Symons, Max Peter v The Queen
[2021] VSCA 276
•5 October 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0002
| MAX PETER SYMONS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 October 2021 |
| DATE OF JUDGMENT: | 5 October 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 276 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1927 (Judge Lewitan) |
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CRIMINAL LAW — Appeal — Sentence — Cultivating a commercial quantity of cannabis and dealing with suspected proceeds of crime — Whether a total effective sentence of four years’ imprisonment with two years and eight months non-parole manifestly excessive — Appellant sole proprietor of crop — Not mere crop-sitter — Cultivation for profit — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant: | Mr J M Lowy | Docherty Legal |
| For the Respondent: | Mr G M Hughan | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA:
Introduction
Pursuant to leave granted by a judge of this Court, the appellant, now aged 32 years,[1] challenges a sentence imposed upon him in the County Court on 11 December 2020, for cultivating a commercial quantity of cannabis and dealing with the proceeds of crime, claiming that it is manifestly excessive.
[1]His date of birth is 28 June 1989.
In our view, the contention that the sentence is manifestly excessive is without substance. For reasons that follow, we would dismiss the appeal.
The offending
The appellant’s offending and its aftermath may be summarised briefly.
On 16 December 2019, police attended the appellant’s property in Cochrane’s Creek in response to an altercation that he had the previous evening with his father. (The appellant and his father had separate residences on the same property.) Police detected the smell of cannabis coming from a shed and obtained a search warrant.
Upon searching the property, police found:
· cannabis drying on the floor in a bedroom;
· cannabis growing in a second room, in a hydroponic set-up;
· cash in the sum of $125,850, bundled with tape inside a backpack within an oven; and
· four containers filled with loose cannabis.
A number of cannabis plants were also located at the front of his father’s residence. The appellant’s father had pulled them out of a vegetable patch after the appellant failed to remove them at his father’s request. A search of the shed behind the appellant’s house revealed a second hydroponic set-up with a large crop of cannabis plants growing.
In total, 78 cannabis plants were located in the appellant’s house and shed, weighing 79.47 kilograms, and the loose cannabis located weighed 3.146 kilograms (the total weight of all of the cannabis thus being 82.616 kilograms). The number of plants detected was less than the commercial quantity of cannabis measured by number of plants (100 plants), but more than three times the commercial quantity measured by weight (25 kilograms).[2]
[2]See Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 2, Column 2.
Following his arrest on 16 December 2019, the appellant told police that ‘everything and anything cannabis-related’ was his, but he otherwise made no comment when interviewed.
Plea, sentence and ground of appeal
On 1 October 2020, the appellant pleaded guilty before a judge in the County Court to one charge of cultivating a narcotic plant, Cannabis L, in a quantity not less than the commercial quantity.[3] He also pleaded guilty to the related summary offence of dealing with property — $125,850 cash — suspected of being the proceeds of crime.[4]
[3]Drugs, Poisons and Controlled Substances Act 1981, s 72A. The maximum penalty is 25 years’ imprisonment.
[4]Crimes Act 1958, s 195. The maximum penalty is two years’ imprisonment.
A plea was conducted on 4 December 2020. Subsequently, on 11 December 2020, the judge sentenced the appellant to three years and six months’ imprisonment on the cultivation charge, and to nine months’ imprisonment on the summary charge. The judge ordered that six months of the sentence on the summary charge be served cumulatively upon the other sentence, leading to a total effective sentence of four years’ imprisonment. She fixed a non-parole period of two years and eight months.[5]
[5]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have sentenced the appellant to a total effective sentence of six years and nine months’ imprisonment, with a non-parole period of four years and four months.
The appellant relies on a single ground of appeal: ‘That the sentence was manifestly excessive’. In the written case, ‘particulars’ of that ground are said to be that
insufficient weight was given to the early plea of guilty, subjective factors specific to the [appellant], the expert evidence tendered upon the plea, the absence of aggravating factors otherwise common in cultivation matters, totality, proportionality and the need to avoid a crushing sentence, and comparable cases.
Submissions on the plea and sentencing reasons
On the plea, counsel for the appellant told the judge that the appellant had smoked cannabis since he was 13 years of age. He had purchased the hydroponic set-up second-hand on the internet, and the set-up to grow the plants inside was not sophisticated. Counsel submitted that the appellant was not trafficking the cannabis. There was no evidence to support the view that the cash found by police was related to trafficking.
The appellant estimated that, at the time of his arrest, he was smoking about three ounces of cannabis per week. Until a motorcycle accident in 2012, the appellant had been abstinent from cannabis for 18 months. He started using cannabis again as pain relief for a leg injury.
Counsel submitted that the appellant had a dysfunctional upbringing. His father had alcohol problems, and left the family home when the appellant was aged 10. The appellant’s mother struggled with mental ill-health, so that the appellant and his only sibling, a sister, often had to fend for themselves. Despite his upbringing, however, the appellant has no relevant prior convictions, and has never been in custody before.
Warren Simmons, a consulting psychologist, provided a report dated 17 October 2020, which counsel tendered on the plea (Exhibit 2). It contained a useful summary of the appellant’s childhood and later life. Mr Simmons said that the appellant’s childhood ‘would have left him vulnerable to substance use, particularly as his parents modelled excessive alcohol consumption and cannabis use as normative behaviour’, and that the appellant ‘was introduced to cannabis by peers in his early teens and found the drug helped him with his emotional state and in forgetting about the difficulties in his life’. The appellant displays ‘little evidence of significant antisocial personality traits’. At the time of interview the appellant presented with symptoms of depression in the ‘mild-to-moderate range’ which have developed since he was placed in custody, and ‘also some symptoms of anxiety, although these appear to be secondary to his depressive symptoms, noting that the two conditions are often co-morbid’.
The prosecution accepted that the appellant’s guilty plea was entered early, and entitled him to a ‘substantial discount in sentencing’. It was submitted that the appellant’s prior criminal history is of ‘limited relevance’. Although that history includes prior dispositions for possession of cannabis, there are none for cultivation or for dealing with suspected proceeds of crime. The current pandemic was ‘of some limited relevance to the Court’s sentencing exercise’. General deterrence and denunciation ‘were of significant importance’ due to the seriousness of the offending. Specific deterrence was also relevant in light of both the appellant’s history and his history of addiction to cannabis. In view of Nguyen,[6] the judge could not contemplate the imposition of a community correction order with or without a sentence of imprisonment.
[6]Nguyen v The Queen (2016) 311 FLR 289, 333 [151]–[152] (Tate JA).
In her reasons for sentence, the judge said that the ‘facts in this case are very serious’. The judge took into account the appellant’s early plea of guilty, and accepted that it indicated ‘some remorse’. She observed that the appellant’s ‘prospects for rehabilitation remain guarded’, and will depend on his ability to abstain from drugs when released from custody. The judge said that she took into account the impact of the COVID-19 pandemic in the appellant’s favour in mitigation of sentence. Given that there was no evidence of the involvement of others in the offending, so the judge said, the appellant’s moral culpability was ‘high’. Finally, the judge observed that the appellant’s counsel accepted that none of the criteria in ss 5(2H)(a) to (e) of the Sentencing Act 1991 were engaged — the offence in charge 1 being a category 2 offence — nor could s 44 be applied.
Submissions in this Court
Counsel for the appellant submitted that the sentence imposed was manifestly excessive, having regard to:
· the utilitarian value of the guilty pleas to the charges, which the prosecution accepted was entered at an early stage;
· subjective factors specific to the appellant, including a childhood and background of social disadvantage, positive prospects of rehabilitation should he remain drug free, a limited prior criminal history and the fact that the appellant had not previously served a term of imprisonment;
· the psychological evidence, including Mr Simmons’ opinion that the appellant’s childhood ‘would have left him vulnerable to substance use, particularly as his parents modelled excessive alcohol consumption and cannabis use as a normative behaviour’;
· the absence of aggravating factors common in cultivation cases, it being submitted that the appellant’s ‘motive for the cultivation was [his] own consumption as opposed to the financial enrichment of a clandestine and largescale drug syndicate’;
· the principles of totality and proportionality, and the need to avoid a crushing sentence; and
· the sentences imposed in comparable cases.[7]
[7]In the written case counsel cited: Selaci v The Queen [2020] VSCA 276 (‘Selaci’); Nguyen and Pham v The Queen [2018] VSCA 322 (‘Nguyen (2018)’); and Nguyen v The Queen [2020] VSCA 283 (although see now Nguyen v The Queen [2021] VSCA 211 (‘Nguyen (2021)’).
The respondent’s counsel submitted that, unlike many offenders who are sentenced for this offence, the appellant was not a low-level crop-sitter. Instead, the appellant was the principal offender in a substantial cultivation. As the judge observed, his cultivation was ‘a serious example of the offence’ and his moral culpability was ‘high’. Counsel for the respondent submitted that the offending which was the subject of the related summary offence was also a serious example of the relevant offence, in light of the very substantial amount of money involved. The appellant’s counsel had advanced the submission that the money was ‘not connected to the cannabis’, but no explanation was forthcoming as to its source. In those circumstances, the respondent’s counsel submitted, it was appropriate for the sentencing judge to order the level of cumulation that she did, so as to reflect the separate serious offending that was captured by that charge.
Counsel for the respondent submitted that, beyond Mr Simmons’ opinion that the appellant was vulnerable to substance abuse because of his childhood, there was little else that could be drawn from his report. Certainly, no Verdins[8] considerations were enlivened. Indeed, there was nothing to displace the prominence of general deterrence as a sentencing purpose in the appellant’s case. As to the ‘comparable’ sentencing cases relied upon by the appellant, the respondent’s counsel contended that none of the three establish a sentencing practice which might support the conclusion that the sentence imposed upon the appellant is wholly outside the permissible range. Finally, the respondent’s counsel submitted that the individual sentences, total effective sentence (produced by the order for cumulation) and non-parole period are all within the permissible range.
[8]R v Verdins (2007) 16 VR 269.
Discussion
The appellant’s twin contentions that he did not cultivate cannabis for the purposes of trafficking, and that the cash found by police was not related to trafficking, must be rejected.
On the plea, counsel for the appellant put to the judge that the appellant estimated that at the time of his arrest he was consuming three ounces — 85 grams — of cannabis per week. Police found him in possession of 82.616 kilograms of the drug. Although the sentencing judge made no distinct finding about it,[9] the sheer volume of cannabis in his possession puts paid to the proposition that it was for personal use.
[9]In her sentencing remarks the judge observed: ‘It was a substantial crop, well in excess of what [the appellant] would require for [his] own personal use’.
Moreover, the appellant was found in possession of cash in the sum of $125,850, bundled with tape, placed inside a backpack hidden within an oven. As we have mentioned, the appellant’s counsel submitted on the plea that there was no evidence to support the inference that it was connected to the cannabis; and, once more, the judge made no distinct finding as to that.[10] In our view, however, not only does the manner in which the cash was bundled and concealed strongly suggest that it was not obtained from licit sources, but the appellant’s possession of such a large quantity of cash in parallel with a large quantity of cannabis compels the inference that the cash resulted from the sale of the cultivated cannabis.[11] And although it was not incumbent upon him to do so, it is noteworthy that the appellant made no attempt to explain how he came by such a large amount of cash, other than to advance the mere assertion through counsel that it had no connection to cannabis.
[10]The judge said:
You instructed your counsel that the cash found on the premises is not connected to the cannabis. Your counsel submitted that there is no evidence to support that it is. However, the amount of cash located by the police was substantial, and you have pleaded guilty to dealing with property suspected of being proceeds of crime and have consented to the forfeiture of that money.
[11]See R v Falzon (2018) 264 CLR 361, 377 [40] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
Further, it is plain that, although it may not have been particularly sophisticated, the appellant’s cultivation was a one man operation. He was the sole proprietor, and was no mere ‘crop-sitter’. His moral culpability was, as the judge found, high.
Finally, resort to the ‘comparative’ cases referred to by his counsel does not avail the appellant. In Selaci, the closest factual comparator to the instant case, the applicant received a sentence of three years and 10 months’ imprisonment for cultivating more than three times the commercial quantity of cannabis, in circumstances where he was the principal in the cultivation of a crop intended for sale. Nguyen (2018) also involved more than three times the commercial quantity of cannabis. Unlike the present appellant, however, the two appellants in that case were mere crop-sitters. Upon a successful appeal, they were resentenced respectively to three years and nine months’, and three years and six months’, imprisonment. Nguyen (2021) involved a much greater quantity of cannabis than the present case (11.4 times the commercial quantity), ‘at the very top of the quantitative scale’ for cultivating a commercial quantity. The appellant was the ‘controller of the operation’. This Court on appeal did not interfere with a sentence of five years and six months’ imprisonment imposed on the cultivation charge.
In light of the above, it is impossible to conclude that the sentence of three years and six months’ imprisonment on the cultivation charge was other than entirely appropriate. None of the matters relied on in mitigation alone or in combination could have compelled a different conclusion.
We also regard the sentence of nine months’ imprisonment on the proceeds of crime charge, and the cumulation ordered, to be within the appropriate range.
Conclusion
There is nothing in the contention that the sentence imposed on the appellant is manifestly excessive.
The appeal must be dismissed.
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