.
  • A finding of special circumstances may be appropriate where a first-time custodial offender faces a partially cumulative sentence, supporting a reduction in the ratio of non-parole period to head sentence.
  • On re-sentencing, the Court treated the applicant's own disclosure in evidence that the cannabis seized for supply came from an earlier crop as a relevant factor in limiting the degree of accumulation between the two sentences.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2), 25(1), 32(1), 33(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Olbrich [1999] HCA 54; 199 CLR 270
- House v R [1936] HCA 40; 55 CLR 499
- Markarian v R [2005] HCA 25; 228 CLR 357
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Donaghey v R [2015] NSWCCA 119
- Portolesi v R [2012] NSWCCA 157
- Nguyen v R [2012] NSWCCA 42
- Tan v R [2013] NSWCCA 164
- Truong v R [2009] NSWCCA 41
- Pham v R [2009] NSWCCA 266
- Thi Lan Nguyen v R [2009] NSWCCA 181
- R v AB [2011] NSWCCA 229; 59 MVR 356