R v Filipovic

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 27 of 2007

THE QUEEN

ZORAN FILIPOVIC

No. 28 of 2007

THE QUEEN

ROBERT GELEVSKI

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JUDGES:	NEAVE and KELLAM JJA, CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 October 2007
DATE OF JUDGMENT:	15 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 14

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Criminal law – Applicants convicted of cultivation of a commercial quantity of a narcotic plant (count 1) and trafficking in a drug of dependence (count 2) – Crown concession that applicants should not have been convicted of both counts 1 and 2, as both counts based on the same acts – Appeal against conviction on count 2 allowed – Whether judge erred in respect of various aspects of charge – Whether failure to give a separate consideration direction resulted in a miscarriage of justice – Whether aggregate of errors – Whether verdict on count 1 unsafe – Appeal against conviction on count 1 dismissed.

Criminal law – Re-sentencing – Parity – Relevance of the risk of automatic forfeiture under Confiscation Act 1997 to re-sentencing.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant Filipovic	Mr L C Carter	Robert Stary & Associates
For the Applicant Gelevski	Mr M Croucher	Robert Stary & Associates

NEAVE JA:

The applicants, Robert Gelevski and Zoran Filipovic, were each found guilty by a jury of one count of cultivation of a commercial quantity of a narcotic plant (count 1) and one count of trafficking in a drug of dependence (count 2). The drug was cannabis L. Each of the applicants also pleaded guilty to one count of theft of electricity (count 3) and one count of intentionally and without lawful excuse damaging property (count 4).

On 9 February 2007 both applicants were sentenced by a judge of the County Court. The sentences, which were the same for each applicant, were as follows: on count 1, two years and six months’ imprisonment; on count 2, one year’s imprisonment; on count 3, six months’ imprisonment; and on count 4, three months’ imprisonment. The learned sentencing judge directed three months of the sentence imposed on count 3 should be served cumulatively on count 1. This produced a total effective sentence for each applicant of two years and nine months’ imprisonment. His Honour ordered a 15 month non-parole period. His Honour also made a compensation order in the sum of $2447 to the victim of the criminal damage.

Both applicants now appeal against their convictions on count 1 and count 2, and against their sentences of imprisonment.

The Facts

Most of the facts in this case were uncontroversial. On 19 November 2004, Mr Gelevski entered into a lease agreement in respect of premises at 89 North Road, Avondale Heights (‘the premises’). On 14 December 2004, Origin Energy connected electricity at the premises. The electricity account was in Mr Filipovic’s name.

The applicants arranged for the illegal diversion of the power supply to the premises, thereby stealing electricity from Origin (count 3). They also made alterations to the premises in order to set up a hydroponic system to grow the cannabis. These alterations, which included drilling holes in the roof, walls and floor for the extraction of air and the passing of electrical cables, and the ripping up of the carpets, provided the basis for the count of causing unlawful damage (count 4). The applicants’ evidence was that they intended to fix the place up when they left.

A visit by the owner of the premises in February 2005 aroused his suspicions about its use. He notified the police and on 5 April 2005 they executed a search warrant on the premises. The search revealed ‘the quite sophisticated hydroponic arrangements in place for growing of cannabis’ concealed in each of the bedrooms.[1] As well as the alterations listed above, the applicants had installed sulphur gas lights, extractor fans and carbon filters to extract the smell of the cannabis. They had used plastic sheeting to insulate the rooms and prevent the lights being visible from outside, and set up a system to deliver nutrients to the plants, which were grown in rock wool. The applicants’ evidence was that they had purchased this equipment from people who had advertised it in the Trading Post newspaper and from a shop supplying hydroponic equipment.
[1]R v Filipovic, Gelevski (Unreported, County Court of Victoria, Ross J, 9 February 2007), [5].

At the time of the raid, 17 plants were being grown. Nine of the plants were mature and had begun to flower. They ranged in height from 1.2–1.3 metres. The other eight plants were less mature and shorter. All 17 were female plants, which yield a higher proportion of THC, the active constituent in marijuana. In total, the plants weighed approximately 40kg. In the second bedroom the police found a plastic garbage bag and a cardboard box containing leaves in a fresh to wilted and partly decomposed condition. These leaves weighed just under 3kg.

No scales, deal bags or evidence of any direct sales were found at the premises or at the house where Mr Gelevski lived with his parents. Nor were any items or implements connected with the use of cannabis found by the police. Mr Filipovic’s house and car were not searched.

The case at trial

As I have said, each of the applicants pleaded guilty to one count of theft and one count of intentionally and without lawful excuse damaging property. They also indicated that they were prepared to plead guilty to the lesser charge of cultivating a narcotic plant simpliciter.

The defence case at trial was that the applicants did not have the intention to cultivate a commercial quantity of cannabis, or to have the drug in their possession for the purposes of sale. Both applicants gave evidence that they were very heavy cannabis users,[2] that they had cultivated the cannabis for their own personal use, and that they were not aware that the weight of the plants amounted to a commercial quantity.[3]
[2]Robert Gelevski claimed that he was smoking about 28 grams of cannabis per week, which was costing him $300–400 per week. Zoran Filipovic claimed that he was smoking three to four grams per day, which was costing him about $250-$300 per week.
[3]In cross-examination Gelevski said that he expected to get 6–7 kilos dry. Filipovic said in cross–examination that he did not know what they would get out of the crop.

It was conceded by the informant at trial that the allegation of trafficking was made on the basis of possession for sale, there being no evidence of any sales, nor any evidence of agreement to sell.

The appeal against conviction

Because both applicants relied upon similar grounds of appeal it is convenient to discuss their appeals against conviction together.

I deal first with the concession made by counsel for the Crown that the applicants should not be convicted of both counts 1 and 2. Counsel referred to s 51(1) of the Interpretation of Legislation Act1984 which provides that:

Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any of or all of those laws but shall not be liable to be punished more than once for the same act or omission.

Each of the applicants was convicted of and sentenced for the offences covered by counts 1 and 2. A similar situation arose in R v Mason,[4] where the applicant was convicted on one count of trafficking and one count of cultivation of cannabis. The applicant in that case had cultivated a large number of plants, but there was no evidence of commercial dealings relating to the crop and the charge of trafficking was apparently based on the fact that the plants were in the applicant’s possession for the purpose of sale. The Crown conceded that both convictions could not be maintained. Buchanan JA, who delivered the main judgment,[5] held that because the elements of both offences were not identical, a conviction on count 1 could not give rise to a plea of autrefois convict on count 2.[6] However because the same acts of cultivation were relied upon as the basis of both counts, the applicant should not be punished for both offences. The court set aside the conviction on the trafficking offence and directed a verdict of acquittal on that count.
[4][2006] VSCA 55; see also R v Van Xang Nguyen [2006] VSCA 158.
[5]Maxwell P and Redlich AJA agreed.
[6]R v Mason [2006] VSCA 55, [11].

In my opinion the court should take a similar course of action in this case. I would therefore quash each applicant’s conviction on count 2 and direct a verdict of acquittal on that count.

I now turn to consider the grounds of appeal against each applicant’s conviction on count 1. The submissions on grounds 1 and 2 were made by counsel for Mr Gelevski and adopted by counsel representing Mr Filipovic. The primary submissions on grounds 3 and 4 were made by counsel for Mr Filipovic.

Ground 1

So far as is relevant to count 1, the first ground of appeal alleged that the learned trial judge had:

·failed to summarise the evidence relevant to the particular applicant’s case on each count and to relate the summary of facts to the directions on the law;
·erred in suggesting that the defence to count 1 was that the cannabis was grown for personal use;
·conflated the evidence relied on by the prosecution in support of each count;
·in relation to count 1, referred erroneously to the ‘quantity of plants’ and the ‘number of plants’ when the relevant mens rea was whether the applicant was aware that there was a significant risk that the cannabis weighed in excess of 25 kilograms;[7]
·failed to make it clear that, for the purposes of count 1, the crucial question was whether, at the time of the police raid (as opposed to some time in the future), the applicant believed that there was a significant or real chance that the cannabis exceeded 25 kilograms in weight; and
·failed to balance the suggestion that the applicant and the co‑applicant had jointly tailored their evidence, with the fact that each applicant provided independent evidence in support of the other’s case on both counts.

[7]I note that this is not an entirely accurate reference to the relevant mens rea. It was expressed in this way in the grounds of appeal.

Counsel said that his Honour had not adequately directed the jury on the following factual matters, which were relevant in deciding whether it could be inferred that the applicants knew that the plants weighed at least 25 kilograms:

·the relatively small number of plants (17) and the absence of scales at the premises;
·the evidence of Senior Constable Potts that he was not able to estimate the weight of the plants and the evidence in cross-examination of the botanist Ms Fiddian, who said it was difficult to give ‘an accurate estimate of the weight of cannabis plants’ when they were growing;
·the evidence of Mr Gelevski that at the time of the police raid, he could not tell what the plants weighed but ‘didn’t think they would go more than ten kilos’ and that he hoped that they would get six or seven kilos dry; and
·the similar evidence of Mr Filipovic that he had no idea of the weight of the crop and nothing to weigh it with.

Counsel also submitted that his Honour had misdirected the jury in relation to count 1 by suggesting that each applicant’s defence was that the marijuana was being grown for his personal use. Counsel said that, in referring to the particular applicant’s case in this way, his Honour had conflated the inference which the Crown relied upon in relation to the trafficking count with the inference which the Crown relied upon in relation to the cultivation count. By so doing, it was said that his Honour had failed to differentiate between the mental element required for conviction on count 1 and for conviction on count 2. It was contended that the conviction on count 1 was unsafe because the learned judge had not clearly directed the jury that the accused could not be convicted of cultivating a commercial quantity of marijuana unless the jury were satisfied beyond a reasonable doubt that the men knew that the weight of the plants was at least 25 kilograms or that the jury could infer such an intention beyond reasonable doubt from the fact that there was a real and significant chance that this was the case.

Counsel said that the judge’s direction had the same vice as the direction in R v Callaghan.[8] In Callaghan, this Court held that the judge had not made it clear to the jury that their task was to decide whether the facts were sufficient to require an inference beyond reasonable doubt that the accused had intended to cultivate not less than a commercial quantity of a drug. In this case, it was submitted that the learned trial judge’s failure to relate the facts to the law was exacerbated by the lack of clarity in his directions as to the elements of the offence.
[8][2007] VSCA 135.

Counsel for the Crown submitted that the learned judge had directed the jury on the required elements of each offence and had related his summary of the facts to those elements. Further, counsel contended, in the particular circumstances of this case it was not necessary for his Honour to provide a detailed summary of the evidence. The trial lasted only two days, so that all of the evidence would have been fresh in the minds of the jury. In R v Dao,[9] it was held that even though the trial judge had failed to summarise the evidence, there had been no miscarriage of justice because
[9](2005) 156 A Crim R 459.

the case was a straight-forward conflict of the inferences to be drawn from a simple matrix of fact — one which the jury would [have] no difficulty in recalling, understanding and evaluating. [10]

It was submitted that this was a similar situation.

Were the jury directions on mens rea inadequate?

[10]Ibid 464.

For the applicants to be convicted of the offence of cultivating a commercial quantity of a narcotic plant the Crown had to prove that the accused intended to cultivate plants weighing not less than 25 kilograms. If the jury was satisfied beyond reasonable doubt that the accused knew there was a real or significant chance that the plants weighed at least 25 kilograms when they were seized, then it was open to them to infer that the applicants had the requisite intention.[11]
[11]R v Garlick (No 2) (2006) 15 VR 388, 400–401 (Eames JA); R v Van Xuan Bui [2005] VSCA 300.

For the applicants to be convicted of trafficking in a commercial quantity of a narcotic plant it was necessary for the jury to be satisfied beyond reasonable doubt that the accused intended to possess the drug for the purposes of sale.

His Honour gave the usual jury directions as to the circumstances in which it was permissible to draw inferences. He continued as follows:

In relation to the evidence of the accused, Mr Doyle for the Crown says look, I think he used the expression, it’s ridiculous to suggest that these two men were cultivating less than a commercial crop and were doing it other than for profit. The defence says no, these men have explained that they were growing it for their own personal use and they have presented their case. Now, the defence do not have to prove that. The Crown have to establish beyond reasonable doubt that what the accused were saying is not correct. That is the obligation that they have and the Crown relies on inferential reasoning for you to reach the conclusion in relation to Counts 1 and 2, that is there was a cultivation of a commercial quantity and also trafficking in the drug.
Now, moving onto the counts, you have your presentment in front of you, but you are only concerned with Counts 1 and 2. You will reach a verdict on the other counts but you understand that the other verdicts are inevitable. Now, in order to prove that the accused are guilty of the offence of cultivation of a commercial quantity, the prosecution must prove: one, that they intentionally cultivated a plant. There is no difficulty about that. Two, that they intentionally cultivated a narcotic plant. No difficulty about that. But the third element, which is the one which is controversial, the third element that the prosecution must prove, that the accused intentionally cultivated a commercial quantity of the plant. Now, you must be satisfied of these three elements beyond reasonable doubt before you can reach a verdict of guilty. But as I say, the first and second element, the cultivation and the fact that it was a narcotic plant, are not in issue.
In relation to the cultivation of the commercial quantity, there are two parts to this element. The prosecution must prove that the accused cultivated not less than a commercial quantity. I direct you as a matter of law that a commercial quantity is 25 kilograms. Now, in this case there is no challenge to the evidence that the plants – I will just concentrate on the plants that were under cultivation in the two rooms. In one room there were 19 kilograms – I might have that wrong, but in any event in the combination in the two rooms there were 40 kilograms of the plant, and you are concerned with the amount of plant that was weighed by Ms Fiddian. You are not concerned with the dried quantity. The dried quantity has become a factual issue in argument in this case but for the purposes of assessing whether a commercial crop was grown, the commercial minimum is 25 kilograms and there is no argument that there was in fact in excess of the commercial quantity grown.
The intention to cultivate a commercial quantity. For this element to be satisfied, the prosecution must also prove beyond reasonable doubt that the accused intended to cultivate not less than a commercial quantity; that is, they deliberately cultivated not less than 25 kilogram of the plant. They do not have to prove that they intended to cultivate that precise quantity, it is sufficient that the quantity involved is in excess of 25 kilograms.
Now, in determining whether or not the accused intended to cultivate not less than 25 kilogram of plants, you will need to decide if you can draw that inference from all the evidence that they had the intention. Now, you will remember what I have told you about inferences. You may be able to draw this inference if you find that the accused knew or believed that they were cultivating not less than that quantity of plants. However, you do not have to find that the accused actually knew that they were cultivating not less than a commercial quantity of plants in order to draw this inference. You may also be able to infer that the accused had an intention to cultivate the required quantity of plants if you find that they were aware of the likelihood that they were cultivating such a quantity of plants. That is, you may decide that because each accused was aware that there was a significant and real chance that they were cultivating not less than a commercial quantity of plants, they must have intended to cultivate that quantity.
Now, it is for you to determine whether or not the inference emerges from the evidence that the accused had this intention. But I emphasise you must not draw such an inference unless you are satisfied that that is the only inference that is reasonably open in the circumstances. If there is any other reasonable explanation available – and you have heard the accused account, they say they were growing it for their personal use – then the prosecution will not have proved this third element beyond reasonable doubt.
Now, I do not propose to go over in great detail the evidence upon which the Crown relies, basically it is there in those photographs. The Crown argument is that this is a sophisticated set-up for growing cannabis. It involved the preparation of this house in the manner that has been described, the acquisition of all of the accoutrements, the setting up of the shrouds that covered the lights, the lights that were employed to provide not only light but heat, the efforts at disguising the existence of the plant by placing black plastic sheet to prevent people knowing what was going on in there, the use of fans to muffle if you like the prospect of the smell of the drug under cultivation moving out into the district, and you understand the arguments that Mr Doyle addressed to you. I will speak about counsel’s argument, but the argument goes that you could only draw one inference from all of that, that this existence of the number of plants in that situation in that number is a circumstance which justifies you finding that there is only one inference to be drawn from all of that evidence, and that is that the accused did in fact intend to cultivate a commercial quantity. And pretty much the same factual considerations apply to the charge of trafficking.

Trafficking in a drug of dependence also involves the elements that the accused intentionally trafficked in the drug and that the drug in fact was a drug of dependence. Again this second element is not in issue, the first element is controversial. So for the element of trafficking in a drug of dependence to be satisfied, the prosecution must prove beyond reasonable doubt that the accused intended to traffic in a drug of dependence.
In this case the Crown allegation is that the accused men possessed the drug for sale. There is no argument that the accused men possessed the drug. It is the nature of the possession that must be established to your satisfaction beyond reasonable doubt. And again the Crown asks you to draw the inference from pretty much the same facts that I have just referred to in relation to the charge of cultivating a commercial crop. The argument is that again the facts point only to one conclusion, that this was a crop that was not cultivated for the purposes of their own personal use, the object in cultivating the drug was for the sale of it. So to prove trafficking the Crown must establish beyond reasonable doubt that the accused had this quantity of the drug in their possession for sale. I do not think I need say any more about that. It is not necessary for any particular sale to be in mind. The Crown rely on the fact of the circumstances of the possession to po[int] to the fact that this was a crop that was cultivated for the purposes of a business transaction.
Now, as I have indicated the accused men each gave evidence, and that evidence will be fresh in your mind, and if I am relatively brief referring to it, it will not be because I do not suggest you should not attach importance to it and give it due consideration. But each accused gave the account that they were heavy drug users, that they were in the habit of purchasing drugs from a man named Vasco at a hotel in the district where they lived.
Mr Gelevski said he was smoking three to four grams a day, amounting to about an ounce a week. He was getting cannabis of[f] a dealer. He would go to the Taylors Lakes pub. He said he was working for Toyota and he described the circumstances in which he said he smoked the drug, rolled it in cigarette paper and had a bong in his car and he used it. He said the paraphernalia for smoking the drug was stored in his car. He told you that he earned $850 a week. He said he was a spot welder, and he said that he estimated he was spending [$]15,000 plus on cannabis. He would buy the cannabis in ounce lots and he told you that he and his co-accused, Filipovic, tracked down this hydroponic equipment, or much of it from the Trading Post. It was bought for a modest price. They obtained goods from a hydroponic shop and it was in these circumstances that they set up the crop and the purpose was to cultivate sufficient to provide them with I think they said a year’s supply. The cannabis in the garbage bag and the box, that was dried and dead leaves. They were there every day pretty well.
In relation to the weight, he said he could not tell what they weighed. He said, “I didn’t think they would weigh more than ten kilograms.” He said he hoped to get a year’s supply and he expected to get some six or seven kilograms of dried cannabis. He had no idea what the fresh weight of cannabis would be and his purpose was to have his own supply. He said when the cannabis was ultimately dried that he would keep it in a container and hide it in his garage.

His Honour went on to refer to Mr Filipovic’s evidence to similar effect. I refer to that evidence below.

Counsel for the applicants drew attention to his Honour’s comment that ‘these men have explained that they were growing the drug for their personal use and they have presented their case.’ He also referred to his Honour’s direction that it was for the jury to decide whether they could infer that the accused knew that they had an intention to cultivate the required quantity of plants and that:

If there is any other reasonable explanation available – and you have heard the accused account, they say they were growing it for their personal use - then the prosecution will not have proved this third element beyond reasonable doubt.

Counsel submitted that these remarks were likely to have misled the jury into thinking that the issue in relation to count 1 was whether the marijuana was being grown for personal use. Consequently the jury would not have understood that the applicants could not be convicted of count 1 unless the jury was satisfied beyond reasonable doubt that the applicants were aware of the weight of the plants they were cultivating.

In deciding whether this ground is made out it is necessary to consider the way the trial was conducted. As I have said, the defence case was that both applicants were dependent on cannabis and smoked it in very large quantities. The applicants’ evidence was that they had obtained the cannabis seedlings from the dealer who had previously supplied them with the drug and had cultivated the plants to provide them with a year’s supply, at a lower cost, than if they had purchased the marijuana from that dealer.

The Crown invited the jury to infer the mens rea required for count 1 from the number of plants grown, the setup for growing them, and the unlikelihood that the applicants were, as they claimed, growing this amount of marijuana for personal use. The applicants’ evidence that the drug was cultivated for personal use was relevant to count 1 because it supported their claim that they had no reason to be aware of the likely weight of the plants. No scales were found on the premises and the applicants testified they had no idea of the weight of the plants.

For these reasons it was not inappropriate for his Honour to refer to the defence case that the marijuana was being cultivated for personal use in relation to both counts. In my opinion this case is not comparable with R v Callaghan, where the trial judge did not make it sufficiently clear to the jury that the proof of relevant intent was an element of the offence.[12]
[12][2007] VSCA 135.

In this case the learned trial judge instructed the jury clearly as to the elements of the offence covered by count 1 and emphasised that the jury must be satisfied beyond reasonable doubt that the accused deliberately cultivated not less than 25 kilograms of the plant. He made specific reference to Mr Gelevski’s evidence that he did not think that the plants weighed more than ten kilograms, that he hoped to get six or seven kilograms from it when it was dried and that he had no idea as to its fresh weight. He summarised Mr Filipovic’s evidence that he did not know the weight of the drugs or that what they were doing was cultivating a commercial crop. He also drew the jury’s attention to the fact that the only evidence led by the Crown as to the cost of the hydroponic set up was given by Acting Sergeant Iliadis, who said that it was ‘very expensive’. His Honour said that:

So that is the only evidence that the Crown had in relation to the cost of it. It is a matter for you to consider those arguments about the expense of setting the enterprise up. But you have the evidence of each accused that the material was purchased through that contact in the Trading Post and also from the hydroponic shop in the district.
…
In relation to the accused, the only evidence is that they were heavy smokers and if they were paying that amount of money for their marijuana, it makes sense to do what they did. There was a lot of money to be saved.

His Honour also referred to the submission made by counsel for Mr Gelevski that Ms Fiddian’s expert evidence was that the dry weight of the drug would be less than its weight while growing and that her expert knowledge as to the relationship between wet and dry weight should not be attributed to the applicants. He also said that counsel for Mr Geleveski had

made the point that the Crown might be on firmer ground if we were dealing with 70 or 80 plants but in this case the number of plants were not such as to excite in the mind of someone that was cultivating that they would be cultivating more than 25 kilograms.

Counsel submitted that his Honour’s reference to ‘the quantity’ and ‘number’ of the plants was erroneous, because count 1 required proof that the applicants intended to cultivate plants weighing at least 25 kilograms. But his Honour’s directions as to the elements of count 1 referred specifically to the applicants’ intention to cultivate plants weighing at least 25 kilograms. It was counsel for Mr Gelevski who relied on the relatively small number of plants as an indication that they could not have been aware that they were cultivating a commercial quantity.

Counsel for Mr Gelevski also submitted that it was vital for his Honour to tell the jury that the applicants’ intention to cultivate a commercial quantity of cannabis must have existed at the time of the police raid. It was not sufficient for the Crown to prove that the applicants were aware that the cannabis might have weighed at least 25 kilograms at some future date, such as when the cannabis was harvested. Mr Gelevski’s evidence was that he was hoping to harvest cannabis of 6–7 kilograms dry weight. The evidence of the forensic botanist Ms Fiddian was that about 75 per cent of the fresh weight of the cannabis was lost when the material was dried out. On that basis counsel said that Mr Gelevski’s evidence indicated that he intended to cultivate around 24 kilograms of cannabis, which was an amount below a commercial quantity of the drug.

In my opinion no miscarriage of justice arose from his Honour’s failure to direct the jury that the intention of the applicants to cultivate a commercial quantity of the drug must be ascertained at the time of the police raid, rather than at some future time when the drug was to be harvested.

Cannabis refers to the fresh or dry weight of the cannabis plant.[13] As I have said the plants weighed 40 kilograms. The defence case was not that the applicants lacked the intention to cultivate a commercial quantity at the date of the police raid, although they might have known that it would weigh more than 25 kilograms after that date. Rather it was that they had never had an intention to cultivate more than 25 kilograms of the drug. Mr Gelevski testified as to the dry weight he expected to harvest and said he had no idea of the wet weight. Mr Filipovic said that he was hoping to get enough marijuana for each of them to smoke for the minimum of a year but that he had no idea of the weight of the drug. In his closing address, counsel for Mr Gelevski referred to the difference between the wet and dry weight of the drug in support of the proposition that his client did not have the intention to cultivate a commercial quantity. Counsel for both men referred to Ms Fiddian’s evidence that it was hard to estimate the weight of the plants while they are growing. But counsel for the applicants did not put to Ms Fiddian the question whether she considered there was a real or significant risk that the weight of the plants was not less than 25 kilograms at the time of the raid. Nor did either counsel in their closing addresses differentiate between the applicants’ intention to cultivate a commercial quantity at the time of the raid and at some later date. His Honour carefully summarised the evidence of both applicants as to their knowledge of the weight of the cannabis. It was for the jury to determine whether the applicants had the relevant mens rea to support their conviction on count 1, on the basis of all the evidence.

Was the jury direction on the applicants’ evidence unbalanced?

[13]Drugs, Poisons and Controlled Substances Act1981, s 70.

In summarising Mr Filipovic’s evidence his Honour commented as follows:

[Mr Gelevski] was cross-examined by Mr Sarah [Mr Filipovic’s counsel] who asked him a few Dorothy [Dix’s] on that point but it was pretty much information of what he had said, and I think it is fair to say that Mr Filipovic gave pretty much the same evidence. Mr Doyle argued that their stories coincided, their accounts coincided, and he sought to make something of that. But each accused gave the account of the acquisition of the materials through the Trading Post and getting some assistance from this man Vasco in relation to the acquisition of the plants. They said – or certainly Mr Filipovic told him that Vasco told him how to bypass the electricity. Mr Filipovic also gave evidence that he had no awareness of the weight of the drugs. His evidence was very much in accord with the evidence given by Mr Gelevski. He said, “We talked to each other about it”, it was not a business deal. They did not discuss any question of selling it, and he also said that he was in substantial ignorance of the weight of the drugs. And he indicated that he had no idea that what they were doing was cultivating a commercial crop but that evidence was given fairly recently and I have no doubt it will be pretty clear in your mind.

At a later point in his directions he referred to counsel for Mr Geleveski’s criticism of the Crown for suggesting that the evidence of the men was ‘tailor-made’.

In my opinion his Honour’s summary of the evidence was not unbalanced or unfair to the applicants. The manner in which his Honour juxtaposed his summaries of the applicants’ evidence made it clear that the evidence given by each of the men supported the defence case that the marijuana was being grown for personal use and that therefore neither of them was likely to have been aware of the weight of the plants which they were cultivating. His Honour also told the jury that the accused men had pledged their oath to the truth of what they had said and submitted themselves to cross-examination. He made the customary comment that all that an innocent person could do was to testify on his own behalf, though an accused person might choose to ‘brazen it out’ by giving evidence. He told the jury several times that the Crown was required to prove its case beyond reasonable doubt.

For these reasons I do not consider that ground 1 is made out.

Ground 2

The second ground of appeal was that the learned trial judge did not give a separate consideration direction in respect of counts 1 and 2. His Honour told the jury that although the accused were being tried together they were considering two separate cases, but that it had been conceded by counsel that the same verdict must apply to both accused. He did not go on to explain that each count on the presentment must be considered separately.

Counsel for the applicants contended that his Honour’s failure to give the usual separate consideration direction was necessarily productive of a miscarriage of justice. It was submitted that the overlap in the evidence relating to the two offences, and the different mens rea required for count 1 and count 2 made it particularly important for his Honour to direct the jury that a finding of guilt on one count did not require a finding of guilt on the other count. It was also said that his Honour’s reference to ‘verdict’ in the singular rather than to ‘verdicts’ in the plural was likely to have led the jury to conclude that a finding of guilt on the one count required a finding of guilt on the other.

Counsel for the Crown submitted that although his Honour should have given a separate consideration direction, the failure to do so had not resulted in a miscarriage of justice. The evidence which was admissible in relation to one count was admissible in relation to the other count. His Honour had adequately directed the jury as to the elements of each offence, and the same evidence was capable of establishing all of the elements of both counts. There was no risk that the jury would have held that the accused were guilty of one count simply because they were guilty of another count, such as may arise in cases involving sexual offences.

It was unfortunate that his Honour did not direct the jury to consider each count separately. However as Gleeson CJ and McHugh J commented in Dhanoa v The Queen:[14]

…it is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial judge had given an appropriate direction… . To succeed in the appeal [the applicant] must establish that it is a reasonable possibility that the failure to direct the jury "may have affected the verdict"[15].

[14](2003) 217 CLR 1, 18 (citation in original).

[15]Simic v R (1980) 144 CLR 319, 322.

In Dhanoa the judge failed to give an Edwards direction, whilst in this case he did not direct the jury to consider each count separately. Nevertheless the same principle applies. In my opinion, the judge’s failure to give a separate consideration direction did not result in a miscarriage of justice.

One of the main purposes of the separate consideration direction is to ensure that the jury does not use evidence which is admitted in support of one offence, in deciding whether the accused is guilty of another offence in relation to which that evidence is inadmissible. In this case the Crown relied on the same evidence to support the inference that the applicants intended to cultivate a commercial quantity of marijuana (count 1) and the inference that the applicants were in possession of the marijuana for the purposes of sale (count 2). There was accordingly no danger that evidence only relevant to the applicants’ conviction on count 1 could be used to support their conviction on count 2.

However that is not sufficient to demonstrate that there was no reasonable possibility that the lack of a separate consideration direction could have affected the jury verdict. A separate consideration direction is also intended to ensure that the jury does not reason that a person who has committed one offence is necessarily guilty of a different offence.[16] For example, in cases involving alleged sexual offences, the direction guards against the danger that if the jury finds that the accused committed the acts alleged in relation to one offence, they will conclude that the accused has also committed the acts alleged in relation to another offence. By contrast, in this case it was conceded that the applicants had grown the marijuana and that its weight exceeded a commercial quantity. The issue for determination was whether the Crown had proved the applicants had the necessary mens rea to support a conviction on either of count 1 or count 2, or on both counts. His Honour directed the jury as to the elements of each offence and his direction made it clear that each count required proof of a different mental element.
[16]An additional warning against propensity reasoning may also be required in some cases.

In light of these directions I do not consider that there was a danger of propensity reasoning of the kind which exists where the issue is whether the different acts required for the offence have been proven. A jury which found that the applicants intended to cultivate not less that 25 kilograms of cannabis would not necessarily conclude that they were in possession of the drug for the purpose of sale. Indeed the jury might well have concluded that count 1 was made out, but that they had a reasonable doubt about whether the applicants intended to sell the drug, rather than possessing it for their personal use.

I have held that the appeal on count 2 must be allowed. There is therefore no need to consider whether the failure to give a separate consideration direction resulted in an unsafe conviction on count 2. Can it be contended that there was a danger that the jury may have convicted the applicants of count 1, because they found them guilty of count 2? I do not consider there is any realistic possibility that this could have occurred. Although the Crown relied upon inferences from the facts to establish the mens rea for count 1, the Crown case was a strong one. The weight of the cannabis which they cultivated significantly exceeded a commercial quantity. Even if the jury accepted the evidence of the applicants that they had purchased the hydroponic equipment at relatively low cost, they were entitled to take account of the fact that the men were renting the premises for $920 per month[17] in assessing the inference which should be drawn from the circumstances relied upon by the Crown.
[17]In his evidence-in-chief Mr Gelevski testified he was earning $850 per week. It is not clear whether this was a gross or net figure. In his evidence-in-chief Mr Filipovic testified he was earning $1000–$2000 per week as a self-employed plasterer.

I do not consider that there was any realistic possibility that the jury verdict of guilty on count 1 was in any way influenced by the fact that the jury found that the applicants intended to possess a commercial quantity of the drug for the purposes of sale.

In my view ground 2 is not made out.

Ground 3

The third ground of appeal was that the aggregation of errors in grounds 1 and 2 had caused the trial to miscarry. Since I have concluded that ground 1 is not made out and that the failure to give a separate consideration direction did not result in a miscarriage of justice, I do not consider that this ground is made out.

Ground 4

The fourth ground was that the verdict on count 1 was unreasonable or could not be supported having regard to the evidence. The Crown contended that the applicants’ intention to cultivate a commercial quantity of cannabis could be inferred from the fact that they knew that there was a real and significant chance that the weight of the plants exceeded 25 kilograms. The Crown relied on the inference which could be drawn from the manner in which the marijuana was cultivated, and the unlikelihood that the applicants were growing the crop for personal use and for that reason were unaware of its weight.

The applicants gave evidence that they had obtained cuttings in rock wool from their dealer to grow the drug for their personal use, that the hydroponic equipment used to grow the drug was obtained cheaply, that they were each smoking about an ounce of marijuana (approximately 28 grams) per week, that they intended to save money by growing the marijuana for their own use rather than buying it from their dealer, that they had no scales to weigh the plants and that they were not aware that the weight of the plants exceeded a commercial quantity. It was for the jury to assess the credibility of the applicants and to determine whether the inference as to intention which the Crown sought to prove was established beyond reasonable doubt. In my opinion it was clearly open to the jury to find that the applicants intended to cultivate a commercial quantity of cannabis L.[18] In my view ground 4 is not made out.
[18]M v R (1994) 181 CLR 487.

For the above reasons I would allow the application for leave to appeal and uphold the appeal against conviction on count 2, but dismiss the appeal against conviction on count 1.

Re-sentencing

Each of the applicants appealed against the sentences imposed on them. Because the applicants have succeeded in their appeal against conviction on count 2, they must be re-sentenced. In so doing, I have taken account of the submissions on the sentencing appeal, to the extent that they are relevant to the exercise of the re-sentencing discretion.

The maximum term of imprisonment that can be imposed for the offence covered by count 1 is 25 years’ imprisonment.[19] The circumstances in which the offence covered by count 1 was committed have already been discussed. I now turn to the circumstances of the applicants.

Mr Gelevski

[19]Drugs, Poisons and Controlled Substances Act 1981, s 72A.

Mr Gelevski was born in Australia of Macedonian parents. He was aged 26 to 27 at the time of the offences. While he was at school he was a keen soccer player, but became unable to play soccer because of injuries suffered in an earthquake and subsequent tractor accident in Macedonia, which he visited towards the end of his secondary schooling. At 16 or 17, on returning to Australia, he began to use cannabis heavily, smoking marijuana on a daily basis. He has managed to remain in employment for most of the time since 1994 and at the time of sentencing he had been employed as a spot welder by Toyota for the past four years.

The learned sentencing judge referred to Mr Gelevski’s favourable references from a shop steward, Mr Caruana, and from Mr Jordan, his foreperson at Toyota. He also received references from a friend, Mr Pantelidis, who is an accountant and from a primary school teacher Mr Kotevski, who is Mr Gelevski’s cousin. His partner Diana Kirevski, who had been in a steady relationship with him for the past six years at the date of the plea, provided a reference in which she said that he had now realised that ‘his addiction did take control of his life’ and that she and his family were pleased that it was now under control.

These offences were committed in 2005 and the applicants were convicted and sentenced in February 2007. Neither of the men has been charged with any subsequent offences. Following the commission of this offence Mr Gelevski sought treatment for his cannabis dependence from Mr Craig McDonald. Mr McDonald’s report said that on a severity of dependence scale administered in October 2005 Mr Gelevski had measured 13 out of 15, indicating a very high level of cannabis dependence. While undergoing counselling Mr Gelevski had regular drug urinalysis screens showing negative results for drugs between 13 May 2005 and 4 February 2007. On 5 February 2007 Mr McDonald reported that:

Prior to and throughout counselling…given the opportunities to implement strategies learned within the counselling process, Mr Gelevski has ceased all illicit drug use as confirmed by supervised urinalysis screening.
Mr McDonald expressed the view that:
[The] applicant impresses the writer as being very remorseful, honest and over time is demonstrating considerable insight to his personal issues, relapse triggers and future drug treatment needs.

It was submitted on behalf of Mr Gelevski that the remainder of his sentence should be suspended because of the personal circumstances described above, and the fact that only a small number of plants were cultivated.

Counsel for Mr Gelevski also submitted that the court should take account of the risk that the house which he owns at 14 La Coruna Gardens, Point Cook, may be automatically forfeited under the Confiscation Act1997. On 21 June 2005, a County Court judge made a restraining order over that property[20] to satisfy any forfeiture, automatic forfeiture, or the imposition of a pecuniary penalty order that might occur under the Confiscation Act 1997.
[20]See Confiscation Act 1997, ss 15, 18.

At the hearing of the appeal there was no evidence as to the extent of property owned by either applicant or the likelihood that it would be forfeited.[21] In order to consider the relevance of this matter to the exercise of the re-sentencing discretion, the Court permitted counsel for both applicants and for the respondent to make additional submissions and to file relevant affidavit evidence.
[21]Although it was said that because the applicants had committed offences under Schedule 2 of the Act, the property was liable to automatic forfeiture, unless it was excluded.

Under s 35 of the Confiscation Act 1997, if a person is convicted of cultivating a commercial quantity of a drug of dependence[22] and a restraining order is or was made in respect of his or her property, the restrained property is automatically forfeited within 60 days after the conviction, unless an application is made for an order under s 22 of the Act excluding that property. Either the offender or another person claiming an interest in the property can apply for its exclusion.
[22]Schedule 2, cl 1(ab).

In its current form, [23] s 22 provides that:
[23]Note that these provisions were amended by the Confiscation Amendment Act 2007. Under s 177 of that Act the amendment applies to any application for an exclusion order made before, on or after 15 February 2007 but not determined before the commencement of the amending Act. In the case of an application under s 22 the provisions apply as if s 22, as amended by s 6(1) of the Confiscation Amendment Act 2007, had been in operation at the time the application was made.

On an application made under section 20, where the restraining order has been made in relation to a Schedule 2 offence for the purposes of automatic forfeiture—
(a) the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if the court is satisfied that—
(i)the property in which the applicant claims an interest was lawfully acquired by the applicant; and

(ii) the property is not tainted property; and
(iia) the property is not derived property; and
(iii)the property will not be required to satisfy any pecuniary penalty order or an order for restitution or compensation under the Sentencing Act 1991.

The legislation also permits a third party with an interest in property to apply for an order excluding it from automatic forfeiture.[24] That provision does not appear to be relevant to Mr Gelevski’s property.
[24]Confiscation Act 1997, s 22(b).

On 13 June 2006 Mr Gelevski was granted an extension of time to apply for an order excluding the property. His solicitors filed an affidavit sworn by him on 10 August 2006 setting out the history of his financial contributions to that property. In summary, he deposed as follows:

·The land was bought in February 2003 for $127,000. The purchase was financed by a $1,000 loan from his parents for the deposit (which he has since repaid), a $100,000 loan from the Commonwealth Bank and $26,000 from his own savings;
·In approximately March 2005, he obtained a further loan of $120,000, of which $40,000 went to the final repayment on the land and the remaining $80,000 to the building of the house. A further $80,000 was received from the applicant’s parents towards the construction of the home;
·Repayments on the loan were made from the wages he earned from his employment; and
·The property was not used in the commission of any offence and was not bought, built, maintained or otherwise connected with any proceeds of any offence. [25]

[25]This material is adapted from the written submission of counsel for Mr Gelevski.

The applicant’s father, Terry Gelevski, initially made an application for an order excluding the property, but that application was withdrawn in April 2007. However, in an affidavit sworn 18 April 2007, he said he had paid a total of $82,158 towards the construction of the applicant’s home as a zero-interest loan to his son which, he understood, would be repaid when the applicant was able to do so. He also deposed that he helped his other son Danny Gelevski in the same way. Danny Gelevski swore an affidavit on the same day deposing that his father, Terry Gelevski, contributed $60,000 towards the purchase of his home on the understanding that Danny would repay his father without any interest, when he was able to do so.

The construction of the home is not yet fully completed, but the property was recently valued at $360,000 in its current state. As at 22 November 2007, the amount owed to the bank under the loan was $117,788.54. Since the applicant has been in custody, his parents have maintained the loan repayments at a rate of $250 per week.

Mr Gelevski’s exclusion application is yet to be determined by the County Court. In order to succeed in that application he will have to satisfy the Court, on the balance of probabilities that the Point Cook property was lawfully acquired, is not tainted or derived property and will not be required to satisfy any pecuniary penalty order or order for restitution or compensation. [26]
[26]Confiscation Act 1997, s22(a). See also definition of ‘derived property’ and ‘tainted property ‘ in s 3.

Counsel for Mr Gelevski submitted that although the property might ultimately be excluded, it was nevertheless appropriate to take account of the risk of automatic forfeiture in re-sentencing him.

Counsel for the Crown said that the outcome of the proceedings in the County Court was uncertain because the Court would have to consider all relevant evidence including forensic accounting evidence. In these circumstances he submitted that the Court should not attempt to assess whether the property would be subject to automatic forfeiture and should disregard that possibility in re-sentencing the applicants, consistently with the approach taken by this Court in R v Tabone,[27] R v McLeod[28] and R v Tezer; R v Davis.[29]
[27][2006] VSCA 238.
[28][2007] VSCA 183.
[29][2007] VSCA 123.

Alternatively counsel submitted that if the Court considered it could assess the evidence about the circumstances in which Mr Gelevski’s property was acquired, that evidence supported the exclusion of the Point Cook property, so that the possibility of automatic forfeiture should not be taken into account in re-sentencing him.

Section 5 (2A) of the Sentencing Act 1991 provides as follows:

(2A) In sentencing an offender a court—
(a)may have regard to a forfeiture order made under the Confiscation Act 1997 in respect of property—
(i)that was used in, or in connection with, the commission of the offence;
(ii)that was intended to be used in, or in connection with, the commission of the offence;
(iii)that was derived or realised, or substantially derived or realised directly of indirectly, from property referred to in subparagraph (i) or (ii);

(ab)if it is satisfied that property was acquired lawfully, may have regard to automatic forfeiture under the Confiscation Act 1997 in respect of property—
(i)that was used in, or in connection with, the commission of the offence;
(ii)that was intended to be used in, or in connection with, the commission of the offence;
(iii)that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i) or (ii);

(b)must not have regard to a forfeiture order made under that Act in respect of property that was derived or realised, or substantially derived or realised, directly or indirectly, by any person as a result of the commission of the offence;
(c)may have regard to a pecuniary penalty order made under that Act to the extent to which it relates to benefits in excess of profits derived from the commission of the offence;
(d)must not have regard to a pecuniary penalty order made under that Act to the extent to which relates to profits (as opposed to benefits) derived from the commission of the offence;
(e)subject to paragraph (ab), must not have regard to any property forfeited under automatic forfeiture or a pecuniary penalty order made in relation to a Schedule 2 offence under that Act.

Sub-paragraphs (c) and (d) do not appear to be relevant. In his written submission counsel for the Crown said it was ‘highly likely’ that Mr Gelevski would be able to satisfy the Court that the property is not required to satisfy any pecuniary penalty order or order for compensation, because the crop was not sold and no profit was realised.

Section 5(2A)(e) prevents the Court taking account of forfeiture in sentencing the offender, except in the situations covered by s 5(2A)(ab). The purpose of limiting the circumstances in which automatic forfeiture can be taken into account were explained by the Attorney-General in his second reading speech on the introduction of these provisions. He said that: [30]

… [T]here have been difficulties in reconciling confiscation proceedings with the various aims of the sentencing process. In particular, on occasions courts have been reluctant to make confiscation orders where to do so would impose a punishment which would under general sentencing principles be regarded as disproportionate or unduly harsh. The bill resolves that difficulty by providing that, where the effect of the confiscation order is to disgorge the profits gained from the offence, it is not to be taken into account when a sentence is being imposed. This is because in divesting offenders of ill-gotten gains, the order simply restores them to the position they were in before the offence was committed. However where the order relates to previously owned property used in connection with the offence, or otherwise goes further than merely disgorging ill-gotten gains, the court will be able to take this into account in fixing sentences.

[30]Crimes (Confiscation of Profits) Amendment Bill, Second Reading Speech, 10 October 1991, 1153-54 as set out in R v McLeod [2007] VSCA 183, [19].

Mr Gelevski’s counsel submitted that an anomaly arises in applying these provisions to the circumstances of this case. The court is prohibited from taking account of the effects of automatic forfeiture except in cases falling within paragraph (ab). However (ab) does not in its terms cover cases where the property is lawfully acquired and neither tainted nor derived property. He submitted that:

…it would be absurd if a court could take into account the risk or fact of automatic forfeiture where the property forfeited (or to be forfeited) was used in or in connection with the offence but could not do so if the property had no connection with the offence.

Subject to the qualification below, I do not think that such an absurdity arises. If there is sufficient evidence before the sentencing court that the property was lawfully acquired and that the conditions of s 22 are satisfied, so that the property will be excluded from forfeiture under s 22, there is no reason for taking account of forfeiture in sentencing an offender, because he or she will not suffer this additional punishment.[31]
[31]R v Tezer; R v Davis [2007] VSCA 123, [24].

That being said, I accept that a difficulty arises in sentencing an offender where it is likely that automatic forfeiture will not occur, because the offender will succeed in having the property excluded, but the outcome of the exclusion application is not certain.[32] As this Court commented in R v McLeod, ‘[p]articular difficulties arise where, at the time the offender falls to be sentenced, there exists a possibility of future forfeiture.’ [33]
[32]See for example R v Tezer; R v Davis [2007] VSCA 123.
[33][2007] VSCA 183, [24].

If the court takes account of the risk that the offender’s property will be forfeited and an exclusion order is later made in relation to that property because s 5(2A)(ab) is satisfied, the offender will have been given the benefit of a factor which did not actually apply. If, on the other hand, forfeiture later occurs because the offender does not prove the facts set out in s 22 on the balance of probabilities, the sentencing court will have acted inconsistently with s 5(2A)(e), unless the circumstances set out in s 5 (2A)(ab) are satisfied.

In R v McLeod this Court held that the fact that property of an offender is at risk of forfeiture should be taken into account in determining sentence, if there is evidence before the court enabling it to assess the likely effect of the forfeiture order.[34] However: [35]

An offender who relies on forfeiture (whether it has occurred or is anticipated) as a mitigating circumstance will ordinarily bear the onus of establishing that it should be so regarded. Where lawfully acquired property has been used in the commission of the crime and is “tainted” property, the punitive element in its forfeiture must be sufficiently identified for the sentencing judge. How much of it was lawfully acquired, the offender’s interest in the property and the extent to which it was used to facilitate the commission of the crime may all require proof.
The sentencing judge is not required to speculate as to whether, or to what extent, the property in question was lawfully acquired or, alternatively, represented profit which the offender derived from his activities. It is for the offender to present “credible material” identifying the source of the property, so as to permit the sentencing judge to form a positive conclusion that at least some substantial portion of the property has been lawfully acquired. Likewise, where an offender seeks to rely in mitigation upon the loss of “benefits in excess of profits derived from the commission of the offence”, the offender must produce evidence to enable a positive determination to be made on the balance of probabilities.

[34][2007] VSCA 183, [25]. See also R v Le [2005] VSCA 284, [12]; DPP (Vic) v Phillips [2005] VSCA 112; R v Do [2004] VSCA 203, [13].

[35][2007] VSCA 183, [29]–[30].

On the basis of the affidavit material referred to above, I consider there is credible material supporting the view that the Point Cook property, or at least a substantial portion of it, was lawfully acquired with the assistance of a loan from Mr Gelevski’s father. I also consider it likely that Mr Gelevski will be able to show that the property was not tainted property or derived property within the definitions set out in s 3 of the Act.[36] The crop was not cultivated on the property at Point Cook, but in premises rented for that purpose. The profits from the crop were not used to make payments on the Point Cook property, because the police raided the house before the marijuana had been harvested. For these reasons I do not consider there is a significant risk that Mr Gelevski’s exclusion application will fail and that his property will be automatically forfeited.
[36]The case therefore differs from R v Tezer; R v Davis, [2007] VSCA 123, [25] (Habersberger AJA) in which the court held that a sentencing judge had not erred in failing to take account of forfeiture in mitigation of penalty because there was insufficient material for the judge to determine whether the property was tainted and therefore subject to automatic forfeiture.

Nevertheless I accept counsel’s submission that there is a chance that Mr Gelevski will not succeed in having the property excluded under s 22 of the Confiscation Act 1997, because he fails to prove on the balance of probabilities that the property is not tainted or derived. I would therefore give some minor weight to the risk of forfeiture in re-sentencing him, although I acknowledge that if Mr Gelevski succeeds in his exclusion application under s 22, his sentence will have taken account of an automatic forfeiture of property which did not actually occur. This is a consequence of the fact that the exclusion application and the re-sentencing process occur in separate proceedings.

It is not inconsistent with s 5(2A)(e) of the Sentencing Act1991 to take account of the risk of forfeiture, because there is no evidence suggesting that the effect of any automatic forfeiture will be to require Mr Gelevski to disgorge the profits of the crime. On the facts of this case, a refusal to grant an order excluding the property is likely to be attributable to a failure to satisfy the court that although the property was lawfully acquired, it was not used or intended to be used in connection with the commission of the offence or derived from such property.

Counsel for Mr Gelevksi also submitted that the Court should take account of the stress and anxiety he has suffered because of uncertainty about the outcome of the exclusion application, as a mitigating factor in sentencing. An offender’s stress because he knows he may receive a term of imprisonment for the offences he has committed is not normally taken into account as a mitigating factor.[37] I can see no reason for treating the risk of automatic forfeiture, which is a direct consequence of Mr Gelevski’s offending, differently from stress about the anticipated imposition of a prison sentence. No authority was cited in support of counsel’s submission, and I have not given this matter any weight as a mitigating factor. [38]
[37]Although undue delay in the disposition of a charge may be a mitigating factor: R v Miceli [1998] 4 VR 588. By analogy, delay in the determination of an exclusion application might perhaps be taken into account.
[38]Because I have taken account of the risk that the property will be forfeited, taking account of Mr Gelevski’s stress could also involve some degree of double counting.

Mr Gelevski was previously convicted in July 2001 on one count of trafficking in a drug of dependence (cannabis), possession of a drug of dependence (amphetamine) and theft. He was fined $3000. Some emphasis must be placed on specific deterrence, particularly in light of his prior convictions for drug offences, although these occurred some time ago.

The learned sentencing judge said that the offending was at the lower end of the scale for this offence.[39] However, as Buchanan JA said in R v Mason ‘general deterrence is an important consideration in sentencing for the offence of cultivating a commercial quantity of cannabis’.[40]
[39]R v Filipovic; R v Gelevski (Unreported, County Court of Victoria, Ross J, 9 February 2007), [18]. Compare recent cases involving cultivation of a commercial quantity of a narcotic plant cited in the Victorian Sentencing Manual, including R v Ngo [2007] VSCA 240 (50.5kg, not guilty plea, no drug priors. TES of 3y 3m, NPP of 2y); R v Pham [2007] VSCA 234 (93kg, guilty plea, harsh family background and suffers from Hep B. TES of 3y, NPP of 2y); R v Garcia [2007] VSCA 194 (42.8kg, guilty plea, previous convictions, depression and self-medication. TES of 3y 3m, NPP of 2y 3m); DPP v Duong [2006] VSCA 78 (152 plants in two separate crops, guilty plea, harsh personal and family circumstances. TES of 3y 6m, NPP of 2y); and R v Mason [2006] VSCA 55 (approx 380 plants over two locations, late guilty plea, entrepreneur, 69yo in poor health, lost house. TES of 5y 4m, NPP of 3y).
[40][2006] VSCA 55, [206].

Although his Honour did not find that Mr Gelevski’s offending was motivated by a need to feed an addiction to cannabis,[41] I accept that his cannabis dependency reduces his moral culpability to some extent. Further, Mr Gelevski’s good work record, supportive family and willingness to seek counselling to overcome his marijuana use suggest he has good prospects for rehabilitation.
[41]Compare R v Bernath [1997] 1 VR 274, 275–276.

The sentences imposed for the counts of theft and intentionally and without lawful excuse damaging property damage must take account of the offender’s guilty plea to these offences. I note also that Mr Gelevski was prepared to plead guilty to a count of cultivation simpliciter.

Because of the gravity of the offending and the sophisticated nature of the cultivation enterprise, I do not consider it would be appropriate to suspend the remainder of Mr Gelevski’s sentence.

Having regard to all of the above matters I would re-sentence Mr Gelevski as follows:

·Cultivation of a narcotic (namely cannabis L) in a quantity not less than a commercial quantity (count 1) — two years and four months’ imprisonment.
·Theft of electricity from Origin Energy (count 3) — six months’ imprisonment.
·Intentionally and without lawful excuse damaging property (count 4) — three months’ imprisonment.

I would order that three months of the sentence imposed on count 3 be served cumulatively on the sentence imposed on count 1, resulting in a total effective sentence of two years seven months’ imprisonment. I would impose a non-parole period of 15 months.

Mr Filipovic

Mr Filipovic was also born in Australia. He was 31 years old at the time of committing the offences and 33 at the time of sentencing. His parents separated when he was 4, and the learned sentencing judge noted that he ‘had to negotiate his formative years without the support of a father.’[42] He and his mother lived in a Housing Commission flat and were dependent on social security.
[42]R v Filipovic, Gelevski (Unreported, County Court of Victoria, Ross J, 9 February 2007), [15]

After leaving school at 16, Mr Filipovic worked as a pastry cook for about six years and then in the security industry. For the three years prior to the commission of these offences he was a self-employed plasterer. Mr Filipovic married his partner after the offences were committed and at the time of sentencing Mr Filipovic’s wife was pregnant with their first child. The child has now been born. Mr Filipovic’s mother lives with him and his wife and he is responsible for supporting the whole family.

Mr Filipovic has a supportive references from: his wife, who confirmed that he was no longer using drugs; Ms Zulabik who said that she had known him personally and professionally for over six years and that he was of good character; and his cousin, Ms Velevski, who said he had ceased his drug use. A reference from his cousin, Mr Siskovski, said that Mr Filipovic’s marriage and child were likely to be a stabilising influence on him.

Mr Filipovic began using cannabis at the age of 14 and by the time he was 18 his use had increased markedly and he was smoking several times per week. The drug and alcohol counsellor Mr McDonald expressed the view that Mr Filipovic was severely cannabis-dependent at the time he committed the offences. He scored 14 out of 15 on the Severity of Dependence scale, indicating a very high level of cannabis dependence.

Mr Filipovic attended counselling sessions on a fortnightly and then monthly basis and completed a ‘Cautious with Cannabis’ education program. Regular urinalysis between 13 May 2005 and 4 February 2007 showed negative results for all drugs. Mr McDonald made the same remarks as to Mr Filipovic’s remorse, honesty and self-insight that he made in relation to Mr Gelevski.

Both applicants participated in these offences at the same level. However unlike his co-offender, Mr Filipovic has no prior convictions for drug offences. Counsel for Mr Filipovic submitted that this should be taken into account for the purposes of parity. I give some minor weight to his three prior convictions from two court appearances in June 1994 and June 2001 relating to offences of unlawful assault, using threatening words and recklessly causing injury. However, I recognise that these convictions are now quite old and do not reflect a pattern of drug offending.

Mr Filipovic’s counsel adopted the submission made by counsel for Mr Gelevski’s counsel that the Court should take account of the risk of forfeiture in re‑sentencing his client.

The facts relevant to Mr Filipovic’s interest in property are as follows. On 28 June 2005 a restraining order was made in relation to property at 22 Yellow Gum Road, Delahey, in which Mr Filipovic is registered as having an interest with his mother, Mrs Spiroksa.[43] Mrs Spiroksa has made an application for an exclusion order in which she deposes that:

·In about 1990, when Mr Filipovic was 17 years old, she purchased a property at 10 McRae Street, St Albans. Both she and her son were on the title, but they agreed that it would be her property and that it would pass to him on her death. Her son lived with her on the property and Mrs Spiroska made the mortgage payments and paid rates and other expenses on the property. In 1997 she decided to sell the property;
·The property at Yellow Gum Road was purchased on or about 29 October 1997 by Mrs Spiroska and her son for approximately $125,000. The purchase was funded by a $77,000 loan from the Commonwealth Bank and the proceeds of sale of the St Albans property. Between 1990 and 2006 Mrs Spiroska worked part time at a restaurant. A statement of her earnings during that period was attached to her affidavit;
·Mr Filipovic was on the title because he assisted Mrs Spiroska to get a loan and because it was intended that he would inherit the property. He was not in control of the McRae Street property, or the property at 22 Yellow Gum Road, Delahey, or of Mrs Spiroska’s interest in these properties;
·Mr Filipovic lived at the property with his mother until he was taken into custody. From the time her son turned 18 he paid her board of between $150–$200 per week; and
·The property was not used in connection with the cultivation of cannabis and none of the moneys used to purchase it came from any illegal activities. To the best of Mrs Spiroska’s knowledge, the board paid by Mr Filipovic was not derived from the growing of cannabis.

[43]The evidence does not indicate whether he is registered as a joint tenant or a tenant in common with his mother.

In an affidavit sworn on 22 August 2007, the applicant adopted the truth and correctness of his mother’s affidavit. Counsel has been advised by the solicitors for Mrs Spiroksa that no opposing affidavit material had been filed by the OPP and that Mrs Spiroksa’s application is presently listed to be heard in March 2008.

It appears that the presumption of advancement would apply to the share of the property which Mrs Spiroksa purchased on her son’s behalf, in the absence of evidence that she had a contrary intention. For that reason Mr Filipovic is entitled to a half interest in the property in equity as well as at law, unless the presumption of advancement is rebutted.[44] Mrs Spiroska’s affidavit deposes that she intended to retain an equitable interest in the property during her life-time, but not after her death. Mr Filipovic’s affidavit deposes that his mother’s affidavit is true and correct. It therefore seems highly likely that Mrs Spiroska will succeed in her application to exclude her undivided share in the property,[45] and possibly the whole of the property during her life-time.
[44]HAJ Ford and WA Lee Principles of the Law of Trusts (2^nd ed, 1990) [2118]. The presumption of advancement applies to a gift by a mother, where the mother is in loco parentis to the child: Nelson v Nelson (1995) 184 CLR 538.
[45]See DPP v Le [2007] HCA 52.

Although Mrs Spiroska has applied for an exclusion order, Mr Filipovic has not done so. Counsel for Mr Filipovic submitted that the County Court might not accept that the property was wholly owned by Mrs Spiroska. There was therefore a risk that any interest of the applicant in that property would be automatically forfeited, which was a relevant factor in re-sentencing him. Counsel also contended that the Court should take account of the applicant’s concern and anxiety about his mother’s interest in the property being placed in jeopardy as the result of his offending.

Counsel for the DPP submitted that s 5(2A) of the Sentencing Act1991 was inapplicable because it applied only to property owned by the offender. Here the offender had admitted that he did not own the property and even if this was not the case the property was unlikely to be forfeited.

It was also said that the Court could not take account of Mr Filipovic’s anxiety that his mother would lose her property because the Court could only take account of hardship to a relative in exceptional circumstances. [46]
[46]R v Carmody (1998) 100 A Crim R 41; R v Yates (1998) 99 A Crim R 483; R v Holland (2002) 134 A Crim R 451.

In my opinion there is ‘credible material’ identifying the source of the property, so as to permit the sentencing judge to form a positive conclusion that at least some substantial portion of the property has been lawfully acquired. I consider that Mrs Spiroska is likely to succeed in her application to have her interest in the property excluded but it is not clear whether she will be held to be entitled to the whole of the property or only an undivided half share for her life. Thus there is some minimal risk that Mr Filipovic’s half share as registered proprietor will be automatically forfeited.

As in the case of Mr Gelevski, I have given some minor weight to this matter, however I have not treated Mr Filipovic’s anxiety about the position of his mother as a mitigating factor.

Mr Filipovic is somewhat older than his co-offender. Like Mr Gelevski he has a stable work history and has now refrained from drug use for a significant period. Although I consider he has good prospects of rehabilitation, it is necessary to give some weight to both specific and general deterrence in re-sentencing him.

Having regard to the above matters, the relevant matters I have referred to in the context of re-sentencing Mr Gelevski, and to the question of parity between the applicants, in particular the fact that Mr Filipovic, unlike Mr Gelevski, does not have

any prior convictions for drug offences,[47] I would re-sentence Mr Filipovic as
[47]See paras [86] and [98] above. It was conceded by the Crown that the failure of the learned sentencing judge erred by failing to treat the applicants differently as a result of Mr Gelevski’s prior conviction for drug trafficking.

follows:
·Cultivation of a narcotic (namely cannabis L) in a quantity not less than commercial quantity (count 1) — two years and one month imprisonment.
·Theft of electricity from Origin Energy (count 3) — six months’ imprisonment.
·Intentionally and without lawful excuse damaging property (count 4) — three months’ imprisonment.

I would order that three months of the sentence imposed on count 3 be served cumulatively on the sentence imposed on count 1, resulting in a total effective sentence of two years and four months’ imprisonment. I would impose a non-parole period of 13 months.

KELLAM JA:

I have had the advantage of reading the judgment of Neave JA in draft and I adopt her summary of the facts and her summary of the issues on appeal. I respectfully agree with her conclusions as to grounds 1, 3 and 4 of the appeal for the reasons as stated by her.

However, ground 2 has caused me some concern. As is conceded by the respondent, no separate consideration direction as to separate counts was given by the trial judge. There can be no doubt that it was necessary for such a direction to be given. As King CJ said in R v Schlaefer: [48]
[48](1984) 37 SASR 207, 210.

No application was made for the charges to be separately tried and they were tried together. This situation called for a clear direction to the jury as to the use, if any, which they could make of evidence of guilt of each offence charged in considering the charges of the other offences. There has been judicial emphasis of the highest level in recent years on the real risk of prejudice to an accused person who is tried at the same time for more than one offence and of the necessity to avoid such prejudice: DPP v Boardman [1975] AC 421 … per Lord Hailsham at 452 and per Lord Cross at 458; Sutton v R (1984) 51 ALR 435 … per Gibbs CJ, Murphy J and Brennan J. Where on a

trial of an accused person on more than charge, the evidence in support of each charge is not admissible in proof of the others, there is need of a clear direction of the jury to guard against the risk of impermissible prejudice: Sutton v R per Brennan J. If the evidence in support of each charge is admissible in proof of the others, an appropriate direction as to the permissible and impermissible uses of similar fact evidence is needed.

As Gleeson CJ said in R v Mitchell: [49]

The directions given about considering the charges separately and returning separate verdicts are standard directions given in any case where there is more than one charge against an accused person.

[49](Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Cole JA and Sperling J 5 April 1995) 5.

Whilst it is true in this case that the evidence upon which the prosecution relied in relation to count 1 was the same as the evidence upon which it relied as to count 2, nevertheless it was necessary that the jury be clear as to its obligation to consider each count separately, and not to use any conclusion that the applicants or one or other of them might be guilty of one count as evidence of guilt on the other count.

In this case the evidence which was relied upon by the prosecution to support the inference that the applicants intended to cultivate a commercial quantity of marijuana (Count 1) was precisely the same evidence as that relied upon to support the inference that the marijuana was in their possession for the purposes of sale (Count 2). There was thus no possibility that evidence which related to one count could be used impermissibly to support a conviction on another count. The question then arises as to whether there was any risk that, in the absence of a separate consideration direction, the jury might have reasoned that because they were satisfied beyond reasonable doubt that the accused had committed one offence, they must be considered guilty of the further offence. In this case the necessary state of mind to support a conviction on count 1 was entirely different from the state of mind

required to support a conviction on count 2. The trial judge gave directions to the jury as to the elements of each offence, the subject of counts 1 and 2. Those

directions made it clear that a different mental element applied in the consideration of each such count. In such circumstances, I do not conclude that the omission on the part of the trial judge to direct the jury that each count was to be considered separately may have affected the verdict. In the circumstances of this case where the evidence upon each count was identical, but where the inferences required to be drawn as to the mens rea were entirely different, it does not appear to me that there was any realistic danger that the jury, having been properly directed as to those differences, would have used impermissible reasoning in coming to their verdict. Accordingly I do not conclude that there has been a miscarriage of justice in this case.

As stated by Neave JA, it is conceded by the respondent that convictions on both count 1 and count 2 cannot be maintained by reason of the fact that each count relied upon the same act or omissions of the applicants. Accordingly it is necessary to re-sentence each applicant. I respectfully agree with the sentence proposed by the learned presiding judge. In particular I agree with the conclusions she has reached as to the allowance to be made for the risk of automatic forfeiture of property in each case.

CURTAIN AJA:

Both applicants were convicted by jury verdict of cultivating a narcotic plant, namely cannabis L, in not less than a commercial quantity (count 1) and trafficking in a drug of dependence, namely cannabis L (count 2). At the commencement of the trial they each indicated that they would plead guilty to cultivating a narcotic plant (as an alternative to Count 1), theft and criminal damage.

It is not disputed that each applicant had been involved in the cultivation of the cannabis. Their respective defence to count 1 was that they each lacked the requisite mens rea, that is, essentially that they did not have any knowledge of the weight of the cannabis cultivated; their respective defence in respect of count 2 was

that the cannabis was for personal use. The sole issue in dispute was whether the Crown could prove beyond reasonable doubt the intention of each accused relevant to each count.

The trial was a short one of two days’ duration. The evidence was short and the issue in respect of both counts was the relevant intention. Both applicants gave sworn evidence. His Honour directed the jury as to how the Crown put its case and the defence of each of the applicants. Complaint is made because his Honour, in encapsulating the position of each of the applicants, stated that their defence was that they grew the cannabis for personal use. That was not the defence of either of them to count 1, but in my view, of itself, it did the applicants’ defence no harm because their respective defence was compendiously, if I may paraphrase it, “I did not know how much was growing because I was growing it for my personal use”. That this was the defence generally would have been apparent to the jury, as that was the way in which both applicants had conducted their defence.

His Honour gave a separate trial direction which was fashioned by the dictates of the trial, it not being disputed that the verdicts against each accused would, in the circumstances of the case, be the same. His Honour, however, did not direct the jury that they should give a separate consideration to each count and act only upon the evidence admissible in respect of each applicant in respect of each count. In my view, the direction should have been given, and it is no answer to say that its omission did not lead to a risk of a miscarriage of justice.

The failure to give a separate consideration direction was compounded by the way in which his Honour described the intention required to prove count 1. His Honour, on a number of instances in the charge, described it as an intention to cultivate a quantity of plants; it is not. It is an intention to cultivate not less than a commercial quantity which is defined by either weight or by a hundred plants. This, coupled with the description of the applicants’ respective defences as growing the cannabis for personal use, did tend to meld the two distinct intentions required to found counts 1 and 2, so that the jury may well have been misled into thinking that their verdict on one count necessitated the verdict on the other.

Whilst the Crown case against both applicants was the same in that it did not attribute a discrete role to either of them, the Crown nonetheless had to prove each of the elements of each of the offences against each of the applicants. The verdict in one count did not necessarily logically dictate the verdict in the other. It is possible that the jury may have been satisfied, in the case of each or either applicant, that he intended to cultivate more than a commercial quantity, but nonetheless were not satisfied that the respective applicant had it in his possession for sale.

In circumstances where both applicants had given sworn evidence and their evidence had been criticised by the prosecutor as tailored, and where such criticism was not addressed in his Honour’s charge other than to refer to the prosecutor’s comments and where his Honour directed the jury in the following terms:

To prove trafficking, the Crown must establish beyond reasonable doubt that the accused had this quantity of drug in their possession for sale. I do not think I need say any more about that… the Crown rely on the fact of the circumstances of the possession, to point to the fact that this was a crop that was cultivated for the purposes of a business transaction.

Further, where his Honour referred to the defence of each applicant to each count in compendious terms, but where the jury were required to be satisfied as to the different intention in respect of each count, it was necessary for the jury to be directed to consider each count and the evidence pertaining to it, separately, even though the evidence the Crown relied upon in respect of both counts was the one body of evidence.

Failure to direct the jury to treat each Count separately, fails to ensure that the jury understood as far as possible, the correct application of the legal principles in the circumstances and therefore that they were able to apply them in the deliberation process, a process that cannot otherwise be monitored for the purpose of safeguarding a fair trial to the accused.

It is precisely because the jury are being asked to infer different intentions from the same evidence that they should be directed to give separate consideration to each count, and that the failure to so direct, in my view, gives rise to a very real risk that the jury would substitute the verdict in respect of one count for the verdict in respect of the other.

Each applicant is entitled, as is the Crown, to a separate consideration by the jury of each of the counts charged. It is not necessary, as stated earlier, that the same logic will dictate the verdict in each count. The jury should have been directed that it would be quite wrong to say that simply because they found one applicant guilty or not guilty of one count, that he must be guilty or not guilty of the other. The jury are traditionally directed that each count must be considered in light of the evidence which applies to it and that the jury must ask themselves, in respect of each count separately, as to whether the Crown has met the requisite proof.

In my view, it is just as necessary to give this direction where the evidence against both applicants in respect of both counts is the same because each applicant is entitled to a separate trial on each count, and such a direction alerts the jury to this imperative. It is even more so when two persons are on trial and the defence of each of them is in similar terms. The risk that the jury will regard the evidence and the issues globally and therefore requiring only general, as distinct from separate and specific consideration is great and not conducive to a fair trial of either of the applicants.

For these reasons I am satisfied that ground 2 is made out and accordingly I would allow the appeal in respect of each of the applicants, I therefore have nothing to say in respect of the appeals against sentence.

[2008] VSCA 14

15 February 2008