Brown (aka Davis) v The Queen [2020] VSCA 60

1 On 12 November 2018, the applicant pleaded guilty in the County Court to charges of trafficking in a drug of dependence, cultivating a narcotic plant, and theft. He was sentenced as follows:

[s 71AC - Drugs Poisons and Controlled Substances Act 1981]

Cultivation of a Commercial Quantity of a narcotic plant

[s 72A - Drugs Poisons and Controlled Substances Act 1981]

[s 74 - Crimes Act 1958]

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

Section 6AAA Statement:

7 years' imprisonment with a non-parole period of 5 years

2 The applicant seeks leave to appeal against the sentence imposed. He relies upon two grounds of appeal:

1. The sentencing discretion miscarried as a result of the judge's:
   • (a) finding that the offence to which the Applicant pleaded guilty on charge 2 was an 'increasingly prevalent offence'; and
   • (b) failure, in making the impugned finding in (a), to accord the Applicant procedural fairness.
2. The sentencing discretion miscarried as a result of the judge's:
   • (a) finding that a direct consequence of the Applicant's offending was that the premises in which the cannabis crop was located was damaged by fire; and
   • (b) failure, in making the impugned finding in (a), to accord the Applicant procedural fairness.

3 For the reasons that follow, we would grant the applicant leave to appeal, treat the appeal as having been heard instanter, and order that it be allowed. We would accordingly resentence the applicant to a total effective sentence of 4 years' imprisonment, with a non-parole period of 2 years and 3 months.

Circumstances surrounding the commission of the offences

4 On 13 February 2018, police received a request to assist the Metropolitan Fire Brigade in relation to a house fire in Karin Crescent, Glenroy. On arrival, police were informed by Fire Brigade staff that the premises had been modified to accommodate a hydroponic setup for the purposes of cultivating cannabis.

5 On the following morning, police executed a search warrant at that house.[1] The house was a two storey building with, relevantly, one room only on the ground floor, and four rooms on the first floor. As indicated, the upstairs rooms had been modified to accommodate a hydroponic setup, while the downstairs room had been modified for the propagation of cannabis seedlings. A total of 226 plants was seized, weighing 17.36 kilograms. Police also located an illegal electricity bypass.

6 The applicant leased the property in Karin Crescent, Glenroy. He was not present when the warrant was executed. He left Australia on 15 February 2018, and travelled with his family on holiday to Thailand. At some point, he became aware that the authorities had discovered the crop at the Karin Crescent address. He nonetheless returned to Australia on 7 March 2018, and was then arrested.

7 The applicant took part in a record of interview, in the course of which he made detailed and unqualified admissions. In his written case in support of his application for leave to appeal, he submitted that he had made admissions concerning his past offending in relation to which offending the police had no evidence. He further submitted that but for his admissions, these matters would likely never have come to light.

8 The applicant confirmed that he had rented the Karin Crescent property, and had modified it to grow cannabis. He told police that he grew the plants himself, that he had purchased all of the equipment, and that he had set it up. He admitted that he had installed the electricity bypass in order to avoid paying for electricity.

9 Relevantly, he admitted to having sold cannabis throughout the charged period of eight months or so, in one pound blocks, for $2,000 per bag. He estimated that he had made $25,000 from the sale of 12-14 pounds over the preceding months.

10 In her Honour's reasons for sentence, she noted that the applicant had a number of prior convictions. There were five separate court appearances, spanning between September 1991 and June 2007. These resulted in a number of convictions for theft and burglary, as well as other offences, approximately 18 in all. Of particular significance was the fact that in 2007, the applicant had been convicted of cultivating cannabis. He had been sentenced in the County Court to a wholly suspended term of 3 months' imprisonment in respect of that particular offence.

11 Her Honour accepted that the previous conviction for cultivation involved the applicant in what she described as 'low level' offending. He was, on that occasion, harvesting cannabis on behalf of another, or others. This was very different from the role that he played in relation to the cultivation in the present case.

12 The judge observed that the commercial quantity of cannabis is defined as 100 plants, or 25 kilograms. Accordingly, the 226 plants located at the Karin Crescent address was very significantly over the commercial quantity.

13 The applicant had entered a plea of guilty at what her Honour described as 'the earliest opportunity'. At the same time, this offending was serious, he being the principal in this enterprise. The cultivation involved the establishment of five grow rooms. He had profited, not insignificantly, from the sale of this product, and there was the potential for more profit.

14 The judge then made the following observation, which gave rise to proposed Ground 2 of this application:

Through your actions, a direct consequence was that the fire damaged the house and that is a factor that I have had regard to in formulating the appropriate sentence. (s 5(2)(db) Sentencing Act 1991).[2]

No Victim Impact Statement was filed on behalf of the owner of the property. However, I am satisfied that he would have suffered some upset and inconvenience as a result of the criminal activities conducted in his rental property.[3]

16 The judge then said, regarding the objective gravity of this offending:

The seriousness of your offending is such that the Court must denounce your conduct and emphasise general deterrence so that a message will be sent out to the community that this increasingly prevalent offence will not be tolerated and that those who cultivate cannabis, commercial quantity, can expect stern punishment.[4]

17 This latter passage forms the basis of proposed Ground 1, the complaint regarding the offence being described as 'increasingly prevalent'.

18 The judge then dealt with a number of matters personal to the applicant. She noted that he was aged 45 at the time of sentence, and had been aged 44 at the time of the commission of these offences. She recounted his family background, observing that he had never known his father, but that he had a good relationship with his mother.

19 The applicant had limited formal education, having left school part way through Year 8. He had then commenced as a trainee mechanic, and worked in various labouring jobs over the years. He had become unemployed in 2015 as a result of having lost his license through demerit points and unpaid fines.

20 The applicant had one son, aged 24 at the time of sentence, from his former partner. She had died three years earlier from a brain tumour. There were three other children from a subsequent relationship, aged 18, 16, and 11 respectively. The applicant and his subsequent partner were living together, with their three children, in North Melbourne.

21 The judge referred to a psychological report dated 8 November 2018. It is sufficient to say that no reliance was placed upon Verdins[5] principles, though the applicant did have a depressed mood disorder condition, of a mild-to-moderate level. It seems that the reason put forward for the offending was the applicant's difficulties due to loss of employment, and the fact that he was drinking heavily, and financially stressed.

22 Her Honour observed that the applicant enjoyed the broad support of his partner, and numerous friends who were present in Court, and supported him during the plea hearing. He was described in character references as a devoted father, and a hardworking man.

23 Matters in mitigation included the early plea of guilty, which had real utility. Secondly, he had made full admissions when interviewed by police, including as to matters that they would not otherwise have been able to establish. This entitled the applicant to what has sometimes been described as a Doran[6] discount.

24 Finally, her Honour accepted that the applicant was genuinely remorseful. He understood that what he had done was wrong and he had taken full responsibility for his offending conduct. In the judge's assessment, he had 'reasonable prospects' of successful rehabilitation. She noted, in particular, that he came from a disadvantaged and difficult background, which she said she would take into account in his favour.

25 Counsel who appeared on behalf of the applicant on the plea invited the judge to impose a term of imprisonment combined with a Community Correction Order. The prosecutor in response submitted that, having regard to the charge of cultivation of a commercial quantity of a drug of dependence being a category 2 offence, a custodial sentence had to be imposed unless a relevant exception to that requirement could be satisfied. No attempt had been made to rely upon any such exception. The judge said that she was satisfied that there were no 'substantial or compelling' circumstances that would warrant imposing a wholly non-custodial sentence. She then referred to the decision of this Court in Nguyen v The Queen,[7] and the principles laid down therein. She sentenced the applicant as set out in the table at [1] of these reasons.

Ground 1 - prevalence and procedural fairness

26 With reference to the passage identified at [16] of these reasons, the applicant submitted that there had been no evidence adduced, and no submission advanced on behalf of the Crown to the effect that cultivation of cannabis in a commercial quantity was an 'increasingly prevalent' offence. Nor had it been submitted that this was a noto[8]ious fact.8

27 Moreover, the judge had said nothing during the course of the plea about this offence being one of 'increased prevalence'. Yet, it was clear, so it was said, that her Honour had treated such prevalence as a relevant sentencing consideration, calling for particular denunciation and greater weight to be given to general deterrence. In effect, her Honour had treated this as an aggravating factor.

28 It was submitted that the applicant's counsel on the plea had been denied procedural fairness, having been taken by surprise by the judge's treatment of this matter in her sentencing remarks. That, of itself, should vitiate the exercise of the sentencing discretion.

Ground 2 - improper aggravation and procedural fairness

29 It was submitted that during the prosecutor's reply, in the course of the plea hearing, she had submitted that the applicant, by leaving the crop house unattended, was responsible for having endangered the property and other occupants in the vicinity. That submission had been made for the first time in reply.

30 The transcript of the relevant part of the prosecutor's reply reads as follows:

[PROSECUTOR]: It's also submitted that the offence is aggravated by the fact that it threatened the safety of nearby residents. Because of the modifications made to the premises, a fire had erupted and the fire brigade were called. It was a residential area. Neighbours were in close proximity, and this included young families with children. It could have been extremely serious, with the fire potentially spreading and threatening the safety of those neighbours.

It's submitted that the threat of a fire was always a potential. It was something that the offender would have been aware of, and nevertheless left the property in those circumstances for a period of just under a month. There was also, as a result, significant damage to the property.

HER HONOUR: So the period of the one month that the property was left, where's that from?

[PROSECUTOR]: So it was when the offender left to go overseas, I believe to Thailand.

HER HONOUR: All right.

[PROSECUTOR]: And Your Honour, taking those circumstances into consideration, it's submitted that it's certainly not a case where it could be said - - -

HER HONOUR: How do you establish he was aware of the risk of fire?

[PROSECUTOR]: The submission is more that it was something that would have been foreseeable, considering the nature of the bypass.

HER HONOUR: What was that?

[PROSECUTOR]: Well, Your Honour, it's always, with any sort of bypass of electricity, there's always a risk of - - -

HER HONOUR: You say that, but was there a professional assessment done as to the source of the fire in this instance?

[PROSECUTOR]: No there wasn't, Your Honour.

HER HONOUR: No, so that's a bit speculative.

[PROSECUTOR]: As Your Honour pleases.

HER HONOUR: We don't know what caused the fire.

[PROSECUTOR]: No, we don't. I won't take it any further, Your Honour.

HER HONOUR: No.

31 It was submitted that the finding set out in the passage outlined in [14] of these reasons for judgment was not open to her Honour, based on the agreed facts, and that, once again, the applicant had been denied procedural fairness. The exchange between the judge and the prosecutor during the latter's reply could only have served to mislead counsel for the applicant on the plea into thinking that there was no need to address the issue of any supposed link between his offending, and the damage to the premises by fire, so far as relevant sentencing principles were concerned.

32 It was submitted that, in all the circumstances, through either or both proposed grounds of appeal, the sentencing discretion has miscarried and that the applicant should be resentenced by this Court. This would be a fresh exercise of the sentencing discretion, not subject to the constraints of having to demonstrate manifest excess.

33 During oral argument, counsel for the applicant sought to argue that the current COVID-19 pandemic impacted relevantly upon any resentencing exercise to be carried out by this Court. Counsel submitted, from the Bar table, but without any formal evidence to this effect, that personal visits for prisoners were no longer permitted. It was further submitted that in the current circumstances, it took a week to organise even a professional visit, via audio-visual technology. It was contended that this Court should infer that prisoners and their families are suffering a high level of anxiety, perhaps somewhat akin to a Markovic[9] type burden. It was submitted that this should give rise to a 'palpable and discernible discount' on both the head sentence, and the non-parole period, on a resentencing exercise.

Ground 1 - prevalence and procedural fairness

34 It was submitted that in emphasising the importance of general deterrence as a relevant sentencing factor, having regard to the 'increasing prevalence' of the offence of cultivation in a commercial quantity, the judge was doing no more than noting that offending of this type warrants strong denunciation, and the need for general deterrence to be given great weight. That principle had been recognised and accepted by this Court in Nguyen 2016[10] and Mohtadi.[11]

35 Alternatively, it was submitted that if the judge erred in using the term 'increasing prevalence', as distinct from 'prevalence', this was not an error of any great significance. In context, the word 'increasing' was no more than an emphatic recognition of what is plain in any event, that such offending is, today, prevalent.

36 Finally, it was submitted that, for the reasons explained above, there was no denial of procedural fairness.

Ground 2 - improper aggravation and procedural fairness

37 With conspicuous fairness, the written case on behalf of the respondent correctly acknowledged that the judge had taken the damage done to the house (and, seemingly, the potential risk to others) into account when arriving at the sentence imposed.

38 It was further conceded that the exchange between the prosecutor and the judge, during the course of the prosecutor's reply, set out at [30] of these reasons, could have led counsel for the applicant to conclude that there was no need to address this issue, since it was not to be pressed.

39 Accordingly, it was conceded that the sentencing discretion had miscarried, and that it had to be exercised afresh.

40 In that regard, however, it was submitted that no different sentence should be imposed. The trafficking had been engaged in over a number of months, with the applicant selling his own product in substantial quantities. The cultivation had been engaged in over a period of more than two months, compared with, for example, a single day. The number of plants took the cultivation well over the commercial quantity. It was also noted that the applicant had a relevant prior conviction for cultivation.

41 The Crown referred to Nguyen 2017[12] in that regard. In that case, a total of 167 plants, weighing 116 kilograms was located in a shop. The applicant was one of a number of offenders engaged in what was clearly an organised crime syndicate. He was originally sentenced to a total effective term of 6 years and 6 months' imprisonment, reduced on appeal to 5 years, with a non-parole period of 3 years and 6 months. It was submitted that Nguyen 2017 made it clear that the sentence imposed upon the applicant in the present case was entirely appropriate.

42 In response to the applicant's submission before this Court that the COVID-19 pandemic would weigh heavily upon the burden of imprisonment, so far as the applicant was concerned, counsel for the respondent submitted that, on the material currently before the Court (which was basically limited to assertions from the Bar table) it would be difficult to come to any solid conclusion as to what weight, if any, should be given to a factor of this kind.

43 In our view, the sentence of 5 years and 6 months' imprisonment with a non‑parole period of 3 years should be regarded as somewhat stern, and perhaps as being close to the top-end of the range. That is not to say that an argument of manifest excess would necessarily succeed. It might be difficult to say that such a sentence is wholly outside the range reasonably available.

44 However, this Court is not engaged in the task of determining whether the sentence is wholly outside the range. Rather, having considered and accepted the Crown's concession that there was sentencing error that vitiated the exercise of the sentencing discretion, we must consider for ourselves whether a different, and lesser, sentence should be imposed upon that resentencing exercise.

45 In our opinion, that question should be resolved in favour of the applicant. When one has regard to the mitigating factors that were present, the plea of guilty, the finding of genuine remorse, the Doran discount, the strong and positive character evidence placed before the sentencing judge, and the fact that the prior convictions were, on the whole, old (and in some cases, stale), there is a proper basis for some measure of leniency in the resentencing exercise, particularly having regard to the principle of parsimony.

46 So far as relevant comparators are concerned, the two Nguyen cases (Nguyen 2016 and Nguyen 2017) again suggest that the applicant should receive a lesser total effective sentence than that originally imposed.

47 In Nguyen 2016, a total of 241 plants, weighing a combined total of 38.9368 kilograms was located in two houses. The appellant and a number of associates engaged in the cultivation of a commercial quantity of cannabis. He was sentenced to a total effective term of 3 years and 6 months' imprisonment with a non-parole period of 2 years and 6 months. This Court dismissed an appeal on the grounds of manifest excess and specific error. We have already dealt with Nguyen 2017, and that case provides no support for the proposition that no different sentence should be imposed in relation to the applicant, upon a fresh exercise of the sentencing discretion.

48 With regard to the COVID-19 pandemic, and the submission put forward on behalf of the applicant in that regard, we readily acknowledge that this is a matter that is certain to come before this Court again in the immediate future. In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.

49 We would grant leave to appeal and treat the appeal as having been heard and determined instanter. We would set aside the sentences imposed on charges 1 and 2. In lieu thereof, on the charge of trafficking in a drug of dependence, we would substitute a sentence of 2 years and 6 months' imprisonment. Likewise, on the charge of cultivation of a commercial quantity of cannabis, we fix a sentence of 2 years and 6 months' imprisonment. 12 months of the sentence on charge 1 will be cumulated on the sentence on charge 2 (which is the base sentence). The sentence imposed on charge 3 remains as 12 months' imprisonment, and we order 6 months of that sentence is cumulated upon the sentences imposed on charges 1 and 2.

50 This makes a total effective sentence of 4 years' imprisonment, as to which, we fix a non-parole period of 2 years and 3 months.

51 For the purpose of s 6AAA of the Sentencing Act, we declare that but for the applicant's plea of guilty, we would have imposed a total effective sentence of 6 years, with a non-parole period of 4 years.

[1] Pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act 1981 ('Drugs Act').

[2] DPP v Brown (aka Davis) [2018] VCC 1904, [17] ('Reasons'). Section 5(2)(db) of the Sentencing Act 1991 ('Sentencing Act') states that '[i]n sentencing an offender a court must have regard to ... any injury, loss or damage resulting directly from the offence ... '

[5] R v Verdins (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[6] R v Doran [2005] VSCA 271, [14] ('Doran').

[7] [2017] VSCA 286 ('Nguyen 2017').

[8] Nguyen v The Queen (2016) 261 A Crim R 1, 40 [128] (Redlich JA) ('Nguyen 2016'); DPP v Duong [2006] VSCA 78, [17]-[19] (Warren CJ, Ashley JA agreeing at [21]); cf Mohtadi v The Queen [2018] VSCA 238, [48] ('Mohtadi').

[9] Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105 ('Markovic').

[10] (2016) 261 A Crim R 1.

[11] [2018] VSCA 238.

[12] [2017] VSCA 286.