R v Crowley

[2004] VSCA 39

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 88 of 2003

THE QUEEN

v.

CHRISTOPHER WAYNE CROWLEY

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JUDGES:	ORMISTON, PHILLIPS, JJ.A. and SMITH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2004
DATE OF JUDGMENT:	17 March 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 39

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr C.B. Boyce	Victoria Legal Aid

ORMISTON, J.A.:

1. The applicant pleaded guilty to one count of trafficking in a drug of dependence, three of theft and two of intentionally damaging property and was sentenced by a County Court judge as follows:

(1)On the count of trafficking in a commercial quantity of cannabis L, he was sentenced to be imprisoned for two years.

(2)On each of three counts of theft of electricity, he was sentenced to three months' imprisonment.

(3)On each of the two counts of intentionally causing damage to property, the premises upon which the cultivation of the drug took place, he was sentenced to three months' imprisonment.

The judge ordered that the whole of the three months term on the first theft count and the whole of the three months term on the first property damage count be served cumulatively on the term to be served on the drug trafficking count, making a total effective sentence of two-and-a-half years, or 30 months.  It was directed that the applicant serve a term of 20 months before becoming eligible for parole.

1. The applicant sought leave to appeal on three grounds, but the application was in the first place rejected by the Acting Chief Justice late last year.  The applicant has elected to have his application heard before a court of three judges.  The three grounds pursued on his behalf by counsel may be summarised in this way.  He complains:

(1)that the ten months difference between his total effective term and the non-parole term was too small;

(2)that the learned judge failed to give sufficient weight to the applicant's prospects of rehabilitation;

(3)that he failed to apply the principles of parity to sentencing the applicant when compared with the sentence imposed on a co-offender named Kellett, and in particular imposed too high a sentence on one count of damaging property and failed to suspend the sentence in whole or in part, as was done in the case of Kellett.

1. It is sufficient to say that these charges all arise out of a very sophisticated scheme for growing cannabis L in commercial quantities over an extended period, in the case of the applicant for a period of some ten months from a date in July 2000 to 1 May 2001, when the activities of the applicant and his co-offenders were discovered.  The growing of cannabis by hydroponic methods all took place inside three suburban houses which were adapted significantly (and so in large part caused or was the incident for causing the property damage) for intensive growing of cannabis and which each had the electricity supply diverted so that the parties to the scheme could avoid paying for the almost continuous supply of electricity needed to grow the cannabis, which led to the three counts of theft.  Something like 363 plants were seized on 1 May and some five kilograms of dried material, but there had been at least three crops a year grown.

1. I do not propose to say more about the factual basis of the judge's sentence for it is all more than sufficiently stated in the reasons of the Acting Chief Justice and in particular in the reasons of the learned sentencing judge.  Moreover, the judge's reasons and in particular the Acting Chief Justice's analysis of the three grounds of proposed appeal express more than adequately why this application must fail.  With due respect to counsel, nothing has emerged in argument today which requires further elaboration. 

1. I would merely seek to summarise my conclusions.  In essence, I consider the applicant received an exceptionally lenient sentence for such a serious crime carried on by him on a commercial basis for close on a year.  His brother, for a somewhat longer period of offending in respect of an operation of which he was admittedly the ringleader, received a sentence of six years with a non-parole period of four years.  It could only be as a result of taking into account all relevant favourable factors, such as his prospects of rehabilitation, that the judge came to impose such a comparatively lenient sentence on the applicant, albeit he was a first offender, but in this case he was a first offender who clearly should have known better by reason of his education and other experience. 

1. Then, as to disparity with Kellett's sentence, I confess I found the argument difficult to comprehend, having regard to the very difference circumstances of the two offenders.  Such an argument could only be explained by the lenient and frequently illogical way in which some courts from time to time have approached the issue, but counsel did his best to draw a relevant comparison.  The facts relating to Kellett's sentence were quite different and the relevant factors were incapable of giving rise to any proper or justifiable sense of grievance on the part of the applicant.  In fact Kellett was sentenced to a longer total effective term than the applicant, but his sentence was wholly suspended, and for good reason,  Not only had he provided most of the information necessary to enable the applicant and his brother to be convicted by providing certainly a great deal of significant detail, but he had also offered to give and in fact had given evidence against them in circumstances where he would clearly be at risk and would have had to be held in protective custody if imprisoned.  I shall not elaborate the further facts relating to the alleged duress, one significant element for the judge sentencing Kellett in the way that he did, but which on the plea of the applicant and his brother was not persisted in by the Crown, so that they were sentenced on two different factual bases in a number of ways.

1. The other grounds, as explained by the Acting Chief Justice, are of no substance. 

1. In my opinion the application should be dismissed.

PHILLIPS, J.A.:

1. I agree.  No error is shown in his Honour's sentencing of the applicant.

SMITH, A.J.A.:

1. I agree.

ORMISTON, J.A.:

1. The order of the Court, therefore, is that the application is dismissed.

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