DPP v Rzek [2003] VSCA 97

2. Save, perhaps, in exceptional circumstances, cultivation of a narcotic plant, being cannabis, in a commercial quantity requires the imposition of a custodial sentence, though it may possibly be suspended wholly: R. v. Clohesy[1] The maximum penalty provided by Parliament is very substantial (25 years' imprisonment and a fine of $300,000) and is the same as for trafficking in a commercial quantity of the drug.[2] This was not an exceptional case: rather, as not infrequently happens, the evidence simply was incomplete as to the purpose of the respondent. Mr. Priest, when asked, was unable to cite any case of cultivation of cannabis in a commercial quantity where a superior court had sanctioned or imposed a non-custodial sentence. In any case, the fine of $4,000 was, as Mr. Coghlan submitted, almost derisory.[3]

5. For these reasons, and those given more extensively by Eames, J.A., which I have had the benefit of reading, I agree that the appeal should be allowed and the sentence varied as his Honour proposes.

10. I agree for the reasons advanced by Eames, J.A. that the penalty imposed upon the respondent could be appropriately described as almost derisory having regard to all the circumstances in this case.

13. I also agree with the disposition of the appeal proposed by him.

18. This is an appeal against sentence brought by the D.P.P. under s.567A of the

Crimes Act 1958. The appeal relates to sentence imposed on Brian Rzek by a Judge of the County Court on 27 January 2003. On that day the respondent had pleaded guilty to one count of cultivation of a narcotic plant, Cannabis L, in a quantity not less than a commercial quantity, contrary to s.72A of the Drugs, Poisons and Controlled Substances Act 1981 ("the Act"). The respondent was convicted and sentenced to pay a fine of $4000. The sole ground of appeal is that the sentence was manifestly inadequate.

22. The maximum penalty for the offence is 25 years imprisonment and a fine of $300,000[4].

25. On 29 March 2002 a fire commenced on commercial premises owned by the respondent in Springvale. Upon the attendance of CFA officers and police it was discovered that the fire had been started when artificial lighting which had been installed as part of an elaborate hydroponic gardening arrangement had caused a cannabis plant to ignite. Upon inspection 147 plants were found, together with 20 lights and fittings, 10 transformers, two timers, five electric fans, and a variety of other equipment. The plants ranged in height from 7 centimetres to 1.5 metres.

28. Of those plants 66 were described as juvenile and were said to be there as backup in case other plants died. By virtue of Part 2 of Schedule 11 (column 2) of the Act a quantity of more than 100 plants constitutes a commercial quantity.

31. The respondent was interviewed by police and said that he had been growing the plants for personal use, in that cannabis gave relief for pain which he suffered in his back. He said that he did not smoke the drug but took it as tea. He denied having any intention of selling any of it. He had obtained the seeds from a man in a hotel and had sought cultivation advice from persons selling hydroponic equipment to the public (although not advising the true nature of the proposed crop). The respondent told police that he had little expertise as to growing such a crop.

34. In the Court below the prosecutor said that the Crown was not in a position to contend that the respondent was growing the plants for a commercial reason. The prosecutor said the Crown could not say whether that was or was not the reason for his activity.

37. In his submission to the Judge counsel for the respondent submitted that the cultivation had been undertaken solely to produce drugs for relief of pain suffered by the respondent - that pain emanating from chronic back pain and pain in both knees. That contention was sought to be supported by some medical evidence, in particular by a medical report from Dr Darren Savery, dated 13 December 2002, which was tendered on the respondent's behalf. In that report injury to the right knee was disclosed, dating from 1998. The respondent's knee had been the subject of a cartilage operation and the doctor reported that he had advanced osteoarthritic change, with pain for which paracetamol gave no relief. In June 2000 he was prescribed Celebrex, an anti-inflammatory. In October when prescribed a further course of Celebrex the respondent reported abdominal pain, and the doctor advised him that the drug carried a slight risk of the development of a duodenal ulcer

40. On 2 May 2002, upon further attendance at the surgery, the respondent reported chronic low back pain - for the first time. X-rays showed "some evidence of osteoarthritis" and he reported that he used Celebrex for the pain. That attendance was after the respondent had been apprehended by police and released on bail. On 9 October 2002, the respondent attended the doctor again and reported ongoing back and right knee pain. On this occasion, and for the first time, he told the doctor of his impending court case and explained to the doctor that marijuana use had relieved his pain. He reported to Dr Savery on 9 October 2002 that he had ceased the use of Celebrex because of stomach pain. Counsel submitted to the judge that the stomach pain had been caused by an ulcer. Whilst Dr Savery's report did not specifically report an ulcer nor deal with the claim that stomach pain justified the cessation of Celebrex, the judge was entitled to conclude that the respondent ceased using Celebrex because of stomach pain.

43. Dr Savery noted that from April 2000 he had repeatedly recommended that the respondent see a specialist for his right knee but that advice had been rejected. So too he had rejected advice that he undertake physiotherapy.

46. A report from Consultant Psychologist Mr Jeffrey Cummins was also tendered before the judge, in which he reported that the respondent had said he started drinking cannabis tea in 1999 for relief to back and knee pain. He told Mr Cummins that he would drink three or four cups of cannabis tea each evening and would also cook cannabis biscuits.

49. In submissions to the Judge by counsel for the respondent, as supported by the evidence on oath of the respondent, it was asserted that he had engaged on the hydroponic plant cultivation on economic grounds because he was spending between $500 and $600 per week on purchasing marijuana for his tea making. The plant and equipment cost him about $2000 to $3000, so it was submitted.

52. The learned sentencing judge expressed understandable disbelief about some of the matters which were advanced by and on behalf of the respondent. His Honour rejected the respondent's evidence on oath that he was spending $500 - $600 per week, observing that the applicant's wife (who gave evidence and was accepted as a credible witness) would have been aware of it had he been spending such sums of money. His Honour also did not accept that the respondent's back condition caused him to use marijuana to the extent suggested.

55. His Honour said that he could not say what exactly was the purpose of the cultivation exercise but acknowledged that there was no evidence to indicate a purpose in the nature of a commercial enterprise. His Honour said that as to the purpose of the cultivation he would sentence solely on the basis that it was a commercial quantity by virtue of the number of plants, and would not treat it as an enterprise which had a proven commercial purpose.

58. On behalf of the Director it was submitted that having regard to the fact that His Honour rejected the explanation proffered by the respondent it must be taken that there was little evidence of remorse.

61. In sentencing the respondent the Judge identified the following matters:

(1) The respondent was 44 years old and had no prior convictions.

(4) He called two character witnesses and had a number of character references which the judge said were "of some dimension and strength".

(5) He was a married man with a stable relationship, and had two young children.

(6) He had made contributions to the community in church and youth affairs.

70. His Honour concluded that the respondent would be unlikely to re-offend, and exhibited remorse. His Honour noted the impact on his wife and children which would accompany any term of imprisonment[5]. His Honour acknowledged the seriousness of the crime and Parliament's manifest intention to discourage cultivation offences. Notwithstanding the fact that His Honour rejected the respondent's sworn evidence as to his motivation for the offence the Judge regarded this as an offence which was at the lower end of the scale of such cases as confronted Judges in the County Court.

73. In the sentencing submissions below the prosecutor had submitted that a sentence of imprisonment was called for but accepted that it would be open to the sentencing judge, without error, to wholly suspend such sentence. His Honour concluded that a sentence of imprisonment (even if wholly suspended) was not required and that a fine of $4000 was adequate punishment.

76. The principles which apply to a Director's appeal are well established. Such an appeal should only be brought in the "rare and exceptional case"[6] and the court should not intervene unless a very clear case of error has been made out[7].

79. An appellate court may not intervene merely because its members thought the sentence inadequate and that its members would have reached a different conclusion as to the appropriate sentence: see Lowndes v. The Queen[8]. The appellate court may only intervene where material error of law or fact has been demonstrated in the approach to sentencing adopted by the judge. In some cases no specific error of fact or law might be identified and yet the sentence itself might reveal such manifest inadequacy or inconsistency with proper sentencing standards as to constitute error in principle: see R. v. Clarke[9].

82. In R. v. Clarke[10] Charles, J.A. summarised the relevant principles which applied to Director's appeals and identified a range of situations in which intervention of an appellate court may be required. His Honour said this, at 522:

"Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306)."

86. Although the sole ground of appeal asserted manifest inadequacy, Mr Coghlan also submitted that the judge's characterisation of this as an offence at the lower end of the range of such cases before the County Court was simply wrong and that error, he contended, explained the imposition of what was said to be an unduly lenient sentence. Material error in sentencing principle would be disclosed if the characterisation of the facts by the judge was such as to demonstrate that, to use the words of Winneke, P. in D.P.P. v. Whiteside and Dieber[11], his Honour had "seriously and erroneously underestimated the objective gravity of the offences for sentencing purposes".

89. In the present case the Director contends that the error in principle is demonstrated by the fact that the sentence on its face is manifestly inadequate and inconsistent with appropriate sentencing standards. Although Mr Coghlan limited the complaint to the ground of manifest inadequacy he did in effect also contend that intervention was required so as to ensure that the principle of uniformity of sentencing was applied.

92. Mr Priest submitted that since no ground of appeal asserted specific error by virtue of the judge's characterisation of the offence as being at the lower end of the scale, Mr Coghlan should not be permitted to advance such a contention as a side-wind, as it were, when arguing that the sentence was manifestly inadequate[12]. I agree that the Director should not be permitted to advance an argument which amounted to a new ground of appeal, but Mr Coghlan said he was not seeking to do so. He submitted, however, that in assessing whether the sentence was manifestly inadequate this court was in a position to make its own assessment as to where on the scale of seriousness this offence fell, and he submitted that it could not be regarded as being at the lower end of that scale. Understood in that way I agree that the argument advanced by Mr Coghlan does not amount to a complaint of specific error by the judge but rather responds to the judge's remark for the purpose of his submission as to how we should characterise the seriousness of this instance of the offence.

95. His Honour did not spell out what factors led him to conclude that the offence was at the low end of the scale of cultivation offences. The fact that the respondent had not stolen electricity as part of the cultivation was said to have been unusual but no other factor was identified. His Honour may have had regard to the submission made by the prosecutor that a wholly suspended sentence of imprisonment was not inappropriate. As Mr Coghlan conceded, that would not commonly be the position adopted by the prosecution in such cases. His Honour was no doubt also influenced by the fact that he was unable to make a finding as to the true purpose for which the cultivation occurred. The prosecutor expressly conceded that the Crown was unable to prove that the respondent's ultimate intention was to sell the drug and thus, unusually (since in most cases it would be undeniable that the cultivation was a commercial enterprise) the offender was not being sentenced as a person who was engaged in a commercial enterprise. For my part, I do not regard those or any other factors in this case as placing the offence at the lower end of the scale of such offences.

98. Having regard to the judge's rejection of his sworn evidence the respondent was fortunate that the judge was not satisfied that the cultivation was undertaken with the intention of making a profit thereby. Certainly many factors suggested as much, including the fact that the property was purchased supposedly as an investment but was solely used for the crop, the extensive and costly range of equipment, and the implausible explanations which were proffered. It was, however, open to the judge to be unpersuaded as to that purpose. Thus, we must consider the case as being one involving cultivation of marijuana in a commercial quantity by a 44 year old, first offender, without a proven profit motive.

101. The fact that the offence involved cannabis, rather than any other drug, does not make this other than a serious offence. This Court has said that general deterrence is of special importance in sentencing for the crime of cultivation of a commercial quantity of that drug and that such an offence generally requires the imposition of an immediate custodial sentence: see R. v. Clohesy[13]. Mr Priest accepted that that was the general approach which applied to such a case of cultivation of a commercial quantity of the drug. He submitted, however, that this case was distinguishable from Clohesy, as not only was this not a case where a commercial purpose had been established it was a case where the Crown had conceded that a wholly suspended sentence was not inappropriate.

104. Whether a sentence is manifestly inadequate, or manifestly excessive, is a conclusion which either is or is not plainly apparent, and does not admit of amplification as to the reasons why it is so[14]. Is this sentence one that is manifestly inadequate?

107. In my view, even allowing for the favourable factors noted by the judge in the respondent's antecedents - in particular his remorse and good prospects of rehabilitation - the sentence was manifestly inadequate. Once the explanations for his offending were rejected by the judge this was a serious example of what Parliament and the courts have recognised to be a serious offence. A substantial sentence of imprisonment was called for, even if it was to then be suspended in whole or part. In this case not only was that not done but the penalty imposed by way of a fine was exceptionally small[15]. The imposition of a fine of $4000, where the maximum available fine was $300,000, was surprising. Nothing in the material before the judge suggested that a fine of that amount would have constituted a significant burden for the respondent. The judge found that the present income of the respondent as a salesman of new homes was in the order of $30,000 per annum plus commissions on sales. At the time of this offence he was in business manufacturing and selling ducted vacuum, intercom and alarm systems and was netting $1000 to $1500 per week.

110. In R. v. Clarke Charles, J.A. (with whom Winneke, P. and Hayne, J.A. agreed) noted the appropriateness of the observations of King, C.J. in R. v. Osenkowski[16], to the effect that Director's appeals should not be permitted to unduly circumscribe the sentencing discretion of trial judges and in particular that there always remained a place for the exercise of mercy and leniency where a judge, especially an experienced one, intuitively regarded a case as justifying such an approach. Although that factor must be the explanation for the sentence which his Honour imposed, and the right of a judge to act on his or her intuitive appreciation that an offender merited a merciful sentence should not be unreasonably denied by this court, such an approach could not justify the outcome in this case.

113. In my opinion, the appeal should be allowed, but whilst the fine of $4000 should stand the sentence should be varied by, additionally, imposing a sentence of 12 months imprisonment, such sentence to be wholly suspended for a period of two years. The sentence imposed is less than that which would otherwise be appropriate for this offence but is reduced by reference to principles relating to double-jeopardy which apply on re-sentencing upon a successful Director's appeal.

[1] [2002] VSCA 206 at para.8.

[2] Further, item 49 of Schedule 4 to the Magistrates' Court Act 1989 expressly excludes the offence from the summary jurisdiction of the Magistrates' Court.

[3] In fact for this offence a fine could not be imposed instead of, but only in addition to, imprisonment: Sentencing Act 1991, s.109(3A).

[4] As to the provision of a fine of an amount up to $300,000, in addition to imprisonment, see ss.49 and 109(3A) of the Sentencing Act 1991.

[5] The impact of a sentence on family members would only be a mitigatory factor in highly exceptional circumstances: see R. v. Holland [2002] VSCA 118; R. v. Pannucio, unreported, Court of Appeal, 4 May 1998; R. v. Wirth (1976) 14 S.A.S.R. 291. The Director did not, however, advance an appeal ground, or contend, that the remarks of the judge on this topic constituted specific sentencing error, and it is unnecessary to further analyse the question.

[6] Everett v. The Queen [1994] HCA 49; (1994) 181 C.L.R. 295, at 299; R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520, at 522.

[7] Dinsdale v. The Queen [2000] HCA 54; (2000) 202 C.L.R. 321, at 341 [62], per Kirby, J. The relevant sentencing principles are discussed by me in greater detail in D.P.P. v. Leach {2003} VSCA 96.

[8] [1999] HCA 29; (1999) 195 C.L.R. 665, at 671-672.

[9] [1996] VICSC 30; [1996] 2 V.R. 520, at 522, per Charles, J.A.

[10] [1996] VICSC 30; [1996] 2 V.R. 520.

[11] [2000] VSCA 142; [2000] 1 V.R. 331, at 337 [20].

[12] See par [8], Practice Statement - CA 1 of 2000, (2000) 1 V.R. 196-197.

[13] [2000] VSCA 206; see too R. v. Pastras (1993) 65 A.Crim.R. 584, at 590.

[15] As is made clear by s.109(3A) of the Sentencing Act 1991 a fine for an offence under s.72A may only be imposed in addition to imprisonment, not as an alternative to imprisonment. Although the sentence imposed by the sentencing judge manifests error in that respect no ground of appeal related to such error, nor was it the subject of submissions by counsel on either side.

[16] (1982) 30 S.A.S.R. 212, at 212-3.