Hewitt v R

[2007] NSWCCA 353

New South Wales
Court of Criminal Appeal

CITATION:	HEWITT v REGINA [2007] NSWCCA 353
HEARING DATE(S):	Thursday 15 November 2007
JUDGMENT DATE:	17 December 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Hall J at 2; Price J at 77
DECISION:	Leave to appeal granted, but the appeal be dismissed
CATCHWORDS:	CRIMINAL LAW – Sentencing – Factors in aggravation – Prior conviction for cultivating cannabis – Whether "planned or organised criminal activity" – Low level of planning – Whether quality of cannabis properly taken into account by sentencing judge – Whether cannabis for personal use – Whether sentences manifestly excessive
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Regina v Hamid [2006] 164 A Crim R 179 Fahs v Regina [2007] NSWCCA 26 NCR Australia v Credit Connection [2005] NSWSC 1118 Readburn v Regina [2007] NSWCCA 60 Regina v Blair (2005) 152 A Crim R 462 Regina v Boorer (CCA, unreported 15 November 1990) Regina v Johnson [2004] NSWCCA 76 Regina v McNaughton [2006] 163 A Crim R 381 Regina v Reynolds [2004] NSWCCA 51 Regina v Wickham [2004] NSWCCA 193 Regina v Willard [2005] NSWSC 402 Regina v Yildiz (2006) 160 A Crim R 218 Sales v The Queen (CCA, unreported 2 June 1989)
PARTIES:	John Patrick HEWITT v REGINA
FILE NUMBER(S):	CCA 2007/3276
COUNSEL:	Crown: T W Thorpe App: P Boulten SC/P Smart
SOLICITORS:	Crown: S Kavanagh App: Darryl Quigley Partners Lawyers
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/51/0154
LOWER COURT JUDICIAL OFFICER:	Freeman DCJ
LOWER COURT DATE OF DECISION:	23 March 2007

2007/3276

McCLELLAN CJ AT CL
HALL J
PRICE J

MONDAY 17 DECEMBER 2007

JOHN PATRICK HEWITT v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hall J.

2 HALL J: The applicant, by way of notice of application for leave to appeal, filed on 19 July 2007 relies upon six grounds in respect of the sentence imposed upon him by the Lismore District Court (His Honour Judge Freeman) on 23 March 2007.

3 On 22 August 2006 before the Lismore Local Court, the applicant entered pleas of guilty to:-

• one count of supply prohibited drug (151.7 grams cannabis leaf) contrary to s.25(1) of the Drug Misuse and Trafficking Act 1985 (carrying a maximum penalty of 10 years imprisonment and/or 2,000 penalty units); and

• one count of supply prohibited drug (194 grams cannabis resin) contrary to s.25(1) of the Drug Misuse and Trafficking Act 1985 (carrying a maximum penalty of 15 years imprisonment and/or a fine of 2,000 penalty units); and

• one count of cultivate prohibited plant (40 cannabis plants) contrary to s.23(1)(a) of the Drug Misuse and Trafficking Act 1985 (carrying a maximum penalty of 10 years imprisonment and/or a fine of 2,000 penalty units).

4 On 13 December 2006, the applicant was indicted on the same counts before his Freeman DCJ and he pleaded guilty.

5 On 23 March 2007, Freeman DCJ imposed the following sentences:-

Counts 1 and 3: Fixed term of 12 months to date from 23 March 2007 and to expire on 22 March 2008.
Count 2: Imprisonment for two years and three months to date from 23 March 2007 and to expire on 22 June 2009. A non-parole period was fixed of one year and three months to date from 23 March 2007 and to expire on 22 June 2008.

6 The total effective sentence, accordingly, was two years and three months with a non-parole period of one year and three months to date from 23 March 2007.

7 In his remarks on sentence, his Honour set out the facts. The essential matters referred to were as follows:-

• Between 18 January and 20 February 2006, a joint investigation was conducted by police in the Northern Rivers area. Police formed a strike force to investigate the cultivation and distribution of cannabis by one Geoffrey Knight and others, including the applicant.

• Telecommunication services utilised by Knight were lawfully intercepted. Conversations between Knight and the applicant were recorded.

• The conversations between Knight and others, according to a statement of agreed facts, were concerned with the distribution of cannabis. The conversations included discussions about the type, quality, weight and price. The sentencing judge, however, correctly observed that conversations with the applicant were not so obviously related to the supply of cannabis.

• On 20 February 2006, police executed a search warrant at the premises occupied by the applicant. They located a hydroponic system in the back room of the premises. There were 40 cannabis plants ranging in height from 15 centimetres to 20 centimetres. The system included lamps, nutrients and an exhaust system.

• In a bedroom at the premises, police located the 194 grams of cannabis resin together with a couple of grams of cannabis seeds.

• In the laundry/bathroom area, a further supply of hydroponic nutrients was discovered. In a cubbyhouse there was also found the 1.55 grams of dried cannabis in a 20 litre blue plastic drum and two white foam boxes. Inside the boxes a clear plastic bag was located containing a quantity of dried cannabis and another bag, which was half full of cannabis. Inside the blue plastic drum, police located a re-sealable plastic sandwich bag full of dried cannabis and a white shopping bag containing an amount of dried cannabis.

• In a vehicle owned by the applicant, police located a quantity of hydroponic nutrients, exhaust, pots and irrigation hosing.

• The applicant attended at Lismore Police Station on Wednesday 22 February 2006 and was placed under arrest. He made a full admission to the cultivation and possession of cannabis plants for “personal use” .

• In relation to the cannabis resin and leaf, he made full admissions to the possession of such items for “personal use” .

8 In his remarks on sentence, the sentencing judge made a number of observations including the following:-

(a) The answers given by the applicant in the recorded interview were “transparently false” . He re-entered the witness box during the sentencing hearing and conceded that some of his answers had been false.

(b) The sentencing judge, however, stated that evidence given before him contained falsehoods. His Honour stated:-

“… I just do not believe that his connection with Knight was limited to the supply, on one occasion of two ounces of cannabis and, indeed, he … finally (conceded) that at least half of it was going on to some unknown person, to be supplied by Knight, so that even on his own admissions, grudgingly though they were, this offender was taking part in the supply to ‘others’, (plural) of cannabis.”


(c) The facts indicated that the applicant was cultivating cannabis in a fairly sophisticated way. Although the equipment may not have been sophisticated, nonetheless, the sentencing judge found “… this was a fairly sophisticated arrangement, the quantity was not insignificant, he is deemed guilty of supply, not only of the leaf itself, but of the resin, which carries the higher penalty, and, of course, the cultivation itself is a separate offence” (remarks on sentence, p.6).

(d) The sentencing judge then considered two matters which the Crown had argued were serious aggravating factors. The first related to the prior record of the applicant of cultivation. The sentencing judge noted that in 1991 the applicant was charged and pleaded guilty to one count of cultivation of cannabis. It appeared that there were some 40 plants, of which only 21 could be identified as cannabis because they were the only ones that had grown sufficiently to meet the botanical description of the plant. Mr Boulten SC, who appeared for the applicant, observed that number was lower than the indictable quantity. The sentencing judge stated that it did not seem to him to be a very serious example of cultivation “… but nonetheless it is significant in terms of this offender’s history …” (remarks of sentence, p.7).

(e) The sentencing judge referred to the applicant’s history of having a 20 year addiction to cannabis, or at least, a very heavy habit and he observed “… it is clear that he has begun this cultivation, not only for his own purposes, but in a commercial way for the purposes of supplying it to Knight and others” (remarks on sentence, p.7).

9 On the question of the applicant’s prior criminal record as an aggravating factor, the sentencing judge stated:-

“… the fact that he had been caught before, however small, however long ago, is a matter of considerable concern and serious aggravation …” (remarks on sentence, p.7)

10 The second aggravating element contended for by the Crown was that the offences were said to be part of an organised criminal activity. In that respect, reliance was placed upon the provisions of s.21A(1)(n) of the Crimes (Sentencing Procedure) Act 1999.

11 The sentencing judge stated that clearly the applicant was acting in concert with Knight, providing him with cannabis. He found that “it was an organised criminal activity …”.

12 The sentencing judge then considered mitigating factors. He proceeded upon the basis that the applicant was entitled to a 25% discount for his early plea. In terms of the subjective case, the sentencing judge observed that he was, at the time of sentence, 45 years of age, had been mainly employed throughout his working life and that he had, except for the offences, been a “… reasonably solid contributor to the society …”.

13 The sentencing judge also took into account a number of references, a letter of commendation from the police for assisting in what were described as “difficult circumstances” some years ago. The sentencing judge also had regard to the pre-sentence report and made a finding of special circumstances in his favour.

Grounds of appeal

(a) Ground 1: His Honour erred by treating the applicant’s prior conviction for cultivating cannabis as a matter of serious aggravation

14 As the Crown observed in its submissions, s.21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 should be read according to the common law principle, namely, that proportionality requires that the upper limit of a sentence be set by the objective circumstances: Regina v Johnson [2004] NSWCCA 76; Regina v Wickham [2004] NSWCCA 193 at [24] and Regina v McNaughton [2006] 163 A Crim R 381 at [12], [24].

15 In Regina v Hamid [2006] 164 A Crim R 179 at [145], Johnson J (Hunt AJA and Latham J agreeing) said:-

“The principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions: Regina v McNaughton … at [24]-[25]. However, the respondent’s prior convictions are pertinent to an assessment as to where, within the boundary set by the objective circumstances, a sentence should lie by reference to his attitude of disobedience towards the law and increased weight to be given to retribution, personal deterrence and the protection of society: Regina v McNaughton at [26].”

16 The Crown acknowledged that the sentencing judge appears to have accepted the submission made by the Crown that the previous conviction was a matter of aggravation. Expressed in those terms, the Crown accepts that that was an error.

17 It, however, submitted that on the basis that this Court came to the view that the sentencing judge took the previous record of the applicant into account in an impermissible way, then in the circumstances, no lesser sentence was warranted.

18 In the written submissions on behalf of the applicant, it was contended that the applicant’s conviction in 1991, which resulted in a fine of $1,500 reflected both the fact that the matter was clearly at the lower end of the range of objective seriousness as well as the applicant’s very favourable subjective circumstances. It did not justify a conclusion that the applicant’s criminal record demonstrated that the commission of the offences here in question constituted a continuing attitude of disobedience of the law or provide a proper basis for the sentencing judge to treat the 1991 cultivation conviction as “a matter of considerable concern and serious aggravation” of the instant offences. It was further submitted for the applicant that his Honour failed to take into account evidence suggesting that the applicant was no longer smoking cannabis at the time of sentence and had taken positive steps to address his cannabis addiction.

19 In stating, as the sentencing judge did, “Clearly, the fact that he had been caught before, however small, however long ago, is a matter of considerable concern and serious aggravation”, Mr Boulten SC submitted his Honour erred and that it was likely that this aspect impacted on the length of each sentence. However, the Crown submitted, whether or not there was error in this respect, the question was whether or not any lesser sentence was warranted. I will return to that question following consideration of the remaining grounds relied upon.

(b) Ground 2: His Honour erred by regarding each of the offences as having been aggravated because they were part of an organised criminal activity

20 The Crown has submitted that, on findings made by the sentencing judge, he was entitled to find that the conduct of the applicant went beyond the inherent features of the offence. It submitted that no error was made in finding that the applicant’s conduct was part of a planned or organised criminal activity.

21 It was contended for the applicant that the question raised by Ground 2 was whether the agreed facts merely went to show that the offences were not unplanned or impulsive as distinct from regarding it as an additional feature of aggravation.

22 In the written submissions on behalf of the applicant, Mr Boulten conceded that it was open to the sentencing judge to:-

• Use the evidence of the applicant’s supply of cannabis to Knight to assist in characterising his motivation and intention in each of the offences.

• The supply to Knight made available an inference that the plants were being cultivated, not just for the applicant’s personal use, but also to supply Knight and, perhaps, others.

• That it was open to conclude that the cannabis leaf and resin were being held by the applicant, not just for his own use, but for supply to others.

23 Mr Boulten, however, submitted that it did not follow that the offences here in question were aggravated on the basis they were an organised criminal activity.

24 Whilst it was accepted in the applicant’s submissions that the cultivation charge was a relatively serious one, it was contended that the facts revealed that the deemed supply of the cannabis leaf and the home made cannabis resin were not particularly well planned or organised. The telephone conversations simply confirmed a likely supply. None of the offences, it was submitted, would permit a finding beyond reasonable doubt that the degree of organisation or planning exceeded what would ordinarily be expected of an offence of that kind, that is, “… the degree of planning that would be inherent in the possession of an indictable quantity of cannabis for the purpose of supply or the cultivation of 40 plants”. It was submitted that his Honour’s conclusion that the process was an organised criminal activity is an error of the kind identified by Simpson J (with whom Hoeben J agreed) in Regina v Yildiz (2006) 160 A Crim R 218 at [39]. See also Adams J in Yildiz at [87]. For the reasons set out below, I agree that the sentencing judge was in error in reaching that conclusion.

25 The provisions of s.21A(2)(n) have been the subject of consideration on a number of occasions. The following propositions may be derived from relevant decisions:-

(a) The wording of the provision conveys more than simply that the offence was planned: Fahs v Regina [2007] NSWCCA 26 per Howie J at [12] (Simpson and Buddin JJ agreeing). His Honour further observed:-

“… The fact that there was a ‘level of planning in the offences’ as found by the judge does not necessarily give rise to the aggravating factor in s.21A(2)(n). In Wickham [2004] NSWCCA 193, the Court stressed the importance of making findings under s.21A in accordance with the words of the provision ...”

(b) In a case where an offender has been charged with multiple drug trafficking offences, a conclusion may be drawn that it is part of a planned or organised criminal activity. In Fahs (supra), Howie J observed:-

“… In this case, it would have been open to the judge to find that such a factor existed in respect of each of the offences because it was clear that the applicant was committing the crimes as part of a drug trafficking organisation capable of supplying large amounts of different types of drugs to order.”

(c) The expression “organised criminal activity” may embrace the activities of several people or it may involve activity carried out by one person. In NCR Australia v Credit Connection [2005] NSWSC 1118, Campbell J observed at [72]:-

“In deciding whether the aggravating factor in para (n) is present, there is first a question of construction about what is meant by ‘organised criminal activity’. In one sense, ‘organised criminal activity’ involves the activities of several people that are planned or co-ordinated to carry out the crime. That is the sense involved in media discussion about whether organised crime is on the increase. In another sense, however, it can include activity that is carried out by just one person, concerning which that person engages in planning or preparation.”
His Honour also observed:-
“… as a matter of ordinary English, to think that ‘planned criminal activity’ has any necessary element in it of there being more than one person involved … For these reasons, I conclude that the factor in para (n) can be present if there is planned organised criminal activity engaged in by just one person.” (at [74] and [75]).


(d) Offences committed over a period of time may involve sufficient repetition and system to lead to the conclusion that they were organised within the meaning of paragraph (n): NCR Australia (supra) at [76].

(e) In determining whether the facts give rise to “planning” as an aggravating factor, it is necessary to consider and refer to both the evidence that may affirm, and the evidence that may negative the drawing of such a conclusion. This Court in Regina v Reynolds [2004] NSWCCA 51, in determining on the facts of that case that evidence of planning was very limited but that it did exist and was of greater significance than that considered by the sentencing judge, observed at [39]:-

“It may be that, had he considered the evidence in detail, his Honour would nevertheless have reached a factual finding similar to that which he did. The error lies in his failing to make reference to evidence pointing to a contrary conclusion. In particular, the list of businesses was, in my view, quite strong evidence of a degree of planning. The absence of a disguise is only one factor pointing in the other direction, or pointing to poor, rather than no, planning.”

(f) Planning that is “…somewhat haphazard, clumsy in many respects and bound to fail…” may nevertheless be sufficient so as to enliven the application of s.21A(2)(n): Regina v Willard [2005] NSWSC 402 per Whealy J at [32].

Findings made by the sentencing judge

26 His Honour found that various answers given by the applicant in a recorded interview with police with regard to conversations between himself and Knight, were false, and also rejected the applicant’s evidence in various respects. His Honour stated that:-

“… the answers given by the offender in his recorded interview and indeed in evidence are not acceptable to me. I do not believe him, which has bearing upon the sentence in that the Crown argues there is an aggravating factor present – I find that there is in the sense of this being an organised criminal activity – and I will return to that later.” (Remarks on Sentence, pp.2-3).

27 His Honour stated that he did not believe that the applicant’s connection with Knight was limited to supply, on one occasion of two ounces of cannabis. His Honour observed that the applicant in his evidence “… seemed to depart even from his initial stance that [the cannabis supplied] was for Knight’s own use only, finally conceding that at least half of it was going on to some unknown person, to be supplied by Knight, so that even on his own admissions, grudging though they were, this offender was taking part in the supply to “others”, (plural), of cannabis”. (Remarks on Sentence, p.5).

28 His Honour found that, “… it is clear that [the applicant] has begun this cultivation, not only for his own purposes, but in a commercial way for the purpose of supplying it to Knight and others” (Remarks on Sentence, p.7).

29 His Honour further found that:-

“It is agreed, in the statement of facts, that Knight was a supplier. Clearly, [the applicant] was acting in concert with Knight, providing him with cannabis. I find that it was an organised criminal activity, and that is a second serious aggravating element”. (Remarks on Sentence, p.7).

30 Mr Boulten, in his detailed and helpful submissions, conceded, as noted above, that the factual findings enabled the sentencing judge to conclude that the cannabis leaf and resin were being held, not only for personal use, but also to supply Knight and perhaps others. However, as he observed, in my view correctly, on the facts established in evidence, it did not follow that the offences were part of an organised criminal activity.

31 The telephone intercept material (in respect of 12 February 2006) established that the applicant was prepared to supply a quantity of cannabis to Knight, one for his use and one for his “old mate”. The evidence did not, in my opinion, establish any additional supply or a more extensive or ongoing supply arrangement between the applicant and Knight or anyone else. He was not charged with any separate offence of supply of cannabis to Knight.

32 Mr Boulten accepted that the cultivation offence was relatively serious (40 cannabis plants), though they were quite small plants. The fact remains that the evidence conveys a picture of a fairly rudimentary situation and certainly not a well-planned or sophisticated operation. This conclusion is not, in my opinion, in conflict with the telephone intercept material, which, apart from one and possibly two calls, were inconclusive.

33 The evidence did not establish the indicia of organised criminal activity such as:-

• The fact, beyond the supply to Knight on the one occasion referred to above, of a multiplicity of actual supplies by the applicant of prohibited drugs as in Fahs (supra) (four supplies).

• The supply offences or the cultivation offence as being constituent parts of an established or an ongoing wholesale drug business or other organisation established for the purpose of supplying drugs.

• An organised criminal activity based on the activities of a number of people participating in the supply of prohibited drugs.

34 In oral submissions, Mr Boulten stated:-

“ The deemed supply of cannabis leaf was fairly standard, and I must say deemed supply of one and a half kilograms of leaf there is nothing attendant about the objective facts of his possession of that cannabis for the purposes of supply which dictate that it be described as being part of a planned and organised criminal activity. Likewise his possession of the home made resin in the sock in the drawer in the bedroom does not, in my submission, allow the conclusion that his possession of it albeit for the purposes of supply was part of a planned and/or organised criminal activity.
Likewise the growing of the cannabis was not such as to lead to such a conclusion even though it did involve, as it were, a hydroponic system that involved the use of lights. There was nothing special about the way that this small system in the back bedroom was being utilised to describe it in a way which justifies the determination that this was part of a planned and organised criminal activity. There were a number of lamps used, the plants were clearly fertilised, but so too you might think would all marijuana plantations be fertilised.
It would be almost unthinkable that people would just throw the seeds in the ground and watch them grow. You have to water them, and if you grow them inside you need to put a light on them. We submit that for instance the absence of automatic watering systems, and air-conditioning systems that are often seen in hydroponic operations allows the conclusion that this was a fairly standard small scale hydroponic crop which did not allow for the conclusion his Honour drew that it was a part of a planned and organised criminal activity.”

35 It was argued on behalf of the applicant that, against the notion that the offences were part of an organised criminal activity, were the fact that:-

• The applicant was not a well-established commercial dealer of cannabis.

• The telephone intercept evidence related to the one supply of cannabis to Knight.

• None of the usual indicia of supply were located by police.

• The police did not find “the usual trappings” of a drug dealer.

36 I have examined the transcript of the intercepted telephone calls between the applicant and Knight in the period 29 January 2006 and 12 February 2006. The applicant admitted in evidence that at least some of these calls related to giving Knight cannabis (his evidence was that they related to one supply of two ounces of cannabis). He said that he had obtained timber supplies from Knight (who operated a mill for several years) in relation to his contract fencing business. He said in the ERISP that he had known Knight for approximately 30 years. He claimed that he gave the two ounces to Knight, one for Knight himself and one for a person referred to on the taped conversation only as “old mate”. In return, he said he received an allowance on the price of timber next obtained from Knight.

37 The intercepted telephone conversations between the applicant and Knight do not record any discussion about type, quality or price of cannabis and they arguably relate to the one occasion involving the abovementioned supply of cannabis to Knight. They do not support a conclusion that the applicant and Knight were discussing the subject of ongoing drug supply or any other transaction than the one to which I have referred.

38 The offence of supply prohibited drug (Count 2) was an offence that plainly required and involved a degree of planning.

39 The sentencing judge, however, was enjoined by s.21A(2) against taking into account any aggravating feature if it is an element of the offence charged. That injunction has been extended to circumstances that are “an inherent characteristic of the offence charged”: Yildiz (supra) at [37] per Simpson J.

40 However, this principle, of course, does not mean that the degree to which the “inherent characteristic” exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor: Yildiz (supra) at [37] per Simpson J.

41 The sentencing judge did not, with respect, in his conclusion, make appropriate allowance for the fact that the supply and cultivation offences necessarily involved a degree of planning. I would apply the same description of planning as occurred in this case to that utilised by Hoeben J in Readburn v Regina [2007] NSWCCA 60 (Sully and Bell JJ agreeing), namely, that the evidence revealed a “low level of planning”.

42 I have concluded that the sentencing judge erred in concluding that the offences were part of an organised criminal activity. The wording of s.21A(2)(n) conveys more than simply that the offence was planned: Fahs (supra) per Howie J at [21]. As Howie J there observed, the fact that there was a level of planning in the offences does not necessarily give rise to an aggravating factor in terms of s.21A(2)(n).

(c) Ground 3: His Honour erred by failing to have regard to the likely quality of the cannabis leaf and resin

43 The evidence before the sentencing judge included a certificate provide by the senior analyst from the Division of Analytical Laboratories, Ms Susan Laird. The factual matters raised in the submissions for the applicant are:-

• That of the approximately 1.6 kilograms of cannabis leaf, only 500 grams was manicured, unseedy head (the highest quality). The remainder was comprised of leafy heads and seeds and ground leaf.

• The bulk of the cannabis was described by the applicant as “rubbishy” .

• The applicant’s evidence was that he had made the cannabis resin himself from “the rubbishy cannabis matter that was in those bags” for his personal use.

44 It was submitted on behalf of the applicant that the bulk of the cannabis leaf and resin was of low quality and therefore difficult to market. The quality of the drugs, it was said, impacted on the potential profitability of the enterprise, a significant feature of the objective seriousness of the offence.

45 The complaint made was that the sentencing judge, in effect, expressed the view that the quality of the drug was irrelevant. The sentencing judge stated, inter alia:-

“… This Court is not here to reach any firm conclusions about the quality of the merchandise for sale or supply by the offender and it is not even here to reach any conclusions about whether he was a successful supplier of cannabis. The only conclusion I am required to reach is whether he was in fact engaged in this, what the Crown describes as, organised criminal activity.” (Remarks on Sentence, pp.3-4)

46 It was contended, in this respect, that the sentencing judge was in error. This was asserted upon the basis that it was relevant to an assessment of the objective criminality of the offending conduct to assess the likely profitability of the enterprise. Reliance was placed upon what was said by Grove J in Regina v Blair (2005) 152 A Crim R 462 at 472, [56]:-

“A prominent reason for determining that the offence does not answer the description of one that falls into the mid-range of seriousness for an offence of the relevant kind is that … the weight of the prohibited drug was in the lower part of the range of defined commercial quantity and it was an extremely low purity.”

47 In response, the Crown contended that the legislation relating to the supply of prohibited drugs involves a scale of seriousness that is reflected in the increase in maximum penalties available as the quantity of prohibited drugs increases. This, it was said, reflects the legislature’s view that the greater the quantity of prohibited drugs supplied, the more serious is the criminality.

48 The Crown further observed that the comments by the sentencing judge and which are extracted above, were made in the context of his assessment of whether or not the applicant was involved in “organised criminal activity”.

49 The Crown alternatively argued that if there was error in not taking into account the quality of the cannabis then it did not appear that his Honour had given any impermissible weight to that fact by increasing the appropriate sentence.

50 This was not a case in which the evidence established in any detail or specificity the purity levels of the cannabis leaf or cannabis resin. I do not consider that the sentencing judge was in error in relation to the significance of the quality of the material when the evidence did not, in my opinion, oblige him or permit him to reach any worthwhile conclusions about the quality of the cannabis materials.

(d) Ground 4: His Honour failed to take into account the fact that the applicant was likely to have consumed himself some of the cannabis leaf and resin

51 On behalf of the applicant, reliance was placed on his evidence to that effect that much of the material was for his own use. By his plea, it was acknowledged that at least some of both the cannabis leaf and cannabis resin was in his possession for the purpose of supply to others. However, it was argued that it was a mitigating factor that it was likely that some of it would be for his own use.

52 In support of this contention, it was said that there was no dispute but that the applicant had been a significant and chronic smoker of cannabis. Accordingly, so the argument ran, there was little reason to doubt his claim that he would have used some, if not most, of the leaf and resin himself.

53 The criticism made is that nowhere in the remarks on sentence did the sentencing judge comment on how the applicant’s intention to use some of the material himself impacted on the objective criminality of the offence. The greater the likelihood of personal use, the less would have been available for supply to others. This, it was said, would go in mitigation of the penalty.

54 Accordingly, the submission was that the sentencing judge over-valued the objective criminality of each of the charges.

55 The Crown relied upon the amount specified in the indictment and the agreed statement of facts and certificate from the Division of Analytical Laboratories which were tendered without objection.

56 The plea of guilty, it was observed by a person with knowledge of the relevant facts, is to be taken as a formal admission by that person of the necessary legal ingredients of the offence.

57 The evidence the applicant gave as to personal use was said to be vague. No attempt was made to quantify the amount that he would have consumed himself.

58 The Crown further contended that the sentencing judge was in the best position to make an assessment of the applicant from seeing him give evidence and from hearing the evidence. The sentencing judge plainly did not accept that the applicant had been truthful and reliable in a number of respects.

59 Reliance was also placed upon the fact that the sentencing judge did find that he began the cultivation “not only for his own purposes” but in a commercial way for the purpose of supplying to Knight and others (remarks on sentence, p.7).

60 The sentencing judge correctly emphasised that the applicant’s credibility was undermined by his conflicting evidence and his initial untruthfulness in the ERISP. In those circumstances, his Honour was not constrained to accept the applicant’s evidence that the cannabis material was primarily for his own use. The sentencing judge did not, in my opinion, overvalue the objective criminality of each of the charges.

(e) Ground 5: His Honour failed to take into account the applicant’s abstinence from cannabis, his steps towards rehabilitation and the low likelihood of re-offending

61 Mr Boulten submitted that the evidence established that the applicant was making substantial progress towards his rehabilitation. He referred to “clear signs” that he was recovering from chronic cannabis use. Reference was made to the positive steps the applicant had taken towards rehabilitation.

62 The sentencing judge referred to the contents of the pre-sentence report, which contained the relevant history. As the Crown observed, the references to this report, although brief, reflect the fact that his Honour had due regard to it. The finding of special circumstances, as the Crown submitted, reveals that his Honour had turned his mind to the relevant aspects of the applicant’s progress. I do not consider there is any substance to this ground.

(f) Ground 6: The sentences were manifestly excessive

63 On the conclusion earlier expressed, the sentencing judge erred in giving undue weight to the applicant’s 1991 conviction and in characterising the offences as part of an organised criminal activity.

64 The issue then becomes whether the sentences imposed were manifestly excessive in light of those conclusions. In other words, was the objective criminality of the offences assessed at an appropriate level, having regard to the other findings made and the relevant circumstances of the offences.

65 In considering the sentence imposed, it is also, of course, necessary to have regard to the applicant’s subjective circumstances. In this respect, there were favourable matters in terms of the applicant’s work history and the fact that he has not previously had a custodial sentence imposed upon him. Regard is also to be had to the references which were tendered at the sentencing hearing.

66 The question of penalty involves the relationship between s.3 (which defines “cannabis leaf” and “cannabis resin” and s.32 of the Drug Misuse and Trafficking Act which prescribes penalties for offences dealt with on indictment not involving commercial quantities and the present offences fall within that category. The supply offences, as earlier indicated, were created by s.25 of the Act.

67 The Judicial Commission statistics which were provided to the Court in respect of s.25 supply prohibited drug (including deemed supply, cannabis resin – less than the commercial quantity) reveal terms of sentence in respect of seven cases of which only three were subjected to custodial sentences. In one case, the offender was sentenced to a term of imprisonment of five years, a second to 48 months and a third to 12 months imprisonment. The sentences were imposed from October 1999 to September 2006.

68 In respect of the same offences, the statistics in respect of non-parole period and fixed terms in relation to three cases reveal six months in one case, 12 months in a second case and 24 months in a third case. The statistics, of course, do not constitute a guide against which to evaluate the sentences imposed in the present proceedings. They are general information only and the statistics are based on a very small number of cases.

69 In Regina v Boorer (CCA, unreported 15 November 1990, Gleeson CJ Grove and Loveday JJ), this Court dismissed an appeal imposed by the District Court in respect of one offence of supplying cannabis leaf and to another of supply cannabis resin. The sentencing judge imposed a sentence on each charge comprising a minimum term of two years and an additional term of eight months, the sentences to be served concurrently.

70 The offender at the time of arrest had three bags containing a block of cannabis resin weighing 28 grams (as against 194 grams in the present case) and seven small and five larger bags containing cannabis leaf and an unspecified amount of cannabis resin. The drugs seized had an estimated street value of $5,000 or, if sold in smaller quantities, not less than $9,000. The sentencing judge was satisfied the drug was for ultimate resale. The offender was aged 29 years and had prior convictions relating to the misuse of drugs.

71 In Sales v The Queen (CCA, unreported 2 June 1989), this Court (Kirby P, Lee and McInerney JJ) re-sentenced on appeal the appellant in respect of two charges of supplying a prohibited drug under s.25 of the Drug Misuse and Trafficking Act 1985. The first charge was the supply of cannabis leaf. The second was in the same terms, except it related to the supply of cannabis resin. The drug in leaf form consisted of 827 grams of cannabis resin and 110 grams of cannabis leaf.

72 This Court imposed a sentence of four years and six months for the offence of supply cannabis resin. The offender was a mature man (38 years). He had been in regular employment. He had had drug convictions in 1972 (possessing a dangerous drug and possessing instruments fro smoking the drug and a conviction for selling a drug of addiction).

73 This latter case was plainly a more serious case to the present (827 grams v 194 grams of cannabis resin). The total amount of cannabis resin in Boorer is, as noted above, unclear from the judgment, but appears to have involved lesser quantities than in the present case. It, however, provides an example of a case falling in the general range relevant to which the present case belongs.

74 Notwithstanding the very persuasive submissions of Mr Boulten, I have concluded that, notwithstanding the sentencing errors identified above, the sentence imposed is within the range of sentences for the offences in question.

75 Courts have, of course, made it clear that drug trafficking will result in custodial sentences unless there are very special circumstances. The extent of supply in this case was of a limited nature. However, the applicant is a mature man who, by reason of his earlier experiences, can hardly be unaware of the serious consequences of dealing in prohibited drugs.

76 I, accordingly, would grant leave to appeal, but order that the appeal be dismissed.

77 PRICE J: I agree with Hall J.

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