R v Brodribb; R v Bourchier

[2017] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BRODRIBB; R v BOURCHIER

[2017] SASCFC 32

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)

13 April 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - HARDSHIP - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS

Appeal against sentence.

The appellants pleaded guilty to cultivation of a commercial quantity of a controlled plant, possession of prescribed equipment, abstracting or diverting electricity from a power system and possession of cannabis.

A large number of cannabis plants as well as equipment to hydroponically cultivate cannabis were found at a premises rented by the appellants. The room in which the cannabis plants were found was initially locked. The appellant’s landlord had the key to that locked room. The appellants were jointly charged with their landlord, who has pleaded not guilty and is yet to be tried. During the sentencing process, no evidence was provided to the Court as to the value of the cannabis found at the house.

As children, the appellants were both abused by a member of their respective families and have subsequently lived unfortunate lives. They have both been addicted to cannabis and amphetamines for most of their lives. At the time of sentencing their house had no power as they could not pay their bills and they showered at a local gym.

The learned sentencing Judge imposed for both appellants a head sentence of three years and six months’ imprisonment and fixed a non-parole period of one year and six months. While taking into account the appellants’ unfortunate backgrounds and that they offended to support their drug use, the Judge sentenced on the basis that they took part in a larger commercial enterprise, most probably with their landlord.

The appellants appeal their sentence on the ground that it is manifestly excessive in all the circumstances.

Held per Kourakis CJ (Nicholson and Parker JJ agreeing), allowing the appeal:

1.  The Court must take a cautious approach in assessing the objective seriousness of the appellants' offending having regard to their relative poverty, the absence of strong evidence of a third party involved in a commercial network and the absence of any evidence as to the value of the cannabis found.  

2.  The appellants have a number of antecedent factors in mitigation.

3.  Sentence imposed in the District Court set aside.

4.  The appellants are resentenced to a term of imprisonment of two years with a non-parole period of 12 months fixed. The sentence is taken to commence on 15 June 2016.

Controlled Substances Act 1984 (SA) s 33B, s 33L, s 33LA; Electricity Act 1996 (SA) s 85, referred to.

R v BRODRIBB; R v BOURCHIER
[2017] SASCFC 32

Court of Criminal Appeal:  Kourakis CJ, Nicholson and Parker JJ

1. KOURAKIS CJ:   The appellants were convicted in the District Court, after entering pleas of guilty in the Magistrates Court, of the following offences:

   ·Count 1: Cultivate A Commercial Quantity Of Controlled Plant – Basic contrary to s 33B(2) Controlled Substances Act 1984 (SA).

   ·Count 2: Possess Prescribed Equipment contrary to s 33LA(a) Controlled Substances Act 1984 (SA).

   ·Count 3: Abstract or Divert Electricity From Power System contrary to s 85(1)(a) Electricity Act 1996 (SA).

   ·Count 4: Possess – Cannabis, Cannabis Resin or Cannabis Oil contrary to s 33L(2)(a) Controlled Substances Act 1984 (SA).

2. On the first three counts the Judge imposed on each appellant a sentence of three years and six months’ imprisonment with a non-parole period of one year and six months.   The Judge arrived at that sentence by reducing a notional starting point of five years by 30 per cent for the appellant’s early pleas of guilty.  In respect of count 4, for each appellant a conviction was recorded without further penalty.

3. The appellants both appeal on the ground that the sentence was manifestly excessive.  The appellant Mr Bourchier also appeals on the ground that the Judge erred in failing to suspend the sentence.

4. The primary contention advanced by both appellants is that the sentence is manifestly disproportionate to the circumstances of the offending and their personal circumstances.

5. The cannabis cultivation was discovered by police when they searched the four bedroom house the appellants were renting in Beaumont.  In a locked room adjacent to the garage on the lower level of the residence police found 23 cannabis plants cultivated hydroponically.

6. Nine were small plants, eight were clones and six were mature plants.  The six mature plants had large canopies which occupied much of the room.  Police also found 3.66 kilograms of cannabis in the laundry and dining room.  Unused hydroponic equipment was found in another bedroom.  No evidence of the value of the cannabis was adduced before the Judge.

7. The appellants claimed that they were growing the cannabis for their personal use.  The Judge rejected that submission and found that the cultivation was a commercial one. 

8. The appellants were charged jointly with their landlord, Simon Phillip Godfrey who attended the house shortly after the search commenced.  Mr Godfrey has pleaded not guilty and is yet to be tried.  Mr Godfrey was in possession of a key to the room in which the cannabis plants were found and two of his vehicles were garaged at the house. 

9. The appellants, who are both pensioners, told the police that they rented the house for $250 per week.  Mr Bourchier received a Disability Pension and Ms Brodribb a Newstart Allowance.   At the time of sentencing Mr Bourchier was aged 53 years and Ms Brodribb 40 years.  They had been addicted to cannabis and amphetamines for most of their lives.  However, both endured prolonged abuse at the hands of members of their respective families and as a result have suffered greatly.

10. The starting point of five years and therefore the sentences imposed by the Judge were at the high end of the range of sentences which this Court has approved for commercial cannabis cultivations.  However there were circumstances which militated strongly for a less severe sentence including:

    ·the probability that the appellants were little more than caretakers of the cultivation;

    ·the absence of any evidence of the value of the cannabis; and

    ·the pathetic personal circumstances of the appellants.

11. For the reasons which follow I have concluded that the sentences are manifestly excessive.  I would allow the appeal.

    Objective seriousness of the offending

12. Mr Godfrey’s involvement, the extent of which is yet to be judicially determined, complicates the assessment of the objective seriousness of the offending.  The appellants have submitted to being sentenced as principals.  Neither has implicated Mr Godfrey.  The Judge made the following findings about the nature and purpose of their offending:

    You are both long-term and, I accept, substantial users of both cannabis and amphetamine but I do not accept that you were growing the cannabis only to support your own habits.  You were charged jointly with your landlord Simon Phillip Godfrey who owns the house and had a key to the locked grow room.  There were cars he owned in the garage.

    Despite you, Bourchier, trying to cover up for him it is really plain from his own admissions to the police that he came to the house several times a week.  He is pleading not guilty so I will say nothing more about him but I think it is plain that you two were engaged in the commercial production of cannabis albeit that you were probably both large-scale users of cannabis and that you have addictions to amphetamines.

13. The evidence of Mr Godfrey’s involvement precludes a finding beyond reasonable doubt that the appellants are solely responsible for the sophisticated cultivation in which they were engaged.  It is also unlikely that the unused hydroponic equipment found on the premises belonged to them.  They are unlikely to have had the technical capacity and financial means to establish such a sophisticated operation in a rented home in Beaumont without substantial assistance from another.

14. In their discussions with the forensic psychologist Dr Lim, who prepared a psychological report for the purposes of sentencing, the appellants accepted that they spent between $600 and $1000 per week on their amphetamine addiction.   Of course, their cultivation of cannabis assured them self-sufficiency in that drug and they must then have spent a portion of the proceeds of the sale of the remaining cannabis on purchasing amphetamines.  Even though the appellants must be sentenced on the basis that they cultivated and possessed commercial quantities of cannabis, in the absence of evidence of the value of the cannabis, neither the Judge nor this Court can speculate as to the value of the profit which remained.  Nor can the Court know with any certainty how that profit would have been distributed as between them and other members of a commercial network.

15. However the extent of the appellants’ impoverishment is evident from the fact that by May 2016, when they were both assessed by Dr Lim, the electricity supply to their Beaumont home had been cut off.  They told Dr Lim that if they required a shower, they would use the facilities of a local gym and it was unclear whether they had a functioning water supply.

16. Having regard to the evidence of Mr Godfrey’s involvement, put at its highest, the benefit the appellants received from their offending is that it assured them more comfortable accommodation than they would otherwise have afforded, and greater access to the drugs to which they were addicted.  It may well be that the proceeds of the appellants’ offending extended beyond supporting their own drug addiction and that they returned some profit to a third person, whether to Mr Godfrey or others.  If that were proved, it would constitute a more serious element to their offending.  However in the absence of stronger evidence that a third person, or persons, were involved, and of evidence of the value of the cannabis, no such finding can be made.  A cautious approach must therefore be taken to an evaluation of the objective seriousness of the appellants’ offending. 

17. On the other hand, the appellants stood to be sentenced on the basis that their offending was not isolated.  The Judge remarked:

    …  The cannabis production was not as great as is often seen in this court but your offending is of course not in isolation.  You both say that you had been living in the Beaumont house for two years, and you have grown a crop or crops before.  However, that was on the basis that you said you had only grown one crop a year and used all of the cannabis yourself.  I do not accept that version.  I find that you were both growing commercially while both supporting your drug dependencies. ...

18. The Judge in that passage clearly found that the charged offending was not isolated but there is no indication that the Judge increased the appellants’ sentence on account of their earlier cultivations. 

    Mr Bourchier’s antecedents

19. Mr Bourchier has a long history of offending, beginning in 1979.  Most of his offences have been crimes of dishonesty.

20. Only three of his prior convictions are drug-related: a conviction for possessing a quantity of cannabis in 1987, and convictions for possessing smoking implements in 1987 and in 1988.

21. Mr Bourchier relied on a report provided by Dr Lim.

22. Mr Bourchier disclosed to Dr Lim that he had been molested by his father from an early age.  Dr Lim diagnosed a severe underlying depression, alongside symptoms ‘including sadness, hopelessness, a sense of personal failure and a general lack of motivation’.

23. Dr Lim found evidence of an underlying Antisocial Personality Disorder in Mr Bourchier’s recurrent offending, substance abuse from a young age, and a dysfunctional pattern of interpersonal relationships during his lifetime.

24. Mr Bourchier admitted to Dr Lim that ‘ice is our hobby’, and cost him and Ms Brodribb about $700 per week.

25. Dr Lim diagnosed Mr Bourchier as suffering from Amphetamine and Cannabis Use Disorders, both being of a severe type with Substance Induced Mood and Anxiety Disorder.  Dr Lim opined that unless Mr Bourchier dealt with his drug addiction, his risk of re-offending was in the moderate to severe range.

26. Dr Lim recommended that Mr Bourchier undergo a period of intense medical detoxification through the Drug and Alcohol Services South Australia (DASSA) withdrawal unit at Glenside.  Dr Lim recommended that Mr Bourchier then retain a community general practitioner who could refer him to a psychologist for counselling.  Dr Lim also encouraged Mr Bourchier to consider relocating to a separate residence from Ms Brodribb to escape their dysfunctional and co-dependant relationship.

27. The Judge summed up Mr Bourchier’s poor prospects for rehabilitation by concluding:

    … since being arrested you have done nothing about drug treatment.  While I accept your background and mental health diagnoses make rehabilitation difficult there really is no sign at all you will get off drugs.

    Ms Brodribb’s antecedents

28. Ms Brodribb was forced into an incestuous relationship with her father from when she was just 13.  Not surprisingly she subsequently exhibited severe behavioural problems.  Ms Brodribb was expelled from school midway through year 9 after threatening the school principal with a knife.

29. Ms Brodribb has had diverse but unskilled employment.  She has worked on factory production lines, as a cleaner, and in commercial kitchens.  Her regular employment came to an end because her substance abuse escalated and she lost work because she was so unreliable.  Ms Brodribb occasionally engaged in sex work to fund her drug addiction. 

30. Ms Brodribb has abused drugs for 25 years. There has never been a period where she has not used cannabis or amphetamines.  She has never undergone any form of treatment, counselling or rehabilitation.

31. Ms Brodribb was also examined by Dr Lim.  At the conclusion of the clinical interview, Ms Brodribb said that she had been ‘thinking about rehab’ for 12 months.  She claimed to be ‘sick of the drug lifestyle’.  When Dr Lim suggested that Ms Brodribb undergo a period of medical detoxification at DASSA’s withdrawal unit at Glenside, Ms Brodribb claimed that she could not leave her pet cats alone even for a day.  However, she indicated that she would consider drug counselling or a home-base detoxification program if she were provided with the detail of the relevant services to contact.

32. Ms Brodribb’s general practitioner referred her to a psychologist, Mr Durbridge, but she only saw him on two occasions before she was sentenced.  At that time Mr Durbridge had not completed a full background history and therefore had not yet commenced drug counselling. 

33. Dr Lim found that Ms Brodribb satisfied the diagnostic criteria for severe Amphetamine Use Disorder and severe Cannabis Use Disorder.  Dr Lim also diagnosed a moderate to severe form of Borderline Personality Disorder which contributed to Ms Brodribb’s difficulties in daily and interpersonal functioning throughout adulthood.  Dr Lim found that Ms Brodribb was more prone to developing depression and anxiety because of her vulnerable personality.  Dr Lim described Ms Brodribb’s substance abuse as a maladaptive form of coping mechanism to regulate her emotions and cope with environmental stressors.

34. Dr Lim found that Ms Brodribb’s substance use disorders, and her borderline personality structure remained criminogenic risk factors.  Dr Lim concluded:

    With regards to her risk of future re-offending, because she has reportedly never received counselling/rehabilitation for her psychological difficulties, it is therefore my opinion that she remains at moderate to high risk of recidivism over the foreseeable future.

35. Dr Lim strongly recommended that Ms Brodribb undergo concurrent psychological intervention for her drug dependency and personality disorder.  Dr Lim also recommended that Ms Brodribb undergo a period of in-patient medical detoxification within DASSA followed by engagement with a drug and alcohol counsellor through an appropriate service.

36. Unsurprisingly the Judge found that Ms Brodribb’s prospects of rehabilitation were no better than Mr Bourchier’s.

    Conclusion

37. The sentences imposed by the Judge are within the range of sentences commonly imposed for cultivations of this size.  However the sentences imposed do not reflect the peculiar objective and personal circumstances of this case.  In particular the appellants are unlikely to have initiated, and financed the sophisticated hydroponic operations in the Beaumont house.  Nor is it possible to find that they profited beyond securing accommodation and supporting their respective drug habits.  Moreover the extent to which their conduct facilitated a more extensive or profitable commercial cannabis enterprise has not been proven. 

38. The notional sentence of five years was disproportionately severe having regard to those circumstances.  The sentences imposed after the reduction for the appellants’ pleas of guilty were manifestly excessive.

39. I would allow the appeals of both appellants.  I would set aside the sentences imposed in the District Court.  I would commence with a notional term of 2 years and 10 months in each case before reducing that term for the appellants’ pleas of guilty.  I would resentence each appellant to two years imprisonment with a non-parole period of 12 months commencing on 15 June 2016.  I would not suspend either of the sentences.  The mitigating personal circumstances to which I have referred are not sufficient to outweigh the demands of specific and general deterrence, particularly having regard to the fact that the offences were not isolated.

40. NICHOLSON J:   I agree with the Chief Justice.

41. PARKER J:  I agree with the reasons of the Chief Justice and the orders that he proposes.