Kay v R; Ellis v R

HOEBEN CJ at CL:

Sentence proceedings in respect of both applicants were conducted jointly before her Honour Judge Wells SC on 12 December 2016 in the District Court at Lismore.

On 13 December her Honour pronounced the following sentences:

Her Honour allowed a reduction of 25 per cent in respect of each sentence because of the utilitarian value of the early plea of guilty.

Each applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against those sentences on the following grounds:

In the statement of Agreed Facts before her Honour, the following was set out:

It was common ground in the sentence appeal that this was incorrect and that the total weight of cannabis located at the Mt Burrell property was 59.984kgs and that the net weight of cannabis located in the bedrooms and lounge-room of the residence was 42.442kgs. In other words, the amount of cannabis, the subject of the charges was overstated by 25.348kgs. This error was discovered after her Honour had sentenced both applicants.

The error occurred without any fault on the part of her Honour. Accordingly, when reviewing her Honour’s analysis of the facts, the correct weight of the cannabis needs to be kept in mind.

On 23 June 2016 police arrived and executed a search warrant at a residence in Kyogle Road, Mount Burrell. There were seven men present, including the two applicants.

There was a house and sheds on the property and also a motor vehicle.

The house had four bedrooms with a central lounge-room. In the lounge-room there were plastic tubs around a table and on the floor. Inside each tub were various amounts of cannabis leaf. There were numerous pairs of scissors on a table and a Cryovac machine on another table. There was cannabis already sealed in Cryovac bags. Elsewhere in the house there was a considerable pile of green vegetable matter on a tarpaulin in a room and several barrels of cannabis leaf distributed throughout the bedrooms. The central lounge-room, with the two large tables, was used for trimming and packaging cannabis and set up so several people could sit around the tables trimming and sealing cannabis heads in Cryovac bags.

Police found 19 one pound [or 450 gram] Cryovac bags of cannabis leaf ready for commercial distribution.

A notebook was found which included a number of entries bearing each of the applicants’ names with amounts written next to them which indicated that they were paid $200 per pound of cannabis trimmed.

Her Honour regarded this as the only reasonable inference which could be drawn from the notebook, although it was impossible to determine the total amount which they were paid because of the disarray in which the records were kept. Her Honour found that “the fact that they were paid, or to be paid $200 per pound of cannabis trimmed is one indication amongst others, of the value of this illegal drug”.

Her Honour noted that the commercial quantity of cannabis leaf was 25kgs and that the large commercial quantity was 100kgs. Her Honour specifically found that this placed the offence “in the upper range for quantity alone in relation to this type of drug” (Sentence judgment, 2.8).

Each applicant gave evidence. Their evidence was largely the same. They each said that they spoke to one of the co-accused at the Nimbin Hotel at different times. He was a person they knew socially and they said that they were invited to the property as a social occasion to share a few beers and have a barbecue. It was not clear from the evidence whether the applicants knew before they went to the property, that they would be helping with the trimming of cannabis leaf.

On this issue, her Honour set out her conclusions as follows:

Based on the incorrect information which she had been given as to the quantity of cannabis involved, her Honour assessed the value of the drugs, the subject of the charges, at between $654,000 and $915,000. Her Honour noted that the price per pound for cannabis around the Nimbin area could have been as low as $3,200. Her Honour concluded “Nevertheless this was a highly valuable commodity, given the quantity of it and also reflects a sophisticated operation” (Sentence judgment, 4.3).

Her Honour reviewed the subjective case of each of the applicants. In relation to Kay, her Honour noted that he was born in 1973 and was aged 43 when he came before the court. He had a limited criminal record which included one offence of possessing a prohibited drug in 2009. Her Honour did not regard that as a matter of significance.

Kay lived alone and had resided in Nimbin since he was aged 10. He had been casually employed as a labourer since leaving school. He has been an occasional user of cannabis for most of his adult life. He regretted the offending and, according to the author of the pre-sentence report, he appeared to have realised the seriousness of his behaviour. There were references from various members of the local community which favourably commented on him. Those references indicated that he was a good person who could be trusted and was generally respected. He had done some voluntary work in the community.

Her Honour noted that Ellis was born in 1964 and was aged 52 when he came before the court. He was the father of three children and had played a role in their lives. Their mother confirmed this and said that he not only had been actively involved in the upbringing of the children, but had also been very supportive of her. He had been involved in voluntary work in the local community, particularly with the bush fire brigade. Although they were separated, they had successfully shared the parenting of the children.

One son had joined the Army and had assisted Ellis financially and another child was still at school. Ellis had some medical problems, including an injury to his right knee. When on bail for these matters, he broke his ankle but would make a full recovery. Like Kay, his drug screen tests showed no evidence of using cannabis. There were a number of other references that spoke well of him in a manner similar to those provided to the Court in relation to Kay.

In the pre-sentence report, Ellis advised that he had used various drugs over the years but had stopped using most substances in 2011. Occasionally he still used cannabis for pain management. He was a social drinker and at times suffered symptoms of depression and anxiety, but not so serious as to require medication.

When considering the objective seriousness of this offending, her Honour had regard to the maximum sentence which indicated that the legislature regarded the offending as serious. Her Honour assessed the offending as at the lower end of mid-range. She assessed the applicants as low level participants in what was otherwise a large and sophisticated operation. Her Honour regarded the level of participation and involvement in the offending by each of the applicants as the same.

Her Honour set out the salient features of the applicants’ offending as follows:

Although her Honour was not able to differentiate the roles of the applicants, their subjective cases were different. For Kay, this would be his first time in prison before which time he was largely a person of good character.

In the case of Ellis, he was sentenced to a term of imprisonment on 21 June 2013 for the enhanced cultivation of cannabis. This included a 12 months non-parole period out of a total term of 2 years and 6 months, with other related cannabis matters being taken into account. At that time, he was found by the court to be a person of good character with good prospects of rehabilitation. Her Honour noted that that was an incorrect conclusion by the court in that this offence occurred roughly four months after his parole period for the earlier offending had concluded.

Her Honour did not regard the medical problems of Ellis as having much impact upon sentence. Despite his earlier experience of prison, it did not seem to deter him from engaging in this offending.

Her Honour found special circumstances in favour of Kay because of his previous good record and because this would be his first time in prison. Her Honour also considered that Kay had good prospects of rehabilitation. Her Honour gave effect to that finding of special circumstances by reducing the non-parole period in his sentence. Her Honour was not prepared to make a finding of special circumstances in favour of Ellis.

Her Honour took into account the purposes of sentencing and in particular, the need for specific deterrence. This was particularly so in the case of Ellis, but also applied to a lesser extent to Kay. Her Honour noted that it was necessary to deter other persons who might decide to commit similar offences. Her Honour had regard to the protection of the community and rehabilitation. Her Honour was not prepared to find that each applicant was remorseful, particularly in the case of Ellis.

Her Honour went on to observe:

Her Honour was not prepared to find exceptional circumstances.

As can be seen from some of the observations of her Honour, the quantity of cannabis involved in the offending played a part in her Honour’s assessment of the objective seriousness of the offending. Through no fault of her Honour, the amount of cannabis involved was less than that which she took into account. In those circumstances, it is not possible to argue, as the Crown sought to do, that this error did not affect the exercise of her Honour’s sentencing discretion.

In my opinion, the application of Kentwell v The Queen [2014] HCA 37; 252 CLR 601 is attracted. There the majority (French CJ, Hayne, Bell and Keane JJ) said:

To similar effect, this Court (Bathurst CJ with whom Beazley P and R A Hulme and Schmidt JJ agreed) said in Lehn v R [2016] NSWCCA 255; 93 NSWLR 205:

One has to have regard to the state of affairs at the time of re-sentence. Before the Court were two affidavits by the applicants, dated 9 August 2017. In the case of Kay, since his incarceration he has completed courses in metal fabrication, work safety and operating a forklift. At the time of swearing the affidavit, he was working as a chainsaw operator. He deposed that when he is released, he would leave the Nimbin area and using his new skills, look for work in North Queensland. He deposed that he has learned a salutary lesson and had no intention of ever committing an offence which could place him in prison again.

Ellis had completed a certificate in horticulture, a working at heights course and had renewed his work safety card in the construction industry. He found his time in prison to be more difficult because of his broken ankle.

Counsel for the applicants submitted that once regard was had to the correct quantity of cannabis involved, the sentences imposed on the applicants should be reduced so that, at least in the case of Kay, he would qualify for the imposition of an ICO rather than a custodial sentence. In making that submission, counsel stressed that the quantity of cannabis involved was not greatly above that required for a commercial quantity and was significantly less than that specified in the Agreed Facts and to which her Honour had had regard when imposing sentence.

Counsel submitted that in the case of Ellis, he was not motivated only by financial gain but required a quantity of cannabis for personal use because of continuing pain in an injured knee. Counsel stressed that the applicants were relatively menial workers performing a menial job, they were only at the premises for approximately five days and that the payment which they were to receive was modest when regard was had to the quantity of cannabis involved.

Counsel submitted that in the case of Ellis, although he had a previous offence on his record, the offending on this occasion was qualitatively different to the earlier offending. The earlier offending had involved the cultivation of cannabis whereas his involvement on this occasion was much less and relatively minor. He submitted that when regard was also had to the use by Ellis of cannabis to self-medicate, even if a custodial sentence were to be imposed, it should be significantly reduced from that given by her Honour.

Counsel submitted that in the case of Kay, he was a first offender, his position in the hierarchy was minor and as indicated by his affidavit, he had learned his lesson and was genuinely remorseful.

While the quantity of cannabis involved is an important consideration, it is not determinative when considering the objective seriousness of the offending. It is true that 67kgs of cannabis is significantly more than 42kgs. Nevertheless, both involve a substantial quantity and both substantially exceed the amount required to give rise to the offence of knowingly take part in the supply of a commercial quantity of cannabis leaf.

Moreover, the reduction in the amount of cannabis involved in the offending does not significantly impact upon the matters identified by her Honour as going to the objective seriousness of the offending, i.e. the maximum sentence for this offence, that the drug supply operation was large and sophisticated, that the quantity of cannabis was still substantial, although they were not principal offenders that the applicants performed an essential function in the operation, that they were well aware of the size and sophistication of the operation which had been continuing for at least two weeks, that their involvement was deliberate and premeditated and that they were motivated by financial gain. These were all relevant and important considerations which fully justified her Honour’s assessment that the offending was mid-range, albeit at the lower end of mid-range.

In the independent exercise of the sentencing discretion, I do need to say something about the “principle” often quoted by this Court that for “those who are engaged in substantial drug trafficking, a sentence of fulltime imprisonment must follow unless there are exceptional circumstances”. In that regard, I am mindful of the recent decision of this Court in Robertson v R [2017] NSWCCA 205.

There, Simpson JA (with whom Harrison and Davies JJ agreed) concluded that R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported) which first articulated that principle had been applied too rigidly by this Court.

Having comprehensively reviewed the case law where that principle has been applied and which lately has been subjected to some criticism, her Honour set out her conclusions as follows:

I respectfully agree with her Honour’s analysis and with her observation that too rigid an application of what was said in Clark might well involve a two-stage sentencing process (see Robertson at [95]).

Having said that, I would observe that once it has been established that an offender has engaged in substantial drug trafficking, compelling circumstances would need to be adduced on his or her behalf to bring about a result where a non-custodial sentence was imposed, albeit it is not necessary that those circumstances be “exceptional”.

In this case, even having regard to the reduced quantity of cannabis involved, the circumstances of each applicant were not such as would provide a proper basis for an ICO or other non-fulltime custodial sentence.

In the case of Ellis, having regard to the objective seriousness of his offending and his modest subjective case, in my independent exercise of the sentencing discretion, I would have imposed a sentence equal to or greater than that imposed by her Honour. Accordingly, I have concluded that no lesser sentence than that imposed by her Honour is warranted in law in his case.

In the case of Kay, in my independent exercise of the sentencing discretion my conclusions are largely in accord with those of her Honour except that I would adjust the head sentence to better reflect the difference between his subjective case and that of Ellis.

Accordingly, the orders which I propose are as follows:

In the matter of Kay v R:

DAVIES J: I agree with Hoeben CJ at CL.

BELLEW J: I agree with Hoeben CJ at CL.