Petrovski v R

1. [1]

   HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.

2. [2]

   DAVIES J: The applicant pleaded guilty to one count of knowingly taking part in the cultivation of prohibited plants not less than the commercial quantity (cannabis) with the offence occurring between 14 August 2014 and 23 February 2015. The maximum penalty for this offence is 15 years’ imprisonment and/or 3,500 penalty units fine. He also pleaded guilty to the offence of participating in a criminal group in order to cultivate a commercial quantity of cannabis between 4 September 2014 and 22 February 2015. The maximum penalty for that offence is 2 years’ imprisonment. The second offence came to the District Court on a s 166 certificate.

3. [3]

   He was sentenced by Acting Judge Graham in the District Court on 10 March 2017 for the principal offence to a non-parole period of 18 months commencing 8 January 2017 and expiring 7 July 2018 with an additional term of one year expiring 7 July 2019. In respect of the offence on the s 166 certificate he was sentenced to a fixed term of nine months to commence on 8 January 2017 and expiring on 7 October 2017.

4. [4]

   The applicant had been charged with four other co-offenders being Vincenzo Foti, Zeynel Pehniklioglu, Orhan Kalkanli and Francesco Polimeni. Mr Foti was sentenced by Acting Judge Graham at the same time as the applicant. Mr Kalkanli had earlier been sentenced by Acting Judge Graham on 7 October 2016 and Mr Pehniklioglu had been sentenced by Acting Judge Walmsley SC on 25 May 2016. Mr Polimeni was first dealt with by Acting Judge Graham on 7 October 2016 when his Honour indicated that he was referring him for assessment for an Intensive Corrections Order. He was thereafter sentenced on 2 December 2016. The details of those sentences will be dealt with later in the judgment.

5. [5]

   The applicant now appeals against his sentence on the following grounds:

6. [6]

   The Notice of Application for Leave to Appeal was filed on 23 November 2017. That Notice was not filed within time because of the unavailability of transcripts. The solicitor acting for the applicant faxed an Application for an Extension of Time by error to the District Court and not to this Court.

7. [7]

   I did not understand the Crown to oppose an extension of time in the circumstances and I propose that time be extended.

The facts

1. [8]

   His Honour found the facts in accordance with the statement of facts agreed between the applicant and the Crown and from other evidence given at the sentencing hearing. Grounds 1 to 4 effectively challenge the conclusions reached by the sentencing judge in reliance on the agreed statement of facts and the other evidence. Accordingly, it is necessary first to set out those agreed facts in their entirety.

2. [9]

   Mr Foti gave evidence. Relevantly for the present applicant he said that he (Mr Foti) became involved in the cultivation because he borrowed about $70,000 from the applicant. He told the applicant that he needed the money for his house but he was in fact using it to buy drugs. By that time he was using cocaine very heavily. He said that he was using it as a coping mechanism because of the stress of work and because his father had cancer at the time. Additionally, he had a car accident in September 2014 to which further reference will be made.

3. [10]

   He said that he was trying to hide his drug use from his wife so he borrowed money from people including the applicant. He wanted to pay the applicant back and he became involved in the cultivation arrangement.

4. [11]

   In cross-examination by Mr Dhanji SC for the applicant he gave evidence of working in the fruit and vegetable business and of co-operative arrangements he had with the applicant in relation to his business and the applicant’s business.

5. [12]

   He gave evidence that in about 2013 he borrowed about $10,000 from the applicant and repaid that money. At the beginning of 2014 he asked for another loan and said it was for a house he was building at the time. The amount was initially $35,000 but it extended to $60,000 or $70,000. He repaid small amounts but the debt was about $50,000 or $60,000 by the time the applicant started asking for the money to be repaid. He then gave this evidence which needs to be set out in full:

Subjective Matters

1. [13]

   The applicant did not give evidence at the sentencing proceedings. Various documents were tendered on his behalf including a psychological report from Tim Watson-Munro dated 10 August 2016 and a presentence report dated 19 August 2016. There were a large number of character references from friends, family and employees, and the applicant’s wife gave some short evidence.

2. [14]

   The evidence disclosed that the applicant was a married man with three young children. He was the owner of the Valley Fresh fruit market in the Green Valley plaza. The evidence disclosed that he was a hard worker and a generous and considerate person. His employees spoke very highly of him.

3. [15]

   The sentencing judge appeared to accept Mr Watson-Munro’s diagnosis that the applicant was suffering from a broad range of symptoms indicative of a depressive illness and an anxiety disorder according to DSM-V criteria. The sentencing report indicated that he appeared to display genuine contrition for his offending. That was also the evidence of his wife and those who wrote references for him.

4. [16]

   The applicant had never before been involved with drugs or used them. He had no prior criminal record.

5. [17]

   The sentencing judge appeared to accept that the applicant only became involved in the cultivation because he had not been repaid the substantial amount of money he had lent to the co-offender Foti. That debt, financial problems as a result of embezzlement by a partner in the business, and his mother’s cancer from which she died shortly after he was released from custody following his arrest, produced an emotional vulnerability that led to the offending.

Grounds of appeal

1. [18]

   Submissions were addressed to these grounds jointly.

2. [19]

   The applicant submitted that the role of an offender and level of criminality is more important in determining a sentence than the quantity of drugs involved. However, for supply offences, an offender’s role is not to be determined by the use of shorthand labels but rather by assessing what his or her involvement was in the steps taken to effect supply.

3. [20]

   The applicant submitted that the sentencing judge formed the view that the applicant was a principal in the enterprise even though the facts upon which he was sentenced stated that he and the co-accused Foti were “partially responsible for the organisation and planning of the operation”. His Honour then went on, in effect, to restrict the evidence of Foti (which his Honour accepted) by imposing a qualification that, in Foti’s absence, it was the applicant who was “engaged in conducting conversations with the cultivators and doing those things which Mr Foti would previously have done”. In this regard the applicant submitted that his Honour engaged in impermissible reasoning in circumstances where the evidence did not allow his Honour to make the particular finding that he did which elevated the position of the applicant in the enterprise to a level higher than what the evidence permitted.

4. [21]

   The applicant submitted that his Honour’s further characterisation of the applicant as a “principal or at least a very significant figure in the enterprise” was a finding not open to his Honour on the evidence.

5. [22]

   The applicant submitted that his Honour’s remarks about the co-accused Polimeni downgraded or reduced the role of that offender when it was not open to do so.

6. [23]

   The applicant submitted that the sentencing judge contaminated his own mind by impermissibly citing and having regard to the “earlier version of the statement of facts” as well as the agreed facts in the case against Foti in circumstances where they contained distinctly different facts from those upon which the applicant was to be sentenced.

7. [24]

   The applicant submitted that it was not open to his Honour to be satisfied beyond reasonable doubt that the applicant was a principal in the enterprise nor that he became significantly involved in running the enterprise.

8. [25]

   The Crown submitted that the inclusion of the word “partially” (as in, “partially responsible”) in the agreed facts was not inconsistent with the sentencing judge’s findings that the applicant could be regarded as a principal. That is because, as explained in Hanh Thi Nguyen v R [2011] NSWCCA 92; 208 A Crim R 432 and other cases, there could be more than one principal in an operation.

9. [26]

   The Crown noted that the evidence of Mr Foti, which was also relevant as to the applicant’s role, was such that for about five months when he, Mr Foti, was not picking up the phone, the other members of the organisation were telephoning the applicant.

10. [27]

    The Crown submitted that the sentencing judge did not sentence the applicant on the basis of a label but, as his Honour’s careful reasons made clear, his Honour accepted that it was necessary to look carefully at the actual role performed by the applicant in the enterprise.

11. [28]

    The Crown submitted that, contrary to the suggestion that the sentencing judge’s mind was contaminated by a different statement of facts, his Honour was careful to note the amendments to the facts and the effect of those amendments on the position of the applicant, particularly by modifying the previous reference to the applicant’s responsibility for organisation and planning to a reference of “partial” responsibility.

12. [29]

    The Crown submitted that, in relation to the comparison made with the applicant’s role against that of the co-offender Polimeni, his Honour did not downplay Mr Polimeni’s role. Rather, he repeated what he had said when sentencing Mr Polimeni that Mr Polimeni had a substantial involvement in the cultivation of the cannabis and that was by way of supply of all or the bulk of the plants which were the subject of the cultivation. However, his Honour held that there was nothing in the evidence to suggest that Mr Polimeni’s role approached that of the level of seniority or hierarchical significance of the roles played by Mr Foti and the applicant. Such a finding was consistent with his Honour’s earlier findings concerning the co-offenders including Mr Polimeni.

13. [30]

    The Crown submitted that no error was demonstrated in the sentencing judge’s findings concerning the applicant’s role. The finding that he was a principal offender and with a more significant role in terms of organisation or seniority than co-offenders other than Mr Foti was a finding that was well open to him on the evidence.

14. [31]

    The sentencing judge first dealt with the matter of labelling participants in a venture with particular role names. His Honour said in that regard:

15. [32]

    His Honour then went on to deal with the various agreed statements of facts for each of the offenders and to note the changes that had been made in respect of the applicant. His Honour said:

16. [33]

    His Honour then commenced to summarise the agreed statement of facts. As to the applicant’s first involvement in the offending his Honour commented on meetings in July and August 2014 at the applicant’s workplace:

17. [34]

    His Honour made reference to the evidence by Mr Foti and went on to say this:

18. [35]

    After making reference to the applicant driving the prime mover to Brewarrina on 5 September his Honour said:

19. [36]

    His Honour next made reference to the telephone call between the applicant and Mr Pehniklioglu on 24 September during which the applicant asked if they were finished with the machine that had been transported to Brewarrina. His Honour noted a submission by the applicant’s counsel that the discussion about the machine did not really yield any particular insight into the applicant’s role because it did not suggest the applicant was asking how the task for which the machine was to be used was going but rather whether the use of the machine had concluded. That suggested, the submission asserted, that the applicant’s role was not as deeply implicated in the enterprise as the Crown suggested. Of that submission his Honour said this:

20. [37]

    His Honour then continued to summarise the facts, none of which thereafter concerned the applicant until his arrest but did show Mr Foti’s continued involvement in the cultivation including his participation in telephone calls, somewhat inconsistently with the evidence he gave in answer to questions from Mr Dhanji.

21. [38]

    Having discussed the cultivation in terms of its size and sophistication, his Honour said this about the applicant:

22. [39]

    The sentencing judge also said this about the circumstances in which the applicant became involved in the offending:

23. [40]

    In my opinion, it cannot be said that his Honour’s determination of the role of the applicant was not a conclusion that was not open to his Honour. The agreed facts said that the applicant along with Mr Foti was “partially responsible for the organisation and planning of the operation” and said also that the applicant was to receive “an undisclosed financial reward for his role in the operation”. It may be accepted that the financial reward was the repayment of the $50,000 or $60,000 that Mr Foti owed him.

24. [41]

    Further, his Honour had the evidence from Mr Foti led by the applicant’s counsel that when Mr Foti became less reliable and paranoid after the car accident and ceased picking up the phone, the other offenders were then ringing the applicant because his phone number had been given to them. His Honour accepted that evidence with the qualification that Mr Foti in fact remained more involved than he had said. The faint suggestion by senior counsel for the applicant at the hearing of the appeal that the co-offenders might have been ringing the applicant about fruit and vegetables should be rejected.

25. [42]

    The inference that is available from that portion of Mr Foti’s evidence, an inference that the sentencing judge clearly drew, was that despite there being no direct evidence in the agreed facts of precisely what the applicant was doing, he was involved in a similar capacity as Mr Foti when Mr Foti was in fact answering the phone and dealing with the matters from the other offenders. That evidence lends support to the statement in the agreed facts that the applicant was partially responsible for the organisation and planning of the operation.

26. [43]

    Although his Honour was careful not simply to affix a label to each of the participants, but to examine what each actually did, some guidance as to what constitutes a principal in the context of an offence of cultivation of a commercial quantity or a large commercial quantity of cannabis is provided by Simpson J (as her Honour then was, and with whom I agreed) in Hanh Thi Nguyen at [4]:

27. [44]

    In my opinion, the sentencing judge was not distracted by labelling the roles of the various participants and his use of the term “principal” was, as his Honour explained, a shorthand for a person (one of two) to whom the cultivators at Brewarrina looked for instructions and guidance as to the conduct of the enterprise.

28. [45]

    The matters challenged in grounds 1 to 4 are essentially factual findings which the sentencing judge made. For a successful challenge to be made to such factual findings a House v The King (1936) 55 CLR 499 error must be shown. The problem is particularly highlighted in relation to grounds 3 and 4 where the complaint is that his Honour “failed properly to take into account” and “failed to have adequate regard” to particular matters. In Zhao v R [2016] NSWCCA 179 N Adams J (with whom Hoeben CJ at CL and Button J agreed) said:

29. [46]

    The sentencing judge carefully considered the agreed facts in the context of Mr Foti’s evidence. In the applicant’s favour, his Honour did not entirely accept Mr Foti’s evidence that he left all of the oversight of the arrangement to the applicant.

30. [47]

    Further, his Honour was careful to note the amendments made to the agreed facts, and the differences in those facts pertaining to each of the offenders. Far from his Honour’s mind being “contaminated” by the earlier version of the facts, his sentencing remarks make clear that he perceived and appreciated the changes that had been made in a manner that benefited the applicant.

31. [48]

    No House v The King error is shown in relation to the asserted failures of the sentencing judge in grounds 1 to 4. Nor is it the case that there was no evidence upon which the sentencing judge could have concluded that the applicant was a principal, in the way his Honour described that position, within the group of co-offenders involved in the cultivation.

32. [49]

    I would reject these grounds.

33. [50]

    The applicant submitted that the finding that the relevant operation was sophisticated in nature was an error. The applicant submitted that the evidence generally coupled with the poor quality of the cannabis plants where the majority that were seized were wilted and suffering from heat stress showed the amateur nature of the operation. These matters pointed to a finding that the operation was no more than an unprofessional, incompetent, poorly organised and unsophisticated setup, very much limited in its scope. The applicant referred to cases which were said to involve sophisticated operations that were reflected in the sentences imposed such as R v Clarke [2014] NSWDC 35 (2000 plants) and R v Green; R v Quinn [2010] NSWCCA 313 (1354 plants).

34. [51]

    The Crown submitted that the assessment of objective seriousness is classically within the role of the sentencing judge: Mulato v R [2006] NSWCCA 282. The Crown submitted that, while the ultimate outcome of the crop may not have been as successful as was intended, that outcome was apparently principally due to the effect of the hot weather on the young plants.

35. [52]

    The Crown drew attention, however, to the evidence of what the scheme involved, including the size of the area, that the area was fenced off, that there were a large number of rows in which the holing machine had been used to prepare holes for the plants, that fertiliser and compost were used, that there was a main irrigation line and subsidiary lines, that two men were the crop sitters and appeared to have been on site for a six month period and that the value of the crop at about $800,000 did not reflect the much higher potential value according to the evidence of Detective Senior Constable Nathan Green.

36. [53]

    His Honour said the following in the ROS:

37. [54]

    His Honour then made reference to the evidence of Senior Constable Green of the drug squad. Senior Constable Green had significant experience in the investigation of offences concerning the cultivation of cannabis plants. His Honour quoted from the police officer’s statement where the officer placed an estimate on the value of the crop of $801,000.

38. [55]

    His Honour then commented as follows:

39. [56]

    His Honour’s conclusions can be summarised by saying that he found it was “a planned and fairly relatively sophisticated operation”, that it was a “large scale, but ultimately failed, cannabis cultivation” and that it was “a significant instance of an offence of the cultivation of a commercial quantity of cannabis plants”. Those conclusions involved a fact finding exercise and an evaluative judgment which, as Mulato makes clear, is classically within the role of the sentencing judge. In the same way, Harrison J (Payne JA and Schmidt J agreeing) said in Alkanaan v Regina [2017] NSWCCA 56 at [57]:

40. [57]

    No House v The King error has been demonstrated. There was ample material upon which the sentencing judge could have drawn the conclusions he did and assessed the enterprise as a significant instance of the offence. Of some significance is the fact that there were 801 plants, more than three times the threshold for a commercial quantity of the drug. Even in its badly affected state as a result of heat and other matters the cultivation was worth many hundreds of thousands of dollars. When this is coupled with the preparation and extent of the cultivation as evidenced by the surveillance, the conclusion of the sentencing judge that this was a significant instance of the offence was amply justified.

41. [58]

    I would reject this ground.

42. [59]

    The written submissions on behalf of the applicant dealt only with the sentence imposed on Mr Polimeni. However, senior counsel for the applicant said that the parity ground was pursued in respect of Mr Foti also. In that regard oral submissions were made.

43. [60]

    Mr Polimeni was charged with the same two offences as those with which the applicant was charged.

44. [61]

    As noted earlier, the sentencing judge determined the sentence he proposed for Mr Polimeni on 7 October 2016. His Honour proposed to impose a sentence of 21 months’ imprisonment, and he adjourned the sentencing proceedings so that an Intensive Corrections Order assessment could be carried out.

45. [62]

    On 2 December 2016, having received an assessment enabling the imposition of an ICO, his Honour sentenced Mr Polimeni on the principal charge to a term of imprisonment for 21 months to be served by way of an Intensive Corrections Order. In relation to the charge on the s 166 certificate, his Honour sentenced Mr Polimeni to nine months imprisonment commencing on 2 December 2016 and suspended that sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) upon Mr Polimeni entering into a bond for that nine month period to be of good behaviour. That sentence was wholly concurrent with the ICO.

46. [63]

    The applicant submitted that his justifiable sense of grievance arises from the following matters:

47. [64]

    The applicant also pointed to what was said to be his limited role in the cultivation. The applicant accepted that, although Mr Polimeni performed acts different from those performed by the applicant, that did not mean that Mr Polimeni’s criminality was less than the applicant’s. The applicant submitted that a provision of some 801 cannabis plants was arguably more serious criminal conduct than the hire and delivery of machinery and the answering of a number of phone calls from other co-offenders.

48. [65]

    The applicant submitted that where he was described as a principal of the enterprise, the starting point for the sentence ought to have been the same as that adopted for Mr Polimeni. The applicant submitted that his involvement was less in gravity and seriousness than that of Mr Polimeni. He submitted that, having regard to the sentencing judge’s findings, the sentence imposed exceeded that which was reasonably proportionate and, in that way, was manifestly excessive.

49. [66]

    The Crown submitted that different sentences between the co-offenders in the present case were reasonably explained by the degree of differences between the offenders and their offending, and the applicant could have no justifiable sense of grievance. Reference was made to what Rothman J said in Miles v R [2017] NSWCCA 266 at [40].

50. [67]

    The Crown submitted that the sentencing judge was plainly conscious of the parity principle and addressed it in his sentencing judgment. His Honour had sentenced two of the offenders and was aware of the sentence imposed on the third.

51. [68]

    The Crown submitted that the applicant’s submission concerning parity was said to arise from the error of the sentencing judge in finding that the applicant’s role was objectively more serious than that of Mr Polimeni. The Crown also pointed to the subjective differences between Mr Polimeni and the applicant to which his Honour had regard.

52. [69]

    When sentencing Mr Polimeni, his Honour noted that he was responsible for the sourcing and supplying of the cannabis plants used in the operation and that Mr Polimeni received an undisclosed financial reward for his role in the operation. His Honour said that Mr Polimeni would not ordinarily be regarded as a principal, with his role apparently limited simply to the provision of the plants.

53. [70]

    His Honour noted that Mr Polimeni was 66 years old but he was not before the Court as a first offender. He had been sentenced on 30 March 2005 in Griffith Local Court for cultivating less than a commercial quantity of cannabis plants and sentenced to seven months’ imprisonment, suspended under s 12.

54. [71]

    His Honour noted the substantial body of character evidence put forward for Mr Polimeni. His Honour accepted that Mr Polimeni had expressed genuine remorse and thought that he had very good prospects of rehabilitation.

55. [72]

    His Honour referred to Mr Polimeni’s health problems and also to some serious health issues that Mrs Polimeni had because of the financial pressures under which they were living. His Honour found that his previous offending and the present offending came about through indebtedness. His Honour had regard to the period of two and a half months that Mr Polimeni had spent in custody before he was granted bail. His Honour found that Mr Polimeni had a substantial involvement in the cultivation.

56. [73]

    Having particular regard to the time he had spent in custody, his age, health and prospects of rehabilitation, and to the fact that there would be a finding of special circumstances which would mean a significantly lower proportion than 75% would be required to be served in custody, his Honour considered that a sentence of 21 months imprisonment was appropriate. His Honour then considered whether the sentence should appropriately be served by other than full-time custody and adjourned the proceedings to enable Mr Polimeni to be assessed for suitability for an Intensive Corrections Order.

57. [74]

    In the sentencing remarks concerning the applicant his Honour summarised the matters which I have set out above in relation to Mr Polimeni including his role in the offending. His Honour made reference to the other co-offenders who had been sentenced and to the different penalties imposed. His Honour said:

58. [75]

    The principles applicable to the determination of a ground asserting a justifiable sense of grievance by reason of disparity of sentence between co-offenders were recently summarised by Beech-Jones J (Payne JA and Fagan J agreeing) in Wan v R [2017] NSWCCA 261:

59. [76]

    In Gill v R [2010] NSWCCA 236 McColl JA (with whom RS Hulme and Latham JJ agreed) said:

60. [77]

    Similar remarks have been made in Loader v R; Dunn v R [2013] NSWCCA 215 at [91]-[96] where the authorities are gathered, in Lam v R [2014] NSWCCA 50 at [42], and more recently in Burrows v R [2017] NSWCCA 45 at [67].

61. [78]

    A number of the applicant’s submissions in relation to parity with Mr Polimeni proceed on the basis that the sentencing judge incorrectly characterised the applicant’s role in the cultivation. For reasons already given, I consider that the grounds concerned with that issue should be rejected. The question of parity must be considered here, as elsewhere, on the basis that no other error is shown in the sentencing process.

62. [79]

    Although the judge found that Mr Polimeni’s role was substantial his Honour did not characterise him as he did the applicant, nor indeed as the agreed facts characterised the applicant’s role as being partially responsible for the organisation and planning of the operation. Moreover, the sentencing judge carefully considered the subjective matters relating to each of Mr Polimeni and the applicant. How all of those matters manifested themselves in the ultimate sentences imposed was a matter for the assessment and discretion of the sentencing judge.

63. [80]

    The applicant, who was characterised as a principal, in the manner explained by his Honour, received an overall sentence of two years and six months with a non-parole period of 18 months. Mr Polimeni received an overall sentence of 21 months. Given the differing roles found and the differing subjective features there is not a marked discrepancy between those sentences. The fact that Mr Polimeni was able to serve his sentence by an Intensive Corrections Order is of no great significance where such a consideration for the applicant was not available by reason of the sentence which the judge determined should be imposed. That is consistent with the way sentencing ought to proceed, namely, the length of the sentence is first to be determined and only after that is done is consideration to be given to how that sentence is to be served.

64. [81]

    It is not sufficient for the applicant to identify particular matters of similarity or difference between the two offenders because these are ultimately matters for assessment by the sentencing judge. A reading of the ROS shows that his Honour considered all of those matters and the issue of parity amongst all of the offenders.

65. [82]

    The applicant’s submissions concerning Mr Foti concentrated on a comparison of his role with that of the applicant. The applicant submitted that the evidence disclosed that, despite Mr Foti’s evidence that he was not contactable for a period of some months after his car accident, telephone intercepts and other material showed that he continued to be involved in the enterprise and to give instructions. The applicant submitted that, if one only accepted what the sentencing judge found which was that the applicant came in at the later stage in September, Mr Foti had been planning and organising the cultivation since March on his own agreed facts, he had put the money in, he found the property and he had established the crop sitters. In that way, it was submitted, his role was more significant than that of the applicant. The applicant submitted that despite all of this Mr Foti’s non-parole period was only three months longer than that imposed on the applicant.

66. [83]

    The applicant also drew attention to the sentence imposed on Mr Foti on 6 December 2016 for offences committed by him after he had been arrested for the present offending and was on bail. For offences of destroy or damage property and two counts of stalk or intimidate he was given a 12 month s 9 bond. The applicant submitted that as his custody commenced on 25 February 2017 the period of the bond was almost concurrent with the sentence imposed for the present offending.

67. [84]

    Mr Foti was sentenced at the same time as the applicant. He was sentenced to an overall term of imprisonment of three years comprising a non-parole period of 21 months. In respect of the charge on the s 166 certificate he was sentenced to a fixed term of imprisonment that was entirely concurrent with the other sentence.

68. [85]

    As noted earlier at [41], his Honour did not accept Mr Foti’s evidence that he withdrew entirely from the arrangement for a four to five month period leaving the running to the applicant. However, the applicant principally relied for his parity submissions with Mr Foti on what was said to be the clear distinction between their roles. It may be accepted that Mr Foti’s involvement predated that of the applicant and also that Mr Foti was effectively responsible for the applicant becoming involved in the offending. Nevertheless, for the reasons I have given when dealing with grounds 1-4, his Honour was not in error in finding that the applicant had a significant role in the cultivation from the time he became involved.

69. [86]

    Further, his Honour sentenced Mr Foti, as I have noted, at the same time as he sentenced the applicant. His Honour carefully considered their respective roles in the organisation as well as their subjective circumstances. What was said in Gill and similar cases mentioned at [76] and [77] above point to the difficulty in the applicant demonstrating a justifiable grievance in the present case. There is no marked or unjustified disparity between the sentences imposed on the applicant and Mr Foti.

70. [87]

    Further, when the maximum penalty for the principal offence, the extent of the cultivation and the role played by the applicant are taken into account, even if a justifiable grievance been demonstrated, I consider that any lesser sentence than that imposed would not have been within the range of appropriate sentences: Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [33].

71. [88]

    I would reject this ground of appeal.

Conclusion

1. [89]

   I propose the following orders:

2. [90]

   ADAMSON J: I agree with Davies J.