Ellul v The Queen

[2021] VSCA 203

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0024

PAUL ELLUL	Applicant
v
THE QUEEN	Respondent

---

JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 July 2021
DATE OF JUDGMENT:	23 July 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 203
JUDGMENT APPEALED FROM:	[2020] VCC 1720 (Judge Tinney)

---

CRIMINAL LAW – Sentence – Application for leave to appeal – Cultivating narcotic plant in commercial quantity and theft – TES of 4 years, with NPP of 2 years 4 months – Whether sentencing judge erroneously minimised matters in mitigation – Whether sentencing judge’s treatment of remorse erroneous – Whether judge erred in making findings on the basis of wrong or impermissible assumptions – Errors contended for not reasonably arguable – No reasonable prospect that less severe sentence would be imposed – Application for leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gullaci	Marcevski Lawyers
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

1. The applicant pleaded guilty in the County Court to one charge of cultivating a narcotic plant (Cannabis L) in a quantity that was not less than the commercial quantity (charge 1) and one charge of theft of electricity (charge 2).  On 27 October 2020, following a plea hearing on 26 October 2020, the applicant was sentenced as follows:

Charge on Indictment K13206732	Offence	Maximum	Sentence	Cumulation
1	Cultivation of a narcotic plant (Cannabis L) in a commercial quantity (contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981)	25 years	4 years	Base
2	Theft (contrary to s 74(1) of the Crimes Act 1958)	10 years	7 days
Total Effective Sentence:		4 years’ imprisonment
Non-Parole Period:		2 years 4 months
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		1 day
6AAA Statement:		6 years’ imprisonment with a non-parole period of 4 years 6 months

1. The applicant now seeks leave to appeal on the following proposed grounds:

1.The judge erred when, after listing the principal matters raised in mitigation by the applicant’s counsel, he concluded ‘in truth, there were not that many matters in mitigation’.

2.The judge erred in the way he dealt with remorse in the applicant’s case and the finding he made concerning the applicant’s remorse.

3.The judge erred when he made findings that assumed the applicant had been, or had been intending to, cultivate cannabis for the entire period that he rented the factory.

Circumstances of the offending

1. The applicant’s offending occurred at a factory occupied by him as lessee.  In August 2017, the applicant and another person entered into a lease of the factory for a period of two years.  In October 2018, the applicant became the sole lessee of the factory.  In June 2019, the applicant exercised an option to renew the lease.  The lease was renewed for a further two years.  At the commencement of the lease, the rent was $21,900 per annum. 

1. On 30 November 2019, a neighbour observed flames coming from the factory and called 000.  The Metropolitan Fire Brigade turned up, followed by the police.  Upon entry being gained to the factory, a sophisticated hydroponic cannabis system was uncovered.  This consisted of five steel framed ‘Jungle Room’ tents, set up as rooms within the premises.  There were steel frames, plumbing and duct outlets.  Forty-five cannabis plants, weighing some 92.75 kilograms, were found. 

1. Other items found in the premises included a takeaway food container with the name ‘Paul’ written on the lid.  Additionally, there was an electrical bypass in place — hence the theft charge (charge 2).  Further, as the judge put it, ‘there was the “usual” array of equipment for this sort of concern such as lights, fans, reflective materials and watering equipment’.[1]

   [1]DPP v Ellul [2020] VCC 1720, [10] (‘Reasons’).

1. A number of the items found in the factory were forensically examined, and there was strong DNA evidence linking the applicant to some of these items.

1. The applicant was interviewed by police on 4 December 2019.  He made a ‘no comment’ record of interview, as was his right.  Subsequently, he pleaded guilty at a committal mention in August 2020.

Sentencing reasons

1. The judge commenced his reasons for sentence noting that the applicant was 34 years of age and ‘only [had] a very limited history before the courts’.[2]  He then summarised the circumstances of the offending,[3] before observing that the applicant’s plea of guilty was ‘plainly … a very early plea’.[4]

   [2]Ibid [3].

   [3]Ibid [7]–[13].

   [4]Ibid [14].

1. Next, in a passage that is the subject of proposed ground 1, the judge referred to matters in mitigation in the following terms:

Your counsel raised a number of matters in mitigation.

Principally they were the following:

·        Your early guilty plea;

·        The presence of remorse;

·        The absence of any relevant prior criminal history and what she argued were your good, if not very good, prospects of rehabilitation;

·        The increased custodial burden owing to the COVID-19 Virus and the response to the virus by the prison authorities.

In truth, there were not that many matters in mitigation.[5]

[5]Ibid [17]–[19].

1. The judge then observed that the offence constituted by charge 1 was a ‘category 2 offence’, falling to be dealt with in accordance with s 5(2H) of the Sentencing Act 1991.[6] His Honour then noted the ‘explicit concession’ of the applicant’s counsel that there was no basis to consider a combination-type disposition,[7] and that a term of imprisonment with a non-parole period was required.[8]

   [6]Ibid [20].

   [7]Ibid.

   [8]Ibid [21].

1. Next, the judge referred to submissions made by the prosecutor, which he described as ‘generally uncontroversial’, and which focused on the ‘matters of seriousness in this case’.[9]  These were that the premises that the applicant leased contained ‘more than three times the commercial quantity in a sophisticated set up’;  and that the applicant was ‘the only person charged [who was] conducting this venture for profit’.[10]

   [9]Ibid [22].

   [10]Ibid.

1. The judge then summarised the applicant’s background in some detail.[11]  In brief, the applicant was 34 at the time of sentencing.  He grew up with parents who had emigrated from Malta as adolescents.  He left school at the end of Year 9, completed an apprenticeship as a bricklayer, and then ran his own business.  He changed trades, becoming a crane operator and was involved in some long-term employment before being made redundant after seven years.  He was married and had three children.  He continued to work as a crane operator, but started to use cocaine in 2018.  His marriage failed, and he also had issues with gambling.  For a time, he attempted employment as a concreter, before stopping work in about October 2018.

   [11]Ibid [24]–[34].

1. The judge described the applicant’s decision to cultivate drugs as a ‘commercial decision and … a dreadful one’, as he noted was conceded by the applicant’s counsel on the plea.[12]  The judge noted the applicant’s history to Mr Armstrong (a consultant psychologist who examined the applicant on 15 October 2020), that the applicant had stopped using drugs two months before his arrest in 2019.[13]  He also noted that the applicant had formed a new relationship, obtained the shared care of his three children, and had returned to work as a crane operator (in March 2020).[14]

   [12]Ibid [29].

   [13]Ibid [30].

   [14]Ibid [31]–[32].

1. The judge said that the applicant’s family background did not explain his offending ‘in any way’.[15]  As to the applicant’s criminal history, the judge said:

You have no criminal history of any relevance to my task.  Just some old driving matters.  You had a bit of a passion for street cars and track meets.  Whilst the criminal history you have admitted impedes [your counsel] from submitting that this is your first time before the courts, I put aside the history altogether.  It does not inform my task at all.  Indeed, probably the absence of any serious offending in the past is far more important.[16]

[15]Ibid [24].

[16]Ibid [33].

1. The judge then dealt in more detail with Mr Armstrong’s report.[17]  He noted that the applicant’s counsel did not place any reliance upon the principles in R v Verdins[18] or Brown v The Queen.[19]  The judge noted that the report ‘comment[ed] on the presence of some remorse and the gaining of some insight;  of the desire to provide a better example to your children than this offending provides’.[20]  The judge also noted Mr Armstrong’s opinion that the applicant did not have a ‘deeply entrenched criminal belief system’.[21]  The judge said that there were various treatment recommendations which informed Mr Armstrong’s opinion that the applicant presented as a low risk of reoffending.  As the judge observed, however, much would depend upon the applicant abstaining from drugs — something that has been very difficult for him for a number of years.[22]

   [17]Ibid [35]–[43].

   [18](2007) 16 VR 269.

   [19][2020] VSCA 212.

   [20]Reasons [39].

   [21]Ibid [41].

   [22]Ibid [42].

1. Under separate headings, the judge dealt with the applicant’s plea of guilty, remorse, the effects of the COVID-19 pandemic and rehabilitation.  In light of the issues raised under proposed grounds 1 and 2, it is necessary to set out in full what his Honour said in relation to these topics:

Guilty plea

I will turn now briefly to some of the matters raised on your behalf, firstly to your guilty plea.  I am not going to set out the chronology.  You have pleaded guilty at what I will treat as the earliest stage.  You have taken responsibility for these crimes.  Witnesses have been spared the experience of coming to court either in the Magistrates’ Court for a committal hearing or up in this court for trial.  If follows then that the community has been saved the time, the cost and the effort associated with any contested hearing.  You have in these way facilitated the course of justice.  Your guilty plea also took place in the setting of the interrupted operations of the court brought about by the COVID-19 virus.  Any trial would have been significantly delayed.  I take all these matters into account in mitigation in the ways urged upon me.  Also, the fact that you attended in person upon the police station on the day of arrest and then re-presented voluntarily for interview on a later date.  You did not have to do those things, you just did.

Remorse

Your counsel argues that you are remorseful and she points to your early guilty plea and to your account to Mr Armstrong.  Also to the views expressed on that topic by your former wife and by your father.

A guilty plea is often enough indicative of some remorse.  That is not always the position though.  The case against you was of course an overwhelming one.  That in no way impacts upon the weight I have given to your guilty plea.  That weight is totally unaffected by the strength or otherwise of the case or whether I find that there is remorse or not.

However, the strength of the case may make less strong the claimed inference of remorse flowing from the fact of a guilty plea.  What realistic choice did you have here?  It was your lease.  Your factory.  Your DNA.  You made a no comment interview as was your right but as a result, unlike some cases where there may be an expression of remorse found in the interview, here there is no such thing.  I have Mr Armstrong’s view as to remorse and insight.  I have his quotations from you.  I also have the mention of your regret in your ex-wife’s and father’s letter and the positive changes that they have witnessed.

This was a deliberate and calculated criminal exercise and a serious one at that.  No doubt you wished you had not been caught but you were and then I suppose it is easy enough for anyone to then profess regret.  But regret for what?  For your own position?  For letting down your family?  Well those things would be understandable but they are not remorse.

However, having reread all of the materials, including the two letters that I have referred to, I am prepared to find the presence of some actual remorse in this case.  It is not merely the fact of and stage of the guilty plea here.  I also have your discussions with Mr Armstrong and your dealings with your ex-wife and father.  I take the existence of some remorse into account in mitigation in this case. I am satisfied you know you have made a shocking decision and one that of course you must pay for and I am prepared to find that you do regret that and that you are expressing a level of remorse.

I turn now then to the submissions made as to the impact on the COVID-19 virus.

COVID-19

As I said at one point in discussion yesterday, there is probably no such thing as a good time for a person to be sent to prison.  I am sure that is true.  Well, this is a particularly bad time to be sent there.  The COVID-19 virus and the response to it by those running the prisons has changed prison life.  It will increase your prison burden.  Prison is currently a more stressful environment.

Prisoners cannot make a decision to self-isolate.  Social distancing is not easy in a prison.  No doubt there is worry about catching the virus in such a setting where there is no level of autonomy.

It is very difficult for me to know precisely how the virus or the response to it by those running the prisons will actually impact upon you in the future.  There have been some lockdowns but they do not exist across all prisons, or even all prisoners at a given prison.  I certainly cannot conclude that they would necessarily apply to you in the future.  Visits have already been suspended and so have some courses and programs.  I cannot really know how long those things will persist.

It is impossible for me to forecast the impact of this virus either on those in the community or those in prison.  There had been fears of a massive spread of this virus in a prison setting and thankfully that has not come to pass.  There have actually been very few cases and they have been very well contained.  We have been riding something of a roller-coaster out in the community, as you well know, with movement into, out of and then back into lockdown.  We are seemingly now coming out the other side.  Currently things have looked up a great deal with lowering of daily infections and a gradual opening up of businesses with further relaxations announced yesterday, after in fact I heard the plea, some to take effect at midnight tonight and others to come into force on 8 November.  These are big positives, but they still do not suggest to me that there will be any prospect in the short term of the prison conditions being returned to the pre-COVID-19 setting.  The fact is the virus will not go away and it would surprise me if prisons did not take a cautious approach.  We are adjusting to a ‘new COVID normal’, which will be anything but normal.

So prison life is tougher for those who are sent there with the prospect of less time out of cells, less access to programs and courses and importantly no access to in-person visits.  Also a 14 day isolation when first received as you have been.  None of this is easy and you are a first time prisoner, and not just that but one with family members who you will not be able to see in person, including young children.

Things are being done to try to compensate for the lack of in person visits with access to video visits but they are just not the same.  Your counsel focussed on that aspect of increased burden and that argument of course is made good.

I take into account in your favour the increased burden arising from these various matters that I have raised.

Rehabilitation

I turn now then to your prospects of rehabilitation.

Your counsel argues that you have favourable prospects of rehabilitation.  She said good if not very good prospects.  You are 34 years old with no relevant past history before the courts.  That is more than a decent starting point.  You have a very solid work history.  You had got back into full time employment earlier this year.  You are in a new relationship and you have now come to grips with the loss of your marriage.  There is no suggestion from Mr Armstrong’s report that you hold deeply entrenched criminal views or mindset.  He comments on a level of insight and remorse.  There are as I have said already, the positive statements from your father and your former wife as to the gains you have made and as to the out of character nature of these crimes and the recognition that you have made a big mistake.

As against those matters of course, I have the nature of this offending.  This was serious criminal conduct committed by a mature adult, not some silly teenager.  You have also had a long term issue with drugs and that sort of thing always casts something of a cloud over a person’s future prospects.

You have been arrested, charged and then brought before the courts.  You have pleaded guilty at the earliest opportunity and as I have said, there is some remorse here.

You will have to serve the sentence that I will shortly pronounce.  This whole exposure to being charged and then exposed to the criminal justice system and now, to prison for the first time, will surely serve to deter you to some degree into the future.

Given the nature of your crimes, it is a bit hard not to be just a little bit guarded here.  None of the things I know about you would have suggested that it was likely you would ever turn to crime and serious crime at that, and yet of course, you did.  I have Mr Armstrong’s risk assessment which is predicated to some extent on some things taking place in the future as well as on various protective factors that he speaks of.  I take into account his view.

It is really never that easy to make these assessments of a person’s future prospects.  As far as I can determine though, I believe that you have more than reasonable prospects of rehabilitation and a relatively low risk of engaging in this sort of conduct ever again.  Surely you will have learnt a valuable and salutary lesson here.  You are after all, forfeiting your liberty and for a sizeable enough period.  It will be a very tough experience for you to be separated from your young children in the way that you will be and of course I take that into account as well.  You will not forget that in a hurry.

If you continue to use drugs in the future, well your future prospects will plummet as surely you must know.  I view your future prospects favourably and if pressed to apply an adjective, I would describe them as, at the least, good.[23]

[23]Ibid [44]–[65].

1. The judge then dealt with the relevant sentencing principles.[24]  In the course of this analysis, the judge said that the applicant’s cultivation of a commercial quantity was ‘serious offending’, punishable by a 25-year maximum term of imprisonment.[25]  The judge rejected a submission that the applicant’s offending fell at the lower end of the scale.[26]  In discussing the seriousness of the offending, the judge said:

   [24]Ibid [66]–[85].

   [25]Ibid [66].

   [26]Ibid [67].

It is conceded that you were not some low-level crop sitter or some minor player with little stake in the success of the venture.  We as judges see enough of those players, indeed they make up a large enough share of people brought to this court on indictment.  Even a cursory examination of the very many decisions including very many Court of Appeal decisions will confirm that is so.

This on the other hand was your venture.  Given the nature of this set up, the rent payable on the leased premises and all that I see in the photographs and the summary, you must have had the expectation of making a significant enough amount of money.  I am satisfied of that beyond reasonable doubt.  You had given up your paid work and as your counsel conceded, that legitimate work had a sizeable salary.

The commercial quantity cultivation that I am dealing with is just not consistent with supporting your drug habit.  Maybe some of the proceeds would have been applied to your addiction but it cannot have driven your decision to commit that serious crime.  Your addiction to drugs is not of any significant mitigation.  Your counsel submitted it is really only part of the context and she is right.

I am sentencing you for cultivation and theft on the single date, being the date the crop came to the attention of the police, but as is obviously conceded, your level of culpability can be assessed from the overall context here.  This crop did not just spring to life.  Nor did the set up.  However I must not convert the single date into a between dates charge and make assumptions as to unlawful activity being committed throughout the period of the lease.  Your counsel submitted that you had lawful reasons for entering into the original lease with a need to store cars and you may well have.  She told me those cars were sold and she made plain that you then made a dreadful decision to cultivate and to use the factory for those purposes.

This was an unmistakably sophisticated set-up with a large array of equipment and obvious expense incurred.  You are not able to point to some minimal connection to the crop or to being some poorly paid underling taking all the risks and for little reward.  This was all yours and profit was your motivation.

I am sure you were taking a calculated risk.  You must have weighed up the pros and the cons and considered those risks.  You hoped that you would not be caught.  You knew it was a serious crime to do what you did, there can be just no doubt about that.  I am satisfied of that beyond reasonable doubt.

Monetary reward is at the heart of virtually every cultivation, even those by lowly crop sitters, which you most certainly are not.  You were in this for sizeable monetary reward.  There is just no other explanation for this style offending.

There is no suggestion of any real financial need here.  Finding employment has never been a problem for you.  You had chosen to stop work.

There was no evidence of any disastrous financial situation that might in some way lessen your culpability.  No evidence of for instance a failed business or the need to provide for some critical surgery for a loved one or to fund aged care for an elderly parent or something like that.  Nothing that might at least explain in human terms your decision to offend in this way.  Even if there had been financial need in that sort of way, it would not be greatly mitigatory, but that is not the setting here at all.  Your counsel pointed to the combination of profit and your addiction to drugs.  Your addiction to drugs, as I have said already is not greatly mitigatory.  I do accept you were in a difficult phase of your life dealing with the reality of separation.  There is however no real reduction in your culpability in this case.  Your culpability is actually very high.[27]

[27]Ibid [68]–[76].

1. The judge returned to the applicant’s prospects of rehabilitation, saying:

Sentencing always involves the balancing of a number of purposes or principles.  One of the purposes relates to your rehabilitation.  That is often overlooked in the popular media, but it is one of the purposes of sentencing and I cannot overlook it.  I have to take into account your prospects of rehabilitation.  As I said a short time ago, I view those prospects favourably.  You are far more than just the person who has committed these serious but out of character crimes as the references placed before me make very plain.[28]

[28]Ibid [79].

1. The judge then referred to denunciation, just punishment, proportionality, specific deterrence and general deterrence.[29]  In relation to specific deterrence, the judge again noted that the applicant had a relatively low risk of reoffending.  The judge said that he thought that the applicant had ‘at least good prospects into the future’, and it was therefore open to him to reduce the weight to be given to specific deterrence.[30]  He said, however, that general deterrence was a different matter.[31]  He said that people must understand that commercial quantity cultivation is a serious crime and the court must send a ‘message loud and clear to others in the community who might be minded to commit this sort of serious and prevalent offence’.[32]

   [29]Ibid [80]–[85].

   [30]Ibid [83].

   [31]Ibid [84].

   [32]Ibid [84]–[85].

1. Finally, the judge dealt with current sentencing practices by reference to authority and relevant statistics, before concluding:

As I have said already, yours was not some low-level venture.  You were not some low-level or bit player here.

I am not to make judgements as to the relative harmfulness of the given drug.  This is a quantitative based regime.  Commercial quantity for cannabis is 25 kilograms or above, or 100 plants.  You had over 92 kilograms so well over three and a half times the commercial quantity.  Your counsel’s submission focussed on the plant number and the fact that it fell below the commercial quantity on that measure.  Well it did.  One could have a 100 plants of very small size weighing only a few kilograms.  She clarified her submission by saying that your crop was by any measure a long way removed from large commercial quantity and of course that is true.  I am not dealing with you for that crime.

The fact is you had a decent enough number of plants.  The weight here comfortably exceeds commercial quantity.  Then there is the whole nature of the set-up.  It was a sophisticated and professional arrangement.  A series of tent like rooms set up within a leased factory.  A factory you were leasing.  Essentially a cannabis factory.

It was essentially a cannabis factory.  Your cannabis factory.  There was an electrical bypass.  This was a quite serious example of a serious crime and it was your venture.  On reflection, it probably would be more serious if you were the head of a large criminal hierarchy for in such a setting as that, you would be engaging or recruiting other players into serious offending in your enterprise.  That is not what I am dealing with.  What you were doing though was quite serious enough.

The theft of electricity is obviously far less serious and has a lower maximum.  The case law in this area demonstrates that ordinarily some cumulation is warranted.  Here the quantum is not established or even estimated and the theft relates to that single day.

I have given consideration to the overall effect of the sentences imposed by me.  I have engaged in a last look at the overall effect of the sentences in endeavouring to avoid a sentence that might be crushing upon you and to ensure that the overall effect is consistent with your overall actual criminality.  Regrettably though, your criminality was high here.[33]

[33]Ibid [104]–[109].

Ground 1:  the judge’s statement that ‘in truth, there were not that many matters in mitigation’

1. As I have already noted, the judge’s statement that ‘in truth, there were not that many matters in mitigation’ immediately followed the judge’s identification of the principal matters relied upon in mitigation by the applicant’s counsel on the plea:  namely, the applicant’s early guilty plea;  the presence of remorse;  the absence of any relevant prior criminal history;  the applicant’s good prospects of rehabilitation;  and the increased custodial burden caused by COVID-19.  Under this proposed ground, the applicant advanced two arguments as follows:

(1)The judge’s conclusion, read in context, was a statement by his Honour that he did not believe that the principal matters raised in mitigation were all made out.  Such a conclusion was wrong because the judge in fact found that all of the matters which he listed were established.[34]

(2)Alternatively, if the judge’s statement was simply an observation that the principal matters relied upon in mitigation ‘were not that many’, then the judge erred by deprecating and/or downplaying the matters that could properly be raised in mitigation on behalf of the applicant.  The applicant submitted that, while there may not have been many matters in mitigation, those that the judge referred to (and accepted) were ‘nonetheless powerful’.

[34]Ibid [14], [32], [33], [44] and [51]–[57].

1. The observation made by the judge that, ‘in truth, there were not that many matters in mitigation’, needs to be read in the context of the whole of what were very detailed and comprehensive reasons for sentence.  When one has regard to all of the circumstances of the offending and all of the applicant’s personal circumstances, the judge’s observation was one which he was well entitled to make.

1. The suggestion that, in making the observation sought to be impugned, the judge did not accept one or some of the principal matters relied upon, but then went on to find that the not accepted matter was (or the not accepted matters were) in fact established, is totally without merit.  The judge carefully, and at some length, dealt with each of the matters relied upon by the applicant in mitigation.  With the exception of remorse (which I will come to when dealing with proposed ground 2) the judge made findings about the relevant mitigatory factors, which findings are not sought to be (and could not be) impugned by the applicant.  As the judge observed, the applicant:

·pleaded guilty at the earliest opportunity;

·had no prior convictions of any relevance, and was treated as a man with no prior convictions;

·had voluntarily handed himself into police, not once, but twice;

·had ‘at the least, good’ prospects of rehabilitation;

·had made significant progress to rehabilitate himself since his arrest;

·had shown remorse;

·had a solid work history;  and

·was ‘a relatively low risk of engaging in this sort of conduct ever again’ — the sentencing judge saying that he would ‘be quite surprised’ if the applicant did so.

1. The applicant’s first argument amounts to an assertion that the judge reached one conclusion on issues of mitigation, before then reaching the diametrically opposite conclusion (without any acknowledgment or explanation for the change) in a later part of his Honour’s reasons.  That assertion simply cannot be accepted on any fair reading of these high quality reasons for sentence.

1. Similarly, there is no substance in the applicant’s second argument.  In truth, the applicant’s second argument (if not the whole of his argument under this proposed ground more generally) is a complaint about the weight the judge gave to the mitigatory factors which the judge accepted existed in this case.  Reading the reasons as a whole, there is no substance in any suggestion that the judge somehow undervalued the various matters in mitigation which he found had been established.  To the contrary, his Honour’s reasons show that proper weight was given to each of the mitigatory matters relied on and established by the applicant.

Ground 2:  the judge’s treatment of remorse

1. The applicant’s complaint under this proposed ground was that, rather than starting from a neutral point and seeing if remorse could be made out (and then assessing to which extent it may have existed), the judge started from a negative point of view, talking about the difficulties in establishing remorse and explaining what was not, in his opinion, remorse.

1. The applicant submitted that the judge approached remorse ‘through a negative prism, which was unfair to the applicant and affected the ability of the applicant to demonstrate remorse’.  The applicant characterised the judge’s finding as being prepared ‘to reluctantly conclude there was “some remorse” and that the applicant was “expressing a level of remorse”’.  It was then submitted that ‘this finding undermined the value of remorse actually demonstrated’.  In making that submission, the applicant relied upon his plea of guilty;  the fact that the plea was entered at the earliest opportunity;  the applicant handing himself into police twice;  Mr Anderson’s report which stated that the applicant had shown remorse and gained some insight;  and expressions of remorse the applicant made to his ex-wife and father as set out in letters tendered on the plea — letters which the sentencing judge described as ‘very valuable’.[35]

   [35]Ibid [32].

1. In addition to submitting that a more positive finding ought to have been made concerning remorse, the applicant submitted that the judge ‘fixated on the strength of the case [against him]’.  This led, so it was submitted, to the judge making a ‘bare minimum finding of remorse’.  The applicant advanced this submission as a second basis for contending that the judge erred in not making a more positive finding on the issue of remorse.

1. There is no substance in any of these submissions.  The judge dealt carefully, and at some length, with the issue of remorse.  Moreover, there is nothing to suggest that his Honour was only prepared ‘to reluctantly conclude’ that there was ‘some remorse’.  The judge noted that a guilty plea is ‘often enough indicative of some remorse’.  Having considered all of the evidence, he then said that he was ‘prepared to find the presence of some actual remorse’.[36]  More importantly, the judge concluded that this ‘actual remorse’ was founded on ‘not merely the fact of and stage of the guilty plea here’.[37]

   [36]Ibid [49] (emphasis added).

   [37]Ibid.

1. From his discussion of the issue of remorse, it is plain that the judge took into account all of the relevant evidence and made a finding which was not in any sense only the ‘bare minimum finding of remorse’.  The judge accepted that there was actual remorse, with the applicant knowing that he had made ‘a shocking decision’ and one that he must pay for.[38]

   [38]Ibid.

1. The submission that the judge erred in commencing his analysis of remorse at the wrong starting point cannot be accepted.  The critical question is whether there was any error in the judge’s ultimate conclusion on the issue of remorse.  The order in which his Honour referred, in his written reasons, to matters relevant to the issue of remorse does not indicate the commencement of an analysis at some ‘wrong starting point’.  As was said by Gleeson CJ, albeit in a different context, in Appellant S106/2002 v Minister for Immigration and Multicultural Affairs:[39]

Decision-makers commonly express their reasons sequentially;  but that does not mean that they decide each factual issue in isolation from the others.  Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything.  Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.[40]

[39](2003) 77 ALJR 1165.

[40]Ibid 1169 [14].

1. Similarly, the order in which the judge referred to matters relevant to remorse in his Honour’s reasons does not indicate any error in the judge’s analysis or ultimate conclusions.  It might be different in a case where a judge says in his or her reasons (wrongly) that a relevant analysis must begin at a particular (and incorrect) starting point.  But that is not this case.

1. In the present case, the judge dealt with a number of matters relevant to remorse.  The order in which they appear in his reasons is not material to the conclusion ultimately reached.  There is no basis for considering that the judge’s ultimate conclusion (reached after considering all of the relevant matters) was affected by the order in which his Honour dealt with matters in his reasons.  More importantly, when one looks at all of the evidence relevant to the issue of remorse, which (as I have already said) was discussed by the judge in considerable detail, it is plain that the assertion, that his Honour’s conclusions on remorse were affected by error, is not reasonably arguable.

1. In oral argument, counsel for the applicant submitted that the judge erred in taking into account the strength of the Crown case against the applicant on the issue of remorse.  Specifically, it was submitted that the judge’s approach was contrary to what this Court said in Phillips v The Queen.[41]  In support of this submission, the applicant relied upon a passage in the joint judgment of Redlich JA and Curtain AJA[42] wherein, after saying that the strength of the Crown case may cast doubt on the extent of an offender’s remorse ‘and so result in a lesser discount than one would otherwise allow’,[43] their Honours said:

But where there is uncontradicted positive evidence, or an assertion from the Bar table which is accepted, that such subjective criteria[44] are present, the weight of the Crown case will not ordinarily inform the question whether the offender is remorseful … .[45]

[41](2012) 37 VR 594 (Maxwell P, Nettle, Redlich and Harper JJA and Curtain AJA) (‘Phillips’).

[42]With whom Maxwell P agreed.

[43]Phillips 614 [70].

[44]Their Honours’ reference to ‘subjective criteria’ was a reference to remorse, acceptance of responsibility and willingness to facilitate the course of justice: see 604–5 [36].

[45]Phillips 615 [72].

1. The applicant submitted that after the judge noted that the Crown case was ‘an overwhelming one’,[46] and then said that this in no way impacted upon the weight that his Honour gave to the guilty plea (as his Honour put it, that weight being ‘totally unaffected by the strength or otherwise of the case or whether … there is remorse or not’),[47] the judge erred when he then went on to say:

However, the strength of the case may make less strong the claimed inference of remorse flowing from the fact of a guilty plea.  What realistic choice did you have here?  It was your lease.  Your factory.  Your DNA.[48]

[46]Reasons [46].

[47]Ibid.

[48]Ibid [47].

1. This submission must be rejected.  In this case, the issue of the applicant’s remorse was not clear-cut and unqualified.  The evidence of the applicant’s remorse, and the level of that remorse, thus required an evaluation by the judge — one which his Honour’s reasons for sentence demonstrate that he undertook in some detail.

1. As his Honour noted, the applicant made a no comment record of interview (as was his right) ‘but as a result, unlike some cases where there may be an expression of remorse found in the interview, here there [was] no such thing’.[49]  Having made that observation, the judge then immediately made specific reference to the applicant’s history given to Mr Armstrong and the applicant’s ‘mention of [his] regret in [his] ex-wife’s and father’s letter and the positive changes that they had witnessed’.[50]

   [49]Ibid.

   [50]Ibid.

1. None of his Honour’s analysis of the evidence, and the submissions made to him, on the issue of remorse was in any way contrary to what this Court said in Phillips.[51]  The analysis performed by the judge was a conventional one which was required to be undertaken having regard to the evidence tendered, and submissions made, on the plea.  The judge’s finding as to the level of the applicant’s remorse is unexceptionable.  The judge’s reasons do not disclose any error either in his Honour’s treatment of the issue of remorse or in his Honour’s ultimate conclusion on the issue.  The contrary is not reasonably arguable.

Ground 3:  did the judge err in making findings which assumed that the applicant had been, or had been intending to cultivate, cannabis for the entire period that he rented the factory?

[51]See in particular Phillips (2012) 37 VR 594, 604–5 [36] and 615 [72].

1. The applicant’s complaint under this proposed ground arises from the following passage in the judge’s reasons, made under the heading ‘General remarks’:

This on the other hand was your venture.  Given the nature of this set-up, the rent payable on the leased premises and all that I see in the photographs and the summary, you must have had the expectation of making a significant enough amount of money.  I am satisfied of that beyond reasonable doubt.[52]

[52]Reasons [69].

1. The applicant submitted that this passage in the reasons tied the applicant’s initial entry into the lease of the factory with the intent of making money out of cultivating cannabis (noting that the original lease was entered into in August 2017 at a rent of $21,000 per annum).  The applicant submitted that it was not open to the judge to take this approach, the lease having been entered into more than two years before the cannabis the subject of charge 1 would have commenced growing.  He also submitted that such an approach ignored the fact that the applicant had entered into the original lease as one of two lessees. 

1. There is no substance in the applicant’s complaint.  As the judge made clear, he sentenced the applicant for cultivation and theft on the single date charged.[53]  While the judge noted the obvious fact that the applicant’s cannabis crop ‘did not just spring to life’,[54] he specifically noted:

However I must not convert the single date into a between dates charge and make assumptions as to unlawful activity being committed throughout the period of the lease.  Your counsel submitted that you had lawful reasons for entering into the original lease with a need to store cars and you may well have.  She told me those cars were sold and she made plain that you then made a dreadful decision to cultivate and to use the factory for those purposes.[55]

[53]Ibid [71].

[54]Ibid.

[55]Ibid.

1. Proposed ground 3 asserts that the judge erred when he made findings that assume that the applicant ‘had been, or had been intending to, cultivate cannabis for the entire period that he rented the factory’.  The short answer to this proposed ground is that the judge made no such finding.  Notwithstanding the statements made by the judge in the passage sought to be impugned by the applicant, the error contended for by the applicant is not reasonably arguable.  On a fair reading of the whole of his Honour’s reasons, it is plain that the judge sentenced the applicant for the offending to which he pleaded guilty, and no more.

No reasonable prospect of a lesser sentence being imposed

1. For the above reasons, the applicant’s proposed grounds of appeal are not reasonably arguable.  That is sufficient to dispose of the present application. 

1. However, s 280(1) of the Criminal Procedure Act 2009 permits this Court to refuse an application for leave to appeal against sentence if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed.

1. The judge correctly observed that the applicant’s offending was ‘not some low-level venture’ and the applicant was ‘not some low-level or bit player’.[56]  As his Honour also said, the weight of the applicant’s crop ‘comfortably exceed[ed] the commercial quantity’;  and the set-up was ‘a sophisticated and professional arrangement’.[57]  This was a serious example of serious offending.  Giving appropriate weight to all of the matters in mitigation and all of the applicant’s personal circumstances, it is difficult to see how the judge could have imposed any lesser sentence.

   [56]Ibid [104].

   [57]Ibid [106].

1. In all of the circumstances, the sentence imposed by the judge was, by any standard, moderate.  Having regard to the seriousness of the applicant’s offending, and giving appropriate weight to the applicant’s personal circumstances and the matters in mitigation to which I have already referred, there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the judge.  That is so, even if the Court were to conclude that a more positive finding should have been made in the applicant’s favour in relation to the issue of remorse.  Specifically, a sentence of 4 years’ imprisonment with a non-parole period of 2 years and 6 months, for an offence carrying a maximum term of imprisonment of 25 years,[58] can only be regarded as moderate in all the circumstances for this offending, even if one could say that, on the evidence, the applicant demonstrated significantly more remorse than the judge found.[59]

   [58]Considering charge 1 on its own.

   [59]See s 280(2) of the Criminal Procedure Act 2009.

Conclusion

1. The application for leave to appeal will be refused because none of the applicant’s proposed grounds of appeal are reasonably arguable, and there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed in any event.

- - -