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Court of Criminal Appeal 25 February 2022

Burrows v R

[2022] NSWCCA 32

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Burrows v R [2022] NSWCCA 32
Court: NSW Court of Criminal Appeal
Date: 25 February 2022
Judge(s): Leeming JA (primary judgment); Rothman J and Harrison J agreeing

Background

The appellant pleaded guilty in the District Court to two counts of cultivating cannabis under the Drug Misuse and Trafficking Act 1985 (NSW): one count involving 39 outdoor plants (cultivating an indictable quantity) and a second count involving 82 indoor plants grown by hydroponic means (cultivating a commercial quantity, the threshold being 50 plants). Two further offences were placed on a "Form 1" document and taken into account when the second count was sentenced. A Form 1 is a procedural mechanism under the Crimes (Sentencing Procedure) Act 1999 (NSW) that allows additional charges to be acknowledged and incorporated into sentencing without separate convictions being recorded.

The Form 1 offences were: supplying cannabis above the indictable quantity (arising from 5.395 kilograms of dried cannabis leaf found on a drying rack in a bedroom), and dealing with proceeds of crime (arising from $8,450 in cash, bundled in $50 and $100 notes, found concealed in a zip-lock bag inside the appellant's oven). Police also found significant cultivation equipment, growing guides, and nutrient additives throughout the premises.

The District Court sentenced the appellant to an aggregate term of 3 years and 6 months imprisonment, with a non-parole period of 20 months. The primary judge assessed the offending as a "small, moderately well organised cottage industry" and declined the appellant's claim that the cannabis was grown entirely for personal use. The appellant then sought leave to appeal, arguing error in the primary judge's reasoning and that the sentence was manifestly excessive.

  • Whether the primary judge erred in finding, to the requisite standard, that the cash found in the oven was the proceeds of cannabis sales.
  • Whether the primary judge's characterisation of the operation as a "cottage industry" or "small commercial enterprise" introduced error into the assessment of objective seriousness.
  • Whether the financial reasoning used to assess the likelihood of supply was flawed.
  • Whether the aggregate sentence of 3 years and 6 months was manifestly excessive.

Decision

On the cash and the Form 1 admissions. Leeming JA found no error in the primary judge's conclusion that the cash was proceeds of crime. The critical point was that the appellant had formally admitted guilt to the proceeds of crime offence by placing it on the Form 1. That admission constituted an acknowledgement that the $8,450 was in fact proceeds of crime. The court applied the principle from R v Olbrich (1999) 199 CLR 270 that a sentencing court may draw reasonable inferences from the facts, and the formal admission on the Form 1 was itself a sufficient basis for the finding.

On the "cottage industry" characterisation. The appellant argued that describing the operation as a cottage industry elevated its seriousness beyond what the specific charged offences warranted. Leeming JA rejected this. The characterisation was a description of the overall context, not an inflation of the charge-specific conduct. The primary judge had expressly assessed the individual counts as below the mid-range of objective seriousness, and the surrounding description was consistent with and supported by the evidence of an organised, multi-site cultivation operation.

On manifest excess. The Court of Criminal Appeal noted that approximately 21% of persons sentenced in NSW Higher Courts for the equivalent commercial cultivation offence since 2018 received three years or more. The Form 1 offending, particularly the supply of a substantial quantity of cannabis and the proceeds of crime charge, added materially to the sentencing exercise. The three cases cited by the appellant in support of manifest excess did not involve offenders with a prior cultivation conviction, a factor the primary judge treated as relevant to specific deterrence.

The court also observed that, prior to formally imposing sentence, the primary judge had indicated his intended sentence. Defence counsel at the time responded that the proposed sentence was "right." While the court noted it was not necessary to rely on this, it was consistent with a conclusion that the sentence was not manifestly excessive.

Orders Made

  • Extension of time to file the notice of appeal granted to 1 September 2021.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Placing an offence on a Form 1 constitutes a formal admission of guilt. The Court of Criminal Appeal confirmed that such an admission can itself support a finding, at sentence, that the conduct underlying the Form 1 charge actually occurred, including a finding that cash was proceeds of crime.
  • A sentencing judge's use of contextual language such as "cottage industry" does not necessarily constitute error, provided the individual counts are separately assessed for objective seriousness and the language accurately reflects the evidence.
  • Under R v Olbrich, sentencing courts may draw reasonable inferences from established facts; a Form 1 admission provided the factual foundation for such an inference without requiring separate proof to a higher standard.
  • Statistical sentencing data showing that 21% of comparable offenders received three years or more weighed against manifest excess, particularly where the sentence also reflected serious Form 1 offending and prior relevant criminal history.
  • Pointing to particular comparable cases is a difficult path to establishing manifest excess, especially when those cases are materially distinguishable on factors such as prior convictions and the presence of serious associated offending.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1)(a), 23(2)(a), 32, 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 33, 44, 53A
- Criminal Appeal Act 1912 (NSW), ss 5, 10
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- R v Davidson (2009) 75 NSWLR 150; [2009] NSWCCA 150
- Crowley v R [2017] NSWCCA 99
- Kresovic v R [2018] NSWCCA 37
- R v Roberts [2011] NSWDC 212