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Court of Criminal Appeal 23 December 2019

Laughton v R

[2019] NSWCCA 318

Drugs
CRIME SENTENCE ASSESSMENT OF OBJECTIVE GRAVITY PROSPECTS OF REHABILITATION

Citation: Laughton v R [2019] NSWCCA 318
Court: Court of Criminal Appeal, NSW
Date: 23 December 2019
Judges: Macfarlan JA (principal judgment); Davies J and Hidden AJ (agreeing)

Background

The appellant was sentenced in the District Court on 6 April 2018 to an aggregate term of five years' imprisonment, with a non-parole period of three years. The sentence related to two drug offences: knowingly taking part in the cultivation of a commercial quantity of cannabis plants (58 plants grown hydroponically in a converted bedroom), and supplying 21.1 grams of methylamphetamine. Two further offences were taken into account on a Form 1.

The sentence was structured to run partly concurrently and partly cumulatively with an earlier sentence the appellant was already serving for aggravated break and enter and assault. Police had gathered evidence through telephone intercepts and surveillance, and the agreed facts identified the appellant as the person primarily responsible for the cultivation enterprise.

The appellant sought leave to appeal his sentence on three grounds, challenging the sentencing judge's characterisation of the objective seriousness of each offence and the judge's assessment of his prospects for rehabilitation.

  • Whether the sentencing judge's finding that the cannabis cultivation involved a "high degree of sophistication" was open on the evidence.
  • Whether the finding that the methylamphetamine supply offence involved criminality "greater than moderate" was open on the facts.
  • Whether the sentencing judge erred in assessing the appellant's rehabilitation prospects, particularly in his treatment of a psychological report prepared by Ms Martens.

Decision

Ground 1: Sophistication in cannabis cultivation

The Court of Criminal Appeal rejected the argument that the sophistication finding was not open on the facts. The cannabis plants were grown under discharge lamps with ballasts, reflectors, growth shades, fertilisers, and hoses, all within a specially converted bedroom. The sentencing judge inferred that this equipment was intended to increase yield and profitability. The Court found this inference was plainly available from the agreed facts and that no error was established.

Ground 2: Objective seriousness of the methylamphetamine supply

The Court upheld the finding that the methylamphetamine supply involved criminality greater than moderate. The 21.1 grams supplied was more than seven times the deemed supply threshold of three grams and more than four times the indictable quantity of five grams. The sentencing judge's evaluative assessment was consistent with the approach required following the High Court's decision in Muldrock, which does not require a judge to locate an offence on a hypothetical numerical scale but does require a genuine evaluative assessment of objective seriousness.

Ground 3: Rehabilitation prospects and the psychological report

The sentencing judge declined to accept the submission that the appellant had a good work ethic, noting there was no supporting evidence before him. The Court of Criminal Appeal found no error in this approach. The psychological report by Ms Martens, which was tendered by the Crown, recorded that the appellant had operated his own businesses for about eight years but had ceased doing so approximately ten years before the subject offences. The appellant had also told Ms Martens that drug and alcohol rehabilitation courses were of no use to him because he "already knew it all anyway" and that he only participated because "it looks good on paper." The sentencing judge found the appellant lacked insight into his offending and had no genuine desire to rehabilitate. The Court of Criminal Appeal found this conclusion was supported by the evidence and that no selective misuse of Ms Martens' report had occurred.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • No error was established in a sentencing judge's finding of "high degree of sophistication" in a cannabis cultivation operation where the agreed facts disclosed purpose-built hydroponic equipment intended to increase yield.
  • Under the Muldrock framework, sentencing judges are not required to place an offence on a hypothetical numerical range, but must conduct a genuine evaluative assessment of objective seriousness; the Court of Criminal Appeal confirmed this assessment was properly performed here.
  • A finding that supply of methylamphetamine involved criminality "greater than moderate" was open where the quantity supplied was substantially above both the deemed supply and indictable thresholds under the Drug Misuse and Trafficking Act 1985 (NSW).
  • Where an offender's submission about work ethic or employment history was unsupported by evidence at the sentencing hearing, the sentencing judge was entitled to disregard it.
  • A sentencing judge may differentiate between parts of a psychological report, accepting some portions and declining to act on others, particularly where some portions record statements against the offender's interest while others do not.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 23, 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Yeung v R [2018] NSWCCA 52
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- R v Henry [1999] NSWCCA 111
- Cicciarello v R [2009] NSWCCA 272
- Dang v R [2013] NSWCCA 246
- Lee v R [2019] NSWCCA 106
- Mulato v The Queen [2006] NSWCCA 282
- Pak v R [2015] NSWCCA 45
- Yacoub v R [2019] NSWCCA 57