Jones v The Queen
[2021] VSCA 114
•6 May 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0171
| KEANE JONES | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 May 2021 |
| DATE OF JUDGMENT: | 6 May 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 114 |
| JUDGMENT APPEALED FROM: | [2020] VCC 549 (Judge Parrish) |
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CRIMINAL LAW — Appeal — Sentence — Application for extension of time — Cultivating a commercial quantity of cannabis and associated offences — Sentence of three years and two months’ imprisonment with one year and ten months non-parole — Whether applicant had impaired mental functioning — Whether exceptions in ss 5(2H)(c)(i) and (e) of the Sentencing Act 1991 applied — Whether drug addiction a mitigating factor — Whether sentence manifestly excessive — Application for extension of time refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Ms C Boston | James Dowsley & Associates |
| For the Respondent: | Mr J Dickie | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA:
Introduction
On 24 January 2020, the applicant pleaded guilty before a judge in the County Court — accepted by the prosecution to be an ‘early plea’ — to cultivation of a narcotic plant, Cannabis L, in a commercial quantity;[1] trafficking in a drug of dependence, Cannabis L;[2] and possessing a drug of dependence, methylamphetamine, heroin, oxycodone and buprenorphine;[3] and to the related summary offence of possessing a Schedule 4 poison, Seroquel.[4]
[1]Drugs, Poisons and Controlled Substances Act 1981, s 72A. The maximum penalty is 25 years’ imprisonment.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 71AC(1). The maximum penalty is 15 years’ imprisonment.
[3]Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(b). The maximum penalty is one year’s imprisonment where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking.
[4]Drugs, Poisons and Controlled Substances Act 1981, s 36B. The maximum penalty is a fine of 10 penalty units.
Following a plea in mitigation conducted over two days, on 30 April 2020 the judge sentenced the applicant to a total effective sentence of three years and two months’ imprisonment, with a non-parole period of one year and 10 months, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Cultivating a narcotic plant in a commercial quantity 2 years and 10 months Base 2 Trafficking a drug of dependence 6 months 3 months 3 Possessing a drug of dependence 2 months 1 month Summary Possessing a Schedule 4 poison $250 fine Total effective sentence: 3 years and 2 months’ imprisonment Non-parole period: 1 year and 10 months Section 6AAA declaration: 4 years and 6 months’ imprisonment, 3 years and 2 months non-parole Pre-sentence detention: 7 days Other orders: Forfeiture and disposal orders
The applicant wishes to seek leave to appeal against his sentence on a number of proposed grounds. Since his notice of application for leave to appeal against sentence was filed some three months out of time, the applicant requires an extension of time within which to file his notice.[5]
[5]See Criminal Procedure Act 2009, s 313; Supreme Court (Criminal Procedure) Rules 2017, r 2.23.
For the reasons that follow, we consider that none of the proposed grounds has merit. It would therefore be futile to grant an extension of time.
The applicant’s offending
The applicant’s offending was described in an Amended Summary of Prosecution Opening — treated on the plea as an agreed statement of facts — in the following terms:
1. The [applicant], Keane Jones was born on 27 February 1978 and was 40-41 years old at the time of the offending. He will be 41 years old at the date of the plea hearing.
2. At the time of the offending, [the applicant] was residing with his partner and their three young daughters [in] Seaford.
…
3. On 22 March 2019, police executed a search warrant at [the applicant’s] residential address. ...
[Charge 1 – cultivate cannabis (commercial quantity)]
4. Several large greenhouses and gardening sheds were located at the rear of the property. Within each of the sheds was a large quantity of cannabis plants, with varying quantities and sizes of plants located in each shed.
5. [The applicant] was placed under arrest, cautioned and informed of his rights by Detective Acting Sergeant Chris Sweet.
6. There was a total of 7 growing spaces counted by police, which were a combination of uncovered, semi covered and fully covered areas. The covered and semi-covered areas were predominantly set up hydroponically.
7. Police located the following items:
i. Room 1: cream colour bond shed in rear yard
• 59 cannabis seedlings plants
• 74 small potted cannabis plants
ii. Room 2: black tent in yard
• 21 small cannabis plants
iii. Room 3: outdoor undercover area in rear yard
• 11 large cannabis plants
iv. Room 4: outdoor undercover area in rear yard
• 11 large cannabis plants
v. Room 5: outdoor undercover area in rear yard
• 9 medium cannabis plants
vi. Room 6: shed in far-right corner of backyard
• 7 medium cannabis plants
vii. Room 7: outdoor vegetable garden
• 7 medium cannabis plants
8. Victoria Police Forensic Botanist Susan Fiddian attended at [the applicant’s] address to assist with the analysis and weighing of the cannabis plants. A total of 199 cannabis plants were seized from the property with a total weight of 81.76 kilograms.[[6]]
[6]A commercial quantity of Cannabis L is 25 kilograms or 100 plants. See Drugs, Poisons and Controlled Substances Act 1981, sch 11, pt 2, col 2.
9. On 17 January 2020, Susan Fiddian provided a further statement in which she expressed the following opinions:
a. That the of the 22 cannabis plants that were close to maturity, the leaves and flowering heads constituted approximately 39.7 kilograms of the weight. This equates to an air-dried weight of approximately 9.7 kilograms.
b. That it is not possible to accurately estimate the projected weights of the remaining immature plants had they grown to maturity or the yield of their flowering heads and leaves. However, these plants would have increased considerably in weight had they grown to that stage.
[Charge 3 – possess drug of dependence]
10. Police also located the following items in [the applicant’s] bedroom:
i. 1 zip lock bag of loose dry cannabis
ii. Loose cannabis in a jar
iii. Loose cannabis in a bowl
iv. 2 plastic bottles containing cannabis seeds
v. 1 zip lock bag containing a small amount of methylamphetamine
vi. White pill bottle containing a small amount of methylamphetamine, 88 oxycodone pills, a small amount of heroin wrapped in foil and 1 Subutex (buprenorphine) pill
[Summary charge 8 – possess Schedule 4 poison]
vii. 3 Seroquel (quetiapine) pills
11. On the 26 March 2019, the loose dry cannabis was analysed and weighed at the Victoria Police Forensic Science Laboratory by Forensic Botanist Susan Fiddian. The total weight of the loose dry cannabis was 408.2 grams.
[Charge 2 – trafficking in a drug of dependence]
12. [The applicant’s] phone was seized by police, multiple messages relating to cultivation and alleged trafficking of cannabis were located on his phone. A selection of the text messages are as follows:
20 March 2019:
ADA: ‘Hey bro you got any bud?’
[Applicant]: Hi mate sure do wot you after’
ADA: ‘How much for a q?’
[Applicant]: ‘70’
21-22 March 2019:
ADA: Bro only been getting good feedback. How much can you do a pound for’
[Applicant]: ‘Hi mate few more weeks for the pound just bags at the moment can do 4 for 700 he wants to make it last till next lot there is plenty just big one yet’
13 February 2019:
Thaldin: ‘Hey bro jesse said u where guna send some choof up with it na not in the same bag I’m not riskin it but I’ll put some more money in your bank on Thursday for a new envolope and some chof but yea not in the same bag cheers heaps’
15 January 2019 – 17 January 2019:
[Applicant]: ‘Happy days bro hope all is well with you and the kids want to send some x Mass cards to you’
Thaldin: ‘Hella yea does that mean it’s in the post’
[Applicant]: ‘In my hot little hand right now with more lined up regular bro anyway on the way to post now’ [sends pictures of express post envelopes]
‘I swapped the package cause I payed on card I bought new ones with cash all good still sent on wed just forgot to send the number thought you mite be wanting to check by now ha ha no luck yet’
Interview:
13. On 22 March 2019, Mr Jones was conveyed to Frankston Police Station for interview. He stated the following:
a. In relation to the cultivation of cannabis:
i. That he estimated there to be roughly 80 to 100 plants at the property (A35 – 37)
ii. That he had been growing the plants since November 2018 (A 255)
iii. That no one else was involved in the cultivation (A 43)
iv. That he started growing the plants out of desperation, stating ‘my back is fucked mate, first and foremost, I need medicine’ (A 51)
v. That once the cannabis is ready for harvest, he either smokes it or makes oil to fix his back (A 69)
vi. When asked how much bud he was expecting to get off his crop he stated that it’s very hard to tell but there was gunna be a fair bit (A162) and that ‘it kinda got a bit out of hand’ (A 70)
b. He made admissions to possession of drugs of dependence, stating:
i. That the room where the drugs were located was his bedroom (A 102)
ii. That the methylamphetamine was his (A 239)
iii. That he had previously been prescribed oxycontin but that the doctor had cut him off (A 84 – 86)
iv. The Seroquel was not prescribed (A 109 – 110)
c. In relation to the trafficking of cannabis:
i. He denied giving cannabis to other people or selling it (A 74, A 132)
ii. When asked about the material on his phone he stated: ‘there’s people trying to, yeah, but I’m not really, I’m not really partaking too much (A 124)
iii.Later, he stated ‘I probably would’ve sold some’ (A 143) and ‘I’m not gunna say I wasn’t man’ (A 144)
iv.He denied sending the cannabis in parcels (A 268 – 270)
Proposed grounds of appeal
The applicant seeks to rely on six proposed grounds of appeal as follows:
1. The learned sentencing judge erred in taking into account only the applicant’s depressive disorder in considering the applicability of the exception in s 5(2H)(c)(i) of the Sentencing Act 1991, rather than considering the significant disturbance of the applicant’s thought, mood, perception or memory occasioned by the constellation of the applicant’s physical injuries, depressive disorder and drug addiction.
2. The learned sentencing judge erred in failing to find that the applicant’s impaired mental functioning was a cause of the applicant’s offending.
3. The learned sentencing judge erred in deconstructing the composite phrase ‘substantial and compelling circumstances that are exceptional and rare and that justify not making’ an order of imprisonment, in considering s 5(2H)(e) of the Sentencing Act 1991.
4. The learned sentencing judge erred in failing to take into account the applicant’s drug addiction, which commenced in childhood, as a mitigating factor.
5. The learned sentencing judge erred in characterising the offending as ‘mid-level’.
6. The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in light of the applicant’s reason for offending, lack of financial motive, reduced moral culpability, lack of relevant criminal record, guilty pleas and remorse, together with other factors in mitigation.
The applicant’s personal circumstances
The applicant, born 27 February 1978, is now aged 43 years, and was aged 40 to 41 at the time of offending. He has no relevant prior convictions.
Jeffrey Cummins, consultant and forensic psychologist, in a report dated 13 December 2019 (Exhibit 7 on the plea), summarised the applicant’s personal history as follows:
54 In summary, his parents separated when he was aged two/three, at which time the family home was in Rosebud. Following the separation his father, who was a house painter and dependent on heroin and on Oxycontin and alcohol, relocated to Queensland where [the applicant’s] father formed another relationship. [The applicant] ceased residing with his mother at age 14 and effectively ran away to reside with his father and stepmother in Queensland and he intermittently resided with his father and stepmother and their two sons through until age 19. He then returned to Melbourne, although would intermittently return to spend time with his father in Queensland. His father died of an overdose of Oxycontin on 14/4/2004 and almost immediately [the applicant] took over the care of his two half-brothers, who are now aged 27 and 31 and both reside in Queensland. He reported being very close to his two half-brothers.
55 He also reported being very close to his mother, who is aged 58 and a retired nurse who lives in Frankston. He also reported being very close to his full brother who is aged in his early 40s and has a senior management position at the Family Court in Melbourne.
56 He left school after repeating Year 10 and failing Year 10 at Miles State High School in Queensland. Thereafter he has invariably worked as a painter. His ability to work as a painter has progressively decreased over the recent years. He said it was approximately ten years ago he was diagnosed with a disc injury at L4/L5. He has subsequently seen a neurosurgeon and orthopaedic specialists for the back condition. Approximately 3½ years ago he underwent a carpal tunnel release in his left hand and since that time he has had increased difficulty working as a painter, as he is left-handed. Currently he is undertaking some casual spray painting work. He is also now on a waiting list to undergo a carpal tunnel release in his right wrist.
57 He was medicated on opiate analgesia for many years and he also has a history of being a polysubstance user.
…
59 He still reports daily lower back pain and stated this pain still often extends into his legs and sometimes into his arms.
60 At interview he stated that at the time of his arrest he was a poly- substance user and was also often abusing Oxycontin. He is now also prescribed the anti-inflammatory Mobic.
…
Grounds 1, 2 and 3: Non-application of s 5(2H)(c)(i) of the Sentencing Act 1991
Since the provisions of s 5(2H) of the Sentencing Act 1991 (‘the Act’) are relevant to each, it is convenient to consider proposed grounds 1, 2 and 3 together.
Section 3(1) of the Act defines a category 2 offence to include cultivating a commercial quantity of a narcotic plant under s 72A of the Drugs, Poisons and Controlled Substances Act 1981. It was not disputed that, given that the sentencing judge had to sentence the applicant for a category 2 offence, s 5(2H) of the Act required him to impose a sentence of imprisonment (other than a sentence of imprisonment imposed in addition to making a community correction order), unless the applicant could bring himself within one of the exclusionary provisions of the section. On the plea, the applicant’s counsel submitted that the judge was not required to imprison the applicant by reason of the exceptions in ss 5(2H)(c)(i) and 5(2H)(e).
So far as relevant, s 5(2H) provides:
(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
…
(c) the offender proves on the balance of probabilities that—
(i) subject to subsection (2HA), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability; or …
…
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
Section 5(2HB) provides that ‘impaired mental functioning has the same meaning as in section 10A’.[7]
[7]We note that s 5(2HA) provides that sub-s (2H)(c)(i) ‘does not apply to impaired mental functioning caused substantially by self-induced intoxication’.
By s 10A, impaired mental functioning includes a mental illness within the meaning of the Mental Health Act 2014, which, by s 4, relevantly provides:
4 What is mental illness?
(1) Subject to subsection (2), mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.
(2) A person is not to be considered to have mental illness by reason only of any one or more of the following—
…
(l)that the person uses drugs or consumes alcohol;
…
(3) Subsection (2)(l) does not prevent the serious temporary or permanent physiological, biochemical or psychological effects of using drugs or consuming alcohol from being regarded as an indication that a person has mental illness.
In his reasons for sentence, the judge accepted that the applicant had suffered a depressive disorder for many years which was ‘intertwined’ with his organic conditions (particularly his lower back pain), but did not accept that impaired mental functioning was a cause of the applicant’s offending. The judge said he was not satisfied ‘that the evidence establishes a proper and informed consideration of how any mental impairment may have diminished [the applicant’s] capacity to reason appropriately at the time of the offence occurring’. Further, although the judge accepted that, as a result of the COVID-19 pandemic, ‘there are now substantial and compelling reasons that are exceptional and rare’, the judge did not accept that those circumstances justified him not making an order imprisoning the applicant.
Counsel for the applicant in this Court contended that the judge erred by failing to find that the applicant had impaired mental functioning that was causally linked to the commission of the offence and substantially and materially reduced the applicant’s culpability, and by finding that the existence of substantial and compelling reasons that are exceptional and rare did not justify the imposition of a non-custodial sentence.
We do not agree.
In his report, Mr Cummins expressed the following opinions:[8]
62 [The applicant] reported a lengthy history of depression and at interview stated his depressive symptomatology essentially commenced approximately ten years ago corresponding with him being formally diagnosed with a lower back injury. At interview he acknowledged he had been dependent on opiate analgesia over many years. In my opinion he is diagnosed with a Depressive Disorder Due to Another Medical Condition — with the other medical condition being chronic lower back pain. In my opinion he was suffering from this depressive disorder at the time of offending and he continues to suffer from this disorder. In my opinion the symptoms of this disorder — mainly negative ruminative thinking and a chronic sense of pessimism — will be exacerbated if and when he is incarcerated. Nonetheless, at interview he stated he was currently endeavouring to force himself to accept that it is very probable he will have to spend some time in custody. In this regard he stated he was dreading the prospect of having to inform his daughters about the likelihood of him being incarcerated.
63 In my opinion his assessment of the wrongfulness of his offending — at the time of cultivating the cannabis — was most probably impaired as a result of him suffering from a depressive disorder, coupled with his poly-substance use and his intermittent abuse of Oxycontin.
[8]Emphasis added.
Mr Cummins also gave evidence on the plea. In the course of his evidence, counsel for the applicant directed Mr Cummins to [62] and [63] of his report (set out immediately above). There was the following exchange:[9]
[9]Emphasis added.
[COUNSEL]: Now, is it fair to say that [the applicant] had a, can I use the term constellation of factors of physical injury, mental health, a past childhood history to drug addiction. It seems that he has all those constellations?---Yes.
Is it possible to separate out the role that each of those different factors played in his behaviour?
HIS HONOUR: Behaviour when?
[COUNSEL]: Yes, Your Honour. So, my question in respect of behaviour is his behaviour – you’re aware of his offending?---Yes, I am.
And, so, I’m asking about his behaviour at the time of the offending?---Yes.
Is it possible to separate out the role that those different factors played?---I don’t believe that’s possible in any definitive sense in this situation.
Is it the case that those factors played a role though in his offending?---I believe, so, yes, it is my opinion that he had a genuine organic pain disorder or pain syndrome and that in – as a secondary condition he developed a depressive disorder, ah, in response to that organic pain syndrome and that all occurred against a background of polysubstance use, including usage and, in my opinion, dependency on some illicit drugs and a dependency on some prescription medications.
If the factors together play a role in the – his behaviour, so at the time of the offending, so specifically growing the marijuana, if you can’t separate it out, can you express an opinion about if there is a connection between his mental health and the offending behaviour?---Again, in this situation I believe I could form some nexus and I expressed an opinion about that. In my opinion at the time of offending he was self-medicating, ah, and he was self-medicating in relation to symptoms of depression and pain which had been exacerbated as a result of him being, ah, taken off the prescription analgesia.
With, and please correct me if this next question’s inappropriate given the earlier answers, but given the limitations implicit in the early answers, are you able to express whether – you’ve used the term nexus, is there some sort of causal link, is that a term I can use, between mental health, ah, and the offending?---Yes, well, that’s what I was referring to, ah, I think rather conservatively and carefully in paragraph 63 where I say there [sic] was most probably impaired, ah, as a result of him suffering from a depressive disorder, coupled with his polysubstance use and his intermittent abuse of oxycontin.
And in your professional opinion, do you leave it at that, can I use that term, level of generality and you wouldn’t – you don’t seek to sort of then go into more specific details of the causal link or that’s not an appropriate way to understand it?---Well, in this instance I thought that was, realistically, as far as I was prepared to take it.
Just one moment. Just checking if you express an opinion, sorry, about his – are you able to express any opinions as it relates to – is the term moral culpability within the expertise you have or is that, you wouldn’t seek to serve express opinions on that topic?---Oh, no, that is an issue which we are required to address and, in my opinion, that’s in effect what I am alluding to there in paragraph 63. But in my opinion I did not regard this as a situation where there was, in my terms, an indisputable nexus but I felt that essentially on the balance of probability there was most probably a nexus and, um, [the applicant] himself said to me that his primary reason for cultivating the cannabis was for his own use and ultimately with the goal of extracting, um, cannabis oil to be used for pain management.
The effect of Mr Cummins’ evidence was that the applicant suffered from a depressive disorder at the time of the offending which — coupled with his polysubstance use and his intermittent abuse of oxycontin — probably impaired his assessment of the wrongfulness of his offending (albeit that there was no ‘indisputable nexus’), against the background that the applicant’s primary reason for cultivating cannabis was for his own use and with the aim of extracting cannabis oil for use in pain management. That evidence fell well short of establishing that the applicant had impaired mental functioning that was causally linked to the commission of the offence of cultivation and substantially and materially reduced his culpability.
So far as we can see, Mr Cummins did not at any point suggest that the applicant’s depressive disorder — which flowed from his chronic lower back pain — substantially and materially reduced his culpability in relation to the cultivation offence. Indeed, we are unable to detect any evidence — whether in Mr Cummins’ opinion or otherwise — that would justify the conclusion that the applicant’s depressive disorder was causally linked to the commission of the offence. If anything, the applicant’s statements to Mr Cummins established that the applicant’s cultivation was born of a desire to extract cannabis oil in order to manage his chronic back pain. In other words, any causal connection to the cultivation offence was to the applicant’s physical ailments, not any mental illness — ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’ — that he suffered. Certainly there was no ‘clear and convincing’ evidence which established affirmatively the necessary causal connection.[10]
[10]See DPP v Hudgson [2016] VSCA 254, [114] (Weinberg, Whelan and Priest JJA).
For these reasons, there is no substance in grounds 1 and 2.
Turning to ground 3, even were we to agree with the judge’s conclusion that as a result of the COVID-19 pandemic there were substantial and compelling circumstances that are exceptional and rare, in light of the objective seriousness of the instant offending we are unable to see that those circumstances provided a reason for the non-imposition of a custodial sentence. The applicant’s offending was simply too serious to permit a non-custodial sentence.
Proposed ground 3 also lacks substance.
Ground 4: Drug addiction
In Lacey,[11] an appeal against sentence for trafficking heroin, the Court observed that there ‘is clear and binding authority that in Victoria drug addiction may constitute a significant mitigating factor’.[12] Having cited passages from Nagy,[13] Bouchard[14] and McKee,[15] the Court went on to observe:[16]
The offender’s addiction will only call for mitigation of punishment where it is established on the balance of probabilities that there was a link between that addiction and the commission of the offences. Sentencing error will only arise where it can be shown that, on the material presented on the plea, the sentencing judge was bound to find the requisite link between the offender’s addiction and the offences.[17]
In the present circumstances, there was a strong case for the appellant’s drug addiction to be considered in sentencing. Relevant matters to be taken into account were that the appellant’s drug taking had started when he was still only a child, that he had become addicted at a young age, that his long criminal history was drug-related, that part of the drugs he purchased were for his own personal use and that of his partner, that the charges against him arose out of street level operations and that there was no evidence of enrichment. Moreover, the appellant’s history, as recited in the psychologist’s report, indicates that his use of heroin may no longer be one of choice, but rather compulsion and as a result of addiction. To adopt the words of the Queensland Court of Appeal, addiction in this case is a factor that helps the offender:
to the extent of showing that his … descent into the crime in question was a secondary consequence of desperation produced by a human weakness rather than a primary choice.[18]
[11]R v Lacey (2007) 176 A Crim R 331 (Vincent and Redlich JJA, and Habersberger AJA) (‘Lacey’).
[12]Ibid 333 [12].
[13]R v Nagy [1992] 1 VR 637, 640 (McGarvie J).
[14]R v Bouchard (1996) 84 A Crim R 499, 501 (Callaway JA).
[15]R v McKee (2003) 138 A Crim R 88, 92–3 [12]–[13] (Buchanan JA).
[16]Lacey, 334–5 [16]–[17] (citations as in original).
[17]R v Bernath [1997] 1 VR 271 at 276 (Callaway JA).
[18]R v Hammond [1997] 2 Qd R 195 at 199-200; (1996) 92 A Crim R 450 at 455 (Thomas, Dowsett and White JJ).
The sentencing judge in the present case found that the applicant’s drug addiction was not a mitigating factor. In his reasons for sentence the judge said that
although there was an early introduction by you to drug use, that has not been a continuing situation, as your counsel freely conceded that from the age of 26, for a period of approximately 10 years you were largely drug free, and as a mature adult you then resumed your drug habit and became addicted. In the circumstances of this matter, I do not consider that your drug addiction per se is a mitigating factor.
Counsel for the applicant submitted in the written case that the judge’s treatment of drug addiction was ‘overly simplistic’, and failed to recognise ‘the significant impact that early addiction to drugs can have on a person’s life, and the reality that a drug addict remains a drug addict for the rest of their life, irrespective of whether they cease taking drugs’.
In our view, the applicant failed to establish on the balance of probabilities that there was a link between the applicant’s suggested addiction and the commission of the cultivation and trafficking offences. There was nothing in the material presented on the plea that bound the sentencing judge to find the necessary link between the applicant’s addiction and his offending. Indeed, based on the sentencing judge’s findings, it would seem that the applicant’s primary purpose for cultivating cannabis was for use in pain management. As the judge said in his reasons for sentence:
I do accept that the development of your cannabis crop was essentially for personal use to alleviate pain — particularly back pain — but also, to some extent, to permit amounts of trafficking of cannabis on a small scale to obtain other drugs to assist in your health.
There is nothing in proposed ground 4.
Ground 5: A mid-level offence?
In his sentencing remarks, the judge described the applicant’s cultivation as ‘mid-range level’.[19] He said:
Under the provisions of the Drugs, Poisons and Controlled Substances Act 1981, the number of plants located at your premises was nearly two times the commercial quantity (being 100 plants) and the total weight was more than three times the commercial quantity in terms of weight (that being 25 kilograms).
You have been charged with cultivating that crop of plants between 1 November 2018 and 22 March 2019, a period of approximately 4½ months. The crop was your own venture throughout the period of cultivation.
Although appreciating that your crop did not have further indices of sophistication — for example, there was no electrical bypass in operation, sophisticated lighting, or any particular evidence of food supplements and the like — I do consider that the nature of your offending is reasonably sophisticated and can be characterised in the mid-range level of cultivation. Obviously enough, you played an important role in the existence and maintenance of the setup of the cannabis cultivation at your home.
[19]The judge also described the offending as being ‘mid-level objective seriousness’.
Under cover of proposed ground 5, counsel for the applicant submitted that, quite apart from the dangers of engaging in such characterisations, the applicant’s offending could not properly be characterised as being ‘mid-range’, in circumstances where: first, the judge found that the applicant committed the cultivation offence to alleviate pain; secondly, the applicant did not offend for profit; thirdly, the applicant was not part of a criminal syndicate; and, fourthly, the quantity of cannabis cultivated was well below a ‘large commercial quantity’.
On the other hand, although the respondent’s counsel agreed that the use of labels such as ‘mid-level’ is undesirable, he submitted that the judge did not fall into material error by assessing the applicant’s offending as ‘mid-level’. The offending was objectively serious, involving a ‘sophisticated’ hydroponic set up across multiple growing spaces. Moreover, the applicant was no mere ‘crop-sitter’, being the architect and sole operator of the criminal enterprise. The applicant cultivated cannabis over a four-and-a-half month period and did so with the intention of growing a commercial quantity. Additionally, the applicant also trafficked cannabis.
One may doubt the utility of resorting to descriptions such as ‘mid-range’ when endeavouring to assess where particular offending sits on a scale that extends from the least serious instances of an offence to the worst category.[20] As was observed in Weybury (a case of dangerous driving causing death and serious injury):[21]
Beyond saying that the maximum penalty must be reserved for cases in the ‘worst category’, and that a sentencing judge in every case is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category (properly so called),[22] in my view, attempts to shoehorn particular cases into categories of seriousness such as ‘upper’, ‘middle’ or ‘lower’, or to characterise moral culpability as ‘high’ (or ‘very high’), ‘middle range’ or ‘low’, are often calculated to obscure the essential nature of the sentencing task.
[20]DPP v Ristevski [2019] VSCA 287, [65]–[66] (Priest JA); DPP v Weybury (2018) 84 MVR 153, 165 [33]–[34] (Maxwell P and Hargrave JA), 170–1 [54] (Priest JA) (‘Weybury’). Compare Nguyen v The Queen (2016) 311 FLR 289.
[21]Weybury, 170–1 [54] (Priest JA) (footnote at end of passage omitted).
[22]R v Kilic (2016) 259 CLR 256, 265–6 [18]–[19] (Bell, Gageler, Keane, Nettle and Gordon JJ); Dalgliesh (2017) 262 CLR 428, 443 [45] (Kiefel CJ, Bell and Keane JJ).
In the present case, however, the judge’s resort to a shorthand description such as ‘mid-range level’ to categorise the seriousness of the applicant’s offending cannot avail the applicant.
Clearly, the applicant’s offending was not in the worst category for the offence of cultivating a commercial quantity of cannabis. Equally clearly, however, the applicant’s could not properly be said to be among the least serious examples of the offence. Hence, the applicant’s cultivation extended over a period of more than four months, and involved almost double the prescribed commercial quantity judged by number of plants, or more than three times that quantity assessed by weight. Furthermore, the crop was well organised into several growing areas, with a moderate level of sophistication.
Given that the applicant’s offence of cultivation was not in the worst category of the offence, and could not be said to be among the least serious instances of the offence, self-evidently it had to be considered to fall somewhere on the spectrum between those two extremes. In context, the judge’s use of the descriptions ‘mid-range level’ and ‘mid-level objective seriousness’ was no more than a recognition that the applicant’s offending was neither among the worst, nor the least serious, examples of the offence of cultivating a commercial quantity of cannabis. Thus, although sentencing judges generally should avoid resort to descriptions such as ‘mid-range level’ and ‘mid-level objective seriousness’ — given their potential ‘to obscure the essential nature of the sentencing task’ — it cannot be concluded that the judge’s use of those labels to describe the applicant’s offence in the instant case of itself was productive of material error.
Proposed ground 5 cannot succeed.
Ground 6: Manifest excess
Counsel for the applicant submitted that the sentence imposed on the applicant — including each individual sentence for the charges on the indictment — is manifestly excessive having regard to: the judge’s finding that the applicant’s motivation for the offending was pain relief; the early guilty plea; the applicant’s remorse; the lack of any relevant criminal history; the serious risk that the symptoms of the applicant’s mental illness would be exacerbated; the increased burden of imprisonment flowing from the applicant’s depressive disorder, COVID-19 restrictions and concern about forfeiture; the applicant’s prospects of rehabilitation; and the additional punishment flowing from the ‘almost certain’ forfeiture of the applicant’s interest in the family home.[23]
[23]See R v McLeod (2007) 16 VR 682; R v Mileto [2014] VSCA 161.
The respondent challenged the contention that the sentence was manifestly excessive. Having regard to the maximum available sentence, the cultivation offence was inherently serious. The sentence imposed on that charge was a mere 11.33 per cent of that maximum. In this case, the offending was objectively serious having regard to the quantity of cannabis, the ‘sophisticated’ set-up and the applicant’s role as the owner of the crop. Balanced against these considerations, the judge found a number of matters in mitigation, including that the applicant’s moral culpability was reduced by virtue of the need for the drug for personal pain relief. The judge also took into account the applicant’s early plea of guilty, lack of prior criminal history, remorse and prospects of rehabilitation, together with the effects of the COVID-19 pandemic, the burden on the applicant of awaiting the outcome of the forfeiture proceedings and the relevance of the applicant’s depression to limbs 5 and 6 of Verdins.[24]
[24]R v Verdins (2007) 16 VR 269.
The principles that guide the Court in considering a contention that a sentence is manifestly excessive were repeated in Leimonitis, in which it was said:[25]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[26] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[27] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[28] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[29]
[25]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA) (citations as in original).
[26]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].
[27]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[28]Ibid.
[29] Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
In the present case, instinctively synthesising all relevant considerations for ourselves, we do not consider any of the individual sentences for the charges on the indictment to be manifestly excessive. Nor do we consider the orders for cumulation to be inappropriate so as to have produced a manifestly excessive total effective sentence. And we consider the non-parole period — representing 60 per cent of the head sentence — to be wholly unremarkable.
The applicant was the beneficiary of a number of generous factual findings by the judge (that the respondent did not challenge). By way of example, in his reasons for sentence the judge said of the applicant’s cultivation:
I do accept that the development of your cannabis crop was essentially for personal use to alleviate pain — particularly back pain — but also, to some extent, to permit amounts of trafficking of cannabis on a small scale to obtain other drugs to assist in your health.
There is no evidence that you entered into the cultivation of cannabis for profit and no evidence to suggest that you were involved in large-scale trafficking of the drug. Accordingly, although I consider that the offending in relation to the cultivation of cannabis is objectively of a serious nature, I accept that your moral culpability is reduced because of the need of the drug for personal pain relief. Such a finding impacts on the length of sentence which I am going to ultimately order.
…
As I have made clear earlier in these reasons, I consider that your cultivation of cannabis was essentially for your self-use to help alleviate the chronic lower back pain you had been suffering for many years after the abrupt ending of your regime of prescribed medication ... . Also, so far as the trafficking offence is concerned, I consider this is not the most serious form of trafficking, given the limited period over which it occurred and the reason why it occurred, that is to say, exchanging cannabis for other drugs to help relieve the pain.
Taking these findings at face value, we consider the sentence of two years and 10 months’ imprisonment imposed on the charge of cultivating a commercial quantity of cannabis to be unexceptionable, and the sentence imposed for trafficking to be lenient. Although we regard the sentence for possessing drugs of dependence to be stern, we do not consider it to be wholly outside the available range. The orders for cumulation have produced a total effective sentence that is well within the range of those open in the sound exercise of the sentencing discretion, and, as we have said, the non-parole period is wholly unremarkable.
For these reasons, proposed ground 6 is without merit.
Conclusion
The application for an extension of time within which to file a notice of application for leave to appeal against sentence will be refused.
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