Green v The Queen

• Jurisdiction: Australia Federal only
• Judge: French CJ,Crennan,Kiefel JJ
• Judgment Date: 06 December 2011
• Neutral Citation: 2011-1206 HCA A,[2011] HCA 49
• Court: High Court
• Docket Number: Matter No S146/2011
• Date: 06 December 2011

[2011] HCA 49

HIGH COURT OF AUSTRALIA

French CJ, Heydon, Crennan, Kiefel, Bell JJ

Matter No S146/2011

Matter No S143/2011

Brett Andrew Green

Appellant

and

The Queen

Respondents

Shane Darrin Quinn

Appellant

and

The Queen

Respondents

Representation

J T Gleeson SC with D P Barrow for the appellant in S146/2011 (instructed by Legal Aid NSW)

G A Bashir with A Betts for the appellant in S143/2011 (instructed by Ford Criminal Lawyers)

C K Maxwell QC with P A Leask for the respondent in both matters (instructed by Solicitor for Public Prosecutions (NSW))

Criminal Appeal Act 1912 (NSW), s 5D.

Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2), 25(2).

Green v The Queen

Quinn v The Queen

Criminal law — Appeal — Appeal against sentence — Appeal by Crown — Parity principle — Where primary judge imposed sentence having regard to parity principle as between appellants and other co-offender — Where s 5D of Criminal Appeal Act 1912 (NSW) provided that primary purpose of appeals against sentences by the Crown is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons’ — Where appellate court increased each appellant's sentence — Whether appellate court erred in allowing Crown appeal and thereby creating disparity between sentences of appellants and other co-offender — Whether appellate court erred in finding, absent any submission from Crown, that sentence imposed on other co-offender manifestly inadequate.

Words and phrases — ‘appeal’, ‘Crown appeal’, ‘parity principle’, ‘sentencing’.

ORDER

In each matter:

1. Appeal allowed.

2. Set aside the Order of the Court of Criminal Appeal of New South Wales of 17 December 2010 and, in its place, order that the appeal to that Court be dismissed.

French CJ, Crennan And Kiefel JJ

Introduction

1 The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (‘Crown appeals’) under s 5D of the Criminal Appeal Act 1912 (NSW) (‘the Criminal Appeal Act’) is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.’ 1 That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the ‘residual discretion’.

2 In Crown appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice. Relevant circumstances include consequential disparity relative to an unchallenged sentence imposed on a co-offender and delay in the appeal process which may be associated with disruption of the offender's progress towards rehabilitation. In such cases it may be appropriate for a court of criminal appeal, in the exercise of its residual discretion, to dismiss a Crown appeal.

3 The Court of Criminal Appeal allowed appeals by the Crown against sentences imposed upon Shane Quinn and Brett Green 2, participants in a substantial enterprise involving the cultivation of cannabis plants. The sentences imposed upon them by the primary judge were, in part, calculated by reference to the level of their involvement relative to that of Kodie Taylor, a lesser, but nevertheless significant, participant in the enterprise. He had been sentenced two and a half months earlier and his sentence was not challenged by the Crown. The decision of the Court of Criminal Appeal disturbed that relativity. It created an unjustified disparity between the punishments imposed on the co-offenders. It

did so, inter alia, upon the basis that Taylor's unchallenged sentence was ‘manifestly inadequate’. No such characterisation of that sentence had been argued by the Crown, nor suggested by the Court of Criminal Appeal during the hearing of the appeals.

4 The Court of Criminal Appeal erred in failing to give adequate weight to the purpose of Crown appeals and the importance of the parity principle. It also erred in allowing the appeals partly on a basis that was never raised in argument. The sentences imposed upon Quinn and Green were, as all of the judges who heard the appeal agreed, manifestly inadequate. They were, however, as the dissenting members of the Court (Allsop P and McCallum J) said, ‘not derisory’ and entailed ‘a substantial measure of punishment by full-time imprisonment.’ 3 The intervention of the Court, as observed by the dissenting judges, created ‘unacceptable disparity’ between the new sentences which it imposed and the sentence that stood unchallenged in respect of the co-offender, Taylor 4. The result, as their Honours said, was that the Court became ‘the instrument of unequal justice.’ 5

5 Having regard to the disparity consequential upon allowing the appeals and the significant delays which occurred in the appellate process, the Court ought to have exercised its discretion to dismiss the appeals. On 3 August 2011, the High Court allowed the appeals against the decision of the Court of Criminal Appeal, set aside its orders and in lieu thereof ordered that the appeals to that Court be dismissed. Our reasons for joining in those orders follow.

Factual and procedural background

6 On 20 July 2009, Shane Quinn and Brett Green each pleaded guilty in the District Court of New South Wales to an indictment alleging that between July 2007 and May 2008 he cultivated a number of prohibited plants, namely 1,354 cannabis plants, which was not less than the relevant ‘large commercial quantity’ of 1,000 applicable to cannabis plants prescribed by the Drug Misuse and Trafficking Act 1985 (NSW) (‘the Drug Act’) 6. The offence to which they

pleaded guilty carries a maximum penalty of 5,000 penalty units and 20 years' imprisonment 7.

7 On 14 August 2009, Quinn was sentenced by Boulton ADCJ to six years' imprisonment, with a non-parole period of three years to commence on 30 April 2008 and expire on 29 April 2011. Green was sentenced to four years' imprisonment, with a non-parole period of two years commencing on 17 May 2009 and expiring on 16 May 2011.

8 As appears from a statement of agreed facts before the sentencing judge, Quinn and Green took part with others, including Taylor, in a commercial enterprise for the cultivation of cannabis plants and the production of cannabis leaf for supply. One thousand three hundred and fifty four cannabis plants connected with the enterprise were seized by the police. The weight of the cannabis leaf seized exceeded 145 kilograms.

9 Quinn was the principal of the enterprise. Green was involved ‘at a senior level’ 8, as was Taylor. Green's position was slightly more senior than Taylor's. Taylor was, however, a significant player in the organisation and administration of the enterprise. Both he and Green were active in carrying out tasks related to the enterprise and were to be paid for their work by sharing in the cannabis leaf finally produced.

10 The cannabis was cultivated at a number of sites between late 2007 and 30 April 2008. The cultivation was sophisticated and involved the use of fertiliser, watering, cameras and observers. There were up to nine crop sites, and three sheds for drying the leaf. A vehicle pool was established for use by members of the enterprise. The crop was valued at $2.7 million and the harvested cannabis was worth between $1.33 million and $1.47 million.

11 When he sentenced Quinn and Green, the primary judge had already sentenced eight other offenders involved in the enterprise, including Taylor. Taylor was sentenced on 2 June 2009 to three years' imprisonment with a non-parole period of 18 months for an offence relating to the supply of a commercial quantity of a prohibited drug, contrary to s 25(2) of the Drug Act. The maximum penalty applicable to that offence was 3,500 penalty units and 15 years' imprisonment 9.

12 On 22 September 2009, the Crown lodged appeals in the Court of Criminal Appeal against the sentences imposed on Quinn and Green. Those appeals were heard before a five-judge bench on 30 July 2010. The Court delivered judgment on 17 December 2010 allowing the appeal by a 3–2 majority (McClellan CJ at CL, Hulme and Latham JJ; Allsop P and McCallum J dissenting) 10. The majority held that appropriate sentences were nine years with a non-parole period of six years for Quinn and six years with a non-parole period of four years for Green 11. In the event, and without explanation of the discrepancy, the actual sentences imposed were eight years' imprisonment with a non-parole period of five years for Quinn, and five years' imprisonment with a non-parole period of three years for Green 12.

13 The discrepancy was the subject of further consideration by the Court of Criminal Appeal and on 11 March 2011 the Court indicated that it would not be varying the orders made on 17 December 2010. It published reasons for that decision on 15 April 2011 13.

14 On 8 April 2011, Quinn and Green were each granted special leave to appeal to this Court against the decision of the Court of Criminal Appeal. The sole ground of each grant was that the Court of Criminal Appeal had erred in finding it appropriate to allow the Crown appeal in respect of each appellant, thereby creating a disparity between the appellants' sentences and the sentence imposed on Taylor, which had not been the subject of a Crown appeal. At the hearing of the appeals, the grant of special leave in each matter was extended to allow the addition of a second ground of appeal arising out of the finding by the Court of...