Quaresima v The Queen

[2017] VSCA 306

SUPREME COURT OF VICTORIA  
COURT OF APPEAL

S APCR 2017 0173

DAMIAN QUARESIMA	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 October 2017
DATE OF JUDGMENT:	23 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 306
RULING APPEALED FROM:	DPP v Quaresima [2017] VCC 687 (Judge Hicks)

---

CRIMINAL LAW — Sentence — Appeal — Cultivating a narcotic plant (cannabis) and theft of electricity — Aggregate sentence of 9 months’ imprisonment with community correction order of 18 months’ duration — Whether sentence manifestly excessive — Prior conviction for cultivation of a narcotic plant — Specific deterrence — Leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N Leslie	Rainer Martini & Associates
For the Respondent	Mr P Doyle	Mr John Cain, Solicitor for Public Prosecutions

WEINBERG JA
PRIEST JA:

1. Following a plea of guilty, on 2 May 2017 the applicant, aged 43 years,[1] was sentenced in the County Court to an aggregate sentence of nine months’ imprisonment, with a community correction order (‘CCO’) of 18 months’ duration,  for cultivating a narcotic plant, cannabis[2] (charge 1), and theft of electricity[3] (charge 2).

   [1]His date of birth is 15 February 1974.

   [2]Drugs, Poisons and Controlled Substances Act 1981, s 72B. The maximum sentence is imprisonment for 15 years. See [12] below.

   [3]Crimes Act 1958, s 74(1). The maximum sentence is imprisonment for 10 years.

1. The applicant seeks leave to appeal against the sentence claiming that it is manifestly excessive.  In support of that ground, it is contended that the sentencing judge erred by ‘imposing a term of imprisonment on the applicant of nine months, or at all, in all the circumstances’.  In summary, those circumstances are the applicant’s:

·     pleas of guilty; 

·     cooperation with police, and admissions in his record of interview, ‘which materially assisted the investigation’; 

·     remorse, demonstrated by his cooperation, admissions and pleas of guilty;

·     personal circumstances;

·     personal background;

·     prospects of rehabilitation; and

·     suffering the ‘additional burden’ and ‘hardship’ of imprisonment, because of his family circumstances.

1. Of some significance, the applicant has a prior conviction in the Magistrates’ Court on 30 April 2010, for cultivating a narcotic plant, possessing cannabis and theft, for which he was sentenced to four months’ imprisonment — wholly suspended for 12 months — and a community based order of 12 months’ duration.[4]

   [4]The applicant also has prior convictions for contravening an intervention order; intentionally causing injury; assault; damaging property; and attempted theft.

1. The cultivation occurred at a house in Templestowe, in which the applicant lived with his three children, who were aged 7, 10 and 11 years.  At the time, the applicant was unemployed and received Centrelink benefits.

1. On 22 February 2016, police attended the applicant’s premises in possession of a search warrant.  During the search, a sophisticated hydroponic set up was located inside the study and storeroom of the house.  Inside the study, police seized equipment commonly used in the hydroponic cultivation of cannabis, such as an overhead light, timer, aquarium air pump and ‘Heat ‘n’ Grow’ pad. There were 24 slender and immature cannabis plants, weighing 70.4 grams, growing hydroponically.

1. A storeroom was located externally adjacent to the front door of the house.  The applicant provided a key necessary to gain entry to this room to police.  There police located hydroponic equipment such as light globes, light shrouds, transformers, a water pump, and a carbon filter.  Sixteen cannabis plants, weighing 30.4 kilograms, were located growing in a hydroponic set up.  These plants were ‘females’ close to maturity.  (Located in the storeroom was a white board chart that contained detailed information regarding the cultivation process and growth cycle of plants.)

1. In total, 40 cannabis plants were located at the premises, with a total weight of 30.5 kilograms (charge 1).

1. An illegal bypass, located within the roof cavity of the house, was used to supply electricity to the crop (charge 2).

1. The applicant was arrested and interviewed.  He told police that:

·     he could not be sure how many plants he had growing in the house, but he admitted that he had both seedlings growing as well as more mature plants;

·     he was the only person who had access to the storeroom;

·     the seedlings that were growing in the study were housed in a secure cupboard;

·     the plants had been growing for six to seven weeks;

·     he had read a book that guided him through the growing process of the plants and he was still just learning the process;

·     someone else set up the system for him, and this person also helped him plant the plants;

·     he did not know what happened to the plants when they were ready for harvesting as he had not got that far in the cultivation process; and

·     he admitted that his only source of income was Centrelink benefits he received for looking after his children.

1. Based on his admissions, the prosecution alleged that the applicant cultivated cannabis — for the purposes of trafficking — from 4 January 2016 to 22 February 2016.  The amount of electricity stolen over this period of time was 3,961.95 kilowatt hours (about eight times normal daily usage).

1. The applicant pleaded guilty at committal on 18 January 2017.  It was accepted by the respondent that the plea was entered at the earliest opportunity.

1. So far as the maximum penalty for cultivating a narcotic plant is concerned,

   
   

   s 72B of the Drugs, Poisons and Controlled Substances Act 1981 provides that a person convicted of the offence is liable to be imprisoned for a year (or not more than 20 penalty units, or both) if the sentencing judge ‘is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose related to trafficking in that plant’.  If the judge is not so satisfied, the maximum penalty is imprisonment for 15 years.

1. The applicant gave evidence in the course of the plea hearing.  He swore that he had a ‘substantial’ cannabis habit, and that he used cannabis to battle depression.  Importantly, he said that the cannabis located at his residence was ‘purely’ for his own use, and he neither intended to sell it nor give it away to friends and associates.  He was cross-examined by the prosecutor.   Despite the applicant’s sworn evidence, however, the judge was ‘not satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking’.  The judge found that the applicant ‘was a most unreliable witness’ who ‘clearly lied to police’, and said that he was ‘not satisfied in any way, shape or form that he was a reliable or truthful witness in terms of the issue of trafficking’.

1. In support of the application in this Court, counsel for the applicant submitted that, given that the applicant was assessed as being suitable for a CCO, the sentencing judge should not have imposed a sentence which involved a term of imprisonment.  It was submitted that ‘a term of imprisonment was not mandated in this case’.  Since the ‘imposition of a CCO only was well able to meet the relevant sentencing considerations’, a CCO alone ‘should have been imposed’.

1. The prosecutor on the plea characterised the gravity of the applicant’s offending as ‘towards the mid to high range’, and the applicant’s counsel agreed that it was ‘at least mid-level’.  Without pausing to reflect at any length upon the utility of resorting to categories that have been judicially assigned to offences of cultivating cannabis, we note that in Nguyen, Redlich JA suggested that for ‘the immediate future, sentencing courts must, by increments, increase the sentences for mid category offending so that the range of sentences is uplifted and substantially expanded’.[5]

   [5]Nguyen v The Queen (2016) 311 FLR 289, 333 [152] (‘Nguyen’).

1. Having regard to the circumstances in mitigation relied upon by the applicant, and assuming that the applicant’s offending may properly be characterised as mid-level, our distinct impression is that the sentence imposed was well within the range of those open in the proper exercise of the sentencing discretion.[6]  Our impression is somewhat fortified by the fact of the applicant’s prior conviction for cultivating a narcotic plant.  Although, of course, he is not to be punished again for that prior offending, the applicant cannot be treated with the same leniency that a first time offender of otherwise good character might expect.  Furthermore, the applicant’s offending demonstrates that the sanctions imposed following the earlier conviction for the same offence, did not deter him from repeating the offence of cultivation.  So much is relevant to his prospects of rehabilitation, and  bears directly on the need for a significant measure of specific deterrence to be reflected in the sentence imposed upon him.

   [6]For example, see Tran v The Queen (2012) 35 VR 484; R v Reed [2008] VSCA 20; R v McKittrick [2008] VSCA 69; R v Garlick (No 2) (2007) 15 VR 388. Compare Marku v The Queen [2012] VSCA 51; Kieawkaew & Nguyen v The Queen [2016] VSCA 269.

1. The contention that the sentence is manifestly excessive cannot be upheld.  Leave to appeal against sentence must be refused.

----