R v Skorin

[2005] NSWCCA 276

CITATION:	Regina v Skorin [2005] NSWCCA 276
HEARING DATE(S):	14/06/05
JUDGMENT DATE:	11 August 2005
JUDGMENT OF:	James J at 1; Howie J at 54; Rothman J at 55
DECISION:	Crown appeal against sentence allowed. Respondent re-sentenced

CATCHWORDS:	CRIMINAL LAW - sentence - crown appeal - offence of knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants - guilty plea - assistance provided by the respondent - the respondent was not at the lowest level of the organisation but was, at least, at some intermediate level - whether sentence imposed was manifestly inadequate
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act Criminal Appeal Act Criminal Procedure Act Drug Misuse and Trafficking Act
CASES CITED:	R v O'Donoghue (1988) 34 A Crim R 397 R v Khouzame [2000] NSWCCA 505 R v Mills [2005] NSWCCA 175 R v Wall [2002] NSWCCA 42
PARTIES:	Regina v Blaz SKORIN
FILE NUMBER(S):	CCA 2005/901
COUNSEL:	Ms VJ Lydiard - Crown AJ Bellanto QC - Respondent
SOLICITORS:	S Kavanagh - Crown Uther Webster & Evans - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/1053
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ

2005/901 CCAP

JAMES J
HOWIE J
ROTHMAN J

Thursday 11 August 2005

R v BLAZ SKORIN

Judgment

1 JAMES J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against a sentence imposed on the respondent Blaz Skorin (also known as Bill Skorin) in the District Court on 31 March 2005 by his Honour Judge Puckeridge QC for an offence, to which the respondent had pleaded guilty, of knowingly taking part between 1 June 2002 and 18 March 2003 in the cultivation of not less than a large commercial quantity of cannabis plants.

2 Judge Puckeridge sentenced the respondent to a term of imprisonment of two years two months, with a non-parole period of one year (or, more accurately, slightly less than one year) commencing on 31 March 2005 and expiring on the 27 March 2006. The respondent had been arrested on the 17 December 2003 but had been released on bail on 19 December 2003 and had remained at liberty on bail until he was sentenced. Judge Puckeridge ordered that the non-parole period of the sentence he was imposing should expire on 27 March 2006, so as to take into account the discrete period of three days of pre-sentence custody. Judge Puckeridge sentenced the respondent in accordance with the repealed s 44 of the Crimes (Sentencing Procedure) Act, because the period within which the offence had been committed had commenced prior to 1 February 2003.

3 Pursuant to Div 7 of Pt 3 of Ch 3 of the Criminal Procedure Act Judge Puckeridge also sentenced the respondent on a back-up charge of possessing an unregistered firearm, which was a .177 calibre air rifle. On this charge the respondent was sentenced to the rising of the Court. No complaint was made against this sentence on the hearing of this appeal and this offence can be disregarded.

4 Knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants is an offence under s 23(2)(a) of the Drug Misuse and Trafficking Act for which the maximum sentence under s 33(3)(b) of the Act is imprisonment for a term of twenty years or a fine of 5,000 penalty units or both.

5 The respondent had pleaded guilty to the drug offence in the Local Court on 13 August 2004 and was committed for sentence to the District Court. He first came before Judge Puckeridge on 18 November 2004.

6 On 18 November 2004 an agreed statement of facts not in dispute was tendered and became exhibit B in the proceedings on sentence. This statement of facts not in dispute was, subject to the qualifications I am about to mention, in the terms set out hereunder. The qualifications are that I have omitted certain parts of the statement which would appear to be of little or no significance and in some cases I have summarised in brackets, rather than quoted, paragraphs in the statement. I have retained the paragraphing in the exhibit and the references to the respondent as “the prisoner”. The statement reads:-

“1. The Prisoner is married with two small children (six and one years of age) and operates a delicatessen at Concord owned by his parents.
2. On 15 March 2003, Police executed two Search Warrants upon neighbouring properties in the Fifield area. Fifield is situated about 90km north west from the township of Parkes. Fifield consists of a small hamlet, surrounding farm and bushland.
3. Search Warrant 1 was executed upon property Hippy Valley. Search Warrant 2 was executed upon property Emu Plains.
4. On the property Hippy Valley, Police located two separate cannabis plantations of mature plants each site-fed by an irrigation system which was sourced from the neighbouring property Emu Plains.
………………
6. On Monday, 17 March 2003, application was made and granted at Forbes Magistrate’s Court for the destruction of 6,765 cannabis plants which were burnt on the site later that day. The estimate of the crop’s value is in the vicinity of millions of dollars.
7. Emu Plains is owned by Giuseppe Mammone, date of birth: 7 November 1931. Hippy Valley until a short time prior to 15 March 2003, was owned by Skorin Holdings of which the Prisoner, Bill Skorin, date of birth: 10 February 1974, is a director.
8. Bill Skorin is the nephew of Giuseppe Mammone.
9. Hippy Valley was transferred to Luca Badalamenti on 17 January 2003. The person, Luca Badalamenti cannot be located.
10. (The respondent was arrested on 17 December 2003).
11. Bill Skorin agreed to partake in an electronically recorded interview in which the Prisoner stated he did not own the property “Hippy Valley”.
12. The Prisoner denied any knowledge of the cannabis crop.
13. (Three firearms were found in a gun safe at the respondent’s home, one of which was unregistered).
14. The Prisoner’s involvement in the set up and growing of the marijuana crop at Hippy Valley, includes the following:
(a) Organising and supplying various items of equipment to the plantation workers, including sleeping bags, and the vacuum packing machine for the cutters who were to harvest the crop.
(b) Food was supplied from Skorin Delicatessen through Giuseppe Mammone, Tony Greco and Nunzio Mangano, on several occasions, for the three workers, who stayed most of the season at the crop site.
(c) The Prisoner rang a number of places and located the large marquee style tent, (subsequently set up by others to house the drying racks on which the marijuana was to be dried before packaging).
(d) Supplying a vacumatic brand packaging machine for wrapping the dried crop.
15. Involvement in the following activities (revealed from lawfully intercepted telephone conversations with co-defendants and other persons recorded between the period 27 February 2003 to end March 2003 by the New South Wales Crime Commission):
(a) Conversations with various persons in early March 2003 discussing the organising of workers for the harvesting of the crop;
(b) Organising a check by his sister, Antoinella on the identity of a vehicle seen in the vicinity of the crop site on or about 14 March 2003 and reporting to the co-defendant, Mangano that it was a government vehicle;
(c) Attending a meeting with co-defendants, Tony Greco and Giuseppe Mammone and two workers (including Ramsay) near Strathfield Railway Station on 15 March 2003 following news of the Police raid on the plantation (discussing whether it was crop-raiders rather than police);
(d) Discussing with co-defendant, Mangano on 16 March 2003 whether the plantation site is still being watched and whether it was safe to go up there or not;
(e) Discussing the sleeping bags with his wife on 11 March 2003 (the day they were bought from Boots Outdoor World at Lidcombe);
(f) Reporting to co-defendant, Giuseppe Mammone on 3 March 2003 how a neighbour at the plantation (the witness, Andrew Knopp) had complained to co-defendant, Valensise (who was on the plantation site at the time) about possible incursions into their properties by animal shooters/hunters;
(g) Attending a meeting at Kemps Creek on 14 March 2003 with co-defendants Mammone and Mangano to discuss something that had arisen up at the plantation site (possibly the government vehicle visit);
(h) Warning co-defendant, Giuseppe Mammone on 16 March 2003 (who was driving up to the plantation site to see if it was still under surveillance), that the raid was on the computer and to come back and not to go there.
16. Items seized by the police from the site linking the Prisoner Skorin to the site included a note saying, “Tell Bill the cutters need sleeping bags”, spices with name of Skorin’s business on them, “Skorin Deli”, sleeping bags from Boots similar to one found at Skorin’s home and a vacumatic packaging machine bought by Skorin Deli”.

7 The statement of facts not in dispute left outstanding some issues between the parties, including the level of the respondent’s role in the criminal organisation and, in particular, whether, as the Crown contended, he had been a principal and whether the respondent had known, for certain, prior to December 2002, that cannabis plants were being cultivated on the property “Hippy Valley”. Oral evidence on these issues was adduced on 18 November 2004, 19 November 2004 and 10 March 2005. The Crown called as a witness a man named Ramsey, who gave lengthy evidence-in-chief and who was extensively cross-examined by counsel for the respondent, and a man named Chalmers, who gave little or no evidence of any significance. The respondent gave lengthy evidence in his own case and was extensively cross-examined by the Crown’s representative in the proceedings on sentence. The respondent also called as a witness a person who gave brief evidence that he had witnessed the signatures on the transfer of the property “Hippy Valley” from the respondent to Badalamenti.

8 In his remarks on sentence his Honour summarised some of Ramsey’s evidence and the following summary of parts of Ramsey’s evidence is taken from his Honour’s remarks on sentence.

9 Ramsey gave evidence that in August 2002 he had received a telephone call from the respondent in which the respondent asked Ramsey if Ramsey wanted to do some work. Shortly afterwards Ramsey and the respondent had a meeting at a hotel. At this meeting the respondent asked Ramsey again if he wanted to do some work and after Ramsey had replied in the affirmative the respondent said, “we are going out to the property and growing dope”. The respondent told Ramsey that, if he worked at the property, he would be paid $100,000.00 clear at the end of the venture.

10 Ramsey gave evidence that he went to the property “Hippy Valley” in August-September 2002. At the property Ramsey organised two plantation sites and carried out fencing and irrigation works.

11 Ramsey said in his evidence that the respondent had come to the property on a number of occasions. On these visits the respondent supplied food for Ramsey and his fellow workers. On these visits the respondent looked at the plantations and asked Ramsey questions such as what was being done by way of fertilising and irrigating the plants. At the end of February 2003 the respondent bought tents to the property to accommodate the additional workers who would be participating in the harvesting of the crop.

12 Ramsey was permitted by his Honour to give evidence that in the previous year he had been enlisted by the respondent in September 2001 to work in the cultivation of a large plantation of cannabis plants on the neighbouring property “Emu Plains” and that he had worked on the site in the cultivation of that plantation. His Honour ruled that, although the respondent had not been charged with and was not being sentenced for any offence in connection with this earlier plantation, Ramsey’s evidence about the earlier plantation was admissible, as being relevant to determining the extent and duration of the respondent’s involvement in the cultivation which was the subject of the charged offence.

13 In his remarks on sentence the sentencing judge summarised the respondent’s evidence in the proceedings on sentence by saying that the respondent denied that he had enlisted Ramsey and the respondent asserted that his role in the cultivation of the cannabis plants had been limited, that he had attended meetings and carried out activities only at the bidding of his uncle Mr Mammone and had been overborne by his uncle and that his involvement in the cultivation of the plants had been limited to a period from December 2002, when he first knew for certain that cannabis plants were being cultivated on the property.

14 In the proceedings on sentence it was submitted by counsel for the respondent that the sentencing judge should not accept Ramsey’s evidence, on grounds which included that some of the evidence Ramsey had given in the proceedings on sentence had not been included in statements he had previously made to the police, Ramsey had a criminal history including convictions for drug offences and Ramsey had been given an indemnity against prosecution for anything he had done in the cultivation of the cannabis plants.

15 In his remarks on sentence Judge Puckeridge said that it was necessary to look at Ramsey’s evidence with caution. His Honour expressed doubts about some of the matters of which Ramsey had given evidence. However, his Honour decided that he should not reject the whole of Ramsey’s evidence. His Honour proceeded to make findings that he should accept Ramsey’s evidence that Ramsey had been enlisted by the respondent, such a finding being inconsistent with the respondent having a merely limited role in the cultivation of the cannabis plants, and that the respondent had made visits to the property to see how the cultivation of the plants was proceeding.

16 In his remarks on sentence the sentencing judge said that he accepted that “the prisoner may well have been imposed on by other members of his family, out of a mistaken sense of family loyalty” but that “nevertheless, I consider that he was a willing participant in the cultivation”. His Honour did not make any specific finding about the position of the respondent in the criminal organisation responsible for cultivating the cannabis plants.

17 I will now turn to some of the subjective features of the respondent. The respondent was born on 10 February 1974. He is a married man with two children, who, until he was imprisoned, operated a delicatessen. He had no previous criminal convictions. In his remarks on sentence the sentencing judge said that he considered that any contrition the respondent felt stemmed from the position in which he had placed his family rather than from any regret about his part in the cultivation of the plants.

18 Two letters from the New South Wales Crime Commission dated 18 November 2004 and 10 March 2005 about assistance provided by the respondent to law enforcement authorities were placed before his Honour. A further letter from the New South Wales Crime Commission dated 24 June 2005 was forwarded to this Court after this Court had reserved its decision on the Crown appeal.

19 In his remarks on sentence the sentencing judge explained how he had arrived at the sentence he was imposing. His Honour considered that, but for the plea of guilty and the assistance provided by the respondent, an appropriate sentence would have been imprisonment for five years. His Honour found the respondent was entitled to a full discount of 25 per cent for the utilitarian value of his early plea of guilty, thus reducing the putative sentence to a sentence of imprisonment for three years nine months.

20 His Honour found that the assistance the respondent had provided to law enforcement authorities had been “significant” and, because of that assistance, his Honour further reduced the sentence to a sentence of imprisonment for two years two months. His Honour then held that there were special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act, being that the respondent had no previous criminal convictions, that the respondent because of the assistance he had provided would serve his sentence in protective custody and what his Honour described, without further specifying, as the matters referred to in a psychologist’s report about the respondent.

21 The psychologist’s report in part observed that the respondent’s day to day life was associated with high levels of anxiety, stress and repressed anger with the respondent lacking in appropriate ways to respond to these. Further, the respondent appeared strongly driven by his perceived cultural responsibilities to maintain and support his immediate and extended family, to improve their wealth status, to protect them and solve their problems, but simultaneously the respondent appeared to feel angry and resentful of these expectancies and responsibilities.

22 By letter dated 11 April 2005 the Director of Public Prosecutions gave notice to the respondent that the Director was considering an appeal against the sentence imposed on the respondent. The notice of appeal was filed on 13 May 2005 and served on the respondent on the same date.

23 The principal submission made by the Crown in support of the appeal was that the sentence imposed on the respondent was manifestly inadequate.

24 In support of this general submission the Crown pointed to the large number of plants being cultivated, to the planned and organised nature of the criminal enterprise, to the period of several months during which the plants had been cultivated and to the estimated value of the crop as being millions of dollars.

25 It was submitted by the Crown that, although the sentencing judge had not made any express finding about the position of the respondent in the criminal organisation, parts of the undisputed statement of facts and the findings the sentencing judge did make as a result of Ramsey’s evidence indicated that the respondent was at a high level in the criminal organisation.

26 It was submitted that the enterprise was clearly a commercial enterprise and that, although the sentencing judge had not made any express finding, it should be inferred, as the only reasonable inference which could be drawn, that the respondent, who was not himself a user of drugs, had participated in the criminal enterprise out of a motive of greed.

27 The Crown submitted that it was necessary in the sentencing of the respondent to have regard to the high maximum penalty set by the legislature for the offence and to the need for sentences imposed on commercial drug offenders to reflect the need for general deterrence.

28 The Crown contended that the starting point of five years adopted by the sentencing judge was too low; that a full discount of 25 per cent should not have been allowed for the plea of guilty, because the utilitarian value of the plea had been diminished by the proceedings on sentence becoming protracted through the respondent’s conduct in contesting issues on which he was ultimately unsuccessful; and that the separate discount allowed by the sentencing judge for the assistance provided to law enforcement authorities was excessive and had resulted in the imposition of a sentence which, contrary to s 23(3) of the Crimes (Sentencing Procedure) Act, was not reasonably proportionate to the nature and circumstances of the offence. It was also submitted that the sentencing judge had erred in finding that there were special circumstances and had, in any event, failed to set a non-parole period of sufficient length to reflect the criminality involved in the offence.

29 Counsel for the respondent referred to the well known principles requiring a Court of Criminal Appeal to exercise caution and restraint in determining a Crown appeal against sentence.

30 It was submitted by counsel for the respondent that, if the sentencing judge’s approach to sentencing the respondent has been as flawed as the Crown submitted, then the sentencing judge’s findings about Ramsey’s evidence were also infected and should be set aside.

31 Criticisms of Ramsey’s evidence which had been made in the proceedings on sentence were repeated before this Court by counsel for the respondent. It was submitted that the sentencing judge had erred in giving no reasons in his remarks on sentence for preferring parts of Ramsey’s evidence to the respondent’s evidence and that the sentencing judge had illegitimately used Ramsey’s evidence about the uncharged conduct of the respondent in order to make findings about conduct which was the subject of the charge.

32 It was submitted that, in any event, the sentencing judge had not made any findings that the respondent was a principal in the criminal enterprise or that he was at the upper end of the hierarchy in the criminal enterprise or that he had been an overseer or that he had participated in the criminal enterprise for financial gain to himself.

33 It was submitted by counsel for the respondent that the sentencing judge had not erred in allowing the discounts he had for the respondent’s plea of guilty and for the assistance provided by the respondent and in finding that there were special circumstances.

34 It was also contended by counsel for the respondent that reference to statistics kept by the Judicial Commission for offences under s 23(2)(a) and s 33(3)(b) of the Drug Misuse and Trafficking Act showed that the sentence imposed on the respondent was not manifestly inadequate.

35 The principles to be applied by this Court in determining Crown appeals against sentence were stated by Wood CJ at CL in his judgment in R v Wall [2002] NSWCCA 42 at (70). His Honour recently quoted this paragraph of his judgment in Wall in his judgment in R v Mills [2005] NSWCCA 175 at (75). At paragraph (70) of his judgment in Wall Wood CJ at CL said:

“The Crown contends that not only was the sentence imposed inadequate on its face, but also that the sentencing judge made a number of errors of principle in determining that it was appropriate to proceed under s19B of the Crimes Act 1914. Before considering these submissions it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para58 and para109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle ‘for the governance and guidance of courts having the duty of sentencing convicted persons’: per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at para61 and para62, and Wong & Leung v The Queen at para109(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para110(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at par 62”.

36 As regards the evidence given by Ramsey, the power of this Court to interfere with findings of fact by a judge of first instance is limited. Error by a judge of first instance in making a finding of fact can be demonstrated, only if there was no evidence to support the finding or the judge misdirected himself in making the finding. R v O’Donoghue (1988) 34 A Crim R 397, R v Khouzame [2000] NSWCCA 505.

37 In the present case there was clearly evidence, that is evidence by Ramsey, supporting the findings of fact on disputed matters which were made by his Honour. The sentencing judge did not err in admitting and taking into account Ramsey’s evidence about the earlier cultivation for the limited purposes for which his Honour admitted the evidence and took it into account. The criticisms made by the Crown of aspects of his Honour’s remarks on sentence does not produce the consequence that his Honour’s assessment of Ramsey’s evidence should be regarded as vitiated. Nor do I consider that there was any error of law in his Honour not giving fuller reasons for preferring some parts of Ramsey’s evidence to contrary evidence by the respondent.

38 The criminal enterprise in which the respondent participated was objectively very serious. Six thousand seven hundred and sixty-five cannabis plants were being cultivated, that is nearly seven times the number of plants which under the Drug Misuse and Trafficking Act amount to a large commercial quantity of cannabis plants. The plants were being cultivated with a high degree of planning and organisation. The plants were cultivated over a period of several months between August 2002 and March 2003 and by March 2003 were mature and ready for harvesting. The value of the crop from the plants would have been millions of dollars.

39 The sentencing judge did not make any express finding about the position of the respondent in the criminal organisation. However, it is clear from the undisputed facts and from the findings actually made by his Honour on the basis of Ramsey’s evidence that the respondent was not at the lowest level of the organisation but was, at least, at some intermediate level. The respondent recruited Ramsey as a worker. The respondent supplied food and equipment to the workers at the site of the plantations and the respondent visited the site on a number of occasions to check on the progress of the cultivation. The sentencing judge clearly found that the respondent was already a participant in the venture, when he recruited Ramsey in August 2002.

40 The respondent was not a user of drugs and I accept the Crown’s submission that, even though the sentencing judge did not make any express finding on the matter, it should be inferred, as the only reasonable inference which could be drawn, that the respondent in participating in the criminal enterprise had a motive of financial gain for himself.

41 Although the sentencing judge found that the respondent might have been imposed upon by other members of his family, his Honour nevertheless found that the respondent had been a willing participant in the criminal venture.

42 As contended by the Crown, it was necessary for the sentencing judge in sentencing the respondent to have regard to the maximum penalty set by the legislature for the offence and to the need for a sentence to be imposed which would fulfil the purpose of general deterrence in sentencing.

43 The statistics kept by the Judicial Commission of sentences for offences of knowingly taking part in the cultivation of a large commercial quantity of cannabis plants are of limited value, because they are based on only nine cases. It is obvious that a wide range of conduct, including some conduct much less than that engaged in by the respondent, can amount to knowingly taking part in the cultivation of cannabis plants.

44 In my opinion, even after taking into account the respondent’s favourable subjective circumstances, the starting point of five years adopted by his Honour, before allowing discounts for the plea of guilty and assistance provided by the respondent, was too low and was too low to the stage of being manifestly inadequate.

45 After adopting a starting point of five years, the sentencing judge then allowed discounts for the respondent’s plea of guilty and the assistance provided by the respondent, which, in combination, amounted to nearly 60 per cent. In my opinion, even if the starting point of five years had been a proper starting point, the combined discount of nearly 60 per cent for the plea of guilty and such assistance as the respondent had provided was excessive and resulted in a head sentence which was not reasonably proportionate to the nature and circumstances of the offence.

46 I accept that it was open to his Honour to find that there were special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act but by reducing the non-parole period to less than half of the head sentence his Honour set a non-parole period which did not appropriately reflect the criminality involved in the offence.

47 There is no discretionary reason why the Crown appeal against sentence should not be allowed and, in my opinion, the Crown appeal should be allowed.

48 It is accordingly necessary for this Court to re-sentence the respondent. I have already stated the facts of the offence which were undisputed, the findings of fact made by the sentencing judge in his remarks on sentence and the subjective features of the respondent.

49 In my opinion, the starting point for the sentence should be at least eight years. In determining that the starting point for the sentence should be at least eight years I have had regard to the principle which was referred to by Wood CJ at CL in par 70 of his Honour’s judgment in Wall, that a sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court. I consider a starting point of eight years as being at the bottom end of the range of starting points available in the present case for an offender who occupied an intermediate position in the criminal organisation.

50 Having selected a starting point of eight years, I would then allow a combined discount of about 40 per cent (in fact a little more than 40 per cent) for the respondent’s plea of guilty and the assistance provided by the respondent, thereby reducing the sentence to four and a half years. As regards the assistance, the further letter of 24 June 2005 from the New South Wales Crime Commission says that most of the information provided by the respondent was already known or of no or limited operational value and was, in parts, vague and inconsistent.

51 I would find special circumstances in the circumstances found by his Honour and set a non-parole period of about 60 per cent of the total sentence, that is a non-parole period of two years nine months.

52 In order to allow for the period of three days of pre-sentence custody, I would make the sentence commence from 27 March 2005.

53 In my opinion, the following orders should be made:

1. The Crown appeal against sentence allowed.

2. Quash the sentence for the offence of knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants.

3. In lieu thereof impose a sentence of four and a half years imprisonment commencing on 27 March 2005, with a non-parole period of two years nine months commencing on 27 March 2005 and expiring on 26 December 2007.

4. The earliest date on which the respondent will be eligible for release on parole will be 26 December 2007.

54 HOWIE J: I agree with James J.

55 ROTHMAN J: I agree with the judgment of James J and the Orders proposed.

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