Clarke v R - [2015] NSWCCA 232

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clarke v R [2015] NSWCCA 232
Hearing dates: 5 June 2015
Date of orders: 28 August 2015
Decision date: 28 August 2015
Before: Basten JA at [1];
Garling J at [39];
Hamill J at [124]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL – appeal – sentence – offence of cultivating prohibited plant in large commercial quantity – guilty plea – disputed question of fact as to whether all items located were “plants” – whether sentencing judge erred in finding as to number of “plants” – proper scope of appeal against sentence - whether finding of fact open to sentencing judge – whether sentencing judge failed to properly take into account the applicant’s subjective circumstances – whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A, 54B
Criminal Appeal Act 1912 (NSW), ss 5, 5F, 6
Criminal Procedure Act 1986 (NSW), s 33
Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 23, 33, 36Z, 43; Sch 1
Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71
Cases Cited: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
AB v R [2014] NSWCCA 339
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Aoun v R [2011] NSWCCA 284
Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284
Camm v R [2009] NSWCCA 141
CO v R [2011] NSWCCA 148
Colville v R [2015] NSWCCA 149
Crawford v R [2013] NSWCCA 269
Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19
Filippou v The Queen [2015] HCA 29
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
House v The King (1936) 55 CLR 499
Kardoulias v R [2005] NSWCCA 456; 159 A Crim R 252
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Kyriakou v The Queen [1988] 9 Leg Rep SL 4
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
M v The Queen (1994) 181 CLR 487
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 351
Muldrock v R [2011] HCA39; (2011) 244 CLR 240
Peters v R [2013] NSWCCA 324
The Queen v Francis-Wright [2005] VSCA 79
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Clarke [2014] NSWDC 35
R v Ion (1996) 89 A Crim R 81
R v Khouzame [2000] NSWCCA 505
R v Kurtic (1996) 84 A Crim R 57
R v Kyriakou (1987) 29 A Crim R 50
R v Ly [2010] NSWDC 229
R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
R v O’Donoghue (1988) 34 A Crim R 397
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
SBF v R [2009] NSWCCA 231; 198 A Crim R 219
Singer v Berghouse (1994) 181 CLR 201
Turnbull v Medical Board (NSW) [1976] 2 NSWLR 281
Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73
Texts Cited: Filippou v The Queen [2015] HCATrans 104
Category: Principal judgment
Parties: Joshua Jack Clarke (Applicant)
Crown
Representation:
Counsel:
G Bashir SC (Applicant)
N Williams (Crown)
Solicitors:
Tully & Chiper Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/348940
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 March 2014

Before:

Berman DCJ

File Number(s):

2012/348940

Judgment

BASTEN JA: The applicant, Joshua Jack Clarke, entered a plea of guilty to an offence of cultivating a large commercial quantity of cannabis by enhanced indoor means, in contravention of s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (“Trafficking Act”). The large commercial quantity is 200 plants:[1] the sentencing judge found that “the number of growing cannabis plants was close to 2,000”. The applicant’s role in the cultivation was that of an employee, not a principal, but he clearly had a significant role in a sophisticated operation. The sentencing judge (Berman DCJ) sentenced him on the basis that “he was paid to do what he did and he did it for about a month.”[2]
1. Trafficking Act, s 33(4) and Sch 1, col 5.
2. R v Clarke [2014] NSWDC 35.
The sentence imposed involved a non-parole period of four years and a head sentence of seven years. The sentence had been reduced by 25% to reflect the utilitarian value of his plea of guilty. Thus, absent the plea, he would have received a sentence with a non-parole period of five years and four months.
The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.
The provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) dealing with the imposition of a standard non-parole period require that when sentencing for an offence to which a standard non-parole period applies, the court is, if not setting the standard period as the non-parole period for the offence, to give reasons for setting a longer or shorter period. [3] The standard non-parole period is said to represent the non-parole period for an offence in the middle of the range of objective seriousness. [4] One reason not to set a standard non-parole period is that the judge considers that the offence in question does not fall within the middle of the range of objective seriousness. However, the reasons for which there may be variation from the standard are said to be “only those referred to in s 21A.”[5] Section 21A sets out numerous factors which are either aggravating or mitigating factors to be considered in the sentencing process. However, the court is “not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.”[6]
3. Sentencing Procedure Act, s 54B(2) and (4).
4. Sentencing Procedure Act, s 54A(2).
5. Sentencing Procedure Act, s 54B(3).
6. Sentencing Procedure Act, s 21A(4).
Whether the sentencing judge considered that the offence fell within the middle of the range of objective seriousness is not entirely clear: there were a number of factors (other than the quantity involved and the sophistication of the operation) which might, in any event, have militated against the imposition of the standard period (or a non-parole period within a similar range). However, in noting that the sentence he was about to impose involved a non-parole period significantly below the standard period, the judge stated, “Were it not for the matters with which I began these remarks on sentence I would have chosen a much longer non-parole period.”
In earlier remarks the judge referred to his own earlier reasoning in R v Ly [7] and stated that “sentences imposed upon those convicted of cultivating a large commercial quantity of cannabis by enhanced indoor means do not appear to have reflected the seriousness with which the legislature says such offences should be treated.” The judge then noted that it was “an idiosyncratic view” and not consistent with the view taken by this Court with regard to sentences for such offences.
7. [2010] NSWDC 229.
These reasons demonstrated a real and understandable dilemma. There is no doubt that, with respect to some offences for which standard non-parole periods are specified, more weight is given to the standard than in other cases. That is partly because there appears to be a degree of arbitrariness in fixing the standard periods. However, for present purposes, the significance of the statement by the sentencing judge is that, because it expresses a reasonable and understandable concern, it is not possible to support a ground which alleges that he placed “too much emphasis on the standard non-parole period” (being ground 1 on the proposed appeal). At least that is so unless it could be said that he did not follow his own precept. However, as explained by Garling J, the sentence imposed was not outside the range indicated by earlier judgments of this Court. It follows that ground 1 cannot succeed.
I agree with Garling J that ground 3 should also be rejected. It remains to consider ground 2 which alleged error on the part of the sentencing judge in his finding as to the number of plants being cultivated by the applicant. Two preliminary issues arise for consideration. The first is the status of two certificates prepared by an analyst; the second concerns the role of this court in reviewing fact-finding on sentence.

Certificates of analysis

The prosecution tendered two certificates signed by an analyst, pursuant to s 43(2) of the Trafficking Act. The first certificate stated that the officer had “analysed 1,997 plants and [certified] that they were all cannabis plants”. A second certificate made a separate statement with respect to nine plants.
There was no dispute that the plants were cannabis: the question was whether they were all “plants” for the purposes of the offence. A significant number were “seedlings of 10cm in height”: that they were cuttings of cannabis was not in doubt but there was a question as to whether each constituted a “growing plant” for the purpose of the definition of “cannabis plant” in s 3(1) of the Trafficking Act.
There is no indication in the statute as to when vegetable material identifiable as cannabis becomes and ceases to be a “growing plant” for the purposes of the offence. The case was run on the basis that the correct approach was that identified by the Victorian Court of Appeal in The Queen v Francis-Wright [8] where the Court was concerned with the adequacy of directions given to a jury as to what constituted a “plant” for an offence of cultivation under the relevant Victorian legislation. [9] Callaway JA noted that although “plant” was an ordinary English word, it had a range of meanings. [10] He considered that “a cutting becomes a plant … when it develops a root.”[11] He rejected the proposition that it needed “a root system” or that it needed to be viable, matters which would require expert evidence.
8. [2005] VSCA 79.
9. The charge was laid under the Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71(1)(a).
10. Francis-Wright at [2].
11. Francis-Wright at [3].
Williams AJA (with whom Batt JA agreed) stated:[12]

“In my opinion, the meaning of the word ‘plant’ under the relevant provisions of the Act included a cutting which had struck or established roots. It could then be regarded as an entity separate from the plant from which it had been cut and differentiated from a ‘part’ of that plant.”
12. Francis-Wright at [42].

The Court in Francis-Wright held that the word “plant” in its statutory context also included a dead plant: clearly the latter conclusion would not apply with respect to offences under the Trafficking Act involving a “prohibited plant”, or in the particular case, a “cannabis plant”, the definitions of each requiring that there be a “growing plant” of a relevant description. On the other hand, the use of the expression “growing plant” provides the real basis for the conclusion that a cutting without roots would not fall within the statutory language.
What appears not to have been appreciated in the course of the sentencing proceedings was that the certificate of the analyst did not provide evidence as to the number of growing plants. For this purpose it is necessary to have regard to the terms of s 43 of the Trafficking Act, which relevantly provides:

43   Certificate evidence
(1)   Any analyst analysing any plant or substance submitted to the analyst or under whose supervision the analysis of any plant or substance submitted to the analyst is carried out may give a certificate of the result of the analysis.
(2)   In any legal proceedings under this Act, the production of a certificate, purporting to be signed by an analyst, shall be prima facie evidence of the identity of the plant or substance analysed, the quantity or mass of the plant or substance analysed and of the result of the analysis, without proof of the signature, employment or appointment of the person appearing to have signed the certificate.
(3)   Any appointed person analysing any plant submitted to the person may give a certificate of the result of the analysis.
(4)   In any legal proceedings under this Act, the production of a certificate, purporting to be signed by an appointed person, is prima facie evidence of:
(a)   the identity of the plant analysed, and
(b)   the quantity or mass of that plant,
without proof of the signature or appointment of the person appearing to have signed the certificate, but only if the plant identified is cannabis plant or cannabis leaf.
…
(6)   In this section:
…
plant includes any part of a plant, and the achene and seed of a plant.

Whether the certificates of analysis were tendered under s 43(2) or 43(4) is not clear: the relevant officer gave oral evidence and said that he was an appointed person, for the purposes of subs (4). Importantly, s 43 does not provide for a determination of whether a particular plant is a “growing plant” and, indeed, the broad definition of “plant” in s 43(6) does not discriminate between seeds, parts of plants and whole plants. Accordingly, to the extent that a certificate may identify “the plant analysed” and “the quantity … of that plant” it is not a certificate as to the number of growing plants. It was, therefore, necessary to call someone who had inspected the plants, or at least photographed them, to give evidence of roots or root systems. In fact, the analyst was called and gave evidence of inspecting a sample of cuttings. There was a challenge based on the proposition that the sample of six seedlings from tubs containing 790 seedlings was an inadequate basis from which to infer that they all had roots. In fact the sentencing judge did not infer that they all had roots but that most of them did: the evidence that all 790 were of a similar size and in apparent good health supported such an inference.
This was not a case in which the precise number of growing plants was important. Once the threshold of 200 was reached, the sentencing exercise did not require determination of whether there were 1,800 growing plants or 2,000, or merely a figure of that order. The inference drawn by the judge that “the number of growing cannabis plants was close to 2,000” was undoubtedly open to him; whether his further comment that “anything that was not a plant, because it did not have a root, would probably have shortly become a plant” involved error is a separate question. If it purported to be a finding on the probabilities, or if it purported to include such cases as growing plants at the time of the offence, there would have been error. However, it should not be so understood; rather it was a contextual fact of no immediate relevance to the finding as to the size of the actual population of growing plants.
It is not in doubt that a finding of fact adverse to an offender on a sentencing hearing must be established beyond reasonable doubt if it is to be taken into account as an aggravating factor. [13] What is more doubtful is the proposition that an appeal must fail if this Court is satisfied that a particular finding was “open” on the evidence.
13. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
This question gives rise to an issue both as to the function of this Court on an appeal against sentence and what is meant by saying that a finding is “open”. With respect to the second issue, to say that a finding is not open may mean that the evidence could not, as a matter of law, support a finding to the requisite standard. On the other hand, it may mean something less than that, although it is hard to identify a precise meaning, other than that this Court would not be satisfied beyond reasonable doubt on the available evidence. It is this formulation which gives rise to a question as to the proper scope of the appeal.

Scope of appeal against sentence

An appeal is available to a person convicted on indictment “with the leave of the court against the sentence passed on the person’s conviction.”[14] The statute does not prescribe the grounds or basis for such an appeal. Nor, in contrast to other more recently introduced provisions, does it state whether fresh, additional or substituted evidence may be relied upon by the offender. [15] The Act does, however, confer powers in determining such an appeal:

6 Determination of appeals in ordinary cases
…
(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
14. Criminal Appeal Act 1912 (NSW), s 5(1)(c).
15. Compare, for example, s 5F(4), with respect to an appeal against an interlocutory judgment or order.

In Kentwell v The Queen [16] the joint reasons stated: [17]

“Notwithstanding the breadth of its language, it was settled at an early stage that the appellate court's authority to intervene is dependent upon demonstration of error. [18] The significance to the function of the appellate court of the distinction between specific error, of any of the kinds identified in House v The King, [19] and the conclusion of manifest excess or inadequacy is explained by Hayne J in AB v The Queen. [20] In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”
16. (2014) 252 CLR 601; [2014] HCA 37.
17. Kentwell at [35] (French CJ, Hayne, Bell and Keane JJ).
18. Skinner v The Queen (1913) 116 CLR 336 at 340.
19. (1936) 55 CLR 499; [1936] HCA 40.
20. [1999] HCA 46; (1999) 198 CLR 111 at 160 [130]; [1999] HCA 46. See also at 151-153 [104]-[107] per Kirby J.

The Court accepted a statement of Spigelman CJ in Baxter v The Queen [21] clarifying a passage in an earlier judgment, R v Simpson:[22]

“The import of par [79] of Simpson was to ensure that submissions in the Court of Criminal Appeal did 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.”
21. [2007] NSWCCA 237; 173 A Crim R 284 at [19].
22. (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [79].

Having accepted the principle, the joint reasons in Kentwell continued:[23]

“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, [24] 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[25] and the factors that the [Sentencing Procedure Act][26] , and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be ‘warranted in law’. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not ‘warranted in law’ unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. 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 Procedure 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.”

23. Kentwell at [42].
24. House v The King at 505 per Dixon, Evatt and McTiernan JJ.
25. Sentencing Procedure Act, s 3A.
26. Sentencing Procedure Act, s 21A.

Returning to the circumstances in Kentwell itself, the Court then explained:[27]

“In assessing the prospects that the appellant's appeal would succeed, it was wrong to determine that the appellant had failed to demonstrate that substantial injustice was occasioned by the sentence. This is best understood as a conclusion that the aggregate sentence did not impress the Court, upon summary review, as excessive. The appellant is entitled to be sentenced according to law. The issue for the Court's consideration was whether upon the hearing of the appeal it might conclude, taking into account the full range of factors including the evidence of the appellant's progress in custody and current mental state, that a lesser sentence is warranted in law.”
27. Kentwell at [44].

For completeness, it is appropriate to identify the passage in AB v The Queen [28] referred to with approval in Kentwell, in which Hayne J had explained the difference in approach required where a specific error has been identified, as opposed to a manifestly excessive sentence. Hayne J stated: [29]

“The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.”
28. (1999) 198 CLR 111; [1999] HCA 46.
29. AB at [130] – emphasis in original.

This Court continues to identify the scope of the appeal against sentence available to an offender by reference to a statement of Hunt J in R v O’Donoghue [30] in the following terms:

“It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing is no more than the right to have a superior court interpose to redress the error of the court below …. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. … It is only where the very narrow basis upon which this Court can intervene in relation to a trial judge’s findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice … Kryiakou (1987) 29 A Crim R 50 at 60-61.”
30. (1988) 34 A Crim R 397 at 401.

The language adopted in O’Donoghue should be approached with caution for a number of reasons. First, it was concerned, as the last sentence in the quotation indicates, with an appeal against conviction, to be addressed under s 6(1), not s 6(3). That said, it involved a challenge to a finding by the trial judge on a voir dire, relevant to the admissibility of evidence. Secondly, although there was reference to the judgment in a civil case as authority for the first proposition,[31] the apparent dismissal of discussion of the scope of civil appeals may not be of assistance. Thus, in Lacey v Attorney-General (Qld) [32] the joint reasons [33] expressly adopted a statement of relevant classes of appeal derived from Turnbull v Medical Board (NSW). [34] (Lacey itself involved a consideration of the scope of a right of appeal conferred on the Attorney-General with respect to a sentence in a criminal case.)
31. Reference was made to The Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109; [1931] HCA 34.
32. (2011) 242 CLR 573; [2011] HCA 10 at [57].
33. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
34. [1976] 2 NSWLR 281 at 297-298 (Glass JA).
Thirdly, O’Donoghue appears to equate an appeal by way of rehearing with what is usually described as an appeal in the strict sense. [35] By contrast, an appeal by way of rehearing depends upon the demonstration of “some legal, factual or discretionary error” on the part of the primary judge. [36] Furthermore, appeals by way of rehearing cover a range of circumstances including a power to receive evidence, identified in a range of terminology.
35. Lacey at [57], class 1.
36. Lacey at [57], class 3, referring to Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] (Gaudron, McHugh, Gummow and Hayne JJ).
Fourthly, O’Donoghue was decided in 1988; some eight years later in R v Ion [37] Hunt CJ at CL stated that the only basis upon which an appeal would be allowed from a trial by judge alone would be “if error had been demonstrated in the sense that there was no evidence to support a particular finding, or that the evidence is all one way, or that the judge misdirected himself or herself, leading to a miscarriage of justice”. [38]
37. (1996) 89 A Crim R 81.
38. Ion at 85-86.
Although that statement was challenged as erroneous in Fleming v The Queen, [39] neither it nor the principle established in O’Donoghue (also referred to in Fleming [40] ) was expressly overruled. However, comment was made in Fleming with respect to a third decision of Hunt CJ at CL, R v Kurtic, [41] where it was said that “an appeal against conviction from a trial by judge alone pursuant to s 33 of the Criminal Appeal Act [presumably meaning the Criminal Procedure Act 1986 (NSW)] is not an appeal by way of rehearing”. [42] Dealing with that proposition, the Court in Fleming stated:[43]

“The phrase ‘by way of rehearing’ has been used to identify various characteristics of the appellate process and does not necessarily have a fixed or settled meaning. It is best used only when required by a statutory text. The phrase is not found in the legislation with which this appeal is concerned and does not immediately assist as a criterion of differentiation in identifying the incidents of the appellate process for which the legislation does provide.”
39. (1998) 197 CLR 250; [1998] HCA 68 at [15].
40. Fleming at [18].
41. (1996) 85 A Crim R 57 at 60.
42. See also Filippou v The Queen [2015] HCA 29 at [48] (French CJ, Bell, Keane and Nettle JJ) and [89] (Gageler J).
43. Fleming at [21].

That warning alone might have sufficed to discourage this Court from repetition of the similar language used in O’Donoghue.
Fifthly, the last sentence in the passage from O’Donoghue set out above relied for support on a passage in Kyriakou in this Court. Kyriakou had been the subject of a special leave application to the High Court. In refusing special leave, Mason CJ (speaking for a Full Court [44] ) said:

“Although the judgment of the Court of Criminal Appeal does not accurately express the role of an appellate court when a challenge is made to such a finding of fact by a trial judge, the Court is not persuaded that the Court of Criminal Appeal failed to examine for itself the critical issue of fact.” [45]
44. Mason CJ, Wilson, Deane, Dawson and Gaudron JJ.
45. Kyriakou v The Queen [1988] 9 Leg Rep SL 4.

Reading together the second and third sentences in the extract from O’Donoghue set out above, it appears that factual error can only be found where there is, in effect, an error of law or something very close to it. That would not accord with the explanation in Kyriakou that the appeal court should examine for itself the issue of fact. Nor does it accord with the approach identified in House v The King, [46] referring to appellable error as including the sentencing judge having “mistaken the facts”.
46. House at 505.
Finally, the limited approach to the identification of factual error asserted in O’Donoghue is not supported by the recent statement from Kentwell set out above: there, the joint reasons accepted that the exercise of the discretionary power would miscarry where the judge “mistakes the facts or does not take into account some material consideration”. (There is no indication that the reference to a material consideration was intended to refer to a mandatory consideration, in the sense that failure to take it into account would demonstrate error of law.)
In some circumstances, factual findings will themselves involve an evaluative judgment, of a kind similar to the exercise of a discretionary power. [47] No doubt the appellate court should exercise restraint in interfering with such findings. However, if the court is satisfied that the sentencing judge made a mistake with respect to a particular factual finding, which was material to the exercise of the discretionary power, the court should identify error and then enter upon its own consideration of the appropriate sentence.
47. Singer v Berghouse (1994) 181 CLR 201 at 212.
The present case provides an example of how those principles might operate. If this Court were persuaded that the sentencing judge had significantly overestimated the number of plants under cultivation, for whatever reason, being an issue material to the exercise of the sentencing discretion, that would be a relevant error.
To take a more limited approach would, no doubt, discourage applications for leave to appeal against sentence on factual grounds which may have limited prospects of success. However, if there be an error which may have affected the sentence imposed, the public interest in fairness to the individual offender does not warrant a construction of s 6(3) which would have the application dismissed at the preliminary stage. Fact finding is often critical to the ultimate imposition of a sentence. [48] If the legislature had intended to limit applications for leave to appeal against sentence to circumstances where error of law can be identified, one would expect it to have said so. The authority of the High Court does not warrant the imposition of such a restriction; indeed it is unequivocally to the contrary. It may be that O’Donoghue was not intended to impose such a restriction: nevertheless, there are aspects of the language used which might be (and are) so understood. In my view, that is an erroneous approach.
48. See Olbrich at [1].

Conclusion

In applying the principles set out above, I am not persuaded that the sentencing judge did mistake the facts, or draw an inference other than that which was properly drawn on the material before him. He was entitled to be satisfied beyond reasonable doubt that the number of plants involved in the offence was in the order of 2,000. No element of numerical precision was intended, nor was it required.
For these reasons all three grounds of appeal have failed. I accept that the issues raised warrant a grant of leave, but the appeal must be dismissed.
GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of NSW, by his Honour Judge Berman on 7 March 2014.
The applicant, Joshua Jack Clarke, pleaded guilty before Berman DCJ to an indictment on which there was one offence, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985, namely, that on 8 November 2012, he:

“… did cultivate a quantity of prohibited plants by enhanced indoor means, being an amount which was not less than the large commercial quantity.”

This offence related to an occasion on 8 November 2012, when the applicant was apparently residing on a property near Oallen, on which there was a sophisticated hydroponic cannabis cultivation taking place inside a number of sheds on the property. Police located a large number of cannabis plants in various stages of growth on the property. As will become apparent, the precise number of these plants which, for the purposes of the offence, were found to be plants, was an issue in dispute, although it was not in dispute that the number was not less than the large commercial quantity, that is, 200.
At the same time that he was sentenced, the applicant asked the Court to take into account an offence contrary to s 36Z(1)(a) of the Drug Misuse and Trafficking Act, of organising the conduct of drug premises. The schedule offence related to the premises at which the cultivation referred to in the principal offence was taking place.
The maximum penalty for the offence of cultivation of a large commercial quantity of prohibited plants was 20 years imprisonment. A standard non‑parole period of 10 years imprisonment was applicable.
Berman DCJ imposed an overall sentence of 7 years imprisonment, with a non‑parole period of 4 years, commencing on 8 November 2012, which was the date upon which the applicant was arrested.

Facts

The following summary of facts is taken from the Statement of Facts tendered to the sentencing Judge, and from his Honour’s summary.
It will be necessary to consider separately the issue of how many of the plants which were discovered, constituted plants within the meaning of the legislation.
The property at Oallen consisted of about 100 acres which were owned as a freehold. An adjoining 100 acres of Crown land were leased by the owner of the Oallen property.
The property contained a Colorbond shed which had provision for living accommodation, including two bedrooms, a dining and living area, a kitchen and a bathroom. There were other sheds on the property.
When police visited the property on 8 November 2012, they entered the main shed, and found the accused and two other males in a bedroom within the shed. In that bedroom was an electronic installation designed for security purposes to capture what was happening outside the shed on various CCTV cameras.
Adjoining the bedroom in which the applicant was found, was a large, sophisticated, hydroponic cannabis cultivation inside the shed. Within that room police located 1,997 “plants” in various stages of growth ranging from seedlings 10cm tall to plants 100cm tall.
The “plants” were removed and later examined by an officer of the NSW Department of Primary Industries.
The police then moved to search a hayshed, also located on the property. It contained several hundred rectangular bales of hay. In the middle of the hayshed, between two haystacks, the police located a tunnel that ran into an underground bunker. In that bunker, police located another nine cannabis plants growing in pots under growing lights. There was also a bank of transformers, and two large generators mounted on the floor. Those plants were approximately 1.2m tall.
There was no doubt that all of the plants which were recovered on the property were cannabis sativa.
Located in the principal room and operating at the time of police entry, were multiple growing lights, growing beds, fertilisers, electric transformers, fans, humidifiers and ducting. The principal room was about 10m x 10m. The roof and walls of the building were covered in a form of fibreglass sealant. There was an irrigation system present amongst the plants to facilitate watering of them.
In another small room off the main shed police located between 100 and 200 bags of soil conditioner, several 20 litre drums of a concentrated liquid plant nutrient, as well as spare light globes, ducting, electrical wiring and components.
The police concluded, and this was not disputed, that the cost involved in establishing the sophisticated growing system which was discovered, and the ongoing growing costs, was strongly indicative of the cultivation being a major commercial operation. It was the police contention that at the end of the growth cycle, each of the plants would yield about $2,000 and, accordingly, the whole of the planation had a street value of approximately $4M.
When questioned, the applicant acknowledged that all of the plants were his and that he was leasing the premises. He claimed entire ownership of all of the equipment and plants.
It was accepted in the proceedings before the sentencing Judge that, although the applicant claimed sole responsibility for the cultivation, he was in fact acting as an employee, receiving instructions as to what to do and carrying them out. It was accepted that he was not involved in the setting up of the operation or the financing of it.

Sentence Proceedings in the District Court

In the District Court, it became apparent that there was a dispute as to whether all of the 1,997 “plants” discovered in the main shed were cannabis plants within the meaning of that term, as it is used in s 23(2)(a) of the Drug Misuse and Trafficking Act. Accordingly, evidence was taken on that question. A number of exhibits were also tendered.
His Honour determined the disputed question of fact in an extempore judgment delivered after the evidence and submissions on the issue were completed, and before proceeding to consider the balance of the material on sentence.
In his judgment his Honour held that he was not satisfied beyond reasonable doubt that all of the examined items were plants within the legislation. However, he held that he was satisfied beyond reasonable doubt “… that a large proportion of the unexamined items were cannabis plants”. His Honour’s finding and reasons will be examined in more detail when considering the grounds of appeal, and the submissions with respect to them.
In addition to material dealing with the principal factual dispute, the Crown tendered a psychiatric report. The applicant’s counsel tendered a report from Mr Phil Gorlell, a psychologist, a number of personal references and a handwritten letter from the applicant to the Court. The applicant did not give evidence. Counsel for the applicant made submissions to the Court, as did counsel for the Crown.

Remarks on Sentence

His Honour described the operation and the applicant’s role in that operation. He held that the applicant was an employee in a very large scale commercial cannabis growing organisation. His Honour described the size and sophistication of the operation and concluded that it was one which had as its object the cultivation and distribution of a large amount of cannabis.
His Honour drew attention to the fact that the commercial quantity of cannabis plants for the offence with which the applicant was charged was 200. He said that he was satisfied that the number of growing cannabis plants was “… close to 2000”. He added that anything that was not a plant because it did not have a root system would probably have shortly developed one.
His Honour made it clear that he was not suggesting that the number of plants was of itself determinative of sentence, but rather that the scale of the operation was important in assessing the applicant’s objective criminality.
He identified the agreed position with respect to the applicant’s role as being that the applicant was acting as an employee, receiving instructions as to what to do and carrying them out. His Honour noted that the Crown did not suggest that the applicant was involved in setting up the operation or financing it. His Honour concluded that he should sentence the applicant on the basis that he was paid to do what he was doing, and he had been undertaking his role as an employee for about a month.
These conclusions are not the subject of any challenge.
His Honour discussed the subjective circumstances of the applicant. He noted that the applicant’s parents had had a disharmonious relationship which had ended when his father died when the applicant was about 8 years old. The applicant’s mother was not able to cope with the death of her spouse. The applicant seems to have been brought up in somewhat squalid circumstances. The applicant’s mother died when he was about 14 years old, and he was informally adopted by a family friend with whom he lived for about five years.

The applicant fell into an association with an outlaw motorcycle group and became involved in their illegal activities. The sentencing Judge noted that although he had been sent to jail for a serious offence of discharging a firearm at a dwelling house with disregard for public safety, having been released on parole, the applicant had done quite well.
At the age of 13, the applicant was sexually assaulted by an employer. All of the applicant’s life experiences resulted in the development of depression which has required medication whilst in custody.
His Honour noted that the applicant had a great deal of support available to him, and that he had some prospects of rehabilitation particularly with the assistance of the Probation and Parole Service after his release from custody, together with the assistance of those who had provided references.
His Honour noted that the applicant had pleaded guilty at the earliest opportunity, and indicated that he was prepared to discount any sentence which he would otherwise have imposed by 25%. His Honour did not regard the litigation of the disputed fact as impacting upon that discount.
His Honour made a finding of special circumstances and, as I have indicated earlier, having taken into account the offence on the Form 1, he imposed a non‑parole period of 4 years with a total sentence of 7 years.
His Honour fixed the expiration of the applicant’s non-parole as 7 November 2016.

Application for Leave to Appeal

On 19 December 2014, the applicant filed a Notice of Application for Leave to Appeal. He nominated three grounds. They were as follows:

“Ground 1: The learned sentencing judge erred in placing too much emphasis on the standard non-parole period prescribed for the offence so as to give it determinative significance.
Ground 2: The sentencing judge erred in his finding as to the number of plants cultivated by the applicant.
Ground 3: The sentencing judge erred in failing to impose a sentence that properly took into account the applicant’s subjective circumstances warranting lesser weight being given to general deterrence.”

Ground 2

It is convenient to commence the consideration of the grounds of appeal with Ground 2, which challenges the factual finding of the trial Judge with respect to the number of plants which were being cultivated, and in respect of which the applicant was charged.
As earlier indicated, his Honour delivered a separate judgment with respect to the number of plants. His Honour had before him the evidence which is described below, and the video taken during the execution of the search warrant. As well, he had photographs of the operation.
His Honour first addressed the question of what was a plant. He identified what was to be seen on the video, and in the still photographs as items which were cuttings which had been placed in a growing medium. His Honour noted that it was necessary for him to be satisfied that a cutting had to have developed roots before it could be described as a plant.
Evidence was taken from Mr W B Haigh, the senior regulatory inspector for the region of the NSW Department of Primary Industries. He was an appointed person under the Drug Misuse and Trafficking Act, whose role was to examine any plants seized, relevantly in the circumstances here, to determine if they were cannabis plants for the purposes of the relevant offence. As well, Mr M D Woods, a detective sergeant of police, who was one of the principal investigators who visited the scene where the applicant was arrested, also gave evidence.
His Honour turned to consider the evidence of Mr Haigh, and identified with respect to the evidence which he gave, the relevant question as being whether he could be satisfied beyond reasonable doubt that the items which were not examined by Mr Haigh to see whether they had roots, were in fact plants.
The applicant did not call, or tender any evidence on this question.
On 8 November 2012, Mr Haigh completed a certificate under s 43 of the Drug Misuse and Trafficking Act with respect to the 1,997 plants found in the main shed. That certificate relevantly contained the following statements:

“1,997 Cannabis plants ranging in size 10cm to 100cm and were arranged in lots of 6 through to 100, all plants were in a healthy condition at time of inspection.”

Mr Haigh went on to complete the certificate, saying the following:

“I have analysed 1,997 plants and hereby certify that they were all cannabis plants (botanically known as Cannabis Sativa). I then returned all the plants to D/S M Woods.”

Mr Haigh also certified the nine plants which were discovered separately in the bunker under the hayshed. There is no dispute with respect to his certifications.
In his evidence, Mr Haigh explained that the process which he followed to reach the conclusion expressed in his certificate was to take from each of the two long growing trays a sample of 6 plants out of a total of 790 plants in each tray to assess whether or not they were in fact plants within the meaning of the relevant legislation. Mr Haigh indicated that he had chosen the six plants from each tub essentially at random.
It does not appear to have been in contest that Mr Haigh had correctly identified the 12 plants which he had removed as each having roots, a stem and leaves and therefore each of them qualifying as plants. His Honour noted that the fact that each of the plants which had been removed had roots and were plants, made it likely, at the very least, that the remainder of the items also had roots.
I take this to be a statement that his Honour was prepared to draw an inference beyond reasonable doubt, that since 100% of the samples which had been examined were able to be identified as plants, then it is likely that the balance of the plants would have the same characteristics.
His Honour went on to identify the fact that from his observation of the video and photographs, all of the plants in the trays were of approximately the same size. He found that he was satisfied that the cuttings were probably placed in the growing medium at about the same time, and based upon the inference to which I have drawn attention and those physical observations, his Honour found that he was satisfied that a large proportion of the unexamined items were cannabis plants.
It is convenient to note that in cross-examination, Mr Haigh accepted that although he was a person who had been appointed for the purpose of examining plants seized by NSW Police to determine whether they were cannabis plants within the meaning of the relevant legislation, he was not qualified as an expert to describe the way in which a plant grew from a cutting. He was able to inform the Court from his experience as a gardener that, when a plant is grown from a cutting, as each of the items in question were, each cutting is put into the rooting compound or medium and initially the foliage, the leaves, will tend to droop and after a period of time, often a number of days, it starts to develop roots and then the appearance of the cutting changes, the drooping ceases and the plant appears to be growing healthily.
In cross-examination Mr Haigh said that he was not qualified to give a time period between the time when a cutting might be taken and placed into a medium, and when the roots would commence to develop. He also indicated that he did not know whether leaves on cloned plants required watering in the absence of a root system.
It is important to note that his Honour was not confronted with any evidence that suggested that Mr Haigh was in error in identifying the plants which he in fact examined, as being properly developed plants having all three components sufficient to fall within the requisite definition. Such a proposition was not suggested to Mr Haigh. Nor was his Honour confronted with any evidence that any other of the plants within the trays from which the samples were taken by Mr Haigh, had been examined by anyone else, whether expert or otherwise, and that observations had been made which indicated that root systems had not developed. In other words, there was not a direct conflict of evidence before his Honour on this factual question which his Honour needed to assess.
Rather, the principal submission before his Honour was whether the six plants which had been taken as a sample from each of the two trays were, having regard to the numbers of plants in each tray, an adequate sample to enable a conclusion to be drawn as to the number of the items growing in the tubs as being plants.
As I have earlier said, his Honour concluded that “… a large proportion of unexamined items were cannabis plants”.
It is submitted on appeal that his Honour was in error and that there was no evidence that items of approximately the same size would have the same or similar root system developed in them. Further, it was submitted that there was no evidence to support the finding that the cuttings were probably placed in the growing medium at about the same time. Finally, it was submitted that it was erroneous for the sentencing Judge to place weight on the finding that items that were not plants would have become plants in due course.
In conclusion, it was submitted that the applicant should have been sentenced on the basis that he cultivated 1,217 plants rather than something “close to 2,000 plants”.
In considering the competing submissions with respect to this finding of fact, it is first appropriate to identify the basis upon which this Court acts when confronted with such arguments.
In R v O’Donoghue [49] , Hunt J, with whom Carruthers and Wood JJ agreed, said:

“It is important to emphasise that unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing, is no more than the right to have a superior court interpose to redress the error of the Court below … Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this Court has no power to substitute its own findings from those of the trial Judge.”
49. (1988) 34 A Crim R 397

That decision has been applied on many occasions. One recent example is a decision of this Court in AB v R [50] [2014] NSWCCA 339 where Simpson J (as her Honour then was), with whom Meagher JA and Wilson J agreed, said:
50. [2014] NSWCCA 339

“54. Since O'Donoghue, the same principle has been re-stated on many occasions: for example, R v Khouzame [2000] NSWCCA 505; R v Aoun [2011] NSWCCA 284; Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19; Peters v R [2013] NSWCCA 324. In the interests of brevity, I have forborne to mention the other decisions identified by Johnson J in Aoun (at [35]) and Latham J in Peters (at [42]).
55 The final nail in the coffin of any argument to the contrary is to be found in Kentwell v The Queen [2014] HCA 37; 313 ALR 451 (a decision referred to in the applicant's argument in a different context) at [35]:
‘The history of the provision [s 6(3)] is touched on in Lacey v A-G (Qld) [[2011] HCA 10; 242 CLR 573]. Notwithstanding the breadth of its language, it was settled at an early stage that the appellate court's authority to intervene is dependent upon demonstration of error." (italics added)

…
60. The authorities that state the principles on which, it was submitted, this Court should review findings of fact by a sentencing judge are Warren v Coombes and Fox v Percy. As mentioned above, both are civil cases. Both are cases in which the operative legislation (relevant for present purposes) was s 75A of the Supreme Court Act 1970 (NSW), pursuant to which appeals are by way of rehearing. An issue, in particular in Fox v Percy, was the ‘dichotomy’ between the appellate obligation to correct error, and appellate restraint in the interference with decisions properly committed to first instance judges. There is nothing, in either Warren v Coombes, or in Fox v Percy that could reasonably be extrapolated to decisions under s 5 or s 6(3) of the Criminal Appeal Act.
…
62. I reject the proposition that this Court ought to review Adams J's finding of fact (made by inference from agreed facts) that the applicant wished to torture AG by the infliction of a maximum degree of pain. No error has been shown in that finding. I have already held that the finding was, on the evidence, open.”

Medium Neutral Citation:	Clarke v R [2015] NSWCCA 232
Hearing dates:	5 June 2015
Date of orders:	28 August 2015
Decision date:	28 August 2015
Before:	Basten JA at [1]; Garling J at [39]; Hamill J at [124]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL – appeal – sentence – offence of cultivating prohibited plant in large commercial quantity – guilty plea – disputed question of fact as to whether all items located were “plants” – whether sentencing judge erred in finding as to number of “plants” – proper scope of appeal against sentence - whether finding of fact open to sentencing judge – whether sentencing judge failed to properly take into account the applicant’s subjective circumstances – whether sentence manifestly excessive
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A, 54B Criminal Appeal Act 1912 (NSW), ss 5, 5F, 6 Criminal Procedure Act 1986 (NSW), s 33 Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 23, 33, 36Z, 43; Sch 1 Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71
Cases Cited:	AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 AB v R [2014] NSWCCA 339 Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Aoun v R [2011] NSWCCA 284 Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284 Camm v R [2009] NSWCCA 141 CO v R [2011] NSWCCA 148 Colville v R [2015] NSWCCA 149 Crawford v R [2013] NSWCCA 269 Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19 Filippou v The Queen [2015] HCA 29 Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 House v The King (1936) 55 CLR 499 Kardoulias v R [2005] NSWCCA 456; 159 A Crim R 252 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Kyriakou v The Queen [1988] 9 Leg Rep SL 4 Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 M v The Queen (1994) 181 CLR 487 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 351 Muldrock v R [2011] HCA39; (2011) 244 CLR 240 Peters v R [2013] NSWCCA 324 The Queen v Francis-Wright [2005] VSCA 79 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Clarke [2014] NSWDC 35 R v Ion (1996) 89 A Crim R 81 R v Khouzame [2000] NSWCCA 505 R v Kurtic (1996) 84 A Crim R 57 R v Kyriakou (1987) 29 A Crim R 50 R v Ly [2010] NSWDC 229 R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 R v O’Donoghue (1988) 34 A Crim R 397 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 SBF v R [2009] NSWCCA 231; 198 A Crim R 219 Singer v Berghouse (1994) 181 CLR 201 Turnbull v Medical Board (NSW) [1976] 2 NSWLR 281 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73
Texts Cited:	Filippou v The Queen [2015] HCATrans 104
Category:	Principal judgment
Parties:	Joshua Jack Clarke (Applicant) Crown
Representation:	Counsel: G Bashir SC (Applicant) N Williams (Crown) Solicitors: Tully & Chiper Lawyers (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2012/348940
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 7 March 2014 Before: Berman DCJ File Number(s): 2012/348940