McClelland v The Queen [2017] VSCA 124

Court of Appeal (Vic)|2017-05-30|Before: Mr J, Ashley JA, Kaye JA

DPP v McClelland (Unreported, County Court of Victoria, 23 September 2016)

CRIMINAL LAW - Appeal - Sentence - Cultivation of a commercial quantity of cannabis - Applicant's role in offending - Characterisation of 'principal' offenders and 'ancillary' offenders - Characterisation of 'mid-range' offending - Not open to find applicant was 'principal' offender - Offending not 'mid-range' offending - Nguyen v The Queen (2016) 311 FLR 289 - Leave granted - Appeal allowed.

1 The applicant was convicted of the offence of cultivation of a commercial quantity of cannabis, following an eight day trial in the County Court. Following a plea, the applicant was sentenced to 5 years' imprisonment with a non-parole period of 3 years and 6 months. The judge declared the period of pre-sentence detention to be 44 days.

2 The applicant initially sought leave to appeal against his conviction and sentence. However, subsequently he abandoned his appeal against conviction. In support of his application for leave to appeal against sentence, the applicant relies on four grounds, namely:

Ground 1: The learned judge erred in finding that the Applicant's role in the offending included him attending at the property on 'no less than a total of seven occasions to tend to or cultivate the cannabis crop'.

Ground 2: The learned judge erred in finding the Applicant's offending was 'midrange offending' such that the warning in Nguyen v The Queen [2016] VSCA 198 was to be adhered to.

Ground 3: The learned judge erred by misapplying the warning contained in Nguyen v The Queen [2016] VSCA 198, by increasing the Applicant's sentence, other than by way of increment.

Ground 4: The head sentence and the non-parole period are manifestly excessive in view of:

(a) the limited role played by the Applicant in the offending;

(b) the delay between the offending and sentence;

(c) the rehabilitation achieved during the delay;

(d) the lack of relevant prior convictions; and

(e) the application of leniency in applying the increased sentencing practice.

3 The applicant was charged with committing the offence between 3 December 2013 and 30 December 2013 at premises at 77 Kulin Drive, Tarneit ('the premises'). The prosecution case against the applicant was fundamentally circumstantial, consisting, in large part, of observations made by two witnesses as to attendances by the applicant at those premises during that period, and also on certain dates before and after that period. On 30 December 2013, police conducted a search of the premises. When the police attended the premises, the applicant and two other men, SN and Michael Duda were present. Upon searching the premises, police found 73 cannabis plants weighing 61.488 kilograms. The applicant, together with SN and Duda, were each charged with offences arising out of the search. Duda has pleaded guilty to one charge of possession of cannabis, and his case was disposed of in the Magistrates' Court. The trial of the co-accused, SN, is listed to commence in the County Court in August.

4 Each of the grounds, relied on in support of the application, focus wholly, or in the case of ground 4, significantly, on the categorisation by the judge of the role of the applicant in the cultivation of the cannabis plants found at those premises. The case, put against the applicant at trial, was not based on a joint criminal enterprise between him and the other two co-offenders. Rather, the prosecution case was that the applicant had himself engaged in the cultivation of the plants. In his charge to the jury, the judge gave directions to the jury in accordance with the manner in which the prosecution had sought to make its case. For the purposes of resolving the grounds on which this application is brought, it is necessary, first, to summarise, in a little detail, some of the evidence relevant to that issue that was given at trial, and in particular evidence given by the principal prosecution witness.

5 The main prosecution witness was Aaron Bryan. At the relevant time, Mr Bryan was a police constable. In October 2013, he was informed that some suspicious activity was taking place at the premises, which was located opposite the house of a friend of Mr Bryan. He spoke to the sergeant at his police station, and put in an information report about it.

6 Subsequently, Mr Bryan commenced to make his own observations about the premises. In cross-examination, it became clear that Mr Bryan had not been tasked as a sworn police officer to make those observations, but he made them as a resident of Tarneit who lived very close to the premises. He agreed that in making the observations he was not conducting a 'stake out', but from time to time he attended at his friend's address, and from there made observations of the premises. In December 2013, he commenced to record those observations in a log. During that period, Mr Bryan made observations concerning a black Ford Territory vehicle ('the vehicle') which on a number of occasions attended at the premises. It became common ground in the trial that that vehicle was owned by the de facto wife of the applicant, and in his evidence the applicant admitted that on each occasion on which the vehicle attended at the premises, he was the person who drove it there.

7 In his evidence in chief, Mr Bryan described the observations that he made of the premises during the time in which he had it under observation. His first observation was on 12 October 2013. On that date, he twice observed the vehicle at the premises. On each occasion there was no other vehicle there. On the next day, 13 October, he again observed the vehicle in the driveway of the premises at 2.30 pm. On that day a Jeep vehicle also attended at the premises. Mr Bryan said that he saw the same two vehicles turn up on different days during that period, mostly between 8.30 pm and 10.30 pm. It was not entirely clear what time frame Bryan was referring to in this part of his evidence. He said that that occurred for quite a few weeks. He said that he saw the person who was driving the black Ford Territory, and he identified that person as the accused.

8 Mr Bryan then gave evidence about the observations that he made of the premises during the period covered by the charge, namely from 3 December to 30 December 2013. Mr Bryan said that he started making and recording observations, during that period, on 9 December. He again observed the vehicle at the premises on that date at 8.25 pm. No other vehicle was present at the address. He saw the accused take a bag out of the back of the vehicle and put it in a rubbish bin at the premises.

9 On the next day, 10 December, he again saw the vehicle at the premises at 8.40 pm. Again no other vehicle was present.

10 The next observation made by Mr Bryan was on 12 December. On that date, the applicant arrived at the premises at 9.00 pm in the vehicle. Mr Bryan did not see any other vehicle attend at the premises on that day. Two days later, on 14 December, Mr Bryan observed a white Holden utility vehicle arrive at 3.54 pm. He had not previously seen the male, who was in that vehicle. That person carried a large clear water-tight cylinder into the house.

11 On 17 December, Bryan observed the vehicle in the driveway of the premises at 6.40 pm. It left at about 7.00 pm. Mr Bryan did not see any other vehicle at the premises on that day.

12 On the next day, 18 December, at 5.30 pm, Mr Bryan noticed that the front door of the premises was wide open, but no-one was present. At about 8.30 pm, the applicant arrived in the vehicle and parked in the driveway. At that time, the applicant was looking around because, Mr Bryan inferred, the front door was still open. No other vehicle attended at the property on that day.

13 Two days later, on 20 December, Mr Bryan observed the applicant again arrive in the vehicle at 8.50 pm and park it in the driveway. He only stayed for two or three minutes and then left again. Mr Bryan did not observe any other vehicle attend on that day. On the following day, 21 December, the white utility, driven by a different person, arrived at about 10.10 pm, and left 15 minutes later. Mr Bryan observed the same white utility attend at the premises again at 8.00 pm on 26 December. On the next day, 27 December, a green Ford Falcon vehicle paid a very quick visit to the premises at 4.45 pm. A person from the back of the vehicle alighted and spoke to another person who appeared to be the occupant of the house at the premises. He stayed for about five minutes and then left. Mr Bryan had not previously seen the person who, on that date, he thought might be the occupant of the premises. On 27 December, the white utility arrived at 5.40 pm, and remained at the premises until 7.00 pm. The same vehicle attended at the premises on the next day at 4.00 pm.

14 On 30 December, the white utility again attended at the premises at 5.55 pm. On that occasion, the accused arrived in that vehicle with the usual driver of the white utility. Shortly thereafter, at 6.20 pm, the police attended at the premises and conducted the search.

15 Subsequently, on 5 January, Mr Bryan observed the accused, and the usual driver of the white utility, attend at the premises in the Ford Territory. On that date, the accused and the other person removed household items from the premises. At one point, the applicant also removed shrouds of lighting from the premises.

16 The next relevant witness, for the purpose of this application, was Mr Paul Monkley. At the time of the offence, Mr Monkley lived in the vicinity of the premises. He said that from early November 2013, he had observed a lot of 'comings and goings' from that address. He said that no-one seemed to be living there at the time, but, rather, a car would appear for a few hours and then disappear. He said two vehicles attended during that period, a white utility, and the other was a black SUV, which he thought was a Territory. He said that he saw those vehicles at the premises every three or four days. On each occasion, they would stay for no more than a couple of hours.

17 Sergeant Stephen O'Connell, who was then stationed at Williamstown Police Station, gave evidence concerning the attendance of police at the premises on 30 December 2013 pursuant to the search warrant obtained by police. He said that when he arrived there was a very distinctive noise, which was the buzz of electricity. In addition, on entering the premises, he noticed the distinctive odour of cannabis emanating from the house. He said that the room, referred to as room 3, was a 'jungle' with 16 cannabis plants with shrouds above them hanging like lamps. He said he was unable to see more than one metre into the room because of all the greenery and shrouds. The laundry at the premises was full of chemicals, fertilisers, PH testing kits and thermometers. There was also left over electrical equipment, power boards and similar paraphernalia in the laundry. In room 7, was a UV globe with a shroud, and in front of it were two tubs that had some immature cannabis seedlings in them. Room 5 was packed full of nine plants, all mature plants up to shoulder height. In room 6, there were nine further mature plants that completely filled the room. SN, who was in attendance, had the keys to the white utility, and on opening it, Sergeant O'Connell noted that the rear was full of electrical parts. The plants at the premises were seized, but the electrical equipment was left at the location. Police photographed that equipment.

18 At the trial, the applicant gave evidence. He agreed that on the days on which his vehicle was observed at the premises, he had driven it there. The applicant stated that he had known SN for 15 years, and he was a friend. He also knew Mr Duda, having met him through SN. He said that he did not have any involvement in renting the house, he did not live or stay at it, and he did not have a key to the house or a control for the garage. He said that the longest period that he would stay at the house would be for 40 minutes to an hour. He said that his purpose in attending at the premises was to purchase and use cannabis there. He would sometimes use the cannabis at the premises and on other occasions he would take it away. He had been using cannabis since his early 20s in order to relax after work. He used about a couple of grams per week.

19 The applicant stated that when he attended at the premises, he was always let in by either SN or Mr Duda. SN kept his dog at the premises and Mr Duda was living there. On most occasions when he attended Mr Duda would be there. He said he was aware that cannabis was growing in the house and he was told that Duda had a room there. He said that he purchased one or two grams of cannabis on the occasions on which he attended at the premises, and it would cost him between $15 and $20 for one gram. On average, he attended at the premises a couple of times each week. When asked why he was not observed at the premises between 20 December and 30 December, he said that he thought he went 'up the coast', because it was around Christmas time, when he took his children to a caravan park for a holiday. He returned home at about Christmas.

20 As mentioned, the prosecutor did not contend that the applicant had attended at the premises pursuant to a joint criminal enterprise to cultivate a commercial quantity of cannabis at those premises. Rather, in his final address he submitted that the jury should reject the applicant's account as to why he attended at the premises at that time. The prosecutor submitted that the applicant had attended at the premises 'because he was involved in somehow helping with the growing, with the cultivating of the crop, and he knew it was a large crop ...'.

21 In his final directions to the jury, the judge instructed the jury that, in order to convict the accused, the jury must be satisfied beyond reasonable doubt that the applicant intentionally cultivated not less than the commercial quantity of the plant. Thus he told the jury that the prosecution must prove that the accused cultivated not less than a commercial quantity of cannabis L, and that the accused intended to cultivate a quantity not less than a commercial quantity. He instructed the jury as to the definition of cultivation in s 70 of the Drugs, Poisons and Controlled Substances Act 1981 ('the Act').

22 The main focus of the submissions, made on the plea, concerned the question as to how the judge should interpret the verdict of the jury. Counsel for the applicant accepted that the jury had rejected the applicant's evidence that he never cultivated or attended the plants in any way on any of the occasions upon which he attended at the premises. Counsel submitted that the jury was satisfied that the applicant had knowledge of 'the entire crop' and that he 'serviced the entire crop in some way'. However, he submitted that the judge could draw no other conclusion, other than that the jury had accepted that 'at least once during those eight attendances during the month of December' the applicant had cultivated the crop of cannabis at the premises with the requisite intention. He submitted that no other conclusion could be drawn concerning the role of the applicant. Counsel contended that what the jury must have rejected was the applicant's evidence that on each and every occasion he attended at the premises he only purchased or smoked cannabis there.

23 Counsel then turned to the recent decision of this Court in Nguyen v The Queen,[1] in which the Court expressed the view that in the future sentencing courts should, by increment, increase the sentences to be imposed for an offence against s 72A of the Act 'for such offending in the mid-category of seriousness'.[2] Counsel submitted that a 'label' could not be put on the offending by the applicant, but rather the judge had to sentence the offender for what he had been proven to have done. He noted that Redlich JA, in Nguyen, differentiated between those who played an 'ancillary' role and those who played a 'principal' role.[3] Counsel observed that the applicant was a principal offender, but in the sense that the case was not presented against him on the basis of aiding and abetting. However, counsel submitted, he was only performing an 'ancillary role' on the evidence by attending to the plants. Counsel accepted that the applicant was not a 'crop sitter' because he was not living at the premises. Counsel also noted that the applicant did not rent the house, did not own the house, and did not pay for any of the paraphernalia at the premises. He submitted that the judge should conclude that the applicant was helping the person who owned the premises, namely, SN.

24 Counsel then returned to other matters on the plea, including the delay in the prosecution, the fact that the applicant did not have any serious previous convictions, his age, and the fact that he had family support. He also submitted that on the evidence the applicant's prospects of rehabilitation were good. Counsel submitted that delay was relevant, not only because of its effects on the applicant, but also because, by sheer coincidence, due to the delay, the plea and sentencing would take place shortly after the decision in Nguyen, whereas if the case had not been delayed, the applicant would have been sentenced before that case was decided.

25 In response, the prosecutor submitted that the applicant should be regarded as a 'principal' for the purposes of the application of the dicta in Nguyen. Relevantly, for the purposes of this application, counsel submitted as follows:

He was prosecuted as a principal. He was defended as a principal, and the jury convicted him. Consistent with that verdict, we say your Honour should adopt that method of understanding in sentencing him.[4]

26 Counsel then referred to sections in the judgment of Redlich JA in Nguyen in which his Honour differentiated between offenders who play an 'ancillary role' and offenders who may be classified as 'principals'.[5] He submitted that the jury found that the applicant was playing more than an 'ancillary role'. Thus it would seem counsel submitted that the applicant fell within 'cluster two' of the cases mentioned by Redlich JA, and then stated 'whether it's lower range, middle range, upper range, in the second cluster, is entirely a matter for your Honour'.[6]

27 The judge commenced his reasons for sentence[7] by making findings concerning the circumstances of the offending. Those findings are contained in the following three paragraphs from his Honour's reasons:

[4] The case against you was a circumstantial case. I find the following sentencing facts beyond reasonable doubt and consistent with the jury verdict:

(a) That between 3 December 2013 and 30 December 2013 you were involved in cultivating the cannabis crop at 77 Kulin Drive, Tarneit;

(b) That the size of the cannabis crop on the day of the police raid - that is, 30 December 2013 - was 61.48 kg. This quantity of cannabis is 2.46 times the minimum quantity for a commercial quantity of cannabis. I accept you intended to cultivate a cannabis crop greater than the commercial quantity, based on the number of plants, the size of the plants, and the hydroponic and irrigation system in place in each of the grow rooms in the house;

(c) I accept that in the charge period, you attended at the premises on no less than a total of seven occasions to tend to or cultivate the cannabis crop;

(d) I accept your evidence that on each occasion you went to the premises, you drove your de facto's black Ford Territory vehicle, registered number XZH 606;

(e) I accept your evidence that you went up the coast around Christmas time, with your children to a caravan park. That means, basically, that the days between 3 December 2013 and approximately 20 December 2013, you have been at the house on six occasions, in effect on an average of once every three days. The last occasion was the police raid and your arrest on 30 December 2013. The frequency of your visits proves your close connection to the cultivation of this cannabis crop;

(f) You visited the premises before and after the charge period of 3 December 2013 and 30 December 2013. I accept the evidence given on this issue beyond reasonable doubt. This evidence establishes your connection to the crop before the period and after the raid on the premises occurred.

[5] Your counsel submitted there was no evidence to establish, beyond reasonable doubt, any of the following matters:

(a) The leasing of the property;

(b) The maintenance of the property;

(c) The ownership of the hydroponic or electrical equipment;

(d) The bypass of the electricity meter;

(e) The harvesting of previous crops - and I have noted you are not charged with this;

(f) The sourcing of the nutrients for the crop.

[6] I accept that to be the case. Nevertheless, the matters to which I have previously referred to, prove beyond reasonable doubt, your role as a principal in this commercial cannabis crop. Your offending is mid-range offending for this particular charge.

28 Having made those findings, the judge then considered the applicant's personal circumstances. He noted that the applicant, who was 42 years of age, had a long history of drug use, and that his previous criminal history indicated a long term use of cannabis. His Honour noted that the applicant had good family support, and that his criminality only arose from his drug addiction. The judge outlined the purposes for which a sentence is imposed in a case such as this, including specific and general deterrence, rehabilitation, denunciation and protection of the community. His Honour also noted that it was necessary to take into account current sentencing practices. For that purpose, the judge referred to a table of cases provided by the prosecution setting out sentences in cases of cultivation of a commercial quantity of cannabis between 2013 and 2015, noting that the majority of those sentences were imposed after a plea of guilty. His Honour referred to the decision of this Court in Nguyen v The Queen[8] in which a total effective sentence of 6 years and 9 months was imposed after a jury verdict. His Honour noted that that case involved a more serious level of offending than in the present case.

29 The judge also referred to the authorities in which it has been emphasised that the offence, for which the applicant was convicted, was a serious offence, as indicated by the maximum prescribed sentence of 25 years' imprisonment.

30 The judge then returned to the decision of this Court in Nguyen, to which we have earlier referred. Having set out passages from that judgment, the judge also stated that he took into account the delay between the offending (in December 2013) and sentence (September 2016), the fact that in the meantime there had been no further offending by the applicant, and that his prospects of rehabilitation were 'fair to good'.

31 The judge concluded by repeating that the applicant had been found guilty 'as a principal' in the cultivation of a commercial quantity of cannabis, and imposed the sentence to which we have already referred.

32 In support of ground 1, senior counsel for the applicant submitted that it was not open to the judge to make the finding of fact, contained in paragraph 4(c) of his sentencing reasons, that the applicant attended at the premises 'on no less than a total of seven occasions' to tend or cultivate the cannabis crop that was being grown at the premises. Counsel submitted that although the jury rejected the applicant's evidence that the reason that he attended the premises, on each occasion, was to purchase cannabis for his own use, it did not follow, from the verdict, that the jury were satisfied beyond reasonable doubt that the applicant attended the premises on each occasion for the purpose of tending or cultivating the crop. It was pointed out, by counsel, that it was sufficient for the jury to convict the applicant for it to be satisfied beyond reasonable doubt that the applicant attended the premises on at least one such occasion for the purpose of tending or cultivating the crop. It was submitted that it was not open to the judge to form any conclusion, other than to that effect, since to do so would be to indulge in speculation.

33 In response, senior counsel for the respondent submitted that the contention, advanced by the applicant in support of ground 1, is flawed. In particular counsel contended that once the jury had rejected the applicant's explanation for attending at the premises, it was not open to the jury to 'pick and choose' upon which occasions he attended there for the purpose of purchasing or smoking cannabis, as distinct from cultivating or tending the cannabis crop at the premises. Thus it was submitted the only reasonable and rational manner in which the judge could have interpreted the jury's verdict was to conclude that on every occasion, that the applicant attended the premises, he did so for the purposes of tending and cultivating the cannabis crop.

34 We do not accept the submissions made by the applicant on ground 1.

35 The evidence of Mr Bryan was that, on six of the occasions on which he kept the premises under observation between 9 December and 20 December, in the charge period, he observed the applicant also attend the premises. In addition the applicant was present when police searched the premises on 30 December. Mr Bryan did not keep the premises under constant observation, but only did so when he was off duty, from time to time. In that way, the evidence given by Mr Bryan was probative of the frequency with which the applicant attended the premises during the charge period, with the exception of a period of time over the Christmas season, when he was then, on his own evidence, away on holidays with his children. Thus it was open to the judge to conclude that the applicant had attended the premises on 'at least' seven occasions during the charge period.

36 The frequency, nature and timing of the attendances at the premises by the applicant during the period were significant. Mr Monkley's evidence was that the premises appeared to be uninhabited, and that the vehicles that he observed attending at the premises only remained there for a couple of hours. Mr Bryan's evidence was that on most of the occasions on which the applicant attended at the premises, he appeared to be there alone. No other witness gave evidence of any observations that might have supported the evidence of the applicant that Duda was living there. The nature, timing and frequency of the attendances of the applicant's vehicle, and the white utility, at the premises, were all consistent with the purpose alleged by the prosecution in each instance, namely, to cultivate the cannabis crop at the premises.

37 Faced with that case, the applicant's evidence was that he attended on each occasion to purchase and, on some of those occasions, to smoke cannabis at the premises. By its verdict, the jury was satisfied beyond reasonable doubt that that evidence was not truthful. We agree with the submission made on behalf of the respondent that, for the purposes of sentencing, it was not open to the judge to 'pick and choose' upon which occasions the applicant attended only for the purpose of purchasing or smoking cannabis there. Accordingly, in the circumstances that we have discussed, the judge was entitled to be satisfied, beyond reasonable doubt, that on each occasion upon which the applicant attended the premises during the charge period, he did so for the purpose of cultivating the cannabis crop that was being grown there.

39 Ground 2 is based on paragraph 6 of the sentencing reasons, in which the judge was satisfied, beyond reasonable doubt, that the applicant's role was as a 'principal' in the cultivation of the cannabis crop, and that his offending was 'mid-range' offending for the particular charge.

40 In the context of this case, that conclusion, by the judge, was relevant to two aspects of the sentencing process. First, it was relevant for the judge to form a view as to the role played by the applicant in the cultivation of the cannabis crop, in order to determine the gravity of his offending. Secondly, the finding by the judge was relevant because of the view, expressed by this Court in Nguyen, that sentences for offenders in the 'mid-range' of offending had been too lenient, and that such sentences should, in the future, be increased by 'increments'.[9]

41 Counsel for the applicant submitted that the conclusions by the judge, that the role of the applicant was as a 'principal' in the cultivation of the cannabis crop, and that his offending was 'mid-range', were at least in part the product of confusion generated by submissions made by counsel for the prosecution on the plea. It was common ground on the plea that the applicant had been convicted as a principal, in the sense that he was not tried and convicted as a secondary offender. However, as counsel for the applicant noted, on the plea, and on this application, that did not mean that the applicant was necessarily a 'principal' in the sense discussed by this Court in Nguyen, namely, that he had a financial interest in the proceeds of the crop, or was in some way a partner with the person or persons who had established and owned the crop. Counsel submitted that there was no evidence upon which the judge could be satisfied, beyond reasonable doubt, that the applicant had performed such a function, or that he had a financial interest in the proceeds of the sale of the crop. Accordingly, it was submitted that the judge erred in sentencing the applicant on the basis that he was a 'principal', whose offending, as such, brought him within the 'mid-range' of sentences that was discussed by this Court in Nguyen.

42 In response, counsel for the respondent noted that on the plea counsel for the applicant had, correctly, conceded that the applicant did not play the role of a 'crop sitter'. By his frequent attendances, the applicant had clearly played an important and regular role in the cultivation of the crop during the period that was the subject of the charge. It was submitted that the judge was entitled to infer that the applicant either expected or received an appropriate financial benefit from the cultivation of the crop. Counsel contended that it was not necessary for the applicant to have had a financial stake in the crop in order that he be characterised as being a 'principal' for the purposes of sentencing.

43 It would seem that, notwithstanding the paucity of the evidence as to the role played by the applicant in the cultivation of the cannabis at the premises, the judge felt constrained to form a view as to his role as a result of the dicta of this Court in Nguyen. As we have mentioned, in the course of his reasons for sentence, the judge considered, at some length,[10] the reasons for judgment of this Court in Nguyen, which had been published the day after the jury verdict, in which this Court[11] examined the current sentencing practices for the offence of cultivation of a commercial quantity of a narcotic plant, namely, cannabis.

44 In Nguyen, the offender was found to be an 'organiser' of the cannabis crop with a financial interest in the crop, and therefore was considered by this Court to be 'as equivalent to a principal'.[12] As such, he was placed, in Nguyen 'well within the mid-range of seriousness' of such offending.[13] In determining the adequacy of current sentencing practices, Redlich JA referred to the recent Drug Offences Report ('the Report') of the Sentencing Advisory Council,[14] which placed cases involving commercial cultivation into two 'clusters'. 'Cluster 1' cases involved offenders who were 'crop sitters or played an ancillary role'. 'Cluster 2' cases were described by Redlich JA as offenders who 'played a principal or proprietary role'.[15] His Honour accordingly considered that the offender, in Nguyen, came within 'cluster 2', and that his role was 'properly to be characterised as mid-range offending involving participation akin to that of a principal ...'.[16] Redlich JA, with whom Tate and Whelan JJA substantially agreed, considered the current sentencing practices, for offending falling within that 'range' of offending, were inadequate, and expressed the view that the deficiency should be repaired by a process of incremental increase of such sentences in future cases.

45 In the present case, the references by the sentencing judge to passages from the judgments in Nguyen, including those to which we have just referred, indicate that the judge sought to categorise the offending of the applicant in the same manner that this Court adopted in Nguyen.

46 In the present case, there was no evidence that the applicant had a financial interest in the cannabis crop, or that he played a role in the cultivation of it in a manner akin to someone who had such an interest. As the judge noted in paragraph 5 of his sentencing reasons, to which we have earlier referred, there was no evidence that the applicant had performed any role in the leasing of the premises, the maintenance of the premises, the ownership of the hydroponic or electrical equipment at the premises, the bypass of the electricity meter, the harvesting of previous crops at the premises, or the sourcing of the nutrients for the crop of cannabis at the premises. There was no evidence that he had invested any funds in the cultivation of the crop, that he had in any way financed the expenses involved in the growing of the crop, or that in any other way financed the cultivation of the cannabis crop at the premises. The only evidence, as to the role played by the applicant in the cultivation of the crop was that to which we have already referred, namely, his frequent attendances at the premises, and in particular the timing, frequency and circumstances of those attendances.

47 Obviously, the applicant did not participate in the cultivation of the cannabis crop at the premises for altruistic or philanthropic purposes. The jury, and the judge, were entitled to infer that the applicant either received, or expected, some financial, or like, reward for his participation in the cultivation of the crop during the period that was the subject of the charge. However, there was no evidence from which it could be inferred, beyond reasonable doubt, that the applicant had any proprietary interest in the cannabis crop, or that he played a role that could be equated to that of a partner or 'principal' in the cultivation of the crop. Any conclusion, other than that the applicant clearly played an active role in the cultivation of the crop during the period of offending, was, with respect, the product of speculation, and not appropriate inference. In particular, on the evidence adduced at trial, it was not possible to exclude the reasonable possibility that the applicant attended the premises, and cultivated the crop at the premises, during the charge period, for monetary or other reward, without assuming the role of 'principal' of the kind discussed by Redlich JA in Nguyen.

48 For those reasons, we consider that the judge fell into error in determining that the applicant had played a role as a 'principal' in the cannabis crop, and by reason thereof his offending came within the 'mid-range' offending for that charge. In fairness to the judge, he was not assisted, in the proper characterisation of the applicant's role, by the confusing submissions made to him by the prosecution. Further, it must be accepted that in cases such as these, which depend very much on circumstantial, rather than direct, evidence, the task of attempting to characterise the role played by an offender has a number of difficulties. As we have noted, the judge clearly felt obliged to embark on such a characterisation, because of the potential relevance, to the sentencing process, of the dicta expressed by this Court in Nguyen.

49 In Nguyen, Redlich JA, aptly, observed that it is not always the case that a criminal enterprise, involving the cultivation of a narcotic plant, can be demonstrated to have a specific hierarchy. His Honour said:

Whether an offender should be characterised as a principal or as discharging functions similar thereto is ultimately to be assessed on a case by case basis. It will not always be the case that a criminal enterprise will have a hierarchical structure or that the role played by each participant will be clearly delineated. Even where it is, the particular role may not possess all of the same characteristics as other principals within the enterprise.[17]

50 In the present case, those observations are apposite. On the evidence, it was not possible to draw a conclusion, beyond reasonable doubt, as to the role performed by the applicant, other than that he attended the premises regularly and frequently, during the period charged, to cultivate the cannabis crop that was being grown there. Accordingly, we accept the submission that the judge was led into sentencing error, by accepting the proposition advanced by the prosecutor that the applicant's role was that of a 'principal' so that his offending was 'mid-range offending'. That finding was material to the determination by the judge of the sentence that he imposed on the applicant. It follows that ground 2 of the application must be upheld, the sentence must be set aside, and the applicant re-sentenced. However, before doing so, we shall briefly make some remarks concerning the remaining two grounds.

51 Based on our conclusion in respect to ground 2, the views expressed by this Court in Nguyen, as to the inadequacy of current sentencing practices, were not demonstrated by the prosecution to apply to the sentence to be imposed on the applicant. Although the judge did not specifically state that, in accordance with that decision, his sentence represented an 'incremental increase' on sentences demonstrated to constitute the 'current sentencing practice' for the offence, nevertheless it must be inferred, from the judge's significant references to the dicta in that case, that his Honour did adopt that approach to sentencing the applicant.

52 On the plea, the prosecution provided to the judge a document comprising a summary of a number of sentences, for the offence, to assist the judge to determine the 'current sentencing practice' applicable to the applicant's case. The prosecution referred to the sentences imposed in Latif & Ors v The Queen;[18] Nguyen v The Queen;[19] Do v The Queen;[20] Barton v The Queen;[21] Hendricks v The Queen;[22] Khoa v The Queen [23] and McGrath v The Queen.[24] In considering those cases, it is important to bear in mind the caution expressed in the authorities that sentences in previous cases do not constitute precedents, but, an allowance must be made for the wide range of conduct, and of circumstances personal to the offender, which inevitably vary from cases to case.[25] Nevertheless, a review of previous sentences, as a whole, is important, because it may reveal a relevant 'yardstick' by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles.[26] In the cases contained in the summary provided by the prosecution to the sentencing judge, each of the offenders, except those in Nguyen v The Queen and Hendricks, had pleaded guilty. Nevertheless, and taking into account the differing circumstances of the offending in those cases than that demonstrated in the present case, which did not call for the application of the Nguyen dicta, and our conclusions as to the role of the applicant in the cultivation of the cannabis in the present case, we consider that the sentence imposed on the applicant in the present case was wholly outside the range of sentencing options available to the sentencing judge.[27] Thus, grounds 3 and 4 are made out.

53 Having reached the conclusion that the sentence imposed by the trial judge should be set aside, it is necessary to re-sentence the applicant.

54 In the present case, the offending took place over a period of 27 days. The size of the cannabis crop, that was found at the premises on the day of the police raid, constituted 2.46 times the minimum quantity for a commercial quantity of cannabis. On the findings of the judge, and on the evidence, the applicant is to be sentenced as a person who took an active part in the cultivation of the drug during the time of the offending, by attending at the premises on at least seven occasions, for that purpose. As we have stated, it could be inferred, beyond reasonable doubt, that the applicant expected, or received, financial reward for his participation in the cultivation of the cannabis crop during that period.

55 The applicant had a number of previous convictions including for possession of cannabis and heroin. He had a long history of drug use. After leaving school at the age of 15 years, he had worked consistently in factory work, and more recently he had conducted his own home maintenance business. The judge found that he had good and broad based family support, and he assessed the applicant's prospects of rehabilitation as 'fair to good'. The judge also took into account that there had been a delay of almost three years between the period of the offence and verdict, which was not attributable to the applicant. There had been no further offending by the applicant during that period.

56 In sentencing the applicant, it is important to bear in mind that the maximum prescribed sentence for the offence, for which he was convicted, was 25 years' imprisonment. The courts have emphasised that general deterrence has an important role to play in cases involving the cultivation or trafficking of drugs in a commercial quantity.

57 Taking those matters into account we consider that the appropriate sentence to be imposed on the applicant is a term of imprisonment of 3 years and 9 months, with a non-parole period of 2 years and 5 months.

58 Accordingly, the application for leave to appeal must be granted. The appeal is heard instanter, and allowed. The sentence imposed by the trial judge is set aside. In lieu of the sentence first imposed, the applicant is re-sentenced to a term of imprisonment of 3 years and 9 months, with a non-parole period of 2 years and 5 months.

[1] (2016) 311 FLR 289 (Redlich, Tate and Whelan JJA) ('Nguyen').

[4] Transcript of Proceedings, DPP v McClelland, (County Court of Victoria, 16 September 2016), 634.

[5] Nguyen (2016) 311 FLR 289, 316 [84]-[85].

[7] DPP v McClelland (Unreported, County Court of Victoria, 23 September 2016) ('Reasons').

[9] Nguyen (2016) 311 FLR 289, 296 [4], 333 [152] (Redlich JA), 333 [155] (Tate JA), 358-9 [245] (Whelan JA).

[12] Nguyen (2016) 311 FLR 289, 310 [63] (Redlich JA).

[14] Sentencing Advisory Council, 'Major Drug Offences: Current Sentencing Practices' (Report, Sentencing Advisory Council, March 2015).

[15] Nguyen (2016) 311 FLR 289, 315-6 [83]-[84].

[22] [2014] VSCA 185 ('Hendricks').

[25] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 535 [48]; Hudson v The Queen (2010) 30 VR 610, 616-8 [27]-[34] (Ashley, Redlich and Harper JJA); Hasan v The Queen [2010] VSCA 352; (2010) 31 VR 28, 38-41 [44]-[53] (Maxwell P, Redlich and Harper JJA).

[26] The Queen v Pham [2015] HCA 39; (2015) 325 ALR 400, 405-6 [26]-[28] (French CJ, Keane and Nettle JJ); The Queen v Kilic [2016] HCA 48; (2016) 339 ALR 229, 339-40 [22] (Bell, Gageler, Keane, Nettle and Gaudron JJ).

[27] Clarkson v The Queen (2011) 32 VR 361, 384 [89].

Poisons and Controlled Substances Act 1981

At a glance

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Before

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Judgment (83 paragraphs)

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Legislation Cited (1)

Cases Cited (7)