R v Agnew & Dent [2000] VSCA 245

5. The lessor of the mine, one Say, being dissatisfied with the level of rental being paid, visited the site, evidently unannounced, at about half past seven on the morning of 19 November last year. Present were Becker and Symons. Agnew was not there because he was in hospital, having accidentally shot himself in the leg some five weeks earlier. Dent and Neeve had departed earlier and travelled to their native New Zealand.

8. Say's suspicions having been aroused, he notified the police of what he saw. An investigation followed and Agnew, Becker, Dent, Neeve and Symons were charged with offences under the Drugs, Poisons and Controlled Substances Act. Agnew was charged with and pleaded guilty to one count contrary to sub-s.(1)(b) of cultivating a narcotic plant, namely, cannabis L. The maximum penalty for that crime was 15 years' imprisonment. Becker, Dent, Neeve and Symons were each charged with and pleaded guilty to one count, contrary to s.72(1)(ab) of the same Act, of cultivating not less than a commercial quantity of the plant. The maximum penalty for their offences was 25 years' imprisonment.

11. As it turned out, Becker was arraigned on a presentment on his own and, following a plea for leniency, was sentenced on 14 July last to be imprisoned for 18 months, the sentence being wholly suspended for a period of three years.

14. Agnew, Dent, Neeve and Symons were arraigned in the County Court before a different judge on 9 October last. Dent and Neeve were jointly represented and Agnew and Symons were each represented separately. None of them had prior convictions except Dent, who admitted one which was of no relevance. Following pleas for leniency heard on 9 October and again on 16 October, they were sentenced on 23 October as follows. Agnew was sentenced to be imprisoned for three years and a non-parole period of two years was set. Dent was sentenced to be imprisoned for two years and a non-parole period of one year was set. Symons was sentenced to 18 months' imprisonment to be wholly suspended for a period of three years. In his case, although in the case of none of the others, there was a declaration of six days of pre-sentence detention. Neeve was sentenced to be imprisoned for 12 months and her sentence was wholly suspended for a period of two years.

17. Agnew now seeks leave to appeal against his sentence on the ground that it was manifestly excessive in that it did not take sufficient account of his lack of prior convictions, his plea of guilty, his medical condition, the sentences imposed on the other accused and the offence of which he was convicted, namely, one not concerning a commercial quantity.

20. Dent seeks leave to appeal on a number of grounds, which I need not at the moment enumerate.

23. I shall describe no more than is strictly necessary of the scene at Gaffneys Creek when the police invaded it on 19 November last year. Their search revealed two sheds. Inside each was located a large, sophisticated hydroponic operation with cannabis plants at various stages of maturity. Each plant was being grown under its own light and transformer and the organisation of the wiring and plumbing within the sheds was found to be extremely professional and well maintained. A further eight small seedlings were located in growing cubes outside the living quarters on the site. In all, 100 cannabis plants were found whose height varied from a few centimetres to about a metre. After police made initial enquiries at the scene they conveyed Symons and Becker to Mansfield police station and there they interviewed them. The police found at the scene at Gaffneys Creek a set of developed photographs which, among other things, depicted the applicants Agnew and Dent together and the co-offenders Symons, Neeve and Becker all posing at the site around a front-end loader which was filled with cannabis foliage. Also depicted in the photograph was the second growing shed, which was at that stage only partially completed. The site was subsequently further photographed and a botanist from the Victorian Forensic Science Centre attended and examined and identified the cannabis. Fingerprint analysis identified Dent and Neeve as the source of two latent fingerprints which were developed, in the case of Neeve's print, from a white light shroud and, in the case of Dent, from a white transformer, which were found by the police in one of the growing sheds, although there was no evidence as to which.

26. Becker, upon his apprehension, was forthcoming and co-operative and described to the police his function at the site. He said his role was feeding the plants and generally maintaining the installations and performing such functions as changing light globes when they required to be changed. Becker identified Ellis as the financier and Agnew as the man who had "shown him the ropes" some six or seven weeks before the time of the police visit on 19 November 1999. Becker told the police that the second growing shed had been erected three or four weeks before his arrest. The small plants in that shed had been planted a week earlier, he said. Becker identified Dent as having been involved in the construction of a second shed and otherwise as performing a function similar to that which he (Becker) performed. When asked what Dent's role was in the organisation of the mine site, he said, "I'm not sure, it's probably just the same as me." Becker said that he believed that Agnew had planted the more mature crop of plants. Becker said that the mine was not functioning and could not function as a mine without substantial development. He said that he expected to receive a "payout at the end" and speculated that that would be in the vicinity of $30,000 or $40,000 from a crop worth $100,000.

29. Symons, when interviewed, was selective in questions to which he provided an answer and admitted knowledge of the cannabis crops while denying his own involvement. He indicated that Ellis was the owner of the mine, although he had never seen him there, and spoke of Agnew as the caretaker. Symons said that he had been living at the site for 12 or 13 days and later conceded that he might have been inaccurate when he said he had not been involved in the cultivation. He declined to identify the roles of Dent and Neeve.

32. Agnew, Dent and Neeve, when interviewed by the police, chose to offer no comment to questions asked of them.

35. A valuation was made of the crop on a wholesale basis of about $251,300 and on a retail basis - street value - of about $886,000, that estimation being only for the 55 mature plants which were found growing in the principal shed.

38. Agnew was charged only with cultivation (and not with cultivation of a commercial quantity) because from a time early in October last year he had been in hospital and was not present at the site at a time when 100 plants were growing.

41. In passing sentence the learned judge sought assiduously to characterise the various roles of the participants in the cannabis operation, that is to say, the four he had to sentence, contrasting them with the role of Becker, who had already been sentenced as I have indicated. In doing that his Honour sought to assign a hierarchy and to impose sentences commensurately. This exercise he undertook notwithstanding that the prosecutor before him admitted the Crown's difficulty in being able to characterise very accurately the various roles, particularly on account of the so-called "no comment" interviews which had been given by Agnew, Neeve and Dent. As the High Court has recently noted[1], the utility of such an exercise is necessarily limited by the extent to which the material facts are known; and in this instance the material facts were in some respects sparse. On a number of occasions during the course of the hearing of the plea for leniency, the judge was concerned to ask prosecuting counsel what the Crown's attitude was to the characterisation of the various participants. Counsel was frank to say that the evidence which was available to enable a characterisation of Dent's role was meagre and that the Crown had always experienced difficulty in making that characterisation. Ultimately, however, counsel said that the judge could draw a conclusion, which would not be speculative, that Dent had taken over Agnew's role after Agnew had to be evacuated on account of his injury. Counsel did say (p.72) that, as to the timing of the completion of the shed, any conclusion "would probably be speculative to some extent", and added, "Your Honour may well come to the conclusion that he assisted in building that shed, but how far it had gone at that stage I think would be difficult to say."

44. Now, Dent gave evidence during the course of his plea. Unfortunately, however, the evidence was not recorded, and so we have no accurate understanding of it. The fact is, however, that the judge rejected it in so far as it sought to say that he (Dent) had a minimal role, if any, in the cultivation of the cannabis. Before he gave evidence his counsel had put his clients' instructions to the judge. In the case of Dent they were that he was not recruited to the site for any purpose related to the cultivation of the marijuana although, in the initial discussion that he had with Ellis about an offer of a job, Ellis did disclose to him that cannabis was being grown there. He was recruited principally as a man with some mining experience. He repeated that in substance, as one gathers, in his sworn evidence, and he also swore that he had not been paid anything as a result of anything he did about the cultivation, and that he expected to derive no benefit from the proceeds of sale of the crop when it was harvested. These pieces of evidence the learned judge expressly rejected.

47. The judge made three specific findings of fact concerning Dent which have been the subject of particular submissions in the course of these applications. First of all, the judge found as a fact that Dent was "involved", as he said, in the construction of the second shed. Secondly, the judge found that Dent was "involved", as he said, in the installation of the hydroponic equipment in the second shed. Thirdly, he found as a fact that Dent had completed the establishment of the hydroponic equipment in the second shed. All these findings of fact were made, of course, on the footing that the judge was satisfied of them beyond reasonable doubt.

50. In the case of Agnew, the judge found that he was at the mine site shortly after the time that Ellis took control of it. His Honour concluded that, because of his presence there and because he is an automotive electrical engineer, he played a significant part in the construction of the first shed and the hydroponic equipment which was established in it, and also at least did the early work relating to construction of the second shed.

53. Now, having referred to the relevant facts and the judge's relevant findings so far as I need with respect to the two applicants, I can deal with their applications.

56. It is convenient to deal with Dent's application first. I have noted that he relied on a number of grounds but, in the view that I take of the case, it is necessary to refer only to the third. It contended that the learned sentencing judge erred in his finding that Dent had a more significant role in the cultivation than the co-accused Becker and that such finding was not supported by the evidence. Mr Dann, who appeared today for the applicant Dent, referred to the three findings in respect of his client to which I have already adverted. The second of them, that Dent was involved in the installation of the hydroponic equipment in the second shed, was the subject of particular criticism in the course of Mr Dann's submissions. He asserted - and it seems to me correctly - that that finding formed no part of the Crown's summary of facts presented to the judge, that it had not been put to Dent by way of cross-examination in the course of his evidence and that it was a finding not urged upon the judge by the Crown during the course of the plea. Notwithstanding the conceded difficulty which the Crown Prosecutor had outlined to the judge about making comparisons between the roles of the various participants, the judge referred to the fingerprint of Dent's which was found on a transformer which formed part of the hydroponic equipment, and he referred also to Becker's record of interview, in which Becker had said that he and Dent had been involved in the building of the second shed. In referring to that part of Becker's interview, and particularly to answer 71 in which Becker said that both Dent and he had "done a little bit on it" (meaning the second shed), the judge did not refer to the statement, being part of answer 74, that the role of himself and Dent had been "probably" the same. The judge went on in his remarks to say:

"I am satisfied beyond reasonable doubt that you [Dent] came to the mine site in October 1999 by reason of Agnew having suffered his injury and thereafter were involved in the construction of the second shed and in the installation of the hydroponic equipment in it."

Finally, so far as is relevant, his Honour said of Dent:

"I am satisfied that you also played a more significant role in this overall undertaking than did Becker, Symons and Neeve. I am satisfied that you came to the site after Agnew was taken from it by reason of his injury and that you then completed the establishment of the hydroponic equipment in the second shed. Therefore, I am satisfied that you played a less significant role in the overall operation than Agnew."

62. Now, it appears that the learned judge, in undertaking the comparison that he did between the various participants and their roles, was satisfied that the applicant Dent should receive the sentence he did and that no part of it should be suspended. I have to say, having looked anxiously at the evidence which was before the judge, that it did not, in my opinion, justify a conclusion beyond reasonable doubt that Dent was "involved in the installation of the hydroponic equipment in the second shed". The fingerprint upon which the Crown invited the judge to set considerable store, as he did, was something that did not, as I think, carry the conclusion that the judge hung upon it; nor was the evidence, if I may so describe it, afforded by the record of interview of Becker, when taken in conjunction with the fingerprint and in conjunction with Dent's undoubted presence at the site, sufficient to justify the very damning conclusion that the judge drew. The fact is, as the Crown on several occasions in the course of the plea was frank enough to concede, there was very little evidence to go upon in comparing the roles of these various people.

65. It is for that reason that I consider the judge has been shown to have been guilty of sentencing error. That being so, I need not have regard to any of the other grounds which were helpfully argued by Mr Dann. Sentencing error having been demonstrated, this Court is required to re-sentence the applicant Dent. It was, so far as I can see, a case in which the judge was scarcely entitled to conclude that Dent's role at the site was much greater than that of Symons, although Dent having had some expertise there, the judge might have been able conveniently to make that differentiation as he did. The differentiation, however, between Dent on the one hand and Symons and Neeve on the other, whereby the second and third of those received a suspended sentence whereas Dent did not, was, in my opinion, not open.

68. In re-sentencing Dent I would propose that he be sentenced to the term of two years' imprisonment that the judge awarded him, but that that sentence, save for that part of it which has already been served (42 days) should be wholly suspended for a period of three years as it was in the case of Becker.

71. Mr Elston for the Crown fairly conceded in the course of his submissions this afternoon that, if the Court came to a conclusion such as I have indicated in the case of Dent, the Court ought to look anew at the sentence of Agnew. That concession was made notwithstanding that Agnew's counsel did not initially propose it. His counsel did not contend, as counsel for Dent did, that Agnew's

sentence should be suspended for any period, and I would not in re-sentencing him (as I think ought to be done) propose any suspension. I do, however, propose that his sentence should be set aside and a new sentence imposed of 27 months, of which 18 months should be served before he should become eligible for release on parole.

86. In the case of Dent the judgment of the Court will be in accordance with these minutes:

1. Application for leave to appeal against sentence granted. The appeal is treated as instituted and heard instanter and allowed.

2. The sentence below is set aside. In lieu the applicant is sentenced to be imprisoned for a period of two years to be suspended as to the whole of it, save for 42 days, for a period of three years.

91. The Court declares that the period of 42 days be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that such declaration was made and its details.

99. The effect of it is this. Although you have been sentenced to be imprisoned for the period of two years, that is suspended except for the period of 42 days which you have already served since you were sentenced on 23 October. Do you understand?

104. Do you understand further that the purpose of this suspension is to enable you to avoid the consequences of serving the sentence of two years if you behave yourself for the next three years?

109. Or, more accurately, three years from the date on which you were sentenced on 23 October. I am particularly required to tell you this: that if during the period of three years from the date of sentence you misbehave yourself and come up before the authorities, you will be brought back to court and in all probability will be required to serve the whole of that period of two years which you have not already served. Do you understand that?

114. The sentence of two years which the Court imposes is to date from 23 October, so that the period of two years begins to run from then, and the three years during which you have to be of good behaviour runs from that date. Do you follow that?

119. In the case of the applicant Agnew the judgment of the Court will be in accordance with these minutes:

The application for leave to appeal against sentence is granted. The appeal is treated as instituted and heard instanter and allowed.

1. The sentence imposed below is set aside. In lieu the applicant is sentenced to be imprisoned for a period of 27 months, and the Court fixes a period of 18 months to be served before he should become eligible for release on parole.

124. The Court declares that the period of 42 days be reckoned as already served under the sentence and orders that there be noted in the records of the Court the fact that such declaration was made and its details.

[1] R.v.Olbrich (1999) 199 C.L.R.270, at [14].