R v Pulham
[2000] VSCA 17
•25 February 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 244 of 99
| THE QUEEN |
| v |
| KENNETH LACHLAN PULHAM |
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JUDGES: | WINNEKE, P., BATT, J.A. and HAMPEL, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 February, 2000 | |
DATE OF JUDGMENT: | 25 February, 2000 | |
MEDIA NEUTRAL CITATION: | [2000] VSCA 17 | |
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Criminal law – Sentencing – Cultivating of cannabis – Drugs, Poisons & Controlled Substances Act 1981, s.73(1)(b) - Parity where sentence on co-offender suspended - Two years’ imprisonment with 9 months non-parole period not manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mrs. C. Quin | P.C. Wood, Solicitor to the D.P.P. |
| For the Applicant | Mr. R. Melasecca | Melasecca Zayler |
WINNEKE, P.:
I agree with Batt, J.A.
BATT, J. A.:
I have had the benefit of reading in draft the reasons for judgment of Hampel, A.J.A. I gratefully adopt his Honour’s summary of the facts of the offences, the matters personal to the applicant and the co-accused, White, the grounds of appeal, and the factors and contentions in support of and against the grounds alleging want of parity in sentencing. I regret, however, that, for the reasons which follow, I am unable to share his Honour’s conclusion on that question.
Satisfaction under s.27(1) of the Sentencing Act 1991 as to the desirability in the circumstances of suspending, in whole or in part, a sentence of imprisonment that the sentencing judge has decided is appropriate is a matter peculiarly within the discretion of that judge. As that statement implies, there is a two-stage process in arriving at a suspended term of imprisonment[1].
[1]R. v. Jonceski (1991) 60 A.Crim.R. 189 at 193-194; and R. v. Groom [1999] 2 V.R. 159
A wholly suspended sentence of imprisonment is to be taken as a sentence of imprisonment for all relevant purposes: Sentencing Act, s.27(5); and it is to be treated as having deterrent effect[2]. It is not a mere exercise in leniency[3]. Nevertheless, there is a very substantial difference between a sentence of imprisonment for a given term and a sentence of imprisonment for that term which is wholly or largely suspended[4]. For all components of the sentence must be taken into account[5].
[2]D.P.P. v. Carter [1998] 1 V.R. 601 at 607-608
[3]R. v. Davey (1980) 2 A.Crim.R. 254 at 262
[4]cf. R. v. Haines (unreported, Court of Criminal Appeal, 7 June 1979) at pp.4-5; R. v. Dye (unreported, Court of Criminal Appeal, 6 December 1983) at pp.5-6; and R. v. Jonceski
[5]Postiglione v. The Queen (1997) 189 C.L.R. 295 at 302
In my view, for the purposes of considering the principle of parity, the applicant and White were co-offenders only in respect of the second count, even though his Honour for the purpose of determining whether the terms of imprisonment imposed upon the applicant on counts 1 and 2 should be cumulative or concurrent regarded the cultivation at Seville and that at Healesville “as part and parcel of the one criminal enterprise”. In other words, the parity principle is not to be applied as between the sentence imposed on the applicant on count 1 and the sentence imposed on White on count 2. As regards count 1, the sentence imposed on White on count 2 may only be used as some evidence suggesting that the sentence on count 1 is excessive.
With regard to count 2, the length of the terms imposed on the applicant and White recognised the lesser criminality of the applicant. No complaint of disparity can, in my view, properly be made on the ground of the length of the respective terms. To compare the sentences imposed on the two offenders in respect of count 2 more generally, it is true that the applicant was open and more co-operative with the police in his record of interview and that his health was poor. But, in my judgment, the disparity between the sentences which arises from the total suspension of White’s sentence of imprisonment is not, when considered objectively, such as would lead an independent observer to conclude that justice had not been done. The impressive employment history and trade reputation of White, and the powerful evidence of the steps which he had taken towards rehabilitating himself from the scourge of drugs, coupled with the fact that the overall criminality of the applicant was considerably greater than that of White, set White apart from the applicant and justified the disparity in sentencing. (The overall criminality of the offenders may, I think, be compared when considering their claims to suspension despite the basis on which his Honour approached the question of cumulation or concurrency.) In short, the desirability of totally suspending White’s sentence of imprisonment, of which his Honour was satisfied, was absent in the case of the applicant. Specific deterrence was an important sentencing object in his case.
Even if it were appropriate to compare the applicant’s sentence on count 1 with White’s sentence on count 2, I doubt that unjustified disparity is shown. The weight of the cannabis at Healesville was greater than that at Seville. I acknowledge, as Hampel, A.J.A. points out, that this is fortuitous since it arises, not from the number of plants at Healesville, but from their greater maturity. But at the time the legislation concerned itself with weight. Of more importance is the greater mitigatory effect which the judge was entitled to give to the factors personal to White than to those personal to the applicant. It is not to be overlooked that personal factors bear upon the head sentence as well as upon the non-parole period or other way than through parole in which the sentence is to be served. In expressing the view that White’s personal factors were weightier, I have borne in mind that White did not co-operate with the police in his interview, which means that there was not present in his case the mitigatory factor of early co-operation.
Similarly, if it were proper to compare the total effective sentences, I would be of the view that there was no unjustified disparity.
Before parting from the parity grounds I think it desirable to emphasize that, when two or more co-offenders stand for sentence before a judge, the judge should not be deterred by misplaced reference to the principle of parity from suspending a sentence of imprisonment upon one or more, but not all, of the co-offenders if the judge, in the exercise of the discretion that is peculiarly his or hers, is satisfied that suspension is desirable in the circumstances.
It is necessary for me to consider the other grounds. With regard to ground 5, his Honour’s remarks show that he was well aware of the delay which had elapsed since the commission of the offences and also was well aware of the applicant’s attempt at rehabilitation and of the state of his medical condition at the time of sentence. His Honour also knew that the applicant had not been involved in any subsequent criminality. His Honour gave weight to the passage of time and bore in mind the matters relied on as occurring during the intervening time. Whether his Honour gave sufficient weight properly falls to be considered under the remaining grounds, to which I now turn.
Ground 3 complains that the sentence on the first count is manifestly excessive having regard to the fact that the judge accepted that the predominant purpose of the cultivation of the crop at Healesville was for personal use. What his Honour actually said was that he was prepared to accept, even given the large volume of cannabis taken from Healesville in particular, that much of that cannabis was for the applicant’s own use and that the sentence he intended to impose reflected that finding. His Honour also accepted that the manner of cultivation lacked, perhaps, the element of sophistication or professionalism often found where large cannabis crops or plantations are concerned. But, in considering this ground and also ground 4, it is to be remembered that the applicant was unable to satisfy the sentencing judge on the balance of probabilities that the offence was not committed for any purpose related to trafficking and that the maximum custodial penalty was accordingly 15 years’ imprisonment. Parliament views seriously the offence when so committed, and the courts, including this Court, do likewise. Further, the crop in question was a substantial one. It may be that some of his Honour’s findings were very favourable to the applicant. But accepting them and making due allowance for all mitigatory factors, I am quite unpersuaded that the sentence on count 1 was manifestly excessive.
Ground 4 complains that the total sentence is manifestly excessive. Since his Honour took a rather favourable view to the applicant and directed no cumulation, the complaint must be directed against the head sentence and the non-parole period. The non-parole period itself is, no doubt for good reason, short if the total effective sentence is within the range open to the judge. Thus the question really comes back to the length of the head sentence on count 1, which I have already said is, in my view, not manifestly excessive. Looking at the total sentence overall, 2 years’ imprisonment with a non-parole period of 9 months, and bearing in mind the criminality revealed and the mitigatory factors, I am well satisfied that it is not manifestly excessive.
HAMPEL, A.J.A.:
The applicant, Kenneth Lachlan Pulham, pleaded guilty in the County Court to two counts of cultivation of a narcotic plant that is cannabis, and one count of possession of a drug of dependence also cannabis. The two cultivating counts each carried a maximum penalty of 15 years’ imprisonment or a fine of $100,000 or both. The count of possession carried a maximum of 5 years or a fine of $40,000 or both.
He now seeks leave to appeal against the total sentence of 2 years’ imprisonment with a non-parole period of 9 months imposed on 27 September 1999 and made up of 2 years on count one, 12 months on count two and 6 months on count three with no cumulation order.
Because two of the grounds in support of this application raise the issue of parity it is appropriate to note at this stage that the applicant was presented with a co-accused, Michael John White, who pleaded guilty to one count of cultivating cannabis (involving the same crop which was the subject of count 2 in relation to the applicant) and one count of possession (which related to the same drug the subject of count 3 in respect of the applicant). The co-accused was sentenced by the same Judge on the same day to be imprisoned on the count of cultivation for 18 months and on the count of possession to 6 months, making a total sentence of 18 months’ imprisonment. That sentence was wholly suspended for two and a half years.
The circumstances in which these offences were committed can be summarised briefly. The applicant owned two properties, one at Healesville and one at Seville. On the 21st of March 1997 the police attended at the Seville property. Growing on the 30 acre, orchard property there were in all 219 cannabis plants, the useable part of which, when dry, was up to about 7 kilograms. There was an irrigation system from a dam as well as bags of soil and nutrients. White was found in a tent on the plantation and was arrested. The applicant arrived at the property some hours later and was also arrested.
On the same day the applicant was present when the police examined his property at Healesville on which there was a house undergoing extensive renovations. On that property 151 plants in all were found with the applicant’s assistance, 65 inside a locked shed set up for cultivation and the balance on other parts of the property. These were more mature plants and the useable material from them when dried would have been up to 26 kilograms. The applicant gave the police full assistance at the scene and later made full admissions in a record of interview, accepting full responsibility for the Healesville plantation and accepting a role of an assistant in respect of the Seville plantation. Count 3, the common count of possession related to cannabis found at a house occupied by White with his family at which the applicant also lived at the time. It is to be noted that at the relevant time the legislation was concerned with the weight of the crop cultivated rather than with the number of plants grown.
The learned Judge accepted that the applicant and the co-accused were each heavy users of cannabis. Although each offender had to be sentenced on the basis that the cultivation was for the purposes of trafficking, His Honour accepted for the purpose of sentencing the applicant that despite the large volume of cannabis taken from Healesville much of that cannabis was for the applicant’s own use. His Honour proceeded on the basis that the Healesville plantation did not involve White and that in respect of the Seville plantation, although the applicant owned the land, White had the primary role in the cultivation.
As to matters personal to the applicant, the Judge accepted that the applicant who was 43 years of age, was the product of a dislocated background after the loss of his mother at the age of 10, had disrupted schooling and early in life turned to alcohol and marijuana. His Honour accepted counsel’s description of the applicant as leading a hand to mouth existence, a loner with cannabis as a focal part in his life-style. His relationships and his employment were spasmodic with little stability in his life. In 1985 the applicant was diagnosed with a medical condition known as PXE, a dermatological condition which is found in tissues affecting the skin, retina of the eyes and the cardiovascular system.
His Honour found that the applicant’s use of marijuana was partly in the form of self-medication. He accepted the evidence of Mr Lamberti, a rehabilitation consultant, that the applicant after his arrest was drug free for 6 months while attending Mr Lamberti but returned to regular use for self-medication. His Honour accepted Mr Lamberti’s description of the applicant as an isolated, depressed individual who behaved like a recluse who rejected society rather than one who displayed anti-social behaviour. His use of marijuana after the 6 months abstinence was less than previously and to alleviate pain. His Honour also concluded that both crops lacked the sophistication of professionalism and as to the Seville crop that the applicant allowed the use of his land and gave some assistance. Having referred to those matters, His Honour regarded the three counts as part of the one criminal enterprise and took into account the realistic pleas of guilty and the delay between the arrest in March 1997 and the hearing date in September 1999.
Nevertheless, His Honour considered that punishment, denunciation by the Court, as well as specific and particularly general deterrence were relevant sentencing considerations.
Five grounds of appeal were advanced in support of this application. Grounds 1 and 2 raised and particularised what is said to be disparity between the disposition between the two co-offenders. In support of these two grounds it was argued that despite the differences personal to each offender and despite the fact that White was not involved in the Healesville crop, the disparity in the sentences on count 2 and overall is so significant as to give rise to a justifiable sense of grievance by the applicant and would be so seen objectively. The focus of this argument was first on the sentence of 12 months on count 2 to be served by the applicant compared to the 18 months fully suspended sentence for White. Secondly the focus was on the comparison between the sentence of 2 years to be served by the applicant on count 1 with the 18 month sentence fully suspended for White on count 2. It was submitted that such a disparity is not justified despite the different mitigatory factors personal to White essentially because of:
i) the lesser role of the applicant in respect of the Seville plantation;
ii)his Honour’s finding that the Healesville crop was of poor quality and much of it was for the applicant’s own use;
iii)the greater co-operation by the applicant with the police and the admissions made both as to his own role and that of the co-accused;
iv)the degree of rehabilitation despite the continued use of some marijuana primarily for self-medication; and
v) the applicant’s health.
Ground 3 complained that the sentence on count 1 was in all the circumstances manifestly excessive given that the cultivation was primarily for personal use and given the lack of organised and professional attention to the crop.
Ground 4 alleged that the overall sentence passed on the applicant was manifestly excessive.
Under ground 5 it was contended that insufficient weight was given to the applicant’s medical condition which had worsened, to the delay since the commission of the offences and to the applicant’s significant rehabilitation.
It was, I think, rightly conceded before us, on behalf of the Crown that despite the provisions of the Sentencing Act which require the determination to impose a sentence of imprisonment before it can be suspended and despite the provisions which treat a suspended sentence as a sentence of imprisonment, regard is properly had to the fact that a sentence is suspended as distinct from a sentence to be served when the question of parity is considered. As the Chief Justice said in Q v Dye (unreported) as long ago as 6 December 1993 (at p. 6): “The difference between a sentence of imprisonment and a sentence of imprisonment which is permitted to be served at an attendance centre is a very substantial distinction indeed”. In the case of a suspended sentence, the offender is at liberty to live in the community whereas an offender who is not given that opportunity is completely and immediately deprived of his liberty. This view is consistent with what was said by Kirby J. in Q v Postiglione[6], when His Honour in effect equated unjustifiable disparity with the “badge of unfairness”, an expression used in Lowe v R[7].
[6]189 CLR 295 at 338.
[7](1984) 154 CLR 606 at 611.
It was, however, submitted on behalf of the Crown that in this case the difference in the sentences was justified because the applicant pleaded guilty to two counts of cultivation and because the sentencing Judge was moved by mitigatory features personal to White, particularly the established rehabilitation. There was therefore no disparity of the kind which would justify interference.
It is of course well established that as between co-offenders real differences in sentences including differences in the time to be spent in custody may be justified. The primary responsibility in considering those differences and giving them effect is with the sentencing Judge. It follows that mere disparity in sentences between co-offenders, including the difference in the way the sentences are to be served, does not warrant interference by the appellate court. In order for a ground based on disparity to succeed there must be unjustifiable disparity, that is, disparity which raises a justifiable sense of grievance on the part of the prisoner, and also objectively so as to give the impression that justice has not been done. In considering whether there is unjustifiable disparity allowance has to be made for all the circumstances including the mitigating factors personal to the accused. It should also be noted that the appellate court must be careful when considering the question of disparity, that it does not erode confidence in the administration of justice by interfering with sentences imposed by Judges at first instance unless there is clearly unjustified disparity resulting in unfairness and in that way the erosion of confidence in the administration of justice.
Having considered the arguments in the present case as to grounds 1 and 2, I have concluded that the sentences imposed have produced an unjustifiable disparity and that the applicant should be re-sentenced. It is therefore not necessary to consider the other grounds although the matters complained of under ground 5 are relevant to the question of disparity. The learned Judge made strong, positive findings in favour of the applicant. In relation to the Healesville plantation, he found, as he was entitled to do, that the cultivation lacked organisation and professionalism and much of the crop was for the applicant’s personal use. The strong considerations which require more severe punishment and denunciation in cases of commercial plantations were substantially absent. It was fortuitous that the crop at Healesville when dry had a greater weight than the Seville crop which had more plants because the Healesville crop was more mature. In addition to the applicant’s significant co-operation, his admissions and his pleas of guilty there were significant mitigatory factors personal to him. They were his background, his partially successful attempts at rehabilitation and his bad health to which his ongoing although lesser use of marijuana was attributed by the Judge.
There were strong personal mitigatory factors in White’s case, particularly his rehabilitation and the fact that he was involved in two counts and not three. A difference between the sentences was clearly justified, however, in my opinion, none of the factors justified such a disparity between these co-offenders as would result in one having to serve 2 years’ imprisonment albeit with a 9 months non-parole period and the other being immediately free to live in the community albeit with a sentence over his head.
The disparity which resulted was in my opinion of such a degree as to justify the intervention by this court in order to relieve a justifiable sense of grievance and an appearance of injustice.
However as the other members of the court do not agree with my conclusion I think it would be unnecessary and inappropriate for me to say how I would have proposed to re-sentence the applicant.
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