AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 14 December 2017

Gumbleton v R

[2017] NSWCCA 314

Drugs
CRIME APPEAL AGAINST SENTENCE ENHANCED INDOOR CULTIVATION COMMERCIAL QUANTITY FINDING OF SPECIAL CIRCUMSTANCES INSUFFICIENT REDUCTION OF NON

Citation: Gumbleton v R [2017] NSWCCA 314
Court: Court of Criminal Appeal
Date: 14 December 2017
Judges: Bathurst CJ at [1]; R A Hulme J at [2]; Wilson J at [33]

Background

The appellant was sentenced in the District Court at Lismore following convictions for three serious drug offences under the Drug Misuse and Trafficking Act 1985 (NSW): cultivating cannabis by enhanced indoor means for a commercial purpose, supplying a commercial quantity of cannabis (67.79 kg), and supplying a further 23.55 kg of cannabis leaf. Police had discovered a sophisticated hydroponic growing operation concealed beneath a rural property the appellant had rented for nine years, along with trimming and packaging equipment and written ledgers relating to the enterprise.

The sentencing judge imposed an aggregate term of 5 years 3 months imprisonment, with a non-parole period of 3 years 9 months. The appellant and his co-offender, Steven Chaloner, were sentenced at the same time and received identical sentences.

The appellant sought leave to appeal on two grounds: first, that the sentencing judge erred by failing to give practical effect to her finding of special circumstances; and second, that receiving the same sentence as Chaloner gave rise to a legitimate sense of grievance under parity principles.

  • Whether the sentencing judge's finding of special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was given practical effect when the non-parole period was reduced by only approximately two months below the statutory minimum ratio.
  • Whether the imposition of the same sentence on both the appellant and his co-offender Chaloner gave rise to a justifiable sense of grievance on parity grounds.

Decision

Ground 1: Special circumstances

The Court upheld this ground without hesitation. Under s 44(2B), absent a finding of special circumstances, the non-parole period must be at least three-quarters of the aggregate term. Here, without the finding, the minimum non-parole period would have been approximately 3 years 11 months. The judge's finding of special circumstances produced a reduction of only about two months, bringing the non-parole period to 3 years 9 months.

R A Hulme J, applying principles drawn from MD v R [2015] NSWCCA 37 and El-Ahmad v R [2015] NSWCCA 65, held that such a modest reduction made a mockery of the finding. Nothing in the judge's sentencing remarks suggested she intended so slight an adjustment. Although the degree of adjustment remains a matter of discretion, and the judge's focus on deterrence was acknowledged, the Court was satisfied the discretion had miscarried because the stated purpose of the special circumstances finding was given no real effect.

Ground 2: Parity

The Court rejected the parity ground. Both the appellant and Chaloner were found to be principals or organisers of the enterprise, and the business was conducted on the appellant's rented premises. While Chaloner had made a false statement to police about cash found in his possession and the appellant had made some admissions, the appellant had also declined to answer questions on a number of topics. Both entered early guilty pleas. The Court found little to distinguish their levels of co-operation and agreed with the sentencing judge's assessment that it was "very difficult to distinguish between them." The identical sentences were therefore justified.

Re-sentencing

The Court confirmed that the aggregate term and the indicative sentences for each individual offence were correctly exercised and required no adjustment. Re-sentencing was confined to setting a non-parole period that gave practical effect to the special circumstances finding, reducing it from 3 years 9 months to 3 years 3 months.

Orders Made

  • Leave to appeal against sentence granted.
  • Sentence imposed in the District Court on 2 March 2017 quashed.
  • In lieu, the appellant sentenced to imprisonment for an aggregate term of 5 years 3 months with a non-parole period of 3 years 3 months, dating from 20 December 2016, with eligibility for release on parole on 19 March 2020.

Key Takeaways

  • A finding of special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) must produce a meaningful reduction in the non-parole period. A reduction of only two months on an aggregate sentence of over five years was held to make a mockery of the finding and constituted a miscarriage of the sentencing discretion.
  • Where a sentencing judge's remarks do not indicate any intention to limit the adjustment to a nominal amount, an extremely modest reduction will not survive appellate scrutiny even if the degree of adjustment is ordinarily a matter of discretion.
  • Parity does not require different sentences simply because co-offenders differ in minor respects. Where both are found to be principals of the enterprise, where their levels of co-operation are not meaningfully distinguishable, and where favourable subjective findings are made for both, identical sentences may be entirely appropriate.
  • In allowing the appeal on the special circumstances ground, the Court of Criminal Appeal confined its re-sentencing to the non-parole period alone, leaving the aggregate term and indicative individual sentences undisturbed, consistent with the approach in Kentwell v The Queen (2014) 252 CLR 601.
  • Early guilty pleas and favourable subjective circumstances, including evidence of rehabilitation prospects, can support a special circumstances finding, but the practical effect of that finding on the sentencing structure must be apparent from the outcome.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1A), 25(1), 25(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Dawson v R [2013] NSWCCA 61
- El-Ahmad v R [2015] NSWCCA 65
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- MD v R [2015] NSWCCA 37