Dowdell v The Queen

[2012] VSCA 125

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0307
JUSTIN DOWDELL	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and OSBORN JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	13 June 2012
DATE OF JUDGMENT/ORDER:	13 June 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 125
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria at Melbourne, Judge Hannan, Date of Sentence 21 November 2011

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CRIMINAL LAW – Sentence – Cultivation of and trafficking in cannabis – Cannabis used for pain relief of the terminally ill – Confiscation of valuable property – Sentence of 27 months’ imprisonment with a minimum term of 15 months’ imprisonment manifestly excessive – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC	Slades & Parsons (Mr G Chisholm and Mr N Tehan)
For the Crown	Ms D Karamicov	Mr C Hyland, Solicitor for Public Prosecutions (Ms D Ziukelis)

BUCHANAN JA:

1. The appellant was arraigned in the County Court and pleaded guilty to an indictment containing two charges of cultivation of a narcotic plant (charges 1 and 2) and a charge of trafficking in a drug of dependence, being cannabis (charge 3).

1. After a plea, the appellant was sentenced on 21 November 2011 to be imprisoned for a term of 14 months on charge 1, for a term of 16 months on charge 2 and for a term of 18 months on charge 3.  With a measure of cumulation, a total effective sentence of 27 months was fixed and it was ordered that the appellant serve a term of 15 months’ imprisonment before he was to become eligible for parole.

1. The appellant has been granted leave to appeal on the following grounds:

1.The sentencing judge failed to properly take into account the fact of and the extent of the forfeiture of the Rosebud property.

2.The sentences individually, the total effective sentence and the non-parole period are manifestly excessive, particularly in the circumstances of:

(a)the appellant’s father’s role, illness and subsequent death;

(b)the finding that the appellant did not play a direct or controlling role;

(c)the forfeiture order and the extent of forfeiture; 

(d)the early guilty plea;  and

(e)the time that had passed since the offence.

3.The sentence imposed on a trafficking charge (charge 3) is manifestly excessive in the light of the objective circumstances of the offence.

4.The sentencing judge erred in not imposing a partially suspended sentence.

1. Ground 4 was abandoned.

1. In April 2009, the police commenced an investigation of suspected cannabis cultivation at two properties, one in Rosebud, the other in Frankston, owned by the appellant.  The appellant’s father lived at one property and a friend, Mr Benn, at the other property.  Both men were terminally ill with cancer and used cannabis for pain management. 

1. In July 2009, the police executed search warrants of the properties.  They discovered a crop at the Rosebud property consisting of ten plants which weighed, when wet, a total of 27.9 kilograms.  The crop at Frankston consisted of 15 plants and weighed, wet, a total of 39.4 kilograms.  There was a range of equipment at each of the properties designed to aid the growth of the plants consisting of sheeting of the walls, transforms, timers, filters, exhausts, nutrients and other materials.  At both properties, the electricity metre had been by‑passed.

1. When the appellant’s father and Mr Benn were interviewed, each admitted responsibility for setting up the cultivation system and growing the cannabis found at the premises which they occupied.  Proceedings against each of them were discontinued when they died. 

1. The appellant’s telephone conversations were intercepted by the police and he was watched by the police.  By these means, the police discovered that the appellant discussed the cultivation of cannabis with other persons and spoke to a woman about the sale of cannabis.  Later the woman made a statement to the police saying that she had sold cannabis on behalf of the appellant for a total of about $15,000.

1. At the hearing of the plea there was a dispute as to the role of the appellant.  The sentencing judge made the following findings: 

In my view you were a full and active participant in this offending.  I do not accept that you were merely assisting others in follies of their own.  You were simultaneously involved in two cultivations.  You were physically involved in the cultivation, you were proffering advice and assistance when requested, at least to your father in relation to the crop at his premises.  I am not satisfied, however, that you were, in fact, the driving force or in total control of the cultivations with the co‑accused being no more than what are often described as sitters.  In my view, you were all jointly involved in this offending with each man playing his different but necessary role.

1. The sentencing judge accepted that the appellant’s initial involvement was made in order to assist his father and Mr Benn with their efforts to mange their pain but the appellant’s involvement developed and became a money making enterprise. 

1. The appellant is aged 38 years.  His parents separated when the appellant was aged 14 years and he lived with his mother.  The appellant left school after completing year 11.  He then completed an apprenticeship as a tiler and for some 20 years conducted his own business as a tiler. 

1. The appellant has no prior convictions. 

1. A report by a psychologist was tendered in the course of the plea.  The psychologist expressed the view that the appellant was psychologically unsophisticated and was dependant upon the few persons to whom he was attached and was eager to maintain their approval.  The psychologist said that the appellant did not have any significant personality dysfunction and was not antisocial.  He said that the appellant’s intelligence was in the normal range.

1. The appellant has acted as his mother’s carer.  The appellant’s mother has suffered ill health for some time.  In May 2012, she was admitted to hospital for a fortnight.  Hospital records disclose that the appellant’s mother suffered a thoracic vertebrae fracture with ongoing back opinion and now has considerable difficulty with self care and in daily living.  As the sentencing judge accepted, the burden of imprisonment on the appellant was particularly heavy by reason of his concern for his mother’s condition.

1. An order was made forfeiting the appellant’s interest in the Rosebud property thereby causing him a loss of some $258,000. 

1. The appellant could rely upon a number of significant mitigating factors.  He offered to plead guilty at an early stage, he was not the instigator of the cultivation of cannabis, he had no prior convictions, he had suffered a severe financial loss as a result of the forfeiture of his property, he had endured a significant delay between the offending and sentence and his prospect of rehabilitation was described by the sentencing judge as ‘excellent’.

1. Although he was a convicted drug trafficker, the appellant’s antecedents and

the circumstances of his offending were most unusual. 

1. In all the circumstances, I am of the opinion that the sentence was manifestly excessive and that the period of imprisonment already served by the appellant is sufficient.

1. I would confirm the sentences passed below and order that the sentence that remains be suspended for a period of two years.

OSBORN JA:

1. I agree.

BUCHANAN JA:

1. The orders of the Court are as follows: 

1.        The appeal is allowed.

2.        The individual sentences, the total effective sentence and the non‑parole period passed below are confirmed. 

3.        The sentence that today remains to be served is suspended for a period of two years. 

4.        The disposal order, the order for the taking of a forensic sample and the forfeiture order made in the Court below are confirmed.

(Discussion re pre sentence detention).

It is declared that a period of 205 days, including this day, is to be reckoned as already served in the sentence it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

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