R v McCulloch

[2009] VSCA 151

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 705 of 2007

THE QUEEN

v

ANDREW DAVID McCULLOCH

JUDGES:	BUCHANAN and VINCENT JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 June 2009
DATE OF JUDGMENT:	18 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 151
JUDGMENT APPEALED FROM:	R v Andrew David McCulloch (Unreported County Court of Victoria, Judge Jenkins, 18 June 2007)

---

Criminal law – Sentence – Cultivation of cannabis and theft of electricity – Finding by sentencing judge that offender cultivated cannabis for sale not open on the evidence – Offender re-sentenced to be imprisoned for a term of two years and six months with a minimum term of 21 months.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Victoria Legal Aid

BUCHANAN JA:

1. The appellant was arraigned in the County Court and pleaded guilty to a presentment containing a count of cultivating not less than a commercial quantity of cannabis (count 1) and a count of theft of electricity (count 2).  After a plea, the appellant was sentenced to be imprisoned for a term of three years and six months on the count of cultivation of a commercial quantity of cannabis and for a term of six months on the count of theft.  The sentencing judge ordered that three months of the sentence on the count of theft be served cumulatively upon the sentence on the count of cultivation, creating a total effective sentence of three years and nine months' imprisonment.  It was ordered that the appellant serve a term of two years and six months' imprisonment before he was to be eligible for parole.

1. The appellant has been granted leave to appeal against his sentence on a number of grounds. 

1. On 21 July 2006, police searched a property at Kyneton at which the appellant resided.  In a room in a large commercial shed on the property, the police found a glass-fronted box containing a heating lamp and 11 small cannabis seedlings.  In another room the police found five mature cannabis plants in tubs.  The walls and ceiling of the room were lined with plastic sheets and the plants were illuminated by five large lights and ministered to by a watering system.  The room was fitted with extraction fans.  In another room there were a further five mature cannabis plants, again illuminated by large globes, with a watering system controlled by timers.  In the house the police found a quantity of dried cannabis plants and dried cannabis leaf, the cannabis weighing in all a total of 30.611 kilograms.

1. The appellant has attained the age of 48 years.  He was adopted as a baby and has a close relationship with both of his adoptive parents.  The appellant left school at the end of year 10 and then completed a four-year apprenticeship as an electrician.  The appellant has worked as an electrician, in steelworks and as a crowd controller.  For the last ten years the appellant has been engaged in buying and selling antiques and collectable objects.  When he was 15 years of age the appellant sustained major injuries in a motor car accident.  He has chronic pain in his lower back and a stomach condition which may be the result of an ulcer. 

1. The appellant had 18 prior convictions from eight court appearances.  Of particular relevance were two convictions for trafficking in amphetamine, a conviction for cultivation of cannabis, a conviction for trafficking in cannabis, and three convictions for possession of cannabis. 

1. The appellant commenced drinking alcohol in his mid-teens and became a heavy drinker by the time he had reached 20 years, although at the plea it was claimed that he drank only in limited quantities.  The appellant commenced smoking cannabis in his mid-teens and has been a chronic daily cannabis smoker since then, consuming up to seven or eight grams of cannabis each day. 

1. The appellant formed a de facto relationship with a woman which lasted for some 20 years and produced three children.  The appellant remains in contact with his de facto wife and his children. 

1. A report by a psychologist was tendered in the course of the plea.  The psychologist was of the opinion that the appellant suffered from depression.  He said: 

In my opinion it is inevitable there would have been interactive effects between his chronic cannabis use and the depressive symptomology as cannabis itself triggers and promotes depressive symptomology.  He will most probably require the prescription of antidepressant medication and may even require antidepressant medication on a long-term basis in order to remain drug free.

1. In the course of the plea a large number of character references were provided by friends and neighbours of the appellant, who said that he was kind, courteous, hard working and reliable, with a commitment to the local community exemplified by the performance of voluntary work. 

1. It is necessary to refer to only one of the grounds of appeal, namely, that the sentencing judge erred in finding that the appellant was engaged in a commercial operation.  The sentencing judge said:

On any objective measure, the size and nature of your hydroponic cultivation was a commercial operation and I am satisfied beyond reasonable doubt that the only reasonable inference to be drawn from the objective features is that you did engage in cultivation not merely for personal use.

The objective matters which the sentencing judge mentioned were:  the fact that the cannabis seized by the police weighed more than 30.6 kilograms, valued at between $217,878 and $347,112;  the presence of mechanical scales in the appellant's house;  the fact that the premises were enclosed by a boundary fence consisting of Cyclone fencing eight feet in height on two sides, with six-feet wooden fencing on another side and buildings making up the fourth side;  the extensive hydroponic equipment;  and the presence of a television security monitor giving a continuous display of the area outside the shed.

1. Counsel for the appellant submitted to the sentencing judge that the appellant grew the cannabis for his own use and not for the purpose of sale.  He said that the appellant was 'a long-term user' who wished to smoke the flowering heads of the plants as they contained 'the highest concentration of the active ingredient', and accordingly he was not interested in the leaves and the rest of the plants.  The prosecutor did not take issue with these assertions.  That is hardly surprising, for the Crown withdrew a charge of trafficking in cannabis.

1. In my opinion, the sentencing judge erred in that the evidence did not permit a finding beyond reasonable doubt that the appellant was engaged in a commercial operation, that is, cultivation of cannabis for sale.  None of the circumstances relied upon by the sentencing judge, either individually or collectively, compelled the conclusion that the appellant was growing cannabis for sale.  There was a reasonable explanation for each of the circumstances relied upon by the sentencing judge.  The level of security was due to the appellant's desire to protect his crop and did not necessarily connote commercial ambition.  The sophistication of the electrical and hydroponic equipment was due to the appellant's training as an electrician.  The scales, which were not electronic scales, were explained by the appellant's interest and trade in antiques.  There was a relatively small number of plants, cultivated for their flowering heads alone.  There was room in the shed for a far larger crop.  The appellant was a chronic user of cannabis and was said to be an enthusiastic gardener.  There was not a scintilla of evidence of any commercial transactions, or of the materials usually associated with trafficking, such as electronic scales, packaging, customer lists or trappings indicating material wealth. 

1. For the foregoing reasons, I consider that the finding that the crop was cultivated for sale was not open to the sentencing judge.  The error clearly had a significant effect upon the sentencing process, and I am of the view that a different sentence should have been passed. 

1. I would re-sentence the appellant to be imprisoned for a term of two years and three months on count 1 and for a term of six months on count 2.  I would cumulate three months of the sentence on count 2 on the sentence on count 1.  The total effective sentence is two years and six months' imprisonment.  I would fix a minimum term of 21 months' imprisonment before the appellant is to be eligible for parole.

VINCENT JA:

1. I agree.

COGHLAN AJA:

1. I also agree.

BUCHANAN JA:

1. The orders of the Court will be as follows:

   The appeal is allowed.

   The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of two years and three months on count 1 and for a term of six months on count 2.

   It is ordered that three months of the sentence on count 2 be cumulated on the sentence on count 1, producing a total effective sentence of two years and six months' imprisonment.
   It is ordered that the appellant serve a minimum term of 21 months' imprisonment before he is to be eligible for parole.
   It is declared that a period of 752 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.
   The sentence passed on the summary offence is confirmed.
   The compensation order made by the court below is confirmed.

---