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Court of Criminal Appeal 17 May 2017

Crowley v R

[2017] NSWCCA 99

Drugs
CRIMINAL LAW APPEAL ENHANCED MEANS OF CULTIVATION HELD APPEAL DISMISSED

Citation: Crowley v R [2017] NSWCCA 99
Court: Court of Criminal Appeal, NSW
Date: 17 May 2017
Judges: Johnson J, Adamson J (primary reasons), Campbell J (agreeing with additional observations)

Background

The appellant was found by police to have been cultivating 128 cannabis plants across three rooms adjoining the garage of his Lismore home. The rooms included a mature plant room with hydroponic infrastructure, a "nursery" for seedlings and cuttings, and a drying room. Police also found over 2.6 kilograms of cannabis leaf throughout the house, along with resealable bags and scales.

The appellant pleaded guilty at the earliest opportunity to cultivating not less than the commercial quantity of cannabis under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). He claimed the operation was for personal use and pain relief following a knee injury, and that much of the infrastructure had been set up by his mother years earlier. He was sentenced to three years imprisonment with a non-parole period of two years.

On appeal, the appellant sought leave to challenge the sentence as manifestly excessive and raised two additional grounds concerning the sentencing judge's findings and reasoning.

  • Whether the sentencing judge erred in her assessment of the objective seriousness of the offence, rendering the sentence manifestly excessive
  • Whether the sentencing judge's finding that the appellant was "ready to supply" cannabis breached the principle in The Queen v De Simoni (1981) 147 CLR 383 by taking into account a more serious offence (supply) for which he had not been charged or convicted
  • Whether the sentencing judge erred in finding that the appellant had "blamed" his mother for his offending, contrary to the principles in Bugmy v The Queen (2013) 249 CLR 571, which concern the relevance of an offender's deprived background to moral culpability

Decision

Ground 1: Objective seriousness and manifest excess. The Court found no error in the sentencing judge's assessment. The offence involved 128 healthy plants, a sophisticated hydroponic setup with multiple dedicated rooms, and a system designed for ongoing large-scale production. These factors supported a finding of above-moderate objective seriousness. Leave to appeal was granted but the ground was not made out.

Ground 2: The De Simoni principle and the supply finding. The sentencing judge had found the appellant was "ready to supply" but expressly accepted there were no indicia he had actually been selling cannabis. The Court held this finding did not breach De Simoni. Commercial purpose is not an element of the cultivation offence under s 23(2)(a), and the sentencing judge was entitled to consider the capacity and readiness to supply as bearing on the objective seriousness of the cultivation itself, without treating the appellant as if he had been convicted of supply. Campbell J agreed, noting that the sentencing judge carefully grounded her finding in the scale of the operation and sophistication of the setup rather than in the mere presence of bags and scales.

Ground 3: The Bugmy principle and the appellant's background. The appellant argued the sentencing judge had improperly characterised his evidence about his mother's influence as "blame-shifting," thereby failing to give proper weight to his disadvantaged upbringing as a mitigating factor under Bugmy. The Court rejected this ground. Unlike the impulsive violent conduct considered in Bugmy, large-scale cannabis cultivation requires sustained knowledge, planning, and deliberate application. The sentencing judge had not failed to take the appellant's background into account but was entitled to find it carried reduced mitigatory weight in this context.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court finding that a cannabis cultivator was "ready to supply" does not automatically breach the De Simoni principle, provided the court does not treat the offender as though convicted of a supply offence; such a finding can legitimately inform the objective seriousness of the cultivation charge itself.
  • Under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), commercial purpose is not an element of the offence, which means the absence of a proven commercial purpose does not preclude adverse findings about readiness or capacity to supply.
  • The Bugmy principles, which recognise that an offender's deprived background can reduce moral culpability, do not apply with equal force across all offence types. The Court of Criminal Appeal distinguished sustained, skill-intensive offending from the impulsive conduct at the heart of Bugmy.
  • Sophistication of cultivation infrastructure, including multiple purpose-built rooms, hydroponic systems, and a continuous propagation cycle, is a relevant factor supporting a finding of elevated objective seriousness.
  • No error was established in the sentencing judge's approach to any of the three grounds, and the sentence of three years with a two-year non-parole period (after a 25% guilty plea discount) was upheld as appropriate.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 23(2)(a), 33
- Criminal Procedure Act 1986 (NSW), s 166(1)
- Interpretation Act 1987 (NSW), s 34(2)(f)

Cases
- The Queen v De Simoni (1981) 147 CLR 383
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- SBF v The Queen (2009) 198 A Crim R 219; [2009] NSWCA 231
- R v Hooper [2004] NSWCCA 10
- R v Seman (Court of Criminal Appeal (NSW), 15 May 1992, unrep)