DPP v Willis & Hossack [2009] VSCA 14

2 In July 2006, the Australian Crime Commission commenced an investigation into the manufacture and sale of illegal firearms, focused principally upon the activities of a man named Andrew Fleiner.

3 On 10 October 2006, telephone intercept warrants were obtained on two services used by him. Monitored calls revealed that Fleiner was cultivating cannabis plants at six locations, including houses at 42 Oaktree Drive, Hampton and 7 Willis Court, Hampton Park. It was also learned through those calls that the respondent, Willis, assisted Fleiner at the Oaktree Drive premise; and that the respondent Hossack was involved in the activities conducted at Willis Court.

4 Surveillance undertaken between November and December 2006, disclosed that both Fleiner and Willis attended at the Oaktree Drive premises at various times and that they were in regular telephone contact.

5 In one intercepted phone call made on 18 October 2006 Fleiner asked Willis to sell cannabis for $80 to a person referred to as 'Wendy'. In another, on 1 December 2006, it emerged that Willis had sold for $3,750 cannabis obtained from Fleiner.

6 Consequently, on 1 December 2006, police executed search warrants at Oaktree Drive where 75 plants were discovered, weighing a total of 69.58 kg.

7 On 1 December 2006, the police also executed search warrants at the residential premises of Willis in Berwick Springs where they seized the following items:

(a) One snap lock bag containing green vegetable matter in the en-suite;

(b) A small jewellery box containing a small quantity of green vegetable matter in the walk-in-robe; and

(c) An unregistered black coloured rifle stock 'Piers Dev' above the living room sliding door (count 5 - possession of category B longarm).

The green vegetable matter was found to be cannabis L consisting of dried female flowering heads, female flowering fragments and seeds weighing in total 11.5 grams (count 4 - possess cannabis).

8 On 1 December 2006, the police executed search warrants at the principal residential address of Hossack in Willis Court, Hampton.

(a) 54 cannabis plants growing in hydroponic cultivation systems in the sheds at the rear of the premises;

(c) 13 separate items of green vegetable matter found at different locations on the premises;

(e) one unregistered Sturm Ruger Model 22 RIMFIRE calibre semi automatic handgun with no serial number in the linen cupboard, to which Hossack had directed police (count 7 - posses general category handgun).

The total weight of the cannabis plants was 446 grams. The green vegetable matter was found to be cannabis L, consisting mainly of female flowering heads about half of which was dried, and weighing a total of 5.06 kg. When the white powder found in the two plastic bags was analysed by a forensic chemist, one bag was found to contain 0.9 grams of methylamphetamine, and the other, 0.2 grams of cocaine.

10 Later that day, police executed search warrants at 505 Lower Carrajung Road, Currajong, another of the residential properties of Hossack, where they seized:

(b) quantities of green vegetable matter from various locations;

(c) four plastic bags containing green vegetable matter in the garage;

(e) one imitation handgun in a green box found in the bungalow on the property;

(f) one Winchester model single barrel shotgun with serial no. C197179 located inside a locked steel container in the garage;

When the two plants were later examined, they were found to be immature female cannabis L plants measuring 90 cm and 1 m in height respectively and weighing 164.6 grams (excluding roots) (count 1 - cultivate cannabis). The items of green vegetable matter were also examined. Four were found to be cannabis L weighing a total of 50.5 grams and one was found to be a mixture of cannabis L and an unidentified plant material totalling 1.2 grams. The imitation handgun and the Winchester shotgun were found to be unregistered (count 2 - possess unregistered handgun; count 3 possess unregistered longarm).

11 On 31 January 2007, and after he had been released on bail in relation to these matters, Victoria Police Drug Task Force officers intercepted Hossack's motor vehicle in Hampton Park. They located a large green plastic bag in the boot of the vehicle which contained a large quantity of green vegetable matter consisting predominantly of dried buds. A further search of the Willis Court house resulted in the location and seizure of a small quantity of cannabis and some cash. The green vegetable matter found in the plastic bags was found to be cannabis L weighing six pounds (count 8 - traffick in cannabis).

The total effective sentence was 18 months, wholly suspended for a period of three years and fines of $800.

The total effective sentence was 14 months' imprisonment, wholly suspended for 3 years, and a fine of $1,200.

12 In the case of Willis, counsel appearing on behalf of the Director submitted that the individual sentences on counts 1 to 3, the total effective sentence and the order that suspended its operation, demonstrated failure by the sentencing judge to attribute proper weight to the seriousness of this respondent's offending when regard was had to both the conduct involved and his level of culpability in the circumstances.

13 With respect to the seriousness of the conduct itself, counsel pointed to the amount of drugs involved - almost three times the commercial quantity - asserting that that evidence indicated that the respondent had been actively involved in a substantial commercial operation for an extended period of time. It was incumbent upon the judge to attribute considerable weight to both general and specific deterrence in that situation, he argued. Accordingly, although it was acknowledged that there were mitigating features to be taken into account in the respondent's favour, he submitted that the ultimate disposition was inadequate to the extent that it reflected a clear departure from principle and required the intervention of the Court.

14 In response, counsel for the respondent emphasised that it had not been contended that the judge had failed to address any applicable principle of law or factual consideration in her sentencing remarks or that she had fallen into any specific error of omission or commission.

15 It was apparent, he continued, from her sentencing remarks that the judge well appreciated the seriousness of the conduct involved in count 1, but also had regard, as she was required to do, to a number of other factors. These included the considerations that:

(a) the Respondent had very limited prior criminal history; he had one prior appearance in February 2003 when he was released on a Community Based Order for possessing and trafficking drugs of dependence;

(b) he was a relatively young offender, being 22 years of age at the time of the commission of the offences;

(c) he was using cannabis at the time of the commission of the offences and had since ceased use of that drug and developed insight into its harmful effects;

(d) the Respondent had immediately upon release from custody on bail begun a process of reformation and there was impressive evidence of the sustained successful efforts he had made, which included drug rehabilitation, commitment to family, a strong work ethic and a high level of success at and a promising future in employment;

(e) there was no evidence of any financial gain or profit from the enterprise;

(f) the Respondent had not been charged with any subsequent offence;

(h) he had pleaded guilty at the earliest opportunity;

(j) he had been influenced by the domineering and strong personality of the older co-accused Fleiner and was acting under his direction;

(k) he had 'clearly played a lesser role in that cultivation than your co-offender Fleiner' and in relation to the trafficking 'clearly' acted under his direction;

(l) the significance of the familial circumstances of his relationship with Fleiner. Her Honour stated -

Your parents separated when you were approximately eight years old, and you remained with your mother and her partner. You have two older sisters who have apparently successful lives, and one older half brother, the aforementioned co-accused, Andrew Fleiner, who I understand is aged 36, and is the child of your mother by a previous relationship. Fleiner contacted the family when you were some 12 years old and as I understand it he was in his early 20's. You had had some difficulties at home during your adolescence, which all culminated in you being asked to leave home at the age of 16, following a party you gave in the absence of your mother and stepfather which resulted in considerable damage to the family home. You went to live with Fleiner and in that context your early offences, which I have referred to, occurred.

You left school in Year 11 and began working in civil construction. It appears that Mr Fleiner assisted you in developing your career in that area and that fact, combined with him taking you in when you were thrown out of home resulted in your feeling an abiding sense of gratitude to him.

I note that Mr Fleiner has a more significant criminal history and has already served a term of imprisonment. I have also considered, in relation to this relationship, the evidence of your mother, Diane Willis, who is also the mother of Mr Fleiner. She informed the court of his domineering and strong personality.

(m) the impact that the 35 days on remand had on the Respondent. In this context, her Honour noted -

I heard evidence that you had always stuttered and on your release on bail your condition had deteriorated considerably as a result of the terror you experienced at being exposed to the more hardened members of the prison population and your perceived threat of imminent violence against you.[1]

16 Her Honour did not, he argued, undervalue the seriousness of the matter but took the soundly based view that, in the circumstances, the correct approach was to emphasise rehabilitation as a sentencing consideration in the particular circumstances of the case before her. In his written submissions, counsel argued -

A classic sentencing dilemma faced the judge - a young offender with good prospects of rehabilitation had committed a serious offence. The judge did not ignore the sentencing objectives of general and specific deterrence, denunciation and just punishment. Rather, the judge took the view that in the particular circumstances of this case, the correct approach was to emphasise rehabilitation. Such an approach is not only open, it is wholly consonant with sentencing principle.

Even in the case of a mature offender, it is open to a sentencing judge in the case of a serious offence to decide that the interests of the community are best served by the rehabilitation of the offender, and that that rehabilitation is best advanced by a wholly suspended sentence.

He pointed out that in Carter[2] President Winneke said:

If an appellate court can discern a sound basis for the exercise of the sentencing judge's discretion, [i.e. to wholly suspend the sentence] it should be slow to interfere with that discretion on a Crown appeal.'[3]

and drew attention to the joint judgment of Batt and Buchanan JJA in Buhagiar and Heathcote[4] where the passage appears:

... there are cases where a judge may reach the view that suspension of a sentence is appropriate, not because it would be less unpleasant for the offender, but because it may be productive of reformation, which offers the greatest protection to society. A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community's interest and generally designed to prevent re-offending.

...

In deciding whether to suspend in whole or in part a term of imprisonment a judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity to reform, to rebuild his own life or to make some recompense for the wrong done, or should have the benefit of the mercy to which King CJ referred in R v Osenkowski (1982) 30 SASR 212 ...

The sole criterion on which the total or partial suspension of a sentence of imprisonment is conditioned is that of desirability in the circumstances ... Particularly bearing in mind that in Crown appeals the approach of the court towards intervention should be restrained, we are not persuaded that his Honour erred in being satisfied of the desirability of the total suspension of Buhagiar's sentence in the circumstances pertaining to him.[5]

17 With respect to counts 2 and 3, he submitted that the sentences imposed were clearly available in the proper exercise of sentencing discretion and certainly when assessed within the context outlined above.

18 There is not need to recite the principles upon which this Court must act in the consideration of the Crown appeal against sentence. They are well known and regularly applied.[6]

19 The Court considered that there was considerable force in these submissions, recognising that the task of deciding upon the appropriate disposition in the case of this respondent was by no means straightforward. There were, as is so often the position, powerful and competing considerations to be taken into account. The conduct in which the respondent engaged was clearly serious and would in ordinary circumstances almost certainly attract a significant period of immediate incarceration. It is evident that the sentencing judge understood her responsibility in this respect and equally apparent that, after careful consideration, she concluded that to impose such a sentence would have been inappropriate in the respondent's circumstances and counterproductive to the interests of society.

20 We were far from persuaded that the sentences handed down upon the respondent were not available in the proper exercise of sentencing discretion and formed the view that it was clearly not a situation in which the intervention of the Court was required.

21 In his written submissions provided to the Court, counsel appearing for the Director summarised his contentions in relation to the sentences imposed on this respondent, asserting:

The conduct here involved serious drug offending associated with the trappings of such offending the possession of numerous firearms.

There were significant prior convictions.

There were multiple types of drugs involved.

In the circumstances an immediately effective sentence of imprisonment of a substantial amount was called for.

Having regard to:

(a) the seriousness of the offences, including the firearms matters;

(b) the need for general and specific deterrence;

(c) the need to denounce such blatant and ongoing conduct;

(d) the maximum penalties applicable to each count;

(e) the prior criminal history of the Respondent; and

(f) the commission of Count 8 while on bail for the other offences;

the individual sentences were manifestly inadequate.

A degree of cumulation was called for between the drug and firearm offences which would result in a far greater head sentence.

The circumstances of the offending and the Respondent's antecedents made the suspension of his sentence outside the permissible range.

22 Her Honour's sentencing remarks make clear that she was mindful of and addressed all of these consideration:

... The sentence I impose must manifest the community's denunciation of your conduct and impose a just punishment. I need to ensure the protection of the community from any repetition of this type of offending.

I also take into account that whilst on bail for the matters in Counts 1 to 7 you committed the offence of trafficking represented in Count 8. I understand that you were trying to clean out material that had been left after the initial search warrant was executed at your premises on 1 December 2006, but you chose to do it by committing further offences and by selling the material. This is an aggravating feature of your offending.

I further take into account your prior conviction for cultivation and trafficking in cannabis.

23 With respect to the other drugs located, her Honour said:

Two small quantities of methylamphetamine and cocaine were found which I am satisfied were not for the purposes of trafficking.

24 Her Honour addressed the respondent's prior criminal history which included one offence involving cannabis in 1998 and his possession of firearms. Regarding the latter, she stated:

Firearms were also found at these properties. On your rural property at Carrajung an imitation firearm was found, and also a Winchester single barrel shotgun, Serial Number C197179, which was locked in a steel container. This firearm was unregistered, but I do not find anything sinister in the context of such a gun on a rural property, and indeed I heard nothing from the Crown to suggest otherwise.

I note that your prior history would give no reason for concern and none has been raised that it was to be used for any offending involving a firearm or violence.

The firearm found at 7 Willis Close, Hampton Park, a Sturm Ruger Rimfire, 22 calibre handgun, with no serial number, is very concerning. The only explanation offered is that it came from your co-accused, Fleiner, who as previously stated was involved, or has been under investigation for manufacturing and trafficking in arms.

I have, however, taken some comfort from the lack of any prior history involving violence or weapons, while also taking into account the purposes of the Firearms Act and the need for strict gun control.

25 Concerning the respondent's background and personal circumstances, the judge found:

... You are 33 years old, born 15 February 1975. You experienced difficulties in your late childhood when your parents separated. I note that you had a sister one year older than you, and the brother, two years older, who suffered from ADHD. He was apparently uncontrollable, and as I understand it he went into State care at some stage and was eventually shot on your 13th birthday, in circumstances which still remain unclear to me.

You lived alternatively with both parents and you trained as a butcher. You began using cannabis at 15, and this remained a dominating force in your life until you were released on credit bail after serving the 80 days on remand following your second arrest. You were also under the influence, to a degree, of your co-accused, Andrew Fleiner, and as it has been put to me you cultivated the crop at Willis Close for him.

You are married and the father of three children, aged 14, 11 and five. You live with your family now at the property in Carrajung and are currently employed at a nursery.

On your behalf a report from Patrick Newton, forensic psychologist, was tendered, which indicates that you have taken advantage of the time since your release on credit bail to address your drug problems. You have remained abstinent and you have increased your insight into the problems caused by your use of cannabis in relation both to your relationship with your wife and to your poor work performance.

Mr Newton has diagnosed you as cannabis dependent but you are specified as being presently in sustained full remission. You are not suffering any psychological disorder of any kind and this bodes well for the future.

Mr Newton indicates that you have a limited understanding of the risks and dangers associated with cannabis and emphasises the need for ongoing treatment. I have also taken into account the report from Frances Coghlan, a credited forensic alcohol and drug clinician, which indicates your determination expressed to him not to be involved in any drug use in the future. You have apparently also expressed your remorse to him in relation to this offending and the effect that it has had on your family. I therefore accept that you also are an excellent prospect of complete rehabilitation.

Your counsel has indicated a number of matters which you are entitled to have taken into account in mitigation.

Firstly, your early plea of guilty, which has saved the community the time, inconvenience and expense of a trial.

Secondly, I accept that your plea, together with your efforts at rehabilitation is evidence of your remorse.

Thirdly, the evidence of the success of your efforts are rehabilitation and your resumption of employment.

I further take into account that following that second arrest you spent 80 days in custody, which included time in the police cells and the Remand Centre. This was your first time in custody and I am told by your counsel this had an important effect on you and led to your efforts at rehabilitation.

26 We have set out substantial parts of her Honour's sentencing remarks relevant to the contentions advanced by the parties as perusal of them leaves no room for doubt that the judge gave proper attention to all relevant factual circumstances and sentencing principles in her determination of the appropriate disposition of this case.

27 The Court concluded that no error had been demonstrated with respect to any of them and that the sentences at which she arrived did not bespeak any breach of principle in the particular circumstances.

[1] This description of the considerations has been based in large measure upon counsel's written submissions. It is noted that the correctness of the findings contained therein and their importance is not challenged on this appeal. Sentence 98-101.

[2] Director of Public Prosecutions (Cth) v Carter [1998] 1 VR 601.

[3] Ibid 607. In this case, it is submitted, there was a sound basis for the exercise of the sentencing judge's discretion.

[4] Director of Public Prosecutions v Buhagiar and Heathcote [1998] 4 VR 540.

[6] R v Cavkic; R v Athanasi; R v Clarke [2005] VSCA 182; (2005) 12 VR 136; DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538.