R v Hartog

[2000] VSCA 133

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No.212 of 1999

THE QUEEN

v

PHILIP BRUCE HARTOG

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JUDGES:	PHILLIPS, CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2000
DATE OF JUDGMENT:	18 July 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 133

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Criminal law - Sentence - Cultivating a commercial quantity of cannabis - Whether the likelihood of the commission of further crimes was taken into account - Whether cultivation of cannabis is to be equated with dealing in heroin - Sentence manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Miss L. Lieder, Q.C.	Lewenberg & Lewenberg

PHILLIPS, J.A.:

1. I will ask Buchanan, J.A. to deliver the first judgment.

BUCHANAN, J.A.:

1. The appellant pleaded guilty in the County Court to one count of cultivating a commercial quantity of cannabis contrary to the provisions of s.72(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 and to one count of theft contrary to s.74 of the Crimes Act 1958. On 13 September 1999 the appellant was sentenced to seven years' imprisonment on the charge of cultivation and to six months' imprisonment on the charge of theft. The terms were to be served concurrently. A non-parole period of four years and three months was fixed.

1. The offences were discovered on 21 April 1999 when police executed a search warrant upon residential premises in Boronia owned by the appellant's wife.  The premises were split level, with the front door giving access to the upper section of the house.  This area was equipped as a residence.  Upon conducting a search investigators found a concealed manhole cut into the floor of a bedroom cupboard.  The hole gave access via a ladder to the lower section of the house, a substantial area divided into four rooms.  The four concealed rooms were stocked fully with cannabis plants at various stages of maturity, growing in plastic buckets, with the assistance of a substantial and sophisticated lighting and ventilation system.  The lower section of the premises contained 400 marijuana plants in two stages of growth:  221 seedlings and 179 mature plants.  Hanging from the ceilings in each chamber were high wattage "grow lights", shielded by wide diameter "grow shades".  These lights were connected to timers and the temperature in the rooms was monitored by sophisticated electronic equipment.  A complicated exhaust system was also installed.  Its tubing drew fumes from the various growing locations.  The tubing passed through the floor, behind a false back in the cupboard in the upper level bedroom, and led into the roof cavity, where a charcoal filter had been installed.  The watering of the crop was provided for by the installation of a tank and pump.  Various supplies were found in purpose-built shelving and lockable cupboards.  Further investigation by officers of the electricity provider revealed that the concealed installations were powered by an illegal mains conductor which by-passed the installed meter.  The agreed value of the power stolen by this bypass was $2,977.80.  The plants seized that day were later examined by a botanist employed by the Victoria Forensic Science Centre.  He projected the head and leaf yield of the mature plants to give a total crop weight of 25.6 kilograms.  The sentencing judge accepted evidence that the crop, if realised by a producer in the appellant's position, was worth between $100,000 and $200,000.  He found that sold at street level in gram lots, the crop was worth in excess of half a million dollars.

1. The appellant is 32 years of age.  He has ten prior convictions.  In 1982 he was placed on a good behaviour bond on charges of burglary, stealing and damaging property.  In 1989 he was fined a small amount for possession of cannabis.  The other prior convictions were for traffic offences.

1. The appellant was born in Hobart.  His parents were religious.  The appellant attended a calvinist school.  He rebelled against his parents in his mid-teens.  He questioned their religion, began using marijuana and alcohol and, although academically bright, left school to become an apprentice electrician.  His use of marijuana developed from a sign of rebellion into what the psychologist Mr Joblin has described as "a serious psychological dependence".  The appellant was perpetually under the influence of the drug in order to cope with life.

1. The appellant married a computer consultant in 1997.  She dislikes his use of marijuana but has not withdrawn her support from him.  Mr Joblin concluded:

"The fundamentals of rehabilitation and therefore, of an optimistic prognosis are present in this case including his intelligence, insight, support and professional assistance.  He has the support of his siblings and wife and basically given a continuation of the rehabilitative efforts he is currently undertaking and intends to continue at liberty, the future for this man must be optimistic."

1. Leave to appeal against the sentence was granted by the President pursuant to s.582 of the Crimes Act.  By amended grounds of appeal the appellant complains of specific error in the sentencing process and that the sentence was manifestly excessive.

1. The appellant's counsel submitted that there were two principal specific errors.  The first was that the sentencing judge erred in taking into account the prospect of the appellant committing offences in the future.  In the course of his sentencing remarks the sentencing judge said that the production facility showed "a considerable degree of permanency and sophistication", and he continued:

"I find it most unlikely that this expensive and            sophisticated set-up would be removed immediately after the sale of the first crop."

After sentencing the appellant, the judge said:

"I note in passing that the sophisticated arrangement prepared by Hartog had an appearance of permanency.  I have little doubt the same would not have been dismantled had this crop been successfully grown and sold and money received.  The temptation to continue growing further crops would have been overwhelming to a man in intermittent employment who just earned in excess of $100,000 out of a single crop."

1. Future crops would normally have required cultivation of new plants and accordingly would have resulted in the commission of fresh offences.  Further, the charge against the appellant was that he cultivated the plants between certain dates.  It appears to me that his Honour may well have been influenced in determining the sentence that he imposed by his view that the appellant was likely to commit further crimes, rather than simply remarking upon the prospect as a matter of interest. 

1. The second specific error complained of on behalf of the appellant which is not effectively a particular of the error of manifest excess is that the sentencing judge proceeded upon the basis that the cultivation of cannabis was as serious an offence as the introduction of heroin to the community.  The appellant's counsel conceded that cannabis was a harmful drug, but submitted that the harm which it caused differed from and in certain respects was less than the harm caused by heroin. 

1. In the course of the plea the sentencing judge said:

"Well, you might say that cannabis is not as bad as heroin.  I don't agree with you.  This is a very clear indication as to why it's just as bad.  It may not kill you but it certainly deals with - it kills you emotionally and socially and work wise."

1. In his reasons for sentence the judge referred to the decision of this Court in R. v. Berisha[1].  That was a case concerned with trafficking in heroin.  The sentencing judge mentioned that fact and may have referred to the decision only for the statements contained in it which are applicable generally to drugs of addiction and of dependence.  However, his Honour's earlier remarks leave me in some doubt as to whether he did not consider cannabis as the same as heroin in all respects.  That is not so.  The different drugs cause harm in different ways and in different degrees. 

   [1][1999] VSCA 112.

1. Be that as it may, I am of the view that this sentence was manifestly excessive.  Even taking into account the imposition in 1998 of a statutory maximum for cultivation of a commercial crop of cannabis of 25 years, the sentence imposed on the appellant was well beyond the sentences imposed for like offences.  I refer by way of example to the decisions` of this Court in R. v. Harrison[2]; R. v. Pavlovski[3]; R. v. Spirakos[4]; R. v. Tinti[5].

   [2][1997] VSCA 57.

   [3][1998] VSCA 70.

   [4][1998] VSCA 44.

   [5][1999] VSCA 220.

1. I am mindful of the forethought and planning that the appellant invested in an elaborate criminal enterprise that would have released a large quantity of a harmful drug into the community.  I also take into account the facts that his prior convictions are only of marginal relevance to these offences, that the bringing of the charges appears to have led to a profound change in his attitude to marijuana, that he has insight into the condition that has brought him to this pass, and that he has the support of his family and is regarded by a forensic psychologist as being a good candidate for rehabilitation.

1. I would re-sentence the appellant to a term of three years and three months' imprisonment on the charge of cultivation and to a term of six months' imprisonment on the charge of theft, with three months of that sentence to be cumulated on the sentence imposed in respect of the charge of cultivation.  I would fix a minimum term of two years before the appellant is to be eligible for parole.

PHILLIPS, J.A.:

1. I agree that this appeal succeeds for the reason that the sentences imposed below were manifestly excessive, as Buchanan, J.A. has just said, and I agree with the re-sentencing disposition that his Honour has proposed.

CHARLES, J.A.:

1. I also agree.

PHILLIPS, J.A.:

1. The orders of the Court therefore are as follows:

1.        Appeal allowed.

2.The sentences imposed in the County Court on 13 September 1999 are set aside and in lieu the appellant is sentenced as follows:

On count 1 he is sentenced to a term of imprisonment of three years and three months.

On count 2 he is sentenced to a term of imprisonment of six months, three months of that term to be served cumulatively on the sentence imposed on count 1.

The total effective sentence is therefore three years and six months, of which the appellant is to serve two years before becoming eligible for parole.

The appellant has spent 455 days in custody to this date, 18 July 2000, and it is declared pursuant to s.18 of the Sentencing Act 1991 that that period be reckoned as already served under the foregoing sentences. The Court directs that there be noted in the records of the Court the fact that that declaration has been made and its details.

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