Selaci v The Queen
[2020] VSCA 276
•9 November 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0206
| SELIM SELACI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 November 2020 |
| DATE OF JUDGMENT: | 9 November 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 276 |
| JUDGMENT APPEALED FROM: | DPP v Selaci [2019] VCC 909 (Judge Tinney) |
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CRIMINAL LAW — Appeal — Sentence — Cultivation of a commercial quantity of cannabis — Possession of a small quantity of cannabis — Theft of electricity — Hydroponic crop in residential premises — Principal offender — Guilty plea — Total effective sentence 3 years 10 months with 2 years 2 months non-parole — Whether judge erred in finding that the applicant was ‘expending a significant amount of efforts and funds’ and was ‘doing so in the expectation of significant financial gain’— Whether sentence manifestly excessive — Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann QC with Mr P J Smallwood | Stephen Andrianakis & Associates |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
NIALL JA:
Introduction
On 19 June 2019, the applicant pleaded guilty in the County Court to cultivating a narcotic plant in not less than a commercial quantity[1] (charge 1); possession a drug of dependence, cannabis[2] (charge 2); and theft of electricity[3] (charge 3).
[1]Drugs, Poisons and Controlled Substances Act 1981, s 72A. The maximum penalty is 25 years’ imprisonment.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is five penalty units.
[3]Crimes Act 1958, s 74(1). The maximum penalty is 10 years’ imprisonment.
Following a plea, the next day the judge sentenced the applicant to be imprisoned for three years and 10 months on the first charge and for seven days on the third.[4] The total effective sentence was thus three years and 10 months’ imprisonment, upon which the judge fixed a non-parole period of two years and two months.[5]
[4]On charge 2, the judge imposed a fine of $300.
[5]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the guilty plea, he would have imposed a sentence of six years, with a non-parole period of four years.
The applicant seeks leave to appeal against sentence on two grounds as follows:[6]
1. The sentencing judge erred by sentencing the applicant on the basis that the applicant was ‘expending a significant amount of efforts and funds’ and was ‘doing so in the expectation of significant financial gain’.
2. The sentence imposed on charge 1 (3 years 10 months) and the non-parole period fixed (2 years 2 months) were manifestly excessive.
Particulars:
Those sentences were manifestly too long having regard to the applicant’s admissions, early guilty pleas, remorse, otherwise good character, age, concern for his wife and prospects for rehabilitation.
[6]On the hearing of the application, senior counsel for the applicant announced that, in light of Wyka & Gardiner v The Queen [2020] VSCA 104 (at [160]–[162]) he did not seek to proceed with a foreshadowed application to add a ground in the following terms:
3.New evidence establishes that imprisonment is more burdensome for the applicant as a consequence of the COVID-19 pandemic.
In our view, neither ground has substance. Leave to appeal must be refused.
The offending
The applicant is now aged 59 years. He was 57 at the time of the offending.
The circumstances of the offending were set out in the Summary of Prosecution Opening for Plea as follows:
4. On 21 November 2018, at approximately 7:45am, police from the Mill Park Divisional Response Unit executed the aforementioned search warrant at 10 Reefton Court in South Morang.
5. Investigators observed a blue coloured Subaru Liberty sedan bearing Victorian registration plates ZRV049 parked in the driveway of the property. Enquiries later established that this car was registered to [the applicant].
6. Police knocked on the door, announcing their presence, and when there was no response, forced entry was authorised and carried out.
7. Police entered the property and located [the applicant] in the entrance hallway. [The applicant] was detained and moved into the front living room of the property. [The applicant] was the only person present at the property.
8. Police observed a sealed room connected to the hallway which was identified as containing a sophisticated hydroponic set up with numerous plants at various stages of maturity in plastic pots, high powered grow lights, shades, watering, and exhaust systems.
9. [The applicant] was arrested and given his caution and rights. [The applicant] told police that his son owned the property. [The applicant] indicated that he was the sole occupant of the property, and that he grew the cannabis alone, and installed the electrical bypass himself. [The applicant] showed police the garage where he kept the growth formula.
10. Police observed further rooms containing sophisticated hydroponic set ups with numerous plants at various stages of maturity in plastic pots, high powered grow lights, shades, watering, and exhaust systems (Charge 1 – cultivation of a narcotic plant – commercial quantity).
10. Police commenced a search of the property and a hazardous illegal electricity bypass was identified. (Charge 3 – Theft)
11. At 7:50am, by police request, David Weston, the Meter Investigations Coordinator, and Michael Coombes, an Electrical Technician, of AusNet Services attended the property and confirmed that an irregular wiring connection had been made to the unmetered mains cable in the wall cavity in the front bedroom.
12. The bypass was supplying unmetered power at approximately 397 kilowatts per day.
13. David Weston’s inspection of the rooms confirmed that a total of 46 600 watt lamps and ballasts, and four 25 watt fluorescent lamps were receiving power from the by-pass.
14. All lamps were connected to timing devices set up for 12 hours of operation per day, except for the lamps located in Room 1, which was set up for 18 hours of operation per day.
11. The irregular wiring connection was removed and given to Victoria Police.
12. In Room 1 police located 17 cannabis plants.
13. In Room 2 police located nine cannabis plants.
14. In Room 3 police located six cannabis plants.
15. In Room 4 police located three cannabis plants, and 28 cannabis leafy stems.
16. In total 35 plants were seized from the property, along with 28 leafy stems, and a bag of loose, dried plant material that was located on the kitchen island bench.
17. Botanist Madeline Brenker attended at the property on 21 November 2018 and confirmed that these items were cannabis and in particular noted:
a. the 35 cannabis L plants weighed 83.68 kilograms (Charge 1 – cultivation of a narcotic plant – commercial quantity),
b. the 28 leafy stems weighed 39.3 grams (Charge 1 – cultivation of a narcotic plant – commercial quantity),
c. the dried cannabis L weighed 46.9 grams (charge 2 – possession of cannabis L).
18. The prosecution do not allege the dried cannabis subject of charge 2 was derived from the cultivation of the narcotic plants subject of charge 1.
19. Other items seized from the property included magazines pertaining to indoor gardening, and a document entitled ‘Feed Chart.’
Arrest and Interview
20. Following his arrest, [the applicant] was conveyed to the Mill Park Police Station, where he took place in a formal record of interview.
21. [The applicant] made full admissions to cultivating the cannabis at 10 Reefton Court in South Morang, stating that he planted, fed and watered the plants with a view to harvesting them.
22. [The applicant] stated that he had installed the electrical bypass in the property, indicating that he had learned how to do this whilst in school.
23. [The applicant] stated that he purchased all relevant equipment required to cultivate cannabis from a hydroponic shop in Dandenong, and that he had researched how to cultivate cannabis on the internet.
24. [The applicant] stated that he was the sole occupant of 10 Reefton Court in South Morang and had been for the past seven months.
25. [The applicant] stated that this was the first time that he had cultivated cannabis, and that he was doing so in order to sell it to make some money to buy a van.
Ground 1: Findings not open?
Counsel for the applicant submitted that the Prosecution Opening was treated as an agreed statement of facts.
In his sentencing remarks, counsel submitted, the judge observed that the applicant was motivated by financial gain. So much was not gainsaid. The applicant’s counsel sought, however, to impugn the following remarks:
You were expending a significant amount of effort and funds and were doing so in the expectation of significant financial gain.
Counsel for the applicant submitted that in this passage the judge made two findings that were not open: first, that the applicant had expended a significant amount of funds in order to commit his offending; and, secondly, that he had an expectation of significant financial gain. It was submitted that these facts had not been alleged by the prosecution; were not admitted by the applicant; were not put to the applicant during the plea hearing; had not been established to the requisite standard; and did not irresistibly flow from the agreed facts.
These submissions have nothing to recommend them. On the plea, the applicant’s counsel told the judge that the applicant had invested the sum of $2,000 in setting up the cannabis crop. To our minds, that is ‘a significant amount of … funds’. Further, it is self-evident that to set up the crop required ‘a significant amount of … effort’.
Moreover, it is also self-evident that the applicant was cultivating the cannabis for financial gain. The crop was of a commercial quantity. Even if it might be said that the applicant did not have a precise idea of what the crop was worth, it beggars belief that he cultivated the large crop in an expectation of other than significant financial gain.
The first ground is wholly devoid of merit.
Ground 2: A manifestly excessive sentence?
Senior counsel for the applicant made the concession orally that, absent success on the first ground, the claim of manifest excess could not be made out. In light of that concession and our findings with respect to the first ground, we need give no further consideration to ground 2.
We would, however, add this. The applicant was the principal in the cultivation of a crop intended for sale, the quantity of cannabis being more than three times the commercial quantity.[7] He was not a mere ‘crop-sitter’.[8]
[7]A commercial quantity is 25 kilograms (or 100 plants): see Drugs, Poisons and Controlled Substances Act 1981, Column 2, Part 2, Schedule 11.
[8]See Nguyen v The Queen [2018] VSCA 322 (4y/2y 4m; 3y 9m/2y 2m); Nguyen v The Queen [2019] VSCA 134 (3y 9m/2y 4m; 3y 8m/2y 3m); Mohtadi v The Queen [2018] VSCA 238 (3y 8m/20m).
In those circumstances, it is impossible to say that the total effective sentence and non-parole period imposed on the applicant are outside the range of those open in the sound exercise of discretion. Indeed, both appear to us to be quite moderate.
Conclusion
Leave to appeal against sentence must be refused.
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