Browne-Kerr v The Queen

[2011] VSCA 35

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2008 0734

MALCOLM BROWNE-KERR	Appellant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and HARPER JJA and HARGRAVE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 February 2011
DATE OF JUDGMENT	17 February 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 35
JUDGMENT APPEALED FROM	The Queen v Malcolm Browne-Kerr [2008] VCC 0702 (Judge Barnett)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in a large commercial quantity of a drug of dependence – Unusually low level of offending – Sentence of eight years with non-parole period of five years and six months – Sentence manifestly excessive – Appeal allowed – Appellant resentenced to six years imprisonment with non-parole period of four years – No point of principle.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr F J Scully	Howard Legal & Associates
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. I invite Hargrave AJA to give the first judgment.

HARGRAVE AJA:

1. The appellant, Malcolm Browne-Kerr, pleaded guilty in the County Court to a charge of trafficking in a large commercial quantity of a drug of dependence, cannabis L, between 24 June 2005 and 11 November 2005.  He was sentenced to a term of imprisonment of eight years.  The sentencing judge fixed a period of five years and six months before Mr Browne-Kerr was eligible for parole. 

1. The maximum penalty for trafficking in a large commercial quantity of a drug of dependence is life imprisonment.[1]  A large commercial quantity of cannabis is 250 kilograms or 1000 plants. 

   [1]Drugs, Poisons and Controlled Substances Act 1981, s 71.

1. Mr Browne-Kerr raises a number of grounds of appeal, contending that the sentencing judge gave too little weight to mitigating factors and too much weight to principles of deterrence, punishment and denunciation.  In substance, there is only one ground of appeal, that the sentence imposed on him was manifestly excessive. 

1. In sentencing Mr Browne-Kerr, the sentencing judge placed considerable weight on his history of prior offending, in particular, upon a previous offence of trafficking in cannabis in 1995.  At that time, Mr Browne-Kerr was sentenced to a total effective sentence of two years and six months imprisonment, with a non-parole period of 12 months.  In addition, but of less relevance, Mr Browne-Kerr has two prior convictions relating to falsely claiming government benefits.  In respect of each of these offences, he received a term of imprisonment.

1. While in gaol, on his earlier drug offence, Mr Browne-Kerr met John Falzon, who became the person in control of the drug trafficking operation giving rise to Mr Browne-Kerr’s offending in this case.

Circumstances of the offending

1. The facts surrounding the offence can be briefly summarised.  In the relevant five month period, the police conducted investigations into the drug trafficking operations of Mr Falzon.  The investigations revealed that Mr Falzon was trafficking in a large commercial quantity of cannabis, and that he was obtaining his supply of plants from Mr Browne-Kerr and others.  It would appear that Mr Browne-Kerr was the largest supplier of cannabis plants.  He was in a position to supply Mr Falzon with up to 100 plants at a time.  Although Mr Falzon was the principal of the enterprise, there were occasions when Mr Browne-Kerr made deliveries directly to Mr Falzon’s customers and, on a few occasions, Mr Browne-Kerr sold directly on his own account. 

1. Mr Browne-Kerr’s participation in the drug trafficking enterprise was essentially limited to the propagation of young cannabis plants in a shed on his residential property.  It was in no sense a sophisticated operation.  There were young plants on a bench underneath lowered fluorescent lights.  It would appear that the lights were not on a timer.  There was no diversion of electricity to conceal the offending. 

1. The drug trafficking enterprise came to an end when the police executed search warrants in November 2005.  At that time, Mr Browne-Kerr had eight ‘mother’ cannabis plants weighing 3.6 kilograms and 259 ‘cloned’ cannabis plants in his shed.  It would appear that some of these plants were mere cuttings without any defined root system and, as such, may not have in fact constituted ‘plants’ within the meaning of the Drugs, Poisons and Controlled Substances Act.

1. Further, in his plea, Mr Browne-Kerr acknowledged having trafficked in approximately 1300 plants.  Based on the agreed pecuniary penalty order in the sum of $13,000 it would appear that Mr Browne-Kerr was making approximately $10 per plant.  It is obvious that Mr Browne-Kerr made very little profit from his participation is Mr Falzon’s enterprise.  There was no evidence of him acquiring any significant assets or enjoying significant luxuries during the course of his offending.  Indeed, Mr Browne-Kerr was in financial difficulty throughout the course of his offending.  It is apparent that Mr Browne‑Kerr’s participation was motivated by his poor financial position, for reasons which were well explained.

1. Mr Browne-Kerr was imposed upon by Mr Falzon to participate in his enterprise.  At the time Mr Browne-Kerr commenced participation, he had done some painting work for Mr Falzon and his relatives, some of which was not paid for.  At all times Mr Falzon was in control of the enterprise and, in the words of Mr Browne-Kerr’s counsel on the plea, he treated Mr Browne-Kerr as a ‘bumbling side-kick’.  From telephone intercepts, it is apparent that Mr Falzon treated Mr Browne-Kerr with disdain, calling him ‘useless’, ‘you imbecile’ and otherwise speaking rudely to him when he was not available at Mr Falzon’s beck and call.  The Crown acknowledged these matters during the course of the plea hearing in the County Court.

1. In all the circumstances, it is fair to characterise Mr Browne-Kerr’s offending as being of an unusually low degree of seriousness, when compared with other cases of this offence.  The sentencing judge acknowledged this in his reasons for sentence.

Mitigating factors

1. There are a number of mitigating factors, which were correctly accorded some weight by the sentencing judge.  They include the following matters:

(1)       At the time he was sentenced, Mr Browne-Kerr was 64 years old.  Accordingly, a sentence of imprisonment is likely to cause him greater difficulty than for a younger person. 

(2)       Mr Browne-Kerr is a dedicated father and grandfather.  He has the full support of his family.

(3)       Mr Browne-Kerr’s wife suffers from a serious mental illness, bi-polar disorder, and requires his care.

(4)       Mr Browne-Kerr has shown considerable remorse for his offending.

(5)       Because of his and his wife’s participation in this offence, their equity in their family home has been the subject of automatic forfeiture under the Confiscation Act.  It is likely he and his wife will remain in a poor financial position for the rest of their lives.

(6)       Mr Browne-Kerr pleaded guilty at an early stage, thus saving the cost and inconvenience of a trial.  Given the evidence concerning the nature of the cannabis plants seized from his premises, he may have had grounds to challenge the Crown case that he had trafficked in over 1000 plants, with the aim of reducing the charges against him to trafficking in a commercial quantity only, an offence carrying a lesser maximum penalty, 25 years instead of life imprisonment.  In these circumstances, his decision to plead guilty has had real benefits for the community. 

1. It was submitted on behalf of the Crown that the sentence was not manifestly excessive because the offence of trafficking in a large commercial quantity of drugs is viewed by Parliament as sufficiently serious to impose the maximum penalty of life imprisonment.  Further, the Crown places considerable reliance on Mr Browne-Kerr’s previous offending.  It was submitted that, as a result, Mr Browne-Kerr well knew that he was risking another term of imprisonment in circumstances where his wife’s illness necessitated a need for his care.  In these circumstances, the Crown emphasises the need for significant weight to be given to principles of deterrence and denunciation. 

1. In my view, the Crown’s submissions, and the sentence imposed, do not give sufficient weight to the degree of Mr Browne-Kerr’s offending, which is at the very lowest end of the range for offences of this kind, or to the combination of mitigating factors in Mr Browne-Kerr’s favour.  The sentence was manifestly excessive.  In all the circumstances, including the information given from the bar table this morning without objection as to Mr Browne-Kerr’s role as a mentor of prisoners and involvement in an education program for young students, I would set aside the sentence and re-sentence Mr Browne-Kerr to a period of six years’ imprisonment and fix a period of four years’ imprisonment before Mr Browne-Kerr is eligible for parole.

1. Were it not for Mr Browne-Kerr’s guilty plea, I would have imposed a sentence of seven years and three months and a non-parole period of four years and 10 months. 

1. This sentence remains significantly higher than those imposed upon some of Mr Browne-Kerr’s co-accused, who were sentenced for the lesser offence of trafficking in not less than a commercial quantity of cannabis during the same period.[2]  For those offences, one co-accused was sentenced to four years’ imprisonment with a non-parole period of two years, and the other two were each sentenced to five years’ imprisonment with a non-parole period of two years and six months.  Although these sentences were imposed for lesser offences, and the co‑accused who received the lesser sentence was of a relatively young age and had no prior convictions, the relative degrees of culpability of the offenders were not materially different from those of Mr Browne-Kerr.  The other two co-accused, who received higher sentences, were older and both had a relevant prior conviction for trafficking in cannabis.  However, the fact remains that Mr Browne-Kerr pleaded guilty to a more serious offence carrying a higher penalty and this must be reflected in the sentence imposed on him. 

   [2]Reivers v R [2010] VSCA 159.

1. Further, the sentence which I would impose is in my view consistent with this Court’s approach in R v Sibic.[3]  In that case, a sentence of nine years imprisonment for one of the co-accused was confirmed for trafficking in a significantly greater quantity of cannabis than in this case.  In that case, the growing operation continued for a longer period than in this case, and was described by the sentencing judge as ‘elaborate and sophisticated, in part at least automated and highly organised, and no

doubt expensive’.[4]  The offending in that case stands in stark contrast to the degree of Mr Browne-Kerr’s offending.

[3][2006] VSCA 296.

[4]Ibid [7].

ASHLEY JA:

1. I agree.  This case demonstrates starkly what is often said - that each case is unique and turns upon its own circumstances.  It would be possible to characterise the appellant’s offending simply as being one of large commercial trafficking involving more than 1,500 cannabis plants, engaged in by a repeat offender.  But so to characterise it, having regard to the matters described by my brother Hargrave, would be substantially inaccurate and misleading.  It is a salutary reminder of the limitations of so‑called case comparison.

HARPER JA:

1. I agree with the reasons given by Hargrave AJA and with his conclusion.  I would also adopt the comments of the learned presiding judge.

ASHLEY JA:

1. Subject to anything counsel might say, we think that the orders should be as follows: 

1.        The application for leave to appeal against sentence passed in the County Court on 27 June 2008 is granted.

2.        The appeal is treated as instituted, heard instanter and allowed.

3.        The sentence passed on 27 June 2008 is set aside.  In lieu thereof the appellant is sentenced to six years' imprisonment.  The Court fixes a non‑parole period of four years.

4.        The other orders made below on 27 June 2008 are confirmed.

5.        It is declared that a period of 986 days, not including this day, has already been served pursuant to the sentence and it is ordered that the fact that that declaration has been made and its details be noted in the records of the Court.

The Court states under s.6AAA of the Sentencing Act 1991 that if the appellant had been convicted after trial it would have imposed a sentence of seven years and three months' imprisonment and would have fixed a non‑parole period of four years and ten months.  It will record those details in the other matters section of its orders.

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