R v Demaria [2008] VSCA 105

Court of Appeal (Vic)|2008-06-16|Before: VINCENT, REDLICH and KELLAM JJA

Criminal law - Sentencing - Drug Trafficking in a large commercial quantity - Manifest excess - Early plea of guilty - Re-sentenced to nine years' imprisonment with a non-parole period of six years.

1 I agree in the disposition of this matter proposed by Kellam JA and I do so for the reasons advanced by him in his judgment.

3 On 14 August 2006 the appellant pleaded guilty in the County Court at Mildura to one count of trafficking a drug of dependence, namely cannabis, in a large commercial quantity (Count 1), and to one count of possession of a drug of dependence, namely amphetamine (Count 2). The maximum penalty for trafficking a drug of dependence in a large commercial quantity is life imprisonment. Part 2 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 defines a large commercial quantity of cannabis as being 250 kilograms or in the alternative, 1,000 plants. The maximum penalty for possession of a drug of dependence in circumstances where the Court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking in that drug of dependence, is one year's imprisonment. On 11 September 2006 the appellant was sentenced on Count 1 to a term of imprisonment of 11 years. He was sentenced to three months' imprisonment on Count 2. The total effective sentence imposed was 11 years' imprisonment. A period of eight years was directed to be served before the appellant became eligible for parole.

4 The appellant appeals on two grounds, the first being that the sentence imposed was manifestly excessive, the second being that the sentencing judge failed to give sufficient weight to the appellant's pleas of guilty and to his prospects of rehabilitation.

5 It is necessary to set out some of the background of the offending and of the

6 In December 2005 the appellant was a 55 year old man who lived alone on a 80 hectare vineyard in Mildura. The property where he lived comprised a residence, a cool room and a packing shed complex. He cultivated grape vines upon the property and, in addition, conducted a fresh fruit packing business there. On 22 December 2005, police executed a search warrant upon the appellant's property and arrested him. In his residence they found approximately seven grams of amphetamine. That circumstance forms the factual basis of count 2, the count of possession of a drug of dependence.

7 During a search of the packing sheds and the surrounding area three separate hydroponic systems were found by police, hidden behind elaborate false walls. Each such hydroponic system contained cannabis plants in various stages of maturity and in a state of cultivation. A total of 65 cannabis plants were located and seized. Two garbage bags containing in total 24 separate plastic bags each containing one pound of cannabis were found. The total weight of cannabis found in these bags was 10.47 kilograms.

8 A search of the vineyard revealed a total of 3,180 cannabis plants in various stages of maturity, planted in 'jiffy pots' amongst the grapevines. They were tethered by custom-made wire hooks and watered by an extensive and elaborate system. The total fresh weight of these plants was 299.58 kilograms. In addition, 10.47 kilograms of harvested cannabis in various stages of drying were located in the vineyard.

9 The appellant was interviewed on the date of his arrest and made full admissions.

10 The appellant has two prior convictions, the first a traffic offence of no relevance and the second a conviction for trafficking in a drug of addiction which was imposed at the County Court at Mildura on 4 June 1979. He was sentenced to a term of imprisonment of five years with a minimum non-parole period of three years, which sentence was reduced upon appeal to a sentence of imprisonment of four years with a minimum non-parole period of two years.

11 The appellant was born in Italy in March 1950. He came to Australia at the age of two years. His family settled in the Swan Hill district. His father was a hard working man who adhered to traditional Italian values. Both parents were deceased at the time of the appellant's sentence. The appellant was educated in Swan Hill until age 12 when, as the oldest son, he was obliged to commence work on the family farm. He remained working on the family market garden farm until age 21 at which stage he married and purchased a property in Mildura where he conducted a grape growing business.

12 The sentencing judge was informed that the appellant had suffered serious financial difficulties in approximately 1978 or 1979 and that he had commenced growing cannabis in an endeavour to solve his financial difficulties. This enterprise was discovered and he was arrested and, as stated above, sentenced finally on appeal to four years' imprisonment, with a non-parole period of two years. After release from prison the appellant returned to Mildura and recommenced growing grapes. In addition to his grape growing business he commenced a new business making containers and boxes and by all reports conducted a successful business.

13 In 1998 the appellant and his wife separated and a bitter property dispute ensued involving protracted court proceedings. The property in which he had conducted his business was sold in consequence of those proceedings. The appellant re-purchased the property and borrowed substantial monies in order to do so and to rebuild cool rooms and packing sheds which had been removed from the property previously. Evidence was led on the plea before the sentencing judge from Mr Donald Seward, a rural financial counsellor, who commenced to provide assistance to the appellant in approximately December 2003. At that time Mr Seward had a discussion with the appellant about providing support from the Farm Help program. However the appellant was bankrupt at the time and was unable to obtain such support. According to Mr Seward the table grape industry in which the appellant had engaged was a thriving industry in the late 1990s and early 2000 but deteriorated significantly in 2003. The Australian market of table grapes to China was closed, resulting in a significant glut in the Australian market. Mr Seward gave evidence that during 2003 the appellant was under significant pressure in relation to a debt of $61,000 owed to the Australian Tax Office. In essence, Mr Seward's evidence confirmed the submission made before his Honour on the plea that the appellant was under extreme financial pressure at the time of the commission of the offences.

14 Tendered before the sentencing judge was a report from psychologist Mr Ian Joblin who concluded that at the time that the appellant had made the decision to plant his cannabis crop he was in a 'desperate psychological state'. That said, however, Mr Joblin did not consider that the appellant suffered from any definitive psychological abnormality. Rather, the decision to engage in cannabis trafficking was made by the appellant in a state of considerable desperation at a time when he was in a vulnerable state. There was evidence before his Honour that the appellant had consulted with a personal support program between 29 March 2004 and 27 March 2006. The appellant had been referred to that program in March 2004 through Centrelink for support arising from issues of depression, family relationship breakdown and self-esteem.

15 Through his counsel the appellant submits that by his full and frank confession to police on the date of his arrest he had facilitated the course of justice entitling him to an appropriate discount on the sentence which would otherwise have been imposed. It is submitted that the sentencing judge imposed sentence on the basis that the appellant would rehabilitate himself. Reliance was placed upon the statement of the sentencing judge in his sentencing remarks that 'You have been a hard working man for your life, emulating the hard working ethos of your father. I believe that ultimately you will return to the workforce and workplace and will rehabilitate yourself as you have done in the past.' It is submitted that in such circumstances reduced weight could be given to the issue of specific deterrence. Furthermore it is submitted that in the light of the evidence given by Mr Joblin and others as to the financial desperation in which the appellant found himself before the commission of the offences, the offence the subject of count 1 was committed in circumstances of reduced moral culpability. It is submitted that taking into account that the period of offending extended for less than three months and that although there was a significant number of plants, the offence cannot be said to be in the most serious category of the offence of trafficking in a large commercial quantity. In particular, reliance was placed on the fact that the quantity of dried cannabis which was involved was approximately 62.5 kilograms and of this 13.7 kilograms was in effect discarded off cuts of plant matter agreed by police to have been of 'low quality'.

16 Furthermore it is submitted that when regard is had to the only other cases to come before the Court of Appeal, the sentence imposed on count 1 can be seen to be manifestly excessive. Indeed it is submitted that this case involves the harshest sentence yet imposed for this offence. In this regard it should be observed that the offence of trafficking in a large commercial quantity came into operation on 1 January 2002.[1] The first case considered by the Court of Appeal would appear to be R v S[2]. In that case 'S' had been sentenced to a term of imprisonment of six years with a non-parole period of three years and nine months for trafficking in a large commercial quantity of cannabis. 'S' was the caretaker of 140 fully grown plants which yielded 1.5 tonnes in their green state and which, when dried, would have yielded at least 168.7 kilograms. A significant factor in the case of 'S' was the fact that a substantial reduction of his sentence was made by reason of his willingness to provide critical assistance to the prosecuting authorities. Furthermore, 'S' was not the owner of the crop, nor would he have benefited financially from its sale. His appeal on the grounds of manifest excess was dismissed. In R v Sibic and Sibic[3] two brothers were sentenced on a count of trafficking in a large commercial quantity of cannabis. One of them was sentenced to nine years' imprisonment with a non-parole period of five years and eight months and the other was sentenced to nine years' imprisonment with a non-parole period of six years. At the time of arrest there were 2,100 plants growing. The trafficking had been conducted over a period of two years and four months. In addition to the crop, bags and other containers containing more than 204 kilograms of cannabis were found in a property occupied by the appellants. In the case of one brother, who suffered from brain damage and bipolar disorder and who at the time of sentence was wheelchair bound by reason of spinal lesions, the court reduced his sentence to a term of imprisonment of eight years with a non-parole period of four years. The other brother was re-sentenced to a head sentence of nine years' imprisonment with a non-parole period of five years. In R v Duncan[4] the applicant had been convicted on one count of trafficking in a large commercial quantity of MDMA. On that count he was sentenced to a term of imprisonment of eight years with a fine of $3,500. By reason of conviction on other counts of trafficking and possession, his total effective sentence was eight years and ten months with a minimum term of four years and five months before being eligible for parole. An argument that the sentence imposed was manifestly excessive was rejected. In R v D'Aloia[5] the applicant, who operated at a higher level in the distribution chain than his co-offender Duncan, was sentenced to nine years' imprisonment on the count of trafficking in a large commercial quantity of MDMA. This sentence was described by Nettle JA, with whom Vincent JA and King AJA agreed as being 'well within the range'.[6] Although there are distinctly different factual differences between the cases referred to and the case now before us it does appear that the contention that the sentence imposed in the present case is higher than any other case dealt with previously by the Court of Appeal is correct.

17 On the other hand the respondent contends that each of the above cases involved factors that rendered them less serious than the case now before us. In particular it is contended that the fact that the motivation of the appellant was to pay commercial debts, that he was the sole proprietor of the drug business, and that it was a sophisticated commercial endeavour involving effort, industry and financial investment are relevant matters indeed in terms of culpability. In addition, the number of plants being cultivated by the appellant far exceeded the threshold of 1000 plants provided for in s 71 of the Drugs, Poisons and Controlled Substances Act 1981. Furthermore, it is submitted that it is of particular relevance that in the past the appellant had served a substantial prison term for trafficking in cannabis for precisely the same reason as he gave at the time of the plea with which we are concerned. It is submitted that this is a serious example of trafficking in a large commercial quantity and that the utility value in the plea of guilty was limited, taking into account the fact that the appellant was caught red handed and the fact that his trial would have been short. Furthermore the respondent submits that regard must be had to the maximum penalty of life imprisonment as reflecting the view of Parliament as to the seriousness of the offence in question.

18 Whether or not a sentence is manifestly excessive is often said as not admitting of much argument. The question raised is whether the sentence is outside the range of sentences available to his Honour in the exercise of sound discretionary judgement. Once the relevant circumstances are ascertained, the sentence appears plainly excessive or it does not. The difficult task before his Honour was to fix a sentence that reflected the gravity of the offence and of the offending and of the applicable sentencing principles, taking into account the personal and other mitigating factors of relevance. The offence committed by the appellant was a serious offence in all the circumstances. Plainly he had engaged in a substantial endeavour to set up a purely commercial venture. The issue of general deterrence loomed large. The issue of specific deterrence was not without relevance also, taking into account the admittedly very old prior conviction for similar offending arising out of financial difficulty. That said, however, the fact that the appellant co-operated fully with police, and pleaded guilty was a matter of considerable significance. His fulsome acceptance of responsibility at an early stage was demonstrative of remorse on his part. He was aged 56 years at the time of sentence. Having regard to other sentences imposed as referred to above and taking all of the circumstances into account, I conclude that the sentence imposed upon the appellant was manifestly excessive. I would re-sentence him on count 1 to nine years' imprisonment and on count 2 to three months' imprisonment. I would fix a non-parole period of six years' imprisonment before the appellant becomes eligible for parole.

[1] Section 71 of the Drugs, Poisons and Controlled Substances Act 1981 was amended by Act No 61 of 2001.

Poisons and Controlled Substances Act 1981

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