Pulis v The King
[2025] VSCA 2
•31 January 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0158 |
| MICHAEL PULIS | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | Emerton P and J Forrest AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 January 2025 |
| DATE OF JUDGMENT: | 31 January 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 2 |
| JUDGMENT APPEALED FROM: | [2024] VCC 7 (Judge Moglia) |
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CRIMINAL LAW – Application for leave to appeal against sentence – One charge of cultivation of a narcotic plant (cannabis L) – 221 plants found at applicant’s residence – Applicant maintained plants were for personal use to self-medicate for mental health issues – Sentenced to 8 months’ imprisonment with a CCO of 18 months – Repeat offender – Whether sentence manifestly excessive – Whether specific errors which materially affected sentence – Leave to appeal refused.
Drugs, Poisons and Controlled Substances Act 1981, s 72B, sch 11 pt 2.
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| Counsel | |||
| Applicant: | Mr N Rudston | ||
| Respondent: | Ms K Hamill | ||
Solicitors | |||
| Applicant: | Joseph Burke Law | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
EMERTON P
J FORREST AJA:
Michael Pulis, the applicant, has applied for leave to appeal against a sentence imposed in the County Court by his Honour Judge Moglia on 5 August 2024 in relation to the cultivation of 221 cannabis plants at his home in Hillside, in breach of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’).[1]
[1]DPP v Pulis [2024] VCC 7 (Judge Moglia) (‘Reasons’).
The applicant was sentenced to 8 months’ imprisonment with a Community Corrections Order (‘CCO’) of 18 months’ duration to take effect after the prison sentence was served.
The applicant contends, amongst other things, in his proposed grounds of appeal, that the sentence was manifestly excessive and that the judge made a number of specific errors which materially affect the sentence imposed.
We determined at the conclusion of the hearing of the application that there was no substance to the applicant’s arguments and refused leave to appeal. Our reasons for doing so now follow.
The charges and the sentence
On 16 July 2024, the applicant pleaded guilty to two discrete charges. The first, the subject of this application for leave to appeal, was that of cultivation of a narcotic plant (cannabis L) contrary to s 72B of the Act.[2] On 5 August 2024, he was sentenced to 8 months’ imprisonment. An 18-month CCO was also imposed, to be served at the end of the custodial sentence.[3]
[2]In the alternative, the applicant had initially been charged with cultivation of a narcotic plant in a quantity not less than a commercial quantity — which for cannabis L is defined in sch 11, pt 2 of the Drugs Poisons and Controlled Substances Act 1981 as 25kgs or 100 plants.
[3]This was a ‘treatment only’ CCO.
The maximum penalty for the offence is 15 years’ imprisonment.
The second charge (which is not the subject of this application) was a summary offence, of possessing a Schedule 4 poison (sildenafil citrate, a drug for treating erectile dysfunction) — of which he was convicted and discharged.
The circumstances surrounding the applicant’s offending
On the morning of 22 September 2022, three Victoria Police officers attended a house in Melaleuca Close, Hillside, at which the applicant was both residing and conducting his construction business. They did so pursuant to a warrant issued under ss 464ZFAD and 464ZFAE of the Crimes Act 1958.
In the course of the search of the premises, one of the officers entered a bedroom and discovered a hydroponic setup containing cannabis L plants in varying stages of maturity. An adjoining room contained shelves, electrical equipment and seedlings in nursery boxes. A total of 221 cannabis L plants were found at the property.
Subsequently, on 17 November 2022, the applicant was arrested at the Hillside house and conveyed to the Sunshine Police Station, where he was interviewed by police. He made a no comment interview.
The applicant was charged and remanded in custody on 17 November 2022 and then bailed on 30 November 2022.
The applicant’s personal circumstances[4]
[4]Reasons, [16]–[26].
The applicant was 38 years old at the time of the offending and 40 years old at the time of sentence. He grew up in an environment free from violence and other abuse and has maintained a close relationship with his family. He completed Year 12 and a plumbing apprenticeship and went on to run his own plumbing and construction businesses.
At the time of the imposition of the sentence, his construction business had 20 full-time employees and was involved in several domestic and commercial developments. However, the applicant was under investigation by the Victorian Building Authority (‘VBA’) as to whether he was a fit and proper person to be licensed by it.
Mr Jeffrey Cummins, psychologist, in a report dated 12 July 2024, opined that the applicant was suffering from a major depressive disorder and an adjustment disorder.
Since 2021, the applicant has lived with significant stresses relating to the VBA investigation, the effects of COVID-19 on his business, and a stormy past relationship. Mr Cummins reported that the applicant self-medicates with a number of substances, and in 2022, had a moderate cannabis use disorder. He has never engaged in mental health treatment and is opposed to medication.
The applicant’s prior criminal history
The applicant’s criminal history dates back to 2003. Prior to 2016, this was described by the judge as ‘minor and dishonest offending’.
The prior offending relevant to this charge commenced with the applicant’s sentencing in August 2016 for cultivating a narcotic plant (cannabis L) — for which he was sentenced to a CCO for 12 months. The conditions of the CCO included the requirement to perform unpaid community work for 200 hours, undergo assessment and treatment for drug use and attend offending behaviour programs as directed, with 50 hours undertaken for treatment and rehabilitation to be treated as hours of unpaid community work for the purpose of the CCO.
At this time, the applicant was also convicted of a variety of other offences including possessing a prescribed item (namely, cartridge ammunition without a licence/permit) and committing an indictable offence (namely, theft) whilst on bail. The penalty for these offences was included within the CCO and the consequential orders.
In October 2016, the applicant was convicted of recklessly causing injury and persistent contravention of a family violence order, and sentenced to a CCO of 12 months, with conditions requiring 75 hours of unpaid community work, and treatment and rehabilitation comprising an offending behaviour program (namely, a men’s behaviour change program) and any other treatment and rehabilitation as directed.
In May 2017, the applicant was convicted on a charge of theft and fined $750.
In March 2022, the applicant was sentenced to 65 days’ imprisonment (effectively time served) and licence cancellation and disqualification for three months for theft of an excavator. He was also convicted of committing an indictable offence whilst on bail and entering a private place without authority or lawful excuse and sentenced to a CCO of 12 months and the performance of 150 hours of unpaid community work.
In April 2022, for persistent contravention of a family violence order, driving while disqualified and contravention of an interim family violence intervention order, the applicant was imprisoned for 30 days (effectively time served) and placed on a CCO for 18 months, requiring him to be supervised and to engage in assessment and treatment for drug use and mental health, and attend offending behaviour programs as directed. This CCO was in force at the time of the offending the subject of this application.
The plea hearing and the judge’s reasons
The applicant’s plea was heard on 16 July 2024. He admitted cultivating and being solely responsible for the cannabis located at the Hillside house.
In careful and succinct reasons, the judge concluded that the applicant’s prior conviction for the same offence meant he was aware of the seriousness of his actions and the legal consequences of them and that this made his repeat offending ‘more serious’.[5] His Honour found the applicant’s culpability to be high given that he engaged in the offending whilst on a CCO and admitted to being solely responsible for the crop.[6] While he noted that the applicant was not to be sentenced on the basis of the commercial quantity of the crop, he observed that ‘the number of plants reflect[ed] a sizeable operation and an expectation of proportionate production’ and that both the number and weight of plants were important features in determining gravity in a given case.[7] Indeed, it was accepted on the plea that the operation was unarguably set up for commercial cultivation.
[5]Reasons, [29].
[6]Reasons, [29].
[7]Reasons, [28].
The judge had regard to both community denunciation and specific deterrence, noting in particular that the applicant had been previously sentenced to a CCO that included support and treatment for his drug use and mental health and that this did not deter him from engaging in the current offending.[8] His Honour was ‘guarded’ as to the applicant’s prospects for rehabilitation.[9]
[8]Reasons, [30]–[31].
[9]Reasons, [32].
The judge accepted that there were utilitarian benefits attributable to the plea of guilty despite it not being made early in the proceeding: acceptance of responsibility and willingness to facilitate the course of justice.[10] However, in light of the pre-trial conduct of his defence,[11] the judge was not satisfied that the plea was demonstrative of genuine remorse.[12] This was so despite character references which spoke of the applicant’s regret.[13]
[10]Reasons, [14].
[11]See Reasons, [9]–[14].
[12]Reasons, [34].
[13]Reasons, [34].
The judge gave some weight to the delay between arrest and plea noting that the applicant was arrested in November 2022, however he found that this was not unduly lengthy.[14] His Honour also accepted the opinion of Mr Cummins that the applicant would find prison more onerous due to his depressive and adjustment disorders and found that this was of mild significance.[15] Finally, some weight was given to the fact that he will be unable to assist his business during the time that he is in custody.[16]
[14]Reasons, [35].
[15]Reasons, [36].
[16]Reasons, [36].
The judge also had regard to a large number of County Court decisions (relied upon by the applicant on the plea) involving the cultivation of cannabis[17] including DPP vCaraku,[18] DPP vLam,[19] DPP vLock,[20] DPP vNguyen & Ors,[21] DPP vMy Quoc Nguyen,[22] DPP vMinh Nguyen,[23] DPP vVo,[24] and DPP v Toscano.[25] His Honour found that the applicant’s offending could be distinguished from these cases given that each of them, save for one, involved offenders who had no prior convictions or relevant criminal history, or were young offenders.[26] The remaining case[27] involved an offender who was a disability support pensioner who grew and used cannabis to treat his chronic fatigue and who had the benefit of an early plea during COVID, attracting the principles in Worboyes v The Queen.[28]
[17]Reasons, [37].
[18][2023] VCC 1469.
[19][2022] VCC 2182.
[20][2023] VCC 487 (‘Lock’).
[21][2023] VCC 242.
[22][2023] VCC 2259.
[23][2024] VCC 592.
[24][2022] VCC 206.
[25][2022] VCC 1184.
[26]Reasons, [37]–[38].
[27]Lock [2023] VCC 487.
[28][2021] VSCA 169.
The proposed grounds of appeal
The proposed grounds of appeal are as follows:
Ground 1
In all the circumstances of the offending and the offender, the sentence imposed is manifestly excessive:
Ground 1a
The learned judge erred by giving insufficient weight to the Applicant’s personal mitigation directly related to the offending including cannabis addiction (moderate), resulting from self-medication with cannabis for his significant mental health conditions.
Ground 1b
The learned judge erred by giving insufficient weight to the increased hardship of imprisonment resulting from the Applicant’s mental health conditions by attributing only ‘mild significance’.
Ground 1c
The learned judge erred in assessing the Applicant’s character:
Ground 1c.i
By placing too much weight on those antecedents of the Applicant’s [sic] of an unrelated nature.
Ground 1c.ii
By placing no apparent weight on the Applicant’s significant contribution to the community by working all hours, thereby providing employment for very many people and key services to the community. These include the provision of hundreds of homes and warehouses, shops, daycare facilities and management for hundreds of Owners’ Corporations.
Ground 1d
The Learned Judge erred by giving insufficient weight to delay in the circumstances. Having originally faced a charge of cultivating a commercial quantity of cannabis brought fear of significant imprisonment and the loss of the Applicant’s large home which is also offices, a repair facility, and storage for plumbing materials and plant equipment.
Ground 2
The Learned Judge erred in that he legally mischaracterised the scale of offending as ‘a sizable operation and an expectation of proportionate production’. His Honour failed to take into account the warning from the seed seller to expect an 80%–90% failure rate. The Applicant’s expectations and intention are reflected by the plea to cultivation simpliciter.
Ground 3
The Learned Judge erred in that he mischaracterised the culpability of the Applicant. His Honour failed to take into account the psychological evidence regarding the context of the offending; namely cannabis addiction (moderate severity), from self-medicating to alleviate depression/anxiety/stress while suffering Adjustment Disorder, Major Depressive Disorder and displaying indicia of ADHD.
Ground 4
The Learned Judge erred in rejecting any genuine remorse:
Ground 4a
By taking into account that the Applicant followed the forensic advice of Senior Counsel to invite the court to use it’s [sic] discretion to exclude evidence prior to entering his guilty plea.
Ground 4b
By failing to take into account the remorse observed by both of the Applicant’s referees and expressed in to CCO assessment report writer on 27 July 2024.
Ground 5
The Learned Judge erred in that he mischaracterised the Applicant’s prospects of rehabilitation by failing to take into account that the Applicant began psychological counselling for the first time in September 2021 which continued until imprisonment, and the salutary effect of living with the fear of the loss of his home and business premises.
Ground 6
The Learned Judge erred by failing to take account informative County Court sentences by distinguishing only by factors weighing against the Applicant and failing to consider a single matter positively distinguishing the Applicant’s case.
Ground 7
The Learned Judge erred in that he failed to take into account the finding that imprisonment will cause the Applicant’s mental health to deteriorate significantly.
Ground 8
The Learned Judge erred by taking into account the need for ‘the community’s denunciation’ as a factor requiring what His Honour characterised as ‘a stern penalty’.
Consideration
As several of the alleged specific errors are said to be relevant to the manifest excess ground (ground 1), it is convenient to deal with those individually, and then finally, with ground one.
Ground 2: The judge erred in that he legally mischaracterised the scale of offending as a ‘sizeable operation and an expectation of proportionate production’
The applicant asserted that the judge misunderstood the nature and purpose of his cultivation of the cannabis crop. He relied on the following passage at paragraph [26] of Mr Cummins’ report recounting the history given to him by the applicant:
I went to the local hydroponic shop and they sold me the seedlings and they told me I needed to buy a whole lot more of them than what I actually wanted because the seedlings have a low rate of survival — they told me that probably only about 10–20% of the seedlings would survive. When the police arrived the seedlings were all under or around 10cm in height.
In oral submissions, this contention was developed further. It was said that this passage, when read with the evidence as to the applicant’s cannabis addiction (as relayed to Mr Cummins), meant that it could not be established that the cultivation was for anything other than the applicant’s personal use. The applicant argued that it was reasonable for him to have been guided by what the seller told him, as his own experience growing cannabis was limited to a single previous occasion.
This argument should be rejected. It formed no part of the submissions made to the judge. Indeed, to the contrary, senior counsel for the applicant on the plea said as follows:
This clearly is a serious offence, given the fact that you had two rooms set up in his house that were clearly designed and inarguably [sic] they were clearly set up for a commercial cultivation of a number of plants, based on the number of small plants that were found.
On any view, the concession made by senior counsel on the plea was correct. The whole set up, as the judge clearly recognised, connoted something more than personal use cultivation. Moreover, reliance upon third-hand hearsay as to the survival rate of cannabis plants hardly underpins what was said to be a serious submission.
As the respondent argued, the applicant was sentenced on the basis of the plants he was cultivating, namely, 221 plants, which was more than double the number specified as a commercial quantity under the Act. That said, the judge made it clear that he was not sentencing the applicant on the basis of cultivating a commercial quantity.[29]
Ground 3: The judge erred in that he mischaracterised the culpability of the applicant by failing to take into account the psychological evidence regarding the context of the offending
[29]Reasons, [28].
The applicant argued that the judge failed to take into account his mental health conditions and the psychological evidence of Mr Cummins, specifically relating to his anxiety, major depressive disorder, adjustment disorder, cannabis use disorder, and associated underlying stressors including: being on call 24 hours of the day; being precluded from attending his home address by virtue of a family violence intervention order; the breakdown of a relationship; and the VBA investigation.
There is no substance to this submission. The judge specifically referred to the opinion of Mr Cummins and noted the applicant’s psychological issues.[30]
[30]Reasons, [22]–[24], [36].
The judge correctly identified the applicant’s moral culpability as high when taking into account: the substantial number of plants; the applicant’s prior conviction for the same offence and therefore his knowledge of the nature of what he was doing when setting up the crop, its seriousness and legal consequences; that he was solely responsible for the crop; and that he offended whilst on a CCO.[31]
[31]Reasons, [28]–[29].
The judge’s conclusion as to the applicant’s moral culpability was clearly correct.
Ground 4: The judge erred in rejecting any genuine remorse
The judge rejected the proposition that the applicant had demonstrated any genuine remorse.[32] The applicant identified two errors in this statement.
[32]Reasons, [34].
First, the applicant argued that he pleaded guilty as soon as the respondent accepted that there was not enough evidence to support a conviction for the charge of cultivating in a commercial quantity. He submits that his plea should therefore not be considered to have been made at a late stage for the purposes of assessing his remorse. Prior to making a plea offer, the applicant had followed the forensic advice of counsel in challenging the lawfulness of the police search and the admissibility of his prior conviction for cultivating cannabis.
Second, and as a corollary of the first proposition, it was submitted that his forensic decisions regarding the various pre-trial rulings were separate from, and did not invalidate, the expressions of remorse made by him to his referees and the CCO Assessment Report author.
The respondent argued that the applicant had made no offers to plead guilty to anything less than the commercial cultivation charge prior to his offer in relation to the subject offence which was ultimately accepted by the respondent. It was argued that the applicant had conducted both a contested committal and extensive pre-trial argument before making a plea offer, and the sentencing judge was correct to observe that the applicant’s plea was ‘not early in the proceeding’.[33]
[33]Reasons, [14].
We agree that having regard to the forensic decisions made by the applicant in the conduct of his defence, the plea was not an early plea.
As noted earlier, the judge gave the applicant the benefit of his plea for its utilitarian value, acceptance of responsibility and willingness to facilitate the course of justice. The late stage of the plea was a sufficient basis for the judge to reject an argument of genuine remorse, notwithstanding the contents of the referees’ letters to the Court.
It was open to the judge to reach this conclusion, and this ground fails.
Ground 5: The judge erred in that he mischaracterised the applicant’s prospects of rehabilitation
The applicant argued that the judge mischaracterised his prospects of rehabilitation by failing to take into account that he began psychological counselling in September 2021 which continued until imprisonment, and the salutary effect of living with the fear of the loss of his home and business premises, each of which was a significant factor made even more compelling by the absence of any reoffending.
The judge had regard to the applicant’s criminal history and the fact that this offence was committed whilst he was on a CCO. Treatment in the past (from Mr Cummins) as part of his two CCOs did not prevent him from reoffending in this instance.
Not surprisingly, the judge concluded that the applicant’s prospects of rehabilitation were ‘guarded’,[34] notwithstanding his awareness of each of the matters now identified by the applicant.
[34]Reasons, [32].
This ground fails.
Ground 6: The judge erred by failing to take into account informative County Court sentences
The applicant argued that the judge failed to give sufficient weight to other decisions of County Court judges in cultivation cases by distinguishing only by factors weighing against the applicant and failing to consider a single matter positively distinguishing the applicant’s case. The relevant decisions are set out at [28] above. Two other County Court decisions were also referred to in this application.
It is clear that the judge had regard to the decisions the applicant identified.[35] Each turned on its own set of facts — both in relation to the amount of cannabis involved and the background of the offender. As the judge correctly said: ‘Of course, while other cases assist in understanding current sentencing practice, I must sentence according to the facts of your case and am not bound to adopt the same sentence as in others’.[36] Trawling through multiple decisions of other judges involving different circumstances and antecedents is of very limited utility, as this Court and the High Court have often pointed out.[37]
[35]Reasons, [37].
[36]Reasons, [38].
[37]See, eg, Wong v The Queen (2001) 207 CLR 584, 591 [6] (Gleeson CJ); [2001] HCA 64; Hili v The Queen (2010) 242 CLR 520, 534 [44], 535–6 [48]–[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 45; Barbaro v The Queen (2014) 253 CLR 58, 74 [40]–[41] (French CJ, Hayne, Kiefel and Bell JJ); [2014] HCA 2; R v Pham (2015) 256 CLR 550, 558–9 [26]–[28] (French CJ, Keane and Nettle JJ); [2015] HCA 39; DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 453–4 [82]–[83] (Gageler and Gordon JJ); [2017] HCA 41; Hudson v The Queen (2010) 30 VR 610, 617–18 [28]–[33] (Ashley, Redlich and Harper JJA); [2010] VSCA 332; Nguyen v The Queen [2016] VSCA 198, [71]–[72] (Redlich JA); DPP (Cth) v Thomas (2016) 53 VR 546, 606–11 [171]–[187] (Redlich, Santamaria and McLeish JJA); [2016] VSCA 237; Hasan v The Queen (2010) 31 VR 28, 38 [44] (Maxwell P, Redlich and Harper JJA); [2010] VSCA 352; Fichtner v The Queen [2019] VSCA 297, [100] (Maxwell P and Kaye JA); Staples v The Queen [2021] VSCA 307, [88] (Maxwell P, Kaye and Emerton JJA); Lieu v The Queen [2016] VSCA 277, [46]–[47] (Redlich, Beach and Kaye JJA); DPP (Cth) & DPP (Vic) v Edge [2012] VSCA 289, [60] (Priest JA, Osborn JA agreeing); R v Stratton (2008) 20 VR 539, [93] (Ashley, Neave JJA and Lasry AJA) citing R v Arney [2007] VSCA 126, [14] (Nettle JA, Vincent JA agreeing at [20], Neave JA agreeing at [22]); [2008] VSCA 130.
In fact, what was noteworthy was that, notwithstanding the applicant’s prior conviction, the sentence imposed by the judge was less than five per cent of the maximum sentence stipulated by the legislature.
This ground fails.
Ground 7: The judge erred in that he failed to take into account the finding that imprisonment will cause the applicant’s mental health to deteriorate significantly
As already mentioned, the judge had specific regard to the opinion of Mr Cummins. His Honour noted Mr Cummin’s diagnosis that the applicant suffered from a major depressive disorder and an adjustment disorder,[38] and accepted his opinion that this meant that the applicant would find prison more onerous.[39] The judge regarded this as a matter of ‘mild significance’, as he did the fact that this would also be exacerbated by the applicant’s inability to assist in the conduct of his business.[40]
[38]Reasons, [22].
[39]Reasons, [36].
[40]Reasons, [36].
The applicant also relied on an incident that occurred post-sentence in his submission under this ground: that is, he witnessed the discovery of the body of a man who had committed suicide in his cell. The applicant’s mental health, it was asserted, has suffered as a result of this incident.
Plainly, this incident cannot found an allegation of specific error by the judge. In any event, there was no evidence that this incident, which occurred subsequent to his sentencing, has resulted in a significant deterioration in the applicant’s psychological symptoms whilst incarcerated.
The judge’s consideration of this issue was appropriate, and this ground fails.
Ground 8: The judge erred by taking into account the need for ‘the community’s denunciation’ as a factor requiring what his Honour characterised as ‘a stern penalty’
The applicant submits that were the community to be informed of his personal circumstances including his mental health and his use of substances to self-medicate, they would not demand that the Court feel duty bound to impose a stern punishment and thus, the sentencing judge ought not to have done so.
There is nothing in this submission. As the respondent contends, the community’s view as to the nature and seriousness of this offence is reflected in the maximum sentence for cultivation which can be imposed by a court.
The judge was correct to denounce the applicant’s conduct. Indeed, in describing the penalty imposed on the applicant as ‘stern’,[41] the judge may well have been overstating the position, given the maximum penalty for this offence.
[41]Reasons, [30].
There is nothing in this ground.
Ground 1: Manifest excess
The applicant identified four sentencing considerations which, he submitted, were not properly taken into account by the judge and therefore resulted in a manifestly excessive sentence.
First, the judge erred by giving insufficient weight to the applicant’s moderate cannabis addiction resulting from self-medication for his significant mental health problems.
Secondly, the judge gave insufficient weight to the increased hardship of imprisonment that the applicant faces as a result of his mental health conditions (as evidenced by Mr Cummins’ opinion that a custodial sentence would be ‘more onerous’ to the applicant) by attributing only ‘mild significance’ to this consideration.
Thirdly, the judge erred in his assessment of the applicant’s character by placing too much weight on antecedents unrelated to the offending and not enough weight on his significant contribution to the community, which was described by his counsel on the hearing of the application for leave to appeal as ‘extraordinary achievements’.
The applicant also contends that the judge ought not to have taken account of his ‘somewhat significant criminal history’,[42] but rather only like offending. Conversely, the judge ought to have placed greater weight on the applicant’s significant contribution to the community in providing employment to approximately 300 contractors and 20 employees and key services through having built approximately 450 homes and 300 warehouses and managing approximately 250 owners’ corporations.
[42]Reasons, [20].
Finally, the applicant submits that the sentencing judge ought to have given greater weight to the consideration of delay, noting that as he was originally facing a charge of cultivating a commercial quantity of cannabis and thus facing a higher maximum penalty, the fear of imprisonment whilst awaiting finalisation was more significant. Moreover, it was said that during this time the applicant had suffered the loss of his home which was also used as office space, a repair facility, and a storage facility for plumbing materials.
Recently, in DPP v Sewell, this Court said that for a party to succeed in establishing manifest inadequacy, it must be demonstrated that:[43]
the sentences were wholly outside the range of sentencing options available to the trial judge.[44] Manifest inadequacy is a stringent ground of appeal, difficult to make good. It must be shown that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[45] An appellate court must be ‘driven to conclude that there must have been some misapplication of principle’.[46]
[43][2024] VSCA 70, [87] (Emerton P, Kennedy and Boyce JJA) (citations in original).
[44]R v Abbott [2007] VSCA 32, [13]–[15] (Maxwell P, Eames JA agreeing at [22], Habersberger AJA agreeing at [23]). See further DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128]; [2010] VSCA 350 (Ashley, Redlich and Weinberg JJA).
[45]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157. See also Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA).
[46]R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); [2015] HCA 39, cited in DPP v Weybury [2018] VSCA 120, [50] (Maxwell P and Hargrave JA).
We have already considered and rejected the first two arguments under other proposed grounds. The third, as to the applicant’s contribution to the community, should also be rejected. Not only was the basis for it thin — no evidence was led on the plea and it seems to rely upon an account provided by the applicant to Mr Cummins — but it also mischaracterises the true position. As best can be determined, the applicant was running several businesses and employed around 15 to 20 employees and, presumably, a number of subcontractors working on various projects. All of this was done in furtherance of the applicant’s business interests — none of it was philanthropic or in some way connected with altruistic aims to benefit others in the community. The mere fact that the applicant’s business involved the construction of residential housing, which might increase housing supply and make it easier for people to find accommodation, was not a relevant sentencing factor — any benefit to the community was totally incidental.
Indeed, the only point of any significance in relation to the applicant’s business was the fact that he was to be removed from its operation. The judge took this into account. There was no evidence that his business or businesses would have to stop operating or that employees would be laid off. Moreover, on the plea counsel for the applicant said as follows in relation to a question from the judge:
His Honour: What arrangements has he made in relation to managing the companies if he’s to be remanded?
Mr Gullaci: Your Honour, look, the short answer is that no one can replace him and that’s not really answering Your Honour’s question. Given the employees that he does have, he has people that if that occurs, depending on how long it’s for, potentially things can be put in place.
The final suggestion relating to the question of delay is without merit. The judge took this factor into account as set out at [35] of the Reasons.
In summary, there is nothing either in the individual proposed grounds or in the sentence itself that demonstrates that the sentence imposed by the judge was outside the range of sentencing options available. There was no misapplication of principle. The end result was well within the available range of sentencing options available given:
(a)the nature of the set up and the quantity of plants involved;
(b)the fact that the applicant was a repeat offender — and that the prior conviction had only occurred a short time prior to the instant offending; and
(c)the applicant committed the offending whilst on a CCO.
Conclusion
The end result is that none of the proposed grounds are made out, and that leave to appeal must be refused.
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