Regina v Hanna

[2000] NSWCCA 102

CITATION:	Regina v Hanna [2000] NSWCCA 102
FILE NUMBER(S):	CCA 60573/98
HEARING DATE(S):	20/03/00
JUDGMENT DATE:	20 March 2000
PARTIES :	Regina v Sassine Hanna
JUDGMENT OF:	Abadee J at 1; James J at 19

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/1255
LOWER COURT JUDICIAL OFFICER :	Backhouse DCJ

COUNSEL :	M. C. Marien - Crown P. Ramos - Appellant
SOLICITORS:	S. E. O'Connor - DPP Hovan & Co - Appellant
LEGISLATION CITED:	Sentencing Act (1989) Criminal Appeal Act (1912)
CASES CITED:	R v Astill [No 2] 64 A Crim R 289 R v McGuiness (CCA 17 September 1999, unreported)
DECISION:	Leave to appeal the sentence should be refused.

IN THE COURT

OF CRIMINAL APPEAL

60573/98



ABADEE J
JAMES J


MONDAY 20 March 2000


REGINA v Sassine HANNA


JUDGMENT

1    ABADEE J: The applicant seeks leave to appeal against a sentence imposed by Judge Backhouse in the District Court on 11 September 1998. The applicant (DOB 12 March 1965) had pleaded guilty before her Honour to one count of cultivate not less than a commercial quantity of prohibited drug (cannabis) and carrying a maximum penalty of 15 years imprisonment. The applicant also pleaded guilty to a second count of supply not less than a large commercial quantity of prohibited plant (cannabis leaf) carrying a maximum penalty of 20 years imprisonment. 2    In respect of the two sentences, a sentence of three years four months and 17 days imprisonment was imposed by way of minimum term and an additional term of one year and three months was imposed by her Honour. In fact, the additional term was marginally higher than the statutory proportion of one third, but nothing turns upon this particular matter. 3    The sentence imposed by her Honour was in the course of sentencing proceedings which indicate, in my view, that her Honour carefully had regard to the issues that had been formulated by the parties, as well as to the extensive materials that had been placed before her on a number of occasions. 4    The grounds of appeal assert essentially one particular matter and that is a failure by her Honour to refer to the question of the presence or otherwise of "special circumstances" as that expression is understood in s 5(2) of the Sentencing Act (1989). 5 It has been submitted in writing and by counsel for the applicant, as duly supplemented by oral submissions, that there was sufficient evidence or that the evidence disclosed material that might amount to special circumstances, that her Honour could have made a positive finding in relation to special circumstances, and that her Honour failed to consider whether the statutory ratio to be applied in the applicant's case, in fact, really reflected error on the part of her Honour in the sentencing proceedings. It is submitted that this Court should intervene and re-sentence. 6 In the written submissions for the applicant, it is said that there was material which existed that might amount to special circumstances. Particulars of such material was not set forth in the written submissions. However, the material said to be material upon which if accepted could amount to special circumstances was identified by reference to her Honour's remarks and by reference to the Crown's submissions, particularly in para 4 of the Crown's submissions. The material said to constitute special circumstances which might if accepted amount to special circumstances consisted of the applicant's plea of guilty, the fact that he was a first offender, the character evidence presented in his favour, the applicant's ipso facto marriage and birth of a child and assistance to authorities. These matters jointly, severally, or in the alternative, were relied upon as being the matters which might if accepted constitute special circumstances. 7 It is true and indeed it is common ground between the parties that the matter of special circumstances was not in terms referred to in her Honour's careful and extensive reasons for sentencing. It is also appropriate to advert to the fact that towards the conclusion of her Honour's sentencing remarks and just prior to the actual formal passing of sentence, the then counsel for the applicant interrupted - and I do not suggest inappropriately or rudely - her Honour's sentencing remarks dor the purpose of taking her Honour to a technical matter of concern. 8 The point is that there was no reference at the time of interruption to the question of special circumstances. Indeed, on one view it might be thought that the issue of special circumstances was not, in fact, an issue canvassed by the applicant at the trial and, thus providing an explanation as to why there was no specific reference to the subject of special circumstances. Be that as it may, there is no reference to the matter of special circumstances and it is also appropriate to observe that generally and ordinarily the matter of special circumstances should be mentioned in the course of sentencing reasons. 9 Of course, it does not necessarily follow that because the specific subject of special circumstances is not in terms mentioned that her Honour failed to have regard to it. Her Honour was an experienced sentencing judge and it does not follow in my view that in the circumstances of this case that her Honour, because she did not refer to the matter of special circumstances, did not have regard to it. The Crown takes the position that the matter of special circumstances was not one that arose in the circumstances on the material before her Honour. 10 Further, or, alternatively, the Crown relies upon a submission that even if error is revealed by a failure to take into account the matter of special circumstances, that, in any event, this Court would not intervene and re-sentence having regard to the provisions of s 6(3) of the Criminal Appeal Act (see also the decision of the Court in R v Astill [No.2] (1992) 64 ACR 289, R v McGuiness (CCA 17 September 1999, unreported). 11    It is appropriate in this case to have regard to the facts of the case. I shall set them out in some detail because even if one were to conclude that error was reflected in not finding special circumstances, I would nevertheless be of the opinion that, in any event, the case is not one which would warrant this Court intervening and re-sentencing. 12    The facts relating to the offences are that on 2 January 1997 the police observed a number of cannabis plants growing in the rear yard of the applicant's premises. Indeed, there were 594 odd mature cannabis plants discovered to be growing in the applicant's market garden and they were planted in rows directly into the ground and irrigated. The applicant admitted growing the cannabis plants and was arrested. Police also searched a shed at the rear of the applicant's dwelling and located 131 polystyrene foam vegetable boxes, each box contained cannabis leaf. Also in the shed was located a number of Hessian bags which also contained cannabis leaf. The boxes and bags were weighed and produced a gross weight in excess of 219 kilograms. Located in the applicant's home under his bed were small bags of cannabis leaf. Also located and secreted in different parts of the home was the sum of almost $14,500 in cash. Police took possession of the cannabis leaf which was later destroyed. 13    The applicant when interviewed made admissions relating to the cultivation of cannabis plants and his possession of cannabis leaf. He admitted putting the grass in the boxes in the shed from plants he had planted some ten months before. 14    Her Honour found that the applicant planted the cannabis seed and grew plants cultivated for harvesting the crop with the intention of selling it - (see sentencing remarks p 10). In respect of the cannabis leaf, her Honour was satisfied that such leaf found in the shed in the dwelling house was intended for sale. Her Honour also found that the applicant was aware of the seriousness of the offence, the subject of the sentencing proceedings. 15    As I have said, the Crown has submitted that in the circumstances of this case, the question of special circumstances did not arise on the material before her Honour. 16    I must say that I am attracted to this argument. I do not regard the matters relied upon by the applicant and to be found in the Crown's submissions as constituting jointly, severally, or, alternatively, material upon which her Honour might find special circumstances. 17    However, let it be assumed that I am wrong in such a view, it seems to me that having regard to the objective facts, which I have recounted, the street value of the cannabis leaf and the sheer quantity of the plants, that this is not a case where even were I to conclude that special circumstances should have been found, that, nevertheless, the sentence or its structure to be imposed would still not be less to that imposed by her Honour, or different in any manner as reflected in her Honour's reasons for sentence. 18    In the result, I am of the view that in all the circumstances of this case, having regard to the provisions of the legislation and having regard to the objective facts which are of the most serious kind, that this is not a case where even assuming error that this Court should intervene. For these brief reasons I propose that leave to appeal the sentence should be refused. 19    JAMES J: I agree with the judgment of the presiding judge. 20    ABADEE J: The order of the court is as proposed by me.

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