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29
Court of Criminal Appeal 29 August 2019

Casella v R

[2019] NSWCCA 201

DrugsPublic order & justice offences
CRIME PUBLIC JUSTICE OFFENCES CONCEAL SERIOUS INDICTABLE OFFENCE APPEALS APPEAL AGAINST SENTENCE DENIAL OF PROCEDURAL FAIRNESS

Citation: Casella v R [2019] NSWCCA 201
Court: Court of Criminal Appeal
Date: 29 August 2019
Judges: Bathurst CJ at [1]; Beech-Jones J at [103]; N Adams J at [109]

Background

The appellant was a Griffith winemaker who had a longstanding acquaintance with one of the principal offenders in a large-scale cannabis cultivation operation. From September 2013, he became aware of plans to cultivate a significant quantity of cannabis at a rural NSW property known as Karoopa Farm. He visited the farm three times between October and December 2013, including a visit to the cultivation site where approximately 3,000 cannabis cuttings were later planted.

The Crown accepted it could not establish beyond reasonable doubt that the appellant had acted on his knowledge to assist the principals. He was not charged with participation in the cultivation. Instead, he pleaded guilty to a single count of concealing a serious indictable offence under s 316(1) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 2 years imprisonment.

The sentencing judge imposed 8 months full-time imprisonment with a non-parole period of 6 months. The appellant appealed on three grounds: denial of procedural fairness, failure to consider alternatives to full-time custody, and manifest excess.

Legal Issues

  • Whether the sentencing judge denied the appellant procedural fairness by imposing full-time imprisonment without adequately signalling that outcome during the sentencing hearing
  • Whether the sentencing judge erred by failing to meaningfully consider alternatives to full-time custody, including an Intensive Correction Order (ICO)
  • Whether the sentence of 8 months full-time imprisonment was manifestly excessive
  • On resentencing, whether an ICO was appropriate and, if so, whether additional ICO conditions were required

Decision

Ground 1: Procedural Fairness

The Court rejected the procedural fairness ground. Both the defence and the Crown had addressed the possibility of a custodial sentence during the hearing: defence counsel submitted that the s 5 threshold had not been met, but acknowledged that if it were, alternatives to full-time custody remained available, while the Crown expressly submitted that the threshold had been passed (at [51]-[52]). The Court confirmed that a sentencing judge is under no obligation to disclose preliminary views on the appropriate sentence, and nothing the judge said created any expectation that full-time custody was off the table (at [54]).

Ground 2: Failure to Consider Alternatives

The Court found that the sentencing judge had, at least mechanically, complied with the three-stage sentencing process: he stated that no penalty other than imprisonment was appropriate, addressed the term, and noted that alternatives to full-time custody had been considered (at [64]). That was sufficient to defeat the ground as pleaded. However, the Court endorsed the observation in Paul Campbell (a pseudonym) v R [2018] NSWCCA 87 that where a sentence is under 2 years and clear alternatives exist, a sentencing judge should explain why those alternatives are rejected (at [63], [65]). The failure to do so left the appellant and the appellate court in a state of uncertainty, even if it did not in itself constitute error (at [65]).

Ground 3: Manifest Excess

The Court held that a head sentence of 8 months, after a 20% plea discount, was not in itself manifestly excessive for concealing serious drug offences of this scale (at [88]). However, ordering that sentence to be served by way of full-time custody was manifestly excessive (at [90]). The Court identified four reasons. First, the 8-month term represented a severe sentence against a 2-year maximum. Second, the applicant's 1995 Queensland cannabis convictions, occurring 19 years earlier, warranted little weight in personal deterrence given that he had declined to participate in the current enterprise (at [91]). Third, the appellant's subjective case was powerful: an apparently blameless life since 1995, significant charitable contributions, and family health circumstances (at [92]). Fourth, and importantly, the sentence sat uncomfortably with non-custodial sentences received by co-offenders who had actually participated in the cultivation, including a suspended sentence for Mr Vyse and an ICO for Mr B Howarth, all of whom were convicted of offences carrying far greater maximum penalties (at [93]).

Resentencing and ICO Conditions

On resentencing, the Court imposed 6 months imprisonment, to be served by way of an ICO rather than full-time custody (at [97]-[98]). The Court found exceptional circumstances justified not imposing additional ICO conditions beyond the standard ones, noting the appellant had been on conditional bail since September 2018 with stringent reporting and passport conditions (at [100]). Beech-Jones J (with N Adams J agreeing) also addressed the recent decision in R v Fangaloka [2019] NSWCCA 173, rejecting any suggestion that Part 5 of the Crimes (Sentencing Procedure) Act 1999 is unlikely to apply to sentences of 6 months or less, finding no statutory basis for that conclusion (at [105]). Beech-Jones J also expressed significant doubt about whether Fangaloka's construction of s 66 correctly imposes a prohibition on ICOs unless the court positively concludes that an ICO is more likely than full-time custody to address reoffending risk, though that question was not resolved (at [108]).

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed on 21 September 2018 quashed
  • Applicant sentenced to 6 months imprisonment to be served by way of an Intensive Correction Order
  • Standard ICO conditions imposed: no commission of offences during the order, and submission to supervision by a Community Corrections Officer

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge has no duty to disclose preliminary views on the appropriate sentence, and procedural unfairness will not arise simply because the outcome differs from what a party expected, provided neither party conducted the proceedings on the basis that a particular sentencing option was not in play (at [51]-[54]).

  • Where a sentence is under 2 years and alternatives to full-time custody are clearly available, the preferable course is for a sentencing judge to identify those alternatives and explain why they are inappropriate. While failure to do so is not automatically an error, it may prompt close appellate scrutiny of whether the correct process was followed (at [63], [65]).

  • A full-time custodial sentence may be manifestly excessive even when the head term itself is not. The manner in which a sentence is ordered to be served forms part of the overall sentencing exercise and is itself susceptible to a manifest excess challenge (at [89]-[90]).

  • Sentences imposed on co-offenders who committed the primary offence are a relevant consideration on manifest excess, even where parity is not a formal ground of appeal. A significant inconsistency between the sentence for concealing an offence and the non-custodial sentences received by those who committed the underlying offence requires explanation (at [93]).

  • Both Beech-Jones J and N Adams J declined to follow the suggestion in R v Fangaloka [2019] NSWCCA 173 that an ICO is unlikely to be appropriate for sentences of 6 months or less, finding no statutory foundation for that proposition and treating that statement as not binding (at [105], [110]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Dang v R [2014] NSWCCA 47
- Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
- Hughes v R [2018] NSWCCA 2
- Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Paul Campbell (a pseudonym) v R [2018] NSWCCA 87
- R v Dennis [2015] NSWCCA 297
- R v Fangaloka [2019] NSWCCA 173
- R v Foster [2001] NSWCCA 215
- R v Zamagias [2002] NSWCCA 17
- Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247
- Taylor v R [2018] NSWCCA 255
- Tweedie v R [2015] NSWCCA 71