R v Clohesy

[2000] VSCA 206

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 65 of 2000

THE QUEEN

v.

BRIAN JAMES CLOHESY

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 October 2000
DATE OF JUDGMENT:	18 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 206

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Criminal law – Sentence – Cultivation of a commercial quantity of cannabis plants – Sentence of three-and-a-half years’ imprisonment with minimum term of two years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. A.D. Trood	Victoria Legal Aid

WINNEKE, P.: 

1. I invite Buchanan, J.A. to give the first judgment in this appeal.

BUCHANAN, J.A.: 

1. On 30 January 1999 police officers armed with a search warrant entered a residence owned by the appellant at Campbellfield.  Two rooms in the house had been set up as indoor hydroponic plantations for growing cannabis.  In one room there were 86 plants on several growing racks together with 19 seedlings.  Underneath the floor of that room was another chamber containing 144 cannabis plants.  The chamber was used as a flowering room for the plants.  In the freezer the police found two plastic bags, one containing a small amount of cannabis and one containing two marijuana biscuits.  A plastic container holding numerous cannabis seeds was also found.  The appellant had bypassed the electric power meter by a splice in the main power supply between the power source and the power meter.  It was estimated that the value of electricity used by the appellant which had not been metered amounted to $854.85. 

1. The appellant was charged with cultivation of a narcotic plant and with theft. Sec.72 of the Drugs, Poisons and Controlled Substances Act 1981 provides that a person who cultivates not less than 100 plants of cannabis, which is called "a commercial quantity", shall be liable to be imprisoned for a term of 25 years and fined not more than $250,000. The theft of electricity was an offence against s.74 of the Crimes Act 1958, for which the maximum penalty was imprisonment for a term of ten years. Mr Azzopardi, a police forensic scientist, estimated that the potential yield of the plants was a crop weighing 2.6 kgs. Another policeman, a member of the Drug Squad, expressed the view that 2.5 kgs. of useable cannabis had a wholesale value of $18,000 and a retail value of $64,000.

1. During the course of the plea the appellant gave evidence to the effect that he used cannabis to make biscuits which, he said, were principally for his own use.  The appellant admitted that he was happy to give cannabis away and provide biscuits to other people, but denied any intention to sell cannabis or biscuits laced with cannabis.  The sentencing judge disposed of that evidence by saying: 

"I listened to you carefully and observed your demeanour in the witness box whilst you were being questioned.  I did not find you to be a witness of truth and do not accept your evidence that this cultivation was for your own use and not for the purpose of trafficking." 

Such a finding may not be an aggravating circumstance because the offence of cultivation of a commercial quantity of the plant is treated by Parliament as equivalent to trafficking, but the matter was relevant at least to the question of remorse.  I do not think that the sentencing judge treated his finding as an aggravating circumstance:  at all events, no complaint is made that he did. 

1. Evidence was also given during the course of the plea contesting the assessment by the experts called by the Crown as to the quantity of the drug likely to be yielded by the plants, which were less than full size.  The judge resolved that conflict in favour of the Crown, saying:

"I am also satisfied beyond reasonable doubt that the Crown's assessment of the quantity is the correct one."

1. At the conclusion of the plea the appellant was sentenced to a term of three-and-a-half years' imprisonment on the charge of cultivation of a narcotic drug and to a term of six months' imprisonment on the charge of theft.  The sentences were to be served concurrently.  The sentencing judge fixed a term of two years before which the appellant was not to be eligible for parole.  He also made an order confiscating the house, which was valued at some $85,000 but was subject to a mortgage securing a loan of $42,000.

1. The appellant is 31 years of age.  He has no prior convictions.  When he finished school, the appellant studied welding, spray painting and airbrushing at a Queensland college of TAFE.  Thereafter he worked for the Ford Motor Company for twelve months and joined the Army, where he spent the next four-and-a-half years.  On leaving the Army the appellant worked as a plumber's assistant and as a personal trainer.

1. The possession of a commercial quantity of cannabis is a serious offence.  Its gravity is reflected in the maximum penalty that Parliament has assigned to it.  As the Full Court said in R. v. Pastras[1]: 

"Those who have experience in the administration of the criminal justice system know that the prolonged use of marijuana can cause great harm, particularly to psychologically vulnerable individuals." 

Leniency is not to be shown to a person who deals in marijuana on the basis that the drug is harmless.  The legislation is predicated upon it being harmful.  The principle of general deterrence is of special importance in relation to the crime of possession of a commercial quantity of a narcotic drug.  Generally the offence requires the imposition of an immediate custodial sentence, which would usually only be avoided by exceptional countervailing factors. 

[1](1993) 65 A.Crim.R. 584 at 590.

1. In the present case I do not consider that the factors pointing towards leniency were sufficient to neutralise the offence itself.  The absence of prior convictions is of limited relevance to such an offence, and the co-operation of the appellant with the police must be considered in the light of the incriminating circumstances in which the appellant was apprehended. 

1. The only ground of appeal was that the sentence is manifestly excessive.  The matters advanced to establish this ground were that the facilities available for the cultivation of the plants, albeit sophisticated, were limited in size, so that the plants were smaller than plants of an ordinary size, the appellant's attaining the age of 30 years without prior convictions, evidence of his good character given by a number of witnesses, the appellant's good employment history, his early plea of guilty and his co-operation with the police and the confiscation of the house.

1. It was submitted on behalf of the appellant that when the quantity of the plants, the weight of the likely yield of cannabis and the sentence imposed upon the appellant were compared with the number of plants, weight of crop and sentences in other cases, the appellant's sentence was manifestly excessive.  I do not think that the process of sentencing is so mechanical, but even so the numbers of plants, weight of crop and sentences derived from other cases, while perhaps justifying the description of the sentence imposed on the appellant as severe, in my opinion do not show that the sentence was outside the range that was reasonably available to the sentencing judge.  Quantity is an important factor.  The relatively small size and the low yield of these plants renders this a small commercial quantity.  It is for that reason I consider that this sentence might be called severe.  Nevertheless, the limit of the range which was available to the sentencing judge was set by a maximum sentence of 25 years' imprisonment.  As has been often said, the question is not whether this Court would have imposed the same sentence, but whether error can be identified because the sentence which was imposed below was so high that, without the demonstration of a specific error, it can only be attributed to an error or errors on the part of the sentencing judge.

1. Despite Mr Trood's attractively framed submissions, I do not think this sentence was outside the permissible range or was manifestly excessive.  I would dismiss the appeal.

WINNEKE, P.: 

1. I agree.  Like Buchanan, J.A., I think that, in the peculiar circumstances put to us by Mr Trood, the sentence might be said to be a severe sentence.  None the less, it seems to me that, for the reasons given by his Honour, it cannot be said that the sentence imposed was beyond the range of sentences available to the sentencing judge.

1. It should be said that s.72(1) of the Drugs, Poisons and Controlled SubstancesAct 1981 is somewhat infelicitously drafted. The relationship between paras.(a) and (ab) of that sub-section is not entirely clear to me. On one view of the section, proof to the required standard that the crop is not less than a commercial quantity becomes a serious offence attracting a sentence of 25 years. On the other hand, it may well be that the circumstances envisaged by para.(ab) are subject to proof of the elements referred to in para.(a), namely that, if the offender can show on the balance of probabilities that the crop was not being grown for trafficking purposes, he then becomes liable only to a penalty of a maximum of one year's imprisonment or a fine of 20 units, notwithstanding that the crop comprises more than 100 plants. As I say, it is not apparent to me whether that result was desired by the legislature, and I would have thought some clarification ought to be made.

CALLAWAY, J.A.: 

1. I also agree. The focus of s.72(1)(ab) of the Drugs, Poisons and ControlledSubstances Act 1981 is on cultivation in relation to a quantity not less than the "commercial quantity" defined in s.70(1). Quantity is therefore a very important consideration in assessing "offence seriousness" in any given case. That is so for reasons similar to those referred to in relation to the Commonwealth legislation in R. v. Wong[2], although care must be taken to distinguish between importation and cultivation.  There are considerations applicable to the latter that do not apply to the former[3].

WINNEKE, P.: 

[2](1999) 108 A.Crim.R. 531 at [130]-[131].

[3]See also the definition of “cultivate” in s.72(2).

1. The formal order of the Court is that the appeal is dismissed.