Hendricks v The Queen
[2014] VSCA 185
•21 August 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0104
| ERROL BRENDAN HENDRICKS |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES: | REDLICH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 August 2014 |
| DATE OF JUDGMENT: | 21 August 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 185 |
| JUDGMENT APPEALED FROM: | DPP v Hendricks (Unreported, County Court of Victoria, Judge Pilgrim, 19 December 2013) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Cultivation of cannabis in commercial quantity – Cannabis intended for personal medicinal use – Applicant sentenced to 18 months’ imprisonment, six months suspended – Relevance of risk of automatic forfeiture under Confiscation Act 1997 (Vic), s 35 to sentence – Whether sentencing discretion re-opened as a result of subsequent forfeiture of applicant’s home – Leave granted – Appeal allowed – R v Dang (2009) 197 A Crim R 53 applied – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Ms S Borg | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA
WEINBERG JA:
On 16 December 2013, the applicant was convicted in the County Court at Melbourne of one charge of cultivating a narcotic plant in a commercial quantity, contrary to s 72A of the Drugs Poisons and Controlled Substances Act 1981 (the Act). He was acquitted by the jury of a further charge of trafficking in a drug of dependence.
On 19 December 2013, the applicant was sentenced to 18 months’ imprisonment, with six months suspended for a period of 18 months.
Background
On 8 March 2013, police executed a Drugs, Poisons and Controlled Substance Warrant at the applicant’s address. They discovered 14 large cannabis plants growing in the rear yard of the premises with an average estimated height of two metres. A search of the applicant’s home revealed three jars containing dried cannabis, and a number of cannabis cultivation instructional books.
Together the seized plants weighed a total of 47.1 kilograms, which is, under the relevant Schedule of the Act, a commercial quantity.
When interviewed by police, the applicant maintained that he had been growing the plants in an attempt to cultivate enough cannabis to enable him to make hash oil for medicinal purposes.
Counsel who appeared on behalf of the applicant on the plea noted that police had not discovered any of the usual paraphernalia used for trafficking cannabis at the applicant’s home. Unlike many other cases involving cultivation, the cannabis was being grown quite openly, and without the use of any sophisticated or hydroponic equipment. The plants could easily be seen from neighbouring properties and the adjoining laneway. It was plain that this was not the highly skilled operation of a commercial drug trafficker.
A psychological report tendered on behalf of the applicant on the plea revealed that his mother had died from pancreatic cancer at the age of 74. The report also revealed that the applicant had an ‘almost obsessional’ belief that cannabis had a palliative effect on pancreatic cancer, and indeed that cannabis use could prevent its occurrence.
The report also highlighted the applicant’s use of cannabis in order to relieve both physical pain (resulting from a number of road accidents) and psychological trauma. Additionally, it was noted that the applicant suffered from Hepatitis B. He told the author of the report that cannabis elevated his mood and assisted him in dealing with what he considered to be ‘provoking circumstances’.
The applicant had prior convictions relating to the trafficking, cultivation and use of cannabis for which he had received a two month term of imprisonment, suspended for a period of 12 months. Within a few months of receiving that sentence, and well within the period of the suspension, the applicant again began cultivating the cannabis the subject of this offending.
Section 35 of the Confiscation Act 1997 provides that upon conviction for an offence of this nature, the offender’s home will be automatically forfeited. Counsel on the plea barely alluded to that fact. He merely pointed out that a restraining order had been placed on the applicant’s property, thereby putting him in a position of potentially dire consequences in the immediate future. Counsel noted that the applicant was, at the time of sentencing, aged 57 and facing a degree of impoverishment and difficulty in his later years, with his financial security tied up in his only significant asset, his home.
The applicant’s case
The applicant seeks leave to appeal on the following three grounds:
1. The applicant should be resentenced on the basis that his home has now been forfeited pursuant to the Confiscation Act 1997 as a consequence of his conviction in this matter.
2. The learned sentencing Judge erred in failing to take into account in sentencing the prospect of the forfeiture of the applicant’s home.
3. The sentence imposed was manifestly excessive given the usable quantity of cannabis produced, the applicant’s non-commercial purpose in cultivation, the impact of the forfeiture of the applicant’s home and the applicant’s age, character and health problems.
As to Ground 1, the applicant, relying on R v Dang,[1] submits that the subsequent forfeiture of his home amounts to fresh evidence, thereby causing the sentencing discretion to be re-opened. He relies upon affidavit evidence filed before this Court to establish the basis for this ground.
[1](2009) 197 A Crim R 53 (‘Dang’).
The applicant relies, for the purposes of Ground 2, upon those references made by counsel on the plea to the forfeiture issue. He concedes, in his written case, that counsel on the plea failed to develop a submission as to the authorities regarding forfeiture and its relevance to sentence. He submits that despite that concession, the sentencing judge was sufficiently on notice about the issue to require that it be dealt with in sentencing.
With respect to Ground 3, the applicant maintains that his eccentric beliefs made him an unsuitable vehicle for general deterrence.
The respondent’s case
The respondent initially contended that the applicant’s argument in support of Ground 1 should fail as there was no evidence before the sentencing judge that the property had been ‘acquired lawfully’. This meant that his Honour was not in a position to have regard to the automatic forfeiture of the property as a mitigating factor. The respondent highlighted, in its written case, that the onus was on the applicant to establish that forfeiture was a mitigating circumstance that should be taken into account.[2] There was little, if any, evidence before the sentencing judge regarding the potential value of the property and likely loss to the applicant, save for a scant reference to his finances in the psychological report tendered on the plea.
[2]R v Filipovic (2008) 181 A Crim R 83 (‘Filipovic’).
Before the oral hearing of this application, the respondent informed the Court that it would no longer resist Ground 1. It is now accepted that the forfeiture of the applicant’s home constituted fresh evidence of a kind that would re-open the sentencing discretion, and require this Court to sentence him afresh.
With respect to Ground 2, the applicant noted that counsel’s references to the forfeiture issue on the plea had been vague. On that basis, it was submitted, it could not be said that the sentencing judge’s attention had been drawn to the fact that the applicant’s home would be automatically forfeited. It followed that his Honour had not been put on notice about the issue, or the applicant’s reliance upon the loss of his home as mitigation. This was especially so, according to the respondent, given that the evidence as to the extent of the applicant’s loss as it stood at the time of the plea suggested that it amounted to no more than about $5,000.
As to Ground 3, the respondent noted the high threshold test to be met in establishing manifest excess.[3] In Ayol v The Queen,[4] Maxwell P said, of that ground:
It must be shown that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion. As was said by a five-member bench of this Court in Clarkson v The Queen:[5]
[T]he ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.[6]
[3]R v Boaza [1999] VSCA 126 (‘Boaza’).
[4][2014] VSCA 151 (‘Ayol’).
[5](2011) 32 VR 361, 384 [89].
[6]Ayol [2014] VSCA 151, [30].
The President continued:
The ground of manifest excess requires consideration of the sentencing range applicable to the case at hand. Determining the range requires an identification of the relevant features going to the seriousness of the offending — and, where relevant, to the antecedents of the offender — and then an identification of current sentencing practice for a case of that character.
… [I]t is current sentencing practices for the relevant category of seriousness of the offence which inform the determination, both by the sentencing judge and by this Court on appeal, of the appropriate range. Almost always, in my experience, that requires the identification of comparable cases, that is to say, cases in which the relevant indicia of seriousness — and, where relevant, comparable antecedents of the offender — are to be found.[7]
[7]Ibid [31]–[32].
The respondent acknowledged, in its written case, that it could find no case closely aligned on its facts with the circumstances of this case. There were, however, a number of instances since 2007 where the cultivation of a commercial quantity of cannabis with similar weights to that of the applicant’s crop had resulted in a sentence of imprisonment of between two years and three years and six months.
As to the non-commercial purpose of the cultivation, the respondent referred to Filipovic, where the applicants gave evidence that they had been growing cannabis (40 kilograms) for their own personal use. They were convicted of cultivation and trafficking as well as theft of electricity and property damage. Each was sentenced to two years and nine months’ imprisonment.
Conclusion
Ground 3
We would reject the applicant’s argument that the sentence imposed upon him was manifestly excessive. The applicant had a prior conviction for growing cannabis. Specific deterrence was clearly a relevant sentencing factor. It can hardly be said that a sentence of 18 months’ imprisonment, six months of which was suspended, was ‘wholly outside the range of sentencing options available’[8] to the sentencing judge. It might perhaps be said that this sentence was stern given the impact of the forfeiture of the applicant’s home upon him, as well as his age, character and health problems. However, that would not, on its own, demonstrate that the sentence was manifestly excessive.
[8]Boaza [1999] VSCA 126, [42] (Winneke P); Ayol [2014] VSCA 151, [30].
Ground 2
The applicant contends that the sentencing judge was ‘sufficiently on notice about the issue [of forfeiture] to require that it be dealt with in sentencing’. As we have previously indicated, counsel on the plea alluded to the fact that the applicant would lose his home. However, he did not press the point, and did not submit that, on the evidence as it then stood, the sentencing judge was to ‘give the possibility of forfeiture some, but indefinite, weight in the overall sentencing synthesis’.[9] Counsel on the plea merely stated, somewhat cryptically, and rather unhelpfully, that
whatever the outcome of this, due to operations of other matters, he will end up homeless, which is significant and I note in one of the decisions I reviewed yesterday, that was a factor that the Court of Appeal took into account.
[9]Dang (2009) 197 A Crim R 53, 56 [16].
Counsel did not draw his Honour’s attention to any of the many decisions relevantly on point. He developed the argument no further. It is perhaps not surprising, in those circumstances, that the sentencing judge did not make any reference to the potential forfeiture of the applicant’s home in his sentencing remarks. We would reject Ground 2.
Ground 1
The decision of this Court in Dang is of particular significance in dealing with this ground. There, the appellant (who was engaged in an ongoing business of growing and selling cannabis for reward) was successful in his appeal against sentence on the basis that evidence of the forfeiture of his home subsequent to the imposition of sentence re-opened the sentencing discretion. The Court considered that the sentence actually passed was appropriate to the then known circumstances surrounding the appellant and his offending. However, the subsequent forfeiture of his lawfully acquired property (which, the Court noted, was his family home) altered that position. The Court concluded that the quantifiable loss suffered by the appellant was a ‘mitigatory factor … warrant[ing the] imposition of a lesser sentence’.[10] In coming to that conclusion, the Court referred to Redlich JA’s comments in R v Pajic:[11]
Forfeiture of the appellant’s lawfully acquired property is a mitigatory factor in sentencing since it placed the appellant in a worse position than he was before the commission of the offence. It therefore had a punitive and a deterrent effect. The sentencing principle of proportionality required that the effect of the forfeiture on the appellant and whether it may have had a substantial deterrent effect should be taken into account.[12]
[10]Ibid 56 [19].
[11](2009) 23 VR 527.
[12]Ibid 534 [26].
There is no doubt that the subsequent forfeiture of the applicant’s home on 29 April 2014 has had a devastating effect upon him. The applicant had significant equity in the property, perhaps of the order of $60,000 in value, which was lawfully acquired by being left to the applicant in his mother’s estate, as evidenced in affidavit material provided to this Court. This would have provided him with security in the future. Given his poor health and his age, it is unlikely he will ever again own property. These factors also limit his potential earning capacity.
For these reasons we would grant the applicant leave to appeal, and allow the appeal. We would do so solely on the basis of the fresh evidence that has been adduced. A very similar course was followed in the recent decision of Mileto v The Queen.[13] We would treat the sentencing discretion as having been re-opened. In the light of the fresh evidence, we would set aside the sentence of 18 months’ imprisonment, partly suspended, and in lieu thereof impose a sentence of eight months’ imprisonment. We would confirm all other ancillary orders made below.
[13][2014] VSCA 161.
We will add only this. The circumstances presented by this case are most unusual, as the learned Crown prosecutor, in her submissions to this Court, very fairly acknowledged.
Having regard to his prior convictions, the applicant may consider himself fortunate to have been dealt with somewhat leniently by this Court.
The sentence we have fixed should not be regarded as indicative of the type of sentence that will normally be imposed for offending that involves the cultivation of this quantity of cannabis.
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