Citation: Wei v R [2015] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 8 April 2015
Judges: Beazley P, RA Hulme J, Adamson J (unanimous)
Background
The applicant, a Malaysian national, had twice entered Australia on a visa and overstayed on both occasions. On his second entry, from around June 2013, he lived and worked in a house in Epping that had been almost entirely converted into a cannabis cultivation operation. His role was limited: he lived on the premises, tended the plants by mixing fertiliser into water, and received $200 per week plus the promise of an airfare back to Malaysia.
Police executed a search warrant in July 2013 and found the applicant asleep in the rear living room. The premises contained 135 cannabis plants at various stages of growth across four rooms, an irrigation system, and an electricity bypass drawing power to lighting, fans, and transformers. A bag containing 833 grams of cannabis leaf was found beside his bed.
In the District Court, the applicant pleaded guilty at the earliest opportunity to cultivating a prohibited plant by enhanced indoor means. Two related offences (deemed supply of cannabis leaf and unauthorised use of electricity) were taken into account on a Form 1. He was sentenced to 3 years 6 months imprisonment with a non-parole period of 2 years. He sought leave to appeal that sentence to the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge placed undue weight on the applicant's status as an illegal immigrant when imposing sentence
- Whether the sentencing judge failed to apply any discount for the applicant's early guilty plea
- Whether the sentence was manifestly excessive
Decision
On the first ground, the Court found no error. Although the sentencing judge made a prefatory remark about the prevalence of this type of offending among illegal immigrants with limited English, a fair reading of the remarks on sentence as a whole did not support the inference that this factor carried disproportionate weight. The Court also could not attribute the length of the sentence specifically to that consideration, noting that sentencing involves an instinctive synthesis of multiple factors rather than a mathematical exercise.
On the second ground, the Court found error. The Crown had expressly conceded at the sentence hearing that the applicant was entitled to the maximum discount for his early guilty plea. Despite this, the sentencing judge's remarks made no reference to any discount for the utilitarian value of the plea, and no quantification of a discount appeared anywhere in the reasons. The Court acknowledged it does not lightly infer an obvious omission by an experienced sentencing judge, but the combination of the complete absence of any reference to the discount and the magnitude of the resulting sentence satisfied the Court that no discount had in fact been applied.
On the third ground, the Court found the sentence manifestly excessive even setting aside the plea discount error. The sentencing judge's own findings characterised the applicant as, in substance, a gardener and lodger used as a pawn by those who stood to profit from the enterprise. His continuous presence on the premises exposed him to a high risk of detection for very little financial reward. The Court also noted the sentence appeared inconsistent with the sentencing statistics that had been placed before the District Court.
The Court applied a 25 per cent discount to rectify the error on the second ground while preserving the sentencing judge's findings and structure, including the adjusted ratio between the non-parole period and the head sentence that had already been found to reflect special circumstances.
Orders Made
- Leave to appeal granted and appeal allowed
- Sentence imposed in the District Court on 6 March 2014 quashed
- In lieu thereof, the applicant sentenced to imprisonment comprising a non-parole period of 1 year 6 months with a balance of term of 1 year 1 month (total head sentence: 2 years 7 months)
- Sentence to date from 18 July 2013
- The applicant became entitled to release on parole upon expiration of the non-parole period on 17 January 2015
Key Takeaways
- A sentencing court's complete failure to reference any discount for the utilitarian value of an early guilty plea, combined with a sentence of notable magnitude, can support an inference that no discount was in fact applied, even though such an omission is not lightly inferred from an experienced judge.
- Where the Crown expressly concedes at a sentence hearing that an offender is entitled to the maximum discount for an early plea, the absence of any acknowledgment of that discount in the remarks on sentence reinforces the inference of error.
- Characterising an offender as a low-level participant effectively used as a pawn in a larger commercial operation is a significant sentencing consideration, and a sentence that is inconsistent with that characterisation may be set aside as manifestly excessive.
- On resentencing for manifest excess, the Court of Criminal Appeal confirmed the appropriateness of preserving the sentencing judge's findings and structure to the extent they have not themselves been challenged on appeal.
- Under the instinctive synthesis approach affirmed in Veen v The Queen (No 2) and Markarian v The Queen, it is ordinarily difficult to demonstrate that a single factor received disproportionate weight, absent clear evidence in the sentencing remarks.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Drug Misuse and Trafficking Act 1985 (NSW), ss 21A(3)(i), 22, 23(2)(a), 25(1)
- Electricity Supply Act 1995 (NSW), s 64(1)
Cases:
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Convery v R [2014] NSWCCA 93
- Devine v R [2009] NSWCCA 261
- R v Lawrence [2005] NSWCCA 91
- R v Sutton [2004] NSWCCA 225