R v Draper [2002] VSCA 63

10. Consequent upon these discoveries, the appellant was initially charged with a number of offences. Ultimately, however, on 6 April 2001, he appeared before the County Court at Melbourne and entered a plea of guilty to one count of the cultivation of a commercial quantity of a narcotic plant. This offence is punishable by the imposition of a maximum penalty of imprisonment for 25 years and a fine of $250,000. He also pleaded guilty to one count of theft, an offence punishable by a maximum sentence of 10 years' imprisonment.

13. After hearing a plea in mitigation of penalty, the sentencing judge imposed a term of imprisonment of three years on the cultivation count and a term of six months' imprisonment on the theft charge. He directed that these sentences were to be served cumulatively, thereby creating a total effective sentence of three years and six months, in respect of which a non-parole period of two years and six months was fixed.

16. 5 Having been granted leave to do so, the appellant appeals against the sentence imposed on the cultivation count and the total effective sentence, relying upon four grounds:

"1. The learned sentencing judge imposed a sentence which was manifestly excessive. 2. The learned sentencing judge erred in failing to find, as mitigating facts: (a) that there was no intention on the part of the appellant to sell the cannabis, and (b) that the appellant's intention in committing the offence was to stockpile the cannabis for his own use. 3. The learned sentencing judge erred in failing to make an order that part (as distinct from the whole) of the sentence upon the count of theft be served cumulatively with the sentence imposed on the count of cultivation. 4. The learned sentencing judge erred in failing to place sufficient weight upon the fact that the appellant was the sole carer of two dependent children."

20. I now turn to those grounds, and will address them in the following order.

24. Before this Court, it has been contended on behalf of the appellant that the sentencing judge erred in not finding on the balance of probabilities that the appellant intended that any cannabis produced as a consequence of his activities was to be used personally by him and that he did not propose to sell any of it, a finding, it was submitted, that would have mitigated the seriousness of his conduct. As his Honour correctly observed in his sentencing remarks, the offence of cultivation of a narcotic plant to which the appellant had pleaded guilty did not involve proof of the use to which any harvested material was to be put. However, as he also recognised, an obvious distinction can be drawn for sentencing purposes between the criminality involved in the cultivation of cannabis for personal use on the one hand and its cultivation for sale on the other. In this context, his Honour's attention was drawn to the appellant's long history of cannabis use, the absence of any history of drug trafficking, the apparently small numbers of plants involved in his three earlier appearances before a court for the cultivation of cannabis, and his repudiation, on oath, of any intention to sell the material.

27. It is, I consider, clear enough that the judge had regard to this submission and the evidence supporting it. But it is also apparent that he had serious reservations as to the extent to which reliance could be placed upon it. He was troubled in particular by the amount of cannabis the appellant had agreed in cross-examination he would be likely to harvest from the operation, which represented approximately a two-year supply at the rate of consumption asserted by him. It is hardly surprising that his Honour regarded the appellant's explanation as unconvincing. I consider that the claim that an elaborate set-up was installed at a cost of several thousand dollars for the purpose of producing a single crop of cannabis to supply the appellant for over two years, strains credibility to the limit. However, the rejection of that claim would provide an insubstantial base for drawing beyond reasonable doubt the inference that the appellant intended to sell his harvest. It is hardly surprising in that situation that the judge found himself unable to conclude beyond reasonable doubt, on the one hand, that the appellant had either sold or intended to sell any of the material, and on the other, unable to make a positive finding that the cannabis was to be consumed solely by him. Of course the sentencing judge was not required to accept the appellant's assertions concerning his intentions, and the absence of a finding beyond reasonable doubt that he intended to sell the material, which would have constituted an aggravating circumstance, did not equate to the presence of a mitigating circumstance that the cultivation was undertaken to produce material for personal use, exclusively or substantially. His Honour addressed this issue more than once in the course of the proceedings, stating at one point:

"I think the proper approach is that that [referring to a finding of cultivation for sale] would be an aggravating feature that would have to be proved beyond reasonable doubt, but it hasn't been."

In the face of the appellant's repudiation of any such intention, his Honour, conscious of the applicable standard of proof, was understandably unable to make the required finding. A little later he addressed the other side of the picture, saying:

"If there was convincing evidence that satisfied me on the balance of probabilities that it was not to be sold, then that would be a mitigating factor."

33. The judge was clearly mindful of the principles stated by this Court in R. v. Storey[1], to which I observe the prosecutor adverted in the course of discussion, and there is nothing to suggest that he may have applied them incorrectly. I am unable to detect any error in the approach of the sentencing judge to this aspect.

37. As I have already indicated, there is no complaint before this Court with respect to the sentence imposed for the count of theft, and none would be justified in my view. His Honour put the position as follows:

"The stealing of the electricity also is a serious matter. It is a crime of dishonesty, which is costly to the community generally as well as the actual electricity provider."

In support of this ground, the argument has been advanced that, whilst the theft of electricity constituted a separate offence, the commission and seriousness of which had to be reflected in the effective sentence imposed, it was nevertheless committed in conjunction with, and for the purpose of facilitating, the cultivation offence. Accordingly, it was submitted, the sentencing judge ought to have made an order for partial cumulation with respect to it.

42. A sentencing judge must, when dealing with related offences, address each separately and impose what the judge determines to be the appropriate sentence for its commission, according to law, having regard to all of the relevant principles and circumstances bearing upon the offence and the offender concerned. The overall criminality involved in the offender's conduct, and the relationship between the various offences, and the principle of totality, are then taken into account in the determination of the appropriateness or otherwise of the making of orders for cumulation, total or partial. I am confident that the very experienced judge in the present matter approached the task before him in this fashion. He had been requested to consider concurrency in relation to any sentence of imprisonment to be imposed for this offence, and it is apparent that he did so.

45. Although the offences in this case were committed concurrently and were related, the mere making of the order that the sentences be served wholly cumulatively is not per se error. In view of what follows it is unnecessary to deal with Mr. Tehan's contention that in the particular circumstances no such order should have been made. Accordingly, I say no more with regard to ground 3.

49. The appellant was, at the time of the commission of the offences, the sole carer of his two children. Undisputed evidence, which was accepted by the judge, portrayed him as a loving parent who was deeply concerned about their welfare and who recognised that through his actions he had placed them in a very precarious situation. It appears to have been accepted that the appellant was not only deeply remorseful about that consequence, but conscious of the necessity to conduct himself properly in the future. On more than one basis, counsel submitted in the course of the plea, the appellant's relationship with his children should be taken into account as a mitigatory circumstance.

52. There can be little doubt that his Honour was conscious of these considerations. I observe that he referred specifically in his sentencing remarks to the appellant's "devotion" to his children and his concern for their proper upbringing. He adverted to the "shame and suffering" which the appellant's actions had caused and were likely to cause to them. There is nothing in his Honour's comments which raised the possibility that he did not attribute significance to these factors in the determination of an appropriate sentence, and the ground of appeal before this Court does not assert otherwise. Whether or not they were sufficiently taken into account can be determined only indirectly by reference to the sentences imposed. The failure to attribute full weight to them may provide a possible explanation for the imposition of a sentence which can be seen to be manifestly excessive in all of the circumstances.

56. In support of this ground, reliance was placed upon a number of factual circumstances, none of which was the subject of any significant controversy. They can, with justice, be listed as follows:

(a) Whilst the offence concerned a commercial quantity, the judge was not satisfied that the appellant intended to sell the drug.

(b) Although the appellant had prior convictions for the same offence, the quantities involved on the earlier occasions were small, as indicated by the penalties imposed, and were consistent with his history of personal use of cannabis.

(c) The appellant was a very hard-working 37-year-old man, who had established and conducted a wholesale market garden business, and who had never previously been incarcerated.

(d) The appellant had pleaded guilty to the offences and had done so at the earliest opportunity.

(e) The judge found that he had genuine remorse. He said, and it appears to have been accepted, that he was ashamed of his conduct and had stopped smoking cannabis. The appellant had also assisted the police in the prosecution.

(f) The testimonials of Elizabeth Doove, Ralph Parkus, Geoff Dunn, Mr Warner and Rodney Doove indicated that the appellant was a helpful, stable individual, very close to his children, community spirited, and otherwise of good character.

(g) The report of the psychologist, Mr Bernard Healey, dated 22 April 2001, indicated that the appellant was an intelligent man prepared to undergo counselling.

(h) The appellant was likely to lose his business as a result of his incarceration.

(i) He was, as I have earlier indicated, the sole carer of two school-aged children, who he had been looking after for approximately five years, and to whose welfare and advancement he was deeply committed.

(j) There was nothing in the circumstances to suggest that the appellant would be likely to re-offend in this fashion, and therefore specific deterrence could not assume significance as a sentencing consideration. His prospect for successful rehabilitation appeared to be good.

62. Having regard to the appellant's criminal history, which included three appearances for the cultivation of cannabis, the seriousness of the offences in respect of which he was to be sentenced, the protracted character and deliberateness of his conduct which involved the expenditure of thousands of dollars, the presence of a deal of planning and organisation, which included the installation of an electrical bypass system, and his own, probably very conservative estimate of the anticipated harvest, the imposition of a substantial sentence of imprisonment was required.

65. However, it is equally apparent that there were a number of powerful mitigating factors of an exceptional character present in this case. As earlier mentioned, the brief description that I have given of them in this judgment does little justice to their force. Were it not for their presence, no justifiable complaint could be made against the sentences imposed. However, their effect in my view is to render the sentence imposed on count 1 manifestly excessive in the circumstances.

68. Accordingly, I would allow this appeal. As the sentencing discretion is now at large, I propose that the sentences imposed below be wholly set aside, and that in lieu the appellant be sentenced as follows: on count 1 to two years' imprisonment and on count 2 to six months' imprisonment. I would direct that three months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1. The total effective sentence would then be one of two years and three

months' imprisonment, and I would fix a non-parole period of one year and six months. As at 6 April 2001, there was pre-sentence detention of two days, and as at this day, 1 May, there is pre-sentence detention of 392 days. So much should be declared and recorded.

83. The orders of the Court are therefore as follows:

The sentences imposed in the County Court on 6 April 2001 are set aside and in lieu the appellant is sentenced as follows:

Order that three months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1. The total effective sentence is therefore of two years and three months' imprisonment, of which one year and six months is fixed as the non-parole period.

The Court declares that, as at this day, 392 days comprise the period to be reckoned as already served under the sentence and it is directed that the making of this declaration and its details be noted in the records of the Court.

[1] [1998] 1 V.R. 359.