Hedgecock v The Queen
[2008] NTCCA 1
•18 February 2008
Hedgecock v The Queen [2008] NTCCA 1
PARTIES: HEDGECOCK, WILLIAM
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:20707172
DELIVERED: 18 February 2008
HEARING DATES: 18 February 2008
JUDGMENT OF: MARTIN (BR) CJ, ANGEL AND RILEY JJ
APPEAL FROM: SOUTHWOOD J, 13 August 2007
CATCHWORDS:
APPEAL – CRIMINAL LAW – Offences against Misuse of Drugs Act 1990 (NT) – whether sentence manifestly excessive – comparative sentencing – Appeal dismissed
Sentencing Act (NT): s 40(6)
Misuse of Drugs Act (NT): s 7(1), s 7(2)(a), s 37, 3 37(2)
Police Administration Act (NT): s 120B
Cranssen v The King (1936) 55 CLR 509; Morse (1979) 23 SASR 98, applied
Allinson (1987) 49 NTR 38; Damaso (2002) 130 A Crim R 206; Ireland (1987) 49 NTR 10; R vJabaltjari (1989) 64 NTR 1; Mununggurr v R [2006] NTCCA 16, followed
REPRESENTATION:
Counsel:
Appellant:I Read
Respondent: J Karczewski QC
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Ril0803
Number of pages: 11
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINHedgecock v The Queen [2008] NTCCA 1
No. 20707172
BETWEEN:
WILLIAM HEDGECOCK
Appellant
AND:
THE QUEEN
Respondent
CORAM: MARTIN (BR) CJ, ANGEL AND RILEY JJ
EX TEMPORE REASONS FOR JUDGMENT
(Delivered 18 February 2008)
Martin (BR) CJ
I agree that the appeal should be dismissed for the reasons given by Riley J. I add the following observations.
Offences of this type are committed in an infinite variety of circumstances and necessarily this leads to a wide range of penalties. There is no tariff. Nor is there a particular range for identified categories. It is important to recognise that on each occasion imprisonment is an appropriate disposition, a range of sentence is properly available to the court within which the sentence will be neither manifestly inadequate nor manifestly excessive.
In addition, as was noted during submissions, in recent years through sentences, this court has reflected growing community concern about the prevalence of offences involving cannabis and the harm caused by this drug to many within our community. Attitudes to this type of crime have hardened over a significant period. Offenders cannot hold a legitimate sense of grievance if sentences, even for first offenders who grow for their own use, are now heavier than many imposed a few years ago.
Angel J:
This is an appeal by leave against a fully suspended nine month sentence of imprisonment with an operative period under s 40(6) Sentencing Act NT of 2 years imposed upon the appellant in respect of his conviction for unlawfully cultivating a commercial quantity of cannabis, namely 22 plants, contrary to s 7(1) and (2)(a) Misuse of Drugs Act NT for which a maximum penalty is 25 years imprisonment.
The admitted Crown facts were that during February 2007 the appellant prepared and planted 22 cannabis plants in separate pots. He erected two “grow lights” attached to transformers in a spare bedroom of his donga situated behind the Kumbidgee Lodge, Katherine. Throughout the early stages of March 2007 he tended to the plants ensuring they were fertilised and watered. On Monday 12 March 2007 police executed a s 120B Police Administration Act NT search warrant upon the residence of the appellant. During the search police located and seized 22 immature plants in individual pots. All 22 plants were sitting under two operational “grow lights”. Police also located 42.3 grams of green leafy vegetable matter resembling cannabis. That was accepted by the Crown to be floor sweepings as opposed to any significant cannabis material or a harvest from the plant. The appellant was arrested and conveyed to the Katherine Police Station where he later participated in a formal electronic record of interview and made full admissions to cultivating the 22 cannabis plants. When asked his reason for cultivating the cannabis plant he replied “To have my own marijuana”. A commercial quantity as defined in the Misuse of Drugs Act is not less than 20 plants.
The Crown accepted that the cannabis was for the appellant’s personal use at the conclusion of the appellant giving evidence before the learned sentencing Judge and it was common ground that the presumption of 28 days minimum gaol in the absence of particular circumstances, vide s 37 Misuse of Drugs Act, had been rebutted. The appellant had no relevant priors and no recent prior offences, had cooperated with police, had pleaded early, had a good work record and good reference and good prospects of rehabilitation.
The learned sentencing Judge was referred to a “folder of comparatives”. The material was divided into three tables described by the appellant’s counsel as first, matters for which a bond fine or conviction only was imposed, the second, matters for which a fully suspended sentence was imposed and third, matters in which an actual sentence of imprisonment was imposed. It was submitted that sentences far more lenient than gaol sentences were imposed and regularly imposed in respect of like offending.
The learned sentencing Judge said that while he accepted that the appellant did not intend to supply the cannabis for commercial gain, nonetheless the crime committed was serious. He referred to the fact that Parliament had provided a maximum penalty of 25 years imprisonment for the cultivation of more than 20 plants of cannabis. He said such crimes are prevalent. He said the decision to grow cannabis was deliberate. Some planning and preparation was involved. It was necessary for the offender to obtain the “grow lights”, the transformers and the pots for the cultivation of cannabis. Whilst the plants seized by the police were immature and the appellant had not been cultivating the plants for very long, he had put “considerable” care and effort into the cultivation. His Honour said the objective seriousness of the offending was ameliorated by the fact that the appellant only cultivated 22 plants for his personal use, they had not been cultivated for long, the plants were small in size and the manner of cultivation was relatively unsophisticated compared to many cases involving cultivation of a commercial quantity of cannabis for commercial gain. Having noted that the appellant had no prior convictions for drug offences his Honour said –
“I have given consideration (scilicet considerable) weight to general deterrence and less weight to specific deterrence. The offender, and others, must be discouraged from committing similar crimes in the future. Cannabis is a dangerous drug and the supply and use of cannabis is the cause of considerable harm and dysfunction in the community. I have also given considerable weight to the offender’s prospects of rehabilitation. The offender has a good work record and his prospects of rehabilitation are good. He is not addicted to cannabis. It has been more than eight years since the offender last offended prior to committing this offence.”
The only ground of appeal pursued is that the sentence in all the circumstances was manifestly excessive. In order to make out this ground the appellant must show that the nature of the sentence itself affords convincing evidence that in some way the sentencing discretion has miscarried. To do so the appellant must show that the sentence was clearly and obviously and not just arguably excessive: Cranssen v The King (1936) 55 CLR 509 at 520. To determine whether a sentence is excessive, it is necessary to review it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type, and the personal circumstances of the offender: Morse (1979) 23 SASR 98 at 99 per King CJ, White and Mohr JJ concurring; Damaso (2002) 130 A Crim R 206, a decision of this court.
I agree with counsel for the respondent that past sentences to which this court has been referred do not follow any consistent pattern; compare Damaso at para [49]. I am unable to conclude that the present sentence is “markedly outside” a generally accepted range of sentences imposed for similar offending: cf Allinson (1987) 49 NTR 38 at 41 per Kearney J, Nader J concurring. There is no departure from past sentencing practice sufficient to show lack of even–handedness such as to indicate manifest injustice. In order to manifest injustice statistics must demonstrate some “striking disparity”: Ireland (1987) 49 NTR 10 at 19 per Nader J; Allinson at 39 per Kearney J, Nader J concurring; Mununggurr [2006] NTCCA 16 at para [24]. The sentence is not manifestly excessive having regard to the maximum penalty of 25 years imprisonment: Jabaltjari (1989) 64 NTR 1 at 32, 33. The learned sentencing Judge was not in error in emphasising the need for general deterrence. All mitigating factors were taken into account by the learned Judge in fully suspending the sentence.
This appeal should be dismissed.
Riley J:
On 13 August 2007 the appellant pleaded guilty to having cultivated 22 cannabis plants being a commercial quantity for the purposes of the Misuse of Drugs Act. He was sentenced to imprisonment for a period of 9 months with the whole of the sentence being suspended upon conditions. He now appeals against the sentence on the sole ground that the sentence was manifestly excessive.
At the time of the offending the appellant was a 55-year-old single man living alone in Katherine. He had a good working history and a reputation for being honest. His criminal history included a conviction for doing a dangerous act in respect of which he was sentenced to a wholly suspended term of imprisonment. The history did not include any drug-related offences and his last conviction was some eight years prior to the present offending. He was assessed by the learned sentencing judge as having good prospects for rehabilitation.
The circumstances of the offending were not in dispute. The appellant had been a user of cannabis on a recreational basis and had been smoking "probably since my teens" but was not addicted to the drug. He was concerned that the producers of cannabis from whom he purchased his supplies may have been adding chemicals and "other additives" to the cannabis and so he decided to grow his own. He gave evidence before the sentencing court that he obtained seeds from cannabis he had purchased and planted slightly more than 22 seeds in pots. The pots were kept in an air-conditioned bedroom and, in the initial stages, were maintained under grow lights for 18 hours per day. He planned to grow 14 of the plants to a height of between 18 and 22 inches and then harvest the cannabis buds and the usable parts for his personal use. He anticipated he would be able to produce enough cannabis to last about one year and he intended to keep the cannabis in his deep freeze. At the time of detection the plants had not been harvested. His evidence was accepted by the learned sentencing judge. Counsel appearing on behalf of the Crown conceded that the appellant had rebutted the presumption of intention to supply for commercial gain created by s 37(6)(b) of the Misuse of Drugs Act. His Honour found the existence of particular circumstances under s 37(2) of the Act such that an actual period of imprisonment should not be imposed.
In sentencing the appellant the learned sentencing judge said:
"While I accept that the offender did not intend to supply the cannabis for commercial gain, the crime committed by the offender is serious. Parliament has provided a maximum penalty of 25 years for the cultivation of more than 20 plants of cannabis. Such crimes are prevalent. The offender's decision to grow the cannabis was deliberate. The cultivation of the cannabis involved some planning and preparation. It was necessary for the offender to obtain the grow lights, the transformers and the pots for the cultivation of cannabis. While the plants seized by police from the offender were immature and the offender had not been cultivating the plants for long, the offender had put considerable care and effort into the cultivation of the cannabis."
The learned sentencing judge correctly noted that "cannabis is a dangerous drug and the supply and use of cannabis is the cause of considerable harm and dysfunction in the community". He went on to observe that he had given considerable weight to general deterrence and less weight to specific deterrence. He addressed the matters of mitigation and also took into account the early plea and the cooperation of the appellant with the authorities. There is no error in the approach adopted by his Honour.
The submission on behalf of the appellant was that the sentence of nine months imprisonment, suspended for a period of two years upon conditions was, in all the circumstances, manifestly excessive. In support of this submission the appellant provided a schedule of matters considered in the Supreme Court from 1987 through to 2007 for the offence of cultivation of a commercial quantity of cannabis. To those must be added the cases identified by the respondent. The schedule detailed matters in relation to which the penalty had been a bond, fine or conviction; those matters in which a fully suspended sentence was imposed; and those matters for which an actual sentence of imprisonment was imposed. By reference to the schedule it was, in effect, submitted that different classes of offending can be identified leading to a tariff or expected range of sentence for offenders within a particular class. For example where there is no commercial intent and where the number and size of the plants is consistent with personal use and the offender does not have a relevant criminal history, it was submitted that it is appropriate to deal with the matter without the imposition of a sentence of imprisonment whether suspended or otherwise. Further it was submitted that the schedule revealed that where offenders received fully suspended terms of imprisonment of greater than one to three months the offender had considerably more plants than did the appellant on this occasion and the offending often involved an offender with a relevant prior criminal history or other aggravating features.
In the circumstances of the matter under appeal it was submitted that the sentence imposed fell outside the range applicable to offending of its kind. The appellant submitted that the disposition should not have involved imprisonment or, alternatively, should have been limited to a short fully suspended term of imprisonment.
Whilst the matters identified by the appellant are important factors to be taken into account, in my view it is not possible to identify separate classes of offending for sentencing purposes as suggested on his behalf. A detailed review of the matters referred to reveals that many factors are considered in determining the appropriate sentence in a particular case. It is clear that the number of plants is but one factor within a range of factors to be considered. Depending upon the circumstances of the particular case the number of plants may or may not be a particularly significant consideration. Matters that have been taken into account in determining an appropriate sentence include, but are not limited to: the maturity of the plants, their size, sex and quality; the level of sophistication of the operation; whether the cultivation of the plants is part of an ongoing operation or amounts to a “one-off” event; the nature and extent of any criminal history of the offender; the reasons of the offender for growing the plants including whether it is a commercial operation and, if not, whether there is a claimed medical reason for producing cannabis such as for pain relief for an identified condition; whether there has been a plea of guilty and, if so, at what stage of proceedings and in what circumstances; and, of course, other relevant mitigating factors personal to the offender. Depending upon the nature and circumstances of the offending issues of general deterrence and personal deterrence will receive greater or lesser weight.
As is to be expected the range of sentences reflected in the schedule is wide extending from a conviction with no further penalty through to sentences of actual imprisonment for a period of years. Within the schedule and the additional matters referred to by the respondent there are sentences that are equal to or exceed the sentence imposed upon the appellant. Those sentences reflect the circumstances applicable to the individual case. The sentences in the schedule do not establish a consistent pattern such as to identify an applicable tariff in the circumstances of this matter.
It is for the appellant to show that the nature of the sentence in his case affords convincing evidence that in some way the exercise of the discretionary sentencing power was unsound. To do so, he must show that the sentence was clearly and obviously, and not just arguably, excessive: Damaso (2002) 130 A Crim R 206. In that case the Court adopted the observations of King CJ in Morse (1979) 23 SASR 98 at 99 that:
"This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender."
A range of sentencing options was available to the sentencing judge. Whilst the sentence in the present case can be said to be at the upper end of the proper range of the sentencing discretion, it has not been demonstrated that the sentence was manifestly excessive.
I would dismiss the appeal.
4
0