Jason Uri Ivanoff v The Queen
[2015] VSCA 262
•17 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0263
| JASON URI IVANOFF | Appellant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 September 2015 |
| DATE OF JUDGMENT: | 17 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 262 |
| JUDGMENT APPEALED FROM: | DPP v Ivanoff (Unreported, County Court of Victoria, Judge Chettle, 5 November 2014) |
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CRIMINAL LAW – Appeal – Sentence – Previous convictions – Appellant sentenced to 18 months’ imprisonment with Community Correction Order for 2 years and 300 hours unpaid community work – Cultivation of cannabis in a commercial quantity – Cannabis intended for personal use – Appellant suffering depression due to stress at time of offending and of sentence – Appellant finding prison difficult at time of sentence – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Respondent | Ms D Piekusis | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
BEACH JA
KAYE JA:
The appellant was convicted, by the jury on his trial in the County Court, of one charge of cultivation of a narcotic plant, namely cannabis, in a commercial quantity between 24 January 2013 and 24 April 2013 contrary to s 72A of the Drugs, Poisons & Controlled Substances Act 1981 (‘the Act’). After hearing a plea, the judge sentenced the appellant to 18 months’ imprisonment, to be followed by a two year community correction order (‘CCO’), with a condition attached that he perform 300 hours of community service.
The appellant initially sought leave to appeal against both the conviction and the sentence. The leave application was determined on the papers by a judge of this Court. Leave was refused in respect of the conviction, but granted in respect of one ground relating to the sentence, namely, that the sentence was manifestly excessive.
The offending
The appellant’s offending took place at his home in Trumpington Grove, Menzies Creek. Following execution of a search warrant at those premises, the police located 34 mature cannabis plants growing, scattered amongst other plants, in a paddock at the rear of the house. They also found dried and semi-dried and mouldy plants in his bedroom. In addition, the police found three purpose-built tents, each containing a hydroponic setup, in the basement to the house. Two of those tents contained two mature plants each, and the third tent contained eight mature, but smaller, plants. There were also 48 small plants in individual pots enclosed in a plastic container.
When interviewed by the police, the appellant readily admitted to having cultivated the cannabis, but he stated that he did so in order to achieve a ‘perpetual supply’ for his personal use. A botanist who analysed the plants, gave evidence at trial that the total number of plants was 94, and that their total weight was 36.2 kilograms. Pursuant to the Act, a commercial quantity of cannabis is 25 kilograms or 100 plants.
The only issue at trial was whether the prosecution could establish the requisite state of mind for cultivation of a commercial quantity of cannabis, namely, an intention by the appellant to cultivate at least 25 kilograms or 100 plants of the substance.
On the appellant’s plea, the prosecution conceded that there was no suggestion that the appellant had cultivated the substance in order to sell it. In that respect, counsel noted that the appellant’s premises did not have any of the ordinary paraphernalia connected with cultivation for profit, such as weighing scales, lists of customers, or a large horde of cash. The judge accepted that characterisation of the appellant’s premises, noting also that it did not bear the classically commercial appearance of such premises, namely, being ‘full of cannabis and … run with sitters and all that’. Accordingly, in his reasons for sentence, the judge stated that he proposed to sentence the appellant on the basis that the cannabis, cultivated at the premises, was for his own use.
Previous convictions
The appellant was 41 years of age at the time of sentence. He had a number of previous convictions, principally for offences of dishonesty, between 1992 and 2005. More relevantly, he had four previous convictions for either cultivating, or attempting to traffick, cannabis or other substances. Those previous convictions are as follows:
(1)On 19 June 1992 the Ringwood Magistrates’ Court dealt with the appellant on charges of cultivating, using and possessing cannabis. The court adjourned the charges without conviction for a period of 12 months.
(2)On 31 December 1992, the Ringwood Magistrates’ Court fined the appellant a total of $700 for one charge of cultivating cannabis, two charges of possessing cannabis, and one charge of using cannabis, including a fine of $500 for the charge of cultivating cannabis.
(3)On 21 October 2005, the County Court at Melbourne (on appeal from the Magistrates’ Court) sentenced the appellant, on one charge of cultivating cannabis, and other offences, to an aggregate sentence of six months’ imprisonment, of which three months were suspended for a period of two years.
(4)On the same day, the County Court at Melbourne sentenced the appellant, on charges of attempting to traffick a drug of dependence in a commercial quantity, to nine months’ imprisonment suspended for two years. The court also fined the appellant $250 on a charge of possessing a drug of dependence.
Background
After leaving school, the appellant completed a four year apprenticeship as a fitter and turner. He then became involved in plastic injection moulding, and in that capacity he worked with his father for a period of eight years. In the meantime, at about the age of 21 years, the appellant was introduced to cannabis and he commenced smoking it, initially intermittently, but often on a daily basis. In 2001, the appellant’s father’s business collapsed, which resulted in huge stress for all of the family. The appellant endeavoured to return to university, but he had difficulty coping there because of problems with his mood and concentration. He resorted to smoking cannabis in increasing amounts. It was in those circumstances that he was apprehended in late 2003, and sentenced in October 2005, to a term of imprisonment.
Apparently, the prison sentence shocked the appellant into a realisation that cannabis had damaged his life. He ceased using the substance after his release, and consulted psychologists and counsellors for assistance. He then commenced a number of businesses, the last of which was as a courier.
That business was apparently going quite well until December 2012, when the appellant’s work vehicle was involved in an accident, as a result of which it was ‘written off’. The appellant’s insurance company refused to indemnify him for all but a small part of the damage. The appellant instituted legal proceedings, but without success. The whole process took over a period of 12 months. During that time, the appellant experienced substantial stress levels. Having ceased using cannabis 10 years previously, he resorted to using it to self-medicate and relax. His cannabis use increased significantly. It was in that context that he commenced to cultivate, at his home, the cannabis, which was the subject of the charges for which he has been sentenced.
Reports
The appellant relied on a report of Mr Warren Simmons, a psychologist, who examined him at Port Philip Prison in August 2014 after his arrest. Mr Simmons found, on examination, that there was clear evidence that the appellant suffered a depressive disorder commencing after his motor vehicle accident, and which became more significant after his arrest and charge. Mr Simmons considered that the appellant had a major depressive disorder at the time of offending, which had ‘almost certainly influenced his behaviour and view of the world at that time’. He was of the view that the appellant would benefit from some drug and alcohol counselling to assist him to address issues related to his substance use. In addition, given his history of a depressive disorder, the appellant should be monitored for depressive symptoms. Mr Simmons also noted the presence of some of the symptoms on the autism spectrum.
As a result of that report, the judge, after hearing the plea, directed that a report be obtained from Forensicare. For that purpose, Dr Sachin Jindal examined the appellant in custody in September 2014. Dr Jindal considered that the appellant fulfilled the diagnostic criteria (DSM-V) of Major Depressive Disorder of moderate severity at the time of his assessment. The appellant probably suffered from a depressive episode at the time of significant stress after the collapse of his father’s business in 2001, but it was of less severity than currently. The appellant also fulfilled the diagnostic criteria of cannabis dependence, but he was at the time abstinent under the controlled environment of prison.
Dr Jindal considered that there was no evidence that the appellant was on the autism spectrum. Rather he considered that the appellant’s demeanour in interview was significantly affected by his major depression.
Dr Jindal was of the view that the offending by the appellant, in the present case, occurred in the background of the loss of work and income due to his accident in December 2012, and his perceived non-resolution of the unfair treatment of him by the insurance company, which increased his stress to substantial levels. That threw him into a vicious cycle of increasing his stress levels, inadequacy of coping, and depression which had been progressing without treatment.
Dr Jindal considered that a custodial disposition would weigh more heavily on the appellant, due to his major depression and significant guilt. There was some evidence that he was vulnerable and prone to exploitation in the prison environment. Dr Jindal also noted that the appellant was motivated to remain abstinent from further cannabis use.
One other factor that was relevant to sentencing was that, at the time of the plea, the appellant presented with a fractured collarbone, which he had sustained while in custody. Although he was reticent about revealing how he sustained the injury, he did tell Dr Jindal that he had been stood over by other prisoners at Port Philip Prison, and that he had been pushed over a bunk bed which had resulted in his injury.
The plea
On his plea, counsel for the appellant emphasised that there was no commercial element to the appellant’s offending, but that he had cultivated the substance for his own use. In addition, counsel relied on the fact that the appellant had not been involved in any criminal offending between 2003 (for which he was sentenced in 2005) and 2013. During that period, he had successfully conducted a number of businesses. It was put that the appellant’s prospects of rehabilitation were good. Counsel accepted that the appellant’s offending would result in a term of immediate imprisonment, but he submitted that that term should be short, and should be combined with a community correction order.
In response, counsel for the prosecution, as we have already stated, accepted that there was no suggestion of any commercial dealing by the appellant, such as in selling the cannabis grown by him. Counsel accepted that the cultivation conducted by the appellant was not ‘the most sophisticated set up’. Counsel pointed to the appellant’s previous convictions, and submitted that, in the circumstances, both general deterrence and specific deterrence should be given particular weight. Counsel submitted that in the circumstances the only appropriate sentence was one of a term of imprisonment.
Reasons for sentence
As we have already stated, in his reasons for sentence, the judge noted that the prosecution could not establish that the appellant was cultivating the cannabis for a truly commercial purpose. Thus, his Honour proposed to sentence the appellant on the basis that the cannabis was for his own use. However, his Honour noted that the appellant knew full well that to cultivate cannabis in the quantity that he did constituted a serious criminal offence.
The judge noted that the appellant had a history of depression that preceded his involvement in the offending. His Honour stated:
A number of factors conspired to tip you off the rails, and you effectively threw away the good work you had engaged in by not offending for nearly ten years … .
The judge also noted that the appellant had found his time in custody difficult, and that he had been a victim of physical assault. The judge accepted that a custodial sentence would weigh more heavily on the appellant, due to his major depression and significant guilt, as found by Dr Jindal. The judge considered that a term of imprisonment of 18 months, and a community correction order of two years, would be appropriate. His Honour explained the reasons for that disposition as follows:
The idea is that I intend to deter you and others from engaging in the conduct you did, but also encourage your rehabilitation with extended time on a community corrections order. Both you and the community benefit while you are supported in your depression, and it is hoped that you will not re-offend.
The judge further noted that the purpose of the community correction order was ‘… to attempt to assist you to deal with the depression that has blighted your life and keep you away from cultivating cannabis’.
Counsel submissions
As stated, the sole ground of appeal is that the sentence imposed is manifestly excessive and disproportionately punitive in view of the finding by the judge that the cannabis cultivated by the appellant was for his personal use.
In support of that ground, it was submitted that the CCO was punitive, particularly as it contained a requirement for 300 hours’ work. Counsel relied on the decision of this Court in DPP v Edwards[1] that a CCO, in such a form, is properly regarded as punitive, and as having important weight in terms of general deterrence and specific deterrent.
[1][2012] VSCA 293.
It was submitted that the sentence, combining 18 months’ imprisonment with such a CCO, was manifestly excessive, in view of the fact that the appellant was at the time addicted to cannabis, and suffering major depression, which played a role in his offending. In addition, the principles in R v Verdins[2] apply, as a term of imprisonment would weigh more heavily on the appellant.
[2](2007) 16 VR 269 (‘Verdins’).
In response, it was submitted on behalf of the respondent that the sentence is not manifestly excessive. The appellant had previously been dealt with on four previous occasions for similar drug offences. The principles of just punishment, denunciation, general and specific deterrence were thus relevant to the exercise of the sentencing discretion. It was noted that, on his plea, the appellant’s counsel conceded that an immediate term of imprisonment was appropriate, and that such a term combined with a CCO, including a condition for a number of hours of work, was appropriate. It was submitted that the judge was alert to the fact that the appellant’s time in custody had been difficult, and his Honour gave appropriate weight to that factor. Thus, it was submitted that the sentence was not wholly outside the permissible range of sentences available to the judge.
Conclusion
In order to succeed on the ground of appeal that the sentence is manifestly excessive, the appellant must demonstrate that the sentence was wholly outside the range of sentencing options available to the sentencing judge. Such a ground is difficult to establish, and generally does not admit of detailed argument or consideration.
On its face, the offending by the appellant in this case is serious. The offence, for which he was convicted, has a maximum sentence of 25 years’ imprisonment. The appellant has, in effect, four previous convictions for drug related offences connected with either the cultivation or trafficking of prohibited substances. Based on those considerations, and without more, at first blush the sentence imposed upon the appellant might fairly be regarded as within the permissible range.
On the other hand, there are important mitigating circumstances, which were indeed recognised by the judge, both in the course of the plea submissions before him, and in his reasons for sentence. First, it was accepted that the appellant was to be sentenced on the basis that he did not cultivate the commercial quantity of cannabis for sale but, rather, that he did so for his own use. While that factor is not a legal excuse, nevertheless it removes this from the class of cases, in which the cultivation of a commercial quantity, of a prohibited substance, was accompanied by all the trappings of a commercial operation in which the cultivated substances were to be sold for profit.
Secondly, there were significant mitigating factors attending the appellant’s offending. During the previous 10 years, he had been able to overcome his problem with the abuse of cannabis, and he had not offended. However, as noted by Dr Jindal, he had limited skills with which to cope when stress became significant for him. In those circumstances, when his truck was, in effect, written off, and his courier business terminated, he suffered major depression, in the course of which he, again, sought to alleviate his symptoms by the use of cannabis. As the sentencing judge noted, at that time, circumstances conspired to ‘tip (the appellant) off the rails … ‘. Those circumstances reduced the appellant’s moral culpability for the offending for which he was sentenced.
Thirdly, the appellant has been diagnosed to suffer from major depression. It was accepted by the judge that, accordingly, a term of imprisonment would weigh more heavily on the appellant. In addition, while the considerations of general and specific deterrence are relevant, and indeed important, in a case such as this, proper sentencing principles dictate that those considerations be given less emphasis than otherwise.[3]
[3]Verdins (2007) 16 VR 269, 276 [32].
The appellant does indeed have a number of previous convictions which weigh against him. However, Dr Jindal expressed the view that the appellant probably suffered from a depressive episode at the time of significant stress after the business collapse of his father in 2001. While that circumstance does not eliminate the relevance of the appellant’s previous convictions, nevertheless it does reduce the significance that ought to be attributed to them in the context of the appellant’s offending in the present case.
Fourthly, of course, the judge had before him cogent evidence that the appellant was finding time in prison difficult. The judge noted that circumstance, observing:
You do not fit in, obviously, with the jail population, and have difficulty interacting with the prisoners.
That consideration adds to the difficulties which the appellant has experienced, and will experience, in coping with the prison environment, due to his depressive disorder.
Finally, apart from his offending, both in this case and previously, the appellant has demonstrated that he is capable of living a productive, and enterprising, law abiding life. Indeed, the judge was moved, by that circumstance, to structure his sentence by imposing the community correction order in order to encourage the appellant’s rehabilitation.
Thus, the mitigating circumstances which were established before the sentencing judge were of significant weight. The critical question is whether those circumstances are of such weight as to demonstrate that the sentence imposed upon the appellant was wholly outside the range of sentences available to the judge.
Standing alone, we do not consider that a sentence of 18 months’ imprisonment would be manifestly excessive, notwithstanding the force of those mitigating circumstances. However, the sentence imposed by the judge included a community correction order of two years upon the appellant’s release from prison, with a condition that he perform 300 hours’ community work. It is well recognised, in a number of decisions in this Court, that such an order has important punitive value, both in terms of providing for general deterrence and specific deterrence.[4]
[4]See Boulton v The Queen [2014] VSCA 342; Ahmad v The Queen [2015] VSCA 23, [23]–[25] (Priest and Beach JJA); Marocchini v The Queen [2015] VSCA 29, [24]–[29] (Ashley and Beach JJA).
Taking into account the joint operation of the term of imprisonment, length of the community correction order, and the community work condition contained in it, and bearing in mind the mitigating circumstances, in our view the sentence imposed on the appellant was manifestly excessive, in that it was wholly outside the range of the permissible sentencing options available to the judge.
In those circumstances, we consider that the appropriate sentence to impose on the appellant is to sentence him to imprisonment for a term equal to the time already served in custody, to be followed by a 12 month community correction order, without any condition that he perform community service, but with conditions, pursuant to s 48D of the Sentencing Act 1991, that he undergo assessment and treatment for rehabilitation for drug abuse, and that he undergo mental health assessment and treatment.
For those reasons, we would allow the appeal, set aside the sentence imposed by the sentencing judge, and in lieu impose the following sentence:
(1)The appellant be sentenced to a term of 419 days’ imprisonment.
(2)The appellant undergo a community correction order for a period of one year. Apart from the core conditions, the appellant also undergo assessment and treatment for drug abuse, and that he undergo mental health assessment and treatment.
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