R v Monaghan No. Sccrm-98-156 Judgment No. S6890

[1998] SASC 6890

25 September 1998

R v MONAGHAN
[1998] SASC 6890
Court of Criminal Appeal:  Prior, Lander and Wicks JJ
LANDER J
1 This is an appeal against a sentence imposed by a judge of the District Court on 12 June 1998. 
2 The appellant was charged and convicted on his own plea of two offences of producing cannabis and one offence of taking part in the production of cannabis.  On one count of producing cannabis he was jointly charged with C. 
3 C has also appealed against the sentence imposed upon him by the same judge on the same day.  For reasons that will become apparent the appeal has been heard separately, and the decision which this court will now announce will also be given separately for the appeal of C.
4 The offence with which this appellant and C are jointly charged involved what the learned sentencing judge described as a sophisticated lighting and hydroponics operation in a suburban shop, which had been leased for the purpose of the production of a crop of cannabis.  The crop consisted of 454 plants, although about one third of these plants were either dead or in poor condition.  The maximum penalty for the offence was 25 years imprisonment or a fine of $500,000 or both. 
5 The second offence was committed in the bedroom of the appellant's home.  He installed another hydroponics operation in that room.  266 plants were found in his bedroom.  The penalty for that offence was the same as for the first offence. 
6 The third offence was for taking part in the production of cannabis.  In that offence he assisted another person to establish and maintain a small cannabis operation in a shed.  There were only nine plants found in relation to that offence.  The maximum penalty for the third offence was a penalty of two years imprisonment or a fine of $2000 or both.  
7 The appellant, as I have said, pleaded guilty to all three offences.  It cannot be said that the plea was entered at the first available opportunity.  He was first arraigned in the District Court on 16 September 1996 but did not enter his plea until 23 February 1998.  I realise, of course, counsel for the appellant has put that during that time negotiations were being carried on between the appellant and the authorities, but still it seems to me the plea was not entered at the first available opportunity.
8 Nevertheless, some discount has to be given in relation to the plea, but the appellant was not entitled to be treated as a person who had entered a plea at the first available opportunity, and therefore exhibited the highest degree of contrition and remorse. 
9 The learned sentencing judge proceeded to impose one sentence in respect of all three counts.  He sentenced the appellant to be imprisoned for a period of four years and three months.  He said that but for the plea of guilty the sentence would have been one of imprisonment for five years.  He fixed a non-parole period of three years, and he refused to suspend the sentence of imprisonment. 
10 The grounds of appeal upon which leave was granted to appeal were expressed by the appellant as follows:
"That the head sentence and non parole period imposed were manifestly excessive, particularly taking into account: 

(a)     The judge accepted the basis for the plea of guilty.  
(b)     My own rehabilitation.
(c)     My plea of guilty."
11 The appellant's submission before the learned sentencing judge and his submission in this court was that the second offence arose because he had been induced by threats to grow this crop because of fear for his safety and the safety of his brother. 
12 The appellant's mother died in Perth some years ago.   The appellant was advised by some people in Western Australia that she died leaving an outstanding debt of some $80000 for drugs which had been supplied to her and used by her.   The appellant was told that he and his brother would have to pay off this debt.  His brother was later kidnapped and held hostage by these people, and was only released after the appellant had agreed to cooperate by growing a crop for them.  The learned sentencing judge accepted that the appellant grew this crop because he believed some terrible harm would be caused to him and other members of his family.  Moreover, the learned sentencing judge accepted specifically that the appellant would not have profited by the cannabis grown in his own bedroom, because either the crop or the proceeds of the crop would be transmitted to those persons who threatened him and his brother. 
13 In respect of the first count, the appellant conceded that the reason for growing that crop was to make money.   Any money received would have been used, so it was submitted, to move the appellant's family to some other place, away from those who were threatening him. 
14 The appellant was born on 24 April 1965.  He has a lengthy criminal history, commencing when he was 17 and continuing pretty well uninterrupted until the time of the commission of these offences.  More recently he has been convicted of drug offences, including producing cannabis and possession of cannabis.  The most serious of those convictions was the offence of producing cannabis for which, in December 1991, he was sentenced to a suspended term of imprisonment of 15 months with a non-parole period of 10 months. 
15 The appellant is the eldest in a family of two children.  He has three step-siblings.  All of his siblings are or have been heroin dependent.  His sister has served some time in prison, and his biological brother has been imprisoned on a number of occasions.  His parents divorced when he was two, and he was raised by his grandparents until the age of nine.  He had little contact with his father and almost none with his mother up until that age.  When he turned nine he moved to Adelaide where he lived with his father and stepmother for about three years.  When that marriage broke down the appellant was placed in Saint John's Boys Home.
16 He resumed contact with his biological mother when he was 17.  She persuaded him to travel to Perth to live.   When he arrived in Perth he found his mother was the manager of an escort agency.  His biological brother was heroin dependent.  He lived with his mother and his brother for some time, and entered into a sexual relationship with his parent, who used the appellant's feelings of inadequacy and rejection for her own purpose.   Eventually that relationship ended when he was imprisoned in relation to dishonesty offences.  He left Western Australia and returned to live with his parents in Melbourne, and after that time had no further contact with his mother. 
17 Independent evidence suggested that the appellant had undergone considerable stress in the years leading up to the offending.  A report from Dr Fugler indicates that during 1996 and 1997 he was consulted by the appellant who was then in a highly agitated and anxious state and given to paranoid ideation.  The extent of the anxiety was demonstrated by the appellant suffering significant hair loss and a skin disorder.  Dr Fugler decided the appellant was a person who had a highly inadequate personality, and who had exhibited clear signs of stress disorder involving an anxiety, paranoid ideation and hypervigilance during the period prior to this offending.
18 It is submitted that having regard to the basis of the plea, his plea of guilty and his efforts at rehabilitation, the head sentence and the non-parole period are manifestly excessive. 
19 In support of that submission, the court was referred to the decision of this court in R v Mangelsdorf, Perry and Richards (1995) 66 SASR 60. It was said that in that case this court determined an appropriate penalty for Mr Richards, who was involved in the growing of a cannabis crop, and received a penalty of four years. It was also pointed out that that penalty had been imposed in circumstances where Mr Richards had pleaded not guilty.
20 It is said that, having regard to the appellant's plea, the penalty imposed upon this appellant ought to have been less than that imposed upon Mr Richards. 
21 It is difficult to compare the circumstances of different offences committed at different times by different people, but it is enough to distinguish the decision in Mangelsdorf to point to the fact that in this case the appellant was facing two separate charges of producing cannabis, and a further charge of taking part in the production of cannabis.  The degree of criminality is greater than that of Mr Richards.  Moreover, in Mangelsdorf, the maximum penalty which could have been imposed was less than ten years or a fine of $50000 which was significantly less than the maximum the appellant faced in relation to the first two counts. 
22 The appellant had some extenuating circumstances which were apparently not available to Mr Richards in Mangelsdorf, but they are not such that in my opinion it can necessarily be said that the appellant ought to have received a head sentence of less than four years and three months.  The sentence imposed was, in the circumstances of this case, severe but I am not prepared to say it is manifestly excessive. 
23 I think I perhaps would have imposed something a little less than that imposed by the learned sentencing judge but I cannot say, having regard to the three separate offences, that the period of imprisonment or the non-parole period set by the learned sentencing judge were, in the circumstances of the appellant's case, excessive. 
24 I think a non-parole period of three years, having regard to this appellant's antecedents, was certainly within the range of the proper exercise of the sentencing discretion. 
25 I am also not prepared to say that a discount of nine months for the plea of guilty was inappropriate. 
26 It was submitted on behalf of the appellant that a plea of guilty must give rise to a discount of 25 per cent on what otherwise would have been the sentence.  I cannot agree with that submission.  The appropriate discount to be given on a plea of guilty depends on the circumstances in which the plea is entered, and whether or not it was entered at the first available opportunity, and whether it really does exhibit genuine contrition and remorse.  A plea of guilty, which is no more than a recognition of the inevitability of a jury's verdict, in my opinion does not necessarily indicate contrition and remorse.  In all cases, a plea does relieve the prosecuting authorities and the courts from the time and expense of prosecuting and adjudicating upon the charge and, for that, the person is entitled to some discount.  However, it would be wrong to say that in every case where a party enters a plea of guilty, a reduction of at least 25% ought to be ordered. 
27 I would dismiss the appeal. 
PRIOR J
30 I agree that this appeal should be dismissed.  The penalty imposed was certainly severe, but it has not been shown to be manifestly excessive. 
WICKS J  
31 I agree that this appeal should be dismissed for the reasons given by Lander J.