DPP v Hamad [2005] VSCA 118

3 The facts of this appeal are set out in the reasons of Buchanan, J.A. I consider that the sentence on count 1 at least is manifestly inadequate. But in the particular circumstances of this case, including the rehabilitation achieved by the respondent, especially in overcoming the cause of his offending, as well as the factors referred to by Buchanan, J.A., I would as a matter of discretion refrain from re-sentencing the respondent. For these reasons I agree that this appeal should be dismissed.

4 The respondent pleaded guilty in the County Court to a presentment containing one count of cultivating a commercial quantity of cannabis and one count of theft of electricity. He was sentenced to a term of 24 months' imprisonment on the count of cultivation, but the sentence was wholly suspended for a period of three years. On the count of theft the respondent received a community based order requiring him to perform 150 hours of unpaid community work.

5 The Director has appealed against the sentence on the ground that it is manifestly inadequate. Particulars of the ground are stated to be that the sentencing judge failed to adequately reflect the gravity of the offences, failed to take into account or sufficiently take into account the aspects of general and specific deterrence, gave too great weight to matters raised in mitigation and gave insufficient weight to the respondent's prior convictions and the maximum penalties applicable to the offences.

6 The cannabis crop was grown by the respondent at a factory at Campbellfield which he leased and at which he conducted a business supplying cleaning products and paper goods to restaurants. The cannabis was grown in two make-shift rooms constructed in the factory, equipped with hydroponic growing systems consisting of automatic watering systems, transformers, water dams, high voltage lights, shields, nutrients and drying beds. When police searched the premises they found 65 plants and a quantity of dried cannabis in bags. The weight of the crop was 132.64 kilograms. The dried weight of the crop was estimated by a botanist to be approximately 16.7 kilograms. The dried cannabis in the bags weighed 6.16 kilograms. The number of plants cultivated by the respondent was less than a commercial quantity, but the weight exceeded the commercial quantity set out in Part 2 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981.

7 The respondent is now 29 years old. He had eight previous convictions from three court appearances, including convictions for theft, affray, causing serious injury, failing to answer bail and possession of cannabis. The respondent has received community-based orders and a suspended prison sentence, but has not previously been incarcerated.

8 The respondent was the eldest of three children born to Lebanese parents. His father spent most of his time in business activities and little time with his family. The respondent's family moved frequently. The respondent attended five primary schools. When he was eight years old he went to Lebanon with his family, where he was exposed to traumatic experiences arising from the conflict being waged there. A psychologist, whose report was tendered in the course of the plea, expressed the opinion that the respondent had experienced significant psychological problems due to his experiences in Lebanon, being bullied at school, the illness of his mother and his estrangement from his father. The respondent's mother was diagnosed with schizophrenia when the respondent was in his early teens, and was admitted to Royal Park Hospital. His parents divorced and his father remarried. After his mother's psychiatric illness was diagnosed, the respondent was primarily cared for by members of his father's extended family. The respondent felt abandoned and became estranged from his father.

9 Despite his disrupted background the respondent completed VCE and was trained as a chef. At the time of his sentence he was working as a forklift driver. The respondent's employer gave evidence in the course of the plea of the respondent's positive attitude to his work and his good relations with his fellow employees. The respondent is married and has three dependent children, all under the age of four years.

10 The respondent began smoking cannabis in his mid-teens. He found that it calmed his pervasive anxiety and agitation and helped him control a deep sense of anger. The respondent became a heavy user of the substance, consuming as much as seven grams a day. The applicant's increasing resort to cannabis correspondingly increased disorder in his thought processes to the point where he experienced paranoia of delusional proportions. His paranoia led to an increased level of conflict with his wife and others. The respondent increased his consumption of cannabis to ameliorate the anxiety he felt, which served only to intensify his anxiety. The respondent's consumption of cannabis strained his family's financial resources and he commenced cultivating cannabis to relieve the financial pressure he was under. The respondent told the psychologist that he cultivated cannabis to ensure a steady supply for his own use, and planted such a large number of plants because he had not expected so many to survive. The sentencing judge said:

"It is clear on the material available to me, that there was no evidence of any commercial operation for the distribution of the crop.

I proceed to sentence you on the basis that part of the crop was to meet your personal need for cannabis and part of the object of cultivation was the potential for profit-making."

The Director did not dispute this conclusion.

11 After his arrest, the respondent was imprisoned for six days, which he described as a distressing experience. He dramatically reduced, although he did not altogether terminate, his consumption of cannabis, and turned to religion. He began to read the Koran and faithfully observed Islamic practices and participated in the activities of the local Islamic centre. Oral evidence and written testimonials attested to the respondent's embracing religion and a positive change in his relations with his family.

12 The psychologist expressed the opinion that there were "grounds for guarded optimism regarding Mr Hamad's prognosis if he were to receive effective treatment." The grounds for his opinion were expressed to be:

"Firstly, he is an intelligent and insightful man and this augurs well for his capacity to engage in treatment. Secondly, his experience of the criminal justice system has not only been his first despite his long term problems, but has also been deeply aversive for him. His experience of remand has already motivated Mr Hamad to institute constructive change and he expressed the firm desire to participate in further treatment so that he could build upon this progress. Thirdly, despite ongoing strains, Mr Hamad enjoys the ongoing support of his wife and community in the process of recovery. Finally, Mr Hamad responded well to the feedback regarding his condition that could be provided during our consultation and was able to demonstrate an incipient insight into the necessity for change."

13 The sentencing judge also heard oral evidence from the psychologist. Her Honour said:

"[O]n balance I am satisfied that your chances of rehabilitation are good, provided you participate and receive structured treatment for your addiction to cannabis and associated significant psychological and behavioural difficulties......"

14 The harm which cannabis can do, particularly in the case of psychologically vulnerable persons, is illustrated by its effect upon the respondent. This court has said on many occasions that general deterrence is of particular importance in sentencing for the crime of cultivation of a commercial quantity of cannabis, and the commission of the offence generally requires the imposition of an immediate custodial sentence.[1] The seriousness of the crime is reflected in the maximum penalty of 25 years' imprisonment prescribed by Parliament.

15 In the present case there were mitigating factors of some weight. The respondent readily admitted his guilt to the police and pleaded guilty at the earliest opportunity. The sentencing judge found that the applicant was truly remorseful. In a context where the respondent's addiction apparently led to the commission of the offence, it was particularly relevant that the applicant had taken positive steps to combat his addiction and reform his way of life. There was also the absence of an established profit motive for the offence, rather the potential for profit.

16 Counsel for the respondent at the plea submitted that, although a custodial sentence was required, it should be wholly suspended. The Director conceded that the fact that the prosecutor had said during the plea only that a custodial sentence , albeit an immediate one, should be imposed, without specifying the length of the sentence, could properly have been construed in the circumstances of this case as a statement that a sentence of three years or less was open. In my view an appropriate sentence in the present case was one in excess of three years, which would have precluded a suspended sentence. Nevertheless, having regard to the principle of double jeopardy in a case where the respondent is now at liberty and has embarked upon performance of the community based order[2], I do not think that the sentence imposed upon the respondent should be set aside.

17 I would dismiss the appeal.

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[1] See R. v. Clohesy [2000] VSCA 206; R. v. Pastras (1993) 65 A. Crim. R. 584 at 590.

[2] See D.P.P. v Wilson [2000] VSCA 112; (2000) 1 V.R. 481