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

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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)

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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.

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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…