Kennedy v The Queen
[2019] VSCA 127
•5 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0154
| PHILIP KENNEDY | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | PRIEST and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 June 2019 |
| DATE OF JUDGMENT: | 5 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 127 |
| JUDGMENT APPEALED FROM: | DPP v Kennedy (Unreported, County Court of Victoria, Judge McInerney, 9 July 2018) |
---
CRIMINAL LAW — Sentencing — Cultivation of a narcotic plant — Theft — Trafficking a drug of dependence — Plea of guilty — Applicant sentenced to a total effective sentence of five years with a non-parole period of three years — Whether sentencing judge failed to give appropriate weight to impact of admissions made by the applicant — Whether sentencing judge erred in applying the principles in Nguyen v The Queen [2016] VSCA 198 — Whether sentences manifestly excessive — Application for leave to appeal against sentence refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr P J Smallwood | Melasecca, Kelly & Zayler |
| For the Respondent: | Mr P L Bourke | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
KAYE JA:
The applicant pleaded guilty, in the County Court, to one charge each of cultivation of a narcotic plant (cannabis L), theft and trafficking a drug of dependence. He also pleaded guilty to a related summary charge of dealing with property suspected of being the proceeds of crime. He was sentenced to a total effective term of five years’ imprisonment, with a non-parole period of three years.[1] That sentence was constituted as follows:
[1]DPP v Kennedy (Unreported, County Court of Victoria, Judge McInerney, 9 July 2018) (‘Reasons’).
Charge Offence Maximum Sentence 1. Cultivate Narcotic Plant [s72B Drugs Poisons and Controlled Substances Act 1981] 15 years 4 years (base sentence) 2. Theft [s 74 Crimes Act 1958] 10 years 1 year (6 months cumulative) 3. Traffick a Drug of Dependence [71AC Drugs, Poisons, Controlled Substances Act 1981] 15 years 1 year (6 months cumulative) Summary Charge 1 Deal with property suspected of being proceeds of crime [s 195 Crimes Act 1958] 2 years 6 months Total Effective Sentence: 5 years with a non-parole period of 3 years Pre-Sentence detention declared: 38 days 6AAA Statement: 6 years 6 months with a non-parole period of 4 years Other Orders: Forfeiture, Disposal and Compensation Orders made
The applicant seeks leave to appeal on the following three grounds:
Ground 1— The learned Sentencing Judge failed to given (sic) appropriate weight to the impact of the wide-ranging admissions made by the Applicant.
Ground 2— The learned Sentencing Judge erred in finding that the principles outlined in Nguyen v The Queen [2016] VSCA 198 had application in this matter.
Ground 3— The individual sentences imposed, total effective sentence and non-parole period were, in all of the circumstances of this case, manifestly excessive.
Circumstances of offending
The applicant was alleged to have committed the offence contained in the first charge on the indictment, cultivation of a narcotic plant, between 26 September 2015 and 26 September 2017. He was alleged to have committed the second charge (theft of a quantity of electricity belonging to AGL Retail Energy Limited) between 22 August 2017 and 26 September 2017. The third charge alleged that the applicant trafficked in a drug of dependence (cannabis L) on one day, namely, 26 September 2017. The offences that were the subject of charge 1 and charge 2 were committed by the applicant in factory premises at Bayswater. The offence that was the subject of charge 3 (trafficking a drug of dependence) was committed by the applicant at his home in Mary Street, Ringwood East.
On 26 September 2017, police executed a search warrant at the applicant’s home, where he had been residing for the previous three years. During the search of the property, police found a number of different quantities of cannabis, including clip seal bags containing dried cannabis weighing 74.1 grams in the garage, a shopping bag containing 62 grams of cannabis in a bucket in a cupboard in the garage, eighteen snap lock bags containing dried cannabis weighing 204.9 grams in drawers in the cupboard of the garage, a snap lock bag containing cannabis weighing 6.8 grams next to a hydroponic tent, and one clear snap lock bag containing dried cannabis weighing 223 grams inside a grey bag on the front seat of a vehicle at the premises. In addition police located a small exercise book containing information relating to hydroponic cannabis set up and the sale of cannabis, $9,770 in cash on a shelf in a wardrobe in the home, and several utility statements in respect of the factory in Bayswater. The applicant was arrested and transported to Ringwood Police Station to be interviewed there.
At the time of his arrest, the applicant was notified that a search of the Bayswater factory would be conducted. He told police that the keys to the factory were located on his car keys which were in the door of his vehicle at the premises in Ringwood East. Subsequently in the afternoon of 26 September 2017, a search warrant was executed at the Bayswater factory. The warehouse area of the factory was found to be set up in the form of a workshop, and in it there was a hydroponic tent similar to another tent that was located at the applicant’s residence. Behind some large shelving, there were several other tents which were set up in a row and joined together to form a large tent. Those tents all contained lighting and irrigation systems used in the cultivation of cannabis. There were also several handwritten documents found at the premises with diagrams of hydroponic and electric set up. The applicant had installed an electrical bypass at the premises to supply electricity to the hydroponic set up within the tents.
During the search of the factory, police located and seized plants and plant material including the following:
·15 large cannabis plants weighing a total of 34.55 kilograms.
·20 cannabis plants weighing a total of 113.5 grams.
·Two white plastic bags containing loose dried cannabis weighing approximately 1.9 kilograms.
On the following day, the applicant was interviewed at Ringwood Police Station. During the recorded interview, he made a number of admissions to the offending. He stated that he would tend to the cannabis plants at the factory by feeding them hydroponic food and using a hose with a pump, and that he had been growing cannabis at the factory for approximately two years. He said that he had been trafficking cannabis for approximately twelve to eighteen months and that he would sell a 28 gram bag of cannabis for between $180 and $200. He admitted that he had derived the cash sum of $9,770, that was located in the cupboard in his home, from the trafficking of cannabis.
The total cannabis, that was seized from the applicant’s home address, was 582.6 grams. The total amount of cannabis seized from the factory premises at Bayswater weighed 34.78 kilograms. In total, the amount of cannabis seized from the two properties weighed 35.36 kilograms.
The quantity of cannabis that was cultivated by the applicant at the Bayswater premises (35 kilograms) was prima facie a commercial quantity (which comprises not less than 25 kilograms or 100 plants) under Schedule 11 Part 2 of the Drugs Poisons and Controlled Substances Act 1981. The prosecution did not charge the applicant with cultivating a commercial quantity, and the matter resolved on the applicant’s plea to cultivating simpliciter, not on the basis of the quantity of drug that was cultivated, but on the element relating to the applicant’s intention.
Previous convictions
The applicant had two relevant previous convictions for trafficking cannabis. On 3 July 2003, he was sentenced by Ringwood Magistrates’ Court to an aggregate sentence of four months’ imprisonment, to be served by way of an intensive correction order, in respect of charges of trafficking cannabis, cultivating a narcotic plant (cannabis), possessing cannabis, and installing unsafe electrical equipment. Subsequently, on 13 August 2008, he was sentenced by Ringwood Magistrates’ Court to a term of seven months’ imprisonment to be served by way of an intensive correction order on a further charge of trafficking cannabis. In addition, on 1 December 2006, he was fined by Ringwood Magistrates’ Court on charges of possession of cannabis and theft.
The plea
The applicant was born in October 1944. At the time of the offending he was 70 to 72 years of age, and at the time of sentence he was 73 years old.
After completing his apprenticeship as a carpenter, he established his own company which constructed house framing and which was also involved in building double storey extensions. At the same time he had a commercial cleaning business. During that period he married, and had three children. His marriage broke down, however, in the late 1980s in circumstances which caused the applicant to have what was described on the plea as a ‘nervous breakdown’. As a result, his business fell apart. At the same time he was responsible for raising his two sons, while his estranged wife cared for their infant daughter. With the collapse of his business, the applicant also lost his home. In due course, he commenced a new building business in which he employed his two sons. Sometime later he also commenced another cleaning business. However, that business failed, and the applicant became unemployed. It was in those circumstances that he became involved in the offending for which he was convicted by Ringwood Magistrates’ Court in 2003.
Subsequently, in 2009, the applicant married his second wife who he had met in the Philippines. He sponsored her to come to Australia. Together they had a son who was seven years old at the time of sentencing. The applicant’s wife also has an 18 year old son from a previous relationship who resided with her and the applicant. At the time of the offending the applicant was in receipt of an aged pension. He ceased to receive that pension when he went into custody. His wife, who is not an Australian citizen, is not eligible for a pension.
On the plea, counsel for the applicant accepted that the applicant’s offending fell at the ‘higher end of the range’ for the offences that were charged. Nevertheless, counsel submitted that the appropriate disposition was a sentence of a term of imprisonment combined with a community correction order. In support of that submission, counsel relied on the applicant’s plea of guilty, which (it was contended) was an early plea, and submitted that the applicant’s remorse was evidenced by that plea. Counsel also relied on the frank admissions made by the applicant, particularly as to the length of the period over which he had been cultivating the cannabis at the Bayswater factory. It was contended that the applicant had resorted to cultivating and trafficking cannabis in order to assist one of his sons who at the time was experiencing financial difficulties, and who was at risk of losing his own business. Counsel noted that the applicant had successfully complied with the conditions of the two intensive correction orders previously made by the Ringwood Magistrates’ Court. It was also noted that he had not offended since his most recent conviction in 2008.
Counsel for the applicant also relied on character references that were provided by a close friend of the applicant, and members of the applicant’s family. The references stated that he was remorseful, and noted that the applicant’s wife and two children were experiencing financial difficulties due to the applicant’s absence whilst in custody. Counsel submitted that in the circumstances of the case the applicant’s family would suffer hardship arising from his custody which was exceptional. In particular, as the applicant’s wife was not a naturalised Australian citizen, she was not eligible for any social security support. As a consequence, she was totally reliant on financial assistance from other members of the applicant’s family, who themselves were in straitened financial circumstances.
In response, it was submitted on behalf of the prosecution that the applicant’s offending should be viewed as being at the higher end of culpability for the charge of cultivating simpliciter. In particular, the prosecutor relied on the quantity of cannabis that was cultivated. He also pointed to the fact that the applicant had leased the factory for the sole purpose of the cultivation of the cannabis, and that the applicant had installed a sophisticated set up within the factory, including an illegal bypass for the purpose of the cultivation of the cannabis, and he had conducted the whole of the operation himself. The prosecution also relied on the length of the period over which the applicant conducted the cultivation of the cannabis at the premises.
The prosecutor further contended that the hardship, relied on by the applicant in mitigation of sentence, was not exceptional, and thus should not be taken into account on sentence. He submitted that the disposition contended for by counsel for the applicant, namely, a combined sentence consisting of a term of imprisonment and a community corrections order, would not be adequate in view of the seriousness of the offending.
Reasons of sentencing judge
In sentencing the applicant, the judge noted that the weight of the plants that were under cultivation was, prima facie, a commercial quantity. However, his Honour noted that the applicant was not to be sentenced under the harsher regime prescribed by s 72A of the Act.[2] The judge also noted that the drug cultivation operation, conducted by the applicant at his home and at the factory, was sophisticated and of a large scale. The factory had been leased for the purpose of cultivating the cannabis, and there had been an extensive system of bypass of electricity undertaken to facilitate that operation. The purpose of the cultivation was for financial gain.[3] The applicant was to be sentenced as the principal organiser and the only person involved in the cultivation.[4] The judge therefore considered that the applicant’s criminality was at a ‘high level’.[5] He also noted that the applicant had relevant previous convictions.
[2]Reasons [9].
[3]Reasons [12], [13].
[4]Reasons [16].
[5]Reasons [37].
The judge acknowledged that the guilty plea by the applicant was a valuable plea, in that the admissions that he made in the interview enabled the police to ascertain that the period of cultivation was two years, and that from each mature plant the applicant obtained seven ounces of cannabis.[6] However, in light of the serious nature of the offending the judge did not accept the submission, made by counsel for the applicant, that he should be sentenced to a combination of a term of immediate imprisonment together with a community correction order. His Honour considered that, since such a combination could only be employed if the applicant was sentenced to no more than one year’s imprisonment, that sentence would be entirely inappropriate in the circumstances.[7] The judge also rejected the submission made on behalf of the applicant that the financial difficulties occasioned to the applicant’s wife and family, by reason of his incarceration, were exceptional or extreme in the sense discussed in the authorities. Accordingly, they did not, of themselves, constitute a mitigating circumstance.[8] His Honour did take into account, however, that the applicant would suffer additional stress by reason of his consciousness of the impact that his offending had had on his family during the term of his imprisonment.[9]
[6]Reasons [10].
[7]Reasons [25].
[8]Reasons [34]–[35].
[9]Reasons [36].
Ground 1
Under ground 1, the applicant has contended that the judge failed to give appropriate weight to the value to the prosecution of the significant admissions made by the applicant during his interview with the police.
At an early stage in his sentencing remarks, the judge stated:
I accept the submissions from Ms Walker, and in particular from Mr O’Sullivan [each counsel for the applicant on the plea], that this is a valuable plea made by Mr Kennedy in the sense that it was his voluntary statements in the record of interview which enabled the ascertainment of the period of cultivation that he had been cultivating cannabis for two years, that from each mature plant he obtained seven ounces and that as a result thereof he sold the cannabis for particular amounts based on weight.[10]
[10]Reasons [10].
Counsel for the applicant contended that, in that passage, the judge failed to take into account properly the significant admissions which the applicant had made to police. In particular, in his interview, the applicant admitted that he had personally undertaken the setup of cultivation of the cannabis plants, that he had been cultivating cannabis at the factory for approximately two years, that he had been trafficking for approximately twelve to eighteen months, and that the cash that was found at his home premises constituted the proceeds of trafficking. Counsel contended that if the applicant had not made those admissions, the prosecution would not have been able to establish, or would have had difficulty establishing, those facts. Although the evidence obtained by the police would have enabled the prosecution to prove the offences of both cultivation and trafficking, it was contended that the admissions of the applicant provided the only evidence as to the scope and duration of the applicant’s offending.
Counsel for the applicant referred to the decision of the New South Wales Court of Criminal Appeal in R v Ellis,[11] and the decisions of this Court in R v Doran[12] and Latina v The Queen,[13] as authorities for the proposition that where an offender makes admissions as to facts, which otherwise would not have been known to, or capable of being proved by, the prosecution, the offender is entitled to a separate and substantial degree of leniency on sentence. It was submitted that the judge failed to take into account that the applicant had provided evidence to the prosecution as to a number of facts, which were otherwise not known to the prosecution or the police, including: the periods during which he had been involved in cultivation of cannabis at the factory, and trafficking; the fact that the applicant alone was responsible for the set up and cultivation of the cannabis plants; and the fact that the cash, that was found at his home, was derived from the trafficking.
[11](1986) 6 NSWLR 603 (‘Ellis’).
[12][2005] VSCA 271 (‘Doran’).
[13][2015] VSCA 102 (‘Latina’).
In response, counsel for the respondent contended that, in the passage in the reasons for sentence relied on, the judge appropriately applied the principles discussed in the cases that were referred to by the applicant. Counsel accepted that the applicant’s admissions constituted the only evidence of the periods of time, during which the applicant had sold and cultivated cannabis. However, the other factual matters now relied on by the applicant — that he personally set up and cultivated the cannabis crop, and that the cash found at his home was from the sale of cannabis — were capable of being proven by way of inference from the evidence located by the police in the course of their search of the factory and the applicant’s home.
Counsel for the respondent pointed out that, at an early stage in the plea, in the course of discussion with the prosecutor, the judge noted that the applicant’s admissions to the police were the only source of evidence as to the period of time during which the applicant had cultivated the cannabis plants at the factory that were the subject of charge 1. Accordingly, in his sentencing reasons, the judge described the plea made by the applicant as a ‘valuable plea’, in the sense that it was his ‘voluntary’ statements in the interview that enabled the period of cultivation to be ascertained. In that way, it was contended, the judge appropriately recognised the mitigating effect of the admissions made by the applicant in his interview with the police.
It is well settled, as a matter of sentencing principle, that a judge should take into account, as a relevant and significant mitigating circumstance, any admission made by an offender which provides proof of an offence committed by the offender, or of a relevant fact or matter necessary to establish that offence, which might not otherwise have been known to, or be able to be proved by, the prosecution. That principle is based on the policy of the criminal law to encourage offenders to come forward and disclose the fact of an offence that has been committed, and relevant facts that demonstrate the nature and quality of that offence.[14]
[14]Ellis (1986) 6 NSWLR 603, 604; Ryan v The Queen (2001) 206 CLR 267, 272–3 [11]–[15] (McHugh J), 295–6 [94]–[96] (Kirby J) (‘Ryan’); Doran [2005] VSCA 271 [14]–[15] (Buchanan JA); Latina [2015] VSCA 102 [12] (Redlich and Kyrou JJA).
In Ellis, Street CJ (with whom Hunt J and Allen J agreed) stated the principle in the following terms:
This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which greater or lesser degree of weight must be given.
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.[15]
[15]Ellis (1986) 6 NSWLR 603, 604.
In Latina, which was relied on by counsel for the applicant, this Court made it clear that that principle is not confined to cases in which the admission, made by the offender, relates to a charge which might not otherwise be capable of being proven by the prosecution, but that it also extends to an admission which enables the prosecution to establish that the offence that was committed was more serious than that which could otherwise have been ascertained or proven by police investigators.
In Latina, the appellant pleaded guilty to a number of drug related offences, including trafficking in a drug of dependence, namely, methylamphetamine. That charge was framed as a Giretti charge,[16] alleging that the appellant had trafficked in methylamphetamine for a period of thirteen months. In sentencing the appellant, the sentencing judge accepted that that timeframe was based entirely on the appellant’s admission. The prosecution had sufficient evidence upon which to charge the appellant with trafficking simpliciter without resort to his admissions. However, it was accepted that, in the absence of those admissions, the duration of the appellant’s offending, and the quantity in which he had trafficked, would not have been established, and that it was only by reason of the appellant’s admissions that the prosecution was able to place his offending within a more serious category of the offence of trafficking.[17] After considering the relevant authorities, Redlich and Kyrou JJA stated:
Third, the principle has been applied where an offender, responding to complaints as to the commission of an offence, makes admissions which disclose the commission of further offences. We entertain no doubt that the principle may also have application where the disclosures made by the offender do not relate to a new charge but show that the offence committed was of a more serious order than was known by or would have been discoverable by the investigators. It is clear from the consideration of the authority to which we have referred that it is entirely consistent with the policy underlying the principle that it may have application even though investigators may be able to establish that an offender has committed a specific offence. If admissions are made as to facts concerning the commission of that offence that are unknown by the investigators which materially elevate the gravity of the offence, such voluntary disclosures entitle the offender to a discount on the sentence that would otherwise be imposed for the offence of that gravity.[18]
[16]R v Giretti (1986) 24 A Crim R 112.
[17]Latina [2015] VSCA 102 [11].
[18]Ibid [17].
In the circumstances of that case, Redlich and Kyrou JJA considered that the appellant was entitled to ‘considerable leniency’ due to the admissions made by him. Their Honours considered that although the judge had referred to the appellant’s cooperation and frankness in making a full confession, as bearing on his remorse and prospects for rehabilitation, there was no indication that significant leniency had been allowed for the fact that the appellant’s confession had enabled the prosecution to establish an offence of significantly greater gravity than would otherwise have been the case. On that basis, their Honours held that the sentencing judge had erred.
The question, then, is whether the sentencing judge sufficiently took into account, as a mitigating factor, the frank admissions made by the applicant to the police that are relied on in support of ground 1.
As discussed, the applicant submitted that there were three particular facts, admitted by him, which should have been taken into account by the judge as mitigating factors in the manner discussed in the authorities to which we have referred. The matters so admitted by the applicant were, first, the period over which he had cultivated and trafficked cannabis; secondly, the fact that the applicant was the only person engaged in the cultivation of cannabis at the factory premises; and, thirdly, the fact that all of the cash, seized from the applicant’s home, had been derived by him from the trafficking of cannabis.
It is convenient, first, to deal, briefly, with the second and third facts which were admitted by the applicant in the recorded interview. In relation to the second fact, it is clear that the judge took into account the admission by the applicant that he was the sole person responsible for the cultivation of the cannabis plants at the factory, as indicative of the role that he played in respect of the commission of the offence that was the subject of charge 1.[19] Certainly, the prosecution did not have available direct evidence to establish that the applicant was the sole person who was responsible for, and conducted, the cultivation of cannabis at those premises. However, as submitted on behalf of the respondent, the prosecution had a substantial body of evidence from which it could be inferred that the applicant was responsible for setting up and maintaining the cultivation of cannabis at the premises. That evidence did not indicate that any other person was assisting, or had assisted, the applicant in that process. In particular, the applicant had the keys to the premises. He was the account holder for electricity at the factory during the relevant dates. As noted, he was found in possession of an exercise book that contained information about hydroponic set up, some hydroponic tents and utility statements for the factory. Accordingly, the admission made by the applicant did no more than confirm facts which, in our view, could have been proven by the prosecution, beyond reasonable doubt, by a process of appropriate inference.
[19]Reasons [16].
The same conclusion applies to the third factor relied on by the applicant, under ground 1, namely, his admission that the whole of the sum of $9,770 cash, that was seized from a shelf in the wardrobe of the applicant’s home, constituted the proceeds of trafficking in cannabis by the applicant. The cash was found in one place. During the search of the premises, the police found a number of snap lock bags, and other bags, containing quantities of cannabis. It was clear that the applicant was engaged in trafficking cannabis. The fact that the cash was found in one location, in a very large sum, in the absence of any other explanation, gave rise to the inference that the whole of that sum was derived by the applicant from the trafficking in cannabis. Thus, the admission made by the applicant, as to the amount of cash seized by the police, made explicit the proof of a fact which could have been adequately proven by inference.
On the other hand, it is clear, and indeed not in dispute, that the sole source of information available to the police, and to the prosecution, as to the duration of the cultivation by the applicant of cannabis at the factory premises, and of the trafficking by him of that substance, was the candid admissions made by the applicant in the recorded interview. Each of those matters reflected on the seriousness of the offending. In particular, as the judge, correctly, took into account, the applicant had undertaken the cultivation of the plant for a lengthy period.[20] While charge 3 (trafficking) was a charge of trafficking simpliciter, the judge, in determining the gravity of that offence, took into account that the period of trafficking was between twelve and eighteen months[21]. As we have stated, that fact could only have been known to the prosecution by reason of the admissions made by the applicant.
[20]Reasons [13].
[21]Reasons [21].
Certainly, the prosecution did have available evidence by which it could have proven each of the offences charged by a process of inference. In particular, the prosecution was able to point to the quantity of cannabis located at the factory, the cash found in the applicant’s home, the fact that the applicant was the account holder for electricity at the factory for particular periods, and the possession by the applicant of an exercise book containing information about the hydroponic setup and utility statements of the factory. However, while that evidence was capable of demonstrating that the applicant was involved in a substantial operation involving the cultivation and trafficking of cannabis, the prosecution would not have been able to establish the duration of the trafficking and cultivation, in the absence of the applicant’s admissions. Both of those matters were relevant, and were taken into account by the judge, in demonstrating the seriousness of the applicant’s offending.
In accordance with the authorities to which we have referred, the judge was required to take into account the candid admissions made by the applicant, as to the period during which he had cultivated and trafficked cannabis, as a relevant extenuating circumstance in respect of the sentences that were imposed on him. The question, then, is whether the judge sufficiently took that matter into account in mitigation of sentence.
It must be accepted that in a case where an offender makes admissions which are of value to the prosecution in the manner discussed, it is not necessary that the judge, in express and specific terms, refer to the relevant authorities, or to the statements of principle contained in those authorities.[22] However, ordinarily, where a judge is required to take into account a particular factor as a mitigating circumstance — whether it is a plea of guilty, assistance to the prosecution, or otherwise — the judge, by the sentence imposed, or by appropriate reference in the sentencing reasons, ought to be able to reveal that the mitigating circumstance was appropriately taken into account in determining the sentence imposed on the offender.
[22]Ryan (2001) 206 CLR 267, 272–3 [15] (McHugh J), 312–3 [153] (Hayne J).
Certainly, the judge did not, in explicit terms, state that he would take into account, as a separate and independent mitigating circumstance, the admission made by the applicant as to the period during which he had been cultivating and trafficking cannabis. However, as the authorities have made plain, reasons for sentence, expressed in the second person to the offender, should not be construed and analysed as if they are words contained in a statute.[23] The statement by the sentencing judge, that he regarded the ‘voluntary’ admissions made by the applicant as ‘valuable’, in that they enabled the police to ascertain the period over which the applicant had been cultivating cannabis, was, in our view, sufficient to demonstrate that the judge did regard the admission, so made by the applicant, as an independent mitigating factor. In particular, the use by the judge of the adjectives ‘valuable’ and ‘voluntary’, in that passage, support that conclusion. In addition, it is relevant that the judge addressed the particular admission so made by the applicant in a passage that was separate to that in which he noted, as a mitigating factor, the applicant’s plea of guilty, and in particular, the utilitarian benefit of that plea.[24] In those circumstances, it is sufficiently clear that, contrary to the submissions made on behalf of the applicant, the judge did give appropriate weight to the impact of the admissions made by the applicant as to the period during which he had engaged in the cultivation and trafficking of cannabis. For those reasons, ground 1 of the application does not succeed.
[23]Ryan (2001) 206 CLR 267, 272 [15] (McHugh J), 308 [141] (Hayne J).
[24]Reasons [23].
Ground 2
In support of ground 2, counsel for the applicant noted that during the plea, and in his reasons for sentence, the judge referred to the decision of this Court in Nguyen v The Queen.[25] In particular, the judge referred to that decision in the following passage in the reasons:
I take into account by way of general principles the determination of the Court of Appeal in this State in Nguyen v R (2011) 31 VR 373 … where the Court of Appeal reviewed the appropriate factors that come into play in sentencing of this type of crime, further the general principles, again while not exactly the same offence, as were detailed by the Court of Appeal in New South Wales in Nguyen and Pham (2010) 205 A Crim R 106 [72], and I refer again to the general principles and the reference by the Court of Appeal for the need for a gradual increase in these types of sentences in NS Nguyen v The Queen [2016] VSCA 198 [63], [89], [140] and [142]. It must be, of course, remarked that in that particular case the Court was concerned with a commercial quantity, and I refer only to the general principles.[26]
[25][2016] VSCA 198 (‘Nguyen’).
[26]Reasons [19].
Counsel noted that Nguyen was concerned with the question of the adequacy of current sentencing practices for middle or high level examples of cultivating a narcotic plant in not less than a commercial quantity. Accordingly, it was submitted, the observations of the Court, in respect of that issue, were not relevant to this case, which involves a charge of cultivation simpliciter. Further, it was contended, the effect of the observations by this Court in Nguyen, relating to current sentencing practices, has been modified by the subsequent decision of the High Court in Director of Public Prosecutions v Dalgliesh,[27] in which the Court stated that current sentencing practices are but one of a number of factors to be taken into account in determining sentence. Accordingly, it was submitted that the judge fell into error by referring to and applying the principle stated by this Court in Nguyen.
[27](2017) 262 CLR 428.
In response, counsel for the respondent contended that each of the four paragraphs of Nguyen, cited by the judge, were relevant and applicable to sentencing for the offence of cultivation. Further, the judge specifically noted that Nguyen was concerned with the offence of cultivation of a commercial quantity, and his Honour only referred to that case as a source of relevant general principle. Counsel also noted that on the plea counsel for the applicant had referred the judge to the decision of this Court in Quaresima v The Queen[28] as a comparable sentencing case. Quaresima involved a charge of cultivation of cannabis simpliciter. Counsel for the respondent noted that, in that case, this Court, having referred to the principles stated in Nguyen, considered that the sentence imposed was well within the range of those open to the sentencing judge.[29]
[28][2017] VSCA 306.
[29]Ibid [16].
In our view, it is clear that in referring to particular parts of the judgment of the Court in Nguyen, the judge did not apply what was said in that case, concerning current sentencing practices, in the manner contended for on behalf of the applicant.
As noted, the judge specifically referred to paragraphs [63], [89], [140] and [142], in his citation of the decision in Nguyen.
Paragraph [63], of Nguyen, referred to the role of the offender as the organiser of the crop with a financial interest in it. Plainly, that circumstance was appropriately relevant to the determination of the sentence in the present case.
Paragraph [89] of Nguyen discussed the appropriateness of orders for the cumulation of the sentence imposed for theft of electricity upon a sentence imposed for cultivating a narcotic plant in a commercial quantity. With appropriate adaptation, the same principle would apply to the making of an order for cumulation in respect of a sentence for theft of electricity upon a sentence for cultivation of a narcotic plant simpliciter.
In paragraph [140] of Nguyen, the Court referred to the observation made by Nettle JA in Doan v The Queen,[30] that in cases involving the cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations. Again, with appropriate adaptation, the same principle applies to cases involving cultivation of a narcotic plant simpliciter. It is well established that, in cases involving the cultivation of a narcotic plant, or trafficking of a narcotic substance, for financial gain, the principle of general deterrence is accorded significant weight, and is, quite commonly, the predominant sentencing consideration. The Courts have recognised that in order to protect members of the community from the harm caused by the cultivation and distribution of illicit drugs, the Courts must impose sentences which are sufficient to deter like-minded persons from being lured into such activities by the prospect of the large profits that can be gained from them. In the present case, the reference to that aspect of Nguyen was appropriate. The applicant had engaged in the cultivation of a significant quantity of cannabis at the factory premises for a period of two years. The set up at the premises was highly organised and quite sophisticated. The applicant was plainly motivated by the prospect of significant financial gain. In such a case, it is clear that the principle of general deterrence must be accorded appropriate weight for the reasons just discussed.
[30][2010] VSCA 250 [11].
In paragraph [142] of Nguyen, the Court referred to observations made by Maxwell P in an earlier decision, also entitled Nguyen v The Queen,[31] that the then current sentencing practices, for the offence of cultivation of a commercial quantity of a narcotic plant, were not consistent with the prescribed maximum sentence for that offence. It is not clear why the judge referred to paragraph [142] of Nguyen in that way. At best, it would seem to have been a reference to the need for a sentencing judge to take into account the prescribed maximum sentence for the particular offence. As already noted, and relevantly, the judge completed his reference to Nguyen by remarking that in Nguyen the Court was concerned with a commercial quantity, and the judge stated, ‘I refer only to the general principles’.
[31][2010] VSCA 127 [29]–[31].
In that respect, it is significant that, on the plea, the prosecution did not rely on any body of previous sentencing decisions to establish or point to a relevant current sentencing practice in respect of the offence charged against the applicant. Indeed the only previous sentence, referred to in that respect, was by counsel for the applicant, who relied on the sentencing decision in Quaresima v The Queen.[32] The judge specifically referred to that decision, but considered that the case was not comparable, because the period of cultivation in that case was only seven weeks, and the offender in that case did not have the amount of previous convictions that had been incurred by the applicant.[33] Otherwise, there was little discussion by the judge of current sentencing practices in respect of the offences to which the applicant pleaded guilty. It follows that it has not been demonstrated that the judge erroneously applied to the present case the views, expressed by the Court in Nguyen concerning current sentencing practices in cases involving cultivation of a commercial quantity of a narcotic.
[32][2017] VSCA 306.
[33]Reasons [26].
For those reasons, we reject the submission made on behalf of the applicant that the judge erred in applying the principles outlined in Nguyen. Accordingly ground 2 must fail.
Ground 3
In support of ground 3, counsel submitted that the sentences imposed on the applicant were manifestly excessive. It was submitted that the judge failed to give appropriate weight to the mitigating factors relied on on behalf of the applicant, and that he gave excessive weight to the factors which the judge considered to be aggravating features of the case. In particular, it was submitted that the applicant had a number of mitigating factors, including his age, his physical health, his early plea of guilty, the significant admissions that he made to the police, his cooperation with the authorities, his remorse, and his prospects for rehabilitation. In addition, the applicant had not been before the Courts for approximately ten years. Counsel contended that for a 73 year old man, who had made substantial admissions which were of advantage to the prosecution, who had pleaded guilty at the earliest opportunity, and who suffered physical ailments, the sentences imposed on the applicant were so outside the range of sentences reasonably open to the judge as to disclose error. Counsel also noted that the sentence, imposed on charge 1, was the highest sentence in recent years for the offence of cultivation simpliciter.
In response, counsel for the respondent commenced by noting that there were two possible errors by the judge in the reasons for sentence. First, the judge incorrectly noted that the maximum penalty for the offence of trafficking was ten years, whereas in fact the maximum prescribed sentence was 15 years’ imprisonment. However, as that error was in favour of the applicant, it was immaterial. Secondly, the judge stated that the period of trafficking was between 12 and 18 months, and that the applicant was selling bags of 28 grams for between $180 and $200.[34] That information was correct, in that it was based on the admissions made by the applicant in the recorded interview. However, charge 3 on the indictment was limited to a single day of trafficking, namely, 26 September 2017. Nevertheless, it was contended, the error made by the judge constituted no more than a misstatement by his Honour in the particular passage in the reasons, since the judge, in the same paragraph, in the course of the plea, twice noted that the trafficking that was alleged was for one day. Further, it was contended, if there was an error by the judge in that respect, it was not material, since the sentence of one year imprisonment imposed on the applicant was, in the circumstances, modest.
[34]Reasons [21].
The principles, that apply to ground 3, are well established. In order to succeed, the applicant must establish that the sentences imposed on him were wholly outside the range of sentencing options available to the judge. That is, the sentences, that are the subject of the application for leave to appeal, must be demonstrated to be so excessive as to manifest error by the judge in the exercise of the sentencing discretion, although no specific error may be identified in the reasons for sentence.[35]
[35]Clarkson v The Queen (2011) 32 VR 361, 364 [89]; DPP v Macarthur [2019] VSCA 71 [58].
By their nature, the offences, that were the subject of charge 1 and charge 3, were serious. The maximum sentence prescribed for each offence is 15 years’ imprisonment, reflecting the gravity with which legislature regards such offending. In the present case, the judge was correct to conclude that the applicant’s offending, in respect of charge 1, came within the ‘high end’ of offences of that kind. The amount of cannabis under cultivation at the factory premises constituted a commercial amount. The applicant was charged, and pleaded guilty to, an offence of cultivation simpliciter, and was to be sentenced as such. However, in terms of the quantity and weight of the cannabis that was the subject of the cultivation, the offending, to that extent, fell into the high end of the range of such offences. In particular, it indicated the nature and dimension of the enterprise that was conducted at the premises.
In addition, the operation at the factory premises was sophisticated and well organised. The applicant had conducted it, at those premises, for a period of two years. His sole motivation was financial reward. The fact that the applicant engaged in the offending in order to assist his son, who was in difficult financial circumstances, indicates that the offending was not driven by sheer greed alone. Nevertheless, as with most drug cultivation enterprises of the same kind and dimension, the underlying objective was financial gain. As already discussed, in that context, the sentencing purpose of general deterrence is ordinarily accorded particular weight.
In addition, the applicant was the sole organiser of the operation, and he conducted it on his own. In that way, he was solely responsible for the offending.
It was a matter of particular concern that the applicant already had two previous convictions for trafficking cannabis, and one previous conviction for cultivation of cannabis. On both occasions upon which he had come before the courts on those charges, he had been accorded a degree of leniency, being released on an intensive corrections order. Notwithstanding those dispositions, the applicant had not taken the opportunity to reform, but, rather, he had embarked on the enterprise for which he was sentenced in the present case. In doing so, he clearly knew and understood the criminality of the offences that he was committing, and he took the risk of detection and punishment for that offending.
Certainly, there were a number of mitigating factors which the applicant was entitled to have taken into account in his favour. In particular, he made an early plea of guilty to the offending. In addition, he made frank admissions to the police, and was cooperative with the authorities. As already discussed, he was entitled to an additional measure of mitigation on the basis that some of the admissions, made by him, were of real value to the prosecution, enabling it to establish aspects of gravity relating to the offending that would not have otherwise been capable of being known or proven by it. The applicant at the time of sentence was 73 years of age. He had some health issues, albeit that none of them were of particular gravity. Although the applicant contended that he had good prospects of rehabilitation, the judge was more guarded as to that matter.[36] His Honour’s assessment, in that respect, could not be demonstrated to be erroneous, in light of the applicant’s previous convictions.
[36]Reasons [24].
The applicant also relied, as an extenuating circumstance, on the financial hardship suffered by his wife and children, as a result of his incarceration. The judge considered that that hardship was not sufficiently exceptional, to constitute, of itself, a mitigating circumstance. It has not been demonstrated that his Honour was in error in reaching that conclusion.[37] However, as the judge noted, the fact that the applicant would be conscious of the difficulties suffered by his family, during his period of imprisonment, was a matter that was to be taken into account in mitigation of sentence.
[37]Cf Markovic & Pantelic v The Queen (2010) 30 VR 589, 591; DPP (Cth) v Bui (2011) 32 VR 149, 153 [21].
Notwithstanding those mitigating circumstances, nevertheless, for the reasons we have stated, the offending that was the subject of charge 1 was particularly serious. In light of the factors to which we have referred, we do not consider that the sentence of four years’ imprisonment, imposed for that offence, was wholly outside the range of sentence available to the judge. Nor are we persuaded that the sentences imposed on charge 2 and charge 3, and the orders for cumulation, were manifestly excessive.
The judge, in the text of his reasons for sentence, noted that the trafficking, that was the subject of charge 3, occurred over a period of twelve to eighteen months.[38] As the respondent has acknowledged, his Honour was in error in doing so, as the offending that was the subject of charge 3 was confined to one day, namely, 26 September 2017. However, the sentence imposed by the judge on that charge — 12 months’ imprisonment — was in the circumstances quite appropriate, particularly as the applicant had two previous convictions for the same offence.
[38]Reasons [21].
For those reasons, we are not persuaded that the sentences imposed on the applicant in respect of each charge, or the total effective sentence and non-parole period, were manifestly excessive. Accordingly, ground 3 of the application for leave to appeal must fail.
Summary of conclusions
For the foregoing reasons, the applicant has failed to establish any of the proposed grounds of appeal. Accordingly, the application for leave to appeal must be refused.
25
14
0