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Court of Criminal Appeal 2 August 2023

Carl v R

[2023] NSWCCA 190

DrugsFraud & dishonestyFirearms & weapons

Citation: Carl v R [2023] NSWCCA 190
Court: Court of Criminal Appeal, NSW
Date: 2 August 2023
Judges: Leeming JA, Yehia J, Weinstein J

Background

The applicant pleaded guilty to cultivating 36 cannabis plants by enhanced indoor means for a commercial purpose. Two further offences were taken into account on sentence: dealing with property suspected of being proceeds of crime (cash totalling $5,400) and unauthorised possession of a prohibited weapon (an extendable baton).

In October 2022, the District Court sentenced the applicant to 3 years and 6 months imprisonment with a non-parole period of 2 years and 1 month. The applicant had prior good character and significant mental health conditions, and the Crown had conceded at the sentencing hearing that the applicant was genuinely remorseful.

The applicant sought leave to appeal on five grounds, challenging the sentencing judge's treatment of mental health evidence, the finding on remorse, the assessment of objective seriousness, the weight given to good character, and the overall severity of the sentence.

  • Whether the sentencing judge erred in failing to address the relevance of the applicant's mental health conditions to general deterrence, retribution, denunciation, and the prospect of more onerous conditions in custody
  • Whether the applicant was denied procedural fairness when the sentencing judge made a qualified finding on remorse after both parties had agreed that genuine remorse was established
  • Whether the sentencing judge erred in elevating objective seriousness on the basis that the applicant did not act alone
  • Whether error was established in the weight given to the applicant's good character
  • Whether the sentence was manifestly excessive

Decision

Ground 1: Mental health evidence. Yehia J (Weinstein J agreeing; Leeming JA not deciding) found that the sentencing judge failed to address the way in which the applicant's mental health conditions moderated general deterrence, retribution, and denunciation. The judge also did not consider whether the applicant would experience more onerous conditions in custody as a result of those conditions. Although the mental health issues were not causally connected to the offending, the expert evidence was still relevant to mitigation on those bases. Ground 1 was made out.

Ground 2: Procedural fairness and remorse. The Crown had expressly accepted that the applicant was genuinely remorseful and conceded that the relevant statutory mitigating factor applied. The sentencing judge acknowledged the Crown's position but nonetheless made a qualified finding that remorse was "somewhat limited," without alerting either party that the agreed position might not be accepted. The Court held unanimously that this deprived the applicant of the opportunity to be heard on the extent and significance of his remorse. Leeming JA emphasised that the practical injustice was clear: had the parties been put on notice, submissions could have been made in response. Ground 2 was made out.

Grounds 3 and 4: Objective seriousness and good character. The Court found no error in the sentencing judge's mid-range assessment of objective seriousness. The observation that the applicant did not act alone did not materially alter that assessment, and the finding was open given the number of plants, the applicant's fingerprints on items in the grow room, and the level of organisation involved. Similarly, no error was established in how the sentencing judge weighted the applicant's good character, as the determination of appropriate weight falls within the sentencing judge's discretion. Grounds 3 and 4 were not made out.

Resentencing. Having established error on grounds 1 and 2, the Court proceeded to resentence. The Court found that the applicant's mental health and cannabis addiction could be comprehensively and effectively treated in the community, and that an Intensive Correction Order (ICO) was more likely than full-time detention to reduce his risk of reoffending. The Court was satisfied that community safety was best served by imposing an ICO. By the time of resentencing, the applicant had already served approximately 9 months in custody.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • District Court sentence set aside
  • Applicant resentenced to a term of imprisonment of 1 year, 2 months and 27 days, to be served by way of an Intensive Correction Order, commencing 10 July 2023
  • Standard ICO conditions imposed: no further offences; submission to Community Corrections guidance and supervision
  • Additional condition: the applicant to arrange an appointment with his general practitioner within 7 days of release for an updated Mental Health Treatment Plan, and to comply with that plan
  • Applicant directed to attend the Community Corrections Office at Wyong within 7 days of the order date

Key Takeaways

  • A sentencing judge who intends to depart from an agreed position between the parties on remorse must put the parties on notice and afford them an opportunity to be heard. Failing to do so constitutes a denial of procedural fairness, regardless of whether the judge's ultimate finding was available on the evidence.

  • Mental health evidence, even where it is not causally linked to the offending, remains relevant at sentence as a basis for moderating general deterrence, retribution, and denunciation, and as a factor going to more onerous conditions in custody. A failure to address these matters constitutes an error of principle.

  • No error arose in assessing objective seriousness at the mid-range for commercial cannabis cultivation involving 36 plants, where the evidence demonstrated the applicant's hands-on involvement and the organisation of the enterprise.

  • The weight to be given to an offender's good character under s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW) falls within the sentencing judge's discretion, and an appellate court will not interfere merely because a different weight might have been assigned.

  • In resentencing, the Court of Criminal Appeal imposed an ICO on the basis that community-based treatment was more likely to address the applicant's risk of reoffending than continued full-time custody, with the applicant's 9 months already served in custody factored into the revised term.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7(1), 21A(3)(f), 21A(3)(i), 32(1), 66
- Crimes Act 1900 (NSW), s 193C(2)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Can v R [2023] NSWCCA 179
- DC v R [2023] NSWCCA 82
- Barbieri v R [2016] NSWCCA 295
- Luque v R [2017] NSWCCA 226
- ES v R [2019] NSWCCA 262
- Mustafa v R [2021] NSWCCA 164
- AH v R [2020] NSWCCA 279
- Lloyd v R [2022] NSWCCA 18
- Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297
- Mulato v R [2006] NSWCCA 282
- Hartley v R [2020] NSWCCA 330
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
- Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25
- Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39
- Mandranis v R [2021] NSWCCA 97; 289 A Crim R 260