Le v The Queen [2021] VSCA 220

2 The appellant pleaded guilty in the County Court on 26 March 2020 to cultivating not less than a commercial quantity of cannabis[1] (charge 1); one charge of trafficking cannabis[2] (charge 2); and one charge of theft[3] of electricity (charge 3). He also pleaded guilty to five related summary offences: three charges of possessing a prohibited weapon[4] (summary charges 5, 6 and 7); one charge of possessing cartridge ammunition[5] (summary charge 8); and one charge of dealing with property suspected of being proceeds of crime[6] (summary charge 12). All of the charges arose from police finding drugs and other items at the appellant's home and shop in July 2019.

3 On 24 April 2020, the sentencing judge imposed a sentence of five years' imprisonment on charge 1; six months' imprisonment on charge 2; and six months' imprisonment on charge 3. The judge also imposed a sentence of three months' imprisonment on the summary proceeds of crime charge, and seven days' imprisonment on each weapons charge.[7] Two months of the sentence on each of the trafficking and theft charges, and one month of the sentence on the proceeds of crime charge, were ordered to be served cumulatively upon the sentence on the cultivation charge. The total effective sentence thus produced was five years and five months'

imprisonment, upon which the judge fixed a non-parole period of three years.[8]

4 The appellant was given leave to appeal on the single ground that the sentence imposed is manifestly excessive.

5 In her reasons for sentence, the judge described the offending as follows:[9]

The details of your offending are contained in the summary of prosecution opening for plea, Exhibit A. These circumstances can be briefly stated as follows. On the morning of 11 July 2019 police executed a search warrant at your address in Keilor Downs. Numerous cannabis plants were located in your garage and in a tent like structure at the rear of the garage.

A total of 31 cannabis plants was subsequently examined and found to have a combined weight of 45.18 kilograms. Additionally five bags of loose cannabis were also located in your house and weighed 2.28 kilograms. Both areas described contained sophisticated hydroponic equipment including ultraviolet light fittings suspended from the ceiling, insulation, ventilation, charcoal air filters and a large amount of electrical wiring.

Photographs of the setup are contained in the depositions ... An illegal electrical bypass was also found at your home. Police examined the contents of your phone and found text messages over two days which included an image of the cannabis plant and price negotiations for its purchase. ...

Police also located a Jeep Cherokee car later discovered to have been stolen in the St Albans area days before. That relates to the summary offence of proceeds of crime. Later the same day police executed a search warrant at your hydroponic shop. There police located two bags containing 448.8 grams of cannabis and 1.6 kilograms of loose cannabis, four tasers, five extendable torch batons, four torch batons and a box containing 96 rounds of miscellaneous cartridge ammunition.

Those last items relate to the remainder of the summary offences. The total amount of cannabis found at your house and your shop was 49.5 kilograms. A commercial quantity is defined under the relevant legislation as 25 kilograms. You therefore had almost double that amount.

You were arrested and interviewed by police. In the course of the interview you admitted various matters including that there were 30 plants at your house that you looked after and you had bought from a friend. You paid an electrician to bypass the power into the garage and you were the only person who had the remote control for the garage.

You acquired the car through a friend but were not aware it was stolen and you purchased the taser and batons on the internet. You maintained that the plants were for your own use and you gave some to friends. You initially

denied you had sold them and then later in the interview maintained though you had the plants for sale you had not sold any of them at that time.

6 The appellant, aged 55 years,[10] has a number of prior convictions, including convictions in 1996 and 1999 for trafficking heroin, for which he was imprisoned.

7 Counsel for the appellant emphasised the following matters in her submissions in support of the present application:

• the appellant's was a 'fairly standard lower mid-range example' of the offence of cultivating a commercial quantity of cannabis;

• the crop was a standard hydroponic set-up with an electricity bypass;

• the period of cultivation charged was a single day;

• although the weight of the cannabis (which included loose cannabis from the plants), was just less than twice the commercial quantity, the number of plants was less than a third of the commercial quantity;

• the appellant was operating on his own account, and not as part of a syndicate;

• it was not contested on the plea that the appellant embarked upon the cultivation for his personal use and, also, with the plan to alleviate the financial hardship occasioned by his failing business;

• the relevance of the appellant's criminal history was limited to his prospects of rehabilitation;

• the appellant made admissions and pleaded guilty early;

• the judge accepted that the appellant suffered from a major depressive disorder that would make his time in custody more burdensome;

• the judge also accepted that the appellant's amphetamine and opiate use disorders provided the context for the offending; and

• there is nothing in the features of the offending or the appellant to explain why such a high sentence was imposed, much lower sentences having been regularly imposed for much worse offending.

8 In oral submissions, counsel referred to this Court's recent decision of Nguyen v The Queen.[11] In that case, the Court observed that current sentencing practice for cultivation offences had failed to address the inappropriate compression of sentences for cultivation exposed by this Court's earlier decision in Nguyen v The Queen.[12] Counsel submitted that, to the extent there was a problem, it was not reflected in the three post 2016 decisions referred to by this Court in its recent decision: Nguyen v The Queen (2017);[13] Brown v The Queen[14] and Selaci v The Queen.[15] Counsel submitted that having regard to those matters, the sentence imposed on the appellant must be seen to be manifestly excessive.

9 Counsel submitted that the offending was at the lower end of mid-range, the prior convictions had to be seen in their context and occurred a long time ago, and the significant stressors and medical condition suffered by the appellant all meant that the sentence was outside of the permissible range.

10 The respondent's counsel submitted that the judge had properly addressed: the appellant's period of offending; his role and motivation; his cooperation; plea of guilty and remorse; his prospects of rehabilitation; his history of disadvantage; and his mental state and the burden of custody. Although the 'comparable' cases drawn to the judge's attention by the prosecution attracted lesser sentences than was imposed on the appellant, that does not mean that the sentence imposed in the present case is wholly outside the available range. Counsel submitted that the instant sentence is consistent with Nguyen,[16] in which the Court observed that in future, sentencing courts should, by increments, increase the sentences for mid-range offences of cultivation.

11 It is convenient to commence by observing two matters. First, the maximum term of imprisonment that the Parliament has prescribed for the offence of cultivating not less than a commercial quantity of cannabis is 25 years. That marks the offence, in unmistakable terms, as a serious offence. Where the amount concerned is a large commercial quantity, the maximum increases to life imprisonment. That gives rise to the second observation that the seriousness of the offence is a function of quantity that does not depend on the court's assessment of harm. The appellant had, by weight, just under twice the minimum amount that constitutes a commercial quantity.

12 The fact that the charge is concerned with a commercial quantity also brings into play the consideration that the amount of cannabis renders it likely that it is being cultivated for sale and profit. That is the case with the appellant. Although he contends that some of his illicit crop was for his own use, he accepted that he also intended to sell part of it. That assumes present significance in at least two ways. The first is that the illegal activity is one motivated by profit and personal gain. That is relevant to any assessment of the appellant's culpability.

13 Second, and importantly, to the extent that the duty of this Court is to take into account the protection of the community through general and specific deterrence, any sentence must recognise and respond to the rewards that those who are minded to engage in this form of offending stand to derive. Sentences must be sufficiently stern as to provide an antidote to the lure of the benefits.

14 There are a number of points in the appellant's submission that are fairly made. The cultivation occurred at a single premises, the set up was fairly typical for this kind of operation: hydroponic cultivation involving electricity bypass. There was nothing to suggest any particular skill, resourcing, or that it was the activity of a wider group or syndicate.

15 Equally, there were some matters personal to the appellant that served to moderate the sentence. The offending coincided with a period of deterioration in his mental state which was associated with a failed relationship. A psychologist report of Carla Ferrari tendered on the plea contained an opinion that the appellant had symptoms, both preceding and after the offending, that were consistent with a major depressive disorder. The appellant turned to alcohol and drug use to compensate, with Ms Ferrari noting evidence of an amphetamine type use disorder and opiate use disorder. Although it was not suggested that the appellant's compromised mental state reduced his culpability in the manner described in Verdins, the judge also accepted that the appellant's 'somewhat fragile' mental state meant that incarceration was likely to be comparatively more burdensome. As recorded by the judge, the appellant's plea significantly facilitated the course of justice, had utilitarian benefit, and was indicative of remorse.

16 The matters raised by the appellant that do require more consideration are the role of other cases and the significance of the appellant's prior convictions.

17 Conformity with principle and consistency in approach will often result in comparable outcomes across different cases. However, as was reinforced in DPP v Dalgliesh (a pseudonym),[17] sentences are not precedents, and the outcome in one case cannot dictate the outcome in another. Even where there is a discernible pattern, current sentencing practice does not set the limits of the sentencing discretion. But nor are they irrelevant.

18 By reference to other cases, and all other things being equal, a sentence of 5 years' imprisonment for cultivating twice the minimum commercial quantity might be thought to be stern. A survey of a small number of cultivation cases was undertaken in Dang v The Queen,[18] and more recently in Nguyen v The Queen (2021).[19] They show sentences of above 3 years and 6 months' imprisonment are not unusual for persons who played a low level functionary role, and a range of sentences for comparable amounts of cannabis.

19 In Brown v The Queen,[20] a total of 226 plants was seized, weighing 17.36 kilograms. Police also located an illegal electricity bypass. The applicant had a prior conviction in 2007 for cultivating cannabis and received a suspended prison sentence of 3 months. A sentence of 5 years and 6 months (comprising 4 years for cultivation, 2 years for trafficking and 1 year for theft of electricity, with cumulation of 1 year on trafficking and 6 months on the theft) was set aside for specific error. This Court considered the total effective sentence to be 'somewhat stern, and perhaps as being close to the top-end of the range' but that it might be difficult to say it was wholly outside the permissible range.[21]

20 In Nguyen v The Queen (2016),[22] a total of 241 plants, weighing a combined total of 38.9368 kilograms was located in two houses. The appellant and a number of associates engaged in the cultivation of a commercial quantity of cannabis. He was sentenced to a total effective term of 3 years and 6 months' imprisonment with a non-parole period of 2 years and 6 months.

21 In Nguyen v The Queen (2017),[23] the quantity cultivated was 127.16 kilograms, the applicant had a prior conviction for drug trafficking, and was resentenced by this Court to 5 years' imprisonment on the cultivation charge.

22 These cases tend to support the conclusion that the sentence was stern, and the recent decision of Nguyen v The Queen (2021)[24] does not detract from that conclusion. However, the appellant has to go further and establish that the sentence was wholly outside the permissible range. Given that the seriousness of the offending is closely tied to the quantity of the drug concerned and this amount is usually known with precision, the temptation is to treat sentences in one or a few cases as if they represent a tariff. That temptation should be resisted because it involves error.

23 As is so often the case, all things are not equal. Here, the appellant was responsible for the entire undertaking. It is literally true that it was backyard operation, and the appellant was not part of an organised syndicate or the like that may have added to the level of organisation and sophistication of the offending. However, he stood to gain whatever rewards accrued from the activity and the scale involved suggests some level of skill and understanding.

24 Further, and importantly he had two very relevant prior offences and a number of less serious contraventions. In November 1996, he was sentenced to three years and three months' imprisonment for trafficking heroin, only to be sentenced again in 1999 to 30 months' imprisonment for again trafficking in heroin. As the judge acknowledged, the appellant's earlier offending was associated with a failed marriage and other stressors. That may be accepted.

25 While it is true that the offending of the appellant may appear to be episodic, and that the prior offending occurred almost 20 years ago and is separated by long periods of productive work, a characterisation that the judge accepted, the fact that the appellant has turned to serious criminal offending in the face of stressors that are by no means uncommon, strongly points to the need for specific deterrence. Understandably, the judge regarded the appellant's prospects of rehabilitation as guarded. The appellant was not to be punished again for his earlier crimes, but the judge was entitled to give great weight to his criminal record as an indicator of the offender's moral culpability, his prospects of rehabilitation, the community's need for protection, and the increased importance of specific deterrence as a factor in sentencing.[25]

26 Taking all of the factors into account, I am unable to conclude that the sentence imposed was manifestly excessive. I would dismiss the appeal.

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

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

[3] Crimes Act 1958 s 74(1). The maximum penalty is 10 years' imprisonment.

[4] Control of Weapons Act 1990 s 5AA. The maximum penalty is 240 penalty units or two years' imprisonment.

[5] Firearms Act 1996 s 124. The maximum penalty is 40 penalty units.

[6] Crimes Act 1958 s 195. The maximum penalty is two years' imprisonment.

[7] The appellant was convicted and discharged on the ammunition charge.

[8] Pursuant to s 6AAA of the Sentencing Act 1991 the judge declared that, but for the plea of guilty, she would have imposed a sentence of seven years' imprisonment, with a non-parole period of five years.

[9] DPP v Le [2020] VCC 504, [4]-[10] ('Reasons').

[10] His date of birth is 1 January 1966.

[11] [2021] VSCA 211 (Maxwell P and Sifris JA).

[12] Nguyen v The Queen [2016] VSCA 198; (2016) 311 FLR 289, 296 [4], 333 [152]; [2016] VSCA 198 (Redlich JA).

[13] [2017] VSCA 286 (Kaye JA and Forest AJA).

[14] [2020] VSCA 60 (Priest and Weinberg JJA).

[15] [2020] VSCA 276 (Priest and Niall JJA).

[16] Nguyen v The Queen [2016] VSCA 198; (2016) 311 FLR 289, 296 [4], 333 [152]; [2016] VSCA 198 (Redlich JA).

[17] (2017) 262 CLR 428; [2017] HCA 41 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).

[18] [2020] VSCA 24 (Niall and Weinberg JJA).

[19] [2021] VSCA 211 (Maxwell P and Sifris JA).

[20] [2020] VSCA 60 (Priest and Weinberg JJA).

[21] Ibid [43] (Priest and Weinberg JJA).

[22] (2016) 311 FLR 289; [2016] VSCA 198 (Redlich, Tate and Whelan JJA).

[23] [2017] VSCA 286 (Kaye JA and Forest AJA).

[24] [2021] VSCA 211 (a case concerning the top end of quantitative scale for commercial quantity cultivation).

[25] R v O'Brien & Gloster [1997] 2 VR 714, 718 (Charles JA).