Aaron Bernath v The Queen
[2014] VSCA 195
•3 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0100
| AARON BERNATH | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2014 0105
| DARREN GAUCI | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2014 0126
| CALLAN BROWN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | NEAVE, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 August 2014 |
| DATE OF JUDGMENT: | 3 September 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 195 |
| JUDGMENT APPEALED FROM: | DPP v Bernath & Ors [2014] VCC 589 |
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CRIMINAL LAW - Appeal - Sentence – Drug offences – Cultivation - Applicants pleaded guilty – Co-offender sentenced by different judge – Whether unjustified disparity between sentences – parity principle - Whether trial judge erred by failing to adequately take factors into consideration when sentencing – Whether trial judge had a basis to infer expectation of reward for criminal conduct of the applicants - Whether sentences are manifestly excessive – Whether a co-offender’s lenient sentence is a relevant factor in assessing an applicant’s sentence –Cultivation simpliciter – Cultivation commercial – Range of sentences - Application for leave to appeal granted - Appeal allowed - Appellants re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Aaron Bernath | Mr R F Edney | Turnbull Lawyers |
| For the Applicant Darren Gauci | Mr O P Holdenson QC with | Varrasso Legal |
| Mr D A Dann | ||
| For the Applicant Callan Brown | Mr D D Gurvich | Theo Magazis & Associates |
| For the Crown | Mr R A Elston QC | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
The applicants, Aaron Bernath (‘Bernath’), Darren Gauci (‘Gauci’) and Callan Brown (‘Brown’), each pleaded guilty in the County Court to a charge of cultivating cannabis.
Bernath pleaded guilty to a single charge of cultivating cannabis in a factory at Melton and elsewhere (the other venue being a farm at Strathmerton which was owned by Gauci’s parents-in-law).[1] He was sentenced on this charge (charge 1) to 18 months’ imprisonment with a non-parole period of nine months.
[1]Although this was described by his Counsel at the plea hearing as a “rolled up count” this was probably not strictly accurate.
Gauci and Brown pleaded guilty to cultivating cannabis at the Strathmerton farm (charge 2). For that offence Brown was sentenced to 33 months’ imprisonment with a non-parole period of 22 months and Gauci received a sentence of 24 months’ imprisonment. Gauci also pleaded guilty to a charge of possessing material relating to cultivation of cannabis (charge 3), to theft (charge 4) and to a summary offence of failing to store ammunition properly.[2] He received a total effective sentence of 27 months’ imprisonment with a non-parole period of 18 months.
[2]Firearms Act 1996 s 122(4).
The applicants now seek leave to appeal against the sentences imposed on them.
All of the applicants argue that the sentences imposed on them breach the parity principle. Their grounds of appeal make it necessary to refer to the sentence imposed on a co-offender, Frank Mamo (‘Mamo’), who was sentenced in separate proceedings arising out of the same factual circumstances. Mamo pleaded guilty to cultivation of a commercial quantity of cannabis at Melton, to possession of methylamphetamine, to the possession of material/equipment related to cultivation and to a summary offence: dealing with the proceeds of crime (an amount of $600 found hidden in a dishwasher). Mamo was sentenced to 20 months’ imprisonment for the cultivation offence and a total effective sentence of 20 months with a non‑parole period of 10 months. The sentences imposed on Mamo for his other offences are set out in the table below — see [21].
The circumstances of the offending
The three applicants were apprehended as the result of a police investigation of the activities of John Tabone (‘Tabone’). Tabone, Mamo and Bernath were observed by police unloading equipment at a factory in Melton which had been leased by Tabone in September 2012 for two years. Tabone and Bernath were later observed picking up building supplies and hydroponic equipment and Bernath was observed attending the factory with Tabone and Mamo on 1 and 12 November 2012. Police entered the factory using a covert warrant on 5 December 2012, where they found a quantity of cannabis plants and a hydroponic system for cultivating cannabis. On 29 January 2013, police entered the property again and seized 112 cannabis plants, weighing a total of 162.2 kilograms, electrical transformers and grow lights. Bernath pleaded guilty to cultivating cannabis simpliciter, presumably on the basis that the Crown accepted that he did not have an intention to cultivate a commercial quantity of the drug. However the amount of cannabis at the Melton factory exceeded a commercial quantity, which is 25 kilograms or 100 plants.[3]
[3]Drugs Poisons and Controlled Substances Act 1981 s 70, sch 11 pt 2.
As part of the same operation, police intercepted phone calls between Tabone and Gauci and between Tabone and Brown, about work to be done at a property. In one of these calls Tabone was heard advising Gauci about electrical wiring and telling him about the need to dig a new trench.
The police discovered that the conversation related to the Strathmerton property and that the men intended to visit the property on 19 November 2012. Police observed Tabone, Bernath and an unidentified man purchasing building equipment and ventilators at Bunnings in Shepparton.
All of the applicants and Mamo went to the Strathmerton property and stayed there from 19 to 21 November 2012. A telephone call established that Gauci was present at the property on 26 December 2012. Police entered the Strathmerton property covertly on 6 January 2013 and observed cannabis plants and a functioning hydroponic setup with a reticulating water system. On 29 January 2013 the police executed a search warrant and seized 99 cannabis plants, electrical transformers and grow lights and shades. The total weight of the plants was 45.14 kilograms. Again that amount exceeded a commercial quantity, but the Crown accepted guilty pleas for cultivation simpliciter from Gauci and Brown, as well as from Bernath.
Brown was arrested at the Strathmerton property. When Gauci’s home was searched police found hydroponic growing equipment including lights, light shrouds, filters, chemical and transformers, as well as three registered firearms, an electrical bypass and 500 rounds of ammunition.
The circumstances of the offenders
The judge accepted that all the applicants had made early guilty pleas, and were remorseful. They were all regarded as having good prospects of rehabilitation.
Bernath
Bernath was aged 23 to 24 when he committed the offences, and had no prior convictions.
Although he was involved in cultivation at Strathmerton, as well as at Melton, the Crown accepted that his involvement in the growing operation was less than that of Tabone, Gauci and Brown. The prosecution opening alleged that:
In relation to Bernath’s role in relation to Charge 1 (Melton Factory) the prosecution accepts that he aided and abetted the other accused by helping the set up of the premises for cultivation of cannabis at the factory. He helped transport equipment to the factory. It is not alleged that he had a financial interest in the cannabis crop that was subsequently grown at the factory. His involvement was less than Tabone and Mamo.
In relation to Bernath's role in relation to Charge 2[4] (Strathmerton farm) the prosecution accepts that he travelled to the farm on the weekend of 19-20 November 2012 in the company of other accused and stayed overnight to assist in the set up of the premises for the cultivation of premises. It is not alleged that he had any financial interest in the cannabis crop that was subsequently grown at the farm. His involvement was less than Tabone, Brown and Gauci.[5]
[4]Note that charge 2 did not apply to Bernath, although it was accepted that he was involved in the Strathmerton operation.
[5]Director of Public Prosecutions, ‘Prosecution Plea Summary’, Submission in DPP v Bernath, CR-13-01927, CR-13-01914, and CR-13-01920 [26]-[27] (marked Exhibit A in the proceeding).
The sentencing judge accepted that Bernath’s role was limited to setting up hydroponic systems at both properties. He referred to references provided on behalf of Bernath and accepted that he was hardworking and ordinarily a person of integrity.
Brown
Brown was aged 31 to 32 at the time of offending. He had been convicted 10 years previously for trafficking in and cultivating cannabis and had received a suspended sentence. He had been working in the building industry for the past six years. Like Bernath he relied on a reference indicating that he was hardworking and reliable.
Gauci
Gauci was aged 45 to 46 at the time of the offending, and had a successful concreting business. He was having some marital difficulties at the time of the offending because he and his wife had had difficulties in conceiving a second child.
Gauci relied on a psychological report prepared by Mr Jeffrey Cummins, a forensic psychologist. He told Mr Cummins that he had arranged for the property to be leased to assist his elderly parents-in-law and that he had not known that the property was to be used to cultivate cannabis. He gave Mr Cummins an innocent explanation for the changes made to the building on the property. He said that after he had become aware that the property was being used for this purpose he was frightened of Tabone and had a misguided sense of loyalty to him, because of their previous friendship.
Gauci also relied on a report provided by a counsellor and family therapist, Ms Michelle Morris, who initially saw him and his wife before Gauci was apprehended for the relevant offences. Ms Morris saw him again on six occasions in 2014, before he was sentenced. She expressed the view that his offending was ‘a cry for help’ and a response to personal and psychological events overwhelming him.
For reasons which he fully set out, the judge did not accept the history which Gauci gave Mr Cummins and was not prepared to accept Gauci’s account of how he became involved in the offending. The judge rejected the claim that Gauci offended because he was fearful of Tabone and rejected the notion that ‘you permitted him to use those premises at Strathmerton on the basis of anything other than expectation of financial reward’.[6] He also rejected Ms Morris’s report, commenting that he could not find any process of reasoning that would enable him to rely upon these opinions as being either truthful or accurate.[7] Nevertheless the judge accepted that Gauci was now remorseful and that ‘your physical condition, your health and the pain that you suffer from will make time in custody harder ... ’.[8]
[6]DPP v Bernath [2014] VCC 589 [26].
[7]Ibid [25].
[8]Ibid [27].
The prosecution opening did not differentiate between the roles of Brown and Gauci in the cultivation operation and the judge appears to have treated them as having an equal involvement. As I have said, all of the applicants argue that the sentences imposed on them are inconsistent with the parity principle, though the comparisons they seek to draw with other sentences do not all relate to the same offenders.
To facilitate the comparison between sentences the following table summarises the role and circumstances of each of the applicants and their co‑offender Mamo.
| BROWN | BERNATH | GAUCI | MAMO | |
| Charges | 2. Cultivation of cannabis at Strathmerton (45.14 kg). Maximum penalty: 15 years. | 1. Cultivation of cannabis at Melton (162.2 kg) and Strathmerton (45.14 kg). Maximum penalty: 15 years. | 2. Cultivation of cannabis at Strathmerton (45.14 kg). Maximum penalty: 15 years. 3. Possess material/ equipment related to cultivation. 4. Theft. 5. Failure to store ammunition safely (summary offence). | 1. Cultivation of commercial quantity of cannabis at Melton (162.2 kg). Maximum penalty: 25 years. 2. Possession of methylamphetamine. 3. Possession of material/ equipment related to cultivation. 4. Dealing with proceeds of crime (summary offence). |
| Sentence | 33 months, 22 months non‑parole. | 18 months, 9 months non‑parole. | 2. 24 months. 3. 12 months 4. Convicted & discharged. 5. Convicted & discharged. TES: 27 months, 18 months non‑parole. | 1. 20 months. 2. 5 days (concurrently with sentence for charge one). 3. 10 months (concurrently with sentence for charge one). 4. 2 months (concurrently with sentence for charge one). TES: 20 months, 10 months non-parole. |
| Age at the date of sentencing[9] | 33 | 25 | 46 | 36 |
| Criminal history | Prior convictions for trafficking cannabis, cultivating a narcotic plant and theft in 2004, for which he received a suspended sentence. | None. | · Charges of possessing and using cannabis in 1990. · Adjourned on good behaviour bond. · Regarded as not relevant by judge.[10] | · Convicted and fined $300 for recklessly causing injury which was associated with drug use. · Conviction regarded as irrelevant by judge.[11] |
| Circumstances of offence | Guilty re Strathmerton property only. | · Guilty on basis of aiding & abetting. · Engaged to set up hydroponic equipment. · No financial interest in crop. · Conceded that his moral culpability was lower than that of Tabone, Brown and Gauci for Strathmerton and Tabone and Mamo for Melton. | · Property owned by Gauci’s parents‑in‑law. · Judge’s reasons did not differentiate Gauci’s role from that of Brown. | · A worker who tended the crop and went to and from premises with Tabone. · Role not at lowest level.[12] |
| Circumstances of offender | · Some record of interview admissions, but said no-one else involved. · Early guilty plea. · Remorseful. · Good rehabilitation prospects. · Hardworking & reliable. | · No comment interview. · Early guilty plea. · Remorseful. · Good work history and rehabilitation prospects. | · Misleading interview. · Early guilty plea. · Judge rejected history given to psychologist as to how he became involved in offending. · Fear of Tabone. rejected as motivation. · Remorseful. · Good worker. · Marital stress. · Time in custody harder, because of hip condition and pain, but no Verdins.[13] | · Offending motivated wholly or partly by addiction. · Admissions at first interview that he had previously grown a small crop. · Remorseful. · Early guilty plea. · His IQ of 75, was taken into account by way of ‘general mitigation’, but not as requiring application of Verdins [14] factors. |
[9]In respect of Bernath, Brown and Gauci: 2 May 2014. In respect of Mamo: 4 October 2013.
[10]DPP v Bernath [2014] VCC 589 [5].
[11]DPP v Mamo (Unreported, County Court of Victoria, Nicholson J, 4 October 2013) [34].
[12]Ibid [14].
[13]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
[14]Ibid.
Principles to be applied
All of the applicants argued that the sentences imposed on them infringe the principle of parity. To demonstrate an unjustified disparity:
(a) Brown relies on the sentences imposed on Gauci and Bernath, as well as the sentences imposed on Mamo; while
(b) Gauci and Bernath rely only on the sentences imposed on Mamo.
Parity reflects the idea that those who commit the same or similar offences should be treated equally, except where differences in the respective offenders’ moral culpability or personal circumstances justify the imposition of different sentences. As Buchanan JA observed in Hafner v The Queen[15]:
Some disparity between sentences imposed on co-offenders is not in itself a ground for intervention by an appellate court. The difference between sentences must be manifestly excessive. The Court will intervene in such a case on the ground that the disparity engenders a justifiable sense of grievance on the party of the accused on whom the heavier sentence is imposed or on the ground the disparity gives the appearance that justice has not been done.[16]
[15][2012] VSCA 190, [17].
[16]See also R v Taudevin [1996] 2 VR 402, 403.
The Crown did not contend that Mamo’s sentences were manifestly inadequate.[17] It would probably have been inappropriate for it to do so, because there was no Crown appeal against his sentences. But on any view the sentences imposed on Mamo were lenient.
[17]If that had been the case, the Court would not have been entitled to disregard his sentence.
Of course that does not allow the court to disregard Mamo’s sentences in considering whether there was an unjustifiable disparity between the applicants’ and Mamo’s respective sentences. However, such consideration does not displace other factors the Court must take into account, including the seriousness of the applicant’s offending, in determining whether they should have received a lower sentence because of parity considerations.
Where a person argues that the sentence imposed on him or her should be reduced because it is heavier than the sentence imposed on a co‑offender, the co‑offender’s sentence is always a relevant sentencing consideration. But a court considering the issue of parity is not required to reduce the sentence of a co‑offender to the point where it falls outside the range of sentences which could be imposed on that offender, having regard to the nature of the offence and the circumstances of the offending.[18]
[18]Green v The Queen (2011) 244 CLR 462, 475-7 (Note, however, that this case concerned a Crown appeal.); DPP v Holder [2014] VSCA 61; DPP v Taleb [2014] VSCA 96, [43]-[52] which contains discussion at length of the relevant cases.
Brown’s application
For reasons which will become apparent it is convenient to begin by discussing Brown’s application.
Counsel’s submissions
The applicant argues that the applicant’s total effective sentence was almost double Bernath’s head sentence and two and a half times his non‑parole period. He contends that this disparity was unjustified because Bernath pleaded guilty to cultivation of cannabis at both Melton and Strathmerton, whilst Brown was only involved in cultivation at Strathmerton.
The applicant also argues that the applicant’s sentence of 33 months for cultivation was significantly higher than the sentence imposed on Gauci, who received a sentence of 24 months for the same offence. Further, the applicant contends that parity was disregarded because the applicant’s sentence was more than 50% higher than the total effective sentence imposed on Mamo which included a sentence for cultivating a commercial quantity of the drug, attracting the higher maximum sentence of 25 years’ imprisonment.
Counsel submitted that the disparity in sentences could not be explained by Brown’s criminal history because his prior offending occurred when Brown was in his early twenties. In addition, the applicant had made some admissions in his record of interview, whilst Bernath and Gauci had initially denied their offending.
Conclusion — Brown
The sentence imposed on Mamo was lenient. However, as discussed at [24] above the Court is bound to take Mamo’s sentence into account, as a relevant factor, when considering whether his co-offender’s sentence is unjust on the grounds of parity.
I would accept the argument that there was a manifestly excessive disparity between the sentence of 20 months’ imprisonment imposed on Mamo, for cultivating a commercial quantity of cannabis at Melton, compared with the sentence of 33 months imposed on Brown for cultivation simpliciter at Strathmerton. The disparity is heightened by the fact that Mamo, who also pleaded guilty to three other offences, received a total effective sentence of 20 months with a non-parole period of 10 months, whilst Brown, who was not convicted of any other offences, received a total effective sentence of 33 months. The disparity in treatment is too great to be explained by Brown’s prior conviction and by the fact that Mamo was addicted to ice and had a borderline intellectual disability. I would therefore grant Brown leave to appeal and re-sentence him to 27 months’ imprisonment with a non-parole period of 18 months.
Having reached that conclusion it is unnecessary to consider whether the disparity between Brown’s individual and total effective sentences and the sentences imposed on Bernath and Gauci, standing alone, would have been sufficient to justify the grant of leave to appeal, though in my view it would not have done. However, the imposition of a lower sentence on Brown as a consequence of his re-sentencing also requires consideration of whether the sentences imposed on his co‑offenders should be reduced, in order to avoid breaching the parity principle.
Gauci
Gauci’s grounds of appeal claim that the sentencing judge erred in his application of the parity principle and that the sentence imposed was manifestly excessive.
Counsel’s submissions
In support of the parity argument Gauci makes a comparison between the sentence of 20 months’ imprisonment imposed on Mamo for cultivation of cannabis at Melton, in not less than a commercial quantity, compared with the sentence of 24 months’ imprisonment imposed on him for cultivation simpliciter.
The applicant contends that the situation of both men was comparable and that they should have received similar sentences. Both men pleaded guilty at an early stage, both demonstrated remorse and both had a previous court appearance. In addition, the judge found that the applicant’s health conditions would make imprisonment more burdensome for him. This was not the case for Mamo.
The sentence of 12 months’ imprisonment with cumulation of three months, which was imposed on Gauci for the possession of equipment for the purpose of hydroponic cultivation of the drug, was also said to raise the issue of parity. Mamo received a sentence of 10 months’ imprisonment for the offence of possession of hydroponic growing fertilisers and an electricity bypass, to be served concurrently with the 20 months’ sentence for cultivation.
Counsel for the applicant relied on the fact that Mamo admitted that he had previously grown a small amount of cannabis at his home and that he had an electrical bypass used for growing cannabis in his possession. I note, however, that Judge Nicholson regarded these admissions as a matter to be taken into account in his favour.[19]
[19]DPP v Mamo (Unreported, County Court of Victoria, Nicholson J, 4 October 2013) [20].
In support of the argument that the sentence imposed was manifestly excessive, the applicant relies on his early guilty plea, remorse and good prospects of rehabilitation.
Conclusion ― Gauci
Leaving aside the need to reconsider parity as a consequence of re-sentencing Brown, I am not persuaded that the four months’ disparity between the sentences imposed in the County Court on Gauci for cultivation simpliciter and on Mamo for cultivation in a commercial quantity, is so manifestly excessive as to give rise to a justifiable sense of grievance.
Judge Nicholson held that Mamo was not at the lowest level of culpability for cultivating a commercial quantity of cannabis. He was more than just a ‘sitter’ in relation to the Melton crop, having worked there and visited the property regularly to supply nutrition to the plants.
By comparison Gauci was more than just ‘a worker’ in relation to the cannabis cultivation at Strathmerton, which involved a significant amount of the drug. The farm at Strathmerton was owned by Gauci’s parents-in-law and he helped to maintain it. An agreement renting the Strathmerton property to Brown was found at Gauci’s home when it was searched by the police. He was observed by police visiting Strathmerton on not less than four occasions. In intercepted telephone calls Gauci was heard receiving instructions from Tabone about alterations to the property necessary for hydroponic cultivation of the cannabis and the judge rejected his explanation for being involved in the offending. The respective roles of Mamo and Gauci must be given considerable weight in determining the parity issue. However, unlike Mamo, Gauci was not addicted to drugs and had an adequate income from his business.
In R v Constantiou[20] this Court accepted that offending at the higher end of the range for cultivation simpliciter may call for ‘a penalty more or less comparable to sentences imposed at the lower end of the range for the offence of cultivating a narcotic plant in not less than a commercial quantity.’[21]
[20][2009] VSCA 257.
[21]Ibid [94].
That conclusion receives some indirect support from the Sentencing Advisory Council’s statistics for the sentences imposed by higher courts for the offences of cultivation of a narcotic drug simpliciter and cultivation of a commercial quantity of a narcotic drug. The median term of imprisonment imposed for those who receive a prison term for the former offence is two years imprisonment,[22] whilst the median term for the latter offence is two years and three months.[23]
[22]Sentencing Advisory Council, Sentencing Trends in the Higher Courts of Victoria: Cultivating a non-commercial quantity of narcotic plants, 2006-2007 to 2010-2011, Sentencing Snapshot 132.
[23]Sentencing Advisory Council, Sentencing Trends in the Higher Courts of Victoria: Cultivating a commercial quantity of narcotic plants, 2006-2007 to 2010-2011, Sentencing Snapshot 133.
As noted above, the Crown did not contend that Mamo’s sentence was manifestly inadequate. However, on any view the sentence imposed on Mamo was lenient. Of course that does not allow the court to disregard Mamo’s sentence in considering whether there was an unjustifiable disparity between Gauci and Mamo’s respective sentences for the cultivation offences. But nor is it inappropriate to take account of the seriousness of Gauci’s offending, in determining whether he should have received a lower sentence because of parity considerations.
Taking account of all relevant factors I consider that the difference between the 24 months’ term of imprisonment imposed on Gauci for cultivation of a narcotic plant, compared with the period of 20 months’ imprisonment imposed on Mamo, for the more serious cultivation offence, was not so manifestly excessive as to give rise to a justifiable sense of grievance.
On the other hand, I consider there was an unjustifiable disparity in the sentences imposed on Gauci and Mamo for the possession of material and equipment related to cultivation, and in the consequential difference in the total effective sentences imposed on the two men. In my opinion, Gauci should be re‑sentenced for that offence, to 10 months’ imprisonment, to be served concurrently with the 24 months’ sentence imposed for the cultivation offence, amounting to a total effective sentence of 24 months’ imprisonment. I would fix a non‑parole period of 16 months’ imprisonment.
It remains necessary to consider whether Gauci’s sentence breaches parity as a consequence of the reduction in Brown’s sentence on charge 2 and Brown’s new total effective sentence of 27 months’ imprisonment. As Redlich JA observed in Tan v R[24]:
Where [the sentence of an applicant], when compared with the sentence of another co-offender who is also before the court, would infringe the principle of parity, the court must then re-sentence the other co-offender to avoid such an outcome. Any other course is likely to produce an unfair outcome. If the court could not interfere with the sentence of the unsuccessful co-offender, and was confined to adjusting the sentence of the successful co-offender to avoid infringing the principle, it would mean that the court would be unable to impose the sentences that it considered appropriate for the successful and unsuccessful co-offender.
[24](2011) 35 VR 109, [121].
In my opinion the three months’ difference in the terms of imprisonment to be served by Gauci and Brown, which arises as a consequence of Brown’s new total effective sentence, does not require a further reduction of Gauci’s sentence.
It is true that Brown was convicted and received a suspended sentence for drug offences ten years previously, whilst Gauci had no relevant prior convictions. Gauci is also suffering from a painful hip condition, which will make it more difficult for him to serve a prison term. However I consider that the three months’ difference between the new sentence of 27 months imprisonment imposed on Brown and the new sentence of 24 months imprisonment imposed on Gauci adequately recognises the differences between the circumstances of these two offenders.
Further, an additional reduction of Gauci’s sentence, would in my opinion come close to imposing a manifestly inadequate sentence upon him.
Gauci also argues that the sentence imposed below was manifestly excessive. I would reject that ground, although it is unnecessary to consider it in light of the conclusion I have reached that his sentence should be reduced to 24 months’ imprisonment.
Bernath
Grounds of appeal
Bernath relies on the following grounds of appeal:
1. The sentencing judge erred in finding ‘beyond reasonable doubt that each of you entered into your role for financial reward’ and ‘expected to be rewarded financially for your participation in this venture’.
2. The sentence imposed upon the applicant was not sufficiently disparate from the sentence imposed upon co-offender Frank Mamo.
3. The sentence imposed is manifestly excessive.
Counsel’s submissions
In support of ground 1, it is argued that the trial judge’s observations about the circumstances of Bernath’s offending were inconsistent with the agreed prosecution opening, which acknowledged that the applicant did not have any financial or proprietary interest in the cannabis.
Reliance is placed on the judge’s remarks that:
It is clear that in relation to both the hydroponic setup at the Melton property and at the Strathmerton [sic] that the equipment and the establishment of the hydroponic system was designed for the purposes of cultivation of cannabis on a substantial scale for financial gain. It must have been plain to each of you that the criminal venture or criminal ventures to which you were attaching yourselves was or were being established for very substantial profit from the illicit drug trade. I am satisfied beyond reasonable doubt that each of you entered into your role for financial reward.
The extent of that financial reward is not possible to ascertain. It is, I think, not possible, to demonstrate on the material before me or to conclude on the evidence before me that you had a financial interest in the overall venture in the sense of being principal operators and principal beneficiaries. However, I have no doubt as I have indicated that each of you expected to be rewarded financially for your participation in this venture. Common sense would not admit of any other conclusion.[25]
[25]DPP v Bernath [2014] VCC 589, [7]–[8].
After finding that Bernath’s role was at the ‘lowest end of the scale of involvement and the benefit obtained’, his Honour also said that:
It is not suggested that you had proprietary interest in these ventures. It is suggested that you gained no benefit. Whether you gained or not, I have no doubt as I have indicated that you entered into the venture with expectation of reward.[26]
[26]Ibid [14].
Counsel for the applicant contends that the judge’s reference to ‘common sense’ was not founded on any evidence, and that the judge had erred in finding that Bernath ‘entered into [his] role for financial reward’. It was also submitted that the judge’s finding that Bernath became involved in the offending with expectation of reward was inconsistent with his acceptance that the applicant became involved in the offending because of his ‘friendship with Tabone.’ It is argued that the consequence of the judge’s error was to elevate the applicant’s role from that of an aider and abettor, to a participant who had an expectation that he would receive a financial reward.
In support of the second ground of appeal, the applicant’s counsel argues that there were significant differences between the applicant and Mamo’s moral culpability. Bernath pleaded guilty to a charge of cultivating cannabis simpliciter which carried a maximum penalty of 15 years, whilst Mamo pleaded guilty to cultivating a commercial quantity of cannabis which carried a higher penalty of 25 years’ imprisonment. Further, the applicant had no prior convictions and was a relatively young offender, whereas Mamo was older and had prior convictions. The applicant also contends that the sentences imposed on Mamo and the applicant took insufficient account of the fact that Mamo was sentenced as a principal offender whereas the applicant was convicted on the basis that he aided and abetted Tabone.
Finally, in support of the ground of manifest excess the applicant relied, among other matters, on the applicant’s guilty plea, remorse, prior good character, the fact that there was no evidence of the fact that Bernath had any benefit or enrichment, that he had a good employment history and good prospects of rehabilitation.
Conclusion ― Bernath
In my view ground 1 is not reasonably arguable. Although the prosecution opening conceded that Bernath did not have a financial interest in the crop that was grown, and that there was no evidence that he had derived any benefit from the growing of the crop, this was not inconsistent with the judge’s refusal to accept the submission that Bernath had no intention of receiving any reward for the work that he did in installing the systems.
During the plea hearing counsel for Bernath conceded that there was no suggestion that the cannabis was being grown only for the personal use of the participants. As the judge remarked, the description of Bernath’s involvement in accompanying Tabone to the places where hydroponic equipment was purchased, in attending the Melton property and in accompanying Tabone when he purchased equipment and staying at the Strathmerton property, made it highly unlikely that he had not expected to receive any financial reward for the assistance he provided in the installation of the two hydroponic systems.
The applicant’s guilty plea to cultivation in relation to the Melton factory premises and his involvement at Strathmerton provided ample basis for the sentencing judge to reject the submission made by counsel for the applicant at the plea hearing that Bernath’s moral culpability was reduced because he was not motivated by any expectation of any financial reward. It was for the applicant to call evidence of matters relied upon in mitigation of offending, including evidence that Bernath was not intended to receive any reward in return for installing the systems. There is no inconsistency between the fact that Bernath became involved because of his friendship with Tabone and the judge’s conclusion that he expected to receive some financial reward for his work.
Although the matter is not without difficulty, I would also reject ground 2. Mamo was convicted of cultivation of a commercial quantity of cannabis, whilst Bernath was convicted only of cultivation simpliciter, however the judge was required to sentence him on the basis that his offending involved cultivation of two separate crops at two properties.
Because Mamo directly cultivated the crop at Melton and Bernath installed equipment at both growing sites, the different nature of their involvement makes it somewhat artificial to take account of the convergence of sentences imposed for cultivation simpliciter at the higher end of the scale, and for cultivation of a commercial quantity.
Be that as it may however, I do not consider that the two months difference between the sentence of 20 months’ imprisonment imposed on Mamo and the 18 months’ term imposed on Bernath in the County Court, could give rise to a justifiable sense of grievance in the applicant. My analysis is not altered as a consequence of Brown and Gauci making out their parity grounds on appeal.
As in the case of Gauci, any further reduction of Bernath’s sentence would, in my view, result in the imposition of a sentence which would fall outside the range of sentences which could be imposed on him, having regard to his involvement in cultivation of cannabis at two separate premises. While Bernath falls to be sentenced on the basis that he was unaware of the precise size of the cannabis crop, he must have been aware that the hydroponic systems installed at Melton and Strathmerton contemplated cultivation of a considerable amount of cannabis.
For similar reasons I would also reject ground 3. As I have said, Sentencing Advisory Council statistics show that for those who receive a term of imprisonment for this offence, the median term was two years. Despite Bernath’s lack of prior convictions, youth, remorse and early guilty plea, it is not reasonably arguable that the sentence imposed on Bernath, fell outside the range of sentences which could be imposed for this offence, in the reasonable exercise of the judge’s sentencing discretion.
Leave to appeal should be granted to Gauci and Brown. Their appeals are heard instanter and should be allowed. I would resentence these applicants as set out in the table below. I would refuse Bernath’s application for leave to appeal.
| BROWN | BERNATH (Leave refused) | GAUCI | |
| Charges | 2. Cultivation of cannabis at Strathmerton (45.14 kg). Maximum penalty 15 years. | 1. Cultivation of cannabis at Melton (162.2 kg) and other places. Maximum penalty 15 years. | 2. Cultivation of cannabis at Strathmerton (45.14 kg). Maximum penalty 15 years. 3. Possess material/ equipment related to cultivation. 4. Theft. 5. Failure to store ammunition safely (summary offence). |
| Sentence | 27 months, 18 months non‑parole. | 18 months, 9 months non‑parole. | 2. 24 months. 3. 10 months (concurrent). 4. Convicted & discharged. 5. Convicted & discharged. TES: 24 months, |
PRIEST JA
BEACH JA:
This is yet another case which demonstrates the undesirability of co-offenders being sentenced by different judges, since much of the difficulty in this case has flown from the passing of a very lenient sentence on a co-offender of the present applicants by a different judge (who has since retired).
We have had the advantage of reading the reasons of Neave JA in draft. Her Honour has recited the circumstances of the offending and the circumstances of each applicant (including the provision of a useful table summarising these factors),[27] and has set out the grounds of appeal[28] and main contentions of the applicants’ counsel in support of each ground. Given her Honour’s thorough treatment of those matters, we are largely relieved of their repetition.
[27]Above [21].
[28]Above [53] (Bernath); [34] (Gauci); and [22] (Brown).
Neave JA has concluded that Brown’s and Gauci’s applications should succeed. We respectfully agree that they should and that both appeals should be allowed. In our view, however, different sentences to those proposed by her Honour should be imposed.
Her Honour has also concluded that Bernath’s application for leave to appeal against sentence should be refused. We do not agree. In our view Bernath’s application should succeed on ground 2,[29] his appeal allowed and a different sentence passed. We otherwise agree with the reasons of Neave JA.
[29]We agree that ground 1 should be rejected, for the reasons advanced by Neave JA.
For the reasons that follow, we would in each case grant the applications for leave to appeal against sentence and allow the appeals. We would fashion orders so as to sentence Bernath to be imprisoned for 14 months, with a non-parole period of eight (8) months; Brown to be imprisoned for a period of 26 months, with a non‑parole period of 18 months; and Gauci to be imprisoned for 20 months, with a non‑parole period of 14 months.
Common to each applicant’s case is a complaint concerning parity. Bernath, and by necessary implication, Gauci, each contend that the sentences imposed on them were not sufficiently disparate from that imposed on a co-offender, Mamo; and Brown contends that there was insufficient disparity in his sentence when compared to the sentences imposed on Bernath, Gauci and Mamo. We would uphold the central contention that the sentences passed on the three applicants infringe the principle of parity vis-à-vis the sentence imposed on Mamo.
Mamo was sentenced on 4 October 2013 by a judge of the County Court, who as we have said, was not the judge who sentenced the present applicants. Although the judge who sentenced the present applicants was made aware of Mamo’s sentence, and was told a little of Mamo’s role and personal circumstances,[30] a remarkable feature of his reasons for sentence is that they contain hardly a word about Mamo’s role in the offending, or, more importantly, how the sentence passed on Mamo might influence the sentences to be imposed on the applicants.[31] As was observed in Wong,[32] ‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.’ Where there are relevant differences between the cases of co‑offenders, a sentencing judge has the task of identifying the relevant differences in justification of disparate sentences. Parity is such an important aspect of the sentencing process, it is to be expected that the judge in this case would have devoted some attention to it, and made conspicuous why he arrived at the sentences he did in light of that imposed on Mamo.
[30]Parity vis-à-vis Mamo was raised by the prosecutor in discussion, and the judge said he was ‘concerned about parity’, but thought that ‘in these sorts of cases’ he had to ‘look at the material as it relates to each individual’.
[31]The sole allusion to parity in the reasons for sentence occurs when imposing the sentence of 18 months’ imprisonment on Bernath: ‘ … I mention this. That even though you were lower on the scale than Mr Mamo in relation to the first of the cultivations … you engaged yourselves in two ventures even though those were not, of course, commercial ventures so far as you were concerned’.
[32]Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ) (emphasis in original). See also Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, 472–3 [28] (French CJ, Crennan and Keifel JJ).
The single most important feature distinguishing Mamo’s situation from those of the applicants is that he pleaded guilty to cultivating not less than a commercial quantity of cannabis, an offence attracting a maximum sentence of 25 years’ imprisonment. His plea to that offence carries the necessary concomitant that he knew or believed that the plants the subject of cultivation was cannabis in excess of a commercial quantity.[33] By comparison, the applicants each pleaded guilty to a single charge of cultivation simpliciter (albeit that Bernath’s embraced two locations), attracting a maximum penalty of 15 years’ imprisonment. The acceptance of those pleas by the prosecution, carries with it the concomitant that the prosecution did not seek to establish that the applicants knew or believed that the cannabis they were involved in cultivating exceeded a commercial quantity. Although the comparative statutory maxima must be kept in perspective, nonetheless Mamo’s was the more serious offence, not only judged by the maximum penalty available, but also the necessary mental element.
[33]R v Bui [2005] VSCA 300; R v Page (2008) 183 A Crim R 66.
There were, of course, features personal to Mamo — in particular, his low intelligence — which distinguished his position from that of the applicants. Neave JA has discussed them, and we need not repeat them. Notwithstanding those features, however, it seems to us that the sentence imposed on Mamo was, in all the circumstances, singularly lenient (although we cannot conclude that it was manifestly inadequate). But even if we thought Mamo’s sentence was far too low, nevertheless justice between co-offenders must prevail.[34] There having been no appeal by the Crown against Mamo’s sentence, that is the sentence against which the appropriate relativity of the applicants’ sentences must be tested.[35] Such is the importance of ensuring appropriate differentiation in sentence — as a fundamental matter of fairness — that this Court may interfere with an otherwise appropriate sentence in order to ensure that the sentencing differentials are just[36] (although, of course, some differentiation between sentences imposed on co-offenders may be justified by matters such as age, background, previous criminal history, character and the role played in the commission of the offence).[37]
[34]R v Williams [2001] VSCA 130, [13] (Winneke P). But see further Taleb v The Queen [2014] VSCA 96, [39]–[52] (Neave and Weinberg JJA).
[35]Teng v R (2009) 22 VR 706, 723 [70] (Maxwell P, Ashley JA and Lasry AJA).
[36]Ibid.
[37]Hafner v The Queen [2012] VSCA 190, [17] (Buchanan JA).
A discrete feature setting Brown’s circumstances apart from those of Mamo and the other applicants, are the convictions in 2004 for trafficking in cannabis and cultivating a narcotic plant. He is not to be punished again for those offences — and no sentencing principle requires that more severe penalties be meted out to those who reoffend — but nonetheless they throw light on his moral culpability, his prospects of rehabilitation, his propensity to commit offences relating to cannabis (and thus the need for community protection), and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a personal deterrent.[38] Brown’s prior convictions justify some differentiation between the sentence imposed on him and those imposed on the other offenders.
[38]R v O’Brien & Gloster [1997] 2 VR 714, 718 (Charles JA).
Moreover, we note that in Mamo’s case individual sentences for possession of material and equipment relating to cultivation, possession of methylamphetamine and possessing the proceeds of crime, were permitted to be served concurrently with the sentence on the charge of cultivating not less than a commercial quantity of cannabis. In our view it is thus appropriate that the individual sentences imposed on Gauci for possessing material and equipment relating to cultivation, theft and failure to store ammunition safely be concurrent with the sentence imposed on charge 2, cultivating cannabis (although the individual sentences passed below should be confirmed.
We are of the opinion that each application for leave to appeal against sentence should be granted and each appeal allowed. Having regard to the various factors canvassed fully by Neave JA (and bearing in mind our additional observations above), we would sentence the applicants as set out in the following table:
| BROWN | BERNATH | GAUCI[39] | |
| Charges | 2. Cultivate a drug of dependence. | 1. Cultivate a drug of dependence. | 2. Cultivate a drug of dependence. 3. Possess material and equipment for cultivation. |
| Sentence | 2. 26 months TES: 26 months’ imprisonment, 18 months’ non‑parole. | 1. 14 months TES: 14 months’ imprisonment, 8 months’ non‑parole. | 2. 20 months’ imprisonment. 3. 12 months’ imprisonment. TES: 20 months’ imprisonment, 14 months’ non‑parole. |
[39]We note that on charge 4, theft, and on a summary charge of failing to store ammunition correctly, the sentencing judge convicted and discharged the applicant. Those orders should be confirmed.
We would otherwise confirm all other orders and declarations made by the County Court.
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