Mohtadi v The Queen
[2018] VSCA 238
•20 September 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0052
| JAMEL MOHTADI | The Applicant |
| v | |
| The Respondent | |
| THE QUEEN |
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| JUDGES: | KYROU and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 September 2018 |
| DATE OF JUDGMENT: | 20 September 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 238 |
| JUDGMENT APPEALED FROM: | DPP v Mohtadi [2018] VCC 110 (Judge Sexton) |
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CRIMINAL LAW – Sentence – Guilty plea – Charge of cultivate a commercial quantity of cannabis – Two charges of possess a drug of dependence – Charge of theft – Crop found at place of residence – Whether judge erred in finding that guilty plea was evidence of only some remorse as applicant had little choice but to plead guilty – Whether judge erred in finding that applicant’s drug dependence lowered his moral culpability only to a small extent – Total effective sentence 3 years 8 months – Whether manifestly excessive – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Sarah Tricarico Lawyers Pty Ltd |
| For the Respondent | Mr B Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
KYROU JA
KAYE JA:
The applicant pleaded guilty, before a judge of the County Court, to one charge of cultivate a commercial quantity of cannabis, two charges of possess a drug of dependence, and one charge of theft. Following a plea made on his behalf, the applicant was sentenced to a total effective term of 3 years and 8 months’ imprisonment with a non-parole period of 20 months. That sentence was constituted as follows:
Charge
Offence Maximum Sentence Cumulation 1 Cultivate a commercial quantity of cannabis [Drugs, Poisons and Controlled Substances Act 1981 s 72A] 25 years’ imprisonment 3 years, 3 months Base 2 Possess a drug of dependence
[Drugs, Poisons and Controlled Substances Act 1981 s 73(1)]Trafficking excluded
1 year imprisonment
and/or 30 penalty unitsTrafficking not excluded
5 years’ imprisonment
and/or 400 penalty units[1]3 months 1 month 3 Possess a drug of dependence See charge 2 6 months 1 month 4 Theft [Crimes Act 1958 s 74(1)] 10 years’ imprisonment 6 months 3 months Total Effective Sentence: 3 years 8 months’ imprisonment Non-Parole Period: 20 months Pre-Sentence Detention Declared: 267 days 6AAA Statement: 7 years’ imprisonment with a non-parole period of 5 years Other orders:
Disposal Order pursuant to s 77(1) of the Confiscation Act 1997 for the forfeiture and destruction of various exhibits seized during the investigation in respect of charges 1 and 4.
Forensic Sample order pursuant to s 464ZF of the Crimes Act 1958 for the applicant to undergo a forensic procedure for the taking of an intimate sample consisting of saliva.[1]The sentencing judge was satisfied on the balance of probabilities that the offences subject to charges 2 and 3 were not committed for any purpose related to trafficking in the relevant drug of dependence.
The applicant seeks leave to appeal against sentence on the following three grounds:
Ground One
The sentencing judge erred in finding the applicant’s ‘plea as an indication of some remorse on your part, although it is clear that there would have been little choice for you but to plead guilty in the circumstances of the crop being found at your house where you were living’ (Reasons for Sentence at [21])
Ground Two
The sentencing judge erred in finding that the applicant’s drug dependence lowered his ‘moral culpability only to a small extent’ (Reasons for Sentence at [30])
Ground Three
The sentence imposed on the charge of cultivating a commercial quantity of cannabis was manifestly excessive.
The circumstances of the offending
Each of the offences was committed by the applicant at the home at which he was then residing in Epping. On the morning of 24 May 2017, police executed a search warrant at the applicant’s home. They found that five rooms of the house contained a sophisticated hydroponic cannabis cultivation set-up. The open plan dining/living room in the downstairs part of the house had been converted into two growing rooms. In the upstairs section, two bedrooms and another living room had each been similarly converted into growing rooms.
In the course of the search, police located 23 mature cannabis plants in four rooms, in various stages of maturity. Those plants weighed a total of 76.22 kilograms. In addition, police located a further 41 juvenile cannabis plants that were being cultivated in a fifth room. Those plants weighed a total of 1.42 kilograms. Thus, in total, 64 plants were being cultivated in the house, and their total weight amounted to 77.64 kilograms. Under the provisions of the Drugs Poisons and Controlled Substances Act 1981 (‘the DPCS Act’), the number of plants located at the premises was less than the minimum number for a commercial quantity (being 100 plants), but the total weight was more than three times the minimum weight necessary to constitute a commercial quantity (that being 25 kilograms). The applicant was charged, in charge 1, with cultivating that crop of plants between 16 March 2017 and 24 May 2017.
In the course of the search, it was also discovered that an electrical bypass had been illegally installed at the premises. The supplier of electricity to the premises estimated that, as a consequence, the value of electricity stolen from it amounted to the sum of $18,177. Those circumstances constituted the fourth charge on the indictment, that of theft.
In addition, the police investigators found a number of jars and bags of dried cannabis in the kitchen of the premises that weighed in total 280.1 grams. The possession by the applicant of that substance was the subject of charge 2 on the indictment. Police also found five snap lock bags and one vacuum sealed bag of cocaine in a box in a kitchen cupboard. The total weight of the cocaine seized was 43.1 grams. The possession by the applicant of that substance constituted charge 3 on the indictment. In the same box, police also located a set of electronic scales, a number of small snap lock bags, a spoon and a plastic straw with a scoop at one end. In an adjacent kitchen cupboard, police found another quantity of the same small snap lock bags.
Each of those quantities of drugs, that were the subject of charge 2 and charge 3, constituted a traffickable quantity for the purposes of the DPCS Act. Having heard evidence from the applicant on the plea, the judge found, on the balance of probabilities, that the applicant was not in possession of either drug for the purpose of trafficking. As a result, the maximum sentence applicable on each of charges 2 and 3 was 12 months’ imprisonment.
At the time of the police search, the applicant was at his place of work. He was contacted by the police, and asked to attend at the police station. The applicant kept that appointment, and surrendered himself into custody on the same evening. When interviewed by the police, he exercised his right to remain silent. Subsequently, he pleaded guilty to the four charges on the indictment at a committal mention hearing.
Previous convictions
The applicant was born in February 1986, and, at the time of the offending, he was 31 years of age. In January 2016, he was fined without conviction by the Broadmeadows Magistrates’ Court on a charge of contravening a family violence intervention order. In August of the same year, he came before the Heidelberg Magistrates’ Court on a charge of theft from a shop. The matter was adjourned without conviction, and the applicant was ordered to pay $200 to the Court fund.
The plea
The applicant is the youngest of six children. When he was about five years of age, he travelled, with his family, to Lebanon, which is his parents’ country of birth. While they were there, the applicant was subjected to an incident of which he had not previously spoken until the time of his arrest, but which he said had a profound effect on him at the time of the offending.
Upon the family’s return to Melbourne, the applicant undertook and completed his education at Year 10 level. After he left school, he successfully completed an apprenticeship in the fire service industry, and he was regularly employed in that capacity until the time of his arrest. Both of the applicant’s brothers work in that industry. After completing his apprenticeship, the applicant worked for a company that was owned by one of them. Subsequently, he commenced employment with a company owned by his other brother. The applicant married his girlfriend in 2008, with whom he had been in a relationship for three years. Their daughter was born in 2010 and was aged 7 at the time of the plea. At an early age, she was diagnosed with a heart condition, which had required ongoing monitoring throughout her life.
The applicant began to use cocaine in about 2012, and he immediately became dependent on that substance. At that time, he had been suffering from anxiety and depression, which, it would seem, had resulted from recurring memories of the events to which he had been subjected in Lebanon, and also from his concern about his daughter’s health. He sought to compensate for those feelings by being unfaithful to his wife, by using and indulging in the heavy consumption of cocaine, and by engaging in gambling. Eventually, his wife left him, taking his daughter with her. The applicant attributed his marriage breakdown to his infidelity and his dependence on cocaine.
After the failure of his marriage, the applicant continued to work long hours, which, he said, enabled him to overcome feelings of anxiety and depression during the day. Notwithstanding his addiction to that substance, the applicant continued to work, at a high level in the business, and he was responsible for managing some significant projects for the company. As the applicant’s levels of anxiety increased, he used cocaine on a daily basis, and, out of work hours, also used cannabis. At the same time, he also engaged in binge drinking of alcohol.
On the plea, the applicant gave evidence that, as a result of his heavy consumption of cocaine and cannabis, he had incurred a substantial drug debt to the persons who had been supplying him with those substances. He said, in his evidence, that he was told by those people that, in order to repay the debt, he had to occupy and manage a house in which the substances were grown. The applicant maintained that it was his drug suppliers, and not he, who had set up the hydroponic process that was installed at the house, and who were responsible for installing the electrical bypass. The applicant said that his primary role was to ensure that the lights remained on in each of the rooms in which the plants were growing, and that there was sufficient water in the tanks for them. In return for conducting the grow house, the people, who supplied him with drugs, forgave him for the debt due to them, and, in addition, continued to keep him supplied with the quantities of cocaine and cannabis for his own use. In his evidence, the applicant stated that the substances, that were the subject of charge 2 and charge 3, were for his own use, and not for the purposes of trafficking. As we have noted, the judge was satisfied, on the balance of probabilities, that the applicant was not engaging in trafficking those substances. The applicant explained that he used the scales of the premises to measure the amount of drug that he was using at any particular time.
The applicant’s brother also gave evidence on the plea. He said that although he understood that the applicant was experiencing personal pressures at the time, he was unaware that the applicant was engaging in the heavy consumption of cocaine and cannabis. He said that the applicant had been performing his role at the company particularly well. The brother further stated that, after the applicant is released from custody, he would again engage the applicant in his business, but he would exercise oversight to ensure that the applicant did not relapse into his drug habit.
The applicant was examined by Jeffrey Cummins, a consultant clinical and forensic psychologist, in August 2017. Mr Cummins formed the view that at the time of the applicant’s arrest, he was dependent on cannabis and cocaine, and he was a binge drinker of alcohol. He was also suffering from a trauma related disorder, which was most probably post-traumatic stress disorder, as a result of the incident in Lebanon when he was five years of age.
In the course of giving evidence on the plea, the applicant described some traumatic incidents that he had witnessed during his time in custody. In particular, he had witnessed the aftermath of one fellow prisoner who had committed suicide. In addition, on other occasions, there had been two stabbing incidents in the prison. During his time in custody, the applicant had attended a number of courses, and he had completed numerous ‘cleaning urine’ screen tests for drug use. He had worked initially as a billet, and, subsequently, he had become a peer drug educator at the prison.
The judge’s reasons for sentence
The judge, having reviewed the evidence, made findings about the applicant’s role in the cultivation of a commercial quantity of cannabis that was the subject of charge 1. Her Honour noted that it was a sophisticated set up at the ‘mid-range’ level of cultivation. She accepted that there was no evidence to refute the applicant’s claim that he had not been involved in setting up the arrangement. Nevertheless, his role was a ‘vital one in getting the crop to a saleable product’. In particular, the applicant provided security against any potential theft of the crop. Until he was detected, he kept the premises and the crop from falling under suspicion, because it was the home that he had lived in for some time. The applicant had ensured that the conditions were optimal for the continued growth of the crop, and he was prepared to assist further if asked to do so, for example, by attending the hydroponic shop, or by cutting the maturing plants into smaller plants. In addition, the applicant had kept the principal cultivators of the crop ‘at arm’s length’ while it grew to a saleable crop. In that way, he had enabled them to avoid detection.[2]
[2]DPP v Mohtadi [2018] VCC 110 (‘Sentencing Remarks’) [10].
As already stated, the judge accepted that the applicant was not in possession of the drugs, that were the subject of charge 2 and charge 3, for the purpose of trafficking them. Her Honour noted that by his pleas of guilty, the applicant had saved the community the time and cost of a trial. She then stated:
I also treat your plea as an indication of some remorse on your part, although it is clear that there would have been little choice for you but to plead guilty in the circumstances of the crop being found at your house where you were living.[3]
[3]Sentencing Remarks [21].
The judge then turned to the applicant’s personal circumstances, which we have outlined above. Her Honour considered that the applicant’s sentence did not have ‘as a major purpose’ the need to deter him from re-offending, because this was the first time he had been in prison, and because of the experiences that he had had while in custody. The judge also took into account the steps that the applicant had taken towards his own rehabilitation, and, in particular, his conduct while in custody. That conclusion was reinforced by the support that he had from his entire family. Consequently, the judge considered the applicant’s prospects for rehabilitation to be ‘very good’.[4]
[4]Sentencing Remarks [35].
The judge then concluded as follows:
In summary, the factors in your favour are your early plea of guilty, your signs of remorse and acceptance of responsibility for your crimes, your voluntary surrender to police, your strong family support and good work history, the efforts you have made so far towards your rehabilitation, the fact that this is your first time in custody with a very limited criminal history, and the motivation you have of remaining in the community for your daughter to deter you from re-offending. I also take into account the effect on you of being in prison with no physical contact with your daughter.
Against that is the objective seriousness of the cultivation of a commercial crop of cannabis which was conceded on your behalf to be a crime in the mid-range for these offences, and your willingness to participate in a mid-level criminal enterprise for the significant benefit of having a large drug debt removed and a continuous drug supply.[5]
[5]Sentencing Remarks [38]–[39].
Her Honour referred to the recent decision of this Court in R v Nguyen,[6] in which the Court considered that the current sentences for mid-range offending in trafficking a commercial quantity of a prohibited substance, were too low, so that the sentencing courts must, by increments, increase sentences for that category of offending. The judge noted that, unlike some other offenders, the applicant was in a well-paid occupation at the time of the offending, and he was living in his own home. He was not subject to the type of vulnerability suffered by other offenders who engage in looking after crops that constituted a commercial quantity of a prohibited substance.[7] Her Honour concluded that there was no alternative than to impose an immediate term of imprisonment in respect of the charges on the indictment.
Grounds of appeal ― analysis and conclusions
[6](2016) 311 FLR 289 (‘Nguyen’).
[7]Sentencing Remarks [41].
Ground 1
Ground 1 is directed to that part of the judge’s reasons in which her Honour stated that the applicant’s guilty plea was an indication of some remorse on his part, although it was clear that there would have been little choice for him but to plead guilty in the circumstances of the crop being found at his house where he was living.[8] In support of ground 1, counsel for the applicant relied on in Phillips v The Queen,[9] in which this Court considered the weight to be given to both the objective and subjective aspects of a guilty plea. Counsel relied, in particular, on the following passage in the joint reasons of Redlich JA and Curtain AJA:
In every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty, will require evaluation by the sentencing judge in the light of the overall complexity of the facts before the court.[10] Where there is contextual evidence, such as a record of interview, medical reports or other evidence of the offender’s attitude to his offending which tends to indicate that the existence of these subjective matters is limited, the strength of the Crown case may be considered in conjunction with these facts to support the adverse inference that the extent of the offender’s remorse or willingness to facilitate the course of justice is limited or non-existent. If there is an absence of any evidence concerning these subjective criteria, the sentencing judge may take into account the strength of the Crown case as bearing upon the extent of the offender’s remorse or willingness to facilitate the course of justice.[11] But where there is uncontradicted positive evidence, or an assertion from the Bar table which is accepted, that such subjective criteria are present, the weight of the Crown case will not ordinarily inform the question whether the offender is remorseful, willing to facilitate the course of justice or accepting of responsibility. Hence, in Pajic and the cases which have applied that reasoning, speak of the need to have regard to the complexity of contextual evidence on the plea before an adverse inference can be drawn against the offender.[12]
[8]Sentencing Remarks [21].
[9](2012) 37 VR 594 (‘Phillips’).
[10]R v Holder; R v Johnston[1983] 3 NSWLR 245, 259 (Street CJ).
[11]Ciantar v The Queen; Rose v The Queen[2010] VSCA 313 [31].
[12]Phillips (2012) 37 VR 594, 615 [72] (Redlich JA, Curtain AJA).
Counsel for the applicant contended there were a number of factors that supported a conclusion that the applicant was remorseful. In particular, he had voluntarily attended the police station when requested to do so by police, he pleaded guilty at an early stage of the proceeding, and he took the unusual step of giving viva voce evidence on the plea. Each of those factors, it was contended, bespoke an acceptance of responsibility by the applicant and an expression of remorse by him for his conduct. In those circumstances, it was submitted, it was not open to the judge to qualify the ‘discount’ to be attributed to the applicant’s remorse because of the strength of the prosecution case.
In response, counsel for the respondent submitted that the passage, in the judgment in Phillips, relied on by the applicant, does not support the ground of appeal. The applicant had not expressed his remorse in any record of interview with the police, in evidence before the judge, or in a medical report. None of the matters relied on by the applicant provided evidence of remorse. His voluntary attendance at the police station was evidence of cooperation, but not of remorse. The early nature of the plea was taken into account by the judge, but it did not evidence remorse. The applicant was obliged to give evidence on the plea, because, as a consequence of the drugs that were found on the premises and that were the subject of charge 2 and charge 3, he bore the onus of satisfying the Court that those drugs were not possessed for any purposes relating to trafficking in them.
In addressing ground 1, it is necessary to define precisely what is meant by ‘remorse’ in the context of the offences to which the applicant pleaded guilty. In ordinary parlance, and in the application of the principles of sentencing, remorse involves a genuine subjective feeling of regret for the harm that has been occasioned, either to other persons or to society, as a consequence of the criminal activity in which the particular offender has been involved. As such, it involves insight into the harm that has been occasioned by the offender’s criminal actions, accompanied by genuine feelings of contrition for occasioning that harm. In the context of the offences which were the subject of the first three charges, it is important to bear in mind the deleterious, and indeed destructive, consequences of the activity in which the applicant had become involved. The courts have become all too familiar with the harm wrought to individuals and to communities as a result of the proliferation of drugs in our society. Those consequences are well known and well understood. Those who seek to engage in the kind of offending that was the subject of charge 1, ordinarily do so for the purposes of substantial personal gain, at the expense of the suffering of others in the community to whom the prohibited drugs are to be distributed. In the applicant’s case, he stood to gain a significant benefit, namely, the discharge of the large drug debt that he owed to his suppliers, and the ongoing supply to him of illicit substances. A conclusion as to remorse, by the applicant, could only be based on appropriate evidence that indicated that he had insight into the type of harm that commonly results from that type of activity, and a genuine sense of contrition for being a party to it.
In the present case, there was no direct evidence by the applicant that he experienced any such feelings of remorse at all. The applicant did not express remorse when giving evidence before the judge. As noted, he made a ‘no comment’ interview with the police. In those circumstances, it is understandable that his counsel, on the plea, did not press the issue of remorse with any particular vigour. Rather, counsel stated:
So in terms of his early plea of guilty, your Honour, I make the submission that that is evidence of remorse, but also that he’s taken full accountability from the outset.
Each of the three matters, relied on in this application do not, in our view, support any finding of substantial remorse on behalf of the applicant. A plea of guilty is not necessarily indicative of any expression of remorse. Rather, as the judge observed, it was inevitable, given that the applicant was caught ‘red handed’ in possession of the large quantities of drugs in his home. The fact that he voluntarily attended the police station, when requested to do so, was not evidence of remorse; it was evidence of cooperation, in circumstances in which, if he had not attended, he would have been arrested. The fact that the applicant took the unusual step of giving evidence on his plea could not, logically, give rise to an inference of remorse. As noted, the applicant needed to give evidence in order to discharge the onus of proof that was on him to demonstrate that the drugs, that were the subject of charge 2 and charge 3, were not possessed by him for the purpose of trafficking.
In essence, on the plea, counsel for the applicant relied on an inference of remorse, based primarily, if not wholly, on the applicant’s plea of guilty. In the passages of the judge’s reasons relied on in support of ground 1, the judge was prepared to draw that inference based on the plea of guilty. However, it is axiomatic that a guilty plea does not, of itself, necessarily form the basis for a finding of remorse. Whether such an inference is drawn in a particular case, and the degree of remorse that is inferred by the sentencing judge, must depend on all the circumstances of the case. In the present case, where the prosecution case against the applicant was strong, and where the applicant had little choice but to plead guilty, any remorse that might be inferred from the guilty plea must, in the absence of any other relevant factors, be limited.
Accordingly, the finding by the judge, that there was some remorse on behalf of the applicant, was, if anything, generous. However, in accepting that the applicant’s plea of guilty was an indication of some remorse on his behalf, it was entirely logical and appropriate for the judge to reflect that there would have been little choice for him but to plead guilty, in the circumstances in which the crop had been found at the home in which he was then living.
The submissions, made by the applicant’s counsel in support of ground 1, do not derive any support from the passage in the joint reasons of Redlich JA and Curtain AJA in Phillips that was relied on. First, it is important to keep in mind that the views expressed by their Honours in that case were no more than a helpful description of the manner in which, ordinarily, a sentencing judge ought deal with the concept of remorse. However, as with any reasons for judgment of a court, they should not be construed as some form of prescriptive statute, and applied inflexibly without appropriate reference to the context of the case under consideration.
Further, and in any event, the passage in Phillips, relied on by counsel for the applicant, does not support the submission, advanced under ground 1, that the judge erred in evaluating the degree of remorse to be inferred from the applicant’s plea of guilty. As Redlich JA and Curtain AJA stated in that passage, where, as in this case, there was an absence of evidence concerning the applicant’s remorse, it was permissible, and, indeed, most appropriate, for the judge to take into account the strength of the prosecution case as relevant to an assessment of the extent of the applicant’s remorse and his willingness to facilitate the course of justice.
As we have stated, there was an absence of any evidence adduced by the applicant as to his remorse. Rather, reliance was placed, and on this application is placed, on other factors from which an inference of remorse was to be drawn. In accordance with the principle stated in Phillips, the judge was correct to take into account the strength of the prosecution case as bearing upon the extent of the applicant’s remorse.
For those reasons, we would decline leave to appeal on ground 1.
Ground 2
In support of ground 2, counsel for the applicant noted that the applicant’s drug addiction had a direct causal connection with his involvement in the cultivation of cannabis at his home, as it was the means by which he repaid a significant drug debt, and also maintained a supply of cocaine and cannabis to him to sustain his addiction. At the plea, the applicant gave evidence as to how his drug addiction commenced, and the extent to which it had become an integral part of his life. He said that he had commenced using cocaine in about 2012 to alleviate stress and anxiety that related to his past history and his marital breakdown. He told the judge that he possessed the quantities of cocaine and cannabis, that were the subject of charges 2 and 3, to satisfy his drug addiction. The forensic psychologist, Jeffrey Cummins, supported the evidence by the applicant that he was dependent on both substances at the time of his offending. It was on the basis of that evidence that the judge found that the significant amounts of cocaine and cannabis, the subject of charges 2 and 3, were not for the purpose of trafficking. In doing so, her Honour accepted that the applicant was using large amounts of the substances and that he was dependent on them at the time of offending.
It was in that context that counsel submitted that the judge erred in concluding that the applicant’s drug dependence only reduced his moral culpability to a small extent. Counsel contended that, having accepted that the applicant was drug dependent at the time of offending, that conclusion by the judge was ‘incongruous and inconsistent’. In particular, counsel placed substantial emphasis on the causal link between the trauma to which the applicant had been subjected when he was a child and his subsequent drug addiction, which, in turn, had a direct causal relationship with the applicant’s offending.
In response, counsel for the respondent submitted that the judge was correct in her assessment of the extent to which the applicant’s moral culpability was reduced by virtue of his drug addiction. Although the applicant had resorted to using drugs due to some stresses on him, nevertheless his circumstances were very different to those which might qualify for a substantial reduction of moral culpability by virtue of the addiction. The applicant had had the advantage of a good education, he had regular employment, and he had a wife and child. He had only resorted to using drugs in his mid-20s, at a time at which he should have been sufficiently mature to have resisted the temptation to alleviate his stress levels in that way. Accordingly, it was submitted that the applicant had not established that the judge erred in her characterisation of the extent to which the applicant’s addiction mitigated his culpability.
In our view, the judge’s approach to the mitigatory effect of drug addiction, on the issue of culpability, was correct on the facts of this case. The applicant’s offending was not that of a drug trafficker at ‘street level’, driven to engage in trafficking by reason of an uncontrollable immediate need to feed an addiction.[13] Rather, the applicant’s offending was at a much higher level. While he had become engaged in the offending because he had incurred a significant debt to the suppliers of the drugs to which he was addicted, his offending was of an entirely different nature to that of a street trafficker, and was for a purpose that was qualitatively different.
[13]Cf R v Banath [1997] 1 VR 271, 275–6 (Callaway JA).
In R v Koumis,[14] the Court analysed the relevance of an offender’s drug addiction to the issue of moral culpability, stating:
A number of general propositions may be stated about the relevance of addiction to the question of moral culpability and whether it should be viewed as a mitigating circumstance for the purpose of sentence. Drug addiction provides no justification for the purposes of sentencing. Drug addiction is not of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate. The sentence to be fixed has to reflect the seriousness of the crime of trafficking in substantial quantities of a drug of dependence. Denunciation and general deterrence assume particular importance as the purposes to be effectuated by the sentence. Generally speaking, addiction, and any consequential impairment of judgment, will not have any significant mitigatory effect upon those sentencing considerations.
…
The general reluctance of courts to take drug addiction into account rests in part, at least, upon the view that the decision to begin to use drugs was voluntary and the commission of crimes to feed an addiction was a likely consequence of that choice.[15]
[14](2008) 18 VR 434.
[15]Ibid 437 [53], [56] (Redlich and Kellam JJA, Osborn AJA). See also R v Katelis [2008] VSCA 239 [12].
The Court then proceeded to adopt the following passage from the judgment of Buchanan JA in R v McKee:[16]
The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question, as Spigelman CJ acknowledged. I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse. An addiction to heroin may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated. In my view, a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or is being treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender.[17]
[16](2003) 138 A Crim R 88.
[17]Ibid 92–3 [13]. See also 94, [21] (Vincent JA).
As noted, the applicant’s offending was well above that of a street level driven by desperation to traffick in a drug in order to be able to feed an uncontrollable addiction. Rather, the applicant had chosen to become involved in a sophisticated business of cultivating cannabis at a commercial level, in order to repay a drug debt, and to secure a continuing supply of drugs to himself. In doing so, he performed an important role in the drug trafficking enterprise of his supplier in the manner described by the sentencing judge in the passage to which we have earlier referred.
In sentencing the applicant, the judge accepted and took into account that the applicant’s offending was not driven by greed, but, rather, that it resulted from his circumstances. The sentence imposed on him, on charge 1, reflected that view of the applicant’s offending. In that sense, the judge did accord the applicant’s drug addiction weight in measuring his culpability. On the other hand, as observed by counsel for the respondent, the applicant did not come from a disadvantaged background. While he had been subjected to some stresses in his life, and to trauma in his childhood, nevertheless he chose to become attached to the consumption of illicit substances in his mid-20s, at a time at which he had a wife and child, and was engaged in a responsible field of employment. When, as a result, he incurred a large debt to his supplier, he chose to become involved in the cultivation of cannabis at his home as a means to discharge that debt and to secure further supplies of the drug to him. While the abuse, to which he was subjected in his childhood, was one of the factors that caused him, as a mature adult, to resort to drug use, its connection with the offending, that was the subject of charge 1, was, at the most, limited and somewhat remote.
Taking those matters into account, the judge was, in our view, correct in proceeding on the basis that while the applicant’s drug addiction provided part of the reason for his participation in the cultivation, it only reduced his moral culpability to a small extent.
For those reasons, we do not grant leave to the applicant on ground 2.
Ground 3
In support of ground 3, counsel for the applicant emphasised a number of mitigating factors. In particular, the applicant had voluntarily attended at the police station and pleaded guilty. The sentencing judge had accepted the connection between the applicant’s stress and his resort to the use of cocaine and cannabis, which in turn played a causative role in his offending. It was submitted that the offending occurred at the time when the applicant was heavily addicted to cannabis and cocaine, and abused alcohol, to such an extent that he was dependent on those substances. The applicant had a background history of anxiety and depression, together with a trauma-related disorder that had emanated from the abuse he had suffered when he was a young child. Impressive character evidence had been adduced on his behalf, and he had a sound employment history. The applicant had good prospects for rehabilitation, taking into account that he had a supportive partner and substantial family support, and that he had made productive use of his time in custody. The applicant had not previously been in prison, and his sentence was more burdensome because he was deprived of contact with his young daughter during the term of his incarceration.
Taking into account those matters, it was submitted that the sentence imposed on charge 1 was manifestly excessive.
In the absence of specific error, it is a difficult task for an applicant to demonstrate that the sentencing discretion has miscarried on the basis that the sentence imposed on the applicant is manifestly excessive.[18] In order to establish such a ground, the applicant must demonstrate that the sentence imposed on him was wholly outside the range of sentencing options available to the sentencing judge.[19]
[18]R v Boaza [1999] VSCA 126 [42] (Winneke P).
[19]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
The offence of cultivation of a commercial quantity of a narcotic plant in a drug of dependence is, of itself, a serious offence, as reflected by the prescribed maximum sentence of 25 years. As Redlich JA observed in Nguyen,[20] over the last decade this Court has, on a number of occasions, reflected on the gravity of the nature of the offence, and on its increasing prevalence in our society. As a consequence, the Court has emphasised that general deterrence is an important consideration which, ordinarily, should be at the forefront of sentencing considerations.[21]
[20][2016] VSCA 198 [139].
[21]R v Mason [2006] VSCA 55 [16] (Buchanan JA); Doan v The Queen [2010] VSCA 250 [11] (T Forrest AJA), [17] (Nettle JA).
In the present case, the sentencing judge correctly noted that the offending in which the applicant was involved comprised the maintenance by him of a sophisticated drug cultivation setup in his home. The quantity of cannabis under cultivation was substantial, constituting more than three times the minimum weight necessary to qualify for a commercial quantity of the substance. The applicant had played an important role in the existence and maintenance of the setup in his home.
In her sentencing remarks, the judge properly acknowledged, and took into account, the mitigating factors which were relied on by the plea, and which are the basis of the submissions made on behalf of the applicant in support of ground 3. As we have stated, we consider that the judge was correct in according limited weight to the applicant’s drug addiction in evaluating his culpability for the offending. The sentence imposed by the judge, on charge 1, was only 12 per cent of the maximum sentence available for the offence. In all the circumstances, we do not consider that it could be maintained that that sentence was wholly outside the range available to the sentencing judge. On the contrary, we consider that the sentence was reasonable and appropriate in the circumstances of the case.
For those reasons, we refuse leave to the applicant on ground 3.
Summary of conclusions
For the foregoing reasons, the applicant has failed to make out any of the proposed grounds of appeal. Accordingly, leave to appeal is refused.
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