Court of Appeal (Vic)|2010-10-22|Before: ASHLEY and WEINBERG JJA

Bennett v The Queen [2010] VSCA 280 (22 October 2010)

R v Bennett (Unreported, County Court of Victoria, Judge Howard, 9 June 2009)

2 The applicant, Craig Ashley Bennett, pleaded guilty in the County Court at Melbourne to one count of trafficking in a drug of dependence, namely Cannabis L (count 1), and one count of conspiracy to cultivate a narcotic plant, also Cannabis L (count 2). The maximum penalty on each count was 15 years' imprisonment. He was sentenced to two years' imprisonment on each of counts 1 and 2. The sentencing judge ordered that six months of the sentence on count 1 be served cumulatively upon the sentence on count 2 making a total effective sentence of two years and six months. His Honour fixed a non-parole period of one year and eight months.

3 The applicant is one of a number of offenders whose criminality was brought to light as a result of an investigation into major drug dealing carried out by Victoria Police between August 2005 and January 2006. That investigation was code-named 'Operation Jedi'. The sentencing judge observed that it involved the time and effort of many police officers and forensic and drug experts, the covert recording of thousands of hours of telephone intercepts, surveillance of suspects, and the seizure of substantial quantities of drugs. His Honour commented, when sentencing the applicant, that he had recently sentenced three of the principal offenders, John Waters, Boris Trajkovski and Tomislav Samac to lengthy terms of imprisonment.

4 The applicant was sentenced on 1 December 2009. He was originally scheduled to be sentenced on 20 November 2009, along with two other co-offenders, David Reilly and Carly Maziarz. However, he failed to appear on that day, having been hospitalised as a result of attempting suicide on the previous night. His Honour, upon being apprised of that fact, revoked the applicant's bail, and issued a warrant for his arrest. At the request of the other two co-offenders, his Honour proceeded to sentence them on 20 November 2009.

5 Count 1 concerned the trafficking of cannabis between 2 November 2005 and 5 January 2006. During that period, the applicant conducted what his Honour described as a Giretti[1] business of wholesale trafficking of about 13 pounds, or 5.89 kilograms of cannabis which he either sold to Waters, or purchased from him in six separate transactions. Those transactions were evidenced by a number of telephone intercepts in which the applicant and Waters spoke in code in order to conceal their dealings.

6 It seems that the applicant was buying from Waters at $2,300 per pound, and selling at either $2,400, or $2,500 per pound. His Honour described this as trafficking at a 'wholesale level', although the amount was said to be at the 'low-level' of trafficking simpliciter. When interviewed by police, the applicant described himself as a 'middle-man' between Waters and Reilly, who were both also parties to the conspiracy alleged in count 2.

7 Count 2 concerned that conspiracy. It involved an agreement between the applicant, Waters and Reilly to grow cannabis hydroponically in what was known as a 'grow-house' at a property at 6 Scott Street, Melton. The property was purchased by Waters from his former wife, who happened also to be the applicant's sister. It was common ground that the applicant knew all along the purpose for which the house had been acquired, and that he was directly involved throughout in the scheme to cultivate cannabis.

8 On 18 January 2006, police executed a search warrant at the property. They found that it was in the process of being prepared for the hydroponic cultivation of cannabis. However, no cannabis had, by that stage, actually been grown. Waters was described as having conceived the idea, sourced the crop, and financed the entire scheme. Reilly had been employed by the applicant on an occasional basis in his plumbing business. It was his task to assist in installing the equipment necessary for the cultivation, and to act as the 'sitter' once the scheme became operational.

9 The applicant's role was to assist Reilly in installing some of the equipment, including black tubs, and pipes that allowed water to run back out to a pump, and then recirculate. He admitted having helped store some of the hydroponic equipment in the shed at the rear of the premises. He claimed that he made no money whatsoever out of his involvement in the scheme. However, he was actively involved in the planning of the venture, having participated in a number of coded telephone conversations with Waters and Reilly. The sentencing judge considered his level of involvement to have been less than that of the other two co-conspirators.

10 Turning briefly to the applicant's personal circumstances, he was 37 years of age at the time of the offending, and 41 years old when sentenced. He came from a disadvantaged background. Despite that fact, he completed Year 10, and part of Year 11, and went on to undertake a four year apprenticeship as a pastry cook. He then worked in that capacity for some 13 years. Thereafter, he trained as a plumber, and ultimately established his own successful plumbing business.

11 The applicant married in 1993 when he was aged 25. There were two daughters of the marriage. They were aged 14 and 12 at the time of sentencing. In 1999, the marriage came to an end. Thereafter, the applicant suffered depression and, at times, became suicidal. In 2003, he made an attempt on his life.

12 The sentencing judge commented that, in spite of the applicant's personal difficulties, he had been a 'wonderful father' to his daughters. He had made generous financial contributions to their lives, as well as having financially assisted his former wife by paying for her to undertake a hairdressing training course.

13 The applicant had been previously convicted of minor offences involving dishonesty. His Honour correctly treated them as irrelevant for sentencing purposes. The applicant had never used drugs, and had no problems with alcohol.

14 A psychological report was tendered on the plea. The author diagnosed depression at the time of the offending, though he did not consider it to have played any significant part in the applicant's involvement in these offences. The applicant's account was that he had simply been 'helping out old friends', and that he had gained nothing from his involvement in either offence for himself. His Honour expressly rejected that assertion, pointing out that the applicant had plainly profited from his offending in relation to count 1 as evidenced by the telephone intercepts.

15 The sentencing judge also had before him a further psychological report, dated 27 November 2009, shortly after the applicant's suicide attempt one week earlier. It seems that the applicant took an overdose of Xanax and Ecstasy pills. He did so as a result of being overcome by fear of imprisonment, and the possible loss of his business.

16 A number of character references were also tendered on behalf of the applicant. They came largely from members of his family. They spoke of the applicant's hard work throughout his life, and obvious devotion to his daughters.

17 The applicant originally relied upon four grounds in support of his application for leave to appeal against sentence. However, ground 1 was formally abandoned. The remaining three grounds are as follows:

The learned sentencing Judge erred by failing to give sufficient weight to the delay of 3 years and 10 months between the offence and sentencing.
The learned sentencing Judge failed to give sufficient weight to the applicant's mental health and the:

a) applicant's experience of imprisonment being more onerous;

risk that imprisonment would have an adverse effect upon the applicant's mental health.

The individual sentences, non-parole period and total effective sentence are manifestly excessive.

18 The sentencing judge dealt with the subject of delay in the following terms:

The final mitigating factor concerns delay. I do take into account, favourably to you, that you have had these matters hanging over you awaiting resolution for a considerable time. That consideration is the stronger where there has been some rehabilitation in the meantime, as is the case for you.
But the issue of delay must be placed in its proper context. As I understand it, there was a good deal of time taken in the preparation of the trial concerning Waters and Trajkovski, and other cases. Notwithstanding your plea at committal, your case did not resolve until shortly before that trial. It should have been possible to have then had your plea heard and sentence passed but the view was taken, by both parties, that the plea should await the trial, which was held between 23 February and 25 May this year. Then it was accepted that I should hear all the Jedi plea hearings before passing sentence so that there might be achieved, if possible, consistency and proportionality as between the different offenders and sentences to be imposed.
Regrettably, there has now been further delay since the completion of all the plea hearings due to a multiplicity of other commitments I have had, none of which is of your own making. This additional delay is also a factor to be taken into account in favour of you.
Now there has been further delay due to you unfortunately attempting to take your life.

19 It was submitted on behalf of the applicant that the sentencing judge fell into error in dealing with delay as a mitigating factor because he reduced the weight to be accorded to that factor by reason of the matters identified in [47]. Reference was made to R v Merrett[2] in that regard.

20 The Crown replied by submitting, as it had in relation to the same point raised on behalf of Reilly in his application for leave to appeal against sentence, that his Honour's comments at [47] should not be viewed as diluting the weight to be given to delay, but merely as 'contextual', or explanatory.

21 As I indicated in my reasons in Reilly v The Queen,[3] I have difficulty in accepting the Crown's submission in that regard. In my view, his Honour did take into account, to some degree, the fact that the Crown had available to it a satisfactory explanation for the delay that had occurred, and he ought not, in the circumstances of this case, have done so. As the Court made clear in Merrett,[4] the relevance of delay lay in the effect which the lapse of time, however caused, had on the accused. It constituted a powerful mitigating factor, particularly when there was evidence that the applicant had undergone a significant measure of rehabilitation.

22 Nonetheless, just as I concluded in Reilly,[5] in my opinion, the error, if such it be, did not have a material effect upon the ultimate outcome in this case. His Honour correctly identified delay as an important consideration, favourable to the applicant, at [46] and [48], and mentioned it again at [49]. If he did discount the weight to be accorded to delay, the sentence actually imposed suggests that he did so only in the most marginal way. In my opinion, when his Honour's reasons for sentence are read as a whole, and the process of synthesis which he undertook is carefully examined, it cannot be said that the sentencing discretion miscarried. I would therefore reject ground 2.

23 This ground arises out of [78] of his Honour's reasons for sentence. In that paragraph, he said:

Your recent suicide attempt also needs to be given careful consideration. This event reflects a significant instability in your mental state. The second psychologist has indicated that incarceration would present a very difficult time for you and that there may be further attempts at self-harm. This prospect needs to be closely monitored by the prison authorities but it is not sufficient in my view to justify the avoidance of prison altogether. It is an additional factor which makes it important for you to have the advantage of parole supervision upon your eventual release from prison.

24 The sentencing judge was well aware of a number of critical facts concerning the applicant's mental health. His Honour knew that the applicant had suffered from a long-standing depressive condition and that he had attempted suicide on the evening before he was to be sentenced. There was before the Court an uncontested opinion by a psychologist that the applicant was having difficulty coping with the thought of imprisonment, and that there was a genuine concern about 'further attempts at self-harm.

25 It was submitted that, in this case, propositions 5 and 6 of R v Verdins[6] were engaged. Yet when dealing with the applicant's deteriorating mental state, his Honour had only addressed that factor in the context of the need for prison authorities to monitor him, and in the setting of a non-parole period. There was no recognition of the extent to which a term of imprisonment would weigh more heavily upon the applicant as a result of his mental state. Accordingly, so it was submitted, those two propositions in Verdins[7] were not given proper weight.

26 It was common ground before this Court that his Honour's observation at [78] to the effect that 'the prospect [needed] to be closely monitored by the prison authorities', but that it would not be sufficient to justify the avoidance of prison altogether, should be understood as referring to the possibility that there might be 'further attempts at self-harm'. There was nothing exceptionable about that statement.

27 The question is whether his Honour failed to give proper weight to the psychologist's opinion that incarceration 'would present a very difficult time' for the applicant. Although his Honour did not refer to Verdins[8] in terms, and might have expressed himself more fully on this point, I am by no means persuaded that he failed to appreciate the significance of the Verdins[9] contention. His Honour's specific reference to the psychologist's opinion, in the context of his mention of the applicant's recent suicide attempt, and his Honour's apparent endorsement of the conclusion that incarceration would present a very difficult time for the applicant, was sufficient, in my view, to indicate that he understood and would give weight to that matter. A judge's reasons for sentence should be read fairly, and as a whole, and not 'construed minutely and finely with an eye keenly attuned to the perception of error'.[10]

29 The sentencing judge set out in comprehensive detail the various mitigating factors that were present in this case. In order to make good this ground, the applicant must demonstrate that it was not reasonably open to his Honour to impose the sentence that he did. When the sentencing task has obviously been performed with care, as it plainly was in this case, it will be difficult for a submission of manifest excess to succeed.[11]

30 It must be remembered that the applicant engaged in both Giretti[12] trafficking, and a conspiracy to cultivate cannabis as part of a sophisticated commercial operation. The sentencing judge balanced the gravity of the offending against the mitigating factors, and concluded that the applicant should be sentenced as he was. In my opinion, it was reasonably open to his Honour to come to that conclusion. I would reject ground 4.

31 It follows that, in my opinion, leave to appeal should be refused.

[3] [2010] VSCA 278 ('Reilly')

[10] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272.

[11] R v Stuttard [2006] VSCA 112, [26]; and R v Abbott [2007] VSCA 32; (2007) 170 A Crim 306, 309-10.

Bennett v The Queen [2010] VSCA 280

At a glance

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Judgment (48 paragraphs)

Bennett v The Queen [2010] VSCA 280 (22 October 2010)

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Cases Cited (3)