Court of Criminal Appeal
New South Wales
Case Title: Portolesi v R Medium Neutral Citation: [2012] NSWCCA 157 Hearing Date(s): 2 July 2012 Decision Date: 26 July 2012 Before: Basten JA at [1];
Harrison J at [2];
Beech-Jones J at [3]Decision: (1) The application for leave to appeal be granted.
(2) The appeal be dismissed.
Catchwords: CRIME - appeal - severity of sentence- cultivation and supply commercial quantity cannabis - enhanced indoor means - s 166 offences - whether double punishment - concurrency - whether deemed supply constitutes extra criminality beyond cultivation - whether manifestly excessive - whether special circumstances. Legislation Cited: Crimes Act 1900, s 33, s 110
Criminal Appeal Act 1912, s 6(3)
Criminal Procedure Act 1986, s 166
Drug Misuse and Trafficking Act 1985, s 3, s 23, s 25(1), s 33
Electricity Supply Act 1995, s 64
Firearms Act 1996, s 7A, s 36(1), s 39(1), s 65(3)Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Cassidy v R [2012] NSWCCA 68
Kinchela v R [2010] NSWCCA 167
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Elphick [2010] NSWCCA 112
R v Pearce (Court of Criminal Appeal, Sheller JA, Dowd and Hidden JJ, 18 December 1998, unreported)Category: Principal judgment Parties: Dominic Portolesi (Applicant)
Crown (Respondent)Representation - Counsel: Counsel:
Mr P R Boulten SC, Mr T J Flaherty (Applicant)
Ms M Cinque (Crown)- Solicitors: Solicitors:
Cater & Blumer Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)File Number(s): 2011/004908 Decision Under Appeal - Court / Tribunal: District Court - Before: Toner DCJ - Date of Decision: 23 August 2011 - Court File Number(s): DC 2011/4908
JUDGMENT
BASTEN JA: The application for leave should be granted, but the appeal dismissed, for the reasons given by Beech-Jones J.
HARRISON J: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for leave to appeal from sentences imposed by the District Court in respect of a number of offences concerning the cultivation and harvesting of marijuana by the applicant on a commercial scale.
On 23 August 2011, the applicant was sentenced. He had pleaded guilty to an offence under s 23(2) of the Drug Misuse and Trafficking Act 1985 ("DMTA") of cultivating not less than a commercial quantity of prohibited plants, namely, 197 cannabis plants. For this offence he was sentenced to a total term of five years to date from 6 July 2011, with a non-parole period of three years and six months. The applicant also pleaded guilty to an offence under s 25(1) of the DMTA of supplying a prohibited drug, namely, 3.37kg of cannabis leaf. For this offence he was sentenced to a fixed term of two years, commencing on 6 January 2011.
The combined effect of the two sentences was that he…
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CaseChat Overview and Summary
The case of Portolesi v R involved the appellant appealing against the severity of the sentence imposed by the County Court for the cultivation and supply of a commercial quantity of cannabis. The appellant was found guilty of offences under the Drugs Misuse Act, specifically cultivating and supplying a commercial quantity of cannabis using enhanced indoor means. The appeal centred on whether the sentence was manifestly excessive, whether there was double punishment for the cultivation and supply offences, and whether there were special circumstances warranting a reduction in the non-parole period. The case was heard in the Court of Appeal.
The legal issues before the court were multifaceted. Firstly, whether the sentence imposed was manifestly excessive, taking into account the totality of the appellant's offending and personal circumstances. Secondly, whether the appellant faced double punishment for the cultivation and supply offences, given that the supply charges were deemed to constitute additional criminality beyond the cultivation. Thirdly, whether there were special circumstances that warranted a reduction in the non-parole period. Lastly, the court considered whether the sentence was disproportionate, given the appellant's age, his prospects of rehabilitation, and his first-time incarceration.
In delivering the judgment, the court first noted the significant amount of cannabis involved and the appellant's sole involvement in the enterprise. The court acknowledged the appellant's plea discount and his relatively minor prior criminal history. While the court recognised the appellant's remorse and prospects of rehabilitation, it found that these factors did not constitute special circumstances warranting a significant reduction in the sentence. The court found that the appellant's offending was of a serious nature, given the commercial scale of the operation. The court determined that the sentences for the cultivation and supply charges warranted some degree of accumulation but decided to subsume the other sentences within the main counts. The appeal was ultimately dismissed, and the original sentence was upheld.
The legal issues before the court were multifaceted. Firstly, whether the sentence imposed was manifestly excessive, taking into account the totality of the appellant's offending and personal circumstances. Secondly, whether the appellant faced double punishment for the cultivation and supply offences, given that the supply charges were deemed to constitute additional criminality beyond the cultivation. Thirdly, whether there were special circumstances that warranted a reduction in the non-parole period. Lastly, the court considered whether the sentence was disproportionate, given the appellant's age, his prospects of rehabilitation, and his first-time incarceration.
In delivering the judgment, the court first noted the significant amount of cannabis involved and the appellant's sole involvement in the enterprise. The court acknowledged the appellant's plea discount and his relatively minor prior criminal history. While the court recognised the appellant's remorse and prospects of rehabilitation, it found that these factors did not constitute special circumstances warranting a significant reduction in the sentence. The court found that the appellant's offending was of a serious nature, given the commercial scale of the operation. The court determined that the sentences for the cultivation and supply charges warranted some degree of accumulation but decided to subsume the other sentences within the main counts. The appeal was ultimately dismissed, and the original sentence was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
As suggested by the description of the charges above, the total weight of cannabis leaf located during the search was 3.337kg. The Sentencing Judgment It is only necessary to note six points concerning his Honour's judgment. First, his Honour recounted the facts surrounding the offences and the level of discount his Honour allowed by reason of the applicant's plea. Second, his Honour described the cultivation offence as "significantly above" the middle of the range for this type of offence. His Honour also found that the applicant was the "sole principal involved in this enterprise" and that "he was the one who stood to gain from it". Third, his Honour referred to some of the applicant's subjective circumstances. At the time of sentencing, the applicant was thirty-seven years of age. He had a relatively minor criminal history consisting of charges of possessing and self-administering prohibited drugs nineteen years previously. A number of character references were tendered to his Honour testifying to his good character and the high regard he was held in. Fourth, a psychiatric report indicated the applicant suffered depression and had been abusing drugs since at least 2009 when a relationship broke up. His Honour did not make any express finding as to whether he suffered from depression but rejected the suggestion that it had any role of consequence in his offending. The report also included material concerning the applicant's personal circumstances. It described him as having a close and supportive family. He had never married and has no children. Fifth, his Honour noted a submission made to him that a finding of special circumstances should be made by reason of the applicant's remorse, good prospects of rehabilitation, age, and the fact that it would be his first time in custody. His Honour rejected that and instead only found that there were special circumstances sufficient to enable the combined non-parole period to bear a ratio to the balance of term which was approximately equal to the minimum statutory ratio for individual sentences. Sixth, his Honour referred to the cultivate and supply counts as warranting some "degree of accumulation", but that he proposed to wholly subsume the sentences for the other offences within the sentences for the supply and cultivation counts. At the hearing of the appeal, Counsel for the applicant, Mr P.R. Boulten SC (with whom Mr T.J. Flaherty appeared) refined the grounds of appeal. Only three were pressed (see [40], [56] and [63]). At the outset, however, it is necessary to clarify one matter of confusion that arose at the time of sentencing concerning the cultivation charge. As noted, the applicant pleaded guilty to an offence of cultivate a prohibited plant under s 23(2) of the DMTA. Section 23 relevantly provided:"23 - Offences with respect to prohibited plants(1) A person who: (a) cultivates, or knowingly takes part in the cultivation of, a prohibited plant, (b) supplies, or knowingly takes part in the supply of, a prohibited plant, or (c) has a prohibited plant in his or her possession, is guilty of an offence(1A) A person who:(a) cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is: (i) not less than the small quantity applicable to the prohibited plants, and (ii) less than the commercial quantity applicable to those prohibited plants, and(b) cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose,is guilty of an offence....(2) A person who:(a) cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants,(b) supplies, or knowingly takes part in the supply of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants, or(c) has a number of prohibited plants in his or her possession which is not less than the commercial quantity applicable to prohibited plants,is guilty of an offence."
Ratio Decidendi
Legal Principle Established
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