Criminal Law - Cultivation of narcotic plant in commercial quantity - Theft - Possession of drug of dependence - Appeal against conviction and sentence - Offender's intention to cultivate commercial quantity - Trial judge's directions on offender's intention - Appeal against conviction dismissed - Cumulation - Compliance with 6AAA Sentencing Act 1991 - Appeal against sentence dismissed.

(a) Florina Alecu was convicted of one count of cultivation of a narcotic plant (Count 1) and one count of theft (Count 2); and

(b) Jim Theoharethes was convicted of one count of cultivation of a narcotic plant in a quantity not less than a commercial quantity (Count 1).

2 Prior to trial, Florina Alecu pleaded guilty to one count of possession of a drug of dependence (Count 3). Upon being arraigned, Jim Theoharethes pleaded guilty to one count of theft (Count 2) and one count of possession of a drug of dependence (Count 3).

3 The counts of cultivation were alleged to have taken place at Litchfield between 1 January 2006 and 27 July 2006. The narcotic plant was cannabis. The counts of theft were theft of electricity; and the counts of possession were in respect of cannabis found at the applicants' premises in Hoppers Crossing on 28 July 2006. At trial, Theoharethes did not contest that he was guilty of the alternative to Count 1, namely, the count of cultivation of a narcotic plant. The issue so far as Theoharethes was concerned was his intention with respect to commercial quantity. On the other hand, Alecu contested at trial that she had any relevant involvement in the cultivation or theft.

4 The trial judge imposed a sentence of 1½ years' imprisonment on the applicant Alecu in respect of Count 1 and three months in respect of Count 2, making a total effective term of 21 months' imprisonment, which his Honour then suspended for a period of two years. In addition, his Honour fined Alecu the sum of $350 in respect of Count 3.

5 With respect to the applicant Theoharethes, the trial judge imposed a sentence of three years and six months in respect of Count 1, six months on Count 2 and fined Theoharethes $700 in respect of Count 3. His Honour directed that the whole of the sentence imposed on Count 2 be served cumulatively with the sentence imposed on Count 1, resulting in a total effective sentence of four years' imprisonment. His Honour then fixed a non-parole period of 2½ years.

6 The applicants each seek leave to appeal against their convictions and sentences.

7 The case against Alecu was a circumstantial one. In it, significant reliance was placed upon DNA evidence which (if accepted by the jury) linked Alecu to the cultivation of the cannabis, and thus the theft of electricity.

8 However, shortly prior to the hearing of this appeal, the Crown filed a further statement concerning the DNA evidence it led at trial.[1] A fair summary of the new DNA statement is that the DNA evidence now provides little (if any) assistance to the Crown in establishing its circumstantial case against Alecu.

9 The contrast between the DNA evidence led by the Crown at trial and the DNA evidence as now disclosed is significant. At trial, the DNA evidence against Alecu was an important strand in the cable that was the circumstantial case against her. The new DNA report largely (if not wholly) obliterates that strand.

10 At the commencement of the hearing of this appeal, Senior Counsel for the Crown properly conceded that the new DNA evidence entitled Alecu to a re-trial. He then submitted that as the period of two years during which the period of 21 months' imprisonment was suspended was now substantially completed, an acquittal should be ordered in respect of Counts 1 and 2. Having examined all of the evidence, we agree.

11 In the circumstances, Alecu's application for leave to appeal against conviction is allowed; the appeal is treated as having been heard instanter and allowed; and we direct that verdicts of acquittal on Counts 1 and 2 be entered.

12 At the commencement of the hearing of this appeal, Senior Counsel for the Crown raised an additional matter concerning the form of the presentment. The issue relates to Count 3. Alecu pleaded guilty to this count and was fined $350.

13 As originally framed, Count 3 on the presentment was in the following terms:

Count 3: AND the Director of Public Prosecutions further presents that Jim Theoharethes & Florina Alecu at Hoppers Crossing in the said State on the 28th day of July 2006 had in their possession a drug of dependence namely cannabis L.

14 During the course of pre-trial argument before the jury was empanelled, counsel for Alecu indicated that Alecu was willing to plead guilty to Count 3. Alecu was then arraigned on Count 3 and pleaded guilty. She was then remanded to a date to be fixed and her bail was extended until further order.

15 Later that day, the trial judge raised with counsel whether the presentment was in proper form before the jury panel came into Court. There was discussion as to whether a further presentment should be filed over. The trial judge said, in respect of Count 3 on the presentment:

No, she's pleaded to that - I mean, she's pleaded and will be sentenced on Count 3 as it presently exists, but the Presentment will have to be amended before it goes before the jury.

16 No party sought to submit that his Honour's approach was wrong. In the end, all counsel agreed that the presentment should be amended by deleting '& Florina Alecu' in Count 3; and by changing the word 'their' to the word 'his'. The trial judge then gave leave to make those amendments and the amendments were made.

17 The difficulty raised before us by Senior Counsel for the Crown is that when Alecu came to be sentenced on Count 3 of the presentment, Count 3 did not contain any allegation against her. However, this is precisely what the trial judge contemplated would occur when he said that Alecu had pleaded 'and will be sentenced on Count 3 as it presently exists'. Whilst the Crown did not submit that the course taken by the trial judge (with the consent of all parties) has produced (or would produce) any specific problem, Senior Counsel for the Crown was 'concerned' in relation to potential issues as to the validity of what occurred below. Accordingly, the Crown sought leave to amend the presentment again back to its original form. In support of this application, reliance was placed on OAA v R.[2]

18 The application to amend was not opposed by Alecu. Alecu's counsel's submission was limited to saying that whatever the power of the Court of Appeal to amend the presentment at this stage, no point would be taken by Alecu in relation to this issue. Counsel for Theoharethes took no part in the application to amend.

19 Regardless of whether this Court has power to amend the presentment at this late stage,[3] we are not persuaded to make the amendment sought. The application to amend was made on no material and for no reason other than a concern as to the possible validity of what happened below. There is no dispute between the Crown and Alecu as to the validity of the conviction and sentence on Count 3. In the absence of some controversy between the parties or evidence of some identifiable consequence, we see no basis for disturbing what occurred by consent below.

20 The sole ground argued in respect of Theoharethes' application for leave to appeal against conviction was:

The learned trial judge erred in his direction to the jury on the element of intention involved in the count of Cultivation of a Commercial quantity of cannabis.

21 Early on in his charge, the trial judge gave a standard direction in relation to the drawing of inferences. No complaint is made about this direction. Subsequently, his Honour gave a direction in relation to the element of intention involved in the count of cultivation of a commercial quantity of cannabis. Exception was taken to this direction by counsel for Theoharethes on the basis of what was said to be 'some lack of clarity in relation to the issue of the drawing of an inference in relation to that intention'. In the exception taken, no complaint was made (and nor could it have been made) concerning a direction that the Crown had to establish an inference beyond reasonable doubt that Theoharethes knew there was a real and significant chance that he was cultivating at least 25 kilograms (being the commercial quantity for cannabis) of cannabis. However, in the direction given by his Honour as to the requisite guilty intention, his Honour appeared, at one point, to conflate the issues of Theoharethes' knowledge of the amount he was cultivating with the mere likelihood that he was in fact cultivating a commercial quantity.

22 After exception was taken, his Honour gave the jury a further direction in the following terms:

That is, for example, if someone cultivated a narcotic plant cannabis but thought that they were growing tomatoes then obviously the offence would not be committed because there has to be an intention to grow the cannabis and such things have happened and I won't go through the details but they have happened. But in respect of Count 1, there has to be an intention to cultivate the narcotic plant which of course in the case of the accused Theoharethes is admitted. And there has to be an intention to cultivate the plant in the quantity that is not less than the commercial quantity. A commercial quantity can be determined in a number of ways but the one that we're concerned with here is the weight of the cannabis and as you know it was weighed on the day in which the crop was cut by the investigating police on 27 July 2006 and cannabis that is in excess of 25 kilograms is said to be a commercial quantity.

In this case it was 37 point something. So, there is no doubt that it was a commercial quantity but there has to be an intention to grow in a commercial quantity as well. So there has to be the cultivation of the narcotic plant, it has to be in a commercial quantity and there has to be an intention to cultivate in a commercial quantity. You are asked as a jury to draw an inference adverse to the accused man - I'm concentrating on Theoharethes only at the moment - adverse to the accused man you're asked to draw an inference that he knew that the cannabis that he was cultivating was in excess of 25 kilograms.

He doesn't have to know that that is what a commercial quantity is. Few people would. But he has to know that he is cultivating in a quantity that is not less than a commercial quantity and it was on this issue that Mr Gates put his case. He said to you in the course of his final address and in the course of his opening address that you could not be satisfied that he knew he was growing in excess of 25 kilograms. The Crown case is that you should draw an inference adverse to the accused man that he knew that the quantity of cannabis that he was growing was in excess of 25 kilograms.

That is, that he turned his mind to the weight of the product that he was growing and was aware that he was growing in excess of 25 kilograms. He doesn't have to know the weight of the product that he was growing. Who would? But he has to know that he was growing in excess of 25 kilograms. The Crown says that you can draw an inference adverse to the accused man that he knew that he was growing in excess of 25 kilograms from all the circumstances of the case, from what you have seen of the product when it was in its position and when it was under cultivation and what was there to be seen when the crop was looked at and the law says that if you, the jury, are satisfied beyond reasonable doubt that he knew that there was a real and significant chance that he was cultivating at least the cannabis in the quantity of 25 kilograms, it is open to you to infer that he had the requisite intention.

What I said to you in the course of the charge regarding the drawing of an inference was to this effect. Very frequently the Crown asks juries to draw an inference concerning the intention of an alleged perpetrator from what they did. The Crown says in this case you should draw an inference adverse to the accused man that he knew that there was a real and significant chance that he was cultivating at least 25 kilograms and that you should draw an inference adverse to the accused man that he had the requisite intention to grow a crop in excess of 25 kilograms from the fact of a real and significant chance, if you are satisfied that there was a real and significant chance.

The drawing of an inference is a conclusion based upon other facts that are established to your satisfaction but the law generally regarding the drawing of an inference is that you should only draw one adverse to the accused man if you are satisfied that it is the only inference reasonably open. In this context, I think that is a complicated line of reasoning but nevertheless it is the way the law looks at the question of intention in this context.

23 No complaint was made in respect of this direction. Indeed, counsel before us conceded that what he identified as risks of confusion and misunderstanding may have been different if the direction we have set out above stood alone.

24 There is no substance in the complaints made in respect of the trial judge's directions on the issue of intention. In our view, his Honour carefully explained the issue to the jury and the way in which they were to approach the issue. Specifically (and contrary to the submissions made on behalf of Theoharethes), there was no risk that the jury would have treated the trial judge's directions as equating proof of 'a real and significant chance' that what was being cultivated exceeded 25 kilograms with an intention to cultivate 25 kilograms and/or with knowledge of the cultivation of 25 kilograms. Whatever risk there was that the jury would conflate the issue of intention with the existence of a commercial quantity was cured by the further direction set out above.

25 During the course of argument, counsel for Theoharethes also submitted that the charge was defective because

(a) there was no adequate attempt made to relate the evidence bearing on the issue of intention (including Theoharethes' answers in the record of interview) to the directions on intention; and

(b) the defence case on intention was not adequately placed before the jury by the trial judge.

26 These arguments were advanced, notwithstanding the absence of an Alford v Magee[4] ground.[5] However, notice of these complaints was given in Theoharethes' outline of submissions.[6]

27 At the outset, it is to be noted that no objection was taken by trial counsel for Theoharethes in relation to these alleged defects. As has often been said, that bears upon the likely substance of the grounds now raised - although it is not decisive. Whilst at one point of his submissions to us, counsel for Theoharethes asserted that objection had been taken at trial to the judge's failure to put the defence case, such objection as was taken was of a different kind. After the further direction which we have set out above was given, Theoharethes' trial counsel made the following submission to his Honour:

Your Honour, in the course of that [direction] I make the observation that it appeared that Your Honour, in outlining the Crown case, told the jury to the effect that the Crown is putting its position in a particular way and did that on my instructor's count five times but only put the defence position on one occasion.

28 At first sight, there appears to be some force in Theoharethes' submission that the trial judge did not adequately relate the evidence to the issue of intention and summarise the salient aspects of Theoharethes' record of interview. This Court has reminded trial judges repeatedly of their common law obligations to relate the evidence to the issues, to summarise the salient aspects of an accused's record of interview and to summarise counsel's arguments.[7] The Court has also stressed repeatedly that the fact that a trial is a short one or that the issues may appear to be straightforward is not an excuse for a judge to fail to comply with his or her common law obligations to which we have referred.

29 In the particular circumstances of this case, however, we do not accept that the judge's failure to adequately relate the evidence to the issue of intention or to summarise the salient aspects of Theoharethes' record of interview constituted a miscarriage. For this trial was not only a relatively short one, but also involved only one issue - intention to cultivate a commercial quantity. The evidence was heard over four days and the addresses and charge all occurred within the space of a day - save for the very last part of the charge. The judge charged the jury on the same day as counsel for Theoharethes addressed the jury and the record of interview was an exhibit available to the jury. And trial counsel for Theoharethes was content that his Honour put the defence position during the charge. He complained only that his Honour did not put it on multiple occasions (as his Honour had allegedly done with the Crown case). One way or another, therefore, it seems that the jury were sufficiently apprised of what they had to decide and reminded of the evidence which to that related.

30 It follows that Theoharethes' application for leave to appeal against conviction must fail.

31 In relation to his application for leave to appeal against sentence, Theoharethes argued two grounds, namely:

1. The learned trial judge erred in ordering total cumulation as between the counts of Cultivation (commercial quantity) and theft.
2. The learned trial judge erred in failing to indicate the sentence he would have imposed on the count of theft - but for the plea of guilty.

32 The Crown concedes that it was not open in the circumstances of this case for the trial judge to order total cumulation of the sentence imposed on Count 2 with the sentence imposed on Count 1. However, that is not the end of the matter. In order for an appeal against sentence to be allowed, this Court must be satisfied that a different sentence should have been passed from the one of four years' imprisonment with a non-parole period of 2½ years.[8]

33 We are not satisfied that a different sentence should have been passed. The maximum term of imprisonment for cultivation of a commercial quantity of a narcotic plant is 25 years. The maximum term of imprisonment for theft is 10 years. So far as prior convictions are concerned, Theoharethes has 84 findings of guilt from 18 Court appearances. These include multiple counts of burglary, dishonesty offences and counts of trafficking a drug of dependence (heroin).

34 Further, the offending constituted by Count 1 was on any view serious, particularly having regard to the level of sophistication involved. The cannabis crop was extremely well hidden. The crop was entirely underground in an old water tank. It was necessary for anyone seeking access to the crop to go into what appeared to be an old shed on the property, remove the flooring of that shed, gain access to a trapdoor that was locked and go through that locked trapdoor into the water tank underneath. It was a substantial water tank that had been divided into three rooms. A sophisticated hydroponic set-up was in place which involved complicated ventilation tunnels, power being obtained from the domestic supply with the meter bypassed, timers and a watering system. Additionally, the property was located in a remote area some ten kilometres from Donald in the Mallee.

35 In our view, the sentence passed by the trial judge was well open. No different sentence should have been passed. Whilst the median total effective sentence for cultivation of a commercial quantity of narcotic plants is currently two years, six months and 15 days,[9] we are satisfied that the previous bad history of Theoharethes and the seriousness of this particular offence justifies not only the individual sentences, but also the total effective sentence and non-parole period. It follows that ground 1 must fail, notwithstanding the concession made by the Crown.

36 In ground 2, complaint is made that the trial judge erred in failing to indicate the sentence he would have imposed on the count of theft but for the plea of guilty. Section 6AAA of the Sentencing Act 1991 provides:

6AAA. Sentence discount for guilty plea

(1) If-

(a) in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because the offender pleaded guilty to the offence; and

(b) the sentence imposed on the offender is or includes-

(i) an order under Division 2 of Part 3; or

(ii) a fine exceeding 10 penalty units; or

(iii) an aggregate fine exceeding 20 penalty units- the court must state the sentence and the non-parole period, if any, that it would have imposed but for the plea of guilty.

(2) If an offender is sentenced for more than one offence in the same proceeding and subsection (1)(a) and (b) apply, the court must state, in respect of any total effective period of imprisonment-

(a) the sentence; and

(b) the non-parole period, if any-

that it would have imposed but for the plea of guilty and need not state those matters in respect of each offence.

(3) In the case of a sentence other than a sentence referred to in subsection (1)(b), the court may state the sentence that it would have imposed but for the plea of guilty.

(4) If the court makes a statement under this section, it must record or cause to be recorded (whether in writing or in another form) in respect of each offence and the total effective period of imprisonment, if any, the sentence and the non-parole period, if any, that it would have imposed but for the plea of guilty.

(5) For the purposes of this section, an aggregate sentence imposed in respect of two or more offences is to be treated as a sentence imposed in respect of one offence.

37 Whatever operation s 6AAA has in a case where an accused is sentenced at the same time for an offence to which he or she has pleaded guilty and another offence to which he or she has pleaded not guilty is a matter that can be debated at another time. On one view of s 6AAA(2), the trial judge was required to state the sentence and non-parole period that he would have imposed but for the plea of guilty, in respect of the total effective period of imprisonment (rather than merely the period of imprisonment imposed on the theft count). On this construction, ground 2 would be misconceived.

38 However, as with ground 1, this ground fails because, as we have said above, we are not satisfied that a different sentence should have been passed, having regard to Theoharethes' antecedents and the seriousness of Count 1 relating to the level of sophistication involved in the cultivation operation.

39 It follows that Theoharethes' application for leave to appeal against sentence must be dismissed.

[1] Statement of Aimee Elizabeth Pollett, Forensic Officer, dated 13 August 2010.

[2] [2010] VSCA 155, [13]-[19] (Maxwell P and Weinberg JA).

[3] As to which see OAA v R [2010] VSCA 155, [13]-[19] and Fahey & Ors v R [2001] QCA 82; (2001) 121 A Crim R 390 (although in that case noting that s 572 of the Criminal Code (Qld) provided (unlike s 372 of the Crimes Act (Vic)) a power to amend at any stage of the trial 'or after verdict').

[4] [1952] HCA 3; (1952) 85 CLR 437.

[5] See also R v AJS [2005] VSCA 288; (2005) 12 VR 563, 577 [55].

[7] See Scetrine v R [2010] VSCA 194, [16] and the cases referred to therein.

[8] See s 568(4) of the Crimes Act 1958.

[9] Sentencing Advisory Council, Sentencing Snapshot No 104: Cultivating a Commercial Quantity of Narcotic Plants, June 2010, 7.