R v Tynan
[2000] VSCA 215
•1 November 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 42 of 2000
| THE QUEEN |
| v. |
| LEO VINCENT TYNAN |
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JUDGES: | PHILLIPS, C.J., BROOKING, J.A. and EAMES, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 November 2000 | |
DATE OF JUDGMENT: | 1 November 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 215 | |
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Criminal law – Sentence – Cannabis cultivation (commercial quantity) – Five years upheld.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. B. Kayser | P.C. Wood, Solicitor for Public Prosecutions |
| For the Appellant | Mr. P.F. Tehan, Q.C. | Ryan Maloney Anderson |
PHILLIPS, C.J.:
I shall ask my brother Brooking to give the first judgment in this matter.
BROOKING, J.A.:
The appellant, now 55, pleaded guilty on 1 March 2000 in the County Court at Mildura to a presentment containing a single count of cultivating a narcotic plant, Cannabis L, in a commercial quantity between 1 September 1997 and 8 January 1998. This is an offence contrary to s.72(1)(ab) of the Drugs, Poisons andControlled Substances Act 1981 and carries a maximum penalty of 25 years' imprisonment. The appellant had been committed for trial after a contested committal. He was first presented in October 1998 on a presentment containing an additional count of trafficking in a drug of dependence. That trial ran for six days and the appellant gave evidence in it, but the trial was aborted. On 29 February 2000 a co-offender, John Bill Tsiakis, pleaded guilty to the count to which the appellant pleaded guilty the following day. Tsiakis also gave a sworn undertaking to give evidence for the Crown on the appellant's trial in accordance with a police statement made by him. Thereupon counsel for the appellant, from the body of the court, told the judge that his client would plead guilty. The appellant admitted ten previous convictions or findings of guilt from five court appearances between 1970 and 1995, none of them being drug-related. Five character witnesses were called on his behalf. On 2 March 2000 he was sentenced to be imprisoned for five years with a non-parole period of three years, Tsiakis receiving the same sentence.
The appellant has been given leave to appeal on an application under s.582 of the Crimes Act 1958. Tsiakis was refused leave and has abandoned his application. There are now six grounds of appeal. In substance they are, first, that the judge erred in finding that the appellant's participation was of the same order
as that of Tsiakis; secondly, that he erred in finding that the appellant expected to make a substantial sum of money; thirdly, that he erred in giving no or insufficient weight to the appellant's co-operation with law enforcement authorities; fourthly, that he erred in giving little or no weight to the evidence of good character; fifthly, that the sentence is manifestly excessive; and, sixthly, that he erred again in proceeding to sentence the appellant without having regard to his evidence given on the aborted trial.
The first ground, then, challenges the finding that the two prisoners played substantially equal roles in the commission of the offence. The judge's reasons for this finding are given at some length at pp.62-63 of the transcript and I need not set them out again here. Mr Tehan's submission on this point on the appellant's behalf sufficiently appears, generally speaking, from his written outline of submissions. I think it was open to the judge to make the finding in question. Motivation, Mr Tehan's first point, does not seem to me to be an aspect of each man's participation, although the financial hardships of Tsiakis in contrast with - on one view of the material - the better financial position of the appellant might have been regarded as making the appellant's conduct more culpable than that of Tsiakis. But when the judge was here speaking of culpability he was referring only to the nature and extent of each man's participation. At best, motivation, for the purposes of this ground, has some bearing on the probabilities as to who approached whom; but the judge did find, as the appellant asked him to, that it was Tsiakis who approached him. I simply do not see, in the whole of the appellant's submissions under ground 1, any reason for upholding this attack on the judge's reasons. The judge's reasons for his finding about participation are an adequate basis for this conclusion.
Ground 6 complains that the appellant was sentenced without regard to his evidence on the aborted trial. That evidence can only be described as a cock and bull story, as indeed may be said of his record of interview. I do not think that counsel for the appellant ever made it clear that he was firmly indicating to the judge that the transcript of that evidence should be read; he never tendered the transcript. In any event, the transcript of the plea and the transcript of the evidence of the appellant at the aborted trial show that provision of the transcript of the trial evidence would not have, and could not have, altered the judge's view of the facts in any significant way.
Ground 2 is the complaint that the judge found that the appellant expected to make a substantial sum of money, as opposed to receiving a "kickback". I have a clear view that it was open to the judge, using his common sense and what the evidence disclosed about the local knowledge of the appellant, to find that the appellant expected to receive more than an insubstantial "kickback". The judge was entitled to have regard to the appellant's local knowledge, to the probable profits as disclosed by the evidence, to the work of the appellant and his own expenses, and to the risk that he was running.
I am tempted in the circumstances of this appeal to say nothing more about the evidence, but perhaps it is desirable to provide a brief summary of the circumstances of the offence. On 8 January 1998 police officers executed a search warrant at the block - a vineyard with a house and sheds - in the occupation of the appellant at Koorlong. They found concealed amongst rows of grapevines five rows of cannabis plants, one to two metres in height. The plants numbered 285. They were all within a month or two of maturity. A member of the Drug Squad calculated the wholesale value of the cannabis conservatively at $855,000. The 285 plants were almost three times what was needed to constitute a commercial quantity. The property was owned by a witness, Joseph Sokol, who denied knowledge of the plantation. He said the grape crop was being grown by the appellant under a share-cropping agreement.
I have made passing, and indeed uncomplimentary, reference to the appellant's record of interview. He was interviewed on the day of his arrest, 8 January 1998. He said that he was a share-farmer and that he was indeed aware that there was cannabis nestling amongst his vines, but that he had not planted it. He had been approached four months earlier by a Yugoslav or Macedonian male whose name was unknown to him and who wished to use his property. The man had said to him, "I'll take an acre of land or two acres of land and I'll look after it, and maybe at the end of the run I might be able to give you a few bob." (In the appellant's evidence on his trial he spoke of the contemplated cultivation of tomatoes or other vegetables.) The appellant said that he did not know what the crop was going to be. He did not agree to anything, but when he returned to the property, not very long afterwards, he found that the cannabis had been planted. He had since watered the grapevines and the cannabis would, necessarily, have been watered at the same time. He had also sprayed against mildew in that section. Before his arrest he had not known that cultivation of marijuana was illegal. The previous year the property had paid virtually nothing. He had only seen the Yugoslav or Macedonian at the property twice. That, I may say, bears on the judge's finding as to participation.
At the time of cultivation of the crop, one Clarke, a grape picker, stayed in the house on the block. Between November 1997 and January 1998 the appellant often asked Clarke whether anyone had visited the block. Tsiakis, according to Clarke, attended the site. In his evidence at the aborted trial the appellant said that he had reached no agreement with Tsiakis about growing marijuana but had simply discovered the crop on the block. He had no agreement with Tsiakis about any reward or "kickback" that he would receive and he did not really have any expectation of benefit from the crop. In his statement to the police, Tsiakis said that he had planted the cannabis at the suggestion of the appellant and with the agreement of the owner of the block, Sokol. When he (Tsiakis) needed a hose to water the plants the appellant told him to charge it to his (the appellant's) account, which he did, and the accounts of the supplier show that the purchase was indeed charged to the appellant's account.
As regards ground 3, this appears to be a complaint that it was the appellant rather than Tsiakis who had brought about a collapse in the defence of this prosecution and that it was he who should have received a so-called informer's discount. But this ground need not be further mentioned, since it has in effect been abandoned. There was, in any event, nothing in it.
Ground 4 dealt with the character evidence, and under cover of it Mr Tehan advanced the submission that the judge was wrong in rejecting the submission that, having regard to the character evidence, the whole offence should have been described as an error of judgment. I think it was well open to the judge to make this observation, taking the view, as his Honour did, that this was no error of judgment on the spur of the moment but amounted to a conscious decision to embark upon, and persist in for some months, serious criminal conduct. As regards the weight given by the judge to the character evidence, his Honour's reasons at p.66 of the transcript show that he gave appropriate weight to that evidence.
Ground 5, dealing with manifest excess, was scarcely argued as a separate ground. In all the circumstances here, including the quantity of cannabis and the maximum sentence of 25 years available, I am very far from persuaded that this sentence was manifestly excessive, and I would dismiss this appeal.
PHILLIPS, C.J.:
I agree with the conclusions expressed by Brooking, J.A. and I would subscribe to his Honour's reasons for reaching them.
EAMES, A.J.A.:
I also agree.
PHILLIPS, C.J.:
The order of the Court is that the appeal stands dismissed.
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