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Clarke entered a guilty plea to a charge of cultivating

The Court of Criminal Appeals rejected a claim that the sentencing judge erred by assuming that hundreds of seedlings constituted growing cannabis plants

In August 2015, the Court of Criminal Appeal (CCA) decided Clarke v R [2015] NSWCCA 232. Clarke entered a guilty plea to a charge of cultivating a large commercial quantity of cannabis by enhanced indoor means in violation of section 23(2)(a) of the Drug Misuse and Trafficking Act 1985. A plant is cultivated by “enhanced indoor means” when it is grown indoors and the grower uses artificial light or nutrient-enriched water.

When the cultivation occurs by enhanced indoor means, the Trafficking Act defines a “large commercial quantity” as 200 or more plants. That quantity subjects the accused to a maximum sentence of 20 years.

Giving Clarke the benefit of a 25% sentence reduction for pleading guilty, the judge imposed a head sentence of 7 years. The judge also imposed a non-parole period of 4 years.

Since the offence carries a standard non-parole period of 10 years, the judge was required to explain his departure from the standard. The Court of Criminal Appeals (CCA) rejected the argument that the sentencing judge gave too much weight to the standard non-parole period when he suggested that courts typically fail to impose the harsh sentences that the legislature desires. Since the judge acknowledged his view was “idiosyncratic” and instead followed precedent when imposing sentence, his remarks could not be taken as error.

Number of plants

Clarke was convicted under a section of the Trafficking Act that applies to the cultivation of “growing” plants. The most serious issue presented for the CCA’s review concerned the sentencing judge’s finding that Clarke’s offence involved nearly 2,000 growing plants. That finding was based on a certificate of analysis that identified 1,997 cannabis plants, 790 of which were seedlings of 10 cm in height.

Precedent in NSW establishes that a “growing plant” is one that has established roots. A cutting therefore becomes a growing plant once it has rooted. The certificate of analysis did not distinguish between growing plants and parts of plants that have not rooted, but an analyst testified that he sampled six seedlings and found that they all had roots. While Clarke maintained that the sample was inadequate to prove that all of the seedlings had roots, it was fair for the judge to infer that most of them did.

The CCA determined that the precise number of plants was unimportant since there were clearly more than 200 mature growing plants, a number sufficient to constitute a large commercial quantity. On the other hand, since the judge relied upon the cultivation of a larger number of plants as an aggravating factor, that fact had to be proved beyond a reasonable doubt.

The CCA has the power to review the sentencing judge’s determination of facts and to resentence the accused when the judge relied upon a mistaken fact in imposing sentence. In this case, however, the certificate of analysis and the analyst’s testimony were sufficient to allow the judge to conclude beyond a reasonable doubt that the number of growing plants approached 2,000. As long as the number was on the same order of magnitude as the 2,000 plants upon which the judge relied, it was not an error to base a sentence on that approximation.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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