R v Carlyon No. Sccrm-98-167 Judgment No. S6889

[1998] SASC 6889

25 September 1998

R v CARLYON
[1998] SASC 6889

Court of Criminal Appeal:  Prior, Lander and Wicks JJ

LANDER J
1 This is a appeal against sentence imposed by a judge of the District Court on 12 June 1998. 
2 The appellant was jointly charged with Grant Patrick Monaghan with one offence of producing cannabis.  Both he and Mr Monaghan have appealed against the sentenced imposed upon them.  Mr Monaghan's appeal has been dismissed by this court. 
3 The circumstances of the offence were that this appellant and Mr Monaghan leased a suburban shop in which they set up what the learned sentencing judge described as, "a sophisticated lighting and hydroponics operation".  Some 454 cannabis plants were found in the shop, although about 135 of them were either dead or in poor condition. 
4 The learned sentencing judge accepted that this appellant's contribution to the criminal activity was less than that of Mr Monaghan's.  Mr Monaghan was also charged with two other offences, being another count of producing cannabis and a count of taking part in the production of cannabis. 
5 The learned sentencing judge sentenced Mr Monaghan to four years and three months imprisonment.  He fixed a non parole period of three years.  This appellant was sentenced to be imprisoned for two years and four months and a non parole period of eight months was set. 
6 The appellant complains that his sentence is manifestly excessive compared to that which was imposed on Mr Richards in R v Mangelsdorf, Perry and Richards (1995) 66 SASR 60 and disparate to that imposed on the co-accused, Mr Monaghan.
7 It was also put that the disparity was exacerbated by reason of the learned sentencing judge failing to give the appellant a 25% discount for his plea of guilty.   If the appropriate discount had been given, so it was argued, the head sentence would have been two years and three months. 
8 I will deal with those matters in reverse order. 
9 There is no rule which says that a plea of guilty requires a reduction of 25% of the sentence which would otherwise have been imposed.  The extent of the reduction is a matter for the sentencing judge which is not regulated with arithmetical precision.  It was for the learned sentencing judge to determine what reduction should have been given to reflect the early plea of guilty and the contrition and remorse that accompanied that plea. 
10 In my opinion, the sentencing process is not so precise that it could be said that the reduction should have been nine months, not eight months.  I am not prepared to interfere with this sentence because the learned sentencing judge reduced the head sentence by only eight months. 
11 I do not believe there is any element of disparity in the two sentences.  It can be accepted that Mr Monaghan was involved in two large crops and a small crop of nine plants.  It can also be accepted that Mr Monaghan was the principal in relation to the crop in which this appellant was involved.  It is also the case that Mr Carlyon was a gardener and not a principal.  He stood to gain significantly less than Mr Monaghan in respect to this crop. 
12 Notwithstanding all of that, the fact of the matter is that the appellant was involved in the production of some 454 plants in a sophisticated commercial setting.  Whilst Mr Monaghan was involved in another crop, the learned sentencing judge accepted that that other crop was planted out of fear and in response to threats made to Mr Monaghan and his family. 
13 I do not think that the sentences involved any matter of disparity when one compares the criminality of each of the appellants. 
14 It is also said that the sentence is manifestly excessive by reference to the sentence imposed on Mr Richards in Mangelsdorf.  I do not agree with that.  It is difficult to compare different offences committed by different people at different times.  The sentence imposed on Mr Richards in Mangelsdorf provides some guidance as to the appropriate range of penalties, but it is not, in my opinion, useful to attempt to compare the facts upon which Mr Richards was sentenced with the facts in this case in any precise detail. 
15 Lastly, it is said that the sentence is manifestly excessive. 
16 The appellant was born on 7 August 1974.  He has accumulated an unimpressive list of convictions since the age of 14.  Since he reached his majority, he continued to offend reasonably regularly. 
17 In November of 1995, he was sentenced to imprisonment for six months for larceny, but the sentence was suspended.   He was sentenced to imprisonment in July 1997 for driving while under disqualification.  He has a number of convictions for possession of equipment and possessing cannabis. 
18 The appellant was born in New Zealand and his parents separated when he was two years of age.  The family came to Australia when the appellant was one year old.  They remained pretty much itinerant.  The appellant started exhibiting behavioural problems at the time of the death of his grandfather when he was aged 12 and he left school at 16. 
19 He was diagnosed in 1990 as suffering from Hodgkin's lymphoma, which is a potentially fatal cancer of the lymphatic organs.  It usually responds well to treatment, but is liable to recur.  He was treated with radiation therapy to the major lymph nodes with good response.   However, he re-presented in 1993 with recurrent Hodgkin's disease.  He was then treated with chemotherapy.  The disease has caused him to become profoundly depressed and he was diagnosed in 1995 as suffering from a major depressive disorder. 
20 He has not worked much.  He had a stable relationship with a young woman for three years. 
21 It was submitted that, in the appellant's circumstances, the period of imprisonment of two years and four months and the non parole period of eighteen months was manifestly excessive. 
22 I cannot agree with that submission.  Even if it was accepted that Mr Carlyon was not the principal, but only a gardener, a term of imprisonment of two years and four months for the size of this crop was not, in my opinion, manifestly excessive.  It was not manifestly excessive having regard to the appellant's antecedents, even allowing for the appellant's unfortunate ill-health. 
23 In my opinion, the penalty was well within the range available to the learned trial judge in the proper exercise of his sentencing discretion.  I am not convinced that the non parole period set was in the circumstances of this case excessive.  The appellant's antecedents suggest that his prospects of rehabilitation are not great.  A non parole period of eighteen months was, in the circumstances, appropriate.   I would dismiss the appeal. 
PRIOR J

24 I agree. 
WICKS J

25 I agree. 
PRIOR J

26 The order of the court is appeal dismissed.