Andreata v R

[2015] NSWCCA 239

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Andreata v Regina [2015] NSWCCA 239

Hearing dates:

14 August 2015

Date of orders:

07 September 2015

Decision date:

07 September 2015

Before:

Ward JA   at [1]
Adams J   at [2]
Beech-Jones J   at [3]

Decision:

(1)   Leave to appeal be granted.

 

(2)   Appeal allowed.

 

(3)   Set aside the sentences imposed by the District Court on 8 July 2014 for the offence of cultivate a prohibited plant and supply a prohibited drug and, in lieu thereof, sentence the applicant as follows:

 

(a) for the offence of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, to a fixed term of imprisonment of 12 months commencing 8 July 2014 and expiring 7 July 2015;

(b) for the offence of cultivate prohibited plant contrary to s 23(2) of the Drug Misuse and Trafficking Act 1985, to a term of imprisonment comprised of a non-parole period of 18 months commencing 8 October 2014 and expiring 7 April 2016 with a balance of term of 18 months commencing 8 April 2016 and expiring on 7 October 2017.

Catchwords:

SENTENCE APPEAL – cultivate prohibited plant by enhanced indoor means – supply cannabis – applicant found to have cultivated 61 plants – sentencing judge accepted not principal although did not accept role limited to watering plants – error in stating maximum sentence for supply charge conceded – no error in failing to afford 25% discount for cultivate charge – sentence for cultivate charge manifestly excessive – applicant re-sentenced.

Legislation Cited:

- Crimes (Sentencing Procedure) Act 1999 – s 32(1)
- Criminal Appeal Act 1912 – s 6
- Criminal Procedure Act 1986 – s 166
- Drug Misuse and Trafficking Act 1985 – s 23(2), s 25(1), s 32(1), s 33(2)

Cases Cited:

- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Donaghey v R [2015] NSWCCA 119
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- House v R [1936] HCA 40; 55 CLR 499
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Markarian v R [2005] HCA 25; 228 CLR 357
- Nguyen v R [2012] NSWCCA 42
- Pham v R [2009] NSWCCA 266
- Portolesi v R [2012] NSWCCA 157
- R v AB [2011] NSWCCA 229; 59 MVR 356
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Thi Lan Nguyen v R [2009] NSWCCA 181
- Tan v R [2013] NSWCCA 164
- Truong v R [2009] NSWCCA 41
- Wong v The Queen [2001] HCA 64; 207 CLR 584

Category:

Principal judgment

Parties:

Adam Angelo Andreata – Applicant
Regina – Respondent

Representation:

Counsel:
T. Game SC, A. Djemal – Applicant
Ms T. Smith – Respondent

  Solicitors:
L. MacDougall – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s):

2013/011065

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

8 July 2014

Before:

Christie DCJ

Judgment

1. WARD JA: I agree with Beech-Jones J.

2. ADAMS J: I agree with Beech-Jones J.

3. BEECH-JONES J: This is an application for leave to appeal from a sentence imposed by the District Court upon the applicant, Adam Andreata. Mr Andreata pleaded guilty to cultivating not less than the commercial quantity of cannabis plants contrary to s 23(2) of the Drug Misuse and Trafficking Act 1985 (“DMTA”; the “cultivate charge”) and supplying a prohibited drug contrary to s 25(1) of the DMTA, namely 2.45 kg of cannabis leaf (the “supply charge”).

4. As the form of cultivation undertaken by Mr Andreata involved “enhanced indoor means” the commercial quantity applicable to the cultivate charge was 50 cannabis plants although there was a dispute about how many plants in excess of that amount Mr Andreata cultivated. The maximum sentence for the cultivation charge was 15 years imprisonment (or a fine or both) (DMTA; s 33(2)). The maximum penalty for the supply charge was 10 years imprisonment (or a fine or both) (DMTA: s 32(1)(h)).

5. On 8 July 2014 Mr Andreata was sentenced on the cultivate charge to six years imprisonment to date from 8 July 2014 with a non-parole period of three years, and on the supply charge to a fixed term of imprisonment of three years also to date from 8 July 2014. Mr Andreata was also sentenced to concurrent fixed terms of imprisonment of three months on a number of summary charges for possession of steroids pursuant to s 166 of the Criminal Procedure Act 1986. The sentences for those offences have now expired and they are not the subject of this application. In addition there was filed with the Court a list (a “Form 1”) containing three charges of possessing proscribed restricted substances that were associated with the cultivate charge and were to be dealt with in accordance with s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (“the “Sentencing Act”).

6. As I will explain, Mr Andreata asserts the sentencing judge made three errors. The first was that the sentencing judge erred in sentencing him on the supply charge by reference to the wrong maximum penalty. I consider that ground is established. The second is that the sentencing judge erred in only discounting the sentence imposed for the cultivate offence by 20% as opposed to 25%. I do not accept that ground is made out. The third is that the sentence imposed for the cultivate charge was manifestly excessive. I agree that it was. I also consider that a less severe sentence is warranted for both offences and should be imposed (Criminal Appeal Act 1912; s 6(3)).

The offences

7. There was placed before the sentencing judge a statement of facts that were agreed except for the number of cannabis plants being cultivated. It can be summarised as follows.

8. From October 2011 Mr Andreata leased a single story house in Hoxton Park. On 13 January 2013 the fire brigade attended the house in response to a reported fire.  They detected smoke and entered the premises. They discovered cannabis plants being grown hydroponically and notified the police. The police attended and established a crime scene. They obtained a search warrant.

9. The execution of the warrant revealed that a number of rooms had been dramatically modified to facilitate what the statement of facts described as “a sophisticated enhanced hydroponics set-up within a number of grow rooms”. This extended to coverings on the windows and floors, extensive electrical wiring, lampshades and filters suspended from the ceiling.

10. In the main bedroom the search revealed a significant number of prescribed restricted substances, being vials of steroidal agents including testosterone and drostanolone. Mr Andreata’s possession of these items was the basis for the summary charges noted in [5]. A wardrobe leading from the main bedroom contained a significant quantity of small cannabis plants or seedlings. The Crown contended that there were 72 small cannabis plants in this room.

11. In the second bedroom the police found blue plastic sheeting on the floor along with irrigation pipes, shades, globes and enhanced electrical wiring. The third bedroom was similarly configured. The Crown contended that there were seven plants inside the room. In another room the police discovered electrical wiring hanging from chains suspended across the room. Hanging from the ceilings were light fittings. The floor was covered in plastic sheeting on top of which were a number of pots. On top of these pots the police located 2.385 kilograms of cannabis. Another room and the garage to the premises were similarly configured to these rooms. It was agreed that located in the garage were 54 cannabis plants growing inside plastic pots.

12. In total the police recovered 67 lamp shades, 81 globes, 71 transformers and 3 charcoal filters.

The sentencing hearing

13. As noted, at the sentencing hearing there was a dispute about the number of plants seized by the police. Mr Andreata agreed that 61 plants were seized but disputed whether the balance of what was seized included cannabis plants. The Crown tendered a certificate from a drug analyst under s 43 of the DMTA recording that 133 plants were seized. The analyst was cross-examined. The cross-examination revealed that the substance of the dispute was whether some of the seedlings that were located were developed enough to be a “plant”.

14. Mr Andreata swore a detailed affidavit. He stated he was arrested on 13 January 2013 and refused bail. He was released on 28 February 2013. He described his experience in police custody and the remand centre. He was clearly traumatised by the experience. As at the date of sentencing Mr Andreata was 29. He explained that since he left school he had worked in the concreting business and that since his release on bail he had purchased a concrete pump with the help of his father. He undertook contract work on building sites. He explained that he and his partner intended to marry when he had finalised the proceedings and was released from gaol.

15. In his oral evidence at the sentence hearing Mr Andreata explained that in 2011 someone he knew from the gym asked him to “babysit ... a crop”. He refused, but that person raised the topic again in mid-2012. This time he agreed. He said this person agreed to pay the rent on the premises and “pay for the set up”. He said that the crop he was arrested for was the “second one”. He said his “job solely was to babysit”, that is to “make sure there’s water in there for when the timers come on and that’s that”, and stated that he had “nothing to do with pulling it down and selling it”. In cross-examination he agreed that the cannabis that was seized and was the subject of the supply charge came from the “first” crop. He said that he was to be paid between $5,000 to $10,000 for a successful crop and the rent of $550 per week was paid on his behalf.

The sentencing judgment

16. The sentencing judgment was brief. Six matters should be noted.

17. First, the sentencing judge noted the statement of facts and the dispute over the number of plants that were seized. His Honour concluded that “I do not know that a lot turns on it but it would seem to me that the correct number should be somewhere between the agreed amount of about 50 and the full amount of 133”. It was common ground that this is to be taken as a lack of satisfaction that the Crown had demonstrated beyond reasonable doubt that Mr Andreata was cultivating in excess of the number of plants that he agreed were being grown, namely 61 (see R v Olbrich [1999] HCA 54; 199 CLR 270; “Olbrich”). No issue as to the operation of s 43 of the DMTA was raised before his Honour or this Court.

18. Second, the sentencing judge addressed Mr Andreata’s evidence. His Honour accepted that “it [is] a bit difficult to accept that the prisoner has made a full and frank disclosure of the nature of this enterprise”, but also stated “there is no way I can completely reject the fact that he was simply the ‘watering can’”. His Honour found Mr Andreata was motivated by money. There was some debate about what these findings meant. In my view his Honour is to be taken as not accepting that Mr Andreata was the principal of the cultivation but equally was not positively satisfied that Mr Andreata had either fully disclosed his role or that his function was limited to watering the plants.

19. Third, his Honour noted that the applicant had no criminal record other than for destroying property in 2006 in respect of which he received a bond under s 10 of the Sentencing Act.

20. Fourth, the sentencing judge stated that he had backdated the sentence to account for the 45 days Mr Andreata was in custody bail refused.

21. Fifth, in relation to the cultivate charge his Honour stated:

“I original[ly] proposed to pass a sentence of seven and a half years because of the size of this enterprise but of course he is entitled to a deduction for having entered a plea of guilty. On this occasion I propose to deduct 20% of the sentence not 25%. That will reduce the sentence by 18 months to a sentence of six years.

I have no difficulty finding special circumstances for a number of reasons; he has no prior record, he has never been to gaol before, and of course he has pleaded guilty. That will lead me to fix a non-parole period of three years with a period of parole of three years.”

22. Sixth, in relation to the supply charge the sentencing judge stated:

“… I should say in relation to the second charge, that is supply prohibited drug which carries 15 years imprisonment, I sentence the prisoner to a fixed term of three years imprisonment concurrent with the other sentence.” (emphasis added)

23. Although it was not the subject of any complaint on this application, it is notable that at no point in the sentencing judgment did his Honour address Mr Andreata’s prospects of reoffending.

Ground 1: Misstating the maximum penalty for the supply charge

24. Ground 1 of the application contends that the sentencing judge erred in incorrectly stating the maximum penalty for the supply charge and that “in turn [this] caused an error to the Applicant’s overall sentence”. The Crown conceded this error and that it was caused by the Crown misinforming his Honour about the maximum penalty for the charge.

25. In the passage noted in [22] above and elsewhere in the sentencing judgment his Honour stated that the maximum penalty for the supply charge was 15 years imprisonment. This was erroneous. The maximum penalty for the supply charge was 10 years imprisonment (DMTA; s 32(1)(h)).

26. In both the written and oral submissions an issue was raised concerning whether the applicant had to demonstrate that a misstatement of the maximum sentence was in any sense “material” to the sentencing outcome. The Crown contended that a statement by Bellew J in Donaghey v R [2015] NSWCCA 119 at [20] (with whom Bathurst CJ and Simpson J agreed) describing an erroneous statement of the maximum penalty by a sentencing judge as “material” in that it “had the capacity to infect the exercise of the sentencing discretion” is inconsistent with Kentwell v The Queen [2014] HCA 37; 252 CLR 601. I do not agree. The relevant passage in Kentwell is the following (at [42]):

“Spigelman CJ's analysis in Baxter [v R [2007] NSWCCA 237; 173 A Crim R 284] should be accepted. When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration ..., the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing … and the factors that the Sentencing Act …, and any other Act or rule of law, require or permit. … This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion.” (emphasis added)

27. The reference to the judgment of Spigelman CJ in Baxter is to the passage in Baxter at [19] where his Honour described the task imposed on this Court once error in the sentencing process was ascertained in that:

“… submissions in the Court of Criminal Appeal [should] not proceed as if the identification of error created an entitlement on the part of an Applicant to a new sentence, for example, by merely adjusting the sentence actually passed to allow for the error identified. That would be to proceed on the assumption that the sentencing judge was presumptively correct, when the Court has determined that the exercise of the discretion had miscarried. Section 6(3) is directed to ensuring that the Court of Criminal Appeal does not proceed in that manner, but re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides.”

28. The present issue concerns the process of identifying error not the matter identified in the above passage from Baxter which is directed to what happens once error is identified. Consistent with House v R [1936] HCA 40; 55 CLR 499 at 504-505 and the above passage from Kentwell this requires a determination as to whether the sentencing judge “act[ed]” upon the wrong principle. As the latter part of the above passage from Kentwell makes clear there can be some misstatements of legal principle that are irrelevant or immaterial to the sentencing outcome and thus they do not establish that an error was acted upon in the sense discussed in House v R. It is in that context that Donaghey referred to an error as “material”. Given the significance of the maximum penalty to the sentencing process (Markarian v R [2005] HCA 25; 228 CLR 357 at [31]) it is difficult to conceive of a circumstance in which the misstatement of the maximum sentence would not result in House v R error except perhaps, for example, if the balance of the reasons demonstrated that the sentencing judge in fact acted on the basis of the correct maximum penalty.

29. Ground 1 is established.

Ground 2: Failure to discount sentence by 25% on account of the plea of guilty

30. Ground 2 of the application contends that Mr Andreata had an “expectation he would be awarded 25 per cent discount for the utilitarian value of his early plea of guilty and the sentencing judge erred by failing to award the Applicant the 25 per cent discount”.

31. The reference to “the 25 per cent discount” is to the maximum level of discount attributed to the utilitarian value of a guilty plea by the guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 especially at [160].

32. On behalf of Mr Andreata it was submitted that the sentencing judge erred in failing to afford that level of discount for the cultivate charge or at least to explain the basis upon which it was not afforded in the passage set out in [21] above. It is clear from [22] that the sentencing judge erred in not discounting the sentence on the supply charge on account of the applicant’s plea, but error has already been demonstrated with that sentence by ground 1.

33. The Crown submitted that his Honour’s refusal to afford the full discount was attributable to the circumstance that there was a factual dispute litigated at the sentence hearing, and the applicant did not achieve complete success in that the sentencing judge did not accept that he was “simply the ‘watering can’” or that he had made a “full and frank disclosure” (see [18] above). In such circumstances the relevant principle was stated by Johnson J (with whom Bathurst CJ and Hoeben J agreed) in the following passage in R v AB [2011] NSWCCA 229 at [30] to [33] (“AB”):

“30   A person who pleads guilty to a criminal offence is, of course, entitled to dispute facts (beyond the elements of the offence) for the purpose of sentence. Where such a dispute occurs, any contested questions of fact adverse to an offender, must be established to the criminal standard of proof: O'Neil-Shaw v R [2010] NSWCCA 42. An offender is not to be penalised because he or she disputes certain facts on sentence and requires the Crown to prove those facts.

31   The position is analogous to that of a person who goes to trial, who may not be penalised for the manner in which the defence at trial was conducted: Siganto v The Queen [1998] HCA 74; 194 CLR 656 at 666-667 [30]-[34]. However, as is made clear in Siganto v The Queen, a person who goes to trial is not entitled to mitigation for a plea of guilty.

32   Likewise, a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing.

33   These observations will have no application to the determination of the present Crown appeal. However, as a matter of general principle, this Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to an offender.” (emphasis added)

34. The course of events at the sentence hearing does not properly answer the description in [32] of AB in that Mr Andreata did not put the Crown to proof on certain matters and lose. To the extent that the Crown sought to prove a disputed fact at the sentence hearing it failed. However, consistent with AB at [33], Mr Andreata’s lack of success on the matters he asserted was “capable” of eroding the discount that might have otherwise been available on account of his early plea. Further, while it is far from clear, I consider that a fair reading of the sentencing judgment indicates that it was that matter that resulted in the sentencing judge not proffering a full 25% discount.

35. It follows that I reject ground 2.

Ground 3: Cultivate sentence was manifestly excessive

36. Ground 3 of the application contends that the sentences imposed were manifestly excessive. As error has already been demonstrated in relation to the sentence for the supply charge, it is only necessary to consider this complaint so far as it concerns the cultivate charge.

37. The relevant principle governing this ground was stated in Hili v The Queen; Jones v The Queen [2010] HCA 45, 242 CLR 520 at [59] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (“Hili”):

“As was said in Dinsdale v The Queen [[2000] HCA 54 202 CLR 321 at [6]], ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out … in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] (‘Wong’), appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say … in Wong [at [58]], ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.”

38. The submissions made on behalf of Mr Andreata in support of this contention pointed to the head sentence that his Honour commenced with prior to any discount for a plea, namely 7 years and 6 months. They contrasted this with the sentencing judge’s apparent acceptance that Mr Andreata’s role was limited, the relatively small number of plants that were being cultivated in excess of the commercial quantity, the absence of any criminal record of substance, Mr Andreata’s work record and his generally stable family circumstances. The Crown accepted these matters but also pointed to the well established commercial enterprise that was being operated at the premises leased by Mr Andreata. The Crown submitted that the sentence imposed was “stern” but not excessive.

39. The submissions made on behalf of Mr Andreata also referred this Court to a number of previous decisions dealing with cultivation charges and sentencing statistics. Out of deference to those submissions I will outline this material. The following only addresses those decisions to which the Court was taken that relate to the amendments made to the DMTA with effect from 14 July 2006 that prescribed 50 plants grown by “enhanced indoor means” as a commercial quantity (see Pham v R [2009] NSWCCA 266 at [13] to [14] per Latham J).

40. In Nguyen v R [2012] NSWCCA 42 at [35] (“Nguyen 2012”) Davies J summarised four of the decisions relied on. I gratefully adopt his Honour’s summary:

“(a) Nguyen v R [2008] NSWCCA 322

In this matter the Applicant pleaded guilty to a charge of cultivating not less than the commercial quantity of cannabis by enhanced indoor means. There were 105 plants involved. He also pleaded guilty to supplying cannabis in that he had in his possession 3708.7 grams of cannabis leaf. The maximum penalty for the first offence was 15 years imprisonment. His Honour considered that the offences fell within the middle range of seriousness. He allowed a 30% discount for the plea of guilty and for his remorse and contrition. It appears that he was the principal involved in the cultivation. In relation to the first count of cultivation he was sentenced to a total sentence of 5 years imprisonment with a non-parole period of 3 years and 6 months. An appeal to this Court was dismissed.

(b) Thi Lan Nguyen v R [2009] NSWCCA 181 [“Nguyen 2009”]

In this matter the Applicant pleaded guilty to cultivating not less than the commercial quantity of cannabis by enhanced indoor means. The charge involved 172 cannabis plants. The maximum penalty for the offence is 15 years imprisonment. It was found that she agreed to look after the house where the plants were cultivated in return for financial gain and accommodation. There was no evidence to suggest that she initiated the cultivation. She was given a 25% discount for an early plea and sentenced to a period of imprisonment of 4 years with a non-parole period of 2 years and 6 months. An appeal to this Court reduced the sentence to a period of 3 years with a non-parole period of 1 year and 10 months.

(c) Van Cuong Pham v R [2009] NSWCCA 266 [“Pham”]

The Applicant pleaded guilty to an offence of cultivating by enhanced indoor means a commercial quantity of cannabis. There were 112 plants involved. The maximum penalty is 15 years imprisonment. The Judge found that the Applicant's role in the commission of the offence was at a relatively low level, he having been recruited by other unidentified persons. In effect he acted as a "babysitter" for the crop in return for receiving something between $10,000 and $15,000. The Applicant was given a 25% discount for an early plea. He was sentenced to a period of imprisonment of 3 years with a non-parole period of 18 months. An appeal to this Court alleging that the sentence was manifestly excessive was dismissed.

(d) Thi Don Truong v R [2009] NSWCCA 41

The applicant pleaded guilty to the offence of cultivating not less than the commercial quantity of cannabis. The maximum penalty was fifteen years imprisonment. There were 189 plants involved. The judge considered her criminality fell a little below the middle of the range. The applicant received a 25% discount for an early plea and was sentenced to a non-parole period of 18 months with an additional term of two years. On appeal to this court against the severity of the sentence it was held that even if she did not initiate the cultivation enterprise she took it over and maintained it for commercial gain. The appeal against severity was dismissed.”

41. Further, in Nguyen 2012, the applicant pleaded guilty to a charge of cultivating 157 cannabis plants and did so by enhanced indoor means. The sentencing judge concluded that he was the principal of the commercial enterprise behind the cultivation. After allowing a discount of 25%, the sentencing judge imposed a three year non-parole period with an additional term of two years and three months. The same judge dealt with two other co-offenders who pleaded to knowingly take part in the cultivation of the cannabis plants. Each of the co-offenders was sentenced to a term of imprisonment of fifteen months non-parole with an additional term of fifteen months (Nguyen 2012 at [4]). The applicant’s complaint that the sentence imposed on him was manifestly excessive and otherwise showed an unjustifiable disparity with the sentence imposed on the co-offenders was dismissed. In discussing Pham and Nguyen 2009, Davies J noted that it was significant that the offenders in those cases “were not principals in the enterprise” (at [36]).

42. In Tan v R [2013] NSWCCA 164 (“Tan”), the applicant had pleaded guilty to cultivating 53 cannabis plants. He used enhanced indoor means. He admitted he was the principal (Tan at [7]). He was sentenced at first instance to a non-parole period of two years and nine months with an additional term of twenty-one months. This Court concluded that, as the starting point was seven years imprisonment prior to any discount, the sentence was manifestly excessive (at [28] per Latham J with whom Hoeben CJ and Barr AJ agreed). The applicant was re-sentenced to a non-parole period of two years and two months and a balance of term of ten months.

43. It appears that a table of District Court sentences was placed before this Court in Tan. In relation to that table and the JIRS statistics, Latham J stated as follows:

“[26]   Of the 26 District Court cases summarised in the table, eleven relate to the indoor cultivation of more than 50 but less than 100 plants. Only five of those concerned a principal. All but one of those five had no relevant prior convictions. These offenders were between the ages of 20 and 53 and committed the offence for reasons of financial hardship. The sentences imposed ranged between 18 months (suspended) and two years and nine months’ imprisonment.

[27]   Finally, the JIRS statistics reveal that, of 21 cases between October 2005 and September 2012, where the offender pleaded guilty and had no prior criminal history, 20 offenders received between one and three years’ imprisonment. One offender received a sentence of 8 years’ imprisonment. A proportion of these cases may have involved the cultivation of more than 250 plants.

[28]   Having regard to this material, it is clear that the judge’s starting point in the instant case was outside the appropriate range established by current sentencing practice. In my view, the appeal must succeed.”

44. Up to date JIRS statistics were not placed before this Court. However the applicant’s written submissions summarised their effect in terms similar to those noted by Latham J in Tan. The Crown did not dispute the accuracy of that summary.

45. The limitations on the use of prior sentences and statistics were discussed in Hili at [54]. In Hili at [55] the plurality restated what was said in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59], namely:

“[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.” (emphasis in original)

46. What can be discerned by way of “unifying principles” from the above cases is that two important factors relevant to sentencing in this area are the scale and sophistication of the cultivation and the role of the offender whether as a principal or a “babysitter” or something in between. In Pham and Nguyen 2009 the fact that the applicant was not the principal was of particular significance. However in Tan, even though the applicant was the principal, the starting point of seven years was still considered too severe. In this case the starting point for the sentence on the cultivate charge, prior to any discount, was seven years and six months. The cultivation involved a reasonable level of sophistication, but its scale was relatively small in the context of a commercial quantity. The effect of the sentencing judge’s finding concerning his role is set out above. In view of those matters and the other aspects of his case that form part of the “instinctive synthesis” and which are noted above in [38], I am firmly satisfied that the sentence for the cultivate offence is manifestly excessive even allowing for the matters on the Form 1.

47. Ground 3 is established.

Resentencing

48. Having found error in the sentencing process for the supply and cultivate charge the next task for this Court is to undertake an “independent exercise of its discretion” (Kentwell at [35], [42] and [43]) and determine whether some lesser sentence is warranted in law or the “same sentence or a greater sentence is the appropriate sentence” (Criminal Appeal Act 1912, s 6(3); Kentwell at [43]). For the reasons that follow I consider that a lesser sentence is warranted.

49. If error is demonstrated then this Court can receive evidence concerning events that have occurred since the time of sentencing (Kentwell at [43]). In this case Mr Andreata has sworn an affidavit indicating the work he has undertaken in custody and that his behaviour in custody has been exemplary. This evidence is not challenged. I accept it.

50. Otherwise it is not clear whether the “independent exercise of the discretion” referred to in Kentwell that is required of this Court is capable of encompassing a re-agitation of findings of primary fact made by a sentencing judge that are not affected by evidence relating to events since the time of the sentencing at first instance. If it did then difficulties may arise in respect of findings made by the primary judge which derive from the benefit that he or she had in observing a witness give evidence. It is unnecessary to consider this further as neither party sought to re-agitate any findings of the kind made by the sentencing judge. I will proceed on the basis that they are accepted. However on behalf of Mr Andreata it was submitted that, even if ground 2 was rejected, this Court should reassess the level of discount attributable to Mr Andreata’s early plea to 25%. Although I consider that it was open to the sentencing judge to discount the sentence by 20%, on fresh consideration I consider that a 25% discount is appropriate. The substantial issue of fact debated at the sentence hearing concerned the amount of plants being cultivated. Mr Andreata succeeded on that issue. Although he did not convince the sentencing judge that he had been completely frank, bearing in mind the onus of proof resting on the Crown, he was largely “successful” overall.

51. In considering the approach to resentencing three further matters should be noted. First, as noted above, the sentencing judge made no express finding concerning Mr Andreata’s prospects of rehabilitation. I have already noted his brief criminal record and the unchallenged evidence concerning his work history, his family circumstances and his behaviour in prison. In view of those matters I consider that he has strong prospects for rehabilitation and low prospects of reoffending.

52. Second, the Crown submitted that any proper exercise of the sentencing discretion required that there be some accumulation between any sentence for the cultivate charge and the supply charge, especially as Mr Andreata conceded that the cannabis the subject of the supply charge related to a different crop to that the subject of the cultivate charge (see [15]). Senior Counsel for Mr Andreata, Mr Game SC, conceded that some accumulation was appropriate. The concession was properly made (see Portolesi v R [2012] NSWCCA 157 at [61]). However in considering the degree of accumulation I note that it was Mr Andreata who first disclosed that it came from another crop and, although it is not clear, it seems unlikely that the Crown could have proven that without his having given evidence to that effect.

53. Third, I consider that it is appropriate to find special circumstances and vary the relationship between the overall sentence and the non-parole period for the cultivate charge. This is in part because of the effect of partial cumulation with the sentence for the supply charge and in part because of the subjective case mounted by Mr Andreata bearing in mind that he is serving his first time in custody. Again I did not understand the Crown to resist the making of any such finding.

54. In relation to the supply charge I consider that the above findings warrant the imposition of a fixed term of 12 months imprisonment to date from the time of sentence, namely 8 July 2014. In relation to the cultivate charge I consider that a head sentence of three years is warranted and that nine months of that sentence should overlap with the sentence for the supply charge. This yields a total effective head sentence of three years and three months. In relation to the cultivate charge I would impose a non-parole period of eighteen months on that charge to reflect the finding of special circumstances. The combined effect of the sentences that I propose is that the minimum period Mr Andreata will serve in custody is twenty-one months. Under these sentences he will be eligible for release on parole in April 2016.

55. Accordingly the orders I propose are:

1. Leave to appeal be granted.

2. Appeal allowed.

3. Set aside the sentences imposed by the District Court on 8 July 2014 for the offence of cultivate a prohibited plant and supply a prohibited drug and, in lieu thereof, sentence the applicant as follows:

1. for the offence of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, to a fixed term of imprisonment of 12 months commencing 8 July 2014 and expiring 7 July 2015;

2. for the offence of cultivate prohibited plant contrary to s 23(2) of the Drug Misuse and Trafficking Act 1985, to a term of imprisonment comprised of a non-parole period of 18 months commencing 8 October 2014 and expiring 7 April 2016 with a balance of term of 18 months commencing 8 April 2016 and expiring on 7 October 2017.

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Decision last updated: 08 September 2015