Tran v R

1. [1]

   HOEBEN CJ at CL: I agree with Johnson J and the orders which he proposes.

2. [2]

   JOHNSON J: The Applicant, Tony Tran, seeks leave to appeal concerning an aggregate sentence imposed at the Sydney District Court on 19 May 2017 with respect to five offences of knowingly taking part in the cultivation by enhanced indoor means of not less than the large commercial quantity of cannabis plants and one offence of knowingly taking part in the cultivation by enhanced indoor means of not less than the commercial quantity of cannabis plants contrary to s.23(2)(a) Drug Misuse and Trafficking Act 1985.

3. [3]

   Following pleas of guilty, the Applicant was sentenced by his Honour Judge King SC on 19 May 2017 to an aggregate sentence of imprisonment of 13 years and four months commencing on 21 August 2015 and expiring on 21 December 2028, with a non-parole period of 10 years commencing on 21 August 2015 and expiring on 20 August 2025: R v Tran [2017] NSWDC 397.

4. [4]

   As will be seen, the Applicant was sentenced for offences introduced in New South Wales in 2006 to target hydroponic cannabis operations where there was an “increasing tendency for these operations to involve organised criminal syndicates” (see [74] below). The Applicant’s offences extended to seven separate locations in different parts of the Sydney metropolitan area (six commercial properties and the Applicant’s residential premises) at different times in the period from December 2012 to August 2015.

The Offences, Indicative Sentences and Form 1 Matters

1. [5]

   The Applicant pleaded guilty to five counts of knowingly taking part in the cultivation by enhanced indoor means of not less than the large commercial quantity of cannabis plants contrary to s.23(2)(a) Drug Misuse and Trafficking Act 1985, for which the maximum penalty is 20 years’ imprisonment with a standard non-parole period of 10 years. In addition, the Applicant pleaded guilty to one count of knowingly taking part in the cultivation by enhanced indoor means of not less than the commercial quantity of cannabis plants contrary to s.23(2)(a), for which the maximum penalty is 15 years’ imprisonment with no applicable standard non-parole period.

2. [6]

   At all relevant times, the large commercial quantity for cannabis plants was 200 plants and the commercial quantity was 50 plants: s.23(2)(a), s.33(1)(a), (3)(b) and (4) and Schedule 1, Drug Misuse and Trafficking Act 1985.

3. [7]

   It was the case that, with respect to each of the premises, the cannabis plants were being cultivated by enhanced indoor means: Crowley v R [2017] NSWCCA 99 at [29]-[35].

4. [8]

   The sentencing Judge nominated the following indicative sentences for the large commercial quantity offences:

5. [9]

   For the commercial quantity offence (Sequence 4) committed at Croydon between 7 April 2013 and 21 March 2014 involving 177 plants, an indicative sentence of five years’ imprisonment was noted.

6. [10]

   The Applicant requested the sentencing Judge to take into account on sentence for Sequence 8, two further offences which related to the Applicant’s own residential premises:

Grounds of Appeal

1. [11]

   By Notice of Application for Leave to Appeal filed on 14 November 2017, the Applicant relies upon the following grounds of appeal:

2. [12]

   At the hearing of the application on 28 February 2018, the Applicant sought leave to rely upon a further ground of appeal:

3. [13]

   The Crown did not oppose a grant of leave to argue this ground and the Court permitted the Applicant to rely upon this ground of appeal.

Facts of Offences

1. [14]

   An Agreed Statement of Facts was tendered in the District Court from which the following is drawn.

2. [15]

   Strike Force Grassy was formed by New South Wales Police to investigate the enhanced indoor cultivation of cannabis in residential houses and commercial premises within the central metropolitan region of Sydney.

3. [16]

   On 28 October 2014, police executed a search warrant at 949 Canterbury Road, Lakemba. Located inside these commercial premises was a sophisticated hydroponic cannabis cultivation system consisting of complex lighting, air filtration and extraction systems together with a self-replenishing “water bath” watering system. Temporary walls had been constructed inside the property creating a number of rooms.

4. [17]

   In total, police located and seized in the Lakemba premises 353 cannabis plants, 126 high-pressure sodium lamps, 146 lamp shades, 137 transformers and eight power boards. Forensic police attended the scene and examined some of the seized items for fingerprints. Police also seized a number of other items from the location including clothing, gloves, drinking water bottles and cigarette butts for the purpose of DNA identification.

5. [18]

   Police spoke with the owner of the premises, Alexi Choitis, who said that he had placed an advertisement to lease the premises on Gumtree in 2014. He was contacted by the Applicant who referred to himself as “Anthony”. The Applicant negotiated the lease of the premises and provided fraudulent identification (a driver’s licence, Medicare card and credit card) in the name of Peter Wong, who was said to be the tenant.

6. [19]

   The lease of the premises was signed on 8 May 2014 with the owner receiving a one-month bond in the sum of $7,800.00. Enquiries established that the deposit was made from the Applicant’s bank account.

7. [20]

   Expert analysis of the Applicant’s handwriting provided qualified support that the commercial tenancy application was written by the Applicant.

8. [21]

   On 21 March 2014, police executed a search warrant at 96 Parramatta Road, Croydon. Inside these commercial premises, police located a sophisticated hydroponic cannabis cultivation system consisting of complex lighting, air filtration and extraction systems and a self-replenishing “water bath” watering system.

9. [22]

   In total, police located and seized 177 cannabis plants.

10. [23]

    Enquiries with the agent for the premises established that it was leased to a person known as Tak Wa Lau, who had provided fraudulent identification. The lease arrangement was facilitated by the Applicant. The lease was signed on 7 April 2014 and a copy of the Applicant’s driver’s licence was provided during the leasing process.

11. [24]

    On 9 December 2014, police spoke with the Applicant who told them that he was formerly employed as a sales consultant at Future Partners Real Estate, Chapel Road South in Bankstown. When asked about the documents used in his name, he feigned ignorance and replied “Shocking!” and informed police (falsely) that the previous year whilst he was in Vietnam, one of his suitcases was stolen containing his passport, driver’s licence and various other cards.

12. [25]

    Enquiries with the RTA established that the Applicant had attended the Bankstown Registry of the RTA on 8 April 2014 and a new driver’s licence had been issued to him, this being the day after his licence had been presented to the real estate agent when the lease was signed. The RTA punched a hole in the licence and returned it to the Applicant.

13. [26]

    On 24 July 2013, police executed a search warrant at 45 Moxon Road, Punchbowl. Inside these commercial premises, police located a sophisticated hydroponic cannabis cultivation system consisting of complex lighting, air filtration and extraction systems and a self-replenishing “water bath” watering system.

14. [27]

    In total, police located and seized 360 cannabis plants in these premises.

15. [28]

    Enquiries revealed that the premises had been sublet by George Ge to a person known as Tak Wa Lau, who had provided fraudulent identification. George Ge informed the police that he dealt with an Asian male named “Tony” who gave him a business card from Home Centre Realty with the name “Tony Tran” on it, as well as a picture of the Applicant. The premises were leased on 22 March 2013.

16. [29]

    Expert analysis of the Applicant’s handwriting provided qualified support that the commercial tenancy application was written by the Applicant.

17. [30]

    On 19 October 2013, police executed a search warrant at 281 Anzac Parade, Kingsford. Inside these commercial premises, police located a sophisticated hydroponic cannabis cultivation system consisting of complex lighting, air filtration and extraction systems and a self-replenishing “water bath” watering system.

18. [31]

    In total, police located and seized 281 cannabis plants in these premises.

19. [32]

    These premises were leased on 13 June 2013 after the Applicant again contacted the owner, Zhi Hui Huang, to negotiate the lease. The Applicant provided fraudulent documents to secure the lease. Expert analysis of the Applicant’s handwriting provided qualified support that the commercial tenancy application was written by the Applicant.

20. [33]

    Zhi Hui Huang participated in a line-up identification procedure and, although he did not select any images, he paused over the image of the Applicant and said he was 80% sure it was him.

21. [34]

    On 20 October 2013, police executed a search warrant at 160 Parramatta Road, Stanmore. Inside these commercial premises, police located a sophisticated hydroponic cannabis cultivation system consisting of complex lighting, air filtration and extraction systems and a self-replenishing “water bath” watering system.

22. [35]

    In total, police located and seized 377 cannabis plants in these premises.

23. [36]

    The owner of the premises, Zhu Hui Huang, had advertised the premises in a Chinese daily newspaper. Mr Huang was contacted by the Applicant, who referred to himself as “Tony”, and said that he was a real estate agent looking for properties. On 17 September 2012, Mr Huang met “Tony” at the premises and he completed the lease document in front of him.

24. [37]

    The Applicant provided fraudulent documents to secure the lease. Expert analysis of the Applicant’s handwriting provided qualified support that the commercial tenancy application was written by the Applicant.

25. [38]

    As mentioned earlier with respect to Sequence 6 (at [33] above), Mr Huang participated in a photographic identification procedure and, although he did not select any images, he paused over the image of the Applicant and said he was 80% sure it was him.

26. [39]

    On 5 July 2013, police executed a search warrant at 65 Beresford Avenue, Greenacre. Inside these commercial premises, police located a sophisticated hydroponic cannabis cultivation system consisting of complex lighting, air filtration and extraction systems and a self-replenishing “water bath” watering system.

27. [40]

    In total, police located and seized 418 cannabis plants in these premises.

28. [41]

    The owner, Rami Abed, informed police that the lease had been negotiated with the Applicant on 6 December 2012 and he provided police with the Applicant’s business card from Home Centre Realty with the Applicant’s phone number and photograph printed on it.

29. [42]

    The Agreed Statement of Facts indicated that the Applicant’s role in relation to the abovementioned offences was “confined to the negotiation and arrangement of the leases of the premises with the knowledge that they were to be used for the indoor cultivation of cannabis”.

30. [43]

    I will return to this topic in addressing the grounds of appeal.

31. [44]

    On 21 August 2015, police attended the Applicant’s residential premises at Heritage Way, Glen Alpine. The Applicant was residing at these premises with his partner and two children aged 12 and 13 years.

32. [45]

    A search warrant was executed on these premises during which police located in the basement a hydroponic cannabis growing system containing 80 cannabis plants.

33. [46]

    A representative from Ausgrid attended the premises and established that the power to the premises had been bypassed.

34. [47]

    The Applicant was arrested by police on 21 August 2015. He was refused bail and remained in continuous custody from that date.

The Applicant’s Subjective Circumstances

1. [48]

   The Applicant was born in September 1979. He was aged between 33 and 35 years at the time of the offences. He was 37 years old at the time of sentence.

2. [49]

   The Applicant has a limited criminal history which records that he appeared at the Bankstown Local Court on 18 December 2013 and was fined for stating a false name or home address as a driver of a motor vehicle. In addition, he was placed on a 12-month bond under s.10 Crimes (Sentencing Procedure) Act 1999 for an offence of driving whilst suspended.

3. [50]

   The Applicant did not give evidence at the sentencing hearing.

4. [51]

   Presentence reports of Mr Bruce McSoriley, Community Corrections Officer, dated 27 February 2017 and 6 March 2017 were tendered at the sentencing hearing. A report of Mr Bradley Jones, forensic psychologist, dated 1 March 2017 was tendered in the Applicant’s case together with a number of character references. Those reports revealed the following features concerning the Applicant and his background.

5. [52]

   The Applicant has two children from his first marriage. At the time of his arrest, he was living with the two children and his second wife in premises at Glen Alpine, the location of the Form 1 offences referred to earlier (at [44]-[46]).

6. [53]

   According to the presentence report, the Applicant was born and raised in Vietnam. He was the eldest in a family of four children. His parents divorced when he was 10 years old and he was raised by his mother as a sole parent. The Applicant graduated from high school in Vietnam. He remained close to his father who died in 2010.

7. [54]

   The Applicant migrated to Australia in 1998 as an overseas student. He became an Australian citizen in 2002. He completed English studies in Australia and undertook a diploma course in finance and banking at TAFE. Whilst studying, he undertook part-time employment as a cleaner, process worker and a kitchen cook. After completing his TAFE studies, the Applicant secured employment in the finance industry and worked as a financial broker for a Sydney firm, after which he purchased a restaurant in Sydney in 2004 before selling it two years later.

8. [55]

   The Applicant returned to Vietnam in 2006 where he worked in a family business before returning once again to Australia in 2009. After his return to Sydney, the Applicant worked in real estate brokering.

The Sentencing Hearing and Remarks on Sentence

1. [56]

   The Applicant was committed for sentence from the Burwood Local Court on 29 August 2016.

2. [57]

   The sentencing hearing came before his Honour Judge King SC for the first time on 3 March 2017. Mr James QC appeared for the Applicant. A presentence report had been prepared by Mr McSoriley which was provided to the parties. In light of some material in the presentence report, the Applicant sought an adjournment of the proceedings to allow further information concerning the Applicant to be obtained from overseas. The Crown was ready to proceed and opposed any adjournment of the sentencing hearing. It was determined that the matter could commence before his Honour, with the Crown papers being tendered and the hearing being adjourned part heard until 12 May 2017.

3. [58]

   At the commencement of the resumed hearing on 12 May 2017, an updated presentence report of Mr McSoriley was tendered together with the Applicant’s criminal history. His Honour raised with the Crown and Senior Counsel for the Applicant a number of issues and concerns with respect to the Statement of Agreed Facts (T9-12, 12 May 2017). In response to an enquiry by the Court, the Crown informed the sentencing Judge that a co-offender (Phuong Nam Pham) had been sentenced by his Honour Judge Norrish QC although the sentencing remarks had not yet been requested (T12, 12 May 2017 ). His Honour then raised what was said in the Agreed Statement of Facts concerning the role of the Applicant with it being made clear that the Court would make its own assessment concerning the Applicant’s role and his level of criminality (T13-14, 12 May 2017). Extensive submissions were made on behalf of the Crown and the Applicant before his Honour stood the matter over to 19 May 2017 for sentence.

4. [59]

   Mr James QC submitted that the Applicant’s offences were not “above mid-range” in relation to the large commercial quantity and commercial quantity offences (T21, 12 May 2017). A little later, Senior Counsel for the Applicant submitted that the Applicant’s culpability in each case was “below mid-range” and that a finding of special circumstances should be made (T25, 12 May 2017).

5. [60]

   In the course of submissions, the Crown conceded that the Applicant did not visit any of the premises which were the subject of the charges (apart from his own) (T26, 12 May 2017). It was emphasised that the Applicant was subject to conditional liberty at the time of the Lakemba offence (Sequence 2) as a result of the bond imposed on 18 December 2013 (T28, 12 May 2017). The Crown submitted that the Applicant had “an irreplaceable role” as real estate agent for each set of commercial premises and was a principal although he “managed to distance himself from the dirtier side of the criminal organisation” (T30-31, 12 May 2017). The Crown did not submit the Applicant was “the top dog arranging the entire enterprise”, but did submit he had a very important role in the enterprise (T31, 12 May 2017).

6. [61]

   In reply, Mr James QC emphasised that the Applicant should be sentenced for his role in the offences, noting that there was no evidence of the Applicant having a “management role” or being involved in growing the crops (T33-34, 12 May 2017).

7. [62]

   Given the issues raised in the Applicant’s grounds of appeal, it is appropriate to set out parts of his Honour’s remarks on sentence delivered on 19 May 2017.

8. [63]

   After reciting the facts as contained in the Agreed Statement of Facts (R v Tran at [6]-[36]), the sentencing Judge referred to submissions made concerning the Applicant’s role in the offences (at [37]-[39]):

9. [64]

   His Honour referred to authorities concerning fact-finding on sentence, including Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, O’Neil-Shaw v R [2010] NSWCCA 42 and Cherdchoochatri v R (2013) 277 FLR 126; [2013] NSWCCA 118, before turning to aspects relevant to determination of the role of the Applicant (at [44]-[64]):

10. [65]

    His Honour then referred to principles concerning Form 1 offences (at [65]-[66]) before returning to the Applicant’s role in the offences (at [67]-[75]):

11. [66]

    The sentencing Judge then considered the Applicant’s subjective circumstances including the various reports and references tendered in the defence case (at [76]-[112]).

12. [67]

    His Honour considered (at [113]-[119]) other sentencing cases which had been referred to in submissions:

13. [68]

    The sentencing Judge turned to the Applicant’s criminal history, his prospects of rehabilitation and the discount to be applied for his pleas of guilty (at [118]-[119]):

14. [69]

    His Honour specified the indicative sentences for the offences (as set out earlier at [8]-[9]) and then continued (at [127]-[131]):

15. [70]

    The sentencing Judge declined to make a finding of special circumstances (at [135]):

16. [71]

    His Honour imposed the aggregate sentence referred to at [3] above.

Sentencing For Offences of Cultivation of Large Commercial or Commercial Quantities of Prohibited Plants by Enhanced Indoor Means

1. [72]

   Before moving to consider the grounds of appeal, it is appropriate to refer to the class of offences for which the Applicant was sentenced.

2. [73]

   As the sentencing Judge observed, an examination of past sentencing decisions for offences of this type in this State does not reveal offending of the magnitude of that of the Applicant by reference to the number of premises involved.

3. [74]

   The offences for which the Applicant was sentenced were enacted by the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Act 2006. In the second reading speech with respect to that legislation, Ms Carmel Tebbutt (on behalf of the Attorney General) said (Hansard, Legislative Assembly, 25 May 2006):

4. [75]

   The Minister continued in the second reading speech:

5. [76]

   In view of the first offence on the Form 1 in the Applicant’s case, it is pertinent to note the following statement by the Minister in the second reading speech:

6. [77]

   Also relevant to the present case was the following statement by the Minister:

7. [78]

   The Minister concluded the second reading speech in the following way:

8. [79]

   It may be seen from the second reading speech that the mischief to which the 2006 legislation was directed included the suppression of organised criminal activity, whereby extremely valuable cannabis crops could be cultivated in residential or commercial premises in urban areas utilising hydroponic cultivation measures and illegally diverted electricity. The legislation was directed at suppressing a lucrative market where valuable crops were cultivated in places which were effectively hidden in plain sight in urban communities. As the Minister made clear in the second reading speech, there was a substantial increase in penalties for these offences when compared to available sentences and past sentencing practices for offences of cultivation and supply of cannabis under the pre-existing law. This was achieved in practice by reducing the large commercial quantity for cannabis plants cultivated by enhanced indoor means to 200 plants (from 1,000 plants for other forms of cultivation) and the commercial quantity to 50 plants (from 250 plants for other forms of cultivation).

9. [80]

   As the Minister made clear in the second reading speech, the legislation was directed to the cultivation of large commercial and commercial quantities of prohibited plants by enhanced indoor means. For large commercial quantity offences, the maximum penalty was imprisonment for 20 years. For commercial quantity offences, the maximum penalty was imprisonment for 15 years.

10. [81]

    Amendments made by the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Act 2006 came into force on 14 July 2006.

11. [82]

    In 2008, a standard non-parole period of 10 years was introduced for offences of cultivating a large commercial quantity of cannabis plants by enhanced indoor means: Crimes (Sentencing Procedure) Amendment Act 2007.

12. [83]

    A number of decisions of the Court of Criminal Appeal and the District Court have referred to sentencing for this class of offence. In Pham v R [2009] NSWCCA 266, Latham J (Young JA and Hidden J agreeing) referred (at [14]) to the second reading speech for the 2006 Act and then considered submissions made by reference to decisions for offences committed under the penalty regime which existed before the commencement of the 2006 Act. Latham J emphasised (at [20]) the need to direct attention to the regime created by the 2006 Act:

13. [84]

    On more than one occasion, concern has been expressed by sentencing Judges that sentences imposed for offences created by the 2006 Act did not appear to meet the legislature’s intention for such offences. In R v Nong [2010] NSWDC 227, his Honour Judge Berman SC said at [1]-[3]:

14. [85]

    When sentencing a co-offender of Mr Nong in R v Ly [2010] NSWDC 229, his Honour Judge Berman SC expressed similar sentiments at [8]:

15. [86]

    In Stock v R (2011) 206 A Crim R 574; [2011] NSWCCA 49, Schmidt J (McClellan CJ at CL and Buddin J agreeing) noted at 587 [46] the “relatively new statutory construct” made by the 2006 Act which saw the large commercial quantity set at 200 plants as opposed to the pre-existing level of 1,000 plants, with a standard non-parole period of 10 years being introduced in 2008 for large commercial quantity offences. Schmidt J referred to a number of sentencing decisions for offences under the 2006 Act with her Honour observing (at 588 [52]) that no sentencing pattern or range relevant to the offence can be discerned from the material relied on for the Applicant in that case. Schmidt J observed (at 589 [54]-[55]) that the schedules of cases provided to the Court furnished some support for the Crown submission that sentences imposed on offenders for this offence might be considered to be too light.

16. [87]

    The Court in Stock v R dismissed a sentence appeal from a sentence of nine years’ imprisonment with a non-parole period of five years for one large commercial quantity offence committed on a rural property (335 plants).

17. [88]

    In Co v R [2011] NSWCCA 148, RS Hulme J (Giles JA and Adams J agreeing) referred to the observations of his Honour Judge Berman SC in R v Ly in the context of dismissing a sentencing appeal for a large commercial quantity by enhanced indoor means offence. The applicant had been sentenced to imprisonment for seven years and six months with a non-parole period of four years for a large commercial quantity offence committed in suburban residential premises (266 plants). His Honour said at [27]-[29]:

18. [89]

    RS Hulme J then referred (at [30]-[35]) to a number of decisions of this Court which supported the conclusion that the sentence imposed at first instance in Co v R was not manifestly excessive: Phan v R [2010] NSWCCA 8; Tran v R [2010] NSWCCA 72; R v LP [2010] NSWCCA 154; Wong v R [2010] NSWCCA 160 and Pham v R [2011] NSWCCA 3.

19. [90]

    His Honour Judge Berman SC returned to this topic in R v Nguyen; R v Tran [2011] NSWDC 135 where his Honour said at [1]-[3]:

20. [91]

    Later in that decision, his Honour noted (at [34]) that almost all of the cases on a schedule handed up by defence counsel in that case concerned offenders with Vietnamese names. His Honour noted that the explanation offered for this was that the offenders’ instructing solicitor was Vietnamese and he had contacts in the Vietnamese community.

21. [92]

    It must be observed, however, that the names of offenders referred to in cases mentioned in this judgment point to a preponderance of Vietnamese offenders especially in cases involving cultivation by enhanced indoor means in the Sydney metropolitan area (as opposed to rural areas).

22. [93]

    In R v Wei [2014] NSWDC 33, his Honour Judge Berman SC observed (at [1]) with respect to persons who became involved in offences of this type as “crop sitters” or labourers:

23. [94]

    In R v Clarke [2014] NSWDC 35, his Honour Judge Berman SC referred again to the pattern of sentencing for offences of this type. His Honour said at [1]-[2]:

24. [95]

    In Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232, the Court of Criminal Appeal dismissed an appeal from the sentence imposed by his Honour Judge Berman SC in R v Clarke, being imprisonment for seven years with a non-parole period of four years for one large commercial quantity offence committed on a rural property (1,997 plants). Basten JA said at 153-154 [6]-[7]:

25. [96]

    In the leading judgment of the Court in Clarke v R, Garling J said at 169-170 [112]-[120]:

26. [97]

    In the course of dismissing an appeal against sentence for an offence of cultivating a commercial quantity of cannabis plants by enhanced indoor means in Kresovic v R [2018] NSWCCA 37, Hoeben CJ at CL (Campbell and N Adams JJ agreeing) observed at [46]:

27. [98]

    In Vu v R [2018] NSWCCA 122, this Court dismissed a sentence appeal from an aggregate sentence of eight years’ imprisonment with a non-parole period of four years for commercial quantity offences committed in four residential properties in the Sydney metropolitan area. Like the Applicant’s case, the offences in Vu v R involved multiple locations. However, the present Applicant’s offences involve seven separate locations with five of the offences involving large commercial quantities.

28. [99]

    Cultivation of cannabis plants by enhanced indoor means is not a phenomenon confined to the State of New South Wales. Sentencing courts in Victoria have been called upon to consider the approach to sentencing for offences of this type. A feature which has been emphasised in Victoria is the practice of stealing electricity as part of criminal enterprises of this type. It has been said that offences of stealing electricity add to the cultivation offences in two important ways, by making the enterprise more profitable and assisting in the concealment of the enterprise: Nguyen v R [2013] VSCA 63 at [30]. In Vu v R, I observed (at [77]) that offences of this kind involve a substantial unlawful diversion of electricity, a valuable community service.

29. [100]

    It may be seen that the New South Wales Parliament intended by the 2006 Act, fortified by the inclusion of a standard non-parole period of 10 years for large commercial quantity offences from 2008, that there be a substantial sentencing response by the Courts to offences of this type.

30. [101]

    What has been said so far by this Court or the District Court with respect to sentences imposed for such offences is to be considered now in the context of the Applicant’s case where his offences are virtually unprecedented in nature with five large commercial quantity offences relating to five separate premises in different places in the Sydney metropolitan area and a commercial quantity offence relating to another metropolitan location. In addition, the Applicant’s Form 1 offences involved a commercial crop in his own residence in Sydney.

31. [102]

    It is understandable that the sentencing Judge considered that this case occupied a different category when compared to earlier sentencing decisions in this State for offences under the 2006 Act.

Ground 5 - Claim that the Applicant was Denied Procedural Fairness

1. [103]

   It is appropriate to consider firstly Ground 5, a ground added at the sentencing hearing.

2. [104]

   Ms Kluss, counsel for the Applicant, submitted that her client had been denied procedural fairness as the sentencing Judge had not sufficiently placed Senior Counsel for the Applicant on notice with respect to the approach which his Honour took to the factual basis for sentence as adopted in the remarks on sentence. It was submitted that the approach taken by his Honour had effectively reversed the onus of proof in the proceedings so as to require the Applicant to prove that he was not the organiser of the various cultivations or occupied a position at or near the peak of hierarchy of the offenders.

3. [105]

   It was submitted that practical injustice had resulted for the Applicant in the way in which the sentencing Judge approached this aspect of fact finding on sentence.

4. [106]

   The Crown submitted that there was no procedural unfairness in the manner in which the sentencing Judge determined the factual basis for sentence. It was submitted that the sentencing Judge had made clear that the Court was not bound by an agreement between the parties as to the role of the Applicant and that his Honour was correct in adopting this approach. It was submitted that his Honour gave the Applicant’s Senior Counsel an opportunity to address on the issue and that submissions were made in this respect.

5. [107]

   The Crown submitted that the Applicant had not lost an opportunity to make submissions to the Court on the aspect raised by the sentencing Judge and that no practical injustice had resulted in this case. The parties had been put on notice by his Honour of the Court’s concerns and there was no lost opportunity for the Applicant to make submissions on his role in the various cultivations.

6. [108]

   In Nguyen v R [2015] NSWCCA 268, Price J (Hoeben CJ at CL and Button J agreeing) said at [45]-[46]:

7. [109]

   Recently, in DL v The Queen (2018) 92 ALJR 764; [2018] HCA 32, Bell, Keane, Nettle, Gordon and Edelman JJ said at 772 [39] (footnotes omitted):

8. [110]

   In reciting these principles, their Honours adverted to the well-known principles in GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at 211 [30]-[31].

9. [111]

   As the summary of the sentencing proceedings set out above (at [57]-[61]) indicates, the sentencing Judge made clear to the parties on 12 May 2017 that he was concerned with respect to aspects of the material tendered at the sentencing hearing and that it was a matter for the Court to make findings of fact for the purpose of sentence. His Honour placed the very experienced Senior Counsel appearing for the Applicant at first instance on notice of these issues. The Applicant was given an opportunity to make submissions or to seek to call evidence on these issues if he wished. Submissions were made by Senior Counsel for the Applicant and the Crown in the District Court after his Honour’s indications. The findings made by the sentencing Judge in his remarks on sentence explained his approach and indicated how he had reached his findings by reference to the evidence on sentence.

10. [112]

    As the sentencing Judge observed, the Applicant’s offences included an unusual combination of offences concerning six separate premises where cultivation was being undertaken by enhanced indoor means together with cultivation of that type taking place in the Applicant’s own residential property. The Applicant’s offences involved direct involvement by him in what was happening inside his own home, which was conduct of the same type which was being undertaken in the various premises in the metropolitan area with respect to which he played a key role in arranging the leasing of the premises.

11. [113]

    It has not been demonstrated that the Applicant was denied procedural fairness in the sentencing process. Rather, the sentencing Judge placed the Applicant and his legal representatives on notice in accordance with the requirements of the law and then heard submissions and determined the matter upon the basis that it was for the Court to make findings of fact on sentence.

12. [114]

    As the High Court of Australia has made clear, there is a significant public interest in the sentencing of offenders by the Courts. His Honour exercised the sentencing function in this case in a manner which did not involve any denial of procedural fairness (or practical injustice) to the Applicant.

13. [115]

    Having made clear his concerns in this regard, his Honour proceeded to hear submissions and then pass sentence in a manner which complied with the law.

14. [116]

    Before leaving this ground, it is appropriate to observe that his Honour’s concerns about the material placed before the sentencing Court were understandable. It was reasonable to expect that more evidence of a type seen on sentence for offences of this type would have been tendered, including photographs and evidence concerning the maturity of the crops. Likewise, it was to be expected that the Crown would place before the Court the sentencing remarks for other persons sentenced with respect to one or other of these drug crops: Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4 at 497 [70]-[71].

15. [117]

    I would reject the fifth ground of appeal.

Ground 1 - Claim of Error in Assessment of Objective Criminality of Offending

1. [118]

   Ms Kluss submitted in support of this ground that it was unclear at which point his Honour found the objective criminality of the offending, though there could be no doubt from the sentence imposed that his Honour found it to be very high. It was submitted as well that there was no evidence from which to base any finding of the level of offending save for the number of plants, and the number of premises associated with the cultivations as described in the Statement of Agreed Facts.

2. [119]

   It was submitted for the Applicant that the fact that no other persons were (at the time of sentencing of the Applicant) identified as being responsible did not elevate his objective criminality to being responsible for the whole of the criminal enterprise. It was submitted that the sentencing Judge appeared to have assessed the Applicant’s role as being substantially responsible for the criminal enterprise when this was not the basis of the offending placed before the Court by the Crown and was not supported by the evidence.

3. [120]

   The Crown submitted that it was open to the sentencing Judge to find that the objective seriousness of each of the offences approached the mid-range of objective seriousness on the evidence before the Court on sentence. The Crown pointed to the terms of the definitions of “cultivate” in s.3 and “take part in” in s.6 of the Drug Misuse and Trafficking Act 1985 and submitted that the concept of knowingly taking part in the cultivation of cannabis plants covers a wide range of acts.

4. [121]

   The Crown submitted that the characterisation of the objective seriousness of the offences was open to the sentencing Judge in this case.

5. [122]

   This Court has recognised repeatedly that the characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing Judge: Mulato v R [2006] NSWCCA 282 at [37]. A challenge to a characterisation of the objective seriousness of an offence must be founded upon one of the errors specified in House v The King (1936) 55 CLR 499; [1936] HCA 40: R v Fahda [2013] NSWCCA 86 at [4].

6. [123]

   His Honour found that the Applicant’s offences approached the mid-range of objective seriousness for each of the large commercial quantity and commercial quantity offences (R v Tran at [63] reproduced at [64] above). His Honour explained his findings with respect to the Glen Alpine property where the Applicant was a principal concerning the crop in his own home.

7. [124]

   Consistent with the Statement of Agreed Facts, his Honour found that the Applicant was responsible for arranging the leasing of each of the six premises with the knowledge that they would be used for the purpose of cultivating cannabis plants by enhanced indoor means. His Honour noted, consistent with his indication to the parties during the sentencing hearing, that there were matters relevant to the Applicant’s moral culpability “beyond the bald statement in the agreed facts”. In particular, his Honour concluded that the Applicant had to be able to find premises that would provide the space, security and facilities for cannabis plants to be cultivated.

8. [125]

   As the Crown noted, the Applicant’s plea of guilty to each of the knowingly taking part in the cultivation offences at the commercial and large commercial quantity levels indicated his knowledge or belief that amounts of plants of or above those quantities would be cultivated (R v CWW (1993) 32 NSWLR 348 at 355), and his conduct fell comfortably within the broad definitions of “cultivate” and “take part in” in the Drug Misuse and Trafficking Act 1985.

9. [126]

   By arranging the leasing of each of the premises which were the subject of the large commercial quantity and commercial quantity offences, the Applicant displayed a level of criminality which may be categorised properly as approaching the mid-level of objective seriousness.

10. [127]

    It has not been demonstrated that his Honour erred in his assessment of the objective seriousness of the offences.

11. [128]

    I would reject the first ground of appeal.

Ground 2 - Claim that Insufficient Weight was Given to the Applicant’s Subjective Circumstances

1. [129]

   It was submitted for the Applicant that the documentary evidence tendered at the sentencing hearing for the Applicant indicated that there were many positive features of his character, work record and his reputation in the community. Counsel submitted that although the sentencing Judge assessed the Applicant as having a low risk of reoffending and reasonable prospects for rehabilitation, these positive findings did not appear to have impacted the sentence.

2. [130]

   The Crown submitted that the sentencing Judge identified specifically and considered the Applicant’s subjective circumstances in the remarks on sentence and made positive findings with respect to some of them. It was submitted that the Court had regard to these matters in the process of instinctive synthesis and that the weight to be given to these factors was effectively an issue for the sentencing Judge.

3. [131]

   This Court is a court of error and, in order to establish a basis for intervention, it is not sufficient for an applicant to assert that a sentencing Judge gave insufficient weight to one factor or another: Zhao v R [2016] NSWCCA 170 at [59]. The circumstances in which matters of weight will justify intervention by this Court are narrowly confined: Vaiusu v R [2017] NSWCCA 71 at [29].

4. [132]

   It is apparent from the remarks on sentence that his Honour had regard to the Applicant’s subjective circumstances arising from the documentary evidence and made a number of findings favourable to the Applicant after that assessment. The Applicant stood to be sentenced for a significant number of offences of very considerable seriousness involving his conduct in arranging leasing of premises for large commercial quantity cultivation and undertaking commercial cultivation in his own home where he lived with his partner and two children. His Honour had regard to the Applicant’s subjective case and made findings which were taken into account on sentence.

5. [133]

   It has not been demonstrated that the sentencing Judge gave insufficient weight to the Applicant’s subjective circumstances in the determination of sentence in this case.

6. [134]

   I would reject the second ground of appeal.

Ground 3 - Claim of Error in Not Making a Finding of Special Circumstances

1. [135]

   Counsel for the Applicant submitted that a finding of special circumstances ought to have been made as this was to be the Applicant’s first time in custody and that he would require assistance to address issues identified in the report of Mr Jones, psychologist. In oral submissions, Ms Kluss submitted that Ground 3 may be of greater practical significance if the Court found error and moved to resentence the Applicant.

2. [136]

   The Crown submitted that his Honour’s finding with respect to special circumstances was a discretionary finding of fact in respect of which the Court would be slow to intervene. It was submitted that the particular aspects relied upon by the Applicant with respect to special circumstances were considered by the sentencing Judge when he addressed issues of the Applicant’s first time in custody, family hardship and the Applicant’s depression and other disorders and gambling issues. The Crown submitted that it was open to the sentencing Judge to decline to make a finding of special circumstances in this case.

3. [137]

   In R v Fidow [2004] NSWCCA 172, Spigelman CJ observed at [22] that simply because there is present in a case a circumstance which is capable of constituting a “special circumstance” does not mean that a sentencing Judge is obliged to vary the statutory proportion referred to in s.44 Crimes (Sentencing Procedure) Act 1999.

4. [138]

   As Spigelman CJ observed in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at 719-720 [73], as a practical matter, there are unlikely to be many cases in which the Court of Criminal Appeal will interfere with respect to a finding concerning special circumstances unless the non-parole period is found to be manifestly inadequate or manifestly excessive. A claim of manifest excess is contained in the fourth ground of appeal to which I will shortly turn.

5. [139]

   No error has been demonstrated in the sentencing Judge’s approach declining to make a finding of special circumstances in this case.

6. [140]

   The Applicant has not made good the third ground of appeal.

Ground 4 - Claim that the Sentence was Manifestly Excessive

1. [141]

   Counsel for the Applicant made submissions in support of this ground by reference to other sentencing decisions and sentencing statistics.

2. [142]

   It was submitted for the Applicant that the cases presented by the Crown to the sentencing Judge did present a pattern of sentencing relevant to the individual counts on the indictment and the relative indicative sentences which the Applicant submits points to both the indicative sentences and aggregate sentences being manifestly excessive. Reference was made to Nguyen v R [2009] NSWCCA 283, Phan v R [2010] NSWCCA 8 and Tran v R [2010] NSWCCA 72. It was noted that a sentence of imprisonment for seven years and six months with a non-parole period of five years was passed in Tran v R for an offence of knowingly taking part in the cultivation of a large commercial quantity of cannabis plants by enhanced indoor means, but it was submitted that the offender in that case made admissions that he had set up the operation and tended the plants and intended selling the plants for profit and that he had a prior offence of cultivation on his record.

3. [143]

   Counsel for the Applicant submitted that sentencing statistics assisted the Applicant in support of this ground. The Applicant relied upon sentencing statistics from the Judicial Information Research System for large commercial quantity cultivation offences by enhanced indoor means between 2008 and 2017, with 135 cases revealing a range of full terms from 18 months to nine years’ imprisonment.

4. [144]

   It was submitted for the Applicant that the aggregate sentence was unreasonable or plainly unjust so that the manifest excess ground should be upheld in this case.

5. [145]

   The Crown submitted that the comparative cases and the sentencing statistics do not assist the Applicant in this case to make good the ground asserting manifest excess. It was noted that the sentencing Judge considered the cases relied upon at the sentencing hearing before reaching the conclusion that the decisions did not assist in the passing of sentence. The Crown submitted that the decisions relied upon by the Applicant in this Court did not assist to demonstrate a range of sentences in support of a claim of manifest excess.

6. [146]

   With respect to sentencing statistics, the Crown submitted that reliance upon bare statistics involving 135 cases with a range of head sentences from 18 months to nine years and with non-parole periods ranging from six months to six years did not assist the Applicant on this appeal. The Crown submitted that, even on the statistics presented, the indicative sentences imposed on the Applicant are within range, albeit at the higher end which is said to be appropriate given the findings made concerning the Applicant’s objective criminality.

7. [147]

   The Crown submitted that the Applicant pleaded guilty to six separate offences carried out over a significant period of time involving a total number of 2,040 cannabis plants. It was submitted that the sentencing Judge had regard to the substantial objective gravity of the Applicant’s offences and other relevant factors, including the need for specific and general deterrence to be reflected on sentence.

8. [148]

   The Crown submitted that it had not been demonstrated that the aggregate sentence was manifestly excessive.

9. [149]

   The Applicant contends that the aggregate sentence was manifestly excessive. In Newman v R [2018] NSWCCA 208, the Court observed at [47]:

10. [150]

    It is necessary to keep in mind the origin of these offences in 2006 (at [74]-[80] above), the maximum penalties and the standard non-parole period for large commercial quantity offences. The references to sentencing cases for this class of offence (at [83]-[100] above) do not assist the Applicant in his claim that the indicative sentences and the aggregate sentence are manifestly excessive.

11. [151]

    The Applicant pleaded guilty to six separate offences relating to six separate properties which had been committed over a significant period of time. The scope of the Applicant’s offending may be discerned from the following table which summarises the range of dates, premises and quantities of cannabis plants together with the percentage by which the quantity in question exceeded the statutory threshold and identification of the indicative sentences specified:

12. [152]

    With respect to sentencing decisions for this category of offence, a helpful and relatively recent examination of the large commercial quantity cases may be found in the judgment of Garling J in Clarke v R (at [96] above).

13. [153]

    It is useful to refer to a number of sentencing decisions which relate to offences involving a single property used for large commercial quantity cultivation by enhanced indoor means. Consideration of the cases referred to in the table does not support the Applicant’s claim of manifest excess by reference to the indicative sentences in this case.

14. [154]

    Statistics may serve as a yardstick by which a sentencing Judge may assess a proposed sentence and an appellate court may assess a challenge of manifest excess: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at 565 [47]. This Court has recognised the limitations of bare sentencing statistics which do not provide detailed information as to the circumstances of the offence and the offender so that statistics are, at best, a blunt tool for assessing whether or not a sentence is manifestly excessive. They provide no real assistance to the Applicant in this case.

15. [155]

    The Applicant was fortunate that his separate criminality contained in the offences relating to cultivation of a commercial quantity in his own home were placed on a Form 1 to be taken into account on sentence for Sequence 8. The Form 1 cultivation offence exposed the Applicant’s children to the cultivation process so that the observations of the Minister in the second reading speech for the 2006 Act (at [76]) are pertinent. In sentencing the Applicant for the Sequence 8 offence, it was necessary for the sentencing Judge to give greater weight to the need for personal deterrence and the community’s entitlement to exact retribution for serious offences: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at 425-426 [22]. A longer sentence for the Sequence 8 offence would result: Abbas v R at 426 [23]. The sentence for Sequence 8 factored into the aggregate sentence so as to increase it from what would have applied if the Form 1 matters did not exist.

16. [156]

    It may be said that the indicative sentences were substantial and the aggregate sentence passed was very substantial. However, to observe that a sentence is “very heavy” when compared to other sentences is not, without more, to conclude that it exceeded the bounds of sentencing discretion: The Queen v Pham at 568 [56]. The Applicant committed offences of a number and magnitude which required the imposition of a very substantial sentence after taking into account all factors relevant to the imposition of sentence, including the Applicant’s subjective circumstances.

17. [157]

    It is necessary for sentencing courts to give effect to the legislative purpose underpinning the creation of this new class of offence in 2006. As the extracts from the second reading speech for the 2006 Act make clear (at [74]-[78] above), there was a deep concern with respect to the role of organised crime in the commission of offences of this type. Experience in the courts since 2006 has done little to dispel community concern that organised crime remains involved in this class of offending for the purpose of obtaining substantial rewards from criminal activity. Concern has been expressed as to whether sentences passed for this class of offence have given effect to the legislative intention behind the 2006 Act (see [84]ff above). Decisions of the Court of Criminal Appeal have sought to emphasise the legislative purpose concerning this class of offending and it is important for the Court, in determining the present case, to emphasise once again that purpose.

18. [158]

    Both specific deterrence and general deterrence play an important part on sentence for this class of offending as does the need for adequate punishment and denunciation of the offending conduct: s.3A(a), (b) and (f) Crimes (Sentencing Procedure) Act 1999. Persons who commit these offences do so for the purpose of substantial financial gain and there is a significant level of organisation involved concerning the selection and use of both residential and commercial premises for these illegal purposes. The number of premises in this case fortifies the conclusion that this was organised criminal activity in which the Applicant played a very important role. The sentencing Judge was correct to emphasise the importance of specific and general deterrence in sentencing the Applicant.

19. [159]

    The sentencing Judge had regard to the objective gravity of the offences and the Applicant’s subjective circumstances, together with all pertinent sentencing principles including the need for specific and general deterrence. The indicative sentences fixed were substantial, but each was open in the circumstances of the case. The aggregate sentence imposed upon the Applicant was a very substantial one, at least compared with other sentencing decisions for offences of this type. That said, as has been emphasised already, the Applicant’s offences extend significantly beyond other offences of this type which have been prosecuted in the courts, in particular by reference to the number of properties involved.

20. [160]

    An aggregate sentence of considerable magnitude was called for in this case. It has not been demonstrated that the aggregate sentence imposed upon the Applicant was unreasonable or plainly unjust.

21. [161]

    I would reject the fourth ground of appeal.

Conclusion

1. [162]

   The Applicant has not succeeded upon any of his grounds of appeal.

2. [163]

   I propose that leave to appeal against sentence be allowed but that the appeal be dismissed.

3. [164]

   N ADAMS J: I have had the significant advantage of reading the judgment of Johnson J in draft. I agree with his Honour’s disposition of Grounds 2, 3 and 5. As for Ground 1, I respectfully disagree with his Honour’s finding that no error is disclosed. I am satisfied that the sentencing Judge made factual findings regarding the Applicant’s criminality which went beyond the evidence contained in the agreed facts. I also respectfully disagree with his Honour’s conclusion that the aggregate sentence imposed on the Applicant is not unreasonable or plainly unjust (Ground 4). To put that in positive terms, I am satisfied that the aggregate sentence imposed is manifestly excessive.

4. [165]

   For the purposes of this judgment, I adopt Johnson J’s summaries of the relevant facts, submissions, transcript of the proceedings on sentence and reasons of the primary Judge. I am grateful to his Honour for his detailed exposition of the relevant principles.

5. [166]

   In relation to Ground 5, I agree that the complaint that the Applicant was not afforded procedural fairness in the conduct of the sentencing hearing cannot be sustained. The transcript of the proceedings on sentence shows that, not only did his Honour indicate that he would not be bound by the statement of agreed facts as to the Applicant’s role, but also that the Applicant’s Senior Counsel was able to and did in fact provide detailed submissions as to what finding should be made on this issue. Despite this, I am satisfied that his Honour fell into error in relation to the ultimate finding he made in this regard. I will consider this below in relation to Ground 1.

6. [167]

   As for Ground 2, I agree with Johnson J that no House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House v The King”) error is disclosed by way of patent error in relation to the “weight” to be given to the Applicant’s subjective features, although I will return to the question of possible latent error in this regard in my consideration of Ground 4.

7. [168]

   As for Ground 3, I agree with Johnson J that no House v The King error is disclosed in the exercise of the sentencing Judge’s discretion not to vary the statutory ratio in this matter under s.44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”). The sentencing Judge was not in fact satisfied that there were any special circumstances in this matter. Decisions such as R v Fidow [2004] NSWCCA 172, referred to by Johnson J at [137], establish that just because there are circumstances capable of amounting to special circumstances, it does not follow that a sentencing Judge is obliged to vary the statutory ratio between the head sentence and non-parole period. It will always be a matter of judicial discretion. It is of interest to note, however, that as Button J recently observed in Brennan v R [2018] NSWCCA 22 at [72]-[78], evidence shows that the statutory ratio was varied following findings of special circumstances in more than 91% of cases where a non-parole period was imposed in the seven-year period up to 2013. As his Honour observed at [78], there is no reason to conclude that this percentage has changed in more recent years. Spigelman CJ had earlier noted in Fidow v R that “[t]here is evidence that findings of special circumstances have become so common that it appears likely that there can be nothing ‘special’ about many cases in which the finding is made.” (at [20]).

8. [169]

   In relation to Ground 1, Johnson J has set out at [122] the relevant principles to apply when an assertion of error on the part of a sentencing Judge is made regarding the finding of objective seriousness on appeal. I adopt those principles for the purpose of my reasons. In the present matter, the sentencing Judge categorised the objective seriousness as “approaching the mid-range”. Thus, his Honour found that the objective seriousness of each offence was below mid-range, which is broadly consistent with the submission made on behalf of the Applicant before the sentencing Judge that the finding should be “below mid-range”.

9. [170]

   I am not satisfied that any error is disclosed in a finding of objective seriousness of approaching mid-range for each of the six offences. Such findings were within the sentencing Judge’s discretion and no House v King error is disclosed in that regard. As the sentencing Judge found, the Applicant’s role of negotiating, arranging and causing the leases to be entered into was essential. Furthermore, the various leases were entered into over a period of more than two years with the Applicant knowing that the premises were being leased for the purposes of cultivating large commercial quantities of cannabis.

10. [171]

    Despite this, the complaint made by the Applicant under Ground 1 goes further than a simple challenge to the finding of objective seriousness within any notional range. Rather, this ground also challenged some of the findings of fact made by the sentencing Judge which not only went beyond what was contained in the agreed facts but which were aggravating factors not able to be proven beyond reasonable doubt on the evidence before his Honour. I have considered the submissions on this issue and had regard to the relevant portions of his Honour’s reasons and am satisfied that at least some of these complaints have been made good. Before turning to the relevant passages of the sentencing Judge’s reasons on this issue at [39]–[72] (most of which is extracted in Johnson J’s reasons at [63]-[65]), it is necessary to first have regard to the relevant principles regarding fact finding on sentence.

11. [172]

    The authorities clearly establish that a sentencing Judge is not permitted to make findings of fact in a way adverse to the interests of an offender unless they are established beyond reasonable doubt whereas it is sufficient that facts favourable to the offender be established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (“The Queen v Olbrich”); Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41] and Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64] and [66] (“Filippou v The Queen”).

12. [173]

    As the High Court observed in Filippou v The Queen at [70], sometimes it is not possible for the Court to ascertain everything that is relevant to the sentencing exercise, including the relevant facts, but when that occurs the sentencing Judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard. Nor is the Court bound to adopt the view of the facts most favourable to the offender: Filippou v The Queen at [72]. Nor is the sentencing Judge bound by any agreements as between the Crown and the offender on matters such as role or moral culpability: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at 211 ([30]–[31]); DL v The Queen (2018) 92 ALJR 764; [2018] HCA 32 (“DL v The Queen”) at 772 ([39]); R v Uzabeaga (2000) 119 A Crim R 452; [2000] NSWCCA 381 at 458 ([34]).

13. [174]

    An agreed statement of facts tendered for the purposes of sentencing is a formal admission of those facts for the purposes of sentence. If some facts on sentence are not agreed then it is necessary for the sentencing Judge to resolve any factual disputes by evidence adduced and by applying the respective onus and standards of proof: O’Neil-Shaw v The Queen [2010] NSWCCA 42 (“O’Neil-Shaw v The Queen”) at [26].

14. [175]

    The sentencing Judge in the present matter observed at [38] of his reasons that he “regarded the determination of the role of the offender to be a matter for the Court to determine and that the Court was not bound by any assertion in the agreed facts” as to the offender’s role. In support of this observation his Honour referred to the decisions in O’Neil-Shaw v The Queen, Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 and Cherdchoochatri (2013) 277 FLR 126; [2013] NSWCCA 118. I note that in Chow v Director of Public Prosecutions, Kirby JA observed (at 606F) that “[a] statement of agreed facts may appear to the sentencing judge to be inadequate for sentencing purposes”, that a “judge may feel the need for further material” and that “the parties cannot forbid the judge to seek such assistance”.

15. [176]

    At [108]-[110] of his reasons, Johnson J has extracted passages from the decisions in Nguyen v R [2015] NSWCCA 268 (“R v Nguyen”) and DL v The Queen on this issue. It is pertinent to note the factual basis for the appeal in Nguyen v R. In that decision a statement of agreed facts and a record of interview were tendered by the Crown at the proceedings on sentence. In the statement of agreed facts it was asserted that the offender was to be sentenced on the basis that he was a courier. His Honour indicated he was not bound by that concession by the Crown. The matter was adjourned and further evidence was called by the Crown on the next occasion. His Honour ultimately was not satisfied on the balance of probabilities that the applicant was a courier.

16. [177]

    The offender in Nguyen v R appealed to this Court on the basis, inter alia, that the Judge erred in finding his role was higher than a courier. It was in that context that the Court (Price J, with whom Hoeben CJ at CL and Button J agreed) noted (at [46]) that “a sentencing judge is not bound to accept agreed facts that are presented to him [or her] by the Crown and the defence” and that nor is he or she “obliged to refrain from questioning facts even though they may be agreed”. As discussed above, that matter concerned a finding as to the proper classification of the offender’s role as a “courier”. What occurred in that matter differs to the Applicant’s case.

17. [178]

    Turning to the factual findings by the sentencing Judge in this matter, I make the following observations.

18. [179]

    At [39], [46] and again at [61] of the reasons, the sentencing Judge states that the only evidence of the Applicant’s involvement in these offences is that he was responsible for negotiating, arranging and causing the leases to be entered into, with the knowledge that they would be used for the purposes of cultivating cannabis plants by enhanced means. This is consistent with the agreed facts and the Applicant’s pleas of guilty to these offences.

19. [180]

    At [39] his Honour noted that there are matters relevant to the Applicant’s moral culpability that go beyond the “bald statement” of facts contained in the agreed facts. His Honour articulated that this included the fact that in order for the Applicant to be in a position to find appropriate premises, he would have to have some knowledge of what would be required for the respective cultivations. Again, this finding is an available inference to draw from the agreed facts before his Honour and the nature of the offences to which he pleaded guilty.

20. [181]

    At [44] his Honour referred to the decision of Simpson J (as her Honour then was) in Hanh Thi Nguyen v R (2011) 208 A Crim R 432; [2011] NSWCCA 92 where her Honour noted at [4] that the role of a principal involves at least some of the following four characteristics: contributing financially to the cost of setting up the operation; standing to share in the profit (as distinct from receiving payment); some management of the operation; and some decision making. His Honour followed this by repeating that the only evidence of the offender carrying out any task in relation to each of the offences is that he arranged the leasing of the premises knowing that they were to be used for the cultivation of cannabis plants by indoor means. It is not clear whether his Honour then made any findings regarding the indicia identified by Simpson J.

21. [182]

    From [47] to [55] of his reasons the sentencing Judge recounted in some detail what evidence was not included in the agreed facts and thus not before the Court for the purposes of sentencing. A real question arises as to how his Honour had regard to these matters in the sentencing proceedings. His Honour made no express findings in these passages but nor did he state that he could not have regard to any of them either.

22. [183]

    At [56] his Honour speculates that in relation to the Croydon premises, “it would be entirely possible for at least one crop to have been grown to harvest, and a further crop, at least, substantially if not completely, also grown to harvest”. There was no evidence as to how many crops were grown nor the size of the plants before his Honour. The Applicant stood to be sentenced on the fact that 177 plants were found on those premises at the time of the execution of the search warrant on 21 March 2014.

23. [184]

    At [57] his Honour speculates as to what the leasing costs could have been for the premises in which these indoor crops were cultivated given they were all “within the central metropolitan region”. His Honour further speculated as to the likely amount of equipment required for some of the larger crops and commented that:

24. [185]

    Although it is to be accepted that there may well have been a “very substantial investment” in these cultivations as described by his Honour, there was no evidence at all before the Court that it was the Applicant who had made that substantial investment.

25. [186]

    At [62] his Honour referred to the offences committed by the Applicant on the Glen Alpine premises which were placed on the Form 1 in relation to the count pertaining to the Greenacre premises. The Form 1 matters concerned the fact that 80 plants were found to be growing in the cellar of the Applicant’s home and that the Applicant had used, consumed or wasted electricity without authority contrary to s.64(1) of the Electricity Supply Act 1995. His Honour noted that the Applicant was “well aware of the means of production and had the necessary skills to himself run the operation in the basement of his own home”. Again, this is relevant to the seriousness of the facts in relation to the Form 1 matters but could not provide sufficient evidence to establish beyond reasonable doubt that the Applicant was responsible for all of the other cultivations as well.

26. [187]

    After making the findings of objective seriousness and moral culpability at [63] and [64], his Honour noted at [69] that it is “significant” that (except for the Lakemba premises) no other person was ever identified by the authorities as having any role at all to play in the individual offence. His Honour does not articulate why this fact is significant. I am satisfied that his Honour is here suggesting that there were in fact no other persons involved in the cultivations besides the Applicant. His Honour makes no reference to parity in this passage which would be the only other way in which evidence of co-offenders might be relevant.

27. [188]

    At [70] his Honour notes that the offender did not give evidence nor participate in a record of interview nor offer any assistance to the authorities to identify any other co-offenders. His Honour then observed at [71] that, “where an offender seeks to be dealt with on the basis of some mitigating circumstance, such as a lesser role, it is for the offender to provide appropriate evidence to assist the Court in finding such a lesser role on the balance of probabilities. The offender has not done so”.

28. [189]

    It is unclear what his Honour was referring to when he found that the Applicant had failed to discharge his onus of establishing that he had a lesser role in the cultivations in the context of no other offenders being identified. The Crown informed the Court during the proceedings on sentence that there was no evidence that the Applicant had ever been present at any of the premises where the drugs were cultivated (as noted by Johnson J above at [60]). During the hearing of the appeal in this Court, counsel for the Crown described the Applicant’s conduct as being similar to an “accessory before the fact”. Despite this, his Honour appears to make a finding at [70]-[71] that the Applicant had not discharged his onus of establishing that his role was limited to being the participant responsible for the leasing.

29. [190]

    The absence of any evidence as to the identification of other co-offenders is not a fact capable of establishing beyond reasonable doubt that the Applicant was responsible for the entire criminal enterprise. Nor did it require the Applicant to assist authorities in order to discharge some evidentiary onus in this regard.

30. [191]

    Although his Honour noted on a number of occasions that the only evidence before him in the agreed facts was that the Applicant’s role was to negotiate, arrange and cause the leases to be entered into, it is open to conclude that his Honour was not satisfied that the Applicant’s involvement was confined to those actions. The sentencing Judge’s reasons at [47]-[55] suggest that his Honour formed the view that the Applicant had full knowledge of all of the activities pertaining to each of the cultivations during the whole of each lease. That knowledge apparently included how many harvests there were and the general financing of the overall operations. His Honour also appears to have been satisfied that it was the Applicant who was responsible for all of the crops.

31. [192]

    There was evidence that at the time of the first of these offences the Applicant was a real estate broker (he provided his business card to the first two lessors). The presentence report dated 27 February 2017 (updated on 6 March 2017) stated that the Applicant described that he was introduced at the Sydney Casino to a criminal group who offered him “a way to satisfy his debts by organising rental properties obtained through his real estate connections”. In the report of Mr Bradley, forensic psychologist, it is stated that the Applicant told him that, at a time when he carried a significant financial debt for his father’s medical treatment, he was offered an opportunity to arrange rental properties for the purpose of growing cannabis and that he would be paid a commission.

32. [193]

    It may well be the case that when sentencing an offender a suspicion exists that his or her involvement may be more than is disclosed in the evidence or admitted (and this case is no exception), but that is no basis to elevate those suspicions to findings of fact. Even accounting for the fact that a sentencing Judge is not bound by any concession by the Crown as to an offender’s role, nor bound to accept an offender’s explanation for his offending, it is not open to a sentencing Judge to make factual findings adverse to an offender in the absence of any evidence of those matters and where any available inferences could not rise to proof beyond reasonable doubt.

33. [194]

    In the present matter his Honour stated on a number of occasions (at [39], [46] and [61]) that the evidence of the Applicant’s involvement was that he had the responsibility for negotiating, arranging and causing the leases to be entered into. Despite this, I can find no other reason for his Honour’s detailed examination of the potentially aggravating factors at [47]-[55] nor his findings at [71]-[72] regarding the failure of the Applicant to discharge his onus other than that these matters were somehow taken into account by his Honour. There was certainly no express statement by his Honour that he could make no findings on those issues on the state of the evidence before him

34. [195]

    For these reasons I am satisfied that his Honour erred in relation to the fact-finding process regarding the Applicant’s criminality and that a real doubt exists as to the proper factual basis upon which he sentenced the Applicant. I would have upheld Ground 1.

35. [196]

    Ground 4 contends that his Honour imposed a sentence that was unreasonable or plainly unjust. The principles in relation to such a ground are well established. As Johnson J observes at [149] they were recently summarised in Newman v R [2018] NSWCCA 208.

36. [197]

    In determining whether a ground of manifest excess in relation to a sentence is established, and in this case an aggregate sentence, an appellate court will usually have regard to all of the relevant sentencing considerations. These considerations include the statutory guideposts (in this case a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years imprisonment), the gravity of the offending, the length of the indicative sentences, the principle of totality, the Applicant’s subjective circumstances, the Judicial Commission statistics, and any assistance to be derived from other appellate decisions.

37. [198]

    I have already dealt with the sentencing Judge’s factual findings above. The Applicant’s subjective circumstances (as summarised by Johnson J at [48]-[55]) were largely favourable. The sentencing Judge also made favourable findings regarding the Applicant’s rehabilitation and future prospects. The Applicant’s only prior offending was in 2013 for driving offences for which he was placed on a s.10 bond under the Sentencing Act. The sentencing Judge noted at [80] that, although a bond is a form of conditional liberty, that matter could have “no adverse effect on the sentences to be imposed”.

38. [199]

    The Applicant pleaded guilty to these offences in the Local Court and no issue was taken that he was entitled to a discount of 25% for those early pleas. Section 53A(2)(b) of the Sentencing Act requires that, when providing the indicative sentences for the purposes of imposing an aggregate offence, a sentencing Judge is required to consider all of the matters that are relevant under Part 3 of the Sentencing Act. Part 3 of the Act includes s.22 which concerns discounts for pleas of guilty. Thus, the application of the 25% discount for the Applicant’s pleas of guilty was to be applied to each of the indicative sentences.

39. [200]

    There is no statutory requirement for a sentencing Judge to indicate what an indicative sentence is prior to the discount being applied but the starting points for the indicative sentences can be arrived at by working backwards. In the present matter it would appear that the notional starting points for each of the indicative sentences would have been as follows. For sequence 8, the starting point would have been 10 years and eight months imprisonment with a non-parole period of eight years. For sequence 4, the starting point would have been six years and eight months imprisonment. For sequence 6, the starting point would have been eight years with a non-parole period of six years. In respect to sequences 2, 5 and 7, assuming the commencement date of the sentences was 21 August 2015, the starting point would have been eight years, 10 months and 19 days imprisonment with a non-parole period of six years and eight months.

40. [201]

    The Applicant’s appeal is against the aggregate sentence imposed on him. It is well established that the indicative sentences are not themselves amenable to appeal. Despite this, the indicative sentences may be a guide to whether error is established in relation to the aggregate sentence: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]. Johnson J has undertaken the task of comparing the indicative sentences imposed on the Applicant with sentences imposed in other decisions.

41. [202]

    At [153] of his judgment, Johnson J has set out a table referring to a number of sentences for offences contrary to s.23(2)(a) of the Drug Misuse and Trafficking Act 1985 which involve a single property used for large commercial cultivation by enhanced indoor means. His Honour considered that the cases referred to in that table do not garner support for the Applicant’s claim of manifest excess by reference to the indicative sentences in the present case. With respect to his Honour, I am not persuaded that is the case. I do not propose to address all of these decisions but the following are of relevance.

42. [203]

    In Tran v R [2010] NSWCCA 72, the offender was the sole operator and financier of cultivation at a residence premises in Moorebank. He admitted to police that he had total control of the 210 plant crop and intended to sell the harvest at Kings Cross. Having pleaded guilty, the offender was sentenced to seven years and six months imprisonment with a non-parole period of five years, taking into account a 25 percent discount for his early plea. An appeal against the severity of the sentence was dismissed.

43. [204]

    In R v LP [2010] NSWCCA 154, the offender was resentenced (following a successful Crown appeal) for an offence contrary to s.23(2)(a) of the Drug Misuse and Trafficking Act 1985, with five Form 1 offences being taken into account, those being: dealing with $100,000 suspected to be proceeds of crime; possessing a prohibited weapon; unlawful possession of an article (a drivers licence) to deceive; and offences of having and using a false instrument. The offender was also sentenced with respect to supply charge contrary to s.25(2) of the Drug Misuse and Trafficking Act 1985 in relation to 25kg of cannabis leaf. The offender was the sole organiser of the cultivation of 274 plants grown at his residence, which he shared with his parents. The offender was allowed a 40% discount for his early plea and assistance to Police. With respect to the s.23(2)(a) offence (taking into consideration the Form 1 offences and the early guilty plea discount but excluding the discount for his assistance), the offender was sentenced to imprisonment for seven years and four months with a non-parole period of four years.

44. [205]

    In Co v R [2011] NSWCCA 148, the offender had leased and resided in premises where 266 plants were cultivated. He was found to have been fully involved in all aspects of the cultivation and intended to sell the cannabis following its harvest. The offender was sentenced to imprisonment for seven years and six months with a non-parole period of four years which was upheld by the Court.

45. [206]

    In Stock v The Queen (2011) 206 A Crim R 574; [2011] NSWCCA 49, the offender owned property where cannabis was cultivated contrary to s.23(2)(a). He had established the property for cannabis production, paying a co-offender $50,000 and a pound of cannabis a month to keep a lease of the property in his name and to maintain the property and plants. The total setup cost was $60,000. Taking into account a Form 1 offence for supply of 9.7kg of cannabis, the offender was sentenced to nine years imprisonment with a non-parole period of five years. An appeal against the severity of the sentence was dismissed.

46. [207]

    Finally, in Crawford v R [2013] NSWCCA 269, following a successful appeal, the offender was resentenced in relation to cultivating cannabis contrary to s.23(2)(a) and to supplying 3.476kg of cannabis contrary to s.25(1). The offender owned the property where the cultivation of 319 plants took place. The setup was highly sophisticated and the offending was motivated by profit. The Court resentenced the offender to a total term of seven years and six months imprisonment with a non-parole period of five years and seven months with respect to both offences.

47. [208]

    In each of these cases the offender had a high level of involvement in the cultivation operations. Consistently, this involved organising, financing and being directly part of the cultivation for the purposes of deriving profits through the illegal sale of cannabis. Most of the head sentences imposed were approximately seven years and six months. The nature of the Applicant’s offending, although serious, involving six offences and playing a role “essential” to the cultivations, is markedly different. There was no evidence before his Honour that the Applicant was directly involved in any of the six cultivations or had even visited any of those premises. Nor was there any evidence that the Applicant was the “top dog arranging the entire enterprise” as was conceded by the Crown at the sentence proceedings. The number of charges against the Applicant must be balanced as against his role. I have been unable to locate any case where an offender received a higher sentence than the Applicant did for offences of this nature, even given the scale of the operation.

48. [209]

    Although it is clear that the discount is to be applied to the indicative sentences and not the aggregate sentence, in order to attempt to identify what the notional starting point might have been in general terms for the sentence imposed on the Applicant (and in circumstances where the same discount of 25% was to be applied to each indicative sentence), it is to be noted that the notional starting point for the aggregate sentence without allowance made for the 25% discount is a sentence of just over 17 years and nine months imprisonment.

49. [210]

    I accept that, as Johnson J has observed at [155], the Form 1 matter was very serious and that needed to be reflected in the indicative sentence in relation to which it was to be taken into account. Although the Form 1 offences suggest that, by the time of his arrest, the Applicant was growing a smaller crop in his basement, that evidence is insufficient to establish that the Applicant was growing all of the crops on the evidence before the Court.

50. [211]

    I agree with Johnson J that no particular assistance can be obtained from the Judicial Commission statistics in this matter given the particular facts and subjective circumstances in the Applicant’s case. Despite this, it is relevant to note that those statistics show that of the 98 aggregate/effective sentences imposed for cultivating or knowingly take part in the cultivation by enhanced indoor means of a prohibited plant between January 2008 and March 2018, the Applicant’s aggregate sentence of 13 years and four months is the highest by a significant degree.

51. [212]

    In undertaking the evaluative process of seeking to reach a finding as to whether the aggregate sentence imposed on the Applicant is manifestly excessive or “too severe”, I have had regard to all of the factors relevant to the sentencing exercise. I accept, as Johnson J has stated at [156], that the Applicant committed offences of a number and magnitude which required the imposition of a very substantial sentence. I also agree that sentences imposed for offences of this nature following the 2006 amendments to the Drug Misuse and Trafficking Act 1985 and the introduction in 2008 of a standard non-parole period of 10 years do not appear to reflect those legislative changes. Despite this, I am satisfied that an aggregate sentence which suggests a starting point of nearly 18 years imprisonment for negotiating and leasing these properties knowing they would be used by a criminal syndicate for the cultivation of large commercial quantities of cannabis is manifestly excessive. I would have allowed this ground of appeal as well.

52. [213]

    Given that mine is a minority judgment, I do not propose to undertake the task of resentencing the Applicant.