R v Torrisi
[1998] VSCA 21
•30 July 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 44 of 1998
THE QUEEN
v
CRAIG JOHN TORRISI
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| JUDGES: | WINNEKE, P., CHARLES and CALLAWAY, JJ.A. |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 and 29 July 1998 |
| DATE OF JUDGMENT: | 30 July 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSCA 21 |
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Criminal law - Sentence - Trafficking in cannabis - Trafficking constituted by hydroponic cultivation - Whether judge required to sentence on basis of analysis of “useable” quantities or “gross weight” - Whether judge had made material factual error - Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C.J. Ryan | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. R. Richter, Q.C. and | Kenna Croxford |
| Mr. O.P. Holdenson |
WINNEKE, P.:
On 2 March 1998 the applicant was presented before the County Court at Melbourne on one count of theft and one count of trafficking in cannabis. He pleaded guilty to each count. The offences were the result of the discovery by the police on 8 January 1997 of a large crop of cannabis being grown at premises occupied by the applicant at Garibaldi, a small town not far from Ballarat. The trafficking count was alleged pursuant to s.71(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (as the section stood at the date of the offence) and carried a maximum penalty of 15 years. The count of theft related to the illegal use of electricity achieved, as is customary in drug offences of this type, by the installation of a device to by-pass lawfully installed meter boxes.
On 3 March 1998 the learned judge sentenced the applicant to a term of imprisonment of three years and nine months on the trafficking count and to a term of imprisonment of 12 months on the theft count. The sentences so imposed operated concurrently because the judge made no part of the sentence on count 1 (the theft count) cumulative upon the trafficking sentence. The applicant was ordered to serve a period of two years and six months before being eligible for parole. On 11 March 1998 the applicant applied for leave to appeal against the sentences imposed on three grounds which, in combination, amounted to a contention that the sentence was manifestly excessive. On 20 July 1998 he was given leave by the Registrar to add a further ground alleging a specific sentencing error on the part of the learned judge in that the judge had found that the gross total weight of the cannabis seized was 81 kg. when the true amount was alleged to be substantially less. This amendment was made at a time well after the learned judge had furnished his report to this Court pursuant to the Criminal Appeals & Procedure Rules but, having regard to the view which I have taken of the matter, that circumstance is of little consequence.
The plea made on behalf of the applicant before the sentencing judge proceeded upon an agreed statement of facts. It would be tedious to recite all those facts but, in summary, it can be fairly said that the statement revealed a scheme of cannabis cultivation which was well planned, elaborate and, in my view, sophisticated. The applicant was one of a number of participants in the scheme, each of whom it would appear came from the far north Queensland town of Mareeba or associated districts. The applicant was accepted as being a principal in the scheme with one Carlo Pilat. Together, and over a relatively short period of time in 1996, they had sought out and purchased a 20-acre property called "Windaminga" for a sum of $127,000 which was purchased by Pilat on the basis that he would be leasing it to the applicant. Once the property had been purchased, the applicant applied to the local authority for permits to construct a large shed for "storage purposes". This shed was additional to one which already existed at the premises. The applications were characterised by deception not only as to the use for which the construction was intended to be put but by the use of false names. Thereafter the applicant enlisted the aid of local contractors to upgrade the power supply to the property and assisted in the purchase of a very expensive diesel generator which, although represented to be required for purposes in North Queensland, was clearly intended to be used in boosting power at the property so as to facilitate production of the illicit crop intended.
It is thus apparent that a substantial capital sum was invested in this scheme, which was terminated somewhat prematurely when, on 8 January 1997, fire broke out at the property as a consequence of welding operations being carried out by the applicant when constructing a roof between the two sheds. Sparks from the welder set fire to hay bales and the fire, which quickly got out of control, alerted the local Country Fire Authority. Deceptive answers given by the applicant to the local brigade provoked suspicion and the police were called. Later investigations revealed a substantial crop of cannabis growing, at various stages of advancement, both in the existing shed at the property and in the house on the property. The police found in the shed a series of lights suspended above the plants and a sophisticated power and hydroponic irrigation system in operation. In the new shed, which at that time was empty, a fuel bladder of 3000-litre capacity was found. The back bedroom in the house was given over to "drying racks", whilst another bedroom was found to contain large growing plants together with 186 cuttings. The applicant was taken into custody and, with the co-operation of Queensland police, ultimately four people were charged. At the outset, it is fair, I think, to say that the applicant was less than wholly co-operative with the investigators, although by the time of the committal proceeding he and the others pleaded guilty. Investigations by the police led to the seizure of 224 plants growing in the shed and house and numerous plants, cuttings, bags and other containers full of cannabis in the house. The gross weight of the cannabis recovered was agreed to be 51 kgs. The potential value of the cannabis was estimated to be conservatively $672,000.
It was not suggested that the scheme was implemented otherwise than for commercial gain. The applicant was clearly motivated by a desire for profit. The learned judge described the enterprise, and the applicant's part in it, as follows:
"The facts of this matter need not be repeated by me now in any great [detail]. There is in evidence an [agreed] statement of the facts of the matter. It is sufficient for me to summarise by saying there was a very high level of pre-planning. The property was purchased specifically for this enterprise. There were buildings and apparatus built, leased or purchased, installed and set up for the purpose of growing large plants of cannabis for sale.
There were 224 cannabis plants found on the property at the time of its discovery. They were said to be conservatively estimated at being worth some $672,000. The gross total weight of the material found was approximately 81 kilograms, but there was room for and evidence of a planned more extensive operation. Despite Mr Walmsley's dislike of the term, I must say I consider this operation was indeed a very sophisticated one with elaborate hydroponic arrangements made at very considerable cost. The hydroponic equipment alone is said to be conservatively valued at $32,828.
The operation was only discovered by accident when inadvertently during welding on one of the sheds on the property a small fire broke out.
The expectation of at least you Torrisi and you Pilat must have been of very considerable financial return indeed. It seems to me that had that inadvertent fire not occurred you may well, at least for a considerable time and no doubt with very considerable return, have continued the enterprise unimpeded.
Perhaps I should add that it was you Torrisi who stole the electricity from Powercor Australia Limited which power was used to operate the hydroponic set up. You effected an illegal connection to the power supply to the property used by you. The value of the electricity stolen was some $4,940.30."
On this appeal Mr Richter's primary contention on behalf of the applicant was that, in referring to a "gross weight of 80 kilograms" in the passage to which I have alluded, his Honour made a material error of fact which had vitiated his discretion (House v. The King (1936) 55 C.L.R. 499 at 505). Indeed he submitted that the passage in his Honour's sentencing remarks demonstrated that the judge had proceeded to sentence not only the applicant but presumably each of the co- accused before him upon the false premise that they had trafficked in a quantity of cannabis in excess of the amount which the agreed facts disclosed. He further submitted that his Honour should have had regard only to quantities of "usable" cannabis.
I am unable to accept this submission. The short answer to it is that his Honour was invited to sentence the applicant and his co-accused on the basis of the facts which had been agreed between them and the Crown and, although the transcript records that the gross weight to which he referred was 81 kg., it is clear from the context of his sentencing remarks that he was not departing from those agreed facts in determining the nature and size of the operation with which he was concerned nor over-estimating the criminality of the applicant. In the light of the fact that his Honour's sentencing remarks were made on the day following the plea, it seems to me to be highly likely that the reference to a gross weight of 81 kg. was either a typographical error or an inadvertent misdescription. On any view he was sentencing the applicant for what was alleged and accepted to be the possession for sale of a large crop of cannabis of agreed dimensions much of which was in the course of production and which met the description of the offence to which the applicant had pleaded guilty. It is clear to my mind that his Honour was not departing from those agreed facts because he accurately described the crop both by reference to the number of plants and its potential value. Viewed in this context his Honour's alleged error cannot be seen as conscious misinformation but, if it was an error, it was not, in my view, one of any materiality (cf. R. v. Cohen, Court of Appeal, unreported, 5 March 1997, per Hayne, J.A., at p.6). Furthermore, where the offence alleged is one of trafficking in its extended sense of possessing for sale a crop in the course of cultivation (ss.70(1) and 72(3) of the Act), the court is not required to distinguish between that which is usable and that which is unusable (R. v. Kardogeros [1991] V.R. 269 at 275). Mr Richter's submission on this ground proceeded on the basis that his Honour should have treated the offence to which the applicant had pleaded guilty as one of "preparation for sale" and should have made an analysis of what parts of the cannabis seized were then capable of being disposed of. For reasons already stated I regard this as an over-refinement of his Honour's task and, in any event, this was not the basis upon which the parties, including the applicant, had invited his Honour to proceed. I would, accordingly, reject ground 4 of the application.
As to the other ground of appeal argued, namely that the sentence which his Honour imposed was manifestly excessive, it should be noted that the purpose of general deterrence is an important consideration in sentencing drug offenders whether or not they believe, as was contended on the applicant's behalf, that the activity in which they are engaging is calculated to inflict harm on the community. This was an operation carefully planned and carried out by the applicant purely for commercial profit. Although the applicant had no prior convictions he was none the less a principal in a drug cultivation of large proportions. His Honour was clearly aware of the personal factors put on behalf of the applicant in mitigation of penalty. Just as clearly he took those factors into account in imposing the penalty which he did. However, it was equally open to his Honour to impose a penalty which had an appropriate regard to aspects of general deterrence. In my view, his Honour was correct when he said:
"However, as well as those matters to which I have referred such as rehabilitation I must also take into account deterrence and in particular general deterrence which is of considerable importance in a case such as this. I must also consider the question of the protection of the members of the community. Cannabis is a dangerous substance, though I do keep its danger in proportion and refer to the discussion with counsel on that aspect during the course of the plea. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and again generally to impose just punishment.
As I have already observed this is without doubt a serious offence. In the circumstances I have no alternative to the imposition of custodial sentences ..."
Mr Richter did not contend on behalf of the applicant that his Honour was in error in concluding that an immediate term of imprisonment should be imposed. In my view the term which his Honour did impose upon the applicant was within the range available to him.
Accordingly, for those reasons, it is my opinion that this application for leave to appeal against sentence should be dismissed.
CHARLES, J.A.:
I agree.
CALLAWAY, J.A.:
I also agree.
WINNEKE, P.:
The formal order of this Court will be that the application for leave to appeal against sentence is dismissed.
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