Hanks v The Queen [2011] VSCA 7

1 I ask my brother Bongiorno to deliver the first judgment.

2 On 22 April 2010, Sean Hanks pleaded guilty before her Honour Judge Thornton in the County Court to one count of cultivation of a commercial quantity of Cannabis L and one count of theft of the electricity used in that cultivation.

3 On 23 June 2010, her Honour sentenced the appellant to two years' imprisonment on the cultivation charge and six months' imprisonment for the theft. She cumulated half the sentence for the theft on the sentence for cultivation, making a total effective sentence of two years and three months' imprisonment. Her Honour imposed a non-parole period of one year. Ancillary orders as to forensic samples and compensation were also made.

4 On 24 September 2010, the appellant was granted leave to appeal his sentence by Buchanan JA in this Court. His Honour granted leave on the ground that it was reasonably arguable that the sentencing judge failed to bring to account in sentencing him that it appeared that Hanks did not cultivate the cannabis for any commercial purpose.

5 The facts which established the offences to which the appellant pleaded guilty, the circumstances of that plea, his background and antecedents and his psychological and psychiatric state are all very adequately set out by Judge Thornton in her sentencing remarks, a copy of which is appended to this judgment. They need not be repeated.

6 It is sufficient for present purposes to note that the hydroponics cultivation set-up used by the appellant extended over a number of rooms of a housing commission house occupied by him and his uncle and that the quantity of Cannabis L upon which the cultivation charge was based was about 66 kilograms, more than twice a commercial quantity as defined in the Drugs, Poisons and Controlled Substances

Act 1981. Almost $9,000 worth of electricity was used to grow the drug and there was evidence before the Court in which the police estimated the cost of the hydroponic equipment at between $15,000 and $25,000. Her Honour accepted this estimate notwithstanding submissions by the appellant's counsel based, it appears, only on his instructions, to the effect that in fact the set-up cost only about $4,000. Estimates from the police as to the street value of the drug grown were between about $40,000 and $83,000, or perhaps even more in certain the circumstances.

7 The prosecutor before the sentencing judge made a concession as to the cultivation of Cannabis L in the following terms:

There is no evidence of any sales taking place in this case, no admission in relation to that...

8 The terms of this concession are important, as the principal argument put by the appellant in this case is dependant upon establishing that the Crown actually conceded that the cannabis produced by the appellant was intended solely for his own use, not merely that there was a lack of any evidence of actual trafficking.

9 Although the appellant's full statement of grounds of appeal filed on 28 October 2010 contains seven grounds, argument on the appeal was concentrated heavily on the substance of ground three, namely, that the learned sentencing judge erred in law by failing to give sufficient weight to the absence of any commercial, profit or trafficking involvement in the appellant's offending. The appellant's submissions as to this ground depended upon a construction of the sentencing judge's sentencing remarks to the effect that she had accepted as a basis for sentencing that the appellant had no intention of trafficking the cannabis which he produced, or at least no such intention for commercial purposes.

10 Although the grounds of appeal were phrased as set out above, counsel's argument went much further. He argued not only that the appellant had no commercial purpose in growing the Cannabis L but that it was grown only to supply his longstanding addiction to the drug and that the sentencing judge had so found.

11 In his written outline he referred only to paragraphs [14] and [37] of her Honour's sentencing remarks. Paragraph [14] referred to the prosecution concession as to a lack of any evidence of trafficking. In paragraph [37], her Honour referred to the objective seriousness of the circumstances of the offences and said that they warranted a term of imprisonment to be served and that no other sentencing disposition was appropriate. She referred to the elaborate and sophisticated set-up of the hydroponic system and the fact that the quantity of the drug produced was more than twice the commercial quantity with a value of at least $46,000. Neither of those references support the wider proposition contended for here, namely that the judge found that the cannabis was grown only for the appellant's own use.

12 In his oral argument counsel in this Court referred to paragraph [28] of the sentencing reasons in which the judge summarised the appellant's argument for the imposition of a wholly suspended term of imprisonment. In doing so her Honour listed each of the circumstances upon which counsel had relied and in the course of that list referred to counsel's contention that the cannabis was only grown for the appellant's own use.

13 It was central to counsel for the appellant's argument in this Court that in that paragraph her Honour was in fact making a finding that the cultivation of cannabis by the appellant was for his own use. However, this submission misinterprets paragraph [28] which merely recounted the arguments which the appellant's counsel had urged upon her. Her Honour was not making findings.

14 In the course of the plea in mitigation put on behalf of the appellant, which was heard over two days, her Honour made it clear that she regarded the sophisticated set-up of the hydroponic equipment which the appellant had admittedly constructed, the amount of cannabis produced and the circumstances generally as suggestive of a commercial operation. She referred to this in her appended sentencing remarks, particularly at paragraphs [4] to [9] and [37] where she referred to the objective seriousness of the circumstances of these offences as warranting a term of imprisonment to be served and that no other sentencing disposition would be appropriate. Counsel for the appellant, well understanding that her Honour's tentative view that the cultivation had a commercial character, initially stated that he intended to call evidence from the appellant but then decided not to do so.

15 The sentencing judge did not at any stage accept that the appellant's purpose in growing the cannabis was solely for his own personal use. She accepted the Crown concession that there was no evidence of any sale so as to indicate that any trafficking had occurred. However, she regarded the objective facts as indicating such seriousness as to warrant the sentence which she imposed. There was no error in her doing so.

16 The disposal of this argument of the appellant effectively disposes of grounds two and six of the appellant's notice of appeal. Most of the matters referred to in the appellant's written argument under those grounds and his argument as to ground six depend upon there being a finding by the sentencing judge of no commercial intent on his part. That finding was not made, her Honour preferring to base her conclusion on the sophisticated nature of the operation as justifying a custodial sentence to be immediately served.

17 Ground three was also concerned with the same factual matrix. It asserted that the sentencing judge had failed to give sufficient weight to the absence of any commerce, profit or trafficking involved in the appellant's offending. It fails for the same reason as ground two.

18 Ground four raises Verdins' case.[1] The only aspect of Verdins case to which the sentencing judge referred was the fifth proposition in that case, which suggests an amelioration of a sentence where the harshness of imprisonment may impinge more heavily on a prisoner by reason of his psychological condition. There was evidence that this was so in this case and the sentencing judge took that evidence into account. She referred to this at paragraph [34] of her sentencing remarks.

19 The appellant's argument here was that the sentencing judge should have applied all six propositions contained in Verdins case. Not only was this not argued on the plea, there was no evidence to support such an argument, particularly as to causation. There is no substance in this ground.

20 Ground five complains that although the sentencing judge took proposition five in Verdins into account, she failed to give it sufficient weight. No real argument was advanced on this ground in this Court and no error has been demonstrated in this regard by any other material before the Court. This ground must also fail.

21 Ground seven is concerned with the yield weight and dried weight of cannabis and the amount produced by the appellant. It was submitted to the sentencing judge that the dried weight of the crop which was usable was in the order of 11 kilograms. The evidentiary source of this submission is not made clear. Even if it is correct, which it may well be, it is of very marginal relevance in this case. All it demonstrates is that, if this cannabis was produced solely for the appellant's own use, and if his statement to his doctor that he was using up to four grams per day was correct, he would have produced enough cannabis from this crop to last him about seven and a half years. There is no substance in ground seven.

22 Finally ground one asserts manifest excess in the sentence imposed. The term 'manifest excess' is usually used when a ground of appeal alleges that a sentence is so egregiously erroneous that the sentencing judge must have made a sentencing error although that error cannot be identified. To succeed on this ground the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error. If the error can be identified there is no need for this ground. The appeal will succeed because of that identifiable error. In this case, numerous errors in the trial judge's sentencing exercise were suggested. None of them have succeeded. This ground must also fail, as a total effective sentence of two years and

three months' imprisonment with a non-parole period of 12 months could not on any basis be said to be manifestly excessive having regard to the seriousness of the cultivation offence carrying, as it does, a 25 year maximum penalty.

23 Before concluding I make one further observation. This Court has on numerous occasions drawn attention to circumstances where the sentencing judge has not adequately informed counsel in the course of plea hearings as to the possibility of adverse findings being made against their clients. This is not one such case. Here the sophisticated nature of this activity carried on by the appellant was obvious and was referred to on numerous occasions in the course of the plea both by the prosecutor and by the judge. There is no doubt that the judge was concerned as to the commercial nature of that activity even if there was no evidence of any sale having occurred. Defence counsel before the sentencing court nevertheless called no evidence and preferred to rely on unsubstantiated assertions from the bar table of matters which could, (and should if they were to be pressed) have been the subject of evidence, if only from the appellant himself.

24 For reasons that were no doubt of forensic significance, the appellant's counsel did not proffer his client as a witness to depose that he had produced this quantity of cannabis purely for his own use. He may or may not have been wise in doing so. It is not appropriate for this Court to speculate. The fact is that the sentence passed was clearly open to the sentencing judge in the exercise of a reasonable sentencing discretion.

27 I would make only this additional observation. An appeal against sentence is not an occasion for a rehearing of the argument that was or could have been advanced for the appellant on the plea. This Court's function is to determine

whether there was error in the sentencing decision. There were occasions during the submissions advanced by counsel for the appellant where, in my view, the argument strayed to a re-examination of how the case could or should have been argued before the learned sentencing judge.

28 The order of the Court is that the appeal is dismissed.

Catchwords: Criminal law - sentence - plea of guilty - cultivation of commercial quantity of cannabis - theft - R v Verdins (2007) VSCA 102.

1 Sean Hanks, you have pleaded guilty to one charge of cultivating cannabis in a quantity (combined weight 66 kilograms) that is not less than the commercial quantity and one charge of theft of electricity. These offences occurred at Deer Park between 1 September 2008 and 17 December 2008.

2 The maximum penalty for the cultivation offence is 25 years' imprisonment. The maximum penalty for theft is 10 years' imprisonment.

3 During 2008, you resided in a house at 58 Railway Parade, Deer Park. On the morning of 17 December 2008 police forced entry to that house and executed a search warrant. There was no person present at the time but you returned to the house when police were in attendance on the same day.

4 Police found a hydroponic set-up for the cultivation of cannabis plants throughout the house. They located dried cannabis, other plant material, harvested cannabis stumps, five fully mature cannabis plants and hydroponic equipment including lights, fans, filters and water pumps. The bathroom and kitchen contained transformers and power control boards.

5 Four rooms in the premises had been set up with hydroponic equipment to grow cannabis plants and in the first room police located one fully mature cannabis plant and five harvested cannabis stumps.

6 The second room contained hydroponic equipment but no plants. The third room contained five harvested cannabis stumps, numerous leaves and harvested stems on the floor. The fourth room contained four fully mature cannabis plants.

7 The combined weight of the cannabis plants was determined by the forensic botanist, Susan Fiddian, as follows:

• Five fully mature cannabis plants - 54.5 kilograms.

8 Thus the combined weight of the plant material was approximately 66 kilograms. A commercial quantity of cannabis L is 25 kilograms or 100 plants (Charge 1).

9 An electrical bypass was found in the wall cavity of the first room (Charge 2).

10 You were arrested and interviewed by police on 17 December 2008 and admitted cultivating the cannabis for your own use.

11 You were charged on the same date and have been on bail since that time. You were committed for trial on 27 April 2009 in the Magistrates' Court where you pleaded guilty to cultivating cannabis simpliciter and theft of electricity. On the first day of your trial, 12 April 2010, you entered into negotiations and pleaded guilty to these offences of cultivating cannabis in a commercial quantity and theft of electricity.

12 Police estimated the cost of the hydroponic set-up in the range of $15,752 and $25,750.

13 AGL Victoria Pty Ltd estimated the value of electricity stolen during the period of the offending as a result of the electrical bypass at the premises as $8,788.71.

14 The police have estimated a street value of the cannabis seized depending on the type of weight deals. Using the air dried weight of leaves and flowering heads for the five plants weighing 54.50 kilograms, an estimate for the street value of that item sold as pounds would be a low price of $46,068 and a high price of $83,760. The range would be higher for amounts sold as half pounds and higher again for amounts sold as grams. The prosecution do not suggest, however, that there is any evidence of commerce, profit or trafficking.

15 You are 41 and were born in the United States of America where your father was an electrical engineer for NASA. Significantly you have no prior criminal history.

16 You came to Australia at the age of two with your mother and father but your father returned to the United States when you were aged four. Your mother worked as a manager and you lived with your grandparents, mother and uncle in a rented Housing Commission property where you still reside. Your father died when you were aged four and you were unaware until years later that he had suicided.

17 Your grandfather died when you were aged eight and attending the football with him. Last year your grandmother died at the age of 82. Your mother is currently in a nursing home and was hospitalised last year when she lapsed into a coma for 50 days and was on life support and dialysis. She is completely bedridden and cannot sit in a wheelchair. She has no other support other than you and your uncle. A letter from Dr. Haripersad confirms that she resides in a nursing home where she will be a long term resident as she requires high level nursing care.[2] Your uncle has diabetes and lymphoma and has limited mobility. He currently resides with you in the Housing Commission rental property which is still in the name of your grandmother who is deceased. The Housing Commission intend to demolish the house and your mother and uncle are relying on you for rental payments from your invalid pension.

18 You had an unsatisfactory school life as a child because you were bullied and did not fit in at Tottenham Technical School. You transferred to Maribyrnong High School where you completed HSC in 1987. You completed two and a half years of an Arts Degree at Latrobe University but, as a result of accumulating debts, you deferred and started working. You never returned to complete that degree because you were involved in a serious car accident at the age of 21 where you suffered a fractured skull. You have worked as a landscape gardener, machinist, carpenter, forklift driver, storeman, factory worker, in hydraulics and as a driver. You have an interest in electronics and had sufficient skills to set up and join the power boards which formed part of the setup.

19 Mr Grech is an acquaintance with whom you have lived for the past 11 years and seven of those years have been occupied with smoking cannabis, dabbling in electronics and reading. You have been unemployed for the last seven years and have become hermit-like with little social interaction.

20 A psychiatric report dated 20 April 2010 compiled by Dr Tom Wisinger was tendered to the court and confirms that you first consulted him in August 2009 and you have seen him on 12 occasions.[3]

21 Dr Wisinger describes you as being a heavy cannabis user from the age of 15 years and using up to four grams of cannabis per day from the age of 20. He reports that you stopped using cannabis in the last three months and that you had a past experience of cannabis induced psychosis in 2007. It is his opinion that you have severe anxiety and a depressive illness and "significant personality difficulties of avoidant and paranoid traits". He reports that you were treated with supportive psychotherapy and medication which should be continued to manage your depression and anxiety.

22 As a result of your counsel's submission that you may have suffered from impaired mental functioning at the time of these offences and the lack of clarity in the report, I sought an assessment from a psychiatrist from Forensicare as to your mental health.

23 Your counsel submitted that having regard to the principles of R v Verdins [2007] VSCA 102 ('Verdins'), that any sentence imposed on you should be moderated, having regard to your anxiety and depressive illness. A letter from your GP, Dr Jose, confirms that you suffered an acute psychotic reaction in April 2007 probably caused by your cannabis use.[4]

24 Your good friend Mr Frank Gregurick gave evidence that you have been friends since primary school and that you have remained in contact over a number of years because his mother is one of your neighbours. He described you as being mechanically skilful and quite intelligent having had periods of employment but then becoming reclusive. He assisted you with accommodation and was aware that you had experienced a psychotic episode in 2007. He made an effort to ensure that you consulted a doctor at that time but he subsequently lost contact with you when you moved address without notifying him. You contacted him after having been charged with these offenses and he has assisted you in moving back into your mother's home where you have had difficulty caring for your uncle. He is of the view that you have made a commitment to improve your life and that you have been dealing with your depression with some success. He is prepared to offer you support in the future and is also of the view that you unlikely to reoffend.

The maximum penalty of 25 years' imprisonment indicates the seriousness with which Parliament and the community regard the offence of cultivation of cannabis in a commercial quantity.

25 In R v Wong [2007] VSCA 278, Buchanan J referred to the circumstances of that case involving 308 plants comprising a total weight of 41.5 kilograms of cannabis as being a serious example of a serious offence. He said:

"Without seeking to distinguish between particular kinds of drugs in terms of harmfulness, I would also agree with the learned County Court Judge that drugs of dependence wreak significant harm in our community and that, because of the large quantity involved, there was potential in the present case for the drugs to penetrate deeply into the community. The maximum penalty of 25 years gaol for the cultivation offence is adequate testimony to the seriousness with which the Parliament views crimes of the present kind."

The appellant in that case was 43 with no prior convictions and nothing outstanding. The offending took place over a 2 month period.

26 The purposes for which a court may impose sentence are: punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offences, your culpability, your personal circumstances and those of the victim. The deleterious effect of illegal drugs on the health and wellbeing of vulnerable young people impacts on the whole community and the high maximum penalty of 25 years' imprisonment reflects the seriousness of this offence. I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

27 The prosecution have submitted that for a total effective sentence a sentencing range of between 4 and 4 and a half years' imprisonment as a head sentence is appropriate with a range of 2 to 3 years for a minimum non-parole period. The prosecution submitted that a term of imprisonment to be served immediately is required having regard to the sophistication of the setup, the weight and value of the cannabis, the electrical bypass and the high cost of the setup. The prosecutor conceded that proposition 5 of Verdins is applicable here in that imprisonment would weigh more heavily upon you having regard to the report from Forensicare. To reflect this the prosecution submitted that the bottom of the range for the non parole period, being 2 years is appropriate. The prosecution also rely on the decision of the Court of Appeal in Nguyen v R [2010] VSCA 127 ('Nguyen') as a guide.

28 Your counsel has urged me to impose a wholly suspended term of imprisonment having regard to a combination of factors including your plea of guilty before trial, your acknowledgement of responsibility for the setup when interviewed by police, the fact that the cultivation of cannabis was for your own use, your lack of any prior criminal history at 41, the fact that imprisonment would weigh more heavily upon you under proposition 5 in Verdins, the fact that you have ceased using cannabis but had an addiction to cannabis at the time of the offending and your good prospects of rehabilitation together with your responsibilities to assist your uncle at home and your mother who is in high care at a nursing home.

29 Your Counsel sought to distinguish the case of Nguyen on the basis of your lack of any prior criminal history, the fact that your case involved a setup at your own residence, the fact that imprisonment would weigh more heavily upon you because of your pre-existing anxiety disorder rather than as a result of you having been charged with these offences, and the lack of any evidence of any profit or commerce. He also submitted that on his instructions the police estimate of the cost of the setup is too high and that in reality the cost that you outlaid was less than $4000. He also pointed out that you had the electrical skills without the need to resort to any payment for that aspect of the setup.

30 Your counsel also drew my attention to the decision of DPP v Willis & Hossack [2009] VSCA 14, where a wholly suspended imprisonment term was upheld on a director's appeal in the case of Mr. Willis. He referred to the fact that his case was more serious because it included a charge of trafficking and there were no Verdins factors.

31 In sentencing you I have had regard to a range of recent sentencing decisions published by the Judicial College of Victoria and also the sentencing statistics. I have approached the sentencing statistics with some caution and each case has its own unique characteristics. I have found the recent decision of Nguyen and the table attached to be a useful guide in addition to the case of R v Wong.

32 In Nguyen His Honour Maxwell P considered a similar offence involving a total weight of 60.5 kg of cannabis being cultivated between two rental properties and a residential property. His Honour dismissed the appeal by the offender and concluded that a sentence of three years imprisonment with a non-parole period of two years imprisonment was within range for the principle cultivator, noting that the plea to cultivation was approximately 3 times the commercial quantity.

33 It is irrelevant which drugs are being cultivated.[5] The sentencing regime is quantity based. The quantity here is just over the quantity in Nguyen's case and the period of time for the cultivation is similar - being a period of 3 1/2 months in that case and in your case 4 months. The usual electrical bypass was also in place in that case.

34 I note that there are some distinguishing mitigating features in your case. You resided at the property and there is only one property involved. You have no prior criminal history. Amongst other things the factors relevant for Verdins are also different in your case in that there is evidence of a pre-existing chronic anxiety disorder rather than a condition brought about by having been charged with the offences. I am satisfied that having regard to the opinion provided in the Forensicare report that proposition five of Verdins is applicable here and that a term of imprisonment would weigh more heavily on you than it would on a person of normal health and that it is possible that your mental health may deteriorate in custody.

35 For this reason I propose to moderate principles of general deterrence to take account of your anxiety disorder.

36 Whilst at 41 you have no prior criminal history, your case can be distinguished from that of Mr Willis in DPP v Willis & Hossack [2009] VSCA 14 because of the fact that he was a youthful offender at 22, had spent 35 days in custody for the first time on remand, was acting under the direction of an older co-accused with a familial connection and played a lesser role in the cultivation.

37 I consider that the objective seriousness of the circumstances of these offences warrant a term of imprisonment to be served and that no other sentencing disposition is appropriate. Principles of general deterrence and specific deterrence demand that the court manifest denunciation of your conduct in an immediate term of imprisonment. The setup here was elaborate and sophisticated, the quantity of the drug was more than twice the commercial quantity and had a value of approximately $46,000 at the low end of the range. Whilst there is no evidence of you profiting from this offending, the value of electricity stolen is approximately $8000.

38 You have pleaded guilty to these offences and have no prior criminal history at the age of 41. There is real utility in your plea in that this has avoided the necessity for a trial and for witnesses to attend court and is deserving of a sentencing discount. I propose to fix a longer that usual parole period to reflect all of these factors and your good prospects of rehabilitation.

39 On count one, you are convicted and sentenced to a period of two years' imprisonment and I nominate this as the base sentence.

40 On count two, you are convicted and sentenced to six months' imprisonment.

41 I order that three months of the sentence imposed on count two be served cumulatively with the sentence imposed on count one.

42 That makes a total effective sentence of 2 years and 3 months' imprisonment.

43 I order that you serve a minimum period of 12 months' imprisonment before which you will not be eligible for release upon parole. And I recommend that you be assessed by the Prison Psychiatric Service on the recommendation of the Forensicare Report as soon as possible. And I would propose to provide the authorities with the copy of the Forensicare Report.

Section 6AAA Sentencing Act 1991

44 At to Section 6AAA of the Sentencing Act that requires in these circumstances, where I impose a less severe sentence than I would otherwise impose because of the plea of guilty, that I state the sentence and the non-parole period, if any, that I would have imposed, but for the plea of guilty. Accordingly, I indicate that if it were not for the plea of guilty, I would have convicted you and sentenced you to a period of 3 years' imprisonment with a non-parole period of 2 years' imprisonment, so I have in effect taken into account the plea of guilty and the sentence has been reduced.

45 There are some ancillary orders here. You might just like to take a seat for a moment, Mr Hanks.

46 The prosecution have made application for a number of items listed in the schedule that were used in connection with the commission of the offences to be forfeited and destroyed pursuant to s.78(1) of the Confiscation Act 1997. The application for this order was not opposed by you, and on conviction I am satisfied that the items listed in the schedule to the application are items capable of being used or that were used in or in connection with the commission of the offence of cultivation. I order that the items listed in the schedule be forfeited to the State and further direct that they be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date or the conclusion of any appeal proceedings and then to be destroyed.[6]

47 The prosecution have also made application for compensation to be paid to AGL Victoria Pty Ltd in the sum of $8,788.71. You do not oppose that application and I order that you pay to AGL Victoria Pty Ltd compensation in the sum of $8,788.71.[7] A stay of two years is granted for payment.

49 The prosecution have made application for a forensic procedure for the taking of an intimate sample from you, being a mouth and/or blood sample, for placement on the DNA database. I note that this application is not opposed by you, and I order that you undergo a forensic procedure for the taking of a scraping from the mouth for placement on the DNA database. I am satisfied that in all the circumstances, the making of the order is justified, having regard to the seriousness of the circumstances of the forensic sample offence, the fact that you do not oppose the order, and that the granting of the order is in the public interest. At the time of the request, if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted.

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

[5] Pidoto [2006] VSCA 185; (2006) 14 VR 269

[6] S.78(1) of the Confiscation Act 1997

[7] Pursuant to s.86 Sentencing Act 1991