DPP v Brown
[2002] VSCA 62
•2 May 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 330 of 2001
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| PETER ANTHONY BROWN |
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JUDGES: | PHILLIPS, BATT and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 May 2002 | |
DATE OF JUDGMENT: | 2 May 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 62 | |
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Criminal law – Sentencing – Director’s appeal – Trafficking over three years in cannabis L in commercial quantity – Powerful factors in mitigation – Six months ICO manifestly inadequate – Portion of ICO already spent – Offender re-sentenced to 12 months’ imprisonment with minimum six months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr O.P. Holdenson, Q.C. | Cameron |
PHILLIPS, J.A.:
This is an appeal by the Director of Public Prosecutions against sentence imposed in the County Court on the respondent on 6 December 2001. After pleading guilty to a presentment containing one count of trafficking between 1 May 1998 and 1 May 2001 in a drug of dependence, namely cannabis L, in a quantity that was not less than the commercial quantity applicable to that drug, the respondent was sentenced to six months' imprisonment to be served in the community by way of an intensive correction order, to which the respondent consented. The maximum penalty prescribed by s.71(1)(a) of the Drugs, Poisons and Controlled Substances Act 1981 was 25 years' imprisonment and a fine of $250,000. A commercial quantity of cannabis L was 100 plants or 25 kilograms. The Director now appeals under s.567A of the Crimes Act 1958 on the ground that the sentence imposed was manifestly inadequate, the particulars being set out in the notice of appeal dated 21 December 2001. The complaint is, in effect, that the sentence failed adequately to reflect the gravity of the offending or to take into account sufficiently the need for general deterrence. And, I must say, I agree.
The circumstances of the offending are sufficiently set out in the reasons of the sentencing judge. In brief, the respondent, who was 42 years of age when sentenced, had been habituated to cannabis which he had been smoking since he was 18 years old. Ten years ago, it seems, he began to grow his own cannabis and, in consequence, was convicted at the Sunshine Magistrates' Court on 12 February 1993 on three counts, one of cultivation of cannabis, one of possession of cannabis and one of using cannabis. I pause to mention the circumstances in which those offences came to light. It was said on behalf of the respondent on the plea in mitigation last December that, a self-employed builder by trade who on occasion used subcontractors, the respondent had employed an apprentice who too enjoyed smoking cannabis from time to time. Apparently the apprentice noticed the plants growing on the respondent's premises and he stole some. The apprentice was then apprehended by the police and he, very helpfully, told the police where they had come from. There were some 15 plants in total, about 15 centimetres high, when the police arrived. There was a hydroponic system, but, according to counsel, it was "a poor effort". Perhaps the circumstances in which all this came to light, and the description of the whole system as a "poor effort" explains the penalty; for in February 1993 the respondent was fined $750, $250 and $75 respectively on the three counts of cultivation, possession and using.
To return to the sentencing judge's remarks in December last, three years ago the respondent began to grow cannabis hydroponically in a bungalow behind his house in Balaclava. He smoked it and shared it with friends, sometimes selling them small amounts. The system and the quantity produced gradually became larger and a year ago the respondent engaged in selling the excess crop at the rate of a pound of cannabis for $3,000 to a single person who, presumably, distributed it for profit. These sales of one to one and a half pounds occurred every fifteen weeks.
The respondent is a qualified carpenter who is experienced in other building trades. Having worked regularly as a builder, mostly engaged in renovation work, in July 2000 he bought a factory building in Moorabbin for $145,000 on a deposit of $50,000. His intention was to use it to house building materials and a trimaran which he was then building. In the course of installing a mezzanine floor, he conceived the idea of establishing a further cannabis crop in the space behind this mezzanine. The police found both crops on 1 May 2001.
According to the certificate of the botanist dated 9 May 2001 which went into evidence, there were 97 cannabis L plants seized from the factory premises in Moorabbin with a total weight of 675.1 grams. At the respondent's home in Balaclava, the police found marijuana growing in a hydroponic set-up in a spare bedroom and in the bungalow and, again according to the certificate of the botanist, 169 cannabis L plants were seized, with a total weight of 1965 grams. In argument, Mr McArdle, who appeared for the Director, suggested that there was some discrepancy in the counting of the plants seized but the differences were very slight: at the factory, it was a difference of one and at the Balaclava premises some three or four. So if there is any discrepancy, it is of no moment.
When the respondent was interviewed he revealed all of the foregoing information to the police including his selling of the cannabis and the duration of his activities: the investigating officer said in evidence on the plea that he was surprised by the respondent's candour. The respondent kept no record of his illegal earnings but estimated them, at one point in the interview, as "Possibly $20,000" over the three years (Q 468) and when asked how much of the money he put back into "the drug business", he said "Quite a bit". A little later in the interview, he agreed that "there's approximately $20,000 tied up in the factory that's come from the sale of drugs", although, when asked whether it could be more than that, he replied, "it could, but it could be less" (Q 506, 507).
Mr Joblin, the psychologist whose two reports went into evidence, described the respondent as having grown up in a respectable middle-class family. He was a quiet, gentle person, said Mr Joblin, who abhorred situations of conflict and confrontation. He used marijuana as an escape from the stresses of ordinary life and, as the respondent's brother pointed out on the plea, the building industry is full of stresses. Mr Joblin was able to report, however, that by the time of the plea, the respondent had apparently given up taking cannabis and broken his longstanding habit, having at long last sought professional help. He was believed, by then, to be cannabis free and urine tests were put in evidence to confirm it. Evidence of the respondent's good character was given by the respondent's brother and sister, and there was a bundle of character references speaking well of the respondent and his positive attitude to reforming his lifestyle.
Undoubtedly, his Honour was facing a difficult task in sentencing. As his Honour remarked during the plea, a first reading of the material pointed directly to an immediate term of imprisonment: and that indeed was the submission of the Crown. Counsel for the respondent submitted, however, that while a custodial sentence should be imposed, it should either be suspended or the device adopted of an intensive correction order because of all that could be said in mitigation. During the plea, the judge appeared to accept that the respondent "fell into this criminal activity ... as a direct line of progression from the beginning as a smoker of the stuff" and that since his apprehension for these offences he had "taken effective steps to cure his addiction". But the judge then added (and I quote from the transcript on the plea):
"The problem of course ... is the usual difficulty of general deterrence. This hydroponic cannabis growing is really very, very dangerous to society in the long run and it seems to be on the increase. It's probably not useful to draw a distinction between cannabis and other drugs, because the Court of Appeal seems to have formed a view that they're all the same. That view might be based upon the notion that those who smoke cannabis frequently become addicted to harder drugs. And those who traffic in cannabis run the risk that their purchasers will, in fact, use it as a path to total destruction created by amphetamine and heroin.
So there is a serious problem, there is a need for retribution and deterrence, and the problem is one of attempting to find some balance between your client's present efforts that conform with their pretty reasonable chance of success, providing he keeps going down that path."
In his sentencing remarks, too, although his Honour did not expressly mention deterrence, I have no doubt that he remained alive to its relevance, for he said (p.50):
"On the one hand, the trafficking of a drug of dependence for profit over a 12 month period, mandates the imposition of a term of imprisonment."
At the same time, reflecting no doubt his earlier reference to "a direct line of progression", his Honour opined that the way in which the prisoner was led to engage in the offending constituted "a path of self-seduction from using the drug through dependence upon large amounts of it to production of a commercial quantity of it and financial profit from it whilst maintaining, in other respects, a useful life". That, his Honour said, made the offending less serious than it might otherwise have been, it being relevant also to consider the respondent's "present determination to escape the long bondage to which he subjected himself and the resultant belief that he is unlikely to offend again".
In considering what was said below, it is not unimportant, I think, to note that in the course of his sentencing remarks the judge added that he was persuaded -
"... that the level of the prisoner's offending makes the imposition of a sentence of imprisonment in the range 18 to 12 months mandatory. Were I to pass such a sentence, I should fix a minimum term of about six months, in order to leave scope for the Parole Board to supervise his return to life in the community."
Despite this, his Honour concluded almost immediately afterwards that an intensive correction order was appropriate given the respondent’s "particular manner of offending and particular personality and particular efforts of reformation". His Honour said that, in some cases, such a sentence, by way of intensive correction order, was "a harsher requirement than that of a prison regimen", but, if I may say so, that is perhaps more likely to be so in the case of those less given to self-imposed discipline than a self-employed carpenter who has been successful in his work and hard-working. I very much doubt that an intensive correction order can be said, for this man, to be "a harsher requirement than that of a prison regimen". And therein, I think, lies the nub of the Director's appeal.
In support of the appeal Mr McArdle relied upon the scale of the operation, the use of two premises and the sophistication of the set-up. He relied too upon the use of the house for three years, the regular selling of the cannabis to one favoured customer at least in the latter period, and the amount of the profit made. For his part, Mr Holdenson pointed out that these last three - that the enterprise extended for so long as three years, the profit made and the regular selling - were known only by reason of the information given by the respondent to the police in his very frank interview, and for that, he contended, the respondent was entitled to a significant discount, greater than that to which he was entitled simply for pleading guilty. No doubt the respondent was entitled to a discount for disclosing, more fully than was then known, the extent and nature of the operation in which he was engaged, but that does not altogether offset the seriousness of the offending.
Mr Holdenson was apt, in responding for his client, to emphasise the motive of own use at the expense of profit. He called in aid the judge's comment about "a path of self-seduction", to which I have already referred. Indeed, he went so far as to submit at one stage that the sentencing judge had found that the offending had been "caused by" the respondent's own use of the drug and his growing dependence upon it, but that, I think, was to overstate the position. As Callaway, J.A. said in R. v. Bernath[1] about addiction, ultimately the issue is whether there was such a link between the addiction and the offences as to call for mitigation of punishment. I doubt that that was so in this case where the cultivation went well beyond what was necessary for own use and led, it would seem, to a pretty regular business involving sale. Indeed, the very cost of the hydroponic set-up seems to me to point against the argument that own use was predominant.
[1][1997] 1 V.R. 271.
In essence, the contention for the appellant was that in sentencing his Honour gave too much weight to personal circumstances in mitigation and not enough to deterrence. General deterrence was still of great importance, however far the efforts of the respondent to rehabilitate himself justified the judge in regarding him as unlikely to re-offend. Mr McArdle relied upon the fact that in the sentencing remarks no express mention was made of deterrence at all, but, as already indicated, I would not accept the submission that his Honour overlooked it; he was far too experienced to do that. In contrast, Mr Holdenson submitted that, whatever deterrence required, it was offset by all that could be put in mitigation, and he emphasised, among other things, the plea of guilty, the cooperation with police, the voluntary disclosure of the nature and extent of the offending, the addiction of the respondent to cannabis and his efforts to overcome it, the finding of his Honour that there was no likelihood of further offending, that rehabilitation had already commenced and the respondent's "especially good prospects of rehabilitation", and the character references which spoke so well of the respondent's attempt to re-direct his lifestyle. In developing the argument, Mr Holdenson emphasised that it was sufficient to answer this appeal if, by reference to all of the factors in mitigation, the sentence imposed was one which was reasonably open in the proper exercise of the sentencing discretion, and that, he submitted, it was. Not only should this Court be reluctant, as he put it, to intervene on a Director's appeal; it was in fact not open to it to intervene because the sentence could not be said to lie outside the proper range.
Notwithstanding the direct and forceful manner in which Mr Holdenson made these submissions, I am not persuaded by them. I think that Mr McArdle's submission should be accepted. I agree that, when all is said and done and everything has been brought to account in favour of the respondent as contended by Mr Holdenson, at the end of the day his Honour did give insufficient weight to general deterrence. The respondent pleaded guilty to trafficking in cannabis over a relatively long period of time and it was trafficking on a regular basis in a commercial quantity and in an operation extending over two premises. Some of the product was sold to another presumably for on-selling, and so the respondent tied himself by this operation to the pernicious retail train between production and consumption. It may well be that his own habit and dependence explains how he came to find himself in this pass, but find himself in it he did and, having committed the crime, he must now pay an appropriate penalty. In my opinion, with respect, it was altogether inappropriate to impose a sentence of only six months and a sentence which did not require some time to be served in prison. The sentence imposed was manifestly inadequate (both in length and mode of service) and on that account I would allow the appeal and set aside the sentence imposed below.
On the issue of re-sentencing, Mr Holdenson tendered two documents, the first to demonstrate how satisfactory the respondent's conduct had been in complying with the conditions of the intensive correction order. That order has now been in place for about five months and, as counsel submitted, the respondent is obviously entitled to have that brought to his credit when this Court re-sentences. The other document tendered in evidence, without objection I should add, was witness to the respondent's attendance for counselling "on alcohol and other drug issues since the 2nd of January 2002". This document describes the respondent as "committed to his recovery" and as "looking very forward to his new career as a carer". Mr Holdenson submitted that, if we came to re-sentence, we should be alive
to the fact (which he asserted from the Bar table) that while continuing to practise his trade on occasion simply for the purpose of maintaining himself, his life was now re-directed in that he had enrolled in a course on 10 February last which concludes on 20 June next, to be trained as a personal care assistant, working with the intellectually disabled and in aged care. Mr McArdle was content that this further information should be given us and I accept that it should be brought to account in re-sentencing.
Further, I accept that because this is a Director's appeal the sentence imposed may be lighter than that which would otherwise have been imposed (because of "double jeopardy"), the more particularly in this case as the respondent has not hitherto been sentenced to any immediate time in prison and so has not been in custody since he was sentenced last December. That five months of the intensive correction order has already been served does not, of course, preclude our setting aside the sentence imposed last December: if authority be needed, I refer to Director of Public Prosecutions v. Wilson[2]. In saying that the appellant must be given some credit for the five months served of that sentence, I must not be misunderstood: such is not to be reckoned as service under the sentence which I am about to propose, which, if the other members of the Court agree, is to be served additionally to what has already gone before by way of intensive correction order.
[2][2000] 1 V.R. 481.
In the light of the foregoing, I propose that the respondent be re-sentenced to 12 months' imprisonment, with a minimum term of six months. I emphasise that but for the foregoing considerations the sentence would have been a good deal heavier.
BATT, J.A.:
In my view, the sentence imposed reveals such manifest inadequacy, both in the length of the term and in the mode of disposition chosen, as to constitute error in principle warranting this Court's intervention. To elaborate, the scale of the enterprise and the seriousness of the offence meant that, despite the respondent's
voluntary disclosures to police and his not unimpressive rehabilitation, achieved and prospective, primacy in sentencing purposes had to be given to general deterrence, and it was not.
For those brief reasons, as well as those given by Phillips, J.A., I agree that the appeal should be allowed and the respondent re-sentenced as his Honour proposes.
VINCENT, J.A.:
I agree that this appeal should be allowed and the respondent re-sentenced as the presiding judge has proposed, for the reasons advanced by him.
PHILLIPS, J.A.:
The orders of the Court are accordingly as follows:
1. Appeal allowed.
2.Set aside the sentence imposed in the County Court on 6 December 2001 and in lieu order that the respondent be sentenced to 12 months' imprisonment to be reckoned from this day, 2 May 2002, and order that six months of that term be served before the respondent becomes eligible for parole.
The Court declares that in so sentencing the respondent the Court has brought into account that the respondent has already served about five months of the sentence imposed in the County Court on 6 December last and directs that such service is not to be reckoned as service under the sentence now imposed.
(Discussion ensued.)
The Court declares that two days shall be reckoned as time served under the sentence imposed this day and directs that the making of that declaration and its contents be entered in the records of the Court.
An indemnity certificate is granted to the respondent.
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