Ivanoff v The Queen
[2015] VSCA 116
•21 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0263
| JASON URI IVANOFF | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGES: | WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | No oral hearing requested |
| DATE OF JUDGMENT: | 21 May 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 116 |
| JUDGMENT APPEALED FROM: | DPP v Ivanoff (Unreported, County Court of Victoria, Judge Chettle, 5 November 2014) |
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DETERMINED ON THE PAPERS
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CRIMINAL LAW – Conviction – Cultivation of a commercial quantity of cannabis – Total of 94 cannabis plants (36.42 kilograms) found at applicant’s home – Applicant admitted to growing cannabis for personal use, but denied having known or believed it would come to commercial quantity – Only issue at trial was whether applicant intended to grow cannabis in at least commercial quantity – Applicant had previously pleaded guilty to attempting to traffic in commercial quantity of cannabis – Whether admission of evidence of prior conviction resulted in substantial miscarriage of justice – Crown sought to lead evidence as coincidence evidence under s 98 of Evidence Act 2008 – Evidence did not constitute coincidence evidence – Trial judge correct in ruling evidence relevant to accused’s state of mind and admissible on that basis – Not reasonably arguable that admission of evidence resulted in substantial miscarriage of justice in any event – Leave to appeal refused.
CRIMINAL LAW – Conviction – During record of interview police indicated to applicant that cannabis seized from home amounted to a trafficable quantity rather than commercial quantity – Whether trial judge erred by directing jury to disregard relevant portion of the record of interview on basis that it was not relevant – Evidence of what police may have mistakenly believed regarding quantity of drugs not relevant to issues at trial – Ground not reasonably arguable – Leave to appeal refused.
CRIMINAL LAW – Sentence – Applicant sentenced to 18 months’ imprisonment with 2 year CCO (300 hours community service) – Whether sentence manifestly excessive – Evidence that drugs grown for personal use – Ground reasonably arguable – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| No Appearances |
WEINBERG JA:
The applicant stood trial in the County Court charged with cultivation of a commercial quantity of a narcotic plant, namely cannabis, contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981. This offence was said to have been committed between 24 January and 24 April 2013. He was sentenced on 5 November 2014 to 18 months’ imprisonment, to be followed by a 2 year Community Correction Order (‘CCO’) with a condition attached that he perform 300 hours of community service. He now seeks leave to appeal against both conviction and sentence.
The applicant’s offending came to light following the execution of a search warrant, on 24 April 2013, at his home in Trumpington Grove, Menzies Creek. There police located 34 mature cannabis plants growing, scattered amongst other plants, in a paddock at the rear of the house. They found dried and semi-dried and mouldy plants in his bedroom. Moreover, they found three purpose-built tents, each containing a hydroponic set up, in the basement. Two of the tents contained two mature plants each, and a third contained eight mature, but smaller, plants. There were also 48 small plants in individual pots enclosed in a plastic container.
When interviewed by police, the applicant readily admitted to having grown cannabis, but claimed that he had done so in order to achieve a ‘perpetual supply’ for his personal use. He denied ever having known, or believed, that the crop would come to a commercial quantity. [1]
[1]A commercial quantity of cannabis is 25 kilograms or 100 plants.
A botanist, Mr Scott Azzopardi, analysed the plants. He gave evidence at trial that there were 94 in all, and that their total weight was 36.42 kilograms.
The only issue at trial was whether the Crown could establish the requisite state of mind for cultivation of a commercial quantity of cannabis, namely an intent to grow at least 25 kilograms or 100 plants.
Prior to the trial, the prosecution filed and served a coincidence notice, in accordance with s 98(1)(a) of the Evidence Act 2008 (‘Evidence Act’). Put simply, the Crown foreshadowed that it would seek to lead evidence of the applicant’s guilty plea and conviction, on 29 August 2005, of having attempted to traffic in a commercial quantity of cannabis.
The previous conviction arose out of a cannabis crop that the applicant had cultivated in 2003. The defence objected to the admission of this evidence, arguing that it did not satisfy the requirements of ss 98 and 101 of the Act, and should in any event be excluded in the exercise of the statutory power (sometimes referred to as a ‘discretion’) conferred by s 137.
After hearing lengthy submissions, the judge delivered an oral ruling in which he held that the evidence could be led. His Honour said:
I don’t think that this is a case that turns on the similarities or otherwise of the activities between the two dates. What’s relevant is that the man (a) had a history of growing cannabis for which he pleaded guilty in 2003. That is he had some expertise in cannabis growing. That expertise alone would be able to be used by the jury as a factor they would consider in asking, well, did he intend to grow what he grew.
Secondly, there is an aspect of commerciality, albeit a different form of commerciality. He’s at least acknowledged that the law — that as far as he’s concerned, he appreciated what a commercial quantity was at least in part in 2003. They’re the two arguments that I think hold water in this case.
And in those circumstances the evidence will be admissible for the jury to consider whether or not they were satisfied beyond reasonable doubt that the inference as to his state of mind that the Crown contend is the correct one and whether they — you, for example, rebutted his suggestion that he did not intend to cultivate a commercial quantity.
At the conclusion of the trial, and after the applicant had been sentenced, his Honour published a written ruling regarding this matter. He said:
Properly analysed, I do not believe that the proposed evidence should be categorised as Coincidence Evidence as defined by the Evidence Act ... I am of the view that evidence that the accused man pleaded guilty to charges relating to the cultivation of a commercial quantity in 2003 is relevant and admissible on the current charge ... the evidence demonstrates that the accused:
(a)Had a history of growing cannabis, to which he pleaded guilty in 2005. He has demonstrated expertise in growing cannabis; and that expertise alone would be relevant to a jury’s determination in considering whether he intended to grow a commercial quantity of cannabis in 2013.
(b)Acknowledged an aspect of commerciality, albeit a different form of commerciality, in the 2003 matter. He has acknowledged that he appreciated what a commercial quantity was when he pleaded guilty in 2005.
In my view the proposed evidence is admissible to enable the jury to consider whether they were satisfied beyond reasonable doubt that the inference as to his state of mind the Crown contend for is the correct one, and to whether the prosecution have rebutted the accused man’s suggestion that he did not intend to cultivate a commercial quantity.
It should be noted, for the sake of completeness, that the judge also considered, as an alternative, the possibility that the evidence of the applicant’s prior conviction might constitute coincidence evidence within the meaning of s 98. He concluded that, in that event, it would have satisfied the threshold test for admissibility of evidence of that kind, and that he would not have exercised the power conferred by s 137 to exclude it.
Returning for a moment to the events at trial, once his Honour had delivered his oral ruling, evidence of the 2003 investigation was adduced from the police officer who had been the informant in that matter. At the conclusion of that evidence, the judge gave the jury a direction as to how they could, and could not, make use of it. His Honour said:
The evidence in relation to what happened in 2003 is being admitted for a very, very limited purpose. It’s part of the factual matrix you’re entitled to use in coming to a conclusion, if you do, as to whether or not the Crown have established beyond reasonable doubt that the accused man intended to cultivate a commercial quantity in 2013. That’s the issue in this trial. Did he have that intention?
So, the fact that he may have done so in the past — that is, cultivated more than a commercial quantity in the sense of more than 100 plants — doesn’t mean that he had that intention in 2013. I’ll give you some quite specific directions later on about how you use this. But it’s only — what you can’t do. And I emphasise right at the start, you shouldn’t think ‘Well, he grew a commercial quantity back in 2003, he must be guilty in 2013’.
That does not follow. And in fact, if you think about it, you might think to yourself, ‘Well he grew one hundred plus plants in 2003 and that only weighed 6 kgs. He had 90 odd plants, and even if that did weigh 34, did he know that’s what it was going to weigh?’ That’s what the issue is. So it’s part of the factual matrix about his knowledge, but you can use it for no other purpose. And I’ll say more about that later.
In his charge to the jury, the judge said:
You heard evidence in this case that in 2003 the accused man grew a cannabis crop that had somewhere between 145 and 161, depending upon which version of the evidence you take, of plants growing that netted 6.37 kilograms in weight and then Mr Azzopardi went through how some of those plants weighed more than others and you will remember the submissions put to you by Mr Gray about the figures in relation to that. The topic I want to raise now is the evidence about the fact that one, he grew cannabis back in 2003 and then by agreement it was put before you that in 2005 he pleaded guilty to the charge of attempting to traffic in a commercial quantity of cannabis.
The Crown rely upon those two facts, the fact that he was growing cannabis in 2003 and the fact that he admitted responsibility for a commercial quantity of plants in 2005 in relation to that crop is factors that you can use and rely upon to establish that the accused knew or was aware in 2013 that there was a real and significant chance the plants he grew weighed more than 25 kilograms.
It is part of the facts that they are using for you to draw the inference that they ask you to do. The Crown say you can use it if you choose to, to demonstrate what knowledge he had as to what was a commercial quantity and from past experience he had, so the Crown would say, he knew what a commercial [quantity] was because he pleaded guilty to it back in 2005.
He is experienced in cultivating cannabis by the photographs of his prior crop and that is relevant and you can use it if you choose as a matter of law in determining whether or not the prosecution have established that he knew or was aware there was a significant chance his crop in 2013 weighed more than 25 kilograms. It is one of the facts you can use for that purpose.
But you can, if you choose, use it as one of the background facts upon which you draw an inference if you want to. It is a matter for you. But you must not use it for any other purpose. It is admitted for that purpose and that purpose alone, that is, whether you can be satisfied beyond reasonable doubt that he knew or was aware there was a significant chance that the plants weighed more than 25 kilograms, no other reason.
You must not infer, for example, just because he grew cannabis in 2003 he must have grown a commercial quantity in 2013. You must not allow yourself to think along the lines of he is the sort of person who would commit this sort of crime, therefore he did. You can only use it in determining whether you can infer knowledge by Mr Ivanoff as to the plants he grew in 2013 weighing more than 25 kilograms and nothing else.
You must not think along the lines of what sort of person or what kind of person he is. That sort of thinking is illogical and irrelevant. Another thing to be careful of and you should be aware of is that just because the accused grew crops at the same place on two separate occasions it does not mean that he must have had the same intention or same state of mind on each occasion. He admitted being involved in a commercial quantity in 2003; he denies that intention in 2013. It does not follow just because he had an intention once he must have had the same intention on the second occasion and it might be said to you by the defence once burnt, twice wary if you think about it.
His experience and knowledge from 2003 is only relevant in determining what his belief or state of mind was in 2013. Indeed, to some extent the defence rely upon his 2003 experience and say in 2003 he had 146 or 161 plants, it does not really matter, and they weighed only 6.37 kilograms in total. Here he has got 94 plants, how could he ever expect that to weigh what it does and in fact the weight and number of the plants is significant.
The Crown on the other hand say he knows what a commercial quantity is, he is an experienced cannabis grower and you can use the 2003 experience and the 2005 plea of guilty to help you conclude beyond reasonable doubt that he knew how much cannabis he was growing in 2013. But that is the only way you can use it and it is important that you do not use it in the ways that I warned you against.
The proposed grounds of appeal — conviction
The proposed grounds of appeal, as regards conviction, are as follows:
Ground 1The trial of the applicant miscarried by reason of the prejudice created by the admission of evidence of a prior conviction of the applicant.
Ground 2The trial miscarried because of the failure of the learned trial judge to specifically redirect the jury in relation to the relevance of questions and answers played in the record of interview.
Conclusion regarding ground 1
Ordinarily, evidence of the previous misconduct of an accused is regarded as inadmissible. That is so whether such evidence takes the form of the commission of an unrelated offence, or whether it involves proof of an actual conviction for such an offence. As a matter of policy, the law regards such evidence as dangerous, and highly prejudicial.
There are, of course, exceptions to this exclusionary principle. The most obvious example, at common law, was what was termed ‘similar fact evidence’. A similar exception, under current law, is to be found in the provisions of the Evidence Act dealing with what is now known as tendency[2] and coincidence[3] evidence. Such evidence must satisfy more than the ordinary test of relevance. It must have ‘significant probative value’,[4] and its probative value must ‘substantially outweigh’ any prejudicial effect it may have on the accused.[5]
[2]Evidence Act s 97.
[3]Evidence Act s 98.
[4]Evidence Act ss 97, 98.
[5]Evidence Act s 101.
If evidence is relevant for a use which does not fall within either of the definitions of ‘tendency evidence’ or ‘coincidence evidence’, and is not caught by any other exclusionary rule, it may be admitted, subject to the power conferred upon a trial judge to exclude evidence under s 137. That section requires a Court to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
Of course, not every case in which the Crown seeks to lead evidence of discreditable past acts on the part of the accused should be seen through the prism of tendency or coincidence. For example, it has long been recognised that ‘relationship evidence’, outside the bounds of tendency or coincidence, may be led if relevant, subject only to the possible exercise of judicial discretion.
In the same way, evidence of previous misconduct may be relevant otherwise than via tendency or coincidence reasoning, and may therefore be admissible, provided that its probative value is greater than any likely prejudicial consequences. Self-evidently, if the evidence is admitted on a non-tendency or non-coincidence basis, it may not be used for the purpose of proving tendency or coincidence.
Some examples of non-tendency and non-coincidence use will suffice:
·evidence of previously discreditable conduct may be relevant as demonstrating a motive for the crime charged, or as rebutting a defence that is reasonably anticipated. Thus, in a trial for murder, the prosecution may be permitted to lead evidence of the accused having previously assaulted the deceased as bearing upon the question of motive.[6] Evidence of that kind is not tendered in order to establish a tendency to engage in acts of violence. Accordingly, s 97 has no application whatever to whether or not that evidence is admissible. The same may be said of evidence concerning prior sexual activity on the part of the accused towards the complainant, thereby showing what used to be called a ‘guilty passion’ towards her;
·evidence demonstrating opportunity, and thereby rebutting a defence such as alibi, if one is advanced;[7]
·evidence linking the accused to the crime charged. For example, it might be that in a trial for murder evidence will be admitted which shows that some of the proceeds of an earlier robbery were found at the scene of the crime, and other parts of those proceeds were found in the accused’s home. The evidence is undoubtedly prejudicial, but would certainly be admitted;
·evidence of past violence on the part of an accused towards a complainant in a case involving a sexual offence may be led to explain why the complainant either seemed to consent to the act in question, or did not immediately thereafter complain. In that sense, such evidence goes to the credibility of the complainant. Sometimes evidence of this kind is described as ‘context’ evidence; and
·it may be that evidence of prior exposure to the criminal law is relevant to the question whether the accused has a particular state of mind or understanding which constitutes an element of the crime charged. So, for example, an accused who wishes to raise, as a defence to a charge of theft, a genuine but mistaken belief as to a claim of right may find his defence somewhat undercut by virtue of the fact that he had, on an earlier occasion, stood trial for a similar offence, and gained an acquittal on the same basis as that for which he now contends. It is the knowledge gained, as a result of the earlier prosecution, that is significant, and not any tendency on his part to engage in the conduct alleged. In R v Leask,[8] a very similar issue arose. The question was whether evidence that the accused had made 114 bank deposits of less than $10,000 permitted an inference that he had knowledge of laws requiring reporting of transactions involving more than $10,000, and was trying to evade them. One member of the New South Wales Court of Criminal Appeal specifically concluded that such evidence was not tendency evidence, but considered that it could be viewed as coincidence evidence. The other two members of the Court did not find it necessary to resolve that question. Had the accused been previously convicted of an offence under these laws, involving non-reporting of a transaction exceeding $10,000, that could have been proved in order to establish his knowledge of the way in which those laws operated, and by inference, his intention to evade them.
[6]Wilson v The Queen (1970) 123 CLR 334. There it was held that evidence of previous assaults perpetrated by the accused upon the deceased could be used to show his state of mind towards her, and thereby rebut accident. Reasoning of that kind has nothing to do with tendency or coincidence. See also FDP v The Queen [2008] NSWCCA 317.
[7]R v Mansfield [1978] 1 All ER 134.
[8][1999] NSWCCA 33.
It is precisely this last category of non-tendency and non-coincidence reasoning that the judge in the present case adopted. His Honour took the view that the applicant’s previous experience in the cultivation of cannabis bore directly upon his state of mind, as regards the size of the crop he was growing.
In my view, his Honour’s analysis of the basis upon which the evidence of the applicant’s previous conviction was admissible was correct. The evidence was relevant, neither as tendency nor coincidence, but because it went directly to the central issue in the trial, namely, the applicant’s state of mind.
The only question that remains to be considered is whether the judge erred in refusing to exclude this evidence pursuant to s 137. Plainly, his Honour gave careful consideration to this matter, and had regard to the competing factors when he undertook the requisite balancing process. He recognised that evidence of the applicant’s previous involvement with cultivating cannabis would be prejudicial, but he also recognised that it was highly probative as regards the sole element in dispute in this trial.
Of course, the applicant carried the onus in seeking to have the evidence of prior cannabis cultivation excluded under s 137. In that sense, the position under that section replicates the common law under the Christie discretion.[9] I can detect no error in the way in which his Honour went about the task of exercising his power under s 137. I do not think that it is reasonably arguable that he fell into appealable error in that regard.
[9]R v Christie [1914] AC 545; R v DG [2010] VSCA 173, [54].
Even if, contrary to the view I have expressed above, it could reasonably be argued that his Honour erred in the exercise of the power under s 137, I do not think it is reasonably arguable, in the circumstances of this case, that any such error gave rise to a substantial miscarriage of justice. Certainly, the jury were warned in the strongest possible terms not to use the evidence of the prior cultivation for any purpose other than to impute knowledge to the accused of what size crop might result from the number of plants that he was cultivating. In those circumstances, I consider that there was little risk that the jury would have used this evidence impermissibly.
For these reasons, I would refuse leave in relation to ground 1.
Conclusion regarding ground 2
During the course of the informant’s evidence, the videotaped record of interview conducted with the applicant was played to the jury. It had been edited by agreement between the parties. At the conclusion of the tape, and without consultation, his Honour informed the jury that a portion of irrelevant material had not been edited out. That portion consisted of questions about a trafficable quantity of cannabis. The transcript of interview relevantly reads as follows:
Constable 1: Yeah. So it’s what — what’s happened with this is it’s broken down into amounts. So if you’ve got over a certain amount of plants, then that’s — that is … seen as trafficking because you’ve got so many plants. Okay. That’s … how it works and that’s the law. So it’s a trafficable amount of cannabis that you could have at your house. So if you have a certain amount of cannabis, you’re seen to have a trafficable amount.
Constable 2: And that’s based on the number of plants and like, total weight of all the product, not necessarily a phone call to sell and money exchanging. It’s like, if you have this amount, it is seen that you are trafficking because you’ve just got … it’s too much.
…
Constable 1: And that’s how it’s seen by the eyes of the law. So a trafficable —
Applicant:So I’m seen as a trafficker.
Constable 1: Well that’s a possibility with the amount of marijuana … You could have, it could be seen as … called a trafficable amount. Are you getting my difference in wording there?
…
Not necessarily saying that you have to be … selling it, but you’ve got an amount there that is trafficable and that is considered by the eyes of the law to be too much for yourself and is … trafficable … I might have to check my numbers for that …
Applicant: You are joking me.
…
Constable 1: So there’s a certain amount of plants and it becomes a trafficable amount. Alright.
Constable 2: But still that’s from our side, as the police we have to prove that, but in the eyes of the law, yeah, over the 10 it’s viewed —
Applicant:Over the 10 plants?
Constable 2: Viewed as trafficable. Yeah.
After the tape was played, the trial judge directed the jury as follows in relation to this particular passage:
[L]adies and gentlemen, I told you there’d be any irrelevant material cut out and there’s a glaring section that should have been cut out because it’s completely irrelevant. It goes from p.60 through to p.64. In the course of those passages the informant asked questions about trafficking and asked questions — and there were questions asked by both police officers and statements made about the law having presumptions of trafficking if you have a certain amount of plants and all that sort of things.
We’re not dealing with trafficking, we’re dealing with cultivating. Trafficking’s got nothing to do with it in this case and they — those — I can just tell you should ignore entirely that now. It’s an easy mistake to make, because there are a number of different levels that the law looks at depending upon the number of plants you might have, if you’re dealing with marijuana, where certain presumptions arise.
Now, we’re not dealing with trafficking or trafficable presumptions, we’re dealing with cultivation of cannabis and whether or not that cultivation was a commercial quantity and he intended to cultivate a commercial quantity. We’ve got nothing to do with trafficking, so ignore any of the material in that about trafficking.
Subsequently, the informant was cross-examined about, amongst other things, the fact that prior to Mr Azzopardi’s report, the police had believed that the amount of cannabis being grown was merely trafficable,[10] rather than commercial.[11] Presumably, this was on the basis that it was sought to be argued that if the police had made a mistake of that kind, it would be understandable that the applicant might also have failed to appreciate the weight of the cannabis crop which he had been growing.
[10]A trafficable quantity of cannabis is 250 grams or 10 plants.
[11]As previously noted, a commercial quantity of cannabis is 25 kilograms or 100 plants.
On the following day, defence counsel, having considered the matter, asked the judge, at that stage, to redirect the jury as to the relevance of the portions of the record of interview that related to trafficable quantities. His Honour declined to do so. However, he indicated that he would say something about that matter in his charge.
His Honour’s direction to the jury to disregard the particular parts of the record of interview dealing with trafficking gave rise to ground 2 in support of this application. That ground asserts that the trial miscarried because of the judge’s failure specifically to redirect the jury in relation to the relevance of some of the questions and answers played in the record of interview.
As I have indicated, the argument appears to be that, in a trial where intent is the only issue to be determined, as regards the weight of the cannabis being grown, evidence that the investigating police themselves were mistaken as to the amount they had seized from the applicant’s premises may have been significant. Yet the judge had told the jury they should disregard that evidence as irrelevant.
It was submitted that the judge’s direction had, effectively, denied the applicant the benefit of evidence that might be thought to have been in his favour. In those circumstances, so it was said, the judge ought to have redirected the jury so as to enable that evidence to be taken into account.
In my view, this ground lacks substance. The question for the jury’s determination related to the applicant’s state of mind regarding the quantity of cannabis that he was growing. The fact that a police officer, who had attended at the premises, and may or may not have had any appreciation of what a given number of plants might weigh, had a particular belief as to that matter, was entirely irrelevant. That is particularly so given that the police officer in question spoke of the number of plants, rather than their weight. Any supposition on his part as to whether the plants weighed more than 25 kilograms would have been nothing more than an expression of an opinion, unsupported by any evidence of training or experience, and inadmissible under s 79.
Leave to appeal against conviction should be refused.
Proposed grounds of appeal — sentence
The proposed grounds of appeal, as regards sentence, are as follows:
Ground 1:The sentence imposed by the learned sentencing judge was manifestly excessive and disproportionately punitive in view of the finding by the learned sentencing Judge that the cultivation was for personal use.
Ground 2:The learned sentencing Judge erred in imposing a sentence with a highly punitive effect, contrary to his stated intention.
After the applicant was convicted, a pre-sentence report was obtained from a forensic psychologist, Mr Warren Simmons. It was his opinion that the applicant suffered from a depressive disorder during the period leading up to his offending, in the aftermath of a motor vehicle accident. It was said that this had had an impact upon his decision making, and led to significant substance abuse, initially cannabis, and later alcohol. Mr Simmons opined that it was ‘important that he be monitored for depressive symptoms as he may again develop the disorder during his incarceration.’
It was submitted on behalf of the applicant that the following matters should be regarded as mitigatory:
·he was a 41 year old man who until his incarceration had lived with his father at the property where the cannabis had been grown;
·he had only told his father of his criminal charges after he was incarcerated but that his father was now supportive;
·he had a long standing problem with cannabis use and a prior history that reflected that problem and use;
·he had been able to abstain from cannabis use for lengthy periods of time, avoiding contact with the criminal justice system and being gainfully employed;
·his relapse into cannabis use in 2013 was as a result of the loss of his car in an accident and consequential loss of employment as a courier;
·cannabis use was his only motivator for the offending, financial gain was neither a motivator nor an outcome; and
·he had been co-operative with investigators and had expressed remorse in his record of interview.
It was submitted that an important factor in support of this application was the Crown’s concession, on the plea, that it could not establish that the cultivation had been for a truly commercial purpose, as distinct from personal use. It was in those circumstances that counsel for the applicant on the plea submitted that the judge should consider a combination of a CCO and a short term of imprisonment. At the relevant time, the maximum term of imprisonment that could be combined with a CCO was three months.
A CCO assessment was ordered. The applicant was found suitable. Doctor Sachin Jindal of the Victorian Institute of Forensic Mental Health prepared a report dated 31 October 2014 in which he concluded that the applicant was, at the time of the assessment, suffering from a major depressive disorder. He also found, specifically, that the applicant was being stood over in prison, and was vulnerable, having sustained a broken collarbone in an assault. He also expressed the opinion that prison would weigh more heavily upon him by reason of his major depression.
On 29 September 2014, the Sentencing Amendment (Emergency Workers) Act 2014 came into force. It’s practical effect was that, from that time onwards, a sentence of up to two years’ imprisonment could be combined with a CCO. On 5 November 2014, the judge sentenced the applicant as set out earlier in these reasons for judgment.
On 22 December 2014, this Court delivered judgment in Boulton v The Queen,[12] which, it has been said, radically changed the landscape, so far as the possible use of CCOs was concerned.
[12][2014] VSCA 342.
It is now said that the sentence imposed was manifestly excessive, being disproportionately punitive. The combination of 18 months’ imprisonment, with a CCO of 2 years, coupled with a condition of 300 hours’ community service, is said to have gone beyond the needs of specific and general deterrence. The various mitigating factors, including the relevance of Verdins principles,[13] as well as the objective gravity of this offending (said to be at the lowest end of the scale for this particular offence) rendered this sentence wholly outside the range reasonably available.
[13]R v Verdins (2007) 16 VR 269.
In relation to ground 2, the judge below stated in his sentencing remarks that he intended, by the sentence imposed to ‘also encourage [the applicant’s] rehabilitation with extended time on a community corrections order’.[14] In approaching the matter in that way, the applicant submitted that this particular CCO included a number of punitive elements, among them many hours of compulsory unpaid work as well as restrictions on movement and behaviour. The emphasis was plainly punitive, rather than rehabilitative. This was said to be at odds with the judge’s stated intention.
[14]DPP v Ivanoff (Unreported, County Court of Victoria, Judge Chettle, 5 November 2014) [12].
Conclusion regarding application for leave to appeal against sentence
It was accepted on behalf of the applicant on the plea that a term of imprisonment was inevitable. However, the submission was couched in terms of a back-ended CCO, attached to a sentence of no more than three months’ imprisonment. The applicant received a sentence of 18 months’ imprisonment.
In those circumstances, I do not think that the Crown’s submission that the concession made below renders the challenge to the term of eighteen months untenable should be accepted.
The facts of this case are somewhat special. I think it is reasonably arguable that the combination of 18 months’ imprisonment, with a 2 year CCO, in these terms, was excessive. For that reason, I propose to grant leave on ground 1 of the application for leave to appeal against sentence.
In my opinion, ground 2 is not reasonably arguable. I do not think that the sentence imposed was contrary to the judge’s stated intention. I would refuse leave to appeal on that ground.
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