R v Adams

[2007] VSCA 76

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 290 of 2006

THE QUEEN

v

WAYNE ADAMS

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JUDGES:	BUCHANAN and REDLICH JJA and KELLAM AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2007
DATE OF JUDGMENT:	27 April 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 76	1ST Revision 3 May 2007

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Criminal Law – Sentence – Cultivation of a commercial quantity of cannabis – Theft of electricity – Grave intellectual disability of offender – Sentence of six months’ imprisonment on count of theft manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr  K T Armstrong	Leanne Warren and Assocs.

BUCHANAN JA:

1. The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of cultivating a commercial quantity of cannabis and its usual companion, a count of theft of electricity.  After a plea, the appellant was sentenced to be imprisoned for a term of two years on the count of cultivation and to a term of six months on the count of theft.  The sentencing judge ordered that three months of the second sentence was to be served cumulatively upon the first sentence, making a total effective sentence of two years and three months' imprisonment.  He directed that the appellant serve a term of 12 months' imprisonment before he was to be eligible for parole. 

1. The appellant has been granted leave to appeal against the sentence by a single judge of this Court.  The grounds of appeal are as follows:

"1.That the learned sentencing judge erred in that he imposed a total effective sentence that was manifestly excessive in all the circumstances, particularly having regard to –

(a)the appellant’s lack of similar prior convictions and subsequent offending,

(b)      the appellant’s “profound” intellectual disability,

(c)       the appellant’s role in the offending,

(d)the appellant’s early plea of guilty – ‘at the first reasonable opportunity’,

(e)       the appellant’s assistance to police,

(f)the difficulty with which the appellant would serve a sentence of imprisonment, and

(g)      the appellant’s remorse.

2.That the learned sentencing judge erred in law in that he imposed a sentence on count 2 which was manifestly excessive in all the circumstances.

3.That the learned sentencing judge erred in law and that he failed to take the relevant consideration into account, namely the appellant’s remorse.

4.That the learned sentencing judge erred in law in that he found that the appellant had done the work for the cultivation of the crop.

5.That the learned sentencing judge erred in law in that he failed to give sufficient weight to a relevant consideration, namely, the appellant’s ‘profound’ intellectual disability.”

1. The offence was discovered when police officers executed a search warrant at a house leased by the appellant in Frankston.  Police found a total of 62 cannabis plants growing with the aid of an elaborate hydroponic system, including high-powered lighting, exhaust fans, water pumps, transformers, nutrients and chemicals.  The plants' weight was 94.42 kilograms.  The leaves and flowering heads weighed approximately 73.3 kilograms.  A commercial quantity of cannabis plants is 25 kilograms or 100 plants.  The appellant stole electricity by bypassing the meter.  The value of the electricity stolen was $4,160.56.

1. The appellant told the police that he anticipated making over $10,000 from the sale of the crop which was seized.  He said he intended to use the proceeds to pay off debts and then cease growing cannabis.  The appellant gave evidence in the course of the plea that the answers he gave to the police were untrue and that he had lied, as he was instructed to do, by two principals involved in the enterprise.  The sentencing judge found that the appellant's answers in respect of his role in cultivating the crop were true.  He did accept, however, that the appellant did the work of cultivation on behalf of others who masterminded the operation. 

1. The appellant is 47 years old.  He has one prior conviction recorded in 1999, when he was fined $100 on charges of unlawful possession and stating a false address.  The appellant has a grave intellectual disability.  His intelligence quotient has been assessed as falling in the lowest one percent of the population and he is eligible to receive services under the Intellectually Disabled Persons Services Act 1986.  The sentencing judge said that the appellant's disability "remains profound and impacts severely upon your capacity to function in your day to day life".  The appellant attended specialist schools.  He obtained a driver's licence and a forklift operator's licence, but only after years of coaching.  He had a succession of menial jobs and was keen to work.  The sentencing judge said that he suspected that lack of employment opportunities may have induced the appellant to become involved in cultivating cannabis.  The appellant's vulnerability might well require him to serve his sentence in protective custody, thereby rendering his imprisonment more onerous. 

1. The maximum sentence for cultivation of a commercial quantity of cannabis is 25 years' imprisonment.  The maximum sentence for theft is 10 years' imprisonment. 

1. In my view, there is substance in the ground which alleges that the sentence imposed in respect of the count of theft is manifestly excessive.  The appellant had no significant prior convictions, and suffered from a profound disability.  He had pleaded guilty at the earliest opportunity.  The sentencing judge acknowledged that the appellant had offered to give assistance to the police in pursuing other offenders.  The theft was part and parcel of the enterprise of growing cannabis, having no other purpose than to conceal the suspiciously high consumption of electricity which hydroponic cultivation requires.  Ordinarily, conviction on a charge of theft of property worth a little over $4,000, by a person of good character and able to invoke the mitigating factors upon which the appellant could rely, would not attract a sentence of imprisonment of the order of six months.  In my view, the offence is not carried to another level by reason of its association with the offence of cultivating a commercial quantity of a drug of dependence.

1. Counsel for the respondent has cited a number of cases which appear to show that a sentence of six months' imprisonment for theft of electricity by a cultivator of a hydroponic crop of cannabis is not unusual.  In none of those cases did the appropriate sentence for the count of theft receive express attention, and the personal circumstances of the offenders in many respects differed from those of this offender. 

1. The significant mitigating factors upon which the appellant could rely were given due weight by the sentencing judge in determining the sentence for the count of cultivation.  The same circumstances do not appear to have been treated in the

same fashion in determining the sentence for the count of theft.  The appellant is to be punished appropriately for each offence.  The relationship between the offences is to be determined by the application of concurrence and cumulation. 

1. The excessive sentence imposed in respect of the count of theft re-opens the sentencing discretion.  I would re-sentence the appellant to be imprisoned for a term of 18 months on the count of cultivation and for a term of two months on the count of theft, creating a total effective sentence of 18 months' imprisonment.  I would fix a minimum term of nine months' imprisonment.

REDLICH JA: 

1. In my opinion the sentence imposed on count 2 is manifestly excessive, as the mitigatory factors that were taken into account by the learned sentencing judge in fixing the sentence on count 1 do not appear to have been taken into account in fixing the sentence on count 2.  For the reasons given by the learned presiding judge, I agree the appeal should be allowed and agree with the sentences he proposes.

KELLAM AJA:

1. I also agree with the course proposed by the learned presiding judge.

BUCHANAN JA: 

1. The orders of the Court will be:

The appeal is allowed.

The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of 18 months on the count of cultivation of a commercial quantity of cannabis and to a term of two months on the count of theft.

The total effective sentence is 18 months' imprisonment.  It is ordered

that the appellant serve a term of nine months' imprisonment before he is to be eligible for parole.

It is declared that the period of 240 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration was made and its details be entered in the records of the Court.

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