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Court of Criminal Appeal 30 November 2017

Victory v R

[2017] NSWCCA 286

Drugs
SENTENCE APPEAL DISCUSSION OF RELEVANT EVIDENCE OFFENDER SENTENCE APPEAL DISMISSED.

Citation: Victory v R [2017] NSWCCA 286
Court: New South Wales Court of Criminal Appeal
Date: 30 November 2017
Judge(s): Hoeben CJ at CL; Davies J; Adamson J

Background

The applicant pleaded guilty in the District Court at Penrith to exposing a child to the process of cultivating a prohibited plant (cannabis) by enhanced indoor means, contrary to s 23A(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence related to a large-scale indoor cannabis operation at a residential property in Medway, which the applicant shared with his wife (the co-offender) and their three children aged three, five, and ten. Police found 137 cannabis plants distributed across multiple purpose-built grow rooms, two outdoor sheds, and common areas of the family home, including a room adjacent to a child's bedroom.

The sentencing judge imposed a term of imprisonment with a non-parole period of one year and nine months, after allowing a 25 per cent discount for the guilty plea. Two related offences, supply of a prohibited drug and allowing premises to be used as drug premises, were dealt with by way of conviction without further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The co-offender, sentenced earlier by the same judge, received a 12-month suspended sentence for the same principal offence.

The applicant sought leave to appeal his sentence, arguing the sentencing judge had wrongly identified him as the principal offender and, as a consequence, that he had a justifiable sense of grievance arising from the disparity between his sentence and that of the co-offender.

  • Whether it was open to the sentencing judge to find that the applicant was the principal in the cannabis cultivation operation, rather than characterising the co-offender as the principal or an equal participant
  • Whether the disparity between the applicant's sentence and the co-offender's suspended sentence gave rise to a justifiable sense of grievance warranting appellate intervention

Decision

On the first ground, the Court of Criminal Appeal held that the sentencing judge's finding that the applicant was the principal in the operation was well open on the evidence. The applicant's own admissions under caution, made when guiding police through each cultivation site, provided strong support for that finding. Further, evidence from Local Court proceedings, which the applicant had adopted, included a statement the court found to be telling: the applicant had indicated he would run one crop, shut it down, and then run another, suggesting a pattern of deliberate and repeated cultivation.

The sentencing judge had also considered the applicant's explanation that his involvement was limited due to a bad back for which he was receiving workers compensation. His Honour accepted that evidence was a factor but found it insufficient to displace the inference of principal involvement drawn from the admissions and the scale of the operation. The Court of Criminal Appeal found no error in that approach.

On the second ground, the parity argument was dependent on the first ground succeeding. Because the Court of Criminal Appeal was not persuaded that the applicant's role had been incorrectly characterised, the factual foundation for the parity argument collapsed. The Court noted that the sentencing judge was entitled to sentence the applicant and the co-offender differently where the evidence established materially different roles, and that the applicant's heavier sentence reflected his position as principal. No justifiable sense of grievance arose.

The Court also referred to principles from PG v R [2017] NSWCCA 179, noting that where co-offenders are sentenced on inconsistent factual bases, each flowing from a separate plea, a sentencing court generally has no mechanism to resolve the contradiction. An offender sentenced on the basis that the co-offender was the principal cannot use that as a lever to reduce sentence if the co-offender ultimately receives the same or lesser penalty.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's finding that a particular co-offender was the principal in a drug cultivation operation will be upheld on appeal where it is supported by the offender's own admissions under caution and other evidence adopted by the offender in prior proceedings.
  • In dismissing both grounds, the Court of Criminal Appeal confirmed that a parity argument based on a co-offender's lesser sentence cannot succeed unless the underlying finding about relative culpability is itself shown to be in error.
  • Under the principles discussed in PG v R [2017] NSWCCA 179, two co-offenders may lawfully be sentenced on inconsistent factual bases where each has pleaded guilty and the sentencing court has no mechanism to resolve contradictory accounts. This does not of itself generate a justifiable sense of grievance.
  • The scale and sophistication of an indoor cannabis cultivation operation (here, 137 plants in purpose-built grow rooms throughout a family home and two external sheds) will be relevant to both objective seriousness and the assessment of who held a principal role.
  • Sufficient evidence of a principal role can be drawn from an offender's own cautions admissions and self-incriminating statements made in the course of voluntary cooperation with police, even where the offender later advances a different account at sentence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23A(2), 25(1), 36(Y)(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 12
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- PG v R [2017] NSWCCA 179