Muaremov v The Queen [2018] VSCA 298

EVIDENCE - Expert evidence - Evidence of mental functioning of applicant - Report from forensic psychologist - Non-compliance with Practice Note - Judge required revised report to be filed - Importance of compliance - Assistance to sentencing judges - Responsibility of practitioners and experts - Practice Note No 1 of 2017 - Sentencing Hearings: Expert Reports on Mental Functioning of Offenders.

1 This application raises, once again, the question of sentencing for the cultivation of marijuana for trafficking purposes. As so often, this case involved a sophisticated hydroponic operation, powered by stolen electricity.

2 Although the quantity of plants found amounted to a commercial quantity, the charge to which the applicant pleaded guilty was that of cultivation simpliciter. He was sentenced on the basis that the quantity cultivated was at the top end of the range of quantities for that offence. He was also sentenced for the theft of electricity as part of the cultivation operation, and for possession of firearms.

3 A sentence of two years' imprisonment was imposed on the cultivation charge. The maximum penalty is 15 years' imprisonment, signifying how seriously the community views this offence. The applicant now seeks leave to appeal against sentence, on the sole ground that the sentence is manifestly excessive.

4 In our opinion, leave to appeal must be refused. The sentence of two years on the cultivation charge was lenient, having regard to the maximum penalty and the objective gravity of the offending. The leniency of the sentence can be taken to reflect the fact that full weight was given to the matters relied on in mitigation.

5 One of the applicant's contentions is that the sentence of two years was 'out of step with current sentencing practices'. As the Crown points out, however, current sentencing is but one of the relevant sentencing considerations.[1] Moreover, this Court has previously drawn attention to the inadequacy of current sentencing for the offence of cultivating a commercial quantity of cannabis.[2] The sentence of two years imposed in this case - for a quantity at the top end of the quantity range for cultivation simpliciter - suggests that a similar question arises with respect to sentencing for this offence.

6 The present case is also notable for the care taken by the sentencing judge to ensure that the expert psychological report relied on by the defence complied with the 2017 Practice Note entitled 'Sentencing Hearings: Expert Reports on Mental Functioning of Offenders'.[3] The report, as initially filed, did not comply with the Practice Note, and the judge quite properly insisted that it be redone.

7 As the Practice Note makes clear, the purpose of an expert report of this kind is 'to assist the sentencing judge to understand the mental functioning of the [offender] at relevant times before, during and/or after the offending'. Hence the stated purposes of the Practice Note are:

1. to enhance the quality and reliability of expert evidence relied on in sentencing hearings in connection with questions of the mental functioning of persons who are to be sentenced.
2. to improve the utility of such evidence by ensuring that opinions expressed are within the scope of the expert's specialised knowledge, and are supported by clearly-identified facts and reasoning.

8 The applicant (now aged 61),[4] pleaded guilty to one charge of cultivating cannabis; two charges of theft; one charge of possess an unlicensed category C firearm; and one charge of storing a firearm or cartridge ammunition in an insecure manner. He also pleaded guilty to three summary offences connected with the possession of firearms and ammunition. He had no criminal history.

Cultivating a narcotic plant (Cannabis L)[5]

Store firearm or ammunition in an insecure manner[9]

Non-prohibited person possess registered category B longarm without a licence[10]

Non-prohibited person possess registered category A longarm without a licence[11]

Possess cartridge ammunition whilst not being the holder of a permit[12]

3 years and 9 months' imprisonment, with a non-parole period of 27 months

Forensic sample order, Compensation order, Disposal order, Forfeiture order

10 The circumstances of the offending were as follows. The applicant and his wife owned two properties in suburban Melbourne. On 19 January 2017, the police executed a search warrant under the Drugs, Poisons and Controlled Substances Act 1981. When handed the search warrant, the applicant confirmed he was growing cannabis in the premises. He agreed that there was an electrical bypass to sustain the cannabis plants. The applicant denied the presence of weapons or firearms in the house. In the course of a search, however, police located three firearms and ammunition.

11 The police then questioned the applicant about the second property. The applicant denied any current association with that property. The police attended the second property later that day and searched it pursuant to a second search warrant. They found a sophisticated hydroponic set up and cannabis plants. Electricity was stolen by means of bypass to drive the cultivation operation.

12 Charge 1 (cultivate cannabis) was a rolled-up charge to reflect the total sum of all cannabis plants found at both properties. In total, 93 plants were found, with a combined weight of 26.5 kilograms, constituting a commercial quantity. The applicant told police the operation had been established some eight months earlier and that he had previously harvested the cannabis twice. The prosecution did not allege commercial quantity, however, and the sentencing judge proceeded on the basis that the amount represented the upper end of quantities for cultivation simpliciter.

13 In order to service the cultivation operations, the applicant stole electricity at both properties (Charges 2 and 3 of theft). The electricity stolen from the first property was valued at $9,261.53 and from the second property at $12,686.96.

14 As noted earlier, at the time of executing the first search warrant, the police located a number of firearms and cartridge ammunition. These form the remainder of the charges. The items were concealed in the roof space above the master bedroom's bathroom, inside a cushion on the couch in the lounge room and behind the fridge.

15 The applicant's wife pleaded guilty to possessing cannabis at one of the properties, and was fined $1,000 without conviction. She was aware of the drugs in the house and lived there, though she did not participate in any active way.

16 In support of the manifest excess ground, counsel for the applicant relied on:

17 On the plea, defence counsel submitted that a community correction order ('CCO') was the appropriate sentence in all of the circumstances. Having taken instructions, the prosecutor informed the sentencing judge that a CCO was 'within range', either alone or in combination with a term of imprisonment. Although the judge expressed the tentative view that a community correction order was unlikely, she arranged to have the applicant assessed for his suitability. A report was subsequently provided, confirming that he was suitable.

18 Ultimately, the judge decided that, in view of the seriousness of the offending, a CCO was not an appropriate disposition. Her Honour said:

Notwithstanding your depression and anxiety disorder, which I take into account, I do not consider it be to at such a level as to render you an unsuitable vehicle for general deterrence. In my view, such a sentence would fail to recognise the gravity of the totality of your offending, and it would fail to give due, albeit reduced, weight to principles of general deterrence, denunciation and condemnation and protection of the community.

Nor do I consider that a combination of a term of imprisonment with a community correction order is open since in my judgment the appropriate total effective sentence of imprisonment that I must impose would take your case beyond that which can lawfully be combined with a community correction order.

In all the circumstances, I have no alternative but to impose terms of imprisonment.[13]

19 As to the gravity of the offending, her Honour said:

Drug crime is a serious matter of concern in our community. The maximum applicable penalty reflects Parliament's view that the cultivation of narcotic plants is a serious crime and that those involved, particularly in larger, sophisticated operations should receive a substantial term of imprisonment.

In your case you were the instigator and sole operator of the two crop farms and you alone stood to make significant reward from the endeavour. This was a commercial operation undertaken to pay substantial mortgages on two houses.

You were no mere 'crop sitter'.

The aggregate quantity over the two houses was at the upper end of the quantity of cultivation of a narcotic plant simpliciter.

Principles of general deterrence, denunciation and condemnation, and protection of the community are dominant sentencing factors.[14]

20 Her Honour found that the applicant was 'remorseful, to an extent', but she was 'far from satisfied' that his remorse was complete.[15] She noted the two reports of Mr Watson-Munro, forensic psychologist, which confirmed that the applicant had suffered depression for a number of years as a consequence of various injuries he had sustained. Counsel for the applicant disavowed any suggestion that there was any nexus between the applicant's condition and his offending, but submitted that:

(a) his depressive condition meant that a sentence of imprisonment would weigh more heavily upon him than it would on a person of normal health; and

(b) there was a serious risk that imprisonment would have a significant adverse effect on his mental health.[16]

21 As her Honour noted, there was no evidence that the applicant had taken any step to seek the help which the forensic psychologist considered was necessary. Her Honour said:

This failure to address your situation leaves me wondering whether you are in as much pain as you claim and whether you are committed to treatment for your depression and anxiety.[17]

I am unable to find that your prospects for rehabilitation are as rosy as your counsel would have me find, although I do find that your time on remand has made you appreciate the gravity of your offending. Clearly you do not want to go back there.[18]

23 There is no complaint of specific error. The only question for consideration is whether the sentence imposed falls outside the range reasonably open to the sentencing judge in the circumstances of the case. As this Court has said repeatedly, that is a stringent test, reflecting the clear policy of the criminal law that 'sentencing is for judges and magistrates at first instance'.[19]

24 In our opinion, the sentence imposed was well within the range reasonably available. Had it not been for the matters relied on in mitigation, a significantly higher sentence would have been called for.

25 As was suggested in the course of argument, it is to be expected that the sentences for an offence will be spread across the statistical range.[20] This being a quantity-based sentencing regime, the cultivation of a quantity at the high end of the range of quantities for this offence would be expected - other things being equal - to carry a commensurately higher sentence.

26 We referred earlier to the Practice Note on expert reports for sentencing hearings. When defence counsel sought to rely on the initial report of Mr Watson-Munro, her Honour pointed out that it did not comply with the Practice Note. When defence counsel frankly acknowledged that she was not aware of the Practice Note, the judge provided copies of it to both defence counsel and prosecutor. As we have said, a revised report was then prepared addressing the requirements of the Practice Note.

27 As noted earlier, the purpose of the Practice Note is to enhance the quality of expert reports of this kind and thus increase the assistance which they provide to sentencing judges. That purpose can only be achieved if those responsible for commissioning, preparing and presenting expert reports - solicitors, counsel and experts themselves - are fully aware of the contents of the Practice Note and take appropriate steps to ensure that its requirements are complied with.

[1] See DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 349 ALR 37, 51 [68].

[2] See Nam Son Nguyen v The Queen (2016) FLR 289; Kieawkaew v The Queen [2016] VSCA 269.

[3] County Court of Victoria, Practice Note No 1 of 2017 - Sentencing Hearings: Expert Reports on Mental Functioning of Offenders, 19 July 2017, 1.4.

[4] The applicant's date of birth is 13 February 1957.

[5] Drugs, Poisons and Controlled Substances Act 1981 s 72B.

[6] Crimes Act 1958 s 74.

[7] Ibid s 74.

[13] DPP v Muaremov (Unreported, County Court of Victoria, Morrish J, 23 March 2018) 105-6 [84]-[86] ('Reasons').

[14] Ibid 96-7 [36]-[40] (emphasis in original).

[16] Verdins v The Queen [2007] VSCA 102; (2007) 16 VR 269, 276 [32].

[19] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89].

[20] Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658, 674 [60].