Crawford v R

[2013] NSWCCA 269

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Crawford v R [2013] NSWCCA 269

Hearing dates:

9 October 2013

Decision date:

08 November 2013

Before:

Gleeson JA at [1]
R A Hulme J at [2]
Adamson J at [55]

Decision:

1. Leave to appeal granted.

2. Appeal allowed.

3. Quash the sentence imposed in the District Court for the offence of cultivating, by enhanced indoor means, a commercial quantity of cannabis.

4. In lieu, sentence the applicant to imprisonment comprising a non-parole period of 5 years and 7 months with a balance of the term of the sentence of 1 year 11 months. The sentence is to date from 31 May 2010. The earliest day on which the applicant will become eligible to be released on parole is 31 December 2015.

Catchwords:

CRIMINAL LAW - sentence appeal - cultivation of large commercial quantity of cannabis by enhanced indoor means - asserted Muldrock error - evidence categorisation of offence in relation to the "midrange" and reliance upon standard non-parole period as significant - need to resentence - consideration of personal matters occurring since incarceration

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drugs Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Zreika v R [2012] NSWCCA 44

Category:

Principal judgment

Parties:

John Crawford (Applicant)
Regina (Respondent)

Representation:

Counsel:
Ms A Francis (Applicant)
Ms S Herbert (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s):

2010/135160

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-05-25 00:00:00

Before:

Black QC DCJ

File Number(s):

2010/135160

Judgment

1. GLEESON JA: I agree with R A Hulme J.

1. R A HULME J: John Crawford ("the applicant") applies for leave to appeal in respect of sentences imposed upon him in the District Court at Lismore by his Honour Judge Black QC ("the judge") on 25 May 2011.

1. The applicant pleaded guilty to offences of cultivating, by enhanced indoor means, a (large) commercial quantity of cannabis plants and of supplying cannabis. These are offences against ss 23(2)(a) and 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW).

1. The maximum penalties prescribed by ss 33(3)(b) and 32(1)(h) of that Act are, respectively, imprisonment for 20 years and for 10 years. (Substantial fines may also, or alternatively, be imposed.) A standard non-parole period of 10 years is prescribed for the cultivation offence: Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999 (NSW).

1. The judge imposed a sentence of 9 years with a non-parole period of 6 years 9 months for the cultivation offence and a concurrent 3 year fixed term of imprisonment for the supply offence. The sentences were specified to commence on 31 May 2010. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 28 February 2017.

1. The proposed grounds of appeal contend that the judge erred in his consideration of the standard non-parole period; failed to find special circumstances so as to impose a lesser non-parole period; and imposed a manifestly excessive sentence. The focus of the appeal is upon the cultivation offence; nothing was said in written or oral submissions by way of challenge to the sentence for the supply offence.

Facts

1. Police executed a search warrant at the 70 acre property occupied by the applicant and his wife, Rhonda, at Tumbulgum on 31 May 2010. (Tumbulgum is in far northern New South Wales between Murwillumbah and Tweed Heads.) There was a large colourbond shed on that property. It was closed and locked. Ms Crawford was inside removing buds from cannabis plants. When the police entered the shed they found the entrance to a large underground area. It was accessible via a manhole and ladder.

1. The underground area consisted of three rooms. One room was being used as a seedling and cutting raising area. A total of 204 cuttings were found growing in plastic containers on shelves. Only 35 of the cuttings had a visible root system, something necessary for them to be identified as cannabis plants. The containers had numerals written on them to record the various dates in the previous weeks in which the cuttings had been planted. Also in this room were 25 medium sized cannabis plants growing in a tray and some pots. Cuttings had been taken from them.

1. In a second room there were 91 cannabis seedlings growing in trays. In the third room, 168 mature cannabis plants were found growing in trays; some of which had been harvested.

1. Artificial lighting, various ventilation and extraction fans, and a hydroponic watering system were being used to promote the growth of the cuttings and plants. Police were of the view that the hydroponic system was "highly sophisticated". A set of scales, large quantities of growing solutions, fertilisers and packets of resealable plastic bags were also found.

1. The total number of plants seized was 319. The cuttings that did not qualify as cannabis plants because of their lack of a root system were excluded from the total.

1. A total amount of 3.476 kilograms of cannabis leaf was also seized from both the underground area and the shed itself. This was the subject of the supply charge on the basis that the applicant was in possession of the cannabis for the purpose of supply.

1. The applicant was arrested, charged, and remained in custody until he appeared for sentence. Ms Crawford was also charged and appeared for sentence alongside him. There is no parity complaint so there is no need to refer to her sentencing.

Personal circumstances of the applicant

1. The applicant was born in 1948 and so he was aged 61 at the time of the offence.

1. He had no previous convictions in this State but in Queensland he had been convicted and sentenced to 5 years imprisonment for the cultivation of cannabis in 1991 in circumstances remarkably similar to the manner in which he was doing so at Tumbulgum. The sentencing remarks in that case were tendered before the judge in the present case. They indicate that he had purchased a rural property and set up an underground hydroponic system. He had become involved in that endeavour because of financial difficulties; he had become bankrupt following an economic recession which occurred some years earlier. There was material before the sentencing judge attesting to the applicant being a man of otherwise good character. There was a recommendation that he be considered for release on parole after serving 12 months.

1. A Pre Sentence Report prepared by the Probation and Parole Service ("the report") informed his Honour that the applicant had been happily married for 43 years. He and his wife had three adult children. His wife was experiencing some difficulties with her health. Very little else was provided as to his personal circumstances.

1. The applicant told the author of the report that his motivation for offending was to provide financially for his immediate household until he qualified for the age pension. He appears to have been quite explicit in conceding that he was intent on financial gain alone.

1. The only other matter of note in the report is that the applicant had been a co-operative inmate since going into custody following his arrest; he abided by routine, engaged in employment and was interested in pursuing studies.

The proceedings on sentence

1. The applicant was represented in the District Court by a Queens Counsel very experienced and capable in criminal matters, Mr Rosser.

1. The applicant did not give evidence. The matters of significance that were the subject of Mr Rosser's submissions were that there were no statutory aggravating factors (which the judge accepted). The objective seriousness of the offence was "no higher than the mid-range and probably a bit below that conceding if it was in thirds probably well within the second third". The supply offence was consequential to the cultivation offence and so the sentences should be concurrent (which the judge accepted).

1. As to subjective matters relevant to sentence, it was conceded that "there are precious few of those". There had been an early plea of guilty (the judge accepted this and allowed for a reduction of 25 per cent for the utilitarian value of the plea). The applicant had co-operated in the application by the New South Wales Crime Commission for a forfeiture order which was relevant to his remorse (the judge accepted that there was remorse in any event by virtue of the plea of guilty).

1. Of significance to one of the grounds of appeal, there was no submission that the judge should find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act so as to permit a reduction of the non-parole period to less than the usual 75 per cent of the head sentence.

Ground 1 The sentencing judge erred in the application of s 54B(2) Crimes (Sentencing Procedure) Act 1999 by:

(a) adopting a now impugned two-stage process of sentencing and using the standard non-parole period as a starting point.

(b) failing to give a full statement of reasons for the specification of a non-parole period lower than the standard.

A two-staged approach?

1. The judge sentenced the applicant at a time when it was thought that the correct approach to sentencing for offences carrying a standard non-parole period was as described in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. The High Court of Australia overturned R v Way some four months after the applicant was sentenced: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 ("Muldrock"). The applicant contends that the judge's approach conformed to R v Way and was contrary to the correct approach described in Muldrock.

1. Muldrock held (at [26]) that it was "a mistake to give primary, let alone determinative, significance" to what was thought in R v Way to be a requirement of s 54B(2) of the Crimes (Sentencing Procedure) Act to impose the standard non-parole period unless there were reasons for imposing a longer or shorter period. It was also held (at [28]) that nothing in Pt 4 Div 1A of that Act required or permitted a court to engage in a two-stage approach to sentencing for standard non-parole period offences, commencing with an assessment of whether the offence falls within the middle of the range of objective seriousness and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period.

1. The applicant's contentions turn on the following passages from the judge's sentencing remarks. After a review the facts of the applicant's offending, his Honour said:

Well those facts are sufficient, in my view, to set out the surrounding circumstances in order for me to explain my assessment, which I have to make because of the nature of count 1 against Mr Crawford, as to where in the degree of seriousness these facts come.

1. His Honour then considered whether there were any statutory aggravating factors present (s 21A(2) of the Crimes (Sentencing Procedure) Act) and found there were none. He continued:

I do not find any aggravating factors. That is all I do at the moment in connection with forming an assessment of where this comes in the range of criminality. I am quite satisfied it is properly described as midrange arguably it is above midrange but I am not going there, I leave it clearly in midrange. The degree of sophistication was significant, the quantities are significant, the planned rewards were significant, and I must say in reaching that conclusion I have been assisted by the decision of the Court of Criminal Appeal in the matter of Stock [2011] NSWCCA 49, a matter in which I was involved at first instance, I do not see much distinction balancing one thing against the other as far as count 1 is concerned.

1. His Honour then discussed the applicant's pleas of guilty and the question of remorse and then continued:

So as far as mitigating factors are concerned there is the plea to be approached in the way in which I have indicated and there is really nothing else to add under subs (3) [of s 21A of the Crimes (Sentencing Procedure) Act], and those are the significant factors to be borne in mind when assessing the appropriate sentence for Mr Crawford.

1. His Honour referred to some matters pertaining to the sentencing of the applicant's wife before returning to the applicant:

Well having covered all those matters in the case of Mr Crawford, as I have said midrange, the non-parole period is of significance, had it not been for the plea in this case I would have regarded a sentence in the region of twelve years to be appropriate, and that is reduced to nine, and that, in my view, is consistent with the case of Stock. There is no basis upon which I can properly find any special circumstances.

1. His Honour then imposed the sentences referred to earlier in this judgment.

1. It may be inferred from the first of these extracts from the sentencing remarks that the judge considered it necessary to make a determination of the level of objective seriousness of the cultivation offence because of the prescription for it of a standard non-parole period. That inference is supported by the fact that he made no such determination of the objective seriousness of the supply offence. There is nothing wrong with a judge making such a determination (as to which see below); but it is why he did so, and what followed, that is significant.

1. The second extract reveals the result of his Honour's determination, that the objective seriousness of the cultivation offence was "midrange".

1. The third extract involved his Honour determining what mitigating factors were present. The sequence of his Honour's reasoning is indicative of him doing this in order to determine whether there was reason to impose something other than the standard non-parole period. He identified the plea of guilty and remorse.

1. The final extract reveals his Honour's determination that, but for the plea, the sentence would have been one of 12 years. If that was the case, and there being no special circumstances, the non-parole period would have been 9 years. That is very close, but of course not identical to, the standard non-parole period of 10 years.

1. His Honour's statement that "the non-parole period is of significance" is significant of itself. This was obviously a reference to the standard non-parole period. The difference between the notional non-parole period under the 12 year starting point of 9 years and the standard of 10 years, is open to be explained on the basis of the mitigating value of the applicant's remorse.

1. The Crown submitted that the judge simply made a finding as to the level of objective seriousness, something that has always been a conventional feature of the sentencing process and not rendered erroneous by Muldrock: Zreika v R [2012] NSWCCA 44, per Johnson J at [45]-[47]. It was submitted that the process adopted by the judge did not involve him assigning "determinative significance" to the standard non-parole period.

1. While it is open to question whether the judge gave the standard non-parole period "determinative significance", I find the conclusion inescapable that his Honour regarded it as having "primary significance". Further, there are all the indications of his Honour having adopted the two-stage approach mandated by this Court in R v Way but found to be erroneous by the High Court in Muldrock.

Adequacy of reasons

1. The second aspect of this ground may be dealt with briefly. Counsel for the applicant contended that the judge did not give a full statement of reasons for the specification of a non-parole period either higher or lower than the standard so as to assist appellate review and consistency in sentencing for Div 1A offences: Muldrock at [30]. However, her paraphrase from that paragraph must be considered in the context of what the High Court said in the previous paragraph:

[29] A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to "mak[ing] a record of its reasons for increasing or reducing the standard non-parole period" is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. ...

1. In this case, all of the "facts, matters and circumstances" which the judge considered were relevant to his determination of sentence were exposed in his sentencing remarks. There was no inadequacy of reasons in this regard.

Conclusion on Ground 1

1. I would uphold Ground 1(a) but not 1(b). I will come to a consideration of whether a lesser sentence was warranted and should have been passed (s 6(3) of the Criminal Appeal Act 1912 (NSW)) in due course.

Ground 2 The learned sentencing judge erred in failing to have proper regard to the question of the special circumstances

1. It would have been open to the judge in the exercise of his sentencing discretion to set a non-parole period for the cultivation offence at less than three-quarters of the total term if he was satisfied that there were special circumstances: s 44(2) of the Crimes (Sentencing Procedure) Act. But, as can be seen in the fourth extract from the sentencing remarks above, the judge considered there was no basis upon which he could "properly find any special circumstances".

1. It was conceded in written submissions that "little had been put forward on behalf of the applicant in terms of mitigating circumstances as well as nothing put forward on the question of any finding of special circumstances". It was also conceded that the judge was not even invited to make such a finding.

1. It was submitted, however, that the judge "did not have proper regard to the operation of special circumstances because there was no proper consideration of the mitigating factors some of which were available to enable a finding of special circumstances, e.g. the age of the applicant, motivation, remorse and the need for rehabilitation".

1. Ignoring for the moment that the applicant's very experienced counsel did not consider it appropriate to invite the judge to consider finding special circumstances, the matters mentioned in the submissions in this Court did not mandate that such a finding be made.

1. The judge was clearly aware of the applicant's "age"; not only did he refer to it (ROS 10) but the applicant was physically present in the court room. The applicant's "motivation" was irrelevant to the need for a longer parole period; indeed, the fact that he offended for reasons of greed was not a matter in his favour in any respect. "Remorse" was not ignored by the judge; he found in the applicant's favour on that subject. Finally, no attempt was made to explain in this Court (or the court below) why a longer parole period was required because of a "need for rehabilitation".

1. It must be borne in mind that the sentence imposed entails a potential parole period of 2 years and 3 months. No submission was made in either court as to why a longer period of parole was necessary and should have been provided.

1. Ground 2 has no merit.

Ground 3 The sentence imposed was, in all the circumstances, manifestly excessive

1. It is unnecessary to determine this ground as the same issues, and more, fall to be considered by the question posed by s 6(3) of the Criminal Appeal Act.

Is a lesser sentence warranted?

1. There was no challenge to the finding by the judge that the objective seriousness of the cultivation offence was "midrange".

1. The applicant had very little in terms of subjective matters standing in his favour beyond his plea of guilty and remorse. His age, 62 at the time of sentencing and 65 now, is of some significance but not greatly so. The Pre Sentence Report recorded that he takes medication for arthritis but that this condition did not prevent him from engaging in employment.

1. The applicant was not to be punished further for his prior offence. But personal deterrence is a significant consideration, given the prior offence was almost identical; the applicant had served a term of imprisonment; and he chose to replicate such offending solely for financial gain. General deterrence is also important.

1. To be taken into account as well are the legislative guideposts of the maximum penalty of 20 years and the standard non-parole period of 10 years.

1. Affidavits were read in the event the Court came to consider re-sentencing. The applicant experienced a "coronary event" in custody in June 2012. A medical report appears to suggest that the situation is not terribly serious, relatively speaking for a person of his age. His wife continues to experience various issues of ill-health. And his son, aged 41, was diagnosed a few months after the applicant was sentenced with a "significant and disabling" disease. He lives with the applicant's wife who cares for him. They live on the Gold Coast and find it difficult to travel to Kempsey where the applicant is being held in the Mid North Coast Correctional Centre.

1. Upon consideration of all of this I am persuaded that the Court should allow the appeal and re-sentence the applicant for the cultivation offence. I would adopt a starting point of 10 years and reduce that by 25 per cent for the utilitarian value of the plea of guilty. Like the sentencing judge, I see no basis for finding special circumstances.

Orders

1. I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed.

3. Quash the sentence imposed in the District Court for the offence of cultivating, by enhanced indoor means, a commercial quantity of cannabis.

4. In lieu, sentence the applicant to imprisonment comprising a non-parole period of 5 years and 7 months with a balance of the term of the sentence of 1 year 11 months. The sentence is to date from 31 May 2010. The earliest day on which the applicant will become eligible to be released on parole is 31 December 2015.

1. ADAMSON J: I agree with R A Hulme J.

**********

Decision last updated: 08 November 2013