Falzon v The Queen [2018] VSCA 179

1 On 27 May 2016, a jury in the County Court convicted the applicant of cultivating a commercial quantity of cannabis at Sunshine North (charge 2), and trafficking in a drug of dependence, cannabis, at Sydenham (charge 3). The jury acquitted the applicant on a charge of trafficking a commercial quantity of cannabis at Sunshine North (one charge - charge 1). No verdict was taken on a charge of cultivating a drug of dependence at Sydenham (charge 4), that charge being an alternative to charge 3.

2 Following a plea, on 21 July 2016 the trial judge sentenced the applicant to a total effective sentence of three years and nine months' imprisonment, and fixed a non-parole period of two years and six months, according to the following table:

Trafficking in a commercial quantity of cannabis[1] [at Sunshine North]

Cultivation of narcotic plants - commercial quantity[2] [at Sunshine North]

Trafficking in a drug of dependence[3] [at Sydenham]

3 The applicant sought leave to appeal against both conviction and sentence. In effect, the grounds with respect to sentence were as follows:

1. The sentence on charge 3 [trafficking cannabis] is impermissibly incongruent with the sentence on charge 2 [cultivating a commercial quantity of cannabis].
2. The sentence on charge 3, trafficking cannabis, is manifestly excessive.

4 On 5 April 2017, by a majority (Priest and Beach JJA, Whelan JA dissenting), this Court quashed the applicant's convictions.[5] The majority did not consider the application for leave to appeal against sentence.

5 Whelan JA would have refused the application for leave to appeal against sentence. As to ground 2, he rejected the contention that the sentence on charge 3, trafficking, was manifestly excessive, characterising the sentence as being 'entirely unexceptional'.[6] And with respect to the first ground, he considered that, to the extent that there is 'incongruity' between the two sentences imposed, the incongruity is a product of the sentence on the cultivation count being low rather than the sentence on the trafficking count being high.[7]

6 On an appeal by the prosecution, on 19 April 2018, the High Court set aside this Court's order of 5 April 2017 allowing the appeal against conviction. Instead, it was ordered that the appeal against conviction be dismissed.

7 As a result of the High Court's orders, it is necessary for this Court to consider the application for leave to appeal against sentence.

8 For the reasons that follow, we would refuse the application.

9 In this Court's earlier reasons, the offending was summarised by Priest and Beach JJA as follows:[8]

[89] On 17 December 2013, in the course of executing search warrants, police discovered cannabis plants growing at properties at 10A and 10B Mansfield Avenue, Sunshine North, and at 8 Bryson Court, Sydenham.

[90] The two properties at Mansfield Avenue - on which two single storey dwellings were situated - were owned by an associate of the applicant's, Max Corbell, and Corbell's wife. Police surveillance from July 2013 disclosed the applicant's occasional attendance at the property.

[91] On 17 December 2013, police searched the two dwellings and located and seized the following at 10A Mansfield Avenue:

• 37 cannabis plants of varying maturity and size growing in four rooms, weighing a total of approximately 17.72 kilograms;
• an electricity bypass in the roof space;
• 15 shrouds, 28 globes, 12 electrical transformers, one carbon filter, three power boards, two shrouds with globes in boxes, six shrouds containing built-in electrical transformers, and one box containing a grow tent; and
• a wall chart timetable and copies of a feed program relating to cultivation of cannabis.

[92] At 10B Mansfield Avenue, on the same date, police located and seized the following:

• 55 cannabis plants of varying maturity and size growing in three rooms, with a combined weight of 17.039 kilograms;
• an electricity bypass in the roof space;
• a number of shrouds, globes, transformers, electrical timers, a carbon filter and wall charts relating to the growing of cannabis;
• assorted vacuum-sealed bags, a set of scales and a sealer device; and
• a tray containing dried cannabis weighing 28.5 grams, and a vacuum-sealed bag containing dried cannabis weighing 21.1 grams.

[93] In total, 92 plants were located at the two Mansfield Avenue properties, with a weight of 34.781 kilograms. There was also an additional 49.6 grams of dried cannabis. A commercial quantity of cannabis is 25 kilograms or 100 plants.[9]

[94] On the same date, police searched premises at 8 Bryson Court, Sydenham. This property had been purchased jointly by the applicant and co-offender, Charlie Gusman, in early 2013. The applicant and Gusman there cultivated cannabis. Upon searching the Bryson Court property, police located and seized:

• ten immature cannabis plants weighing 1.76 kilograms;
• eight harvested cannabis plant stumps weighing 657.9 grams;
• an electricity bypass;
• a number of light shrouds, light globes, electrical transformers, power boards, charcoal filters, together with feed program charts setting out the timetable for nutrients to be fed to cannabis plants;
• two plastic bags containing a mixture of dried cannabis and unidentified plant material weighing a total of 4.1 grams; and
• a zip lock bag containing dried cannabis weighing 3.3 grams.

[95] Also on 17 December 2013, police executed a search warrant at the applicant's home at 5 Kendall Street, Essendon. There were a number of items seized from those premises, including $120,800 cash ... (For the purpose of sentencing, however, the judge 'ignored those items' and sentenced the applicant only on the basis of what was found at Sunshine North and Sydenham.)

[96] The applicant was arrested on 17 December 2013 and took part in a record of interview with police. He made a number of admissions, including that:

• he smoked cannabis which he grew for himself;
• he and Gusman had purchased the property at Sydenham about a year earlier;
• he had grown 19 plants at the Sydenham property, of which nine had been harvested; and
• he visited the property and tended the cannabis plants at Sydenham, where he had been cultivating cannabis for about six months.

[97] Notwithstanding the applicant's denials, however, the jury found him guilty of cultivating a commercial quantity of cannabis at the Mansfield Avenue premises in Sunshine North (although the jury also found him not guilty of trafficking cannabis at that address). The jury also found him guilty of trafficking cannabis at the Sydenham property - which the prosecution had put as a case of possession for sale - in a quantity less than a commercial quantity.

[98] Before leaving the evidence, we should mention that at a unit belonging to Gusman, situated at 67 Melbourne Road, Williamstown, police found another six cannabis plants weighing 35 grams. Surveillance evidence showed that the applicant once attended that unit. At the close of the prosecution case, however, the trial judge found 'that there is no case for Mr Falzon to answer on Charges 3 and 4 insofar as they concern the Williamstown unit'.

10 As we have indicated, each of the proposed grounds of appeal concerns the sentence imposed on the trafficking charge (charge 3). The first ground contends that that sentence is 'impermissibly incongruent' with the sentence on the charge of cultivating not less than a commercial quantity of cannabis; and the second that the sentence is manifestly excessive.

11 Counsel for the applicant submitted that the gravity of the offending on the two charges on which the applicant was convicted was markedly disparate. Notwithstanding that disparity, the applicant received identical sentences on both charges. Hence, it was submitted, some error must have occurred in the sentencing process.

12 In support of those submissions, counsel drew attention to the fact that charge 2 related to the sophisticated cultivation of a commercial quantity of cannabis, involving 92 plants (weighing nearly 35 kilograms), attracting a maximum penalty of 25 years' imprisonment. By way of contrast, charge 3 related to the applicant's possession for sale of some (but not all) of the cannabis found at the Sydenham property. Only ten immature plants - weighing a mere 1.76 kilograms - and the insignificant sum of 7.6 grams of cannabis and cannabis mixture, were found at that property, in circumstances where the sentencing judge found that only some of what was found at Sydenham was possessed for the purpose of sale (and thus relevant to sentencing on the trafficking charge).

13 Counsel submitted that given the fact that both cultivation and trafficking are quantity-based offences - in circumstances where the quantity involved is an important (albeit not the principal) consideration in sentencing - and given the similarity of the charged acts, there should have been greater disparity in the sentences on the two charges. The absence of any disparity, it was submitted, demonstrates error.

14 With respect to ground 2, it was submitted that charge 3 related to the possession for sale of only a relatively small amount of cannabis. The criminality involved was relatively limited by reason of that small amount. There was, counsel submitted, little in the way of aggravating features.

15 By way of mitigation, counsel submitted that the applicant had endured a difficult childhood and had left school in year 10. He had a longstanding cannabis habit, which had commenced in his mid-teens, but had ceased when he was initially remanded. Notwithstanding those matters, at age 47 when sentenced, the applicant was in a stable relationship and had a good employment record. Although the applicant had some limited priors, the judge found that they had little relevance, and there was some positive evidence about the applicant's character. Moreover, there had been a significant delay of two and a half years in the matter coming to trial, so that, not only had the matter been hanging over the applicant's head for a lengthy period, but he was able to demonstrate his relatively good prospects of rehabilitation.

16 In those circumstances, counsel submitted that the sentence of two years and six month' imprisonment on charge 3 was manifestly excessive. It was further submitted that the order for half of that sentence to be served cumulatively on the sentence on charge 2 is beyond what was permissible in the sound exercise of the discretion, particularly given that the two offences occurred contemporaneously, and were both related to the growing of cannabis. Albeit that some cumulation might have been appropriate, counsel submitted that the degree of cumulation was outside the proper range.

17 Following the High Court's orders, the practical effect of which was to reinstate the applicant's convictions and sentences, the applicant's solicitors filed supplementary written submissions in the following terms:

1. Following this Court's orders allowing the applicant's appeal against his convictions, the applicant was bailed on 12 April 2017. He had by then served 348 days - or roughly a year - of his sentence.
2. He remained at liberty for over a year, from that time until he surrendered himself into custody on 1 May 2018, after the Crown's appeal to the High Court was allowed. In those circumstances, it is submitted that if the sentencing discretion is re-opened, regard should be had to:

1. The fact that the appeal to the High Court resulted in significant delay in the applicant knowing his fate, so that an inference can be properly drawn that the applicant suffered additional anxiety during that period as a result of that uncertainty. None of that delay is attributable to the applicant. 2. The applicant's prospects of rehabilitation, and the corresponding need for specific deterrence, are now to be measured in light of the fact that he has spent a considerable period at large without reoffending.

1. There is a particular significance to an order re-imprisoning an offender for offending, when that offender has been at large for a considerable period following final orders being made in a case (see, eg, DPP v Leach [2003] VSCA 96; (2003) 139 A Crim R 64 at 74-5).

18 It will be noted that the matters enumerated in paragraph 2 of the supplementary submissions are relied upon only in the event that 'the sentencing discretion is re-opened'. They are not said to constitute new or fresh evidence.

19 In our opinion, it is not reasonably arguable that the sentence imposed on the trafficking charge is manifestly excessive.

20 Charge 3 related to the applicant's possession for sale of some of the cannabis - ten immature plants weighing a mere 1.76 kilograms - found at the Sydenham property. The sentence to be imposed was not ameliorated by a plea of guilty. And although it may not have involved any actual sales,[10] it needed to be viewed in a broader context involving the cultivation of a commercial quantity of cannabis - some 34.781 kilograms - at Sunshine North (subject, of course, to considerations of double punishment, totality and proportionality).

21 Furthermore, to the extent that there is any 'incongruity' between the sentences imposed on charges 2 and 3, in our view that incongruity has resulted from the sentence on charge 2, cultivation of a commercial quantity of cannabis, being too moderate. Charge 2 could, we consider, have attracted a more severe sentence.[11] It is probable, we think, that the sentence on charge 2, and the order for cumulation, flow from the sentencing judge's endeavour to be faithful to the principle of totality. But no matter the reason for the individual sentence and cumulation, there is no occasion to interfere with the total effective sentence,[12] which barely reflects the applicant's overall criminality.

22 Given that the sentencing discretion has not been reopened, there is no occasion to consider the matters raised in the applicant's supplementary submissions.

[1] Drugs, Poisons and Controlled Substances Act 1981, s 71AA. The maximum sentence is 25 years' imprisonment.

[2] Drugs, Poisons and Controlled Substances Act 1981, s 72A. The maximum sentence is 25 years' imprisonment.

[3] Drugs, Poisons and Controlled Substances Act 1981, s 71AC(1). The maximum sentence is 15 years' imprisonment.

[4] Drugs, Poisons and Controlled Substances Act 1981, s 72B. The maximum sentence is 15 years' imprisonment.

[5] Falzon v The Queen [2017] VSCA 74.

[9] See s 70(1) and Column 2, Part 2, Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981.

[10] Cf Bala v The Queen (2010) 201 A Crim R 505; Beckerton v The Queen [2011] VSCA 107.

[11] See, for example, Nguyen v The Queen [2017] VSCA 286; Ng v The Queen [2017] VSCA 211; Nguyen v The Queen [2017] VSCA 100; Bui v The Queen (2015) 256 A Crim R 180.

[12] Criminal Procedure Act 2009, s 280(1)(b).