R v Dauti [2008] VSCA 196

Court of Appeal (Vic)|2008-10-03|Before: VINCENT and WEINBERG JJA and ROBSON AJA

Criminal law - Sentence - Cultivating a narcotic plant in a quantity not less than a commercial quantity - Theft - Cultivating a narcotic plant - Crown concession that sentencing judge had fallen into error - Manifest excess - Appeal allowed - Appellant re-sentenced.

Mr S Ward, Acting Solicitor for Public Prosecutions

2 On 18 February 2008, the sentencing judge imposed upon him for those offences, on count 1, 15 months' imprisonment, on count 2, four months' imprisonment, and on count 3, six months' imprisonment. His Honour directed that three months of the sentence imposed on count 2 and three months of that imposed on count 3 be served cumulatively upon each other and upon the sentence imposed on count 1. The total effective sentence was accordingly one year and nine months' imprisonment, in respect of which his Honour fixed a period of 15 months before which the appellant would be eligible for parole.

3 The appellant appealed against that disposition, relying upon grounds which, in essence, amounted to the assertion that inadequate regard was had to a number of factors operating in mitigation of penalty and resulted in the imposition of a sentence that was manifestly excessive in the circumstances.

4 There is no need to set out in any detail the circumstances surrounding the appellant's offending, as it has been conceded by the Crown in both their written and oral submissions that the sentencing judge had fallen into error. The sentences imposed on counts 2 and 3, it was accepted, were manifestly excessive in the circumstances and the orders for cumulation were 'insupportable'.

5 It is sufficient in order to provide context to our decision in this matter to recite some extracts from his Honour's remarks when addressing the appellant -

Your father owned two properties in Cox Street, St Albans, namely 15 and 17. On 27 September 2006 police entered the premises at 17 Cox Street and spoke to your father who confirmed his ownership of the premises and stated that you had rented the premises at 15 Cox Street to a friend of yours. Your father told police that he did not have a key to the address as the locks had been changed.

Police entered 15 Cox Street and in the rear bedroom they located 10 cannabis plants being grown hydroponically. The plants were 1.5 metres tall and between half a metre to a metre wide and were close to maturity in their development. Police continued to search the house and located in another bedroom a similar set-up to the first room together with 10 cannabis plants also about 1.5 metres tall and between half a metre to a metre wide. In total there were 20 plants in the house which were close to maturity.

Scott Azzarpadi, a forensic scientist, examined the plants and concluded that the leaves and flowering head of the plant constituted approximately 40.3 kilograms of cannabis L. An inspection of the electrical system powering the hydroponic system to each room was conducted and police identified an illegal bypass. This bypass supplied free electricity to the system for a period of three months with the amount of electricity being used totalling $3252 which has been repaid.

You were subsequently arrested and interviewed and you made full admissions to the offences of cultivating a commercial quantity of cannabis and theft of electricity. You identified your partner as one Serifovski who is in fact your brother-in-law. He was also arrested but declined to comment on questions put to him and indeed will stand his trial on 18 August 2008.

During the course of questioning by police officers in your record of interview you stated that it was your intention to sell the cannabis by the pound and you agreed with the assessment which was put to you, namely that you would receive some $2000 per plant which was divided equally with your partner. These offences carry a maximum term in respect of Count 1, 25 years' imprisonment; Count 2, 10 years' imprisonment and 3, 15 years' imprisonment. The seriousness of the offences warrant an immediate custodial disposition.

I turn to matters which are personal to you. Firstly, you have pleaded guilty to each offence and thereby avoided the necessity for a trial and you are entitled to a discount on your sentence by reason of that fact. Furthermore, with regard to Count 3, you volunteered the commission of that offence during the course of your record of interview. You indicated to police that you experimented by using two plants to determine whether the cultivation would be successful. You stated that you acted alone

I make the observation that but for your volunteering the commission of that offence it would not have been detected and I believe that that is a significant mitigating factor. You are 31 years of age and you have no prior convictions which indicate that but for this offending you were a person of good character. You informed the police the reason why you undertook this project was purely to make a profit out of the money which was to be made from the project and which was to alleviate debt which related to a house that was to be built on a block of land which was owned by yourself and your wife.

Furthermore, you said you were paying your parents money in respect of a mortgage over the Cox Street premises and you pointed out that both parents were on unemployment benefits. The Prosecutor took issue with this explanation for your offending and sought to point out the alleged inconsistencies in your explanation. Indeed it was suggested that no such assistance was required, implying that the process of cultivation and the moneys which flowed from it were for the purposes of greed. If this was so it would, of course, be an aggravating factor in the commission of the offences and would have to be proved beyond reasonable doubt.

I am not satisfied beyond reasonable doubt that greed was the motive. However, nor am I satisfied that on the balance of probabilities it was for the purpose of assisting your parents and in the payment of the block of land upon which your home was to be built was a factor.

However, what is very significant in this matter is that you have made two statements to the police dated 28 September 2006 and 8 December 2007 in which you have given an undertaking that you will give evidence at the trial of your brother-in-law. You gave evidence on oath at the plea indicating that you will give evidence in accordance with your statements to which I have referred. It must be noted that you will be giving evidence against your brother-in-law at that trial and in my view I regard that as a very significant mitigating aspect. I reminded you after you gave evidence that you would receive a significant discount by way of sentence, but if you were not to take that course, that is to give evidence at the trial, then proceedings can be taken to increase the sentence which I am about to impose.

I have had regard to a medical report from Mr Jeffrey Cummins dated 27 September 2007 and he thought that you had developed an adjustment disorder with mixed disturbance of emotions and conduct in response to financial pressure and related domestic pressures and that these had overwhelmed you. I also heard evidence from your employer who spoke highly of your work ethic and the fact that you worked in a position of trust for his company which employs some 270 people. His observations were that you were very remorseful of your offending.

Although there was no discussion concerning the matter in the proceeding before us, as we understand the position, there is no suggestion that the appellant has resiled from his undertaking with respect to the giving of evidence against his brother-in-law or may have failed to honour it fully. Given that circumstance and the other matters operating in the appellant's favour, the Crown concessions in this case can be seen to have been appropriately made. Against this background, it falls to this Court to re-sentence the appellant.

6 In the circumstances, the orders of the Court are:

The sentences imposed in the court below are set aside and in lieu thereof it is ordered that on count 1 the appellant be sentenced to a term of 15 months' imprisonment, on count 2 a term of two months' imprisonment and on count 3, 14 days' imprisonment.

It is directed that all of these sentences be served concurrently, thus creating a total effective sentence of 15 months, the service of five months of which is suspended. The operational period of that suspension will be a period of 12 months.

It is declared that the period of 300 days has been served under the sentence hereby imposed and it is directed that that declaration and its details be entered in the records of the Court.

The forfeiture orders made in the court below are confirmed.

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Judgment (25 paragraphs)

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