Portolesi v R
[2012] NSWCCA 157
•26 July 2012
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 received an overall sentence of five and a half years commencing 6 January 2011 and expiring on 5 July 2016, with a combined non-parole period of four years, commencing on 6 January 2011 and expiring 5 January 2015.
The applicant was also sentenced in respect of a number of offences which were set out in a certificate issued under to s 166 of the Criminal Procedure Act 1986. Those offences were:
(i) possession of an unregistered firearm contrary to s 36(1) of the Firearms Act 1996 in respect of which he received a sentence of six months imprisonment to date from 6 January 2011 and to expire on 5 July 2011;
(ii) failing to maintain a firearm safely contrary to s 39(1)(a) of the Firearms Act, in respect of which he was sentenced to imprisonment to the rising of the Court;
(iii) possession of an unauthorised firearm contrary to s 7A(1) of the Firearms Act, in respect of which he was sentenced to six months imprisonment, to date from 6 January 2011 and to expire on 5 July 2011;
(iv) possession of ammunition without authority contrary to s 65(3) of the Firearms Act, in respect of which he was sentenced to a term of imprisonment for three months, to date from 6 January 2011 and to expire on 5 April 2011;
(v) diverting electricity without authority contrary to s 64 of the Electricity Supply Act 1995, in respect of which he was sentenced to twelve months imprisonment to date from 6 January 2011 and to expire on 5 January 2012;
(vi) possession of a radio communications transmitter, in respect of which he was sentenced to three months imprisonment, to date from 6 January 2011 and to expire on 5 April 2011; and
(vii) possession of a prohibited drug namely 0.4 grams of Methyl-amphetamine, in respect of which he was sentenced to imprisonment to the rising of the Court.
Two matters should be noted about the sentences for these offences. First, all the penalties were made concurrent with the sentences imposed for the cultivation offence and the supply offence. Second, the sentence of three months imprisonment for the offence of possession of ammunition without authority was improperly imposed. The maximum penalty for that offence was a fine of 50 penalty units (see s 65 of the Firearms Act). No point was taken in relation to this on the appeal. The period of that sentence has now expired and it was served concurrently with the sentences for the cultivation and supply offences which I consider were properly imposed.
It should be noted that the applicant had pleaded guilty to all of the offences at the earliest possible opportunity. As a consequence his Honour stated that he received a discount of 25% on the penalty that would have otherwise been imposed.
Facts
A statement of agreed facts was tendered before his Honour. The following is a brief summary.
The applicant is the owner of a vineyard in the rural area of Yenda, near Griffith. The property consists of a residence and numerous sheds. It is approximately 13.4ha.
On 6 January 2011, police executed a search warrant at the property. They entered by walking around some padlocked gates and jumping a small water canal. They were confronted by two aggressive dogs. They approached the residence and knocked on the door. They had a discussion with the applicant and explained the search warrant to him. The applicant directed them towards one of the sheds on the property.
When the police entered the shed they noticed that it had a large number of electrical transformers and power points and detected a strong smell of cannabis. The shed consisted of several rooms. The internal walls separating the rooms were primarily constructed of cool-room panels. The centre corridor which led out to the rear of the shed contained nine 1,000 litre chemical channels which were connected to an elaborate system of PVC and black coloured water pipes.
There were four main rooms within this shed. On one side, two rooms were located each of which contained a large number of hydroponically grown cannabis plants. On the other side of the shed were another two rooms each of which contained a large number of hydroponically grown cannabis plants. The plants were at different stages of growth. Each of the rooms had numerous lights, fans, air-conditioning ducting and irrigation piping. The plants were growing in black pots and were placed in rows underneath heat lamps. The police located 197 plants.
Also located in this shed was a TV screen which displayed the front driveway of the property and the front of the residence. The camera that fed to the TV was located between two other sheds and was surveilling the driveway in front of the residence. There was also a doorbell-type alarm which sounded whenever anyone passed through a sensor at the front entrance to the property. It also triggered a bell in the sheds and in the residence of the property.
The police searched the other buildings on the property. One was a large metal shed. Inside this shed were numerous bottles of fertiliser, lamps, panels, electrical leads and boxes containing planter bags, power boards and a large stand with a motor attached.
Attached to that shed was a fibro clad building which had three rooms. In the hallway of this building there were drying racks leaning against the wall. In the third room, police located two drying racks constructed of timber and wire mesh. These drying racks were on milk crates and had cannabis leaf on them. The police collected the cannabis from the top of the drying racks. There was also an amount of cannabis leaf on the floor throughout the room which the police swept up. The room also contained two large portable gas heaters, portable pedestal fans and a thermometer on the wall.
The police searched the residence on the property. In the rear bedroom of the house, a commercial "Cryovac" machine was connected to power and there were unused Cryovac bags next to the machine. There was a small resealable plastic bag containing cannabis leaf and loose cannabis leaf on a filing cabinet.
In the kitchen area, the police located a mobile phone service jammer. When this device is switched on it makes mobile phones in the vicinity inoperable. Devices of that kind are commonly used to prevent police being able to utilise listening devices as they operate by using a mobile phone signal. Also in the kitchen area, police located an amount of cannabis leaf and a small amount of white powder that was later tested to be methylamphetamine.
In the laundry, police located several boxes of unopened disposable gloves, as well as a "gladbag" containing cannabis leaf, a set of electronic scales, two bottles of liquid fertiliser and more cannabis leaf. Cannabis leaf was found in a bag in a bedroom. In another bedroom various books were found concerning marijuana.
In a storage room attached to the main residence, police located two boxes of 25 plastic shotgun shells, two boxes of shotgun cartridges and a further roll of Cryovac bags.
A search of a freight container situated behind the main growing shed revealed more drying racks.
On 7 January 2011, police returned to the property and conducted further searches. They found a single shot rifle lying in long grass near a row of grapevines within the vineyard.
On that day, a representative of the energy distributor attended and discovered that the central metering pole supplying the large growing shed was directly connected with overhead mains, bypassing the metering service. He also discovered the metering box had been tampered with so that the applicant was only paying for one-sixth of the power he was using.
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.
R v De Simoni
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."
Section 33 specifies the maximum penalties for offences under s 23(1A) and s 23(2). If the offence relating to cannabis plants is less than the large commercial quantity the maximum penalty is a fine of 3,500 penalty units or imprisonment for 15 years or both (s 33(2)(b)). If the offence involves cannabis plants and a large commercial quantity, then the maximum penalty is a fine of 5,000 penalty units or imprisonment for a term of 20 years or both (s 33(3)).
Schedule 1 to the DMTA specifies, inter alia, what constitutes a "commercial quantity" and a "large commercial quantity" of a particular drug. For the drug "cannabis plant", the Schedule differentiates between whether or not the plant is "cultivated by enhanced indoor means". If it is not then the commercial quantity consists of 250 plants and a large commercial quantity consists of 1,000 plants. If it is, then a commercial quantity consists of 50 plants, and a large commercial quantity consists of 200 plants.
The phrase "cultivation by enhanced indoor means" is defined in s 3 of the DMTA as meaning, in relation to a prohibited plant, the cultivation of the plant inside a building or structure that involves any one or more of (i) the nurturing of the plant in nutrient-enriched water, (ii) the application of an artificial source of light or heat, or (iii) suspending the plant's roots and spraying them with nutrient solution. This definition was clearly satisfied in this case.
There are at least three points in the scheme of offences created by the DMTA at which it may be relevant to determine whether or not a person has cultivated a prohibited plant by "enhanced indoor means". First, it is an element of an offence under s 23(1A). Thus the cultivation by enhanced indoor means of a number of prohibited plants which is not less than the small quantity but is less than the commercial quantity is elevated from being an offence under s 23(1) to the more serious offence created by s 23(1A). Second, if it is undertaken in the presence of a child it may render the offender liable to be prosecuted for the offences provided for in s 23A of the DMTA. Third, for the purpose of s 23(2) and s 33, it operates to lower the thresholds of what constitutes a commercial quantity and a large commercial quantity for cultivating cannabis plants.
In this case, during the sentencing hearing his Honour was wrongly advised that if he were to find that the cultivation of 197 plants by the applicant occurred by enhanced indoor means, that would effectively result in a finding that he was guilty of a more serious offence or was exposed to a higher maximum penalty for the same offence, and thus offend the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. This led to his Honour expressing concerns in his judgment to that effect. The written submissions on appeal in relation to ground one repeated this misconception by submitting that his Honour had nevertheless made such an error by making findings that effectively characterised the cultivation as having involved enhanced indoor means. His Honour did do that, but it was not an error. In this case, the making of that finding did not have the effect that he was guilty of a more serious offence or exposed to a higher maximum penalty for the offence he pleaded guilty to (or even a higher standard non-parole period: cf Cassidy v R [2012] NSWCCA 68). In fact, by pleading guilty to an offence under s 23(2)(a), the applicant necessarily conceded he had used "enhanced indoor means". If he had not used such means, then the number of plants he was responsible for (197) was less than the applicable commercial quantity for an offence of cultivating cannabis plants without the use of enhanced indoor means (250).
Mr Boulten SC, who did not appear before his Honour or prepare the written submissions on appeal, abandoned this part of ground one from the outset. He accepted that his Honour did not err in this respect by making findings about the sophisticated nature of the cultivation operations.
Revised Ground One - Double Punishment
Revised ground one alleged that his Honour imposed a form of double punishment in assessing the applicant's culpability for the cultivation offence.
As noted above, a significant matter relied on by his Honour in assessment was the sophisticated aspects of the cultivation system utilised by the applicant:
"To my mind the features of the crime which are significant in assisting in making this assessment include the highly sophisticated nature of the setup that he had established for the purpose of cultivating this crop. Clearly much effort had been expended in establishing this plantation. What is more, a sophisticated electronic surveillance system had been employed which enabled him to detect any unwanted person approaching the premises ...
A disturbing feature is that he held a telecommunications device which I have described within the facts as I have found beyond reasonable doubt. True it is, he is to be sentenced in relation to his possession of that particular device but I can also take into account the fact that he had that in his possession and the only purpose for which he could have had such a device I that which I have described in the facts [ie to prevent listening devices being utilised]. ...
Additionally he is charged with diverting the electricity without authority. Again, he is charged in relation to that and he will be sentenced discretely for it but nonetheless I should also indicate that it is one of the indicia that described the relative sophistication of this particular plantation. I do not take the fact that he has committed this crime into account as an aggravating feature in this offence, but merely to indicate the relative sophistication of the establishment of this plantation.
Clearly to my mind the only real inference available as to why he did that was to ensure that the amount of electricity that was used in the cultivation of this crop did not reflect in the bill that would be payable to the electricity authority nor would it disclose the relative amount of electricity that was used in its purpose so as to attract the attention of those who might be attracted to the unusual amount of consumption of electricity for a house premises such as that to which the supply was connected." (emphasis added)
Mr Boulten SC contended that this aspect of his Honour's reasoning involved a form of double punishment in that the circumstances of the cultivation offence were treated as being aggravated by reason of the applicant's conduct in diverting electricity and possessing the telecommunications device, conduct in respect of which he was separately sentenced. He referred to the decision in Pearce v R [1998] HCA 57; (1998) 194 CLR 610.
In Pearce, the offender pleaded guilty to charges under s 33 and s 110 of the Crimes Act 1900 both of which had, as an element of the offence, the infliction of grievous bodily harm. The charges arose out of a course of criminal conduct involving the infliction of grievous bodily harm upon the one victim. The appellant was sentenced to a term of imprisonment of 12 years with a minimum term of eight years for each offence. The sentences were made wholly concurrent. The High Court found that each of these sentences contained a portion of punishment for the infliction of grievous bodily harm upon the victim and this constituted a form of double punishment (at [40] to [43] per McHugh, Hayne and Callinan JJ; Gummow J agreeing at [69], contra Kirby J at [132]):
"40. To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
...
43. The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act."
The plurality (McHugh, Hayne and Callinan JJ) then considered whether the conclusion that the appellant had been doubly punished was avoided by the making the sentences wholly concurrent and concluded it was not:
"44. Does that matter if, as was the case here, an order was made that the sentences be served concurrently?
45. To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
...
49. Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count." (emphasis added)
These passages from Pearce are often cited for the proposition that the appropriate means of sentencing for multiple offences is to first identify the appropriate sentence for each offence and to then consider questions of cumulation, concurrency as well as totality (Pearce at [45]). They also indicate, however, that at the first stage of determining the appropriate sentence for the individual offences, it is necessary to fix an individual sentence that avoids double punishment in respect of some element or aspect that one of those offences has in common with other offences that the offender is being sentenced for (Pearce at [49]).
This is illustrated by the sentences imposed on the appellant in Pearce when his matter was remitted to this Court (R v Pearce, Court of Criminal Appeal, Sheller JA, Dowd and Hidden JJ, 18 December 1998, unreported). The sentence for the s 33 offence was confirmed but he was resentenced for the s 110 offence to a fixed term of two years to be served concurrently with his sentence on other counts including the s 33 offence. The relatively small penalty imposed for the s 110 offence reflected the fact that he was punished for the element of inflicting grievous bodily harm in the penalty received for the s 33 offence.
In this case although his Honour sought to avoid the suggestion that the appellant was being twice punished for possessing a telecommunications device and diverting electricity, in my view that conclusion cannot be avoided. His Honour's conclusion as to the degree of sophistication involved in the cultivation offence were part of the reasoning that lead to the finding as to the overall level of seriousness of the offence. His Honour took into account the fact that the applicant "held" (ie possessed) a telecommunications device and diverted electricity to avoid detection. Those matters were encompassed by separate charges in respect of which he received separate sentences. The level of sentences imposed for those offences, being 12 months and 3 months imprisonment, suggests that they fully reflected the criminality involved in that conduct.
This conclusion does not, however, necessarily lead to the result that there was error on his Honour's part in the sentence arrived at for the cultivation offence. As noted, in Pearce the sentence on one of the offences was ultimately confirmed on remittal. In R v Elphick [2010] NSWCCA 112 the Crown appealed from a sentence imposed by the District Court on the respondent for affray and assault occasioning bodily harm. Each sentence consisted of a non-parole period of 18 months with a balance of term of 6 months and they were wholly concurrent with each other. The charge of assault occasioning actual bodily harm had been included on a certificate under s 166 of the Criminal Procedure Act 1986. Both offences arose out of the same events and had a common element of unlawful violence having been inflicted on the same victim. The sentencing judge had felt restricted in imposing sentence by the two year limit applicable to the offence the subject of the s 166 certificate and expressed a concern that, in order to avoid double punishment, he could not sentence the respondent for the affray on the basis of the unlawful violence also the subject of the assault offence (at [25]).
This Court concluded that sentencing judge was not so constrained. Grove J, with whom Allsop P and Hislop J agreed, held (at [26] to [30]):
"26 Those observations [of the sentencing judge] reveal a misapplication of the cited authority [ie Pearce]. The vice to be avoided is "punishing an offender twice" but this does not require ignoring elements which are common to overlapping offences.
27 In the present case it would have been apt to consider, independently, the facts and circumstances relevant to sentence for the indicted offence of affray and proceed to sentence accordingly. No inhibition on so doing is provided by the existence of the offence on the s 166 certificate.
28 The strictures in the extract from Pearce are focussed upon the avoidance of double punishment not on the structure of sentence imposition. The fact that the mechanics of dealing with the offence of assault occasioning actual bodily harm, in the absence of election, placed a limit on the term for that offence does not operate to inhibit an appropriate sentence being imposed for the offence of affray.
29 If the offence of affray is first dealt with, then when turning to deal with the offence of assault occasioning actual bodily harm, any necessary step in assessment of punishment for that crime to avoid that which would amount to double punishment can be taken.
30 In my view, the Judge's perception that the statutory constraint which limited sentence for assault occasioning actual bodily harm to imprisonment for 2 years restrained him from imposing a greater sentence than that for the offence of affray was incorrect and it was a material error to apply that perception when pronouncing sentence."
Consistent with these observations, it was open and in fact appropriate for his Honour to consider the common "elements" or aspects to the various charges in the course of sentencing for the cultivation offence first before addressing the offences on the s 166 certificate including the charges of diverting electricity and possessing a telecommunications device.
In my view the potential for double punishment arose at the later point in the sentencing judgment when his Honour imposed custodial sentences for the diversion and possession charges. It is at this point that a tension arises between the approaches taken in various authorities to fix a sentence that avoids double punishment. In Elphick, Grove J proceeded to resentence the respondent to 3 years imprisonment on the affray offence (at [44]). In relation to the sentence of assault occasioning actual bodily harm, his Honour stated (at [45]):
"... I would not intervene in respect of the extant sentence of assault occasioning actual bodily harm but an order permitting concurrent service whereby the entirety of that sentence will be subsumed within the non-parole period of the sentence for affray will, as contemplated by Pearce, avoid any double punishment of the respondent."
With respect, I doubt that Pearce "contemplated" the avoidance of double punishment by making the sentences concurrent. To the contrary, in Pearce the use of concurrency was found not to have avoided double punishment. Instead it was found to have masked the "flaw" in the individual sentences which arose from the double punishment for the element of causing grievous bodily harm to the one victim that was common to both offences (Pearce at [43]). I note that a similar approach to that of Grove J in Elphick on this issue was adopted by Kirby J in Kinchela v R [2010] NSWCCA 167 at [47] (Hodgson JA and Whealy J agreeing).
However, it is unnecessary to consider it further on this appeal. In my view if there is any error it only arises in respect of the sentences for diverting electricity and possession of a telecommunications device and not for the cultivation offence. To have ignored those matters in describing the sophistication of the applicant's system of cultivation would have been artificial. It would have run the risk that the overall sentence would not reflect the totality of the applicant's conduct in cultivating prohibited plants. I do not understand the applicant to be seeking leave to appeal in respect of the sentences imposed for the divert electricity and supply charges. Unlike the sentences considered by the High Court in Pearce those sentences have now been served in their entirety.
Further, even if his Honour erred by considering the diversion of electricity and the possession of the telecommunications device in determining the applicant's culpability for the cultivation offence I would still have concluded that no other sentence was "warranted in law" (s 6(3) of the Criminal Appeal Act 1912). Leaving aside any consideration of the diversion of electricity or the telecommunications device, the applicant was still operating a sophisticated cultivation system involving a number of plants just short of the large commercial quantity.
I reject ground one.
Ground Three - Accumulation
Ground two was not pressed. Ground three alleged that his Honour erred in failing to make the sentence for the supply charge wholly concurrent with the cultivation charge.
Mr Boulten SC submitted that there was no demonstrable extra criminality revealed by the supply charge. He contended that it was highly likely that the cannabis leaf which formed the subject of the supply charge was grown from the plants the subject of the cultivation charge.
In relation to the supply count, his Honour found:
"The supply count is perhaps a template of its type. The amount of drugs involved was 3.337kg. It stands discrete to the cultivation offence and to my mind there ought to be not only obviously a discrete sentence for it, as there must be, but there should be a degree of accumulation in sentencing as between the cultivation and supply counts and I shall do so to reflect that fact."
The degree of accumulation imposed by his Honour was six months.
His Honour did not make an express finding that the cannabis leaf the subject of the supply charge was derived from the plants the subject of the cultivation charge. It does not appear that any such finding was urged upon his Honour, although there was no evidence that the cannabis leaf was sourced from elsewhere. However, even if this Court were to proceed on the basis that the cannabis was sourced from the plants the subject of the cultivation charge, I do not consider that any error has been demonstrated by the limited degree of accumulation that his Honour imposed in respect of the supply and cultivation charges.
In Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27], Howie J (with whom Adams and Price JJ agreed) stated:
"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
The agreed facts revealed a number of indicia of supply in addition to the cannabis leaf that was found. Located within the residence was a set of electronic scales, a commercial Cryovac machine and unused Cryovac bags. While the cultivation charge would extend to the harvesting of the cannabis, it would not encompass what appears to have been those aspects of the applicant's operation which appear to have been directed towards the supply of cannabis leaf. Consistent with the approach outlined in Cahyadi, to have made the sentence for the supply offence wholly concurrent with the longer sentence for the cultivate offence would have entailed a significant risk that the overall sentence would have failed to reflect the total criminality of the applicant's conduct.
I reject ground three.
Ground Four - Manifestly excessive
Ground four contends that the sentences imposed for the cultivation offence and overall for both the cultivation and the supply offences are manifestly excessive.
The combined effect of the two sentences was that the applicant received a non-parole period of four years and an overall term of five and a half years. Mr Boulten SC referred us to sentencing statistics for s 23 offences involving cannabis plants of a commercial quantity which indicate the comparatively rare occurrence of a sentence in that order for this offence. He also provided us with some information concerning the sentences in the upper end of this range of offences which indicated that, in a limited number of case where sentences of this order had been imposed, most of the offenders had prior convictions for similar offences. Mr Boulten SC submitted that the absence of any similar record on the part of the applicant and his good work history warranted a conclusion that either the sentence for the cultivation offence or the combined effect of that sentence and the supply offence was manifestly excessive.
I have summarised the matters considered by his Honour in sentencing, including the subjective case of the applicant above. The sentence for the cultivation offence involved a non-parole of three and a half years and an overall term of five years. I accept that this is at the high end of the range of penalties that have been imposed for this offence. However, in my view, it was not excessive. It is to be remembered that the number of plants located was 197, which in the circumstance of the use of "enhanced indoor means" is three short of a "large commercial quantity", a figure which renders an offender liable to a maximum term of imprisonment of twenty years. His Honour found that the applicant was the sole participant in the offence. As is clear from the facts, and confirmed by his Honour's findings, it was a highly sophisticated venture that he had embarked upon, apparently on his own, for commercial gain. Given the risks and the level of capital expenditure and personal effort involved, the anticipated commercial gain must have been very significant.
In my view, not only was the sentence imposed for the cultivation offence open to his Honour, no lesser sentence was warranted in law.
Otherwise, the applicant received the benefit of considerable leniency by the reason of the concurrent sentences imposed for those offences on the s 166 certificate whose criminality was not fully reflected in the sentence imposed for the cultivation offence (e.g. possession of a firearm). These conclusions are not altered by any consideration of the additional six months to the combined non-parole period and overall term which flows from the relatively small degree of accumulation of the sentence on the supply offence.
Although not a separate ground of appeal, Mr Boulten SC criticised that part of his Honour's judgment which in part accepted and in part rejected a contention that a finding of special circumstance was warranted. His Honour found:
"The bases that I ought to find special circumstances are [submitted to me] that he is remorseful, that he represents good prospects of rehabilitation, his age and the fact that this is his first time in gaol. I do not agree. There will be some slight discount in the sentence I impose for the fact that this is his first time in gaol, but otherwise it is hard to see any special circumstances in this case. I should note in passing that I will find special circumstances for one technical reason, namely to maintain the statutory ratio between the total sentence and non-parole period, but beyond that I am hard pressed to see any other circumstances which could be described as special. Particularly, I do not see his age as a factor that can be taken into account. He is now thirty-seven."
I do not see any error in the failure of his Honour to find special circumstances other than that which was necessary to ensure the combined non-parole period bore a ratio to the balance of term which was approximately equal to the minimum statutory ratio for individual sentences (72% and 75% respectively). A finding of special circumstances does not necessarily follow from merely identifying some distinctive features of an offender's case. The sentencing court needs to be persuaded that there is something about those features, such as the need for an extra period of rehabilitation, which warrants a variation of the statutory ratio (see, for example, Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [58]). In this case, his Honour was not persuaded that any further variation was warranted. I see no error in that approach.
I reject ground four.
The orders I propose are:
(1) The application for leave to appeal be granted.
(2) The appeal be dismissed.
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