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Court of Criminal Appeal 4 April 2018

Chaloner v R

[2018] NSWCCA 59

Drugs
CRIME APPEAL AGAINST SENTENCE FINDING OF SPECIAL CIRCUMSTANCES PAROLE PERIOD AFFECTED BY ERROR WHETHER COURT SHOULD INTERVENE CRIME APPEAL AGAINST SENTENCE

Citation: Chaloner v R [2018] NSWCCA 59
Court: Court of Criminal Appeal, NSW
Date: 4 April 2018
Judge(s): Basten JA; Rothman J; Garling J

Background

The applicant was one of four men arrested at a property in northern New South Wales in June 2016 in connection with the enhanced indoor cultivation of cannabis and the supply of a substantial quantity of cannabis leaf. He was also charged with supplying cannabis resin. Together with a co-offender, he was identified as a principal organiser of the operation, which involved a hydroponic growing system, multiple participants, and approximately 100 kilograms of cannabis plant material.

Both the applicant and his co-offender were sentenced in the District Court on 2 March 2017 to identical aggregate terms of 5 years and 3 months imprisonment, with a non-parole period of 3 years and 9 months. Two lesser participants had been sentenced earlier, and those sentences had already been the subject of separate appeal proceedings. By the time the applicant came before the Court of Criminal Appeal, his co-offender had already successfully appealed his sentence before a differently constituted bench.

The applicant appealed on several grounds, including that the sentencing judge had erred in applying the finding of special circumstances, that errors had been made in calculating the weight of cannabis leaf at each premises, and that the sentencing judge had wrongly concluded that a significant portion of the retained cannabis plant was intended for producing cannabis resin.

  • Whether the sentencing judge's nominal reduction of the non-parole period, following a finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), constituted an error warranting intervention.
  • Whether, where an identical error had already led to resentencing of a co-offender by a differently constituted Court of Criminal Appeal, the present Court was required to intervene consistently.
  • Whether errors in the calculation of cannabis leaf weights at separate premises provided a basis for reducing the aggregate sentence.
  • Whether the sentencing judge's finding, beyond reasonable doubt, that the retained cannabis plant was kept for the purpose of producing cannabis resin was open on the evidence.
  • Whether there was procedural unfairness in drawing that inference without giving defence counsel a further opportunity to respond.

Decision

Special circumstances and the non-parole period: The Crown conceded that the same error identified in the co-offender's earlier appeal, namely that the sentencing judge's finding of special circumstances had resulted in only a nominal reduction to the non-parole period, also affected the applicant's sentence. The Court found no basis to depart from the earlier decision in Gumbleton v R, and held that declining to intervene would perpetuate the very error already corrected for his co-offender. The Court reduced the non-parole period from 3 years and 9 months to 3 years and 3 months.

Consistency with the co-offender's resentencing: The Court addressed directly the significance of earlier decisions made by differently constituted benches. It held that, absent a compelling reason to depart, consistency required the same correction to be applied. No relevant distinction existed between the applicant's position and that of his co-offender, and no basis existed to doubt the correctness of the earlier decision.

Cannabis leaf weight errors: The Crown acknowledged that the amounts attributed to two separate premises had each been incorrectly recorded, but the corrections offset each other, leaving the total quantity of cannabis leaf unchanged. Because the aggregate sentence rested on the total weight, and the applicant did not press this ground, the Court found no basis to interfere with the underlying individual sentence components.

Cannabis resin finding: The sentencing judge had found beyond reasonable doubt that approximately 48 kilograms of cannabis plant, described in the agreed facts as material that "may" be used for producing resin, was in fact retained for that purpose. The Court upheld this finding. The surrounding circumstances, including the scale of the operation, the significant cash found on the applicant, and the 63 grams of cannabis resin found at his residence (to which he had pleaded guilty to supplying), supported the inference. Defence counsel's submission at sentencing that the material was to be discarded was properly rejected as implausible and unsupported by evidence. No procedural unfairness arose from drawing that inference from agreed facts already before the court.

Orders Made

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

Key Takeaways

  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that results in only a nominal reduction to the non-parole period may constitute a sentencing error, as a finding of special circumstances is intended to have practical effect on the proportion of the sentence spent on parole.
  • Where a differently constituted Court of Criminal Appeal has already identified and corrected an identical error in a co-offender's sentence, the Court will generally require a compelling reason before declining to apply the same correction to an equally situated offender.
  • Failing to correct a known error in one co-offender's sentence, after correcting it in another's, would itself perpetuate the original sentencing error and create unjustified disparity.
  • An inference drawn beyond reasonable doubt about the purpose for which drug-related material was retained can be supported by circumstantial evidence from the surrounding facts, even where agreed facts use permissive rather than definitive language.
  • Errors in the calculation of individual offence quantities do not necessarily provide a basis to disturb an aggregate sentence where the corrections offset each other and the total quantity underpinning the sentence remains unchanged.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances and variation of standard non-parole proportions)

Cases:
- Gumbleton v R [2017] NSWCCA 314
- Kay v R; Ellis v R [2017] NSWCCA 218
- Lin v R [2018] NSWCCA 13
- Tarrant v R [2018] NSWCCA 21