R v Do [2004] VSCA 203

2. On 3 March 2003 police searched the residence of the applicant. In two bedrooms and an outbuilding the police found 62 cannabis plants being cultivated hydroponically. The windows of the rooms were covered, high intensity lights were located above the plants, a water irrigation system was installed and holes cut in the roof to enable the removal of fumes by way of a system of ducting, carbon filters and exhaust fans.

5. In the course of a record of interview the applicant admitted purchasing the equipment, although he also said that he had been unemployed for two years. He admitted that he set up the equipment, tended the crop and bypassed the electricity meter. He said that he was assisted in setting up the equipment by a man called Thanh, who had paid him $20,000 as an advance payment for the purchase of the entire crop.

8. On 15 August 2003 the applicant was arraigned and pleaded guilty to a presentment containing one count of trafficking in not less than a commercial quantity of a drug of dependence being cannabis and one count of stealing a quantity of electricity. A plea was conducted. The applicant was sentenced to be

imprisoned for a term of four years on the count of trafficking in a drug of dependence and to a term of one year on the count of theft, the sentences to be served concurrently, making a total effective sentence of four years' imprisonment. The sentencing judge ordered that the applicant serve a minimum of two years' imprisonment before becoming eligible for parole. The sentencing judge had earlier made a restraining order pursuant to s.18 of the Confiscation Act 1997 in respect of the house owned by the applicant and his wife in which the crop was cultivated. Applications by the applicant and his wife to exclude the house from automatic forfeiture have yet to be determined. The applicant's application is unlikely to succeed, for the property "was used ... in connection with ... unlawful activity"[1], and his wife's application is not bound to succeed.

12. The applicant seeks leave to appeal against his sentence on the following grounds:

"1. The sentence imposed by the learned sentencing judge is manifestly excessive in all the circumstances.

2. The learned judge erred in that he failed to pay any or sufficient regard to the following factors:

(a) the `green' weight of the leaves and heads of the 21 mature plants was estimated at 19.1 kilograms;

(b) the estimated `dry' weight of that material was about 4.8 kilograms; and

(c) it followed that the estimated dry weight of all 62 plants, had they reached maturity, plus the small amount of dried material found, would have been in the order of 15 kilograms, which in turn is substantially less than the commercial quantity of 25 kilograms.

(a) in `reject[ing] the submission that an offence of trafficking in cannabis should be treated more leniently than other dangerous or prescribed substances'; and

(b) in equating the seriousness of the offence of trafficking in cannabis with the seriousness of offences of trafficking in other dangerous or prescribed substances, such as heroin or amphetamines.

4. The learned judge erred in that he failed to pay any or sufficient regard to the fact that the theft of electricity spanned only about seven weeks and was valued at only about $2,500."

24. The applicant is 44 years old. He was born in North Vietnam. The applicant grew up in some poverty and joined the Army in 1978. During the course of the Vietnam War relatives and friends of the applicant were killed. In 1988 the applicant fled to Hong Kong where he was interned in a detention camp for more than two years. The applicant arrived in Australia in 1990. The applicant's wife and son followed him. Another son was born in Australia. The applicant's children are now aged 17 and 11 years. In 1992 the applicant obtained work sewing at home with his wife. He continued to perform this work until 1999 when a crippling back injury finally prevented him from carrying on this work or any other work. The applicant was accordingly under substantial financial strain and vulnerable to the approach by Thanh to grow a crop of cannabis. During the course of the plea a report by a psychologist who examined the appellant was tendered. The psychologist reported that the applicant's intelligence quotient was lower than 91% of the population and that he suffered from auditory hallucinations.

27. A statement by a forensic officer was put before the sentencing judge. The forensic officer described the plants, set out the weight of the plants excluding their roots, which amounted to 19.1 kilograms, and stated his opinion that the air-dried or usable weight of the plants was 4.8 kilograms. In opening the Crown case, the prosecutor said that the expert's report was academic because the Crown case was that the applicant had sold the standing crop. Counsel for the applicant, however, citing authority, submitted that the usable weight was a factor to be taken into account in sentencing the applicant. The weight of 4.8 kilograms was relatively low. The response of the sentencing judge showed that he understood the submission and appeared to accept it. In reply the prosecutor said that the dried usable weight had "simply no application in this case".

30. Counsel for the applicant submitted that the fact that his Honour in his sentencing remarks referred only to the green weight of 19.1 kilograms meant that he accepted the prosecutor's submission and disregarded the dried weight. I do not agree. The green weight was what made the crop a commercial quantity. His Honour was concerned in the first place with the plants which were in the possession of the applicant, which amounted to a commercial quantity and thus brought the applicant within the ambit of the count with which he was charged. I do not think that his Honour is to be taken to have forgotten or dismissed as irrelevant the dried weight, which was significant in considering the harm to society likely to be wrought by the applicant's conduct. The judge realised that the green weight, which made his crop a commercial quantity, was greater than its ultimate usable weight.

33. Ground 3 was based upon the following passage in the sentencing remarks:

"Engaging in the cultivation or trafficking in a prescribed substance is, of course, a very serious offence. It is also a prevalent offence and often hard to detect. The use of these drugs is seriously damaging to our community. As a consequence, there are very real issues of general deterrence which must be addressed in any sentence for someone who engages in this conduct. I reject the submission that an offence of trafficking in cannabis should be treated more leniently than other dangerous or prescribed substances, and I refer to the two authorities drawn to my attention, R. v. Clohesy, which is a Court of Appeal decision reported in [2000] VSCA 206, and DPP v. Sullivan [2000] VSCA 99."

Counsel for the applicant submitted that it was incorrect to equate cannabis with other drugs such as heroin. While he acknowledged that cannabis could be dangerous, he contended that different drugs cause harm in different ways and in different degrees.

38. Section 71AA of the Drugs, Poisons and Controlled Substances Act 1981 creates the offence of trafficking in a commercial quantity of a drug of dependence. The maximum sentence is imprisonment for a term of 25 years. The large number of drugs of dependence listed in Schedule 11 to the Act includes cannabis, various types of amphetamine, cocaine and heroin.[2] The quantity constituting a commercial quantity of each drug varies from 25 kilograms of cannabis to 150 milligrams of LSD. The commercial quantity of heroin is 750 grams. Possession and use of a small quantity of cannabis attracts a lesser maximum penalty than possession and use of other drugs of dependence. Parliament appears to regard cannabis as a relatively less potent drug if it is kept or used in small quantities.

41. A number of courts have sought to draw distinctions between different drugs of dependence for the purpose of sentencing. In R. v. Ryan, Salinas and Lizza[3] Southwell, J. expressed the view that trafficking in cocaine did not represent as great a threat to society and its victims as did the heroin trade. In R. v. Stavropoulos and Zamouzaris[4], McGarvie, J., with whom Murphy and Brooking, JJ. agreed, said:

"The sentences of the courts under the Drugs, Poisons and Controlled Substances Act show that offences committed with respect to drugs such as heroin have been treated for sentencing purposes as inherently more heinous and serious than offences involving cannabis."[5]

In R. v. Bimahendali[6] Wood, C.J. at C.L. referred to the New South Wales Court of Criminal Appeal's consistent treatment of ecstasy as a mid-range drug and to authority for treating amphetamine as a mid-range drug, and said:

"However, I am quite unpersuaded that it is appropriate, let alone helpful, to attempt any greater gradation of seriousness between drugs falling into the broad categories of soft drugs (e.g. cannabis), middle range drugs (amphetamines in their various forms) and high range drugs (heroin and cocaine)."[7]

47. More recently, faced with an increasingly complex and rapidly changing drug industry, the courts have treated trafficking in commercial quantities of different drugs of dependence as equally serious, relying upon the common maximum penalty. In R. v. Casey[8], Winneke, P., with whom Phillips, J.A. and O'Bryan, A.J.A. agreed, said that it was:

"non-productive in sentencing offenders to speak of graduations of seriousness depending upon the substance involved. Courts should always take their cue from the legislature and the penalties prescribed by statute rather than import into the sentencing discretion individual views as to the perniciousness of the substance."[9]

In Pereira v. The Queen[10] Mason, C.J., Deane and McHugh, JJ., refusing special leave to appeal, said that a Court of Criminal Appeal was not shown to have erred in regarding drug offences involving cocaine as no less serious than those involving heroin. They noted what was said by the Court of Criminal Appeal in the Supreme Court of Victoria in R. v. Thomas[11]:

"The offences of trafficking in the drugs of dependence of heroin and cocaine are very serious offences and both deserve severe punishment. It is not appropriate for this Court in the absence of expert testimony to seek to categorise such offences further."

53. Accordingly, I think that, in the absence of expert testimony as to the addictive qualities and the psychological and social effects of the various drugs of dependence, the trial judge did not err in failing to treat trafficking in a commercial quantity of cannabis more leniently than trafficking in commercial quantities of other drugs of dependence.

A sentence of one year's imprisonment for a theft of electricity valued at $2,500 is indeed a stern sentence to be imposed upon a first offender notwithstanding the absence of cumulation. Although the offence was coloured by the surrounding circumstances, particularly the circumstance that by stealing electricity the applicant avoided drawing attention to his illegal activity of cultivating marijuana, I regard the sentence as being outside the range of sentences available to the sentencing judge. Counsel for the respondent considered that the sentence was twice the term normally imposed for like offences.

57. The erroneous sentence imposed upon the applicant for the count of theft vitiates the entire sentence. In re-sentencing the applicant I have had regard to the likely forfeiture of his interest in his house pursuant to the provisions of s.35 of the Confiscation Act 1997, his plea of guilty, his lack of any prior convictions and his vulnerability, both mental and financial, which appear to have led him into the commission of the offences. I would re-sentence the applicant to a term of three years on the count of trafficking and to a term of six months on the count of theft. I would cumulate three months of the sentence imposed in respect of the count of theft on the sentence imposed in respect of the count of trafficking, creating a total effective sentence of three years and three months. I would fix a term of 18 months' imprisonment before the applicant is to be eligible for parole.

62. I agree that this application should be granted and the applicant re-sentenced as proposed by Buchanan, J.A. I do so for the reasons advanced by him.

[1] See s.22(a)(ii) of the Act.

[2] Until 1983 the Act fixed a lesser maximum punishment for trafficking in cannabis and hallucinogenic drugs than for other drugs of dependence.

[4] (1990) 50 A.Crim.R. 315.

[6] [1999] N.S.W.C.C.A. 409.

[7] Above at [16]. See also R. v. Vivian (1979) 23 S.A.S.R. 45 at 50 per White, J.

[8] [2002] VSCA 117.

[9] Above at [27]. See also R. v. Carey [1998] 4 V.R. 13 at 18 per Winneke, P.; R. v. Kevenaar [2004] N.S.W.C.C.A. 210 at [112] per Hulme, J.; R. v. Amran Efendi [2001] N.S.W.C.C.A. 391 at [14]- [15] per Heydon, J.A.

[10] (1992) 66 A.L.J.R. 791.