HVN v The Queen - [2007] NSWCCA 207

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: HVN v R [2007] NSWCCA 207

FILE NUMBER(S):
2007/1375

HEARING DATE(S): 9 July 2007

JUDGMENT DATE: 17 July 2007

PARTIES:
HVN - Applicant
Regina - Crown

JUDGMENT OF: Tobias JA Latham J Mathews AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3223

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

LOWER COURT DATE OF DECISION: 21 December 2006

COUNSEL:
Mr PG Hogan - Applicant
Mr T Thorpe - Crown

SOLICITORS:
Ly Lawyers - Applicant
K Kavanagh - Solicitor for Public Prosecutions

CATCHWORDS:
Sentence appeal; aggregate discount for plea of guilty and assistance; no question of principle.

LEGISLATION CITED:

CASES CITED:
R v Sukkar [2006] NSWCCA 92
House v The King
SZ v Regina [2007] NSWCCA 19

DECISION:
1. Applicant granted leave to appeal against his sentence
2. Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/1375
TOBIAS JA
LATHAM J
MATHEWS AJ
17 JULY 2007

H V N v REGINA

Judgment

TOBIAS JA : I agree with Latham J.
LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Maguire DCJ on 21 December 2006 following a plea of guilty to one count of Cultivate not less than a Commercial Quantity of Cannabis. The maximum penalty for that offence is 15 years imprisonment.
The applicant was sentenced to a non parole period of one year, commencing on 1 December 2006, with a balance of term of one year. The sentencing judge’s remarks were brief, although they captured the essence of the agreed facts that became an exhibit on sentence, together with the contents of an affidavit attesting to the applicant’s assistance to the authorities. It is not submitted that there was any patent error in the sentencing exercise, rather that the discount (30%) applied by the sentencing judge in order to reflect the plea of guilty and the assistance was inadequate in the circumstances.
The applicant leased premises in Canley Heights from September 2003 until the date of the execution of a search warrant on the premises on 2 May 2005. Police located 131 mature cannabis plants with an average length of 100 cm in a downstairs garage area and 28 large lampshades, two large air filters and 22 transformers in various locations throughout the house. Police also found 217 cannabis plants of about 20 cm in length in the upstairs rooms of the house. Technicians from Integral Energy identified the diversion of a little over $10,000 worth of electricity from the main supply. Various chemicals, fertilisers, pots and other equipment such as a surveillance camera and monitor were located during the search.
Police identified the fingerprint of the applicant on one of the heating lamps in one of the upstairs rooms where the younger plants were growing. The value of the drugs capable of being harvested from the plants was estimated to be not less than $696,000. In addition, 31 g of cannabis in a resealable bag was seized in the kitchen of the house.

When the applicant was arrested on 11 May 2005, he nominated another address in Cabramatta as his residential address and denied paying rent on the Canley Vale property.
The applicant’s trial was listed for 10 April 2006. On 6 February 2006, a co-offender, who had been recruited by the applicant to water the plants, pleaded guilty and offered to give evidence against the applicant at his forthcoming trial. It was in those circumstances that the applicant indicated on 7 April 2006 that he would also plead guilty at his trial.
A plea entered at such a late stage can hardly attract more than 10% as a discount, standing alone. Counsel for the applicant conceded as much, but takes issue with the paucity of the aggregate discount that the sentencing judge applied, in view of what counsel characterised as assistance “of a very high order”. The argument advanced on the applicant’s behalf proceeded thus : there was a failure to exercise the discretion in quantifying an appropriate aggregate discount and, in any event, a discount of 30% indicated that the “starting point” (34 months) was excessive in all the circumstances of the case.
The sentencing judge’s reference in his remarks to the assistance provided by the applicant was accurate. It was noted that the applicant had been a registered informant since June 2006 (relevantly, after the entry of the plea) and that, as at November 2006, he had supplied information to police that had resulted in the arrest and charging of two persons. Police expected other persons to be charged. The applicant was not in any danger as a result of his assistance.
On the hearing of the appeal, the Court was provided with the confidential exhibit setting out the extent of the applicant’s assistance in more detail. I agree that the applicant’s assistance was beneficial and productive, but it was not so extensive or significant that it exposed the applicant to the type of personal jeopardy that is often reflected in combined discounts for assistance and a plea of guilty above 30%. In the absence of evidence that an offender will be disadvantaged in the prison system because of the assistance he/she has provided, a discount for a plea and assistance above 40% is considered exceptional : R v Sukkar [2006] NSWCCA 92 at [5].
I can see no basis upon which this Court would be justified in interfering with the legitimate exercise of the sentencing judge’s discretion in evaluating the discount to which the applicant was entitled. Minds might differ on the precise quantification, but a difference of two, three or five percent does not establish error in the exercise of the discretion in a House v The King sense.
The next limb of the applicant’s argument also lacks merit. The applicant’s counsel acknowledged that, assuming the sentencing judge started at a sentence of 34 months before applying the discount, a sentence in the order of three years or more was received by almost a third of all offenders sentenced after pleas of guilty to terms of imprisonment for this offence. Taking into account the sophisticated nature of the cultivation, the applicant’s primary role in the offence as the lessee of the premises and the fact that he directed others who assisted him, it could not be seriously suggested that such a head sentence was outside the appropriate range.
The objective gravity of the offence could not, in my view, be marked by anything less. Even after the application of the aggregate discount, the sentencing judge was obliged to ensure that the resulting sentence was not disproportionate to that objective gravity. A non parole period of one year with a balance of term of one year appears to me to be at the very borderline of a proportionate sentence for this offence. This brings me to the fundamental reason for rejecting the applicant’s appeal against the alleged severity of the sentence he is serving.
In SZ v Regina [2007] NSWCCA 19, Howie J said at [4] and [5] :-
There is a limited degree to which an otherwise appropriate sentence can be discounted for one reason or a combination of reasons and yet result in a sentence that duly reflects the objective seriousness of the offence and the purposes of punishment. There was by applying common law principles, and there still is by the application of the provisions of the Crimes (Sentencing Procedure) Act, a bottom line beneath which a sentence cannot legitimately be set. If that bottom line is not respected, the sentence will fail to carry out the purposes of punishment. That bottom line is reflected in relation to a discount for assistance to the authorities by s 23(3) of the Crimes (Sentencing Procedure) Act. It is spelled out there in the Act because it is in relation to the application of discounts for assistance that the often conflicting purposes and policies of sentencing a particular offender come brightly into focus.
But the notion of an irreducible minimum sentence that must inform the lower limit of the sentencing discretion is manifest in the often quoted decisions of this Court emphasising that at the conclusion of the exercise of the sentencing discretion, whatever be the subjective circumstances of the offender and whatever discounts are applied to achieve a recognised public policy, the sentence must bear a reasonable relationship with the objective seriousness of the offence and fulfil the manifold purposes of punishment: see for example R v Geddes (1936) 36 SR (NSW) 554; and R v Dodd (1991) 57 A Crim R 349. Sometimes it is said that the sentence must "accord with the general morale sense of the community": R v Rushby [1977] 1 NSWLR 594. After taking into account the various statutory and common-law principles and applying such discounts that arise on the particular facts, the sentencing judge is required to stand back and ask whether the resulting sentence is just and reasonable, not only to the offender but also to the community at large.
This appeal falls squarely within the parameters of this discussion by Howie J of the “manifold purposes of punishment”. A lesser sentence than that imposed upon the applicant could not be considered by the community as just and reasonable.
I would grant the applicant leave to appeal against his sentence and dismiss the appeal.
MATHEWS AJ : I agree with Latham J.

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LAST UPDATED: 17 July 2007