Latif v The Queen
[2013] VSCA 51
•13 March 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0263
| KEMAL LATIF | Applicant |
| v | |
| THE QUEEN | Respondent |
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S APCR 2012 0264
| SERKAN NIYAZI | Applicant |
| v | |
| THE QUEEN | Respondent |
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S APCR 2012 0290
| HASSAN AZMI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG and HARPER JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 19 February 2013 |
| DATE OF JUDGMENT | 13 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 51 |
| JUDGMENT APPEALED FROM | DPP v Latif (Unreported, County Court of Victoria, Judge Cannon, 23 October 2012) |
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CRIMINAL LAW — Two applications for leave to appeal against sentence (Latif & Niyazi) — Each applicant pleaded guilty to one count of cultivation of a commercial quantity of narcotic plants and one count of theft of electricity — Joint enterprise between applicants and two co-offenders — Total of 161 cannabis plants weighing 130 kilograms found inside shipping containers concealed behind false wall in factory — Each applicant received head sentence of three years, six months and two weeks’ imprisonment — Non-parole periods fixed of two years and four months (Latif) and two years and two months (Niyazi) — Crown opening alleged that co-offender (Azmi) had rented the factory and paid for shipping containers — Those allegations challenged by Azmi on plea — Whether sentencing judge entitled to find applicants’ remorse qualified by failure to be forthcoming as to how cultivation funded — No evidence that applicants aware of funding arrangements beyond those asserted in Crown opening — Irrelevant consideration taken into account — Whether different sentences should be imposed — Applicants offended while on bail for drug offence — Sophisticated hydroponic set-up — Leave to appeal granted but appeals dismissed.
CRIMINAL LAW — Application for leave to appeal against sentence (Azmi) — Applicant pleaded guilty to same counts as Latif & Niyazi — Total effective sentence of two years, four months and one week’s imprisonment with non-parole period of 15 months — Applicant suffering from dysthymic disorder — Whether sentencing judge erred in requiring a causal link between that condition and offending to reduce moral culpability — No such causal link necessary — Specific error established — Whether different sentence should be imposed — Objectively serious offending — Moral culpability reduced but nevertheless high — Leave to appeal granted but appeal dismissed — R v Verdins (2007) 16 VR 269; Tran v The Queen [2012] VSCA 110 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants Latif and Niyazi | Dr G J Lyon SC and Ms C A Boston | Grigor Lawyers |
| For the Applicant Azmi | Mr G A Georgiou SC | Robert Stary Lawyers |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA
HARPER JA:
The applicants, Kemal Latif, Serkan Niyazi and Hassan Azmi, each pleaded guilty in the County Court at Melbourne to one charge of having cultivated a commercial quantity of narcotic plants (charge 1), and one charge of theft of electricity (charge 2). A co-offender, Tahir Latif, pleaded guilty to one charge of cultivation of a narcotic plant.
Both Kemal Latif and Niyazi were sentenced on 23 October 2012 to three years and six months’ imprisonment on charge 1, and two months’ imprisonment on charge 2. It was ordered that two weeks of the sentence on charge 2 be served cumulatively upon the sentence on charge 1. This made a total effective sentence of three years, six months and two weeks. The sentencing judge fixed a non-parole period of two years and four months in respect of Kemal Latif, and two years and two months in respect of Niyazi.
Azmi was sentenced to two years and four months’ imprisonment on charge 1, and two weeks’ imprisonment on charge 2. It was ordered that one week of the sentence on charge 2 be served cumulatively upon the sentence on charge 1. This made a total effective sentence of two years, four months and one week. A non-parole period of 15 months was fixed.
Tahir Latif was given a non-custodial sentence.
Each applicant now seeks leave to appeal against sentence. Both Kemal Latif and Niyazi seek to rely upon a single ground which is as follows:
Ground 1:
The learned sentencing judge erred in taking into account an irrelevant consideration when assessing the applicant’s remorse, namely the applicant’s failure to volunteer information to the Court as to how the enterprise was funded, in circumstances where:
(a) the depositions contained a statement from a prosecution witness to the effect that the applicant’s co-accused Hassan Azmi had paid for the rent and storage containers;
(b) the prosecution opening contained those allegations;
(c) Mr Azmi’s legal representative contested those allegations on the plea without notice to the applicant (or indeed the prosecution);
(d) The applicant had pleaded guilty on the basis of the depositions and prosecution opening; and
(e) This was a joint enterprise between at least four people, and there was no evidence of:
a.the applicant dealing with any money or financial arrangements regarding the enterprise; or
b.the applicant being aware of how the enterprise was funded.
Azmi seeks to rely upon three grounds in support of his application for leave to appeal. They are as follows:
Ground 1 – The sentencing judge erred in erred in rejecting the application of principles 1 and 3 set out in R v Verdins. In particular, the learned sentencing judge erred in requiring a causal connection between the symptoms the applicant was suffering at the time of the commission of the offence and the offence itself.
Ground 2 – The head sentence and the non-parole period are manifestly excessive, particularly in the circumstances of:
(a)the applicant’s early plea of guilty;
(b)the applicant’s lack of prior convictions;
(c)there being no further offending nor any outstanding charges
(d)the applicant’s mental state at the time of the commission of the offence and at the time of sentencing, namely dysthymic disorder;
(e) the need for psychological treatment and lack of treatment prior to the commission of the offence;
(f)the applicant’s physical injuries and their effect upon his psychological state;
(g)the lack of facilities within the gaol system to provide the applicant with the three key rehabilitative needs referred to in Mr Newton’s report;
(h)the applicant’s remorse;
(i)the applicant’s prospects for rehabilitation;
(j)the applicant’s ongoing family support.
Ground 3 – Parity
The hearing of the applications
These applications were listed before a bench of two judges such that, if leave were to be granted, the merits of the appeal could be dealt with without the need for a further hearing at a later date. Accordingly, counsel did not confine themselves to whether the proposed grounds of appeal were reasonably arguable, but instead presented full argument on all grounds.
Weinberg JA was listed to hear these applications but was unable to be present at the oral hearing. Counsel for all parties were agreed that the applications should proceed before the bench as originally constituted on the basis that a DVD of the oral hearing would be provided to his Honour, and that if his Honour had any particular concerns that were not addressed in oral argument, those concerns would be conveyed to the parties who would then have an opportunity to make further submissions.
It has not proved necessary for the Court to receive any further submissions. The pertinent issues on the applications were fully dealt with at the oral hearing, and the Court has had the benefit of detailed written submissions.
Background facts
In November 2011, police began an investigation in relation to a major cannabis cultivation ring. A total of four men, the three applicants and Tahir Latif, were suspected of being concerned in this enterprise. Investigations revealed that all four were involved in growing substantial quantities of cannabis within factory premises situated in Mohr Street, Tullamarine.
The police raided those premises on 8 February 2012. They discovered that cannabis was being grown within three shipping containers which were housed in the factory, but concealed behind a false wall. In total, police located 161 cannabis plants with a total weight of 130 kilograms. It was not possible to quantify or predict the yield weights of the cannabis.
The police also discovered that an illegal electricity bypass unit had been installed in the premises. It turned out that electricity to the value of $3,330.03 had been abstracted.
The Crown opening asserted that the factory had been leased to Azmi from late November 2011 at a rental of $2,000 per month. The Crown relied upon a witness statement from one Shevket Osman, the owner of the factory, to that effect. The Crown further asserted that Azmi had purchased the containers located within the factory. This was based upon an invoice for delivery of the three 40 foot containers that was found by police when they searched Azmi’s home.
On the plea, and without having given anyone prior notice, Azmi’s solicitor told the sentencing judge that his client now took issue with both these assertions. In response, the prosecutor acknowledged that, apart from Mr Osman’s statement, and the finding of the invoice, there was no paper trail or record to support the Crown’s contention that Azmi had leased the premises, and purchased the containers. For reasons that are not altogether apparent, the prosecutor determined that he would not pursue the issue. He indicated that he did not propose to call any evidence whatsoever in relation to these matters.
The sentencing judge considered that, as a matter of fairness, and given the prosecutor’s unwillingness to call any evidence that would support the claims made against Azmi, he should be sentenced only for what was actually known about his involvement in the enterprise. In other words, her Honour would not deal with him on the basis that he had played any greater role in the cultivation of the crop than what was known about his day-to-day involvement with the factory.
Both Kemal Latif and Niyazi made ‘no comment’ records of interview. Azmi was interviewed by police, and initially denied any involvement in the cultivation of cannabis. He claimed to have been in the process of starting his own business. He maintained that he had never been in any part of the building other than the corridor. He said that he knew nothing about any hydroponic system. Indeed, he claimed that he did not know Kemal Latif at all, despite the observations that had been made of his dealings with him.
Asked about an exercise book found in his bedroom which contained instructions for growing cannabis, Azmi told police that this could have been for some online game. When questioned about the invoice for the purchase of the containers that police had located at his home, Azmi said that he had kept it ‘because it might be important to someone else’. Obviously, Azmi’s entire account was completely preposterous.
So far as Azmi’s role in the criminal enterprise was concerned, there was evidence that not only had he been seen to attend the premises on a number of occasions, but that he had also been seen tending to the plants by placing nutrients into the watering system. In fact, Azmi offended over a period of some 19 days.
The Crown case was that Kemal Latif and Niyazi were more culpable than Azmi, while Tahir Latif had played only a relatively minor role in the entire enterprise.
Kemal Latif was aged 31 at the time of sentencing. Niyazi was aged 32, and Azmi 27. In May 2012, Kemal Latif had been sentenced to eight months’ imprisonment wholly suspended for 24 months for having cultivated cannabis in July 2009. Niyazi too had been dealt with on exactly the same basis for that same offence.
Kemal Latif had, in 2008, been convicted of recklessly causing serious injury. On that occasion he received an 18 month community corrections order, and was ordered to perform 150 hours of community service work. Niyazi had previously been dealt with for handling stolen goods. That matter was adjourned without conviction with an order that he pay $300 to the court fund. Azmi had no prior convictions whatsoever.
Submissions on the plea by Kemal Latif and Niyazi
Each applicant submitted, on the plea, that the sentencing judge should accord significant weight to remorse as a mitigating factor.
It was said on behalf of Kemal Latif that he had committed these offences at a time when he was gambling heavily, and in debt. Her Honour inquired how it was, in such circumstances, that he could apparently afford to set up such a sophisticated cannabis venture. His counsel replied that there were a number of people involved, but that there was no evidence as to the financial contributions or anticipated enrichment of each. He submitted, somewhat diffidently, that this was not an area that he could profitably embark upon without calling his client. He at once made it clear that he had no intention of doing so.
The matter became more complex when, as we have said earlier, the solicitor appearing on behalf of Azmi intimated for the first time that the specific allegation that his client had paid the rent on the factory and purchased the storage containers, would be challenged.
Thereafter, at a later stage in the plea, counsel for Niyazi submitted that, as was the case with Kemal Latif, his client had committed these offences whilst under considerable financial stress. Her Honour commented that there seemed to be ‘a bit of ducking and weaving … as to how this elaborate set-up [had been] financed’. She added that, in circumstances where it was now being said that both Kemal Latif and Niyazi were in financial difficulty at the relevant time, she had some difficulty in reconciling that scenario with the considerable expense involved in funding the cultivation.
After the prosecutor had informed the Court that he would not be calling evidence as to the financing of the cultivation, counsel for Kemal Latif submitted that her Honour should not be troubled by any of this. He referred to the Crown opening, and its contention that Azmi had funded the venture. He submitted that it was a matter for the Crown if it no longer wished to pursue that allegation in the case against Azmi. However, so far as Kemal Latif was concerned, he had pleaded guilty on the basis of the Crown opening, including its attribution of responsibility for financing the enterprise to Azmi. In those circumstances, it was submitted that her Honour should not visit any finding inconsistent with, or beyond the terms of, that opening upon his client.
Submissions before this Court on behalf of Kemal Latif and Niyazi
Counsel who appeared for Kemal Latif and Niyazi in support of their applications for leave to appeal[1] argued that the sentencing judge had erred by treating the failure of each applicant to volunteer information as to how the enterprise had been funded as, in some way, diminishing the weight to be given to remorse.
[1]Counsel who appeared before this Court were not counsel who appeared on the plea.
It was submitted before us that, having pleaded guilty on the basis of the depositions, and the Crown opening, each applicant, was entitled to be sentenced on that footing. That meant that they were entitled to be sentenced upon the footing that they were parties to a joint enterprise involving all four men, and that no distinction should be drawn between any of the participants with regard to who had contributed funds to the venture, or what they might potentially gain from it.
Once it became known that Azmi denied responsibility for having financed the cultivation, and her Honour indicated how she would deal with the case against him, she went on to state in her sentencing remarks:
…as I understand the position, as between all of you, save for you, Tahir Latif, you, and perhaps others, are responsible for the set up at the factory, regardless of who it was who physically arranged for the venue, or installed the false wall, or paid for the shipping containers and the like.[2]
[2]DPP v Latif & Ors (Unreported, County Court of Victoria, Judge Cannon, 23 October 2012) [11] (‘Sentencing Remarks’).
When her Honour finally came to sentence Kemal Latif and Niyazi, she found that they were remorseful, but she qualified that finding. She indicated that the fact that neither had been particularly ‘forthcoming’ in advising the Court of how the enterprise had been set-up was relevant when considering the weight to be given to remorse. She said:
As aforesaid, a statement was obtained from a Shevket Osman, who owns the factory and he said that you, Hassan Azmi, had been paying him $2000 cash each month in rent. However, I do not sentence you on the basis that this actually occurred, as the prosecution did not wish to pursue the matter by calling evidence, in the face of you denying that this was the situation. However, as I have said, I sentence the first three of you named on the indictment [Kemal Latif, Niyazi and Azmi] on the basis that you were all party to the setup at the factory, notwithstanding that it cannot be said who did what. None of you appeared to be too forthcoming in this regard, which is your entitlement but I have factored this in on the question of remorse.[3]
[3]Ibid [23] (emphasis added).
Her Honour returned to the question of remorse later in her sentencing remarks. She said, when addressing Kemal Latif:
I have had some difficulty with the fact that the cultivation in which you have been involved appears to have required a good deal of investment of funds and neither you nor your co-offenders appear to be too forthcoming as to precisely how the enterprise was funded. I put this matter to one side, save that it colours my findings in respect of remorse, as I have already indicated.[4]
[4]Ibid [77].
Later still, she said when addressing Niyazi:
When I expressed to your counsel the difficulty I had in reconciling your reportedly poor financial situation at the time you committed the offence, with the fact that you had engaged in an apparently expensive cannabis crop venture, Mr Dunn said that this was a joint offence which involved a number of people, some of whom invested and some of whom had obviously borrowed. [5]
…
Like Mr Latif, I accept that you are regretful for what you have done, as it finds you in this predicament. However, in view of the matter in 2009 and your current offending, I find that your degree of remorse is limited, a matter which I have factored in when assessing your prospects of rehabilitation as in the case of Mr Latif I accept that you have some remorse for what you have done.[6]
[5]Ibid [122].
[6]Ibid [128].
It was said, on behalf of Kemal Latif and Niyazi, that it was noteworthy that when her Honour later came to sentence Azmi, she did not comment specifically about his lack of candour with the Court in dealing with the weight to be given to remorse in his case.
Counsel submitted that in discounting the weight to be given to remorse in the way that her Honour did, on the basis of an unwillingness to be ‘forthcoming’ as to the financing of the venture, she had taken into account an irrelevant consideration. It was submitted that her Honour was not entitled to sentence Kemal Latif or Niyazi on any basis other than that set out in the depositions and the Crown opening. Of course, she was perfectly entitled to deal with Azmi on a different, and inconsistent, basis, given that the Crown had resiled from its contention in the case against him that he had funded the venture. But, the case against Kemal Latif and Niyazi had to be dealt with on the basis that it was Azmi who was the financier.
In addition, it was submitted before us that her Honour had not been entitled to conclude that Kemal Latif and Niyazi had not been ‘forthcoming’.[7] It was said that there was no evidentiary basis for that finding. She had simply assumed, without evidence, that they must have been aware of the details of any funding arrangement in place to finance the cultivation. There was no justification for that assumption. It was submitted that her Honour’s approach involved an attempt to create a ‘perfect world’ in which all aspects concerning the financing of the venture were able to be spelt out in her Honour’s sentencing remarks.
[7]Ibid [23].
It was submitted that, assuming specific error were found to exist, a lesser sentence should be imposed upon each applicant.
In relation to Kemal Latif, the factors relied upon were:
(a)the utilitarian benefit of his early guilty pleas;
(b)his remorse, as indicated by his early guilty pleas, the character references tendered on his behalf and the fact that he told Mr Mutluel that he was utterly disappointed in himself;
(c)his well-established work ethic;
(d)his community involvement;
(e) his lack of relevant prior convictions;
(f) his education and intelligence;
(g) the character references tendered on his plea;(h)a forensic psychologist’s opinion that he suffers from chronic and severe adjustment disorder, and did so at the time of the offending; and
(i)his good prospects of rehabilitation (though it was noted that her Honour found that his prospects of rehabilitation were ‘fair’).[8]
[8]Ibid [102].
In relation to Niyazi, the matters said to justify a lesser sentence were:
(a)the utilitarian benefit of his early guilty pleas;
(b)his remorse, as indicated by his early guilty pleas, the character references tendered on his behalf, the report of forensic psychologist Mr Jeffrey Cummins, and the evidence of Mr Zeine;
(c)his character references;
(d)his good family and friendship support;
(e)his good work history;
(f)his education;
(g)his lack of relevant prior convictions;
(h)a forensic psychologist’s opinion that he suffers from chronic and severe adjustment disorder, and did so at the time of the offending; and
(i)the fact that when he committed the offences he was under a ‘good deal of pressure’[9] due to family, legal and financial difficulties.
[9]Citing ibid [115].
The Crown’s submissions in relation to Kemal Latif and Niyazi
The Crown submitted, in response, that the burden lay upon each applicant to establish remorse as a mitigating factor. Proof of that mitigating factor had to be established on the balance of probabilities.[10]
[10]Citing Va v The Queen [2011] VSCA 426.
So far as Kemal Latif was concerned, the evidence relied upon to show remorse, in addition to his early pleas of guilty, comprised the character references tendered on the plea together with the evidence from a particular witness, Hassan Mutluel.
It was submitted that the sentencing judge was entitled to find that Kemal Latif was sorry that he had found himself in this predicament, and regretted the effect that his offending had had upon his family, including the involvement of his younger brother, Tahir.
On the other hand, the sentencing judge had to take into account the fact that this applicant chose to involve himself in a significant cultivation venture whilst still on bail for having previously engaged in ‘house-sitting’ a crop. Ultimately, she accepted that the applicant was genuinely remorseful, but was not convinced that he had developed complete insight into his behaviour, and the effect upon others of the drug that he was growing. Her conclusion that she would ‘make some allowance for remorse in assessing [his] prospects of rehabilitation and determining the weight … to give to specific deterrence’[11] was said to be unimpeachable.
[11]Sentencing Remarks [98].
The Crown submitted that the qualification that her Honour had previously put upon the weight to be accorded to remorse had to be understood in the context of what she also said on this subject, directed to Kemal Latif, later in her sentencing remarks:
I have had some difficulty with the fact that the cultivation in which you have been involved appears to have required a good deal of investment of funds and neither you nor your co-offenders appear to be too forthcoming as to precisely how the enterprise was funded. I put this matter to one side, save that it colours my findings in respect of remorse, as I have already indicated. The fact of the matter is that the enterprise has been funded and you were involved in it for financial reward, apparently in circumstances where you did owe a good deal of money to others.[12]
[12]Ibid [88].
The Crown rejected the submission that her Honour had denied Kemal Latif procedural fairness by having had regard to his failure to be ‘forthcoming’ regarding the funding of the venture. Plainly, it submitted, the financing of the operation was within his knowledge. Had he been willing to provide some assistance to the authorities regarding that matter, more weight might have been given to remorse. His unwillingness to do so obviously justified giving less weight to that factor. Her Honour’s finding to that effect was entirely reasonable.
The Crown noted that the weight to be accorded to remorse in any given case might vary, depending upon, for example, whether there had been voluntary disclosure, restitution, an early plea, and co-operation with the police. The fact that, among these matters, all that could be called in aid were the early pleas was obviously relevant in determining the weight to be given to remorse in this case. Finally, the Crown submitted that it was not disputed that Kemal Latif’s role in this enterprise had been greater than that of Azmi. That being so, whether Azmi had personally paid for the containers, and the rent, was of little consequence. The real question was who had funded the venture. That question was not determined by the Crown’s failure to prove, as an aggravating feature against Azmi, that he personally handed over the money for the storage containers and the rent. The sentencing judge had not treated the applicant’s failure to be ‘forthcoming’ as an aggravating factor, but merely as reducing or qualifying the weight to be accorded to remorse in what was, in any event, a limited mitigating factor, involving little more than early pleas of guilty.
The Crown’s position regarding Niyazi was essentially the same. In his case, it stated that the evidence relied upon to show remorse was only his early guilty plea together with the evidence of a particular witness, Dory Zeine, that Niyazi had expressed remorse to him. For the reasons set out above in relation to Kemal Latif, it was submitted that no sentencing error had been disclosed.
Conclusion regarding Kemal Latif and Niyazi
In so far as Kemal Latif and Niyazi sought to rely upon remorse as a significant mitigating factor, the onus rested upon them to make good that contention. They had to discharge that onus on the balance of probabilities.[13] In order to do so, they relied upon their early pleas of guilty, the various character references that were tendered on their behalf, and the evidence of Mr Mutluel and Mr Zeine.
[13]See, eg, R v Storey (1998) 1 VR 359, 369 (Winneke P); Carroll v The Queen [2011] VSCA 150, [46] (Maxwell P); Va v The Queen [2011] VSCA 426, [16] (Maxwell P, Redlich and Weinberg JJA).
As previously noted, the sentencing judge gave Kemal Latif and Niyazi some credit for remorse, but discounted the weight to be given to that factor on the basis that they had not been ‘forthcoming’ as to how the criminal enterprise had been funded.
In our opinion, her Honour fell into error in approaching the matter in that way. Both these applicants had pleaded guilty on the basis of the facts alleged in the Crown opening. The thrust of that opening was that Azmi, and not the applicants, had purchased the shipping containers and paid the rent for the factory. The applicants were entitled to be sentenced upon that footing. That is not what occurred.
There was no evidence that either Kemal Latif or Niyazi was involved in the arrangements concerning the rental for the factory, or the purchase of the shipping containers. Only the fact of their having been involved in a joint cannabis growing enterprise suggested that either of them had contributed financially to the set-up cost of the business, or that they had any specific knowledge as to who was funding the venture. An offender’s failure to disclose details that may very well not be known to him or her cannot properly be said to diminish the weight to be accorded to remorse.
Given the somewhat unusual circumstances of this case, including the sudden and unanticipated change of heart on the part of Azmi, the sentencing judge’s decision to ‘factor in’ that neither Kemal Latif nor Niyazi had been ‘forthcoming’ in providing details as to the financing of the cultivation meant that she did, as the applicants contend, take into account an irrelevant consideration.
Regrettably, from the applicants’ point of view, that is not sufficient to establish that their appeal should succeed, and that their sentences should be reduced. Before that can occur, they must satisfy this Court not only that specific error has been demonstrated, but also that ‘a different [and lesser] sentence should be imposed’.[14]
[14]Criminal Procedure Act 2009 s 281(1)(b).
In our opinion, the sentences imposed on Kemal Latif and Niyazi were both moderate and entirely appropriate in the circumstances.
As noted above, these applicants each received a total effective sentence of three years, six months and two weeks’ imprisonment. Kemal Latif received a non-parole period of two years and four months, and Niyazi received a non-parole period of two years and two months.
We have taken into account all of the matters that were raised on their behalf by counsel on the hearing of the applications. These include the utilitarian value of their pleas, as well as the evidence as to each applicant’s remorse. Further, we have not qualified the weight to be accorded to that remorse by reason of the applicants’ failure to provide details as to how the cultivation enterprise was funded.
The character references led on behalf of the applicants contained strong statements as to remorse. To cite but one example (of many) in the case of each applicant, a long-time friend of Niyazi stated:
I have had numerous conversations with [Niyazi] regarding the matter, and he has expressed remorse, is ashamed and feels he has let down himself, his family and his son.
A family friend of Kemal Latif stated that he had ‘never seen Kemal so distraught and regretful for his actions’.
This is very much to the applicants’ credit. However, when one has regard to the objective gravity of this offending, it is apparent to us that no lesser sentence should now be imposed.
On any view, the cultivation engaged in was elaborate and on a significant scale. The maximum penalty for the cultivation of a commercial quantity of cannabis is 25 years’ imprisonment.[15] That maximum reflects the legislature’s view as to the gravity of this type of offending. It must be given appropriate weight when determining sentence.[16]
[15]Drugs, Poisons and Controlled Substances Act 1981 s 72A.
[16]Sentencing Act 1991 s 5(2)(a).
There is nothing in the personal history of either Kemal Latif or Niyazi that suggests that any lesser sentence should be imposed.
Kemal Latif admitted a prior conviction for recklessly causing serious injury. Moreover, he had engaged in this criminal enterprise despite being on bail, having previously been arrested for ‘house-sitting’ a cannabis crop jointly with Niyazi. Both men therefore committed these offences whilst on bail. This was a significant aggravating feature of this offending. It was highly relevant in the sentencing synthesis in relation to both these applicants.
In those circumstances, and having regard to the maximum penalty for these offences, no different sentence should now be imposed.
We would therefore grant the applications for leave to appeal filed by Kemal Latif and Niyazi, but dismiss each appeal.
Azmi’s application for leave to appeal
We have set out the proposed grounds of appeal upon which Azmi relies earlier in these reasons.[17]
[17]Above paragraph 6.
In support of ground 1, Azmi’s counsel relied upon the report of Mr Patrick Newton, a forensic and clinical psychologist, that had been tendered on the plea. In that report, Mr Newton stated that ‘a comprehensive review indicated [Azmi] was experiencing some noteworthy symptoms of depression’, and that his ‘symptoms are sufficiently serious to warrant a diagnosis of dysthymic disorder’. Mr Newton also expressed the opinion that the applicant’s dysthymic disorder ‘would have been affecting him at the time of his offending’.
It was submitted during the course of the plea that ‘all aspects’ of R v Verdins[18] were engaged, including the first numbered proposition. That proposition holds that impaired mental functioning (referred to as a ‘condition’ in Verdins) may:
reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.[19]
[18](2007) 16 VR 269 (‘Verdins’).
[19]Ibid 276 (Maxwell P, Buchanan and Vincent JJA).
It was next submitted on the plea that there was no requirement for any ‘causal linkage’ between the offender’s condition and the offending. In making that submission, counsel relied upon the decision of this Court in Tran v The Queen.[20]
[20][2012] VSCA 110 (‘Tran’).
In the applicant’s Written Case, it was noted that the sentencing judge had stated in her sentencing remarks that she was not satisfied on the balance of probability that there was any causal connection between the symptoms the applicant was suffering and his offending.[21]
[21] Sentencing Remarks [152].
Counsel submitted that her Honour’s approach to this issue, at least in so far as she held that a causal connection was necessary in order to moderate moral culpability, was erroneous in light of this Court’s judgment in Tran.
As to ground 2 of Azmi’s application, counsel submitted that his sentence was manifestly excessive when regard was had to the circumstances of:
(a)his early pleas of guilty;
(b)his lack of prior convictions;
(c)there being no further offending nor any outstanding charges;
(d)his mental state at the time of the commission of the offence and at the time of sentencing, namely dysthymic disorder;
(e)the need for psychological treatment and lack of treatment prior to the commission of the offence;
(f)his physical injuries and their effect upon his psychological state;
(g)the lack of facilities within the gaol system to provide him with the three key rehabilitative needs referred to in Mr Newton’s report;[22]
(h)his remorse;
(i)his prospects for rehabilitation; and
(j)his ongoing family support.
[22]Namely, an integrated pain management program, vocational rehabilitation and mental health treatment.
After setting out these circumstances, counsel submitted that the pleas of guilty were made at an early stage and had utilitarian value. They were also indicative of remorse. Further, Azmi had never before been incarcerated.
Counsel further noted Mr Newton’s opinion that the applicant’s dysthymic disorder meant that he would be at ‘significantly elevated risk of experiencing a gradual deterioration in his mood as time progresses’. In addition, Azmi had sustained injuries to his knees following an industrial accident, and now suffers chronic pain as a result. It was submitted that the effect of these matters is that any sentence that Azmi serves will weigh more heavily upon him, thereby engaging both the fifth and sixth limbs of Verdins.[23]
[23]Verdins (2007) 16 VR 269, 276 (Maxwell P, Buchanan and Vincent JJA).
In relation to ground 3, which concerns parity, the submissions on Azmi’s behalf were somewhat confined. It was submitted that should any of his co-offenders succeed in their appeal against sentence, and receive a lesser sentence, then Azmi should also be re-sentenced. In support of that submission, the applicant cited the following factors that were identified by the sentencing judge as being matters that differentiated his offending from that of his co-offenders:
(a)his lesser role in the offending;
(b)his lack of prior convictions and any subsequent matters;
(c)the absence of the aggravating feature that the offence was committed on bail;
(d)his superior prospects of rehabilitation; and
(e)his medical and psychological difficulties which invoked some of the Verdins propositions.
The Crown’s submissions regarding Azmi
The Crown submitted that there was no error in the sentencing judge’s approach in sentencing Azmi. In relation to ground 1, it submitted that her Honour did not err in her treatment of Azmi’s mental condition. It noted that her Honour found that he had engaged in deliberate and purposeful conduct over a significant period of time, and submitted that, in the circumstances, it was unsurprising that she found that the applicant’s condition did not causally contribute to the commission of the offences. The Crown further submitted that, having accepted Mr Newton’s opinion that Azmi’s moral reasoning was intact,[24] her Honour could not have found that his moral culpability was reduced.
[24]Paragraph 22(4) of Mr Newton’s report, 26 September 2012.
As to the manifest excess point (ground 2), the Crown submitted that each matter identified by Azmi’s counsel had been considered by the sentencing judge. Further, the sentence actually imposed was ‘well within the range’ available to her Honour. The Crown referred to the relevant sentencing snapshot for cultivation of commercial quantities of narcotic plants to demonstrate that the head sentence imposed was only slightly above the median, and the non-parole period only slightly below.[25]
[25]Sentencing Advisory Council, Sentencing Snapshot No 133: Sentencing Trends in the High Courts of Victoria 2006-07 to 2010-11, Cultivating a Commercial Quantity of Narcotic Plants (August 2012).
As to ground 3, the Crown submitted that it was not necessary to deal with parity until the determination of the co-offenders’ appeals. However, it accepted that if Kemal Latif and Niyazi were to have their sentences reduced, Azmi’s sentence would have to be adjusted as well.
Conclusion regarding Azmi
In dealing with ground 1, it is important first to set out her Honour’s conclusions as to the applicant’s mental state and the applicability of the Verdins principles. Her Honour said:
Mr Azmi, in circumstances where you engaged in deliberative and purposeful conduct over a number of days, in league with your co-offenders, and notwithstanding that you may have been experiencing depressive symptoms at that time, I am not satisfied on the balance of probabilities, that there was any causal connection between such symptoms as you were suffering and your offending so as to reduce your moral culpability. Although I accept you played a lesser role in the offending I regard your moral culpability for the part you did play as high. Further, I am of the view that notwithstanding the matters raised in Mr Newton’s report to which I have referred and notwithstanding the submissions made by your counsel in respect of general deterrence, I regard you as a suitable vehicle for general deterrence and I am not satisfied that I ought moderate the weight that I would otherwise give to this principle. For that matter I am not persuaded that the weight that I would otherwise attach to the specific deterrence ought be moderated.[26]
[26]Sentencing Remarks [152] (emphasis added).
Her Honour’s conclusion that Azmi’s depressive symptoms did not reduce his ‘moral culpability’ makes it clear that she considered that the first numbered proposition in Verdins had no role to play. She further concluded that there was no basis on which to moderate or eliminate either general or specific deterrence as a sentencing factor. In other words, the third and fourth numbered propositions in Verdins were also not applicable.
On the hearing of the application before this Court, counsel for Azmi contended that her Honour erred because it was now clearly established that a causal connection is but one way in which impaired mental functioning can affect moral culpability.[27] It was submitted that Mr Newton’s opinion that Azmi’s dysthymic disorder ‘would have been affecting him at the time of his offending’ was sufficient to render Verdins applicable, and to reduce his moral culpability.
[27]Tran [2012] VSCA 110.
The applicant’s argument relies upon the following passage of this Court’s judgment in Tran:
The cases in Victoria which have applied proposition 1 of Verdins have, on the whole, taken the view that a causal connection needs to be established between the impairment of mental functioning and the offending for which sentence is to be imposed. As Maxwell P said in Carroll v The Queen:
Where reliance is placed on [Verdins] proposition 1, concerning moral culpability, the question for the Court is whether the evidence establishes – on the balance of probabilities – that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?
But nothing in Verdins suggested that the only way to establish a basis for a submission about reduced moral culpability was to show a causal connection. The case law shows that – for what, in our view, are quite understandable reasons – sentencing judges look for some kind of causal link in order to reduce the moral responsibility which is otherwise to be properly to be laid at the feet of the offender.
The Court in Verdins identified a variety of ways in which courts had held that impaired mental functioning might reduce moral culpability, as follows:
Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of –
(a) impairing the offender’s ability to exercise appropriate judgment;
(b) impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.
As the Court there said, this was a descriptive rather than a prescriptive list. It was expressly said not to be exhaustive. Only one of the items in that list – item (f) – referred to causal connection. In short, counsel making submissions on the basis of Verdins 1 has always been in a position to contend that it is not necessary to establish a causal connection.[28]
[28]Ibid [17]-[20] (Maxwell P and Neave JA) (citations omitted).
In our opinion, and on the basis of the reasoning in Tran, the sentencing judge fell into error in concluding that, absent any causal link between Azmi’s mental condition and his offending, his moral culpability could not be reduced. There was no challenge to Mr Newton’s opinion that Azmi had been suffering from a dysthymic disorder at the time of his offending. It may well have been open to conclude, for example, that that condition either impaired his ability to exercise appropriate judgment or to make calm and rational choices.[29] Those possibilities were not explored by the sentencing judge. That was because, on our reading of the sentencing remarks, her Honour considered that moral culpability simply could not be reduced in the absence of a causal link of the kind she described.
[29]Verdins (2007) 16 VR 269, 275 (Maxwell P, Buchanan and Vincent JJA).
As indicated, specific error has been demonstrated. It is not necessary, in those circumstances, to consider ground 2, which complains of manifest excess. That is because this Court must ask itself whether a different sentence should be imposed (which, of course, imposes a lesser burden upon the applicant than does a ground of manifest excess).
As noted earlier in these reasons for judgment, Azmi received a total effective sentence of two years, four months and one week’s imprisonment, with a non-parole period of 15 months. The maximum penalty on the cultivation charge, as we have noted in relation to Kemal Latif and Niyazi, was 25 years’ imprisonment.
In sentencing Azmi, her Honour noted that his role was ‘slightly less serious’[30] than that of Kemal Latif and Niyazi. In addition, he had no criminal history or any criminal matters pending. He had also indicated his preparedness to plead guilty at a very early stage. Her Honour also found, on the basis of his pleas together with the character reference material and the report of Mr Newton, that Azmi showed ‘some remorse’. That remorse was, however, found to be qualified as he had not ‘expressed concern for those who may have been affected by distribution of the cannabis that [he was] cultivating, in any insightful way’.[31]
[30]Sentencing Remarks [133].
[31]Ibid [135].
In our view, and notwithstanding the mitigating factors that were present, the sentence imposed upon Azmi was entirely appropriate. No lesser sentence should be imposed. As her Honour noted, Azmi had been involved in a ‘criminal enterprise of some sophistication’[32] over an extended period of time. Any lesser sentence, and particularly any lesser non-parole period, would fail adequately to reflect the gravity of his offending.
[32]Ibid [133].
We reach this conclusion having had regard to all of the matters raised on Azmi’s behalf on the plea, including the opinion expressed by Mr Newton. That opinion must, however, be read against the background of a further comment by Mr Newton that:
Mr Azmi’s thought processes are free from disorder. He is not psychotic, and both his reality testing and his moral reasoning are intact.
Whilst Mr Newton’s report might conceivably justify the conclusion that Azmi’s moral culpability for this offending was reduced, it goes no further than that. There is nothing to suggest that deterrence, both general and specific, should be given significantly less weight than might otherwise be warranted. Mr Newton’s conclusion that Azmi’s ‘moral reasoning’ was ‘intact’ suggests that he knew perfectly well that what he was doing was wrong. And we note that even ‘reduced’ moral culpability can still be high.
Ground 3, concerning parity, was, of course, argued on the basis that there would need to be a reduction in Azmi’s sentence if Kemal Latif and Niyazi were successful in having their sentences reduced. As that has not occurred, there is no need to consider this ground.
For these reasons, although we would, as in the case of Kemal Latif and Niyazi, grant leave to appeal to Azmi, we would dismiss his appeal as well.
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