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Andreata did not own the cannabis plants or the house in which they were grown

A judge’s error in stating the maximum sentence and in imposing an excessive sentence resulted in a reduced sentence for two drug charges

In Andreata v Regina [2015] NSWCCA 239, decided September 7, 2015, the New South Wales Court of Criminal Appeal set aside the sentences imposed upon the accused for two offenses:  cultivating a prohibited plant and supplying a prohibited drug. The court resentenced the accused to a substantially shorter term of imprisonment.

Cultivation sentence

Adam Andreata was convicted of violating section 23(2) of the Drug Misuse and Trafficking Act 1985 (DMTA) by growing a commercial quantity (more than 50 plants) of cannabis in a sophisticated hydroponic growing operation. The maximum sentence for that offense was 15 years of imprisonment.

Andreata did not own the cannabis plants or the house in which they were grown. He was paid a sum of money (plus payment of his rent) to tend the plants. While Andreata was accused of growing 133 plants, he admitted only to cultivating 61 plants. The dispute arose from Andreata’s contention that some of the seedlings included in the accusation were too immature to count as plants. While the sentencing judge concluded that the correct number was probably between 61 and 133, the judge accepted that the Crown failed to prove any number above 61 beyond a reasonable doubt.

Andreata had no significant prior record. The sentencing judge decided that the cultivation charge warranted a sentence of seven and a half years, but reduced that sentence by 20% because Andreata entered a guilty plea. The judge determined that Andreata would be eligible for parole after serving half of the six year sentence.

Supply sentence

Andreata admitted that the plants found growing in the home were the second crop that he had tended. Also found in a search of the home were more than two kilograms of harvested marijuana. Andreata admitted that the harvested cannabis came from the first crop.

The harvested cannabis was the basis for Andreata’s conviction of supplying a prohibited drug in violation of section 25(1) of the DMTA. The maximum sentence for the supply charge was 10 years imprisonment.

At sentencing, the judge mistakenly stated that the maximum sentence for supply was 15 years imprisonment. The judge imposed a fixed sentence of 3 years and made that sentence concurrent with the cultivation sentence.

Sentencing appeal

Sentences must be based upon correct legal principles. The Court of Criminal Appeal (CCA) concluded that the sentencing judge erred by relying on an incorrect understanding of the maximum sentence when it imposed a sentence on the supply charge. That error entitled Andreata to resentencing.

The CCA rejected Andreata’s argument that he was entitled to a 25% reduction in his cultivation sentence for pleading guilty. Andreata’s challenge to the facts relied upon by the Crown at sentencing resulted in a protracted sentencing hearing that partially offset the resource-saving value to the court of his early guilty plea. Despite Andreata’s success in making that challenge, the CCA determined that the sentencing judge properly exercised his discretion by awarding only a 20% discount in the sentence.

The CCA did, however, accept Andreata’s argument that the cultivation sentence was “manifestly excessive.” Taking into account that Andreata played a limited role in the offence, that the number of plant in excess of the 50 required to establish a commercial quantity was not substantial, and that Andreata had no significant criminal record and no history of confinement, the CCA decided that the cultivation sentence was excessive. It based that conclusion on a comparison of Andreata’s sentence to cultivation sentences imposed in comparable cases, which were typically about half the length of the sentence imposed upon Andreata.

Having determined that Andreata was entitled to resentencing, the CCA exercised its independent discretion to impose a new sentence. The CCA deemed it unlikely that Andreata would reoffend (a factor that the sentencing judge failed to address). The CCA also noted that Andreata has done well during the course of his confinement between the date of sentencing and appeal. The CCA imposed a fixed sentence of 12 months on the supply charge and a head sentence of 3 years on the cultivation charge. The CCA ordered that 9 months of the cultivation sentence would overlap the supply sentence, resulting in a combined sentence of 3 years and 3 months. The CCA made Andreata eligible for parole after serving 18 months on the cultivation charge, which will give him parole eligibility after serving 21 months on the combined sentence.

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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