Van Pham v The Queen
[2020] VSCA 114
•11 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0173
| VAN PHAM | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 May 2020 |
| DATE OF JUDGMENT: | 11 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 114 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1243 (Judge Hampel) |
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CRIMINAL LAW – Sentence – Appeal – Cultivation of narcotic plant and theft of electricity – Sentenced to 2 years’ imprisonment with non-parole period of 15 months – Whether judge erred in determination of quantity of cannabis – Whether judge erred in concluding that cultivation was high end – Whether judge erred in considering purpose of CCO limited to rehabilitation – Whether sentence manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Tehan QC with Ms A C Sharpley | Melasecca, Kelly & Zayler |
| For the Respondent | Ms E H Ruddle | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
The appellant pleaded guilty in the County Court to one charge of theft[1] and one charge of cultivating a narcotic plant.[2] On 8 August 2019, he was sentenced to six months’ imprisonment on the theft charge and two years’ imprisonment on the cultivation charge. No order for cumulation was made, resulting in a total effective sentence of two years. The judge fixed a non-parole period of 15 months.[3]
[1]Contrary to s 74 of the Crimes Act 1958. The maximum term of imprisonment for theft is ten years.
[2]Contrary s 72B of the Drugs, Poisons and Controlled Substances Act 1981. If the judge is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose related to trafficking, the maximum penalty is one year’s imprisonment or a fine of not more than 20 penalty units (or both). In any other case, the maximum penalty is 15 years’ imprisonment. In the present case the maximum was 15 years.
[3]Pursuant to s6AAA of the Sentencing Act 1991, the judge declared that, but for his pleas of guilty, she would have sentenced the appellant to a term of imprisonment of three years, with a non-parole period of two years.
Pursuant to a grant of leave made on 20 February,[4] the appellant now appeals against his sentence on the following grounds:
(1)The learned sentencing judge erred as to what may properly be considered in determining the quantity of cannabis found for sentencing purposes resulting in the incorrect sentencing of the applicant as a high end cultivator of cannabis.
(2)The learned sentencing judge erred in limiting the purpose and application of a community correction order for both deterrent and rehabilitation purposes.
(3)The sentence is manifestly excessive.
(4)The sentencing judge erred in failing to sentence the applicant on the basis that it was a reasonable inference that the air-dried weight of the cannabis being 5.40 kilograms was the amount of cannabis that was relevant to the element of the offence that the applicant had cultivated the cannabis ‘for a purpose related to trafficking’.
[4]Pham v The Queen (Unreported, Court of Appeal of Victoria, Priest JA, 20 February 2020).
Circumstances of the offending
In May 2018, the Caulfield Divisional Response Unit commenced an investigation into the cultivation of cannabis at 49 Jacobs Drive, Clarinda. At that time, the appellant resided at 16 Mack Crescent, Clarinda, with his wife. He had purchased the property at 49 Jacobs Drive in April 2015.
At about 7.30 am on 15 May 2018, police executed a search warrant at 49 Jacobs Drive, and soon identified a hazardous illegal electricity bypass. After the bypass had been removed, police continued their search and found sophisticated hydroponic set-ups in a bedroom and the garage of the house. The hydroponic equipment being used included light shades, heat globes, insulation, ballasts, and a reticulated watering system. There were 18 cannabis plants growing in pots: nine large, mature cannabis plants in the garage, and nine smaller plants in a bedroom. A clear plastic bag containing cannabis was located in the door of the refrigerator in the kitchen.
Police also executed a search warrant at 16 Mack Crescent at about 7.28 am on 15 May 2018. Initially, the appellant denied growing cannabis, but then told them that he had a second house. Following his arrest, the appellant acknowledged that he was aware cannabis was being cultivated at 49 Jacobs Drive. He told police that he rented the house to ‘a boy’ named ‘Long’, and was aware that cannabis was being cultivated. The appellant denied assisting in the cultivation, and said that he turned a blind eye because he was being paid rent. He told police that he did not know Long’s phone number; that he had been to 49 Jacobs Drive the night before and attended there three to four times a week; that there were approximately seven cannabis plants at the property; and that the plants had been growing for about six months.
Subsequently, in a record of interview, the appellant admitted owning 49 Jacobs Drive with his wife. He said he had met Long Ngo shortly after he purchased it. The appellant described Ngo as a 28 year old man who started renting the property from him shortly after its purchase for $1,800 per month. His wife was not aware of the fact that he was renting the property to anyone. He told police that there was no formal rental agreement and that Ngo paid the rent in cash. Ngo, the appellant said, paid the bills for electricity, gas, and water usage at the property. The appellant said that he did not conduct inspections on the property. He was unable to provide any contact details for Ngo. Further, the appellant denied knowledge of the fact that Ngo was cultivating cannabis at the property, claiming that Ngo had stopped him from accessing the property about six to seven months prior. He said that he had thought that something might be going on and was aware that something was wrong, but that he had done nothing about it.
A botanist found that the 18 cannabis plants had a total weight of 31.35 kilograms, and that the cannabis contained in the clear plastic bag found in the refrigerator weighed 149.5 grams. The nine larger plants were approximately 13 to 16 weeks old, being post-nursery phase, and that the nine smaller plants were approximately three to five weeks old, also being post-nursery phase. So far as the stolen electricity was concerned, the estimated quantum of the theft between 23 January 2018 and 15 May 2018 was $10,206.79.
Appellant’s background
The appellant was born in North Vietnam in 1965. He was 52 years of age at the time of offending, and 53 at the time of sentence.
The appellant did not complete his secondary schooling in Vietnam because of social dislocation then occurring in his country. In 1982, he and his sister travelled to Hong Kong, where they spent approximately two years in a refugee camp. In Hong Kong, the appellant had no formal schooling or employment, although he did learn English ‘in an informal manner’.
At the age of 19, the appellant came to Australia. He became an Australian citizen in 1986. He married in 1988. He has two adult children, one of whom is in employment and the other engaging in tertiary education.
Since arriving in Australia, the applicant has had a long and steady work history as a storeman and courier, eventually becoming a self-employed courier. Character references tendered on the plea from a priest and former employer supported the contention that the appellant enjoyed good character prior to committing the present offences.
On the plea, a report was tendered from a psychologist, Mr Jeffrey Cummins, who examined the appellant in June 2019. Mr Cummins expressed the opinion that, at the time of his offending, the appellant was suffering from a mental health condition in the form of a gambling disorder of moderate severity. Mr Cummins said:
As a result of suffering the Gambling Disorder, in my opinion his perception, judgment and reasoning ability were impaired and this was of relevance to what motivated his offending behaviour. Further, the desire to spend more money on gambling was of relevance in terms of what motivated his offending behaviour. His offending behaviour was also partly motivated by a desire to generate income to service the interest on the mortgage on the property where cannabis was being hydroponically cultivated. In my opinion, at the time of offending he was not suffering from a Major Depressive Disorder, a Generalised Anxiety Disorder, or a trauma-related disorder, or any psychotic disorder. At interview, he reported that at the time of offending he intermittently felt depressed about the extent of his gambling and the fact he was deceiving his wife about gambling and about growing cannabis.
Currently he reports some symptoms of anxiety and depression (negative ruminative thinking, concentration difficulties and sleeping difficulties), although in my opinion he has not developed a reactive mental health condition (such as a trauma-related disorder or a depressive disorder or an anxiety disorder) in response to being arrested and the associated risk of being incarcerated.
Sentencing reasons
The judge commenced her reasons for sentence with a description of the appellant’s offending.[5] She then said that the appellant fell to be sentenced under s 72B(b) of the Drugs, Poisons and Controlled Substances Act, that is to a maximum of 15 years’ imprisonment, because it had not been established, on the balance of probabilities, that the appellant’s cultivation was not for any purpose related to trafficking.[6] The judge then said:
[5]DPP v Pham [2019] VCC 1243, [1]–[17] (‘Reasons’).
[6]Ibid [18].
This is properly characterised as a sophisticated, ongoing enterprise of appreciable size.
The usual sophisticated hydroponic set up for cultivation of cannabis for profit was present. Tubs, a reticulated watering system, growth enhancers, heat globes, light shades and insulation were all present and operational. The electricity was diverted, thus achieving the dual purpose of getting the power for free and avoiding detection by reason of the abnormally high consumption of power required to operate the heat lamps and other equipment associated with the cultivation compared to what might be required [for] ordinary domestic use.
Evidence of two growth cycles was present: the nine small plants and the nine maturing plants. There was also, as I have noted, that bag of dried and harvested cannabis. A traffickable quantity of cannabis is 250g, or 10 plants. Although you have pleaded guilty to a charge of trafficking, and I must sentence you for that, I note that 25kg is the weight threshold for cultivation of a commercial quantity of cannabis. I treat the weight of this crop therefore as at the higher end of a traffickable quantity.
Although the number of plants is well under the number of plants required to come within a commercial quantity, if you count plants rather than weight, and the number of plants is just shortly under double the threshold for a traffickable quantity, the significantly increased yield per plant in recent years is a matter that is often adverted to in sentencing hearings, often to explain an offender’s surprise that fewer than ten plants can weigh in at above a commercial quantity. So they are all matters significant or relevant to take into account in looking at the size of the enterprise and the amount of cannabis likely to be harvested.
It is clear from what was put to me on the plea and from the summary, despite the lies you told when interviewed, that these two lots of plants were your crops, they were grown in your house over a period of four months, and were tended, I am satisfied, solely by you. You intended to profit from the sale of the cannabis. It is not to the point to say that you had received no financial gain as neither crop was yet at the stage of maturity as it was clearly your intention, once they had matured, that you would profit.
The purposes for which sentence are to be imposed are, by s 5 of the Sentencing Act, just punishment, deterrence, both general and specific, denunciation, promoting rehabilitation and protection of the community. It is clear that subject to considerations personal to you, just punishment, deterrence, both general and specific and denunciation, all must loom large in the sentencing mix.
The maximum penalty is one indicator of how seriously the community regards the offence of cultivation for a purpose related to trafficking. People who grow cannabis for profit, at the scale you did, over the time you did, must understand that this is a serious offence that warrants stern punishment.[7]
[7]Ibid [19]–[25].
Next, the judge summarised the appellant’s personal circumstances,[8] noting the absence of any prior convictions.[9] As the judge put it:
Your absence of prior convictions, your age, that is a long time to go through life without being in trouble, your stable family circumstances, your history of hard work and support of your family all count in your favour.[10]
[8]Ibid [27]–[31]. While in the course of this summary, the judge referred to the appellant being 58 years old, he was, as we have said, 53 at the time of sentence.
[9]Reasons [31].
[10]Ibid.
While the judge observed that the appellant had told ‘various lies to the police when interviewed’[11] she noted that once he was charged, he pleaded guilty ‘and did so at a very early stage’.[12] The judge said that the appellant was entitled to have his early guilty plea ‘taken into account in [his] favour and given considerable weight’ which she said she did.[13]
[11]Ibid [32].
[12]Ibid. In fact, the plea was made at a committal mention.
[13]Reasons [32].
The judge accepted that there was ‘some evidence of remorse’.[14] She said, however, that this was not a momentary lapse of judgment. It was a conscious decision to embark upon a course of conduct over a considerable period of time. It involved a considerable amount of time and effort on the appellant’s part, and the judge found that this tempered the weight to be given to the appellant’s expressions of remorse.[15]
[14]Ibid [40].
[15]Ibid [41].
The judge said that, having been caught after having led a blameless life, and now with a belated appreciation of the consequences of his offending, would have a significant deterrent effect on the appellant and would therefore reduce his risk of reoffending.[16] The judge said that she also considered that the anxiety and uncertainty surrounding the prospect of a forfeiture of the appellant’s property interest was a matter properly to be taken into account as mitigatory in his favour.[17]
[16]Ibid [43].
[17]Ibid [44].
The judge concluded her sentencing remarks as follows:
I have already noted that offending by reason of a gambling problem does not mitigate the seriousness of the offending, or lessen an offender's moral culpability. On return of the plea, reliance on a gambling problem as a mitigating factor in that sense was specifically disavowed. I have already expressed the reasons why I was not satisfied, before the plea was adjourned, that the offending was motivated by a gambling problem. Nothing in the additional materials provided has changed that view. The evidence that was ultimately presented to me, the self-report, the attendance at EACH and what was told to Mr Cummins before the original plea, together with the evidence of the limited withdrawals from your bank account over those limited periods, do not establish a causal connection to the offending. In my view, none of those materials established that addressing any gambling problem that you may have would reduce your risk of future offending.
I do not consider this therefore as a case in which any sentence other than a custodial one is warranted. Nor do I consider that, in the circumstances, this is appropriate to be dealt with by way of a combination sentence. This is not a case where a community correction order alone, or in combination with a term of imprisonment, is warranted in order to support rehabilitation already underway, or to provide supervision and engagement with drug, alcohol, mental health or gambling services in order to adequately address the underlying causes of the offending, and so promote your rehabilitation.
…
In my view, having regard to all of those matters, the only appropriate sentence is one requiring a term of imprisonment and the fixing of a non-parole period.[18]
[18]Ibid [53]–[56].
Parties’ submissions
In his amended written case,[19] the appellant accepted that it was open to the judge to describe his ‘enterprise to be of appreciable size, the set up as sophisticated and the cultivation as an ongoing enterprise. The appellant’s role was more than a mere crop-sitter’. Under ground 1, the appellant contended, however, that the judge appeared to have sentenced him on the basis that he was a ‘high end cultivator of cannabis’. This was submitted to be ‘an incorrect conclusion’ which resulted from the judge ‘taking into account several irrelevant considerations’. The ‘irrelevant considerations’ which the appellant submitted the judge took into account were identified by him as follows:
[19]Filed after the granting of leave to appeal.
(i) First, the judge referred to the traffickable quantity of cannabis.
(ii)Secondly, the judge referred to the appellant having pleaded guilty to trafficking. This is probably a slip because at other points the judge refers to the crime that the appellant had pleaded guilty to; so said, it is a slip that in the circumstances cannot be used to save the other errors.
(iii)Thirdly, the judge then referred to the weight threshold for a commercial quantity of cannabis being 25kg which was an irrelevant consideration for two reasons:
(a) first, the appellant was not charged with cultivation of a narcotic plant in a commercial quantity; and,
(b) secondly, there was no evidence that the appellant intended to cultivate a narcotic plant in a commercial quantity, or that he knew he was cultivating a narcotic plant in a prohibited specified quantity.
(iv)Fourthly, the judge (perhaps consistent with the first error it may be thought) again referred to the traffickable quantity and said that the weight of the crop fell at the higher end of a traffickable quantity.
(v) Fifthly, the judge then referred to two quite different matters:
(a) first, the number of plants being under the number of plants specified for the cultivation of a commercial quantity; and,
(b) secondly, the number of plants being shortly below double the threshold for a traffickable quantity.
(vi)Sixthly, the judge referred to ‘the significantly increased yield per plant in recent years’. This was a matter the judge referred to on the plea at page 40 (16). There was no evidence on this matter. The error here is taking into account a consideration upon which there was no evidence. This matter is further developed under ground 4.
(vii)Seventhly, the judge said that each of the above matters were relevant to take into account in ‘looking at the size of the enterprise and the amount of cannabis likely to be harvested.’ For the reasons given above, because the matters were either irrelevant considerations or a matter upon which there was no evidence this conclusion was erroneous.
(viii)Eighthly, to sentence on the basis of ‘… the amount of cannabis likely to be harvested’ is tantamount to inferring that the appellant knew he was cultivating a commercial quantity of cannabis, which was not an element of the offence and a matter upon which he was not to be sentenced.
In support of his contentions that the matters above were irrelevant, the appellant made the following submissions:
(1)The offence of cultivation of a narcotic plant under s 72B is not quantity based. The offence simply prohibits cultivation of a narcotic plant. The crime allows for the prosecution of a potentially wide range of persons who cultivate large amounts of a narcotic plant where intention to so cultivate such amounts cannot be proved, to offenders who cultivate a small quantity of a narcotic plant.
(2)There are several offences in the Drugs, Poisons and Controlled Substances Act which relate to cannabis which are in fact quantity based (for example, s 72 provides that it is an offence to cultivate a narcotic plant in a large commercial quantity (250 kg or 1,000 plants)).
(3)The concept of a ‘traffickable quantity’ is related to the offences of possession and trafficking by virtue of s 73(2) of the Act which provides that the possession of not less than a traffickable quantity of a drug of dependence is prima facie proof of trafficking in that drug of dependence.
(4)The elements of the offence of cultivation of a narcotic plant under s 72B are:
·the accused cultivated a narcotic plant;
·the accused intended to so cultivate a narcotic plant;
·for the 15 year maximum to apply, by the operation of s 72B(a), the accused so cultivated a narcotic plant ‘for a purpose related to trafficking’;[20] and
·the accused intended to so cultivate a narcotic plant for a purpose related to trafficking.[21]
(5)It is not an element of the offence of cultivation of a narcotic plant that the offender cultivated a narcotic plant in a specified quantity. In advancing this submission, the appellant accepted, however, that this did not mean that quantity was irrelevant.
(6)The appellant fell to be sentenced for an offence under s 72B, and not some other offence under the Act. Specifically, he did not fall to be sentenced for an offence involving an intention to traffic in cannabis, an intention to cultivate cannabis in or above a particular prohibited quantity or an offence involving knowledge that the cultivation of cannabis would produce a particular quantity.
[20]We note, however, that s 72B(a) refers to a trial judge being satisfied on the balance of probabilities that the offence of cultivation was not committed by the offender for a purpose related to trafficking in order for the lesser maximum penalty to apply.
[21]See n 20 above.
Under ground 4, the appellant complained that the judge sentenced him, not on the basis of the weight of the cannabis actually found (the air-dried weight of the usable part of the cannabis being 5.40 kg, together with the 149.5 grams of dried female flowering heads found in the refrigerator), but rather on the basis that there has been a ‘significantly increased yield per plant in recent years’,[22] a matter about which there was no evidence.
[22]Reasons [23].
The appellant submitted that the judge should have sentenced him on the basis that ‘it was a reasonable inference that the air-dried weight of the cannabis of 5.40 kg was the amount of cannabis that was relevant to the element of the offence that the appellant had cultivated cannabis “for a purpose related to trafficking”’.
Under ground 2, the appellant submitted that the judge erred in failing to consider that deterrence, denunciation and just punishment could all have been accommodated by a combination sentence involving both imprisonment and a community correction order (‘CCO’). The appellant contended that the judge ‘seemed to regard a CCO as appropriate only to promote rehabilitation’. It was submitted that this was an erroneous approach because a CCO ‘also reflects punitive and deterrent elements of sentencing’.
Under ground 3, the appellant relied upon the arguments he made in respect of grounds 1, 2 and 4, and the following matters in mitigation in support of a submission that the sentence imposed was manifestly excessive:
(i) the appellant was 54 years of age[23] and had led an unblemished life;
[23]As we have already observed, he was in fact 52 at the time of offending and 53 at the time of sentence.
(ii) he had no prior convictions;
(iii) he had worked hard all his life;
(iv) there was evidence of good character;
(v)14 months had elapsed between the time of arrest and sentence during which time the appellant had not re-offended;
(vi) the appellant’s interest in the house has been forfeited;
(vii) the appellant’s wife was ill;
(viii)the appellant pleaded guilty at the earliest opportunity which the judge found at [40] of the Sentence had significant utilitarian value;
(ix) the appellant was remorseful;
(x) the appellant had accepted he had made a bad error of judgment;
(xi)the appellant had admitted his guilt and gambling to his wife and significantly reduced his gambling; and,
(xii) there was evidence that he was unlikely to re-offend.
In response to the appellant’s submissions, the respondent submitted that the appellant was ‘not a “crop-sitter” who offended for a short period of time’. He was ‘the principal in what the sentencing judge correctly found was a sophisticated and ongoing cultivation of appreciable size, which he operated solely for financial gain’. The sentence imposed was within range (ground 3). Moreover, if the appellant established any error on the part of the judge then it was submitted that no different sentence should be imposed upon him.[24]
[24]cf s 281(1)(b) and (2) of the Criminal Procedure Act 2009.
In relation to the eight matters relied upon by the appellant in relation to ground 1, the respondent contended variously that the particular statement complained about either did not affect the judge’s reasoning; alternatively, was a ‘slip which could not have affected the exercise of the sentencing discretion’; alternatively, was reference which provided context in relation to the appellant’s offending; alternatively, was a ‘reference point as part of the judge’s ultimate finding that the weight of the crop was at the higher end of the range for cultivation simpliciter’; alternatively, was a comment the judge was entitled to make.
Specifically, the respondent answered the applicant’s contention as referred to in subparagraphs (i) to (xiii) of [20] above as follows:
(i)the reference to the traffickable quantity of cannabis did not affect the sentencing judge’s (correct) characterisation of the extent of the appellant’s cultivation;
(ii)the reference to the appellant pleading guilty to ‘trafficking’ was clearly a slip, that could not have affected the exercise of the sentencing discretion;
(iii)the sentencing judge’s reference to the threshold for cultivation of a commercial quantity was simply to contextualise the amount of cannabis that the appellant had cultivated. This Court has previously adopted the same approach when describing the seriousness of particular examples of this offence. Her Honour was plainly aware of the offence for which she was sentencing the appellant;
(iv)this comment was also a slip. The statement immediately followed her Honour’s reference to the threshold for cultivating a commercial quantity. Her Honour was intending to articulate her (correct) finding that the weight of crop was at the higher end of the range for the offence of cultivation simpliciter;
(v)these comments were simply reference points as part of the sentencing judge’s ultimate finding that the weight of the crop was at the higher end of the range for the offence of cultivation simpliciter;
(vi)this comment relates to a discussion between the sentencing judge and defence counsel during the plea hearing. The discussion was prompted by a submission that was made by defence counsel to the effect that the majority of the total weight of the plants came from nine plants, ‘which is a small number of plants’. As to the need for evidence for this proposition, the sentencing judge was entitled to make the comment given her (considerable) experience as a criminal judge;
(vii)in making this comment, the sentencing judge was merely observing that the number of plants and the weight of those plants were relevant to the size of the cultivation operation and the amount of cannabis that would likely be harvested. There was no error in this comment; and
(viii)this remark did not amount to the sentencing judge inferring that the appellant knew he was cultivating a commercial quantity. Rather, it was relevant to the sole purpose for which the appellant had committed the offending; namely, to sell cannabis for financial gain.
In relation to ground 4, the respondent submitted that the judge did not sentence the appellant on the basis of any ‘significantly increased yield per plant in recent years’. The judge’s statement about there being a significantly increased yield per plant in recent years was merely a response to the appellant’s plea counsel’s submission that a small number of plants accounted for the majority of the weight of all the plants that were seized. During the course of the plea, there was the following exchange between the judge and the appellant’s plea counsel:
HER HONOUR: The landscape’s changed in the last 10 years. So the fact that it’s only nine plants to me is neither here nor there, because they’re clearly high-yield plants.
COUNSEL:Well, that’s right.
In relation to ground 2, the respondent noted that the appellant’s plea counsel had specifically asked the judge to consider a CCO in order to promote the appellant’s rehabilitation through treatment for what counsel asserted was a gambling problem that led to the commission of the offending. The judge’s discussion of the possibility of a CCO in her reasons for sentence was merely responsive to the basis upon which the appellant’s plea counsel had sought a CCO during the course of the plea hearing.
Consideration
It is convenient to deal with the grounds of appeal in the order in which they were argued by the appellant.
Grounds 1 and 4
It is perhaps unfortunate that, in sentencing the appellant, the judge incorrectly said that he had pleaded guilty to a charge of trafficking and that the appellant’s crop was ‘at the higher end of a traffickable quantity’. A fair reading of the whole of her Honour’s reasons for sentence, however, persuades us that the judge sentenced the appellant for the offences to which he pleaded guilty, and not to any other offence.
In respect of the appellant’s contention that the judge appeared to have sentenced him on the basis that he was a ‘high end cultivator of cannabis’, it must be observed that the judge did not use that descriptor. Instead, as her reasons make plain, the judge sentenced the appellant on the basis that he committed a serious example of a serious offence which, in the circumstances of this case, carried a maximum term of imprisonment of 15 years. We see no error in that approach.
Similarly, we are unpersuaded that the judge’s references to ‘yield’ vitiated the judge’s sentence. In context, the references to yield by the judge were responsive to the appellant’s plea counsel’s submissions. In particular, we do not see the judge as having sentenced the appellant on the basis of some weight greater than that disclosed by the evidence.
As to the judge’s references to the threshold for cultivation of a commercial quantity, in our view the judge’s remarks were merely contextual and made in an attempt to explain the relative seriousness of the cultivation offence to which the appellant had pleaded guilty.
Finally, we see no error in the judge’s references to the amount of cannabis likely to be harvested. Plainly, the amount of cannabis likely to be harvested from plants found at the time of the offending was relevant to the objective gravity of the cultivation offence. Additionally, there is no basis for the contention that the judge’s reference to the amount of cannabis likely to be harvested was ‘tantamount to’ some conclusion that the appellant knew he was cultivating a commercial quantity of cannabis (an offence with which he was not charged).
Ground 2
Taken in isolation, the judge’s statement that a CCO was not warranted in order to support or promote rehabilitation, might suggest that the judge had overlooked the punitive elements of that form of sentencing disposition. Again, however, a fair reading of the whole of her Honour’s sentencing remarks does not support such a conclusion.
When one examines the judge’s reasons in the context of the submissions made to her, there is ultimately little (if any) basis for concluding that the judge somehow overlooked the various sentencing purposes that can be accommodated by a CCO or a combination sentence. The judge plainly thought that a combination sentence was not sufficient to serve the sentencing purposes set out in s 5(1) of the Sentencing Act 1991. Her references to a CCO not being warranted for rehabilitation purposes was, again, no more than responsive to the submissions that had been made on the plea by the appellant’s counsel.
Ground 3
In sentencing the appellant on the cultivation offence, the judge was faced with a serious example of a serious crime, carrying (as we have already said) a maximum term of imprisonment of 15 years. Additionally, the theft charge was not without significance — both as to the amount of electricity stolen, and the purpose for which it was stolen (making the cultivation offence more difficult to detect).
While one cannot get too carried away by percentages, on the cultivation charge the appellant was sentenced to less than 15 per cent of the maximum. Moreover, the sentence on the theft charge was made wholly concurrent. Notwithstanding the mitigatory matters relied upon by the appellant, his contention that the sentence was wholly outside the permissible range must be rejected, as must his complaint of manifest excess. Indeed, on one view, the total effective sentence and non-parole period imposed by the judge were moderate.
Conclusion
The appeal will be dismissed.
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