R v Perfili
[2001] VSCA 125
•25 July 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 24 of 2001
| THE QUEEN |
| v. |
| MARIO PERFILI |
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JUDGES: | BROOKING, ORMISTON and PHILLIPS, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 July 2001 | |
DATE OF JUDGMENT: | 25 July 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 125 | |
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CRIMINAL LAW - Sentence - Cultivation of narcotic plant (cannabis L) - Prohibited person possessing firearm.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D.McArdle,Q.C. | Solicitor for Public Prosecutions |
| For the Applicant | Mr G.J. Traczyk (pro bono) |
BROOKING, J.A.:
After a contested committal, Mario Perfili came before the County Court last May on a three-count presentment, the main count alleging trafficking in a drug of dependence (cannabis L). After extensive discussions the matter was, six months later, resolved into a plea, and on 9 February he pleaded guilty to a new presentment containing one count of cultivation of a narcotic plant and one count of being a prohibited person in possession of a 12-gauge double-barrelled shotgun, which had been found together with 21 cartridges in a van which he had used to transport cannabis. He was a prohibited person because he had been previously sentenced to imprisonment. The shotgun was not registered and he did not hold a shooter's licence.
Perfili was the tenant of two-storey factory premises in Coburg North. He was not working and had not worked since 1991 and was in receipt of a Commonwealth disability support pension. A search warrant was executed at those premises on 29 March 1999. In view of the judge's findings and the grounds of appeal, I do not propose to summarise at any length the evidence of what the police found. Suffice it to say that there were large quantities of cannabis in various states of drying in different rooms on both levels of the factory, including a room equipped with heat lamps for use in drying, and also what might be called a cutting room with a table and chairs, five pairs of scissors and boxes of trimmed cannabis That room also contained a vacuum sealing machine and a vacuum sealed plastic bag of cannabis. An electronic set of scales was also found at the factory. The total weight of cannabis seized from the factory was about 24 kilograms.
Shortly afterwards the police executed another search warrant at the home of Perfili and found there, in addition to a van containing the shotgun, a plastic bag of cannabis and a large quantity of shrink wrapping plastic, two paper bags of cannabis in the garage together with several bags of hydroponics wool, two bags of hydroponics mix, one set of scales and a box containing rubber gloves and electric lights. The total weight of the cannabis at the home was about 250 grams.
Perfili told the police that all the cannabis was for his own use and that he had cultivated about twelve cannabis plants at an unknown location - unknown, that is, to the police - near the Calder Highway, somewhere between Kilmore and Bendigo, and had removed about ten plants three days before the raid and taken them to his factory for drying out.
The main question for determination by the judge was whether Perfili had shown on the balance of probabilities that the cultivation was not for any purpose related to trafficking, so as to reduce greatly the maximum penalty available. The depositional material was supplemented by oral evidence called for Perfili, including his own evidence, but he failed to succeed on that issue, the judge disbelieving him, and no point is now made, or ever has been made, of this. The judge, having, as I have said, rejected the prisoner's evidence, was only prepared to find that, the prisoner being a long-term user of cannabis, some of the cannabis found was intended for his own use. On the judge's unchallenged finding on the main issue, the maximum penalty for the cultivation offence was 15 years' imprisonment. The maximum penalty for the firearms offence was 7 years' imprisonment.
The judge described the cultivation as very much towards the lower end of the scale and sentenced Perfili to 18 months' imprisonment for cultivation and four months for possession of the firearm, allowed both sentences to be served concurrently, giving a total effective sentence of 18 months, and suspended nine months of the sentence for two years.
Application for leave to appeal against sentence was made by a notice alleging four grounds, two only of which need be mentioned since the other two are no longer relied upon. The first presently relevant ground is manifest excess, and the second is that the judge gave too much weight to the applicant's prior criminal history. Chernov, J.A. on 4 May dismissed an application for leave to appeal, entertained under s.582 of the Crimes Act, giving quite extensive reasons for doing so.
The applicant was aged 56 at the time of the offences and 58 at the time of sentence. His background is dealt with in a report from a clinical psychologist, Mr Healey, and the judge's reasons for sentence, and need not be summarised now. Mention should, however, be made of his prior convictions, which number seven, together with two findings of guilt, sustained on six occasions between 1972 and January 1998. Some of these are much more important than others, but none of them is irrelevant, for, taken together, they show a disregard for the law over many years. The applicant was given a short and wholly suspended sentence of imprisonment in 1991 and a three-year sentence of imprisonment in 1995 for conspiracy to import or export wildlife without a permit, that sentence being suspended as to two years. In January 1998 the applicant was convicted in the Magistrates' Court of three offences concerning cannabis - cultivation, possession and use - and fined an aggregate sum of $3,000 on all charges. It is to this conviction that the second, so to speak, surviving ground (ground 4) as argued relates.
For the applicant, Mr Traczyk has argued those two grounds, as I have said. He has not found it necessary to pursue an application to amend the grounds by adding a ground dealing more specifically with the matter which I have just mentioned.
As regards ground 1, manifest excess, the real point sought to be made by counsel concerns the quantity of cannabis. Counsel refers to the judge's remark, which I mentioned earlier, describing the cultivation as very much towards the lower end of the scale, and to the judge's finding that some of the cannabis was for the applicant's own use. A sentence of 18 months' imprisonment for the cultivation, albeit suspended as to nine months, was, it was argued, manifestly too severe having regard to the quantity. But it was well open to the judge to pass the sentence which he did, notwithstanding the quantity, in all the circumstances of this case, which of course included in particular the applicant's previous convictions.
It has not been argued, as regards ground 4, that the judge was wrong in having regard to the prior convictions generally. (I might say for myself that I think
they were to be given a good deal of weight, and a question arises as to whether the judge gave enough weight to them.) Ground 4 as argued concerns only the prior conviction for cultivation of cannabis, sustained in January 1998. In the course of argument the judge described this conviction as "particularly relevant" and, indeed, as "devastating". Thereupon, counsel then appearing for the applicant in effect suggested that the 1998 conviction showed that the applicant was a large-scale user of cannabis, and so sought to make use of that conviction by implicitly submitting that it was a conviction on the basis of cultivation simply for one's own use. In his reasons for sentence his Honour referred to the prior convictions generally, and referred to one of them, apparently that of the three-year sentence suspended as to two years for conspiracy, as a conviction "for an unrelated offence", and then referred to the cultivation conviction of 1998 as "a relevant prior conviction". The submission is that the judge erred in that he assumed that the 1998 conviction was for cultivation where the defendant had failed to show that it was not for any purpose relating to trafficking. I do not think his Honour made any such assumption. I would not have expected any such assumption. The aggregate penalty imposed in 1998 for the three offences would have suggested to his Honour that the defendant had discharged the onus. In any event, I agree with Chernov, J.A. that all the judge was saying in passing sentence was that a prior conviction for cultivating cannabis is of particular significance where a person is to be sentenced for cultivating cannabis, and that it was important that a recent prior conviction of cultivation had, as the judge went on to say in terms, done nothing to deter the applicant from committing the same offence little more than a year later.
Although the application in form relates also to the firearms offence sentence, no attempt has been made in argument to disturb it. I may say that if I had been sentencing the applicant I would have considered a more severe sentence in respect of it and, in particular, have considered making, and made, an order for at least partial cumulation. It is not to be thought that a firearm offence of this kind is to be
viewed, not seriously, but rather as a "legitimate" or normal protective incident of cultivation, or, for that matter, trafficking.
I think it is clear that we must dismiss this application.
ORMISTON, J.A.:
I entirely agree.
PHILLIPS, J.A.:
I agree also. I think for myself that the sentence imposed was on the light side. As argued, the two grounds that survived came down to this: the sentence was so high as to be justified only if the judge made an assumption that the previous conviction for cultivation was not for own use and that that assumption was wrong. In my opinion it was not shown that the judge made any such assumption, and there is nothing, therefore, in either ground.
BROOKING, J.A.:
The application is dismissed.
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