Failla v The King
[2025] VSCA 132
•13 June 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0029 |
| ANTHONY FAILLA | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | EMERTON P and BOYCE JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 May 2025 |
| DATE OF JUDGMENT: | 13 June 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 132 |
| JUDGMENT APPEALED FROM: | DPP v Failla [2023] VCC 2386 (Judge Parrish) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Cultivating a commercial quantity of narcotic plant (cannabis) – Whether sentencing judge misapprehended weight of cannabis – Whether sentence imposed manifestly excessive – Offender leased property used to cultivate cannabis – Judge misapprehended weight – No different sentence imposed – Sentence not wholly outside permissible range – Leave granted – Appeal dismissed.
Osman v The Queen [2021] VSCA 176, followed; Nguyen v The Queen (2016) 311 FLR 289; Nguyen v The Queen [2017] VSCA 286; Nguyen v The Queen [2018] VSCA 322; Nguyen v The Queen [2019] VSCA 134; Vocaj v The King [2023] VSCA 242; Dang v The Queen [2020] VSCA 24; Le v The Queen [2021] VSCA 220; Nguyen v The Queen (2021) 301 A Crim R 1, referred to.
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| Counsel | ||
| Applicants: | Mr J Gullaci SC | |
| Respondent: | Ms K Hamill | |
Solicitors | ||
| Applicants: | Stary Norton Halphen | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
EMERTON P
BOYCE JA:
Introduction
On 19 December 2023, the applicant was sentenced in the County Court. He was then aged 46. He had pleaded guilty to the following offences on indictment, namely, cultivation of cannabis in not less than a commercial quantity, theft and knowingly dealing with the proceeds of crime. This offending took place in October 2021. The applicant was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
Indictment M12071883 1 Cultivation of narcotic plants — commercial quantity[1] 25 years 3 years and 6 months Base 2 Theft[2] 10 years 6 months 2 months 3 Knowingly dealing with proceeds of crime[3] 15 years 8 months 4 months Total Effective Sentence: 4 years’ imprisonment Non-Parole Period: 2 years and 4 months Pre-Sentence Detention Declaration pursuant to s 18(1) of the Sentencing Act 1991: 19 days Section 6AAA Statement: 5 years’ imprisonment Other Relevant Orders: Forfeiture order and disposal order [1]Contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’).
[2]Contrary to s 74(1) of the Crimes Act 1958.
[3]Contrary to s 194(2) of the Crimes Act 1958.
The applicant applies for leave to appeal against sentence. His proposed grounds of appeal are as follows:
Ground 1 – In passing sentence for charge 1, the Sentencing Judge erred by finding that the weight of cannabis involved was 301.7 kg.
Ground 2 – The individual sentences imposed on charge 1 and 2, the orders for cumulation on charge 2 and 3, the total effective sentence and the non‑parole period are manifestly excessive.
Particulars:
The following matters are relied on:
a) The role played by the offender;
b) The overlap between charge 1 and 2;
c) The limited alleged liability under charge 2;
d) The relationship between charge 1 and 3;
e) The personal circumstances of the applicant and the matters in mitigation.
We would, for the reasons that follow, grant the applicant leave to appeal but dismiss the appeal.
The offending
On 1 October 2021, police executed a warrant at a property owned by a company in respect of which the applicant was the sole director, secretary and shareholder. It was a farming property on the outskirts of Melbourne. The applicant resided elsewhere. There was a large disused factory on the property. The property was surrounded by overgrown trees and shrubs. Police forced entry into the factory. There they found multiple wooden crates containing soil and vegetable matter. The vegetable matter bore the appearance of cannabis. There were also boxes containing fans, LED grow lights, and plastic tubing.
Inside the factory was an internal area secured by a padlocked door. Inside this area were a number of rooms lined with refrigeration and freezer insulation panelling. Five of the rooms contained cannabis plants, in different stages of growth. These plants were being grown hydroponically. Two of the rooms were used for drying. In one room there was cannabis from a recent harvest, found in a bucket and on drying racks.
In all, there were 320 plants weighing 266.91 kg, as well as some separate loose dry cannabis that weighed 301.7 g (charge 1).[4]
[4]The threshold for a commercial quantity of cannabis is 25 kg or 100 plants: Drugs Act, sch 11 pt 2.
The applicant’s DNA was found on blue disposable gloves, a gardening glove, and a cap located inside the factory.
Seven rooms were equipped with lamps, ballasts and exhaust fans. An electricity bypass had been installed. The estimated use of unmetered electricity was 2,282.25 kw per day (charge 2).
Later on, the applicant arrived at the property and he was arrested by police. He was found with $2,000 cash in his pocket and $45,600 cash located in a glovebox underneath the driver’s seat of his car (charge 3). The applicant was taken to a police station and interviewed. He made a ‘no comment’ record of interview.
The plea
The defence
The applicant submitted that he had leased the building containing the hydroponic operation to some associates of his. He submitted that he had understood, at least initially, that his tenants needed storage space but later became aware that his tenants were growing cannabis. The applicant did nothing to stop what was occurring on his property. Instead, he gave assistance to his associates by continuing to let the property to them. He received increased rent and a supply of cocaine in return. He did this in full knowledge that the hydroponic cultivation process was ongoing. He would also, very occasionally, attend the property and assist with the actual process of cultivation. The applicant submitted that the cash found in his possession was rent money received from his tenants. This money represented the proceeds derived from the sale of an earlier crop.
At the time of the offending the applicant ran a food business with his sister. The business had numerous employees, but it was in financial difficulty. The applicant was also experiencing marital difficulties. On the strength of expert opinion tendered on the plea,[5] the applicant submitted that he was suffering from numerous disorders at the time of his offending. These included undiagnosed ADHD, a blood disorder (low haemoglobin and iron levels) as well as untreated depression and anxiety.[6] The applicant submitted, based on this expert opinion, that these conditions had deprived him of the ability to exercise proper judgment. While the applicant eschewed any reliance on R v Verdins (‘Verdins’)[7] in this particular respect, it was still contended that the applicant’s moral culpability should be seen as lowered. The applicant argued that he had used drugs and alcohol to alleviate symptoms associated with his predicament at the time.
[5]The applicant tendered two psychological reports (one from the applicant’s treating psychologist), a report of a consultant psychiatrist, a medical report and a report from a ‘Holistic Counsellor, Reiki Master, Trauma Specialist and Health Coach’.
[6]There were also diagnoses of Adjustment Disorder, Stimulant Use Disorder and Alcohol Use Disorder.
[7](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
The applicant described his arrest as a ‘blessing’. He argued that his release on bail had allowed him to resurrect his business and seek proper treatment for his various disorders.
The applicant submitted that he had had a difficult upbringing: his mother was controlling, and his father emotionally absent. The applicant was shy and was bullied at school. He submitted that he now represented a very low risk of re‑offending. He was a supportive husband, and a stable and loving father to three daughters.[8]
[8]Two daughters were from a previous relationship. The applicant had a new child to his current partner.
The offence of cultivation of cannabis in not less than a commercial quantity (‘commercial cultivation’) qualified as a ‘category 2 offence’.[9] It thus attracted a custodial order[10] (other than a term of imprisonment combined with a community correction order) unless a relevant exception was established. Much of the plea centred on whether the judge was persuaded that there were ‘substantial and compelling circumstances that are exceptional and rare’ in accordance with s 5(2H)(e) of the Sentencing Act 1991 (‘Sentencing Act’). If the judge was persuaded of such circumstances it was open to impose a sentence other than a custodial order (as defined). The applicant contended that, in combination, the circumstances of his case were sufficient to satisfy that exception.
[9]See the Sentencing Act 1991, s 3(1) (definition of ‘category 2 offence’).
[10]See ibid pt 3 div 2.
The applicant had no prior convictions. He submitted that his plea was ‘early’, despite his engagement in a contested committal, and that he was entitled to a discount in accordance with Worboyes v The Queen (‘Worboyes’).[11] The applicant argued that evidence tendered on the plea established his remorse. It was submitted that if the applicant were to be imprisoned, this would have a negative effect upon his three children and the children’s mothers. It would also harm the applicant’s business and, in consequence, the welfare of his employees. The applicant argued that this effect upon third parties amounted to ‘exceptional circumstances.’[12] It was submitted that if the applicant was imprisoned, the burden of this effect on third parties would weigh upon him. The applicant submitted that his mental state was likely to deteriorate in custody.[13] It was argued that the 18, or so, days that the applicant had already spent in custody (by way of pre‑sentence detention) had had a salutary effect. It was submitted that the applicant’s prospects of rehabilitation were ‘almost perfect’.
[11](2021) 96 MVR 344; [2021] VSCA 169 (‘Worboyes’).
[12]See Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105.
[13]Reliance was placed, in this respect, on limbs 5 and 6 of Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
The applicant ultimately contended for the imposition of a community correction order; imposed either in isolation, or combined with a term of imprisonment.
The prosecution
The prosecutor submitted that the applicant’s criminality was in the ‘high range of seriousness of this offending’. The prosecutor disputed that the exception contained in s 5(2H)(e) of the Sentencing Act had been satisfied. It was disputed that any hardship that might relevantly be caused to third parties was ‘exceptional’. The prosecutor conceded, however, that limbs 5 and 6 of Verdins were engaged. It was submitted that only a custodial term (a head term with a non‑parole period) could meet the seriousness of the present case.
The reasons for sentence
In view of the applicant’s proposed ground 1, it is necessary to extract what the judge said concerning the quantity of cannabis cultivated by the applicant:
The cannabis recovered by police at the premises was as follows:
Room 3 – 27 cannabis plants weighing 71.32 kilograms.
Room 4 – 27 cannabis plants, weighing 80.56 kilograms.
Room 5 – 75 cannabis plants, weighing 30.42 kilograms.
Room 8 – 45 cannabis plants, weighing 75.60 kilograms.
Room 9 – 146 cannabis plants, weighing 9.01 kilograms.
Police located a bucket of loose cannabis in Room 6 and on drying racks in the same room.
The total weight of the 320 cannabis plants was 266.91 kilograms, together with the loose dry cannabis, weighing a total of 301.7 kilograms (Charge 1).[14]
[14]DPP v Failla [2023] VCC 2386, [4] (emphasis added) (‘Reasons’).
The judge accepted that the applicant’s pleas were ‘early’, and that the applicant had neither previously, nor subsequently, offended. The judge gave ‘[s]ome allowance’ for the difficulties experienced by the applicant in custody on account of the COVID‑19 pandemic. The judge noted the prosecution’s acceptance that the applicant was entitled to a Worboyes reduction. The judge recorded that the applicant had ‘expressed remorse frequently in respect of [himself], [his] family and business’. However, the judge considered that the applicant had demonstrated remorse to a ‘lesser degree’ when it came to ‘an appreciation of the wrongfulness of [the applicant’s] offending and its impact on potential victims, that is, the potential users of cannabis’. Even so, the judge accepted that the applicant’s remorse was ‘genuine’, and that his prospects of rehabilitation were ‘very good’.[15]
[15]Reasons, [19](a)–(c), (e), (h), [51].
The judge rejected the applicant’s case based on third‑party hardship; but accepted that the plight of the applicant’s children, the children’s mothers and his business would weigh upon the applicant in custody.[16]
[16]Reasons, [19](f).
The judge was not persuaded that there were ‘substantial and compelling circumstances that are exceptional and rare’ in accordance with s 5(2H)(e) of the Sentencing Act. Thus the judge considered that he was precluded from imposing a non‑custodial sentence.[17]
[17]Reasons, [31].
The judge made extensive reference to the expert opinion that had been tendered on the plea. To repeat, this evidence concerned the various disorders suffered by the applicant and their tendency to impact upon the applicant’s ability to exercise proper judgment. The judge referred to the treatment that had been sought by the applicant as well as the other rehabilitative steps that had been taken.[18] The judge accepted that Verdins ‘Principles 5 and 6’ were ‘enlivened’.[19]
[18]Reasons, [15]–[16].
[19]Reasons, [19](d).
The judge made reference to various character references that had been tendered on the plea. These were from work colleagues, family and friends. They spoke of the applicant’s remorse and rehabilitation.[20]
[20]Reasons, [9]–[10].
The judge noted that charge 1 was ‘very serious’. Relevantly, again for the purposes of the applicant’s proposed ground 1, the judge noted that ‘[i]n determining the seriousness of the offence, the weight or amount of the drugs involved is a factor of some importance’.[21] The judge then stated as follows:
In the circumstances of this matter, the amount of cannabis found at the premises when police attended on 1 October 2021 was 301.7 kilograms. As already noted, pursuant to Part 3 of Schedule 11 of the Drugs Poisons and Controlled Substances Act 1981, possession of a commercial quantity of cannabis is defined to be 25 kilograms or more, or, alternatively one hundred plants. The weight found in the premises was approximately twelve times the commercial quantity weight. Furthermore, there were 320 cannabis plants, which is over three times the commercial quantity of such drug.[22]
[21]Reasons, [37] (emphasis added), citing Lieu v The Queen (2016) 263 A Crim R 173, 185 [42] (Beach and Kaye JJA); [2016] VSCA 277.
[22]Reasons, [38] (emphasis added).
The judge considered that the hydroponic set‑up found at the applicant’s premises was ‘reasonably sophisticated’, and that ‘the weight of the cannabis [was] significant’. The judge thought it ‘difficult’ to identify the applicant’s role with precision. But the judge did accept that the applicant was ‘not at the top of any hierarchy involved in the cultivation of the cannabis’.[23] The judge made the following findings pertinent to the applicant’s role in the cultivation:
(a) the premises where the cannabis was cultivated was situated on a property owned by a company of which you were a director/secretary and shareholder;
(b) although appreciating it is your instructions to your counsel as to how the enterprise commenced, I do accept that you were approached by ‘friends’ to ‘rent’ the premises and that you had no understanding at that time that it was intended to ultimately to be a place where cannabis was cultivated;
(c) however, it is also clear that, on your own admission, you became aware ‘after some time’ — or ‘a matter of months’ — that the premises were being used for the cultivation of cannabis. On finding that out, you acquiesced in the situation, in part because those ‘renting’ the premises were supplying you with cocaine at that stage, together with a promise that the ‘rent’ would be increased and in part because of fear of consequences if you sought to bring it to an end. I consider that there clearly was a financial motivation to acquiesce in the situation, given that you were going to obtain financial reward from the renters. Of course, such situation continued until the execution of the warrant on 1 October 2021;
(d) furthermore, there is no issue that you did have some role in the cultivation, as is made plain by the police locating blue disposable gloves, a gardening glove and cap, which, on DNA analysis, showed that you would be overwhelmingly likely to be a contributor to the DNA found. In this respect, when the Court queried your counsel about this aspect of the matter, it was submitted that your role was a ‘minor role’.
After careful consideration, I tend to accept such view, bearing in mind that, at the time of your offending. you were not living at the premises but, rather, at [the applicant’s home address], and also, as is made clear from a variety of sources, you were very much involved in developing your business with your sister and it appears unlikely you were a regular attender at the premises;
(e) the $45,600 was described by your counsel as delayed rent for the premises after the profit made by the cannabis. Indeed, there was no evidence before the Court as to what that represented in terms of a monthly amount, weekly amount, or whatever, over what period. In this sense, you clearly profited from the cultivation of the cannabis;
(f) I do find that the leasing of the premises was for monetary gain, in circumstances where your commercial interests were pressed for funds.[24]
[23]Reasons, [42]–[43].
[24]Reasons, [44].
The judge considered that, in terms of ‘objective gravity’, the applicant’s offending was to be assessed at ‘higher than midrange, but not the most serious example of such offending’. The judge accepted the opinions of the various experts whose reports had been tendered on the plea. The judge therefore considered that the applicant’s moral culpability was reduced. This was because the applicant’s judgment, at the time of the offending, had been impacted by his ADHD, his blood disorder, his use of alcohol and cocaine, and the financial stress and pressure that had been placed upon the applicant by his family. But the judge considered that the applicant’s offending was not ‘one impulsive act’. The offending had continued ‘over a period of time’.[25]
[25]Reasons, [46]–[47].
Summing up the rehabilitative steps that had been taken by the applicant, in the post‑offence period, the judge observed:
In particular, I do accept that, since your offending and your brief period of imprisonment, which you found difficult, you have made serious and genuine attempts to rehabilitate yourself through attending, in particular, your treating psychologist, your holistic adviser, your treating psychiatrist and, indeed, when necessary, your general practitioner. From all accounts, including opinions from those treaters and, indeed, observations of others, you have made large steps towards rehabilitation by coming off drugs by ceasing cocaine use and moderating your alcohol use. I do consider that, when released from prison, your risks of re‑offending are very small. To this end, I do not consider that specific deterrence plays any significant role in the sentencing matrix.[26]
[26]Reasons, [52].
The judge then moved to the circumstances of the theft. In respect of this charge (charge 2), the judge said:
In relation to Charge 2, although it is made clear that, as a result of the electrical bypass and the estimated use of stolen electricity of 2,282.25 kilowatts per day, I have no evidence before me as to what the monetary value of that is per day, or, indeed, over what period it is said that that electricity was stolen. I also note that you have no prior convictions — certainly no prior convictions for dishonesty offences involving theft and the like. I also accept that there was no evidence that you were directly involved in either arranging or playing any role in setting up the bypass system. However, obviously enough, the bypass system was an integral part of the cultivation of the cannabis.[27]
[27]Reasons, [53].
Concerning the proceeds of crime charge (charge 3), the judge observed:
In relation to Charge 3, although there is no issue that you received $45,600, said to be for ‘past rent’, there is no evidence which establishes, if this was rent paid, over what period it covers or at what rate was leased per week or month. In any event, from what your counsel submitted, even in the event that it is said to be rent for the premises, such would appear to be paid after profit was obtained in relation to the cannabis crop. Again, there is no evidence whatsoever that you had any role in the disposition of the crop in any form. The Court is left with the situation that you have pleaded guilty to dealing with proceeds of crime to the amount of $45,600, which has come about from the cultivation of cannabis.[28]
[28]Reasons, [54].
Proposed ground 2
It is convenient to commence with consideration of proposed ground 2.
Applicant’s submissions
The applicant submitted that in view of the findings expressed by the sentencing judge,[29] a term of imprisonment of 3 years and 6 months for the offence of commercial cultivation was manifestly excessive. It was submitted that in view of the limited role played by the applicant, the difficulties and disorders he experienced at the time of the offending, his lack of prior convictions and the significant steps taken by him towards rehabilitation, this particular sentence was wholly outside the range.
[29]In particular, those referred to at [25]–[27] above.
In respect of the charge 2 sentence, it was submitted that a term of imprisonment of 6 months was also manifestly excessive. This was especially so in light of the fact that, as pleaded in the relevant charge on the indictment, the theft had occurred on a single day. It was acknowledged that the commission of this theft could not be viewed as an isolated occurrence. It was submitted, also, that it was not open to the sentencing judge to cumulate any part of the charge 2 sentence. It was argued that an electricity bypass is an ‘essential feature’ of any hydroponic crop.
The applicant did not complain about the length of the individual term imposed on charge 3. However, it was submitted that it was not open to the judge to cumulate 50 per cent (4 months) of the 8‑month term imposed on that charge. This level of cumulation was manifestly excessive. But the applicant did not contend for full concurrency in the case of charge 3. It was submitted, rather, that a far more modest level of cumulation was required.
The applicant submitted that manifestly excessive sentences imposed on charges 1 and 2, and excessive orders for cumulation, had produced a total effective sentence and non‑parole period that were manifestly excessive.
Respondent’s submissions
The respondent submitted that the charge 1 sentence was anything but manifestly excessive. The respondent emphasised that the applicable maximum penalty was imprisonment for 25 years. The respondent drew attention to the various pronouncements made by this Court, dating back to 2016, concerning the need for an increase in sentences in cases of commercial cultivation of this type.[30] The present was a serious case of commercial cultivation. While the applicant had only intended to cultivate a commercial quantity, the quantity in fact cultivated crossed the large commercial threshold by an amount of 17 kg, or so.[31]
[30]The respondent cited Nguyen v The Queen (2016) 311 FLR 289; [2016] VSCA 198 (‘Nguyen 2016’) and Nguyen v The Queen (2021) 301 A Crim R 1; [2021] VSCA 211 (‘Nguyen 2021’).
[31]A large commercial quantity is 250 kg: Drugs Act, sch 11 pt 2.
The respondent submitted that the charge 2 sentence was within range, and that the order of 2 months’ cumulation was also within range. The respondent submitted that — generally speaking — it is proper for a portion of a sentence imposed for theft of electricity to be cumulated upon any accompanying commercial cultivation sentence: the theft represents separate criminality designed to increase the profitability of the illicit enterprise and conceal the overall operation from detection.
The respondent disputed that it was erroneous to cumulate 4 months of the sentence imposed on charge 3. This was also separate criminality. The respondent drew attention to the fact that defence counsel had, on the plea, contended that the cash in the applicant’s possession was the proceeds of an earlier sale. In these circumstances it was entirely proper for something in the order of 4 months’ cumulation to be imposed.
The respondent submitted that the total effective sentence and non‑parole period were both clearly within range; the non‑parole period — constituting some 58 per cent of the total effective head term — was low.
Consideration
The principles that apply when it is said that a sentence is manifestly excessive are well established. In order to succeed, the applicant must show that the sentence under consideration is wholly outside the range of sentencing options available to the sentencing judge in the reasonable exercise of the sentencing discretion.[32] The sentence being considered must, on its face, reveal underlying error. It is no easy task to establish this.[33]
[32]Osman v The Queen [2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
[33]Vocaj v The King [2023] VSCA 242, [36] (Walker and Macaulay JJA) (‘Vocaj’), citing Lai v The King [2023] VSCA 151, [16] (T Forrest and Osborn JJA).
In our view, the submissions made by the applicant under proposed ground 2 cannot be upheld.
Commencing with an analysis of the sentence imposed on charge 1, the maximum penalty of 25 years’ imprisonment for offending of this kind reflects just how seriously the legislature views such offending.
In assessing the objective gravity of any particular instance of commercial cultivation, both the actual quantity of cannabis cultivated and the role played in the cultivation by the offender are matters of great significance. As to quantity of the drug cultivated, Niall and Weinberg JJA observed in Dang v The Queen (‘Dang’)[34] as follows:
The quantity of drugs is reflected in the statutory scheme and will also reflect the dimensions of the enterprise and, in a general sense, the scale of profit that the enterprise may be expected to generate.[35]
[34][2020] VSCA 24 (‘Dang’).
[35]Ibid [15].
Assessed by weight, the amount of cannabis cultivated in this case stood at approximately 10 times the commercial quantity. The weight crossed over the large commercial quantity threshold. The applicant did not intend to cultivate a large commercial quantity,[36] and he was not to be sentenced for having done so; but by reference purely to quantity this was a serious case.
[36]Which carries a maximum penalty of life imprisonment: Drugs Act, s 72.
The applicant’s role in the cultivation process included him performing acts of actual assistance at the scene. But his main role was to make his premises available to those who were more closely linked to the day‑to‑day running of the operation. The applicant’s connection to the hydroponic operation was thus predominantly a commercial one. This was an important role. Obviously enough, it was necessary that the hydroponic set‑up have a location from which it could operate. The applicant provided that location in exchange for increased rent and drugs.
The judge considered that the applicant was ‘not at the top of any hierarchy involved in the cultivation of the cannabis’.[37] As the judge described it: ‘[I]n terms of the objective gravity of the offending, it is higher than midrange, but not the most serious example of such offending.’[38]
[37]Reasons, [43].
[38]Reasons, [45].
It has been said that when an assessment is to be made of sentences imposed in cases of commercial cultivation, ‘[i]t is plainly necessary to have regard to comparable sentences, especially given that these types of offences are often conducted in a similar way and the offenders may have few distinguishing features that they can call on in aid in mitigation.’[39]
[39]See Dang [2020] VSCA 24, [19] (Niall and Weinberg JJA).
Thus, in cases such as Vocaj v The King (‘Vocaj’),[40] Le v The Queen (‘Le’),[41] Dang and Nguyen v The Queen (‘Nguyen 2021’),[42] this Court has surveyed its own previous decisions in order to assist in determining whether a particular commercial cultivation sentence was excessive. A cursory examination of these surveys reveals that sentences of length similar to the present charge 1 sentence have been imposed in cases of commercial cultivation where the amount cultivated was at a far lower multiple of the commercial quantity threshold than arises here.
[40]Vocaj [2023] VSCA 242.
[41][2021] VSCA 220 (‘Le’).
[42]Nguyen 2021 (2021) 301 A Crim R 1; [2021] VSCA 211.
For instance, in Nguyen v The Queen (‘Nguyen 2016’),[43] a total effective sentence of 3 years and 6 months’ imprisonment, with a non‑parole period of 2 years and 6 months, was imposed for the commercial cultivation, at two separate locations, of 241 cannabis plants weighing a combined total of 38.9368 kg. In Nguyen v The Queen (‘Nguyen 2017’),[44] this Court resentenced an offender to 5 years’ imprisonment with a non‑parole period of 3 years and 6 months for the commercial cultivation of 167 plants, weighing 127.16 kg. In Nguyen v The Queen (‘Nguyen 2018’),[45] two offenders were sentenced for a number of offences including commercial cultivation of cannabis. The total weight cultivated was 81.75 kg; there were 182 plants. These offenders were ‘crop sitters’. This Court resentenced one offender to a total effective sentence of 4 years’ imprisonment with a non‑parole period of 2 years and 4 months. The co‑offender was resentenced to a total effective sentence of 3 years and 9 months’ imprisonment with a non‑parole period of 2 years and 2 months. In Nguyen v The Queen (‘Nguyen 2019’),[46] this Court refused leave to appeal against sentence where 128 plants, weighing 51.73 kg, were cultivated, and where the offenders were each sentenced to 3 years and 8 months’ imprisonment on a commercial cultivation charge.
[43]Nguyen 2016 (2016) 311 FLR 289; [2016] VSCA 198.
[44][2017] VSCA 286.
[45][2018] VSCA 322.
[46][2019] VSCA 134.
In Dang itself the total weight of cannabis cultivated, at two properties, was 56.62 kg. There were 143 plants. The offender’s role was described as sitting ‘slightly above the level of [a] straight, out‑and‑out crop sitter’.[47] This Court refused leave to appeal against a sentence, imposed in respect of a commercial cultivation charge, of imprisonment for 3 years and 4 months.
[47]Dang [2020] VSCA 24, [7].
In Nguyen 2021 the total weight cultivated was 286 kg — more than 11 times the commercial quantity. In that case a sentence of 5 years and 6 months’ imprisonment was imposed. This Court described that sentence as ‘moderate’. As the respondent noted in this case, this Court observed in Nguyen 2021 that current sentencing practice for cultivation offences had failed to address a hitherto inappropriate compression of sentences. It was said that, in future, sentencing courts should — by increments — increase sentences imposed for mid‑range offences of commercial cultivation.[48]
[48]Ibid 10–11 [45]–[48]; Nguyen 2016 (2016) 311 FLR 289, 296 [4], 333 [152] (Redlich JA); [2016] VSCA 198.
In Le the offender had cultivated 31 plants, as well as other cannabis. The total weight was 49.5 kg. This offender had ‘looked after’ the plants. He had relevant drug trafficking prior convictions. This Court dismissed an appeal against a sentence of 5 years’ imprisonment imposed for the offence of commercial cultivation.[49]
[49]Le [2021] VSCA 220, [3], [5]–[6], [26] (Niall JA, Priest JA agreeing at [1]).
In Vocaj, the offender pleaded guilty to a ‘rolled‑up’ commercial cultivation charge. The offender had cultivated 110.5 kg of cannabis, comprising 68 plants, at two separate addresses. By weight, this represented 4.4 times the commercial quantity threshold. The offender had performed a ‘hands‑on’ role at one of the properties. This Court dismissed an appeal against a sentence of 3 years and 3 months’ imprisonment.[50]
[50]Vocaj [2023] VSCA 242, [41], [48]–[49] (Walker and Macaulay JJA).
These surveys extract only the bare essential features of each case. As is often said, no two sentencing cases are ever exactly alike, and earlier sentences relied on as comparable must not be treated as precedents to be applied or distinguished.[51] Nevertheless, the impression one gets is that, when viewed against the backdrop of other cases of commercial cultivation dealt with in this Court,[52] the present charge 1 sentence does not seem out of kilter with current sentencing practices.
[51]See DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41.
[52]Senior counsel for the applicant submitted that lower sentences could be found in the lower courts.
Despite the matters in mitigation on which the applicant was able to rely,[53] in the end we are not persuaded that the sentence of 3 years and 6 months’ imprisonment imposed on charge 1 is manifestly excessive. Indeed, it seems to us that this sentence reflects the fact that proper regard was paid by the sentencing judge to the mitigatory matters that had been relied upon by the applicant. The applicant’s role was an important one. But for the mitigatory matters, the charge 1 sentence might well have been longer. In our view, the sentence on charge 1 is moderate.
[53]Matters that included the applicant’s plea, his remorse, his lack of prior convictions, the effect of his various mental disorders (operating to lower the applicant’s moral culpability and impact upon his experience of prison) as well as the steps taken by him towards his rehabilitation.
The sentence of 6 months’ imprisonment imposed for the theft of electricity (charge 2) was impugned by the applicant primarily on the basis that, as pleaded in the charge on the indictment, this offending had occurred on a single day.
Ultimately, it is unnecessary to consider whether the individual sentence imposed on charge 2 is manifestly excessive. Even if that contention was made good, s 280(1)(b) of the Criminal Procedure Act 2009 (‘CPA’) permits this Court to refuse an application for leave to appeal if ‘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’. Whether such a reasonable prospect exists invites consideration, in the first instance, of the 2‑month order of cumulation imposed in respect of the theft sentence.
As the respondent submitted, the electricity theft was additional offending; and it was offending of a relatively sophisticated nature. Clearly a degree of expertise was required to construct the bypass. The bypass was necessary so that the increased consumption of electricity did not attract unwanted attention. And it kept costs down. Even if the charged offending was limited to a single day, that offending was hardly an isolated occurrence. An order cumulating only 2 months of the theft sentence was moderate. That order built upon a base sentence that was already of moderate duration.
Thus, even if the charge 2 sentence was infected with error,[54] there is no reasonable prospect that the Court of Appeal would reduce the 2‑month order of cumulation and thereby reduce the total effective sentence.
[54]An issue that is unnecessary to decide.
Lastly, we consider that it was open to the sentencing judge to cumulate 4 months of the sentence imposed on charge 3. The charge 3 offending involved the applicant’s illicit possession of a significant amount of money. By his plea, the applicant admitted that he knew this money represented the proceeds of crime. On the applicant’s case, this money was the proceeds derived from the sale of a previous crop. A degree of cumulation was to be expected. In all the circumstances, we are not persuaded that an order for 4 months’ cumulation was manifestly excessive.
It follows that the applicant has failed to establish that the total effective head sentence was manifestly excessive. The non‑parole period stands at approximately 58 per cent of the head term. By no means can it be said that this non‑parole period is manifestly excessive.
Proposed ground 2 cannot be upheld.
Ground 1
Submissions
The applicant contended that the sentencing judge committed material error by sentencing the applicant on charge 1 by finding that the applicant had cultivated 301.7 kg of cannabis. It was submitted that the correct amount was, rather, the sum of 266.91 kg and 301.7 g.[55] It was argued that while the judge’s initial reference to ‘301.7 kilograms’[56] may have been a slip, the same could not be said for the later reference to ‘301.7 kilograms’.[57] It was submitted that this later reference was a clear indication that the judge had misapprehended the total weight of cannabis cultivated by the applicant.
[55]See [6], [18] and [24] above.
[56]Reasons, [4] dot‑point 14 (see [18] above).
[57]Reasons, [38] (see [24] above).
It was submitted that, in consequence of this error, the judge had sentenced the applicant on the basis that he had cultivated 34 kg of cannabis more than was in fact the case. It was emphasised that, in itself, 34 kg was 9 kg over the commercial quantity threshold. It was submitted that the judge’s error had erroneously put the level of the applicant’s total cultivation at, approximately, 50 kg in excess of the threshold for large commercial quantity.
The applicant submitted that this error must have infected the exercise of the sentencing discretion. The judge had, after all, emphasised the importance of quantity when assessing the objective gravity of the offending. It was submitted that the judge’s error ‘must have had an appreciable impact on the actual sentence imposed’.
The respondent acknowledged that the sentencing judge had misstated the relevant weight of cannabis cultivated. It was submitted, however, that on a fair reading of the plea transcript, and the sentencing reasons, it could not be said that the sentencing judge had ‘failed to apprehend the quantity of cannabis recovered such that the error affected the disposition in a material way’.
The respondent emphasised that the judge had correctly identified the number of plants cultivated. The judge had appreciated that, by reference to plant number, the amount represented over three times the commercial threshold. And concerning materiality, the respondent noted that on the plea senior counsel for the applicant had not thought fit to object when the prosecutor erroneously told the sentencing judge that, by weight, the quantity cultivated was 12 times the commercial limit.
In the alternative, the respondent submitted that if the judge did commit material error then no different sentence should be imposed.
Consideration
Had it stood in isolation, the judge’s first reference to ‘301.7’ kg might have been explained as a slip. But the judge returned to the question of quantity, expressed in terms of weight, and stated categorically that ‘301.7 kilograms’ of cannabis had been found at the property. The judge concluded, moreover, that ‘[t]he weight found in the premises was approximately twelve times the commercial quantity weight’.[58] The amount in fact cultivated by the applicant, by weight, stood at approximately 10 times the commercial quantity threshold.
[58]Reasons, [38].
In these circumstances, there is at the very least an appreciable risk, which cannot be discounted, that the judge did in fact misapprehend the relevant weight. And the fact that the judge had a correct appreciation of the number of plants cultivated does little to ameliorate the effect of that risk. As the cases indicate, the actual quantity cultivated is an important consideration. It cannot therefore be concluded, with any certainty, that the judge did not sentence the applicant on charge 1 by reference to an erroneous appreciation of the actual amount of cannabis involved.
There is force in the respondent’s submission that, whether the amount of cannabis cultivated was assessed at 10 or 12 times the commercial threshold, at quantities of this magnitude the error identified must have been inconsequential. But it is impossible to conclude with any certainty that it did not make any difference to the sentence imposed.
The applicant’s proposed ground 1 must be upheld.
Conclusion
Section 281(1) of the CPA states that the Court of Appeal must allow an appeal if the appellant satisfies the court that there is an error in the sentence first imposed and that ‘a different sentence should be imposed’.[59] The question whether ‘a different sentence should be imposed’ is different to whether a sentence is manifestly excessive.[60] But the two questions may ‘overlap’.[61]
[59]CPA, s 281(1)(b).
[60]Kentwell v The Queen(2014) 252 CLR 601, 617–19 [42]–[43] (French CJ, Hayne, Bell and Keane JJ) (‘Kentwell’).
[61]Citing Kentwell this Court, in Holland (a pseudonym) v The Queen [2018] VSCA 241, observed that there is an ‘overlap’ between the question of whether a different sentence should be passed (CPA, s 281(1)(b)) and the ‘issue of whether the sentence that was actually passed is manifestly excessive’ permitting the two questions to be dealt with together: at [39], [50] (Beach, Weinberg JJA and Champion AJA).
Essentially for the reasons given concerning why the sentence imposed on charge 1 is not manifestly excessive, we are not satisfied that a different sentence should be imposed on charge 1. Notwithstanding the matters relied on in mitigation, in light of the significant quantity of cannabis cultivated in this case and the role played by the applicant, the sentence imposed on charge 1 is appropriate.
Leave to appeal is granted, but the appeal against sentence must be dismissed.
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