Vocaj v The King
[2023] VSCA 242
•12 October 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0172 |
| KRISTJAN VOCAJ | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | WALKER and MACAULAY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 October 2023 |
| DATE OF JUDGMENT: | 12 October 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 242 |
| JUDGMENT APPEALED FROM: | [2022] VCC 1659 (Judge Mullaly) |
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CRIMINAL LAW – Appeal – Sentence – Charges relating to falsification of documents, drug offences and dealing with proceeds of crime – Sentenced to 3 years 9 months’ imprisonment with non-parole period of 2 years 6 months – Whether judge erred by sentencing the appellant on incorrect factual basis – No misunderstanding of facts by judge – Impugned passages to be understood in context of reasons as a whole – Whether individual or total effective sentence manifestly excessive – Sentence for individual charge within the range of sentence open to sentencing judge – Modest cumulation of sentences – Total effective sentence reflects principle of totality – Appeal dismissed.
Nguyen v The Queen [2019] VSCA 134, Osman v The Queen [2021] VSCA 176 followed – Le v The Queen [2021] VSCA 220, Dang v The Queen [2021] VSCA 23, Nguyen v The Queen [2021] VSCA 211 discussed.
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| Counsel | ||
| Applicant: | Mr OP Holdenson KC | |
| Respondent: | Ms D Piekusis KC | |
Solicitors | ||
| Applicant: | Marcevksi Lawyers | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
WALKER JA
MACAULAY JA:
On 9 September 2022 the appellant, Kristjan Vocaj, pleaded guilty to five indictable offences and one summary offence, and was sentenced for that offending as follows:
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Falsification of documents[1] 10 years 1 month – 2 Cultivation of narcotic plant, namely, cannabis – commercial quantity[2] 25 years 3 years 3 months Base 3 Permitting use of premises for cultivation of drug of dependence[3] 5 years 9 months 2 months 4 Trafficking in a drug of dependence, namely, cannabis[4] 15 years 1 year 2 months 4 months 5 Knowingly possessing a false travel document[5] 10 years 1 month – Related Summary Offences
15 Dealing with property suspected of being proceeds of crime[6] 2 years 1 month – Total Effective Sentence: 3 years 9 months’ imprisonment Non-Parole Period: 2 years 6 months Pre-sentence Detention Declared: 118 days Section 6AAA Statement: Total Effective Sentence 5 years
Non-parole Period 3 years 10 months
[1]Contrary to s 83A(5) of the Crimes Act 1958.
[2]Contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981.
[3]Contrary to s 72D of the Drugs, Poisons and Controlled Substances Act.
[4]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act.
[5]Contrary to s 195 of the Crimes Act.
[6]Contrary to s 195 of the Crimes Act.
The appellant now appeals against the sentence imposed upon him on four grounds,[7] as follows:
Ground 1: The learned sentencing judge erred in finding the facts which constituted the factual basis upon which the individual sentence of imprisonment was imposed on Charge 2 in that the learned sentencing judge erred in finding that the [appellant] was:
(i)“an organiser of [his] own crop houses” (Reasons for Sentence at [6]); and
(ii)“deeply involved in the cultivation of [his] own crops” (Reasons for Sentence at [9]).
Ground 2: The individual sentence of imprisonment imposed on Charge 2, namely, 3 years and 3 months’ imprisonment, is, in all the circumstances of the case, manifestly excessive.
Ground 3: The Total Effective Sentence imposed, namely, 3 years and 9 months’ imprisonment, is, in all the circumstances of the case, manifestly excessive.
Ground 4: The non-parole period fixed, namely, 2 years and 6 months, is, in all the circumstances of the case, manifestly excessive.
[7]Leave to appeal was granted on 1 May 2023 by a single justice of this Court.
For the reasons that follow, we would dismiss the appeal.
Factual background
In September 2020, investigators from the Eastern Region Crime Squad received intelligence that a number of people of Albanian descent were involved in the cultivation of cannabis in the Eastern Suburbs of Melbourne. In response, investigators made enquiries and conducted surveillance on the following separate residential properties:
(a)4 Ralund Street, Doncaster;
(b)111 Ayr Street, Doncaster;
(c)55 Harold Street, Bulleen; and
(d)8 Ernst Street, Doncaster.
Between 8 September 2020 and 6 November 2020, covert operatives observed the appellant at the Harold Street premises on 9 occasions:
(a)three times on 8 September 2020;
(b)twice on 11 September 2020;
(c)once on 11 October 2020;
(d)once on 12 October 2020;
(e)once on 15 October 2020; and
(f)once on 19 October 2020.
During the same period the appellant was observed at the Ernst Street premises on 11 occasions:
(a)once on 8 September 2020;
(b)twice on 9 September 2020;
(c)once on 10 September 2020;
(d)once on 11 September 2020;
(e)twice on 11 October 2020;
(f)once on 12 October 2020;
(g)once on 15 October 2020; and
(h)twice on 19 October 2020.
The appellant was also observed at the Ayr Street premises twice on 8 September 2020, and also on 11, 12, 15, 16 and 19 October 2020.
In November 2020 the appellant was residing at the Ralund St premises. On 10 November police officers executed a search warrant at those premises. They located and seized several falsified documents in the name of Fabio Bunucci and Christiano Lazzaretto.[8] Those documents were the basis for charge 1, falsification of documents. Documentation in the name of Fabio Bunucci contained references to a different address, 10 Milan Street, Doncaster East. The Milan Street premises were rented by the appellant.
[8]A Victorian Driver’s Licence, a Medicare card and a Costco member card.
At the Ralund Street premises the police also located a false Italian passport in the name of Marco Clarini, with a photograph of the appellant. That passport was the basis for charge 5, knowingly possess a false travel document. They also located $5,440 in cash, which was the subject of the summary charge, dealing with property suspected to be proceeds of crime.
At the Ralund Street premises the police also located 21.36 kg of dried cannabis in four vacuum sealed bags which contained 48 smaller bags. That cannabis had not been grown or harvested at Ralund Street; rather, it had been grown by the appellant at Ernst Street. It was in the possession of the appellant so that it could be sold by persons other than the appellant and who were ‘superior’ to the Applicant. This was the subject of charge 4, trafficking in a drug of dependence.
On 10 November the police also executed search warrants at Harold Street, Ernst Street and Milan Street. The searches revealed that sophisticated hydroponic systems had been installed in the houses at these premises to allow cannabis to be cultivated. During the searches the following quantities of cannabis were located:
(a)Harold Street: 25 plants weighing a total of 18.42 kg;
(b)Ernst Street: 43 plants weighing a total of 92.08 kg; and
(c)Milan Street: 52 plants weighing a total of 92.6 kg.
These matters formed the basis of charges 2 and 3.
Charge 2 was a ‘rolled up charge’ alleging that the appellant was involved in cultivating the cannabis crops at Ernst Street and Harold Street.
(a)The appellant admitted that he grew the cannabis at Ernst Street, having learnt how to do so from other persons.
(b)The appellant admitted that he attended at the Harold Street premises on occasion, assisting others in the growing of that crop when required. His name was on the lease of those premises.
While admitting those matters, the appellant’s case was that he had not set up the equipment at either of those premises and had made no financial investment in the crops grown at those premises. Rather, he was subservient to those that had done so. With respect to those two premises, the appellant claimed ‘he was “a servant” who was to be, and who expected to be, rewarded for his work’. On the plea the prosecution accepted the way in which the appellant characterised his involvement in the cultivation at Ernst Street and Harold Street.
Charge 3 was that the appellant had permitted premises rented by him, namely the Milan Street premises, to be used for cultivation of cannabis. His case was that he received $1,000 for what he did and was not otherwise involved in any manner whatsoever in the cultivation of the cannabis crop grown at those premises.
Sentencing reasons
The sentencing judge commenced his reasons by outlining the appellant’s offending. In the course of doing so, his Honour said as follows, in paragraphs 5 and 6:
This was a well-organised criminal operation. It is clear a group of relatives and associates with connections to Albania operated together to cultivate and distribute cannabis in the Eastern suburbs. You were part of that with your crop house and then being connected to a house where others were doing the cultivating. And finally, you were also part of the distribution of cannabis by storing bags of harvested cannabis in the house where you were living. I point out that there was no crop in that house. The gravity of these cannabis cultivation and trafficking crimes is in part determined by the quantities involved but also important is the role of an accused in the whole criminal operation. This court often deals with offenders at the lowest level; crop sitters as they are described.
Less often before the courts are the more important organisers and drug entrepreneurs. In this case, it is clear that you are an organiser of your own crop houses. It was submitted by your counsel that you were nonetheless at a lower level than the true organisers and entrepreneurs, principally, an uncle of yours, who escaped or went back to Europe before the raids and warrants occurred. Before dealing in more detail with your personal circumstances and the reasons you joined with your uncle, I need to again refer to the gravity of the offending with particular reference to the most important sentencing purposes.[9]
[9][2022] VCC 1659, [5]–[6] (‘Reasons’) (emphasis added).
The judge then turned to the matters relevant to an assessment of the gravity of cultivation offences, noting that he must consider all the circumstances of the offending, including the tasks done by the offender, the nature of the offender’s relationships with other offenders and the likely benefit to be expected by an offender from the cultivation. In addition, the size and weight of the crop, and the sophistication involved in setting up and committing the cultivation and trafficking offences are important in assessing overall gravity.[10]
[10]Reasons, [7].
The sentencing judge then observed that this Court has ‘made clear that general deterrence is a very significant sentencing purpose, no matter what the role or level of a particular offender’. His Honour also observed that denunciation is also important.[11]
[11]Reasons, [8].
Then the judge said this, in paragraph 9:
The efforts and expense involved in establishing these indoor cultivation factories, that is, within ordinary domestic homes, makes it clear that sizable profits are expected by the organisers. Plainly in your case, the crimes you committed are serious and of significant scale in terms of volume or weight and sophistication of how the crimes were committed. You are connected with more than one property and you were deeply involved in the cultivation of your own crops as you frankly admitted. Also, you had possession of a significant amount of cannabis bagged ready for sale. The operation involved all aspects of the crime of growing then moving cannabis to the users.[12]
[12]Reasons, [9] (emphasis added).
The emphasised parts of paragraphs 6 and 9, quoted above, form the basis for ground 1 of the appeal.
His Honour then addressed the appellant’s moral culpability, in the following terms:
Also, false documents were used to secure properties that were to be used as cannabis production houses. It was an operation involving a number of other offenders. Some have been sentenced in the Magistrates Court and another is awaiting trial and at least one has disappeared overseas. On any measure, this was organised crime and you played an important and trusted role within the organisation. As to your moral culpability, you knew what you were doing was criminally wrong. However, why you were involved is wrapped up in aspects of your personal circumstances and I turn to those now.[13]
[13]Reasons, [10] (emphasis added).
Then the judge set out the personal circumstances of the appellant. He took into account all the matters raised in mitigation by the appellant, as set out below in our discussion of ground 2.[14]
[14]Reasons, [10]–[16].
The judge stated that he had ‘ensured that appropriate consideration has been given to the totality of what are connected crimes’ in an overall criminal operation of which the appellant was a part.[15] He also indicated that he had examined the comparative cases on which the appellant relied, but observed that ‘no other sentence is determinative of another’.[16] Finally, he stated that he had ensured that the principle of parsimony was ‘to the fore’.[17] His Honour then imposed the sentences set out above.
[15]Reasons, [17].
[16]Reasons, [17]–[18].
[17]Reasons, [18].
Ground 1
Ground 1 alleges specific error by the sentencing judge, namely that the judge made factual errors by sentencing the appellant on the factual basis that the applicant was:
(a)‘an organiser of [his] own crop houses’; and
(b)‘deeply involved in the cultivation of [his] own crops’.
The appellant submitted that he had never admitted to either of those matters, in either his record of interview or his submissions on the plea. On the basis of that material and the prosecution opening, which formed the factual basis for the sentencing exercise, the applicant submitted that:
(a)he had no proprietary interest in any cannabis crop, and did not ‘own’ any such crop;
(b)he had not invested any money in financing or establishing any of the hydroponic systems or crops at any of the premises in issue;
(c)he had not ‘organised’ the crops at either Harold Street or Milan Street;
(d)his only admissions related to the crop grown at Ernst Street (save for his bare pleas of guilty concerning Harold Street).
The appellant thus submitted that it was not open to the sentencing judge to make the findings of fact set out in [22] above.
In our opinion, ground 1 is not made out. The appellant’s submissions in effect parse the judge’s choice of particular words in two sentences of the sentencing reasons so as to seek to demonstrate error. However, the sentencing reasons are not to be read and interpreted as if they were a statute. More importantly, as the respondent submitted, the particular statements must be read in light of the sentencing reasons as whole, and in light of the admissions made by the appellant.
First, the appellant accepted in his written submissions on the plea, and in oral argument, that he was ‘more than a mere crop-sitter’, at least for Ernst Street. As Priest and Beach JJA observed in Nguyen v The Queen:
While cases involving the commercial cultivation of narcotic plants are often categorised by reference to whether the accused is, on the one hand, a crop sitter or played some ancillary role or, on the other hand, was an organiser or played a principal or proprietary role, the issue of the role of an offender involved in such offending is not a binary one. Moreover, while the term “crop sitter” may be a useful shorthand description in a case where it is clear that the offender’s role is a low-level one, it is not a term of art of fixed and precise meaning. A sentencing judge is required to sentence an offender found guilty of commercial cultivation of a narcotic plant by reference to all of the facts of the case (including all of those able to be gleaned about the offender’s role and involvement) and not by reference to whether the offender can be given some particular appellation.[18]
[18][2019] VSCA 134, [59].
That is, the term ‘crop-sitter’ is not a term of art, but was plainly being used in the appellant’s submissions as a label for a person who played the least significant role in the criminal organisation in issue in this case. The appellant submitted that he ‘did more than simply guard the crop [at Ernst Street] for safe-keeping’; rather he was ‘hands on, tending to the plants on a frequent basis’. He accepted that he hand-watered the plants and kept nutrients for them at Ralund Street. He also accepted that he was a ‘not unwilling servant’ of the principal of the enterprise. But, he submitted, he was ‘far from … being the head honcho at the top of the hierarchy’.
In these circumstances, the appellant fell to be sentenced for charge 2 on the basis that he was not on the lowest rung of the ‘well-organised criminal operation’ the police had identified. He accepted as much. That is so even though his role was more limited at Harold Street, and even accepting that he had made no financial contribution to the crop he cultivated at Ernst Street or to the crop he assisted in cultivating at Harold Street. The plea was conducted on the basis that his role in the organisation was somewhere between the least serious and the most serious, which the sentencing judge implicitly accepted in paragraph 6 when his Honour referred to the submission that the appellant was ‘at a lower level than the true organisers and entrepreneurs’. This intermediate role is also reflected in the judge’s finding in paragraph 10 that the appellant ‘played a trusted and important role’ in the criminal organisation.
Secondly, in so far as the appellant focuses on the judge’s statement in paragraph 9 that the appellant was ‘deeply involved in the cultivation of his own crops’, emphasising the plural ‘crops’, that statement did not reflect any factual error. That is because the appellant admitted to cultivating cannabis at Ernst Street, and he plainly had cultivated more than one crop there, given that he admitted that the dried cannabis found at his home in Ralund Street had been cultivated at, and harvested from, Ernst Street; and there were different cannabis plants growing at Ernst Street on the date of the execution of the search warrant at that property.
Thirdly, in so far as the appellant contends that he had no propriety interest — whether legal or beneficial — in the crops at Ernst Street, so much may be accepted. The plea was conducted on that basis. But the sentencing judge’s reference to the appellant’s ‘own crops’ should not be understood in some technical way, having the meaning of ownership pursuant to the law of property or in equity. Rather, it can be — and in our view should be — understood as a more colloquial use of the phrase ‘own crops’, in the sense of the crops that the appellant personally cultivated (at Ernst Street, as he had admitted). Furthermore, in his record of interview he admitted that whatever was found at Ralund Street was his, which included cannabis that had been grown at Ernst Street. To that extent he admitted that crop was ‘his own’, albeit that he may not have been admitting to technical legal ownership.
Fourthly, in relation to the reference in paragraph 6 to the appellant being an ‘organiser’ of his ‘own crop houses’, with an emphasis on the plural ‘houses’, there is no dispute that the appellant was cultivating cannabis at Ernst Street — he admitted as much in his record of interview. Thus he can properly be described as an ‘organiser’ of the crop house at Ernst Street.[19] Furthermore, the term ‘organiser’ is not a term of art, and the judge plainly understood that the applicant was at a lower level than the ‘true organisers’.[20] Nor do we accept that the judge’s reference to ‘your own crop houses’ reflects a failure to understand the different roles the appellant played at Ernst Street and Harold Street. That is because, in paragraph 5, the judge had set out those two distinct roles: one of having ‘your own crop house’ (which was plainly a reference to Ernst Street), and one of ‘being connected to a house where others were doing the growing’ (which was plainly a reference to Harold Street). It is simply not tenable to conclude that, having drawn that distinction in paragraph 5, his Honour had forgotten it, or mistaken it, in paragraph 6.
[19]The appellant appeared to implicitly accept this in his Written Case, where he stated that he had not ‘organised’ the crop houses at Harold Street or Milan Street, but he made no such submission in relation to Ernst Street. He also stated that he had not set up the equipment at any of the premises and had not made any financial investment in the crops grown at any of the premises (which submission includes Ernst Street). However, those matters do no mean that he was not an ‘organiser’ of the crop house at Ernst Street. However, in oral argument on the appeal he submitted that he was not an ‘organiser’ in relation to Ernst Street.
[20]Reasons, [9].
Further, we note that the appellant’s name was on the lease of Harold Street and he attended there on multiple occasions to assist with the cultivation there occurring. In our view he can, in a general sense, be described as an ‘organiser’ of the crop house at Harold Street, even if he did not ‘organise’ the physical cultivation of the crops at those houses. In our opinion, in paragraph 6 the judge was describing the role of the appellant in a general way at both the premises, having earlier noted the different roles played at each. At its highest, the reference to the appellant being an ‘organiser’ of his ‘own crop houses’ was infelicitous language; it does not disclose appellable error.
Thus ground 1 must be dismissed.
For completeness, we observe that even if we had concluded that the sentencing judge made the error or errors alleged in ground 1, we would have dismissed the appeal pursuant to s 281(2) of the Criminal Procedure Act, on the basis that we would not impose any different sentence.
Grounds 2, 3 and 4
Grounds 2, 3 and 4 each allege that an aspect of the sentence imposed on the appellant was manifestly excessive. They can thus be dealt with together.
The principles concerning appellate review of a sentence on the basis that it is manifestly excessive are well established. It is not enough that the appellate court would have imposed a different sentence. Rather, the sentence being considered must be one that is ‘wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion’.[21] In the absence of specific error, the sentence being considered must on its face reveal underlying error. This is no easy task.[22]
[21]Osman v The Queen[2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
[22]Lai v The King [2023] VSCA 151, [16] (T Forrest and Osborn JJA).
In the present case, ground 2 alleges that the sentence of 3 years and 9 months for the offence of cultivating a commercial quantity of cannabis is manifestly excessive. The appellant submitted that he had various matters in mitigation, as the sentencing judge accepted. These included the following matters:
(a)his early guilty plea, which was indicative of remorse, had significant utilitarian value, and was given during the COVID-19 pandemic, so that it attracted the ‘Worboyes discount’;
(b)his custodial sentence would be rendered more burdensome because it was inevitable that, upon his release, he would be deported from Australia;
(c)he had no prior criminal history and had a previous good character; and
(d)the circumstances of the offending meant that the principle of totality had a particular significant in the exercise of the sentencing discretion.
Each of these matters was considered by the sentencing judge.
In our view, the sentence imposed on charge 2 was well within the range available to the sentencing judge in the exercise of his sentencing discretion. None of the matters referred to above require the conclusion that the sentenced imposed was outside the range of sentences open to the judge.
In particular that is so because, in sentencing the appellant, the sentencing judge was required to consider, as his Honour did, not only the matters in mitigation set out above, but also the seriousness of the offending, current sentencing practices and the need for general deterrence and denunciation.
In so far as the seriousness of the offending is concerned, the maximum penalty is 25 years’ imprisonment, indicating the Parliament’s view that this offence, objectively considered, is very serious indeed. Furthermore, as the sentencing judge observed, the quantity of cannabis cultivated and the role of an offender are both relevant to any assessment of the gravity of particular offending. Turning to the particular features of the appellant’s offending, as the respondent submitted:
(a)the appellant had cultivated a total of 110.5kg of cannabis, comprising 68 plants at varying stages of maturity, being 4.4 times the commercial quantity by weight for this drug;[23]
(b)the applicant was personally cultivating the cannabis at Ernst Street, where he had a hands-on role, and where the cultivation had been ongoing for three months;
(c)the charge encompassed cultivation at two separate addresses over an extended period of time;
(d)relatively sophisticated hydroponic setups were in place at both the Harold Street and Ernst Street properties;
(e)although the appellant was less involved in the Harold Street crop, he had previously lived there, the lease was held in his name, and he continued to attend the premises and assist with cultivation when required.
[23]Drugs, Poisons and Controlled Substances Act 1981, sch 11 pt 2 provides that a commercial quantity of Cannabis L is 25 kg or 100 plants.
In so far as the principle of totality is concerned, it was not necessary for the sentencing judge to moderate the sentence imposed on charge 2 in order to achieve an appropriate total effective sentence. In the present case, it is plain that the judge achieved an appropriate total effective sentence by imposing only modest cumulation between the sentence on charge 2 and the other sentences imposed.
Finally, a sentence of 3 years and 3 months’ imprisonment for charge 2 is consistent with current sentencing practice in relation to this offending. In Le v The Queen,[24] Niall JA, with whom Priest JA agreed, upheld a sentence of 5 years’ imprisonment for cultivation of just less than twice the commercial quantity of cannabis where the offender pleaded guilty. That case may be distinguished from the present case in some respects: the applicant there had prior convictions for trafficking in heroin; and the applicant was entirely responsible for the undertaking and stood to gain whatever rewards accrued from the activity.[25] Those matters may explain why the offender in that matter received a significantly greater sentence than the appellant in this matter. But Le supports a conclusion that the sentence imposed on the appellant was not manifestly excessive.
[24][2021] VSCA 220 (‘Le’).
[25][2021] VSCA 220, [23]–[24].
In Dang v The Queen a sentence of 3 years and 4 months’ imprisonment was imposed on a person whose role was ‘slightly above’ that of a crop-sitter, for cultivation of just over twice the commercial quantity of cannabis.[26] In Nguyen v The Queen a sentence of 5 years and 6 months’ imprisonment was imposed for cultivation of 10 times the commercial quantity.[27]
[26][2020] VSCA 24, [3], [7] (Niall and Weinberg JJA) (‘Dang’).
[27][2021] VSCA 211, [10] (Maxwell P and Sifris JA) (‘Nguyen’).
Furthermore, Niall JA observed that recent surveys of cultivation cases, as undertaken in Dang[28] and Nguyen,[29] show that ‘sentences above 3 years and 6 months’ imprisonment are not unusual for people who play a low-level functionary role, and a range of sentences for comparable amounts of cannabis’.[30] The sentence imposed on the appellant falls comfortably within the existing range of sentences that have been imposed for this category of seriousness of the offence, bearing in mind the quantity of cannabis involved in his offending.
[28][2020] VSCA 24, [21]–[26] (Niall and Weinberg JJA).
[29][2021] VSCA 211, [37]–[45] (Maxwell P and Sifris JA).
[30][2021] VSCA 220, [18].
The appellant argued that it was significant that in none of the comparable cases to which reference was made was a ‘Worboyes discount’ applied. He pointed out that in both Dang and Nguyen the offender pleaded guilty in 2019, prior to the COVID-19 pandemic; and in Le the offender pleaded guilty in March 2020, before the effects of the pandemic on the operation of the criminal justice system had emerged. Thus, it was submitted, the weight to be given to the appellant’s guilty plea was significantly greater than the weight to be given to the guilty pleas in those cases, noting that the effect of Worboyes is to require a ‘palpable amelioration of sentence’ for a guilty plea during the pandemic.[31]
[31][2021] VSCA 169, [35].
That submission must be accepted. However, it does not require the conclusion that the sentence imposed on the appellant for charge 2 was manifestly excessive. Firstly, that is because the appellant in fact received a lesser sentence than those imposed in Dang, Le and Nguyen. But, more importantly, comparable cases are not to be treated as precedents.[32] While conformity with principle and consistency in approach will often result in comparable outcomes across different cases, the outcome in one case cannot dictate the outcome in another. Even where there is a discernible pattern, current sentencing practice does not set the limits of the sentencing discretion. By reference to other cases, a sentence of 3 years and 3 months’ imprisonment for cultivating 4.4 times the minimum commercial quantity appears comfortably within the range of sentences open to the sentencing judge.
[32]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
Given all of these matters, a sentence of 3 years and 3 months’ imprisonment on charge 2 was well open to the sentencing judge.
Ground 2 must be dismissed.
Ground 3 likewise must be dismissed. The principal basis for the appellant’s submissions on ground 3 was that the cannabis the subject of charge 4 (trafficking) was cannabis that was the subject of charge 2 (cultivation, which had occurred at Ernst Street). Thus, in imposing separate sentences for charges 2 and 4, there was potential for double punishment. The necessity to avoid double punishment was, he submitted, a further matter in mitigation of sentence.
Totality and the need to avoid double punishment were plainly relevant to the exercise of the sentencing judge’s discretion. There is no suggestion that his Honour failed to have regard to these matters. Importantly, however, the two offences have different elements and reflect different criminality. It was thus open for the sentencing judge to order some cumulation, as the respondent submitted. Both the sentence imposed on charge 4 (14 months’ imprisonment, where the maximum sentence is 15 years’ imprisonment) and the order for cumulation (of 4 months) were modest, undoubtedly reflecting an appropriate adjustment of the various aspects of the sentence to achieve a total effective sentence that reflects the principle of totality.
Ground 4 was directed to the non-parole period imposed, and arose only if the total effective sentence was manifestly excessive. Given our conclusions in relation to grounds 2 and 3, ground 4 must also fail.
Conclusion
For these reasons, we would dismiss the appeal.
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