Barton v The Queen
[2013] VSCA 360
•13 December 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0179 | |
| BRETT PAUL BARTON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | TATE and WHELAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 29 November 2013 |
| DATE OF JUDGMENT | 13 December 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 360 |
| JUDGMENT APPEALED FROM | DPP v Barton (Unreported, County Court of Victoria, Judge Grant, 29 August 2013) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Cultivation of a commercial quantity of cannabis contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 – Offence was ‘quantity based’ – 160 cannabis plants – Applicant suffered from depression at the time of the offending – Whether Verdins limbs 1 and 3 applicable – Mental illness could not reduce moral culpability given large amount cultivated and complex planning involved in offending – General deterrence applicable – R v Verdins (2007) 16 VR 269 and Tran v The Queen [2012] VSCA 110 applied.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Mr M D Stanton | Lethbridges Barristers & Solicitors |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
TATE JA:
Introduction
The applicant, Mr Barton, was convicted on a plea of guilty of one count of cultivating a commercial quantity of a narcotic plant (cannabis), contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). He was sentenced to two years’ imprisonment, with a nine-month non-parole period. He now seeks leave to appeal. The two grounds of appeal involve the complaint that the sentencing judge erred in his application of various principles enunciated in Verdins.[1]
[1]R v Verdins (2007) 16 VR 269, 276 [32] (‘Verdins’).
The hydroponic cultivation of a commercial quantity of cannabis in a rented factory
Between 4 September 2012 and 29 January 2013, Mr Barton hydroponically cultivated a commercial quantity of cannabis in a factory he rented. On 15 February 2012 he leased a factory building in Cheltenham for a two-year period, for storage and business purposes. He was trying to develop a coffee house business with a friend. When he eventually defaulted on the payment of rent, the responsible real estate agents acted to repossess the property. On 29 January 2013 police attended the property and conducted a search, during which they discovered that three rooms on the ground floor of the building were being used as hydroponic cannabis growing rooms. An elaborate system of lighting, exhausts, electrical transformers, carbon filters and water channels was discovered. A total of 160 cannabis plants were located, with a combined weight (minus roots) of 132kg. When stripped, the plants produced a combined yield of air-dried flowers and leaves of between 19.8 and 22.5kg.
Part 2 of Sch 11 to the Drugs, Poisons and Controlled Substances Act stipulates that a commercial quantity of cannabis is 25 kgs or 100 plants. It is apparent that the number of cannabis plants discovered far exceeds the threshold for cultivation of a commercial quantity.
Mr Barton was contacted by police and attended the Caulfield Police Station on 30 January 2013, where he was arrested and interviewed. He was co-operative and made admissions. Mr Barton told police that he had grown the cannabis for his own use and for that of his brother (whom he was trying to assist in overcoming an addiction to ‘ice’) as well as for a close friend who was suffering from cancer. He pleaded guilty at the earliest opportunity. He had no prior convictions for drug offences. He had three prior convictions for driving while suspended, and he had received two wholly suspended jail terms of one month each in 2006 and a four-month term of imprisonment to be served by way of an Intensive Correction Order in 2009.
On the plea, the defence relied on the fact that Mr Barton had an entrenched and significant cannabis addiction that had been in existence for over ten years. There was evidence that Mr Barton had a long-standing mental illness and suffered from major depression. Reliance was placed on Verdins. The defence submitted that a non-custodial order should be imposed or a short term of imprisonment (not in excess of three months) coupled with a Community Correction Order.
The sentencing judge did not accept Mr Barton’s evidence that the cannabis was grown for the sole purpose of supporting his addiction, and to give to his brother and a close friend, noting that ‘the quantity of cannabis located and the investment required to build such an elaborate and sophisticated hydroponic system speaks strongly against [Mr Barton]’.[2] However, no positive finding was made to the effect that the cannabis had been cultivated for the purpose of supply or sale. His Honour accepted the prosecution’s submission that Mr Barton’s mental condition at the time of the offending could not permit any amelioration of sentence. However, he noted that the depression from which Mr Barton was suffering at the time of sentence would make any jail term more onerous for him, and he took this into account as a mitigating factor.[3] Other factors taken into account in mitigation were Mr Barton’s lack of prior drug offences, his early plea of guilty, and his reasonably good prospects of rehabilitation.[4]
[2]DPP v Barton (Unreported, County Court of Victoria, Judge Grant, 29 August 2013), (‘Reasons’), [7].
[3]Ibid [19].
[4]Ibid [21].
The application for leave to appeal
By a notice filed 26 September 2013, Mr Barton seeks leave to appeal his sentence. He relies on two grounds of appeal which seek to identify specific errors:
Ground 1: That the learned sentencing judge erred in finding that Mr Barton’s moral culpability at the time of the offending was not affected by his impaired mental functioning or drug addiction.
Ground 2: That the learned sentencing judge erred in failing to moderate general deterrence in light of Mr Barton’s impaired mental functioning, whether at the time of the offending or at the date of sentence or both.
The application for leave stands to be determined in accordance with s 280 of the Criminal Procedure Act 2009 which provides:
(1) The Court of Appeal may refuse an application for leave to appeal … in relation to any ground of appeal if—
(a) there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b) there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
Note
Subsection (3) empowers the Court of Appeal to correct a sentence if an application is refused in the circumstances referred to in subsection (1)(b).
(2) An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.
(3) On refusing an application by reason of subsection (1)(b), the Court of Appeal may, if it considers it appropriate to do so—
amend the sentence first imposed by substituting a less severe sentence; and
make any other order that the Court of Appeal considers ought to be made.
It is clear from sub-section (2) of s 280 that leave may be refused even where a ground of appeal is reasonably arguable if there is no reasonable prospect that the Court would impose a less severe sentence than the sentence first imposed.
Ground 1 — Limb 1 of Verdins — reduced moral culpability at the time of the offending
During the plea, it was submitted that Mr Barton suffered from a mental illness that had developed as a result of the sexual abuse of his two adopted sisters, and the end of his marriage. In or about 1983 it became known that one of Mr Barton’s adopted sister had been the victim of sexual abuse, with the perpetrators being two uncles (one maternal and one paternal). In 2003, his other adopted sister was the victim of a vicious gang-rape after which she developed symptoms of post traumatic stress disorder. This event had particularly affected Mr Barton, as his parents were overseas at the time and he felt that he had failed to protect his younger sister.
There was a psychological report relied upon at the plea prepared by Ms Carla Lechner, clinical and forensic psychologist, which evidenced a link between Mr Barton’s depression and his cannabis addiction. The report stated:
Mr Barton presents with a cannabis dependency problem with an underlying depressive illness underlying the genesis and maintenance of his addiction. His history suggests that he has always been a ‘sensitive soul’ who was totally destabilized upon learning that both his adopted sisters had been sexually abused. His use of cannabis increased as he struggled with symptoms of depression and guilt. … His drug use seems to have triggered some degree of paranoid thinking and high levels of anxiety.
With respect to his drug use, Ms Lechner reported that Mr Barton had told her that he used up to an ounce (28 gms) a day and that reducing this had rendered his thinking less ‘clouded’:
Mr Barton stated that he wanted to grow a large quantity of cannabis for his personal use (he was consuming up to an ounce a day). Since reducing his cannabis intake significantly, Mr Barton’s thinking has become less clouded and he recognises how cannabis adversely affected his judgment and decision-making. He is currently engaged in drug counselling and has commenced anti-depressant medication.
Ms Lechner considered Mr Barton to be of average intelligence and capable of insight but that his judgment and reasoning skills were easily overwhelmed by his substance abuse. She said:
He is capable of reflecting on the impact that his behaviour has on both himself and others but is easily overwhelmed by social and emotional factors that together with his substance use, undermine his judgment and reasoning skills. He is able to identify some triggers to his negative feelings but is less well able to express them appropriately, tending to block out internal distress with substance abuse. … He experiences anxiety ‘close to panic attacks’ every morning.
She concluded that Mr Barton presented with symptoms of major depression, with a score on the Beck Depression Inventory at the top end of the ‘moderate’ range. Since being charged, Mr Barton had engaged in extensive counselling, and had significantly reduced his cannabis intake from ‘an ounce a day to a couple of grams a week’. He had begun to take anti-depressant medication by the time of the consultation with Ms Lechner that had alleviated some symptoms. This evidence was unchallenged by the Crown.
At the plea both Mr Barton and his mother gave oral evidence. The evidence of Mr Barton’s mother was directed to his psychological state. She said:
He was already a quiet and introverted boy, but he had been going more and more into his own shell and, um, really depressed. Every time I had a conversation with him, um, his face would wobble and he’d just be on the verge of crying all the time, um, and I just knew he wasn’t doing very well, but he just wouldn’t talk about it.
She gave evidence that Mr Barton had been living with her but that he had been severely depressed and she had sometimes got the courage to ask him if he was suicidal. Mr Barton moved out ‘because I was continually asking him and prodding him to get some help’.
Mr Barton gave evidence directed to both the causes of his depression and the extent of his addiction which had grown as a form of self-medication:
Counsel:Now, at the time of this offence, you say you were smoking an ounce a day, describe the period prior to that; have you always smoked an ounce a day?
Barton:I’ve always smoked a substantial amount, probably not an ounce a day previous — use previously I would smoke perhaps a quarter a day, but certainly in the last year or two that went up and I was smoking a huge amount.
Counsel:All right, and why did it go up?
Barton:Just because I was going through a lot of stress and trauma. I was always, you know, upset and crying. I didn’t want to go on medications and so I smoked joints which allowed me to not think about all the stuff that I’d been through and stop crying essentially.
Counsel:All right, just describe what the stress and trauma related to?
Barton:… um, I’ve had a lot of stress in my life, starting from with my wife leaving me, then prostituted, so that was probably the first thing that happened, and then my sister was raped or molested by my two uncles and then, only five or six years ago, my second sister … my parents were overseas and I was looking after her and she was drugged and gang raped by several people and I was — she was my responsibility. So that really affected me a lot. And that was the state of mind I was at, leading up to that.
In cross examination he stated that he did not have any idea of the potential worth of the crop as it was the first time he had cultivated cannabis; that he didn’t know how much the yield would be but that he wanted to put enough aside for the ‘three of us’; and that he thought he’d ‘need a substantial amount and so I did what I thought was an appropriate amount for that’. The evidence of Mr Barton’s depression went uncontradicted and unchallenged.
On the plea, counsel for the defence made it clear that he was relying on the first limb in Verdins. He argued that the Court should accept that Mr Barton (1) had a long-standing mental illness, namely, depression, that had been at the forefront of his life for a considerable period of time; (2) had an entrenched and significant cannabis addiction that had been in existence for over ten years; and (3) had embarked upon the enterprise of cultivating cannabis hydroponically in the context of his depression and addiction to cannabis. The effect of those matters was that Mr Barton was a psychologically fragile, withdrawn, isolated man ‘whose judgment is fundamentally impaired’. It was submitted that his moral culpability should therefore be reduced.
In Verdins this Court acknowledged multiple alternative ways in which mental illness can be relevant to sentencing. There were six separate limbs recognised as follows:
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[5]
[5]Verdins (2007) 16 VR 269, 276 [32].
The manner in which an offender’s moral culpability may be reduced, under the first limb, was clarified in Tran v The Queen[6] as not requiring a causal connection. The relationship between the mental impairment and the offending for which the sentence is to be imposed may take a variety of forms, including impairing an offender’s ability to exercise appropriate judgment or impairing his or her ability to make calm and rational choices, or to think clearly. A causal connection between the mental illness and the offending is only one relevant relationship. As the Court said in Tran v the Queen, quoting from Verdins:
[6][2012] VSCA 110 (Maxwell P and Neave JA).
The Court in Verdins identified a variety of ways in which courts had held that impaired mental functioning might reduce moral culpability, as follows:
Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of —
(a) impairing the offender’s ability to exercise appropriate judgment;
(b) impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.
As the Court there said, this was a descriptive rather than a prescriptive list. It was expressly said not to be exhaustive. Only one of the items in that list — item (f) — referred to a causal connection.[7]
[7]Ibid [19]–[20].
In a more recent case, Pato v The Queen,[8] Hansen JA (with whom Harper JA agreed) observed that Verdins can be usefully considered by reference to a hypothetical comparator of someone without the mental impairment:
In my view, Verdins was relevant in the following way … Accepting that the appellant was suffering from severe depression, alcoholism and anger management problems at the time of the offending, his moral culpability should be regarded as less than that of a hypothetical person without those disadvantages who offended in a similar way. That said, the appellant was plainly aware that what he did was wrong, hence his moral culpability was still high and there was still ample scope for denunciation of his conduct.[9]
[8][2011] VSCA 223.
[9]Ibid 223, [28] (emphasis added).
Here, the sentencing judge accepted that Mr Barton had been suffering from depression at the time of the offending behaviour.[10] He said:
Mr Barton I am satisfied that it is more likely than not that you were suffering from some level of depression at the time you committed this offence. Such a finding is consistent with the evidence given by your mother of her observations when you last lived with her. Such a finding also accords with the report provided by Ms Lechner.[11]
[10]Reasons, [15].
[11]Ibid [15].
Moreover, he also accepted ‘that there was an interconnection between that illness and your cannabis usage’.[12] That is, his Honour accepted that there was a realistic connection between Mr Barton’s depression and the genesis and maintenance of his cannabis addiction.
[12]Ibid [15] (emphasis added).
However, as mentioned above, he did not accept Mr Barton’s explanation for the quantity of cannabis cultivated; that is, he did not accept that the cannabis had all been cultivated for personal use (and to share with Mr Barton’s brother and friend). The judge said:
[T]he quantity of cannabis located and the investment required to build such an elaborate and sophisticated hydroponic system speaks strongly against you. Put simply, I do not accept your evidence on this issue.[13]
[13]Ibid [7].
There was no challenge on the appeal to this finding; there was no submission that it was not open to the sentencing judge to find that the cannabis discovered by the police had not all been cultivated for personal use.
The judge was not satisfied that Mr Barton’s mental illness was relevant to the offending in such a way as to render him less blameworthy than he would otherwise have been. The basis for this finding was that Mr Barton had made a conscious choice to grow cannabis in a significant quantity; that he had built an elaborate, state of the art system for that purpose, which would have required considerable skill and expertise in its construction; and that he had built this system using his savings, and large amounts of money borrowed from his family.[14] In addressing Mr Barton, the judge said:
All of your decisions were informed, considered and calculated. There is no persuasive evidence indicating a causal connection between your mental condition and the offending; nor is there any persuasive evidence that your mental condition at the time of the offending compromised your ability to exercise appropriate judgment or your ability to make calm and rational choices or think clearly. There is no persuasive evidence that your mental condition had the effect of making you disinhibited or obscured your intention to commit the offence. You knew what you were doing was wrong.
Given the state of the evidence, I agree with the prosecutor’s submission that your mental condition at the time of the offending could not permit any amelioration of sentence based on an application of the Verdins principles.[15]
[14]Ibid [16].
[15]Ibid [16]–[17] (emphasis added).
It is clear from his Honour’s reasons that he did not treat the first principle of Verdins as being confined to a causal connection. Rather, he considered all of the relevant forms of interconnection that arose in the circumstances of the case. In particular, he considered what was probably the most relevant aspect of the first limb of Verdins, namely, the ability to exercise appropriate judgment and make calm and rational choices.
On the appeal, it was submitted that, in light of the uncontradicted evidence of Mr Barton’s depression, the connection with his cannabis addiction and the fact that as a result his judgment was ‘clouded’ and his judgment and reasoning skills were easily overwhelmed by his substance abuse, it was not open to find that there was no realistic connection between his impaired mental functioning and his offending. It was also submitted that a well-trained or educated person (as Mr Barton is) can engage in seemingly elaborate and considered behaviour despite being affected by depression and addiction, particularly when a narcotic plant is being cultivated to (at least in part) support that addiction. Mr Barton’s major depression and drug addiction combined, it was argued, to make him less morally culpable than a person who engaged in cultivation without impaired mental functioning and without a drug addiction.
The difficulty faced by Mr Barton’s submission lies with the quantity of cannabis cultivated. As noted above, the quantity was well in excess of that prescribed as the threshold for a commercial quantity (100 plants). Indeed, it was more than 50 per cent in excess of that threshold. The cultivation of 160 plants, together with the unimpugned finding that the cultivation was not solely for personal use, eroded the extent to which any realistic interconnection could be found between Mr Barton’s state of major depression and the level of his offending. It might well be accepted that there was a relevant connection between the mental illness and Mr Barton’s addiction, and had his offending been limited to a quantity accepted as cultivated for personal use, it might have been a short step to conclude that Mr Barton’s mental illness was relevantly related to his criminal conduct in such a way as to reduce his moral culpability. But what the sentencing judge found was, given that the nature of the offence is ‘quantity based’,[16] and given the large quantity cultivated in this case, that Mr Barton’s mental illness did not bear the relevant relationship to the level of offending or its gravity. The mental illness thus could not, and did not, reduce his moral culpability for that offending.
[16]Reasons, [20].
I consider that it is not reasonably arguable that his Honour fell into error. However, if I am wrong about that, I also consider that there would be no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed. In particular, I consider that the level of offending rendered an immediate term of imprisonment appropriate. In my view, the denunciation of the offending demanded an immediate custodial sentence. Anything less would fail adequately to reflect the gravity of the offending.
Counsel for Mr Barton referred the Court to the Sentencing Snapshot produced by the Sentencing Advisory Council on the offence of cultivating a commercial quantity of narcotic plants[17] for the purpose of illustrating that a significant percentage of offenders did not receive an immediate custodial sentence. However, he accepted that the statistics had limited utility because they did not reveal whether those offenders who had not been subject to an immediate custodial sentence were youthful offenders, which Mr Barton was not;[18] nor did they reveal the number of plants cultivated.
[17]Sentencing Advisory Council, Sentencing trends in the higher courts of Victoria 2006-07 to 2010-11, No 133 (August 2012), ‘Cultivating a commercial quantity of narcotic plants’.
[18]Mr Barton’s date of birth is 8 May 1972.
It was conceded on the appeal that if the Court considered that an immediate term of imprisonment was warranted, it would be difficult to contest either the head sentence or the non-parole period as both were benign and consistent with sentences imposed in comparable circumstances, including those in which the principles of Verdins was successfully relied upon.[19]
[19]See, for example, Latif v The Queen [2013] VSCA 51. This involved three co-offenders who engaged in a joint criminal enterprise of cultivating hydroponically 161 cannabis plants and theft of electricity. One of the co-offenders, Hassan Azmi, successfully relied on Verdins and was sentenced to 2 years and 4 months’ imprisonment for the cultivation offence and two weeks for the theft of electricity, one week of which was to be served cumulatively with the sentence for the cultivation offence. This made a total effective sentence of 2 years and 4 months and 1 week imprisonment with a non-parole period of 15 months.
I reject Ground 1.
Ground 2 — Limb 3 of Verdins — general deterrence
During the hearing of the appeal there was some discussion as to whether Mr Barton had relied on the third limb of Verdins during the plea.
The third limb of Verdins engages the principle of general deterrence:
Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.[20]
[20]Verdins (2007) 16 VR 269, 276 [32].
It would appear, however, that although the submissions before his Honour might not have expressly referred to the third limb of Verdins the sentencing judge took counsel to be relying on that limb. In response to counsel’s indication that he would be calling evidence from Mr Barton’s mother ‘to confirm that he was in a very dark difficult state’ and was ‘affected by his irrational motivation to obtain cannabis in order to deal with the addiction’, the judge responded:
But what you would ask me to do is to say that I should apply the principles of Verdins and say that in some way his moral culpability is reduced or he’s not a good example to deter others because at the time he committed the offence his mental condition impacted on his judgment making or his thought processes.
In Tranv The Queen the Court of Appeal held that a causal connection between the mental impairment and the offending was not required under the third limb of Verdins. The Court said:
[A] question was raised by the judge about whether the general deterrence aspect of Verdins relies on proof of a causal connection between the offending and the mental condition. The relevant section of Verdins makes it clear that such a connection is not required.[21]
[21]Tran v the Queen [2012] VSCA 110, [12].
On the appeal it was submitted that the sentencing judge was required to, but did not, consider whether, even if not satisfied that there was a nexus between Mr Barton’s mental functioning and his offending, there should have been a moderation of general deterrence. By contrast, what the sentencing judge did was to emphasise the importance of general deterrence in the intuitive synthesis for offending of this kind. He said:
Mr Barton, the seriousness of this offence is reflected by the maximum sentence of 25 years imprisonment imposed by the legislation. This is a matter that I must have significant regard to. The Court of Appeal in Victoria has emphasised time and again the importance of general deterrence and punishment in sentencing for this type of offence.[22]
[22]Reasons, [20].
In my view, although a mentally impaired offender is often not an appropriate vehicle for deterrence,[23] it is also the case that ‘a diagnosis of mental impairment does not automatically mean that the importance of deterrence as a sentencing factor is reduced’.[24]
[23]Muldrock v The Queen (2011) 244 CLR 120.
[24]Sikaloski v The Queen [2012] VSCA 130, [44].
Moreover, as the Director of Public Prosecutions submitted, by the time that Mr Barton came to be sentenced both his depression and his addiction had abated.
Furthermore, although the sentencing judge mentioned the significance attached to general deterrence for this type of offending there is much to be said for the view, given the comparatively benign nature of the sentence imposed, that general deterrence did not extend, or extend significantly, the sentence that would otherwise have been imposed. As Maxwell P and Neave JA said in Tran v The Queen:
It is important to recall that general deterrence can only be regarded as having contributed separately to a sentence if the sentence was increased, because of the need to send a deterrent message to others, over and above the sentence which would have been appropriate had it been confined to specific deterrence.[25]
[25][2012] VSCA 110, [29], citing CNK v The Queen [2011] VSCA 228, [12]–[14].
Given the quantity of cannabis cultivated, the sophistication and planning that was involved, and given his Honour’s rejection of the proposition that the cultivation was for Mr Barton’s personal use, it is unlikely that considerations of general deterrence were the basis upon which the judge decided against a non-custodial sentence or significantly increased the term of imprisonment that was imposed.
In my view, Ground 2 is not reasonably arguable.
In any event, I also consider that there would be no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed.
I reject Ground 2.
It is not in contest that the sentencing judge accepted that Mr Barton’s mental illness would render prison more onerous for him (the fifth limb of Verdins) and moderated the sentence accordingly.
Conclusion
The application for leave to appeal against sentence should be dismissed.
WHELAN JA:
I agree with Tate JA.
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