R v Friedemann [1998] VSCA 9

7. The applicant, who is now aged 60, on 11 February 1998 pleaded guilty in the County Court at Melbourne to a presentment containing one count of making a false or misleading statement to obtain a passport, five counts alleging the theft of electricity, seven counts of trafficking in cannabis L, and one count alleging importation of narcotic goods contrary to s.233 of the Customs Act 1901 (Cth). The maximum penalty for making a false or misleading statement to obtain a passport was two years, for the theft of electricity, ten years, for trafficking in cannabis L, 15 years, and for the importation of narcotic goods, two years' imprisonment, respectively.

10. The offences to which the applicant pleaded guilty were all committed between 30 April 1995 and 16 November 1996. The applicant was at the time an escaped prisoner, having escaped from prison in New South Wales on 10 November 1994. He had been serving a sentence of seven years' imprisonment with a non-parole period of four years, imposed on 19 November 1993 in the District Court at Sydney upon his conviction on three counts of taking part in the cultivation of cannabis. He also admitted two other prior convictions in New South Wales, arising from a court appearance on 25 July 1988.

13. The applicant's co-defendants were Kerry James Tuhi and Andrew Pierce. The applicant had recruited Tuhi from New South Wales to tend a cannabis crop for him in Riversdale Road, Box Hill South, in return for which Tuhi received weekly payments of $200 and was to receive a percentage of the cannabis. The applicant also recruited Andrew Pierce and arranged for him to live at and tend cannabis crops at various premises in Hawthorn East and Kew, and Pierce also assisted the applicant at other premises in Box Hill North, and Templestowe. Pierce received a percentage of the profits from the crops and cannabis as well as weekly payments from the applicant. Tuhi (whose role was described in evidence as that of a "gardener's assistant"), co-operated with the police and gave evidence against the applicant. On 16 June 1997, Tuhi was sentenced to be imprisoned for two years and six months, with a non-parole period fixed of 15 months. On the same date Pierce was sentenced to be imprisoned for two years and three months in respect of cultivation and trafficking, and three months in respect of possession. All sentences were to be served concurrently and a non-parole period of 12 months was fixed. Tuhi sought leave to appeal against sentence and on 30 October 1997 this Court allowed his appeal and re-sentenced Tuhi to be imprisoned for 18 months, of which nine months was suspended for two years.

16. On 26 February 1998, the applicant was sentenced by the same County Court judge who had also sentenced Tuhi and Pierce. His Honour sentenced the applicant on the count of making a false and misleading statement to obtain a passport to one month's imprisonment, which was to be concurrent with all other sentences and to commence on that day; on count 6, the importation of narcotic goods, to three months' imprisonment, which was to commence two months prior to the expiry of all State sentences; on each of three counts of trafficking in cannabis (counts 3, 5 and 10) to 18 months' imprisonment, six months of each sentence to be served cumulatively upon all other sentences; on each of the five counts of theft (counts 2, 4, 7, 9 and 11) to four months' imprisonment concurrent with all other sentences; on two other counts of trafficking in cannabis (counts 8 and 12) to 20 months' imprisonment, eight months of each sentence to be served cumulatively upon all other sentences; and on the final two counts of trafficking in cannabis (counts 13 and 14) to 12 months' imprisonment, five months of each sentence to be served cumulatively upon all other sentences. The learned judge said that this produced a total effective sentence of three years and nine months' imprisonment, and made no order fixing a non-parole period. The learned judge ordered the applicant to pay a pecuniary penalty of $174,769.67.

19. The applicant now seeks leave to appeal against sentence on the ground, first, that the sentence imposed is manifestly excessive, and secondly that the learned sentencing judge erred in failing to fix a non-parole period in respect of the State offences. A further ground, that the learned judge was in error in making a finding that the applicant was a principal beneficiary in the cultivation and trafficking of marijuana at premises in Box Hill South was not argued before this Court.

22. The facts giving rise to these offences were as follows. Apart from count 1, all the offences related to the applicant's setting up indoor hydroponic cannabis L plantations at several locations which were owned, leased and/or controlled by him. The applicant paid $80 a month to Kew Executives Suites, which ran a telephone answering service for him. Through this service the applicant received messages under various assumed names, using the service number as a reference when applying for leases on properties. He used the service from 4 December 1995 until his arrest in November 1996, and, by doing so, was able to use different identities and avoid detection.

25. On 16 November 1996, police found an Australian passport at 179 George Street, Doncaster, bearing the applicant's photograph and the name "Warren Henry Lambert", supposedly born on 2 July 1947. With the passport was a forged Australian Capital Territory birth certificate in this name. The applicant admitted having purchased the forged birth certificate for $350 and using it to obtaining the Australian passport. These facts gave rise to count 1.

28. On 15 December 1995 the applicant, using the name "Heinz Richter", took a lease on premises at 673 Burke Road, Hawthorn East, paying $380 per week rental. The applicant cultivated cannabis at these premises. Three-phase power was connected to the house and the meter was bypassed by Steven Robinson, an electrician. Other premises at Flat 10, 1A Lawes Street, Hawthorn were leased by the applicant between 20 November 1995 and 2 November 1996 in the name "Heinz Brauer". In early May 1996, a mature cannabis crop which had been grown at 673 Burke Road was taken to Lawes Street. The applicant and others stripped the cannabis plants, and the product was then bagged in half-pound lots using a vacuum seal machine. The majority of the bagged cannabis was then taken to Sydney, where it was distributed. The premises at Lawes Street were also used to grow clones from seeds in preparation for planting at other addresses. These facts gave rise to counts 2 and 3.

31. Premises in Princess Street, Kew were leased by the applicant, using the name "Heinz Von Schulau", from 15 February to 6 August 1996. Three-phase power was connected to the house, but the meter was again bypassed by Robinson, leading to the theft of an unknown quantity of electricity. The applicant cultivated cannabis at this address in five rooms in galvanized trays on stands. These facts gave rise to counts 4 and 5.

34. When the applicant was interviewed by police on 16 November 1996, he admitted that he grew cannabis plants from seeds which he had obtained from Holland, six to nine months prior to his arrest. The applicant had travelled to Frankfurt on 18 April 1996. From there he travelled to Holland where he purchased the seeds. To avoid detection the applicant mailed these seeds to himself in Australia and then returned to this country. The seeds were in four lots of cannabis varieties (known as "skunk"), which were called Northern Light, Big Bud, Hawaiian and Silver Pearl. These facts gave rise to count 6.

37. Counts 7 and 8 related to premises at 115 Riversdale Road, Box Hill South. When police searched these premises on 16 November 1996, they were then occupied by Tuhi. The house was owned by the applicant, who had arranged for Robinson to buy it for him. The applicant paid Robinson $1,200 per month rental, from which Robinson was to pay off a home loan on the premises. At 115 Riversdale Road, police found an extensive hydroponic cultivation set-up. Eight rooms in the house were used for the purpose of growing and cultivating cannabis. When searched, there were 170 cannabis plants approximately 70 centimetres to one metre in height, and 197 established cannabis seedlings approximately 10 centimetres in height, being cultivated. The cannabis plants weighed 53.92 kgs. and the seedlings weighed 182.4 grams. These plants was the second crop being cultivated at this address. The first crop of approximately 370 plants had been cultivated between July and September 1996 and had already been sold by the applicant. The applicant admitted that he would gain about an ounce-and-a-half of usable cannabis from each plant, and estimated a return of between $600 and $700 per plant. The first crop accordingly would have had a value of between $220,000 and $259,000. The main electrical switchboard had again been bypassed by Robinson and a complex power-board placed in the house to run the various electrical appliances and lighting. United Energy estimated that the applicant had stolen electricity to the value of $10,799 in this way.

40. Counts 9 and 10 related to premises at 124 Doncaster Road, North Balwyn, which were leased by the applicant in the name "Heinrich Schrum" on 26 June 1996. The house had been vacated before the police searched it on 19 November 1996. The applicant paid a monthly rental of $1,040 for the house, and cultivated an unknown quantity of cannabis there, using three rooms and a sun-room. Once more the electricity meter had been bypassed, again by Robinson.

43. Counts 11 and 12 related to premises at 4 Amaroo Court, Box Hill North, which were purchased by the applicant on 3 August 1996 for $145,000, using the name "Heinz Brauer". Robinson again bypassed the electricity meter, and the applicant at once set about cultivating cannabis with an elaborate and fully automated hydroponic plantation. United Energy estimated that the applicant stole electricity to the value of $6,183.25 by bypassing the meter. The set-up for cultivating cannabis was highly sophisticated and fully automated and required minimal human intervention, making it unnecessary for anyone to live at the premises. When the police searched these premises on 15 November 1996, 346 cannabis plants were being cultivated, each plant being approximately one metre in height and approaching full maturity. The plants were of the four different varieties previously mentioned and the total weight of cannabis was 152.69 kgs.

46. Count 13 related to a house at 179 George Street, Doncaster which was leased by the applicant on 28 August 1996, using the name "Hans von Kronen". He paid $380 per week rent and lived at this house until his arrest. On 16 November when police searched the premises, they found 12.93 kgs of cannabis, of which a large quantity had already been bagged in vacuum-sealed plastic bags. The majority of the cannabis was in half-pound lots and in suitcases. In the basement, there was a small room containing growing equipment, which the applicant used to sow and cultivate his cannabis seeds and clones. In a larger room in the basement, there was a set-up used as a drying room, and there was also a vacuum-sealing machine which had been used in connection with the preparation for sale of the cannabis. $25,710 in cash was found. On the premises there were 45 bags weighing 220 grams (or half-a-pound) and 35 bags weighing about 26 grams (or one ounce) of cannabis ready for sale and/or distribution. The applicant's false Australian passport was found at these premises.

49. Andrew Pierce told the police of his involvement in the cultivation of the cannabis crop at a house situated at 10 Fulview Court, Templestowe. There the police found a black suitcase containing 15 vacuum-sealed bags of cannabis, weighing 2.68 kgs and ready for sale. Another plastic bag containing cannabis was also found. In a rear room a hydroponic cultivation set-up was found, with 33 small cannabis plants, some 30 centimetres in height and weighed 119.8 grams. In a second bedroom, 43 established cannabis seedlings, weighing 102.3 grams, were being cultivated. These facts gave rise to count 14.

52. The total weight of the cannabis seized by police during raids on the various premises was approximately 244.8 kgs. The applicant admitted to the police that he would obtain about an ounce-and-a-half of usable cannabis from each plant. On his calculation of a return of $600 to $700 per plant, the total value of all the cannabis crop seized was between $961,500 and $1,380,720.

55. Before turning to the grounds of appeal, I should deal briefly with the calculation of the total effective sentence. In pronouncing sentence the learned judge did not identify the base sentence upon which the orders for cumulation were to operate. The orders for cumulation (including the additional month added for count 6, the second Commonwealth offence) total 45 months, which his Honour said was the total effective sentence. One possibility is that his Honour intended the base to be the period of four months' imprisonment, imposed on counts 2, 4, 7, 9 and 11, which his Honour said was "to be served concurrently with all other sentences" (including the sentence of one month's imprisonment imposed on count 1). On this view, however, the total effective sentence imposed was not three years and nine months, but four years and one month. Alternatively, his Honour may have intended that the four months imposed on counts 2, 4, 7, 9 and 11 should merely be concurrent with what had otherwise been ordered as cumulation, the base being the period of one month on count 1, which would produce the stated total effective sentence of 45 months, but which is a meaning by no means easy to extract from the words used by his Honour. In my view the learned judge was, with respect, in error in not identifying the base upon which his orders for cumulation were to operate. The failure to state which count provided the base has made the total effective sentence largely a matter of speculation.

58. The complaint of manifest excess was not strenuously argued by Mr. Tehan, Q.C., who appeared with Mr. Wraight in this Court on behalf of the applicant, and the ground can be readily rejected. Mr. Tehan relied on the applicant's age, his poor health, and his plea of guilty, as well as the very long period of pre-sentence detention which has occurred. On the other hand, the offences of trafficking in a drug of dependence were very serious indeed. Eight different houses were involved, a substantial capital outlay had been made to set up the premises for cannabis cultivation, others had been recruited to assist in the trafficking enterprise, and very substantial profits were to be made from the whole operation. The critical importance of general deterrence as a factor in sentencing for drug trafficking has been emphasized in many cases and it is unnecessary now to refer to them. But specific deterrence was also important in the present case because the applicant had been previously convicted of knowingly taking part in the cultivation of cannabis and had been sentenced to a substantial gaol term for doing so. The head sentences were, as Mr. Hillman who appeared for the Crown submitted, lenient in all the circumstances, and clearly took into account the principle of totality and the balance of the prison term which the applicant has yet to serve in New South Wales.

61. I turn then to the second ground. The learned judge said in his sentencing reasons -

"On 19 November 1993 at the District Court Sydney a minimum sentence of four years' imprisonment was fixed before you become eligible for parole. Following your escape from custody there remain 957 days of that minimum sentence to be served in New South Wales after the expiration of any sentence imposed today. It is also likely that you will be charged with escaping from lawful custody. Those are serious, relevant and recent convictions. The sentences that remain to be served in New South Wales must also be taken into account when assessing the totality of the sentences to be imposed today."

65. The learned judge then made reference to the applicant's personal circumstances, health problems and age, and stated the individual sentences imposed in relation to the 14 counts. His Honour continued -

"There is therefore imposed a total effective sentence of imprisonment of three years and nine months. I make no order for suspension or eligibility for release on parole because of the New South Wales sentence that I assume must be served immediately after these sentences have been served."

69. Although it is not clear what the learned judge meant in this last sentence, his Honour's reasoning appears to depend upon the assumption that the applicant should serve out the whole of his sentence in Victoria before being taken to New South Wales to serve out at least the remainder of his minimum term, to which a further term might well be added for escaping from legal custody. Mr. Tehan submitted that this reasoning (whatever its meaning) does not provide a sufficient justification for failing to fix a non-parole period. He submitted that the assumptions stated by the learned judge for not fixing a non-parole period were in themselves wrong, and in any event should not have been considered relevant under s.11(1) of the Sentencing Act 1991 . On the other hand Mr. Hillman submitted that the learned judge was entitled to consider the past history of the offender (including the fact that he had escaped from custody when 957 days of the New South Wales minimum sentence remained unserved) and that this made the fixing of a non-parole period inappropriate. He relied on R. v. Pollitt (1996) 20 A.Crim.R. 102.

72. In Pollitt, the applicant was convicted of armed robbery and sentenced to 10 years' imprisonment with a non-parole period of six years. The offence was committed by the applicant while an escapee from New South Wales, where a balance of almost 18 years remained to be served in respect of sentences imposed for crimes committed in that State. The trial judge had said that the fact that the applicant had a long New South Wales sentence yet to serve was not a matter which should give rise to any leniency. The Court of Criminal Appeal said the judge was in error, since the consideration was relevant to the determination of what ought to be treated as an appropriate sentence to be imposed in respect of the Victorian offence. In considering the re-sentencing of the applicant, Crockett and McGarvie, JJ. at 105 made short observations supporting the conclusion that an appropriate sentence should be one of four years' imprisonment in respect of which no minimum term should be set. The question whether a minimum term should have been fixed does not appear to have been argued by either party. In my view, Pollitt is an example of the application of the principle of totality and does not support the view that in the present case the learned judge was justified in refusing to fix a non-parole period.

75. The Sentencing Act 1991 provides by s.11 (1) that -

"(1) If a court sentences an offender to be imprisoned in respect of an offence for -

the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate."

82. The assumptions which the learned judge made in the second passage from his reasons quoted above, which form the basis for his decision not to fix a non-parole period are, I think, with respect, open to question on a number of bases. No order for suspension of the sentence could, of course, have been made because of the length of the sentence imposed, having regard to s.27(2)(a) of the Sentencing Act 1983 . But, more to the point, the assumption that the applicant would have to serve the whole of the period of his Victorian imprisonment (or even the non-parole period) before being moved to New South Wales is open to challenge on a variety of grounds. As to the former, if a non-parole period had been fixed by his Honour and if the applicant had remained in Victoria until that period terminated, the Parole Board might then have released him, although the likelihood is that he would then be arrested and taken immediately to New South Wales. Arrest and transfer upon parole being granted was precisely the course proposed in Bailey v. Her Majesty's Attorney-General for Victoria, unreported, Court of Appeal, 16 June 1998, where the Court was considering an application under s.16(1) of the Prisoners (Interstate Transfer) Act. Furthermore the assumption that the applicant must serve out any part of his Victorian sentence before being moved to New South Wales ignores the operation of the Prisoners (Interstate Transfer) Act 1983 , under which, once the prisoner had been sentenced by his Honour and commenced serving his period of imprisonment, it would have been open either to the Attorney-General for New South Wales, or the prisoner himself (s.12(1)), to apply to have the applicant transferred to New South Wales to enable him to serve out there the sentence imposed on him in Victoria. The applicant would then have the opportunity, under this legislation, to serve out the balance of his New South Wales sentence, together with any additional period imposed for escaping from legal custody, in New South Wales, concurrently with his Victorian sentence which would be transferred (together with the non-parole period) with him to New South Wales under the provisions of Part 4 of that Act (see in particular s.25). The assumptions upon which the learned judge acted also failed to accommodate the situation of a prisoner who might be sentenced to a short term of imprisonment in New South Wales (say two years) but who escaped immediately to Victoria and committed offences which, in accordance with the principle of totality, would ordinarily have justified a sentence of, say, twelve years with a non-parole period of eight years. The assumptions made by the learned judge would suggest either that the prisoner should be required to serve out his full twelve-year period before returning to New South Wales, or alternatively that the judge should depart from ordinary sentencing principles and simply fix an eight-year (or some compromise like a ten-year) period to be served before the prisoner's return to New South Wales. The assumptions made by the learned judge also do not provide for the possibility that, after sentence had been imposed in Victoria, the prisoner might successfully appeal against the sentence imposed on him in New South Wales, thus depriving the assumption on which the Victorian sentence was based of relevant content.

85. Mr. Tehan's principal submission was, in substance, that the scheme of s.11 contemplates that in the ordinary course a prisoner who is sentenced to be imprisoned for more than two years is entitled to have a non-parole period fixed by the court. In support of this submission we were referred to The Queen v. Shrestha [1991] HCA 26; (1991) 173 C.L.R. 48, where the High Court considered whether a foreign offender with no ties to Australia and facing the likelihood of an order for deportation immediately upon his release from prison, should be eligible for parole. The majority (Deane, Dawson and Toohey, JJ.) said, at 72, that even if a foreign prisoner will inevitably be deported upon being granted parole and be placed beyond supervision, that is no reason why he should be denied eligibility for parole and stated, at 69, that two advantages of eligibility for parole in such a situation are that, first, the prisoner is likely to be better behaved while in confinement and, secondly, that a prisoner who retains at least some degree of control over his future fortunes and who has a real incentive to reform is more likely to retain basic self-respect and to enjoy some reasonable prospects of eventual rehabilitation.

88. There was some debate as to the proper construction in s.11 of the Sentencing Act 1914 of the expression "the nature of the offence or the past history of the offender". Mr. Tehan's submission was that the fact that the prisoner would be required to return to New South Wales to serve out the balance of his sentence there had nothing to do with his past history - and accordingly that s.11 did not permit it to be taken into account as a ground for refusing to fix a non-parole period. Rather, the argument ran, this factor was merely one of the consequences of the past sentence imposed upon him, and, as such, irrelevant to a decision whether to refuse to fix a non-parole period. The question is a difficult one and I do not think it is necessary to decide for the purposes of this application whether the fact that this applicant will be required to return to New South Wales to serve out the balance of his sentence there, could ever be relevant to a determination to refuse to fix a non-parole period. The present case can, in my view, be decided on the basis that the assumptions upon which the learned judge acted were, for the reasons I have given, incorrect. It seems to me that the proper process of reasoning in this case would have been for his Honour to have determined upon a head sentence in accordance with principles of totality, bearing in mind the New South Wales sentence the balance of which was yet to be served by the applicant, and then to fix a non-parole period, leaving the question whether or when the prisoner was to be transferred to New South Wales to be dealt with by events as they unfolded.

91. In my view the learned judge was in error in failing to fix a non-parole period. I would grant the application on this ground. It is also necessary to ensure that the sentences imposed on the applicant are properly constructed so as to achieve a total effective sentence of 45 months' imprisonment.

94. I would leave standing each of the individual sentences imposed by the learned judge upon counts 1 to 14. I would make the base sentence the sentence imposed on count 8 (20 months). I would direct that the sentences imposed on counts 1, 2, 4, 7, 9 and 11 be served concurrently with the sentence imposed on count 8. I would direct that four months of each of the sentences imposed on counts 3, 5 and 10, six months of the sentence imposed on count 12, and three months of each of the sentences imposed on counts 13 and 14 be served cumulatively upon each other and upon the sentence imposed on count 8. I would direct that service of the sentence on count 6 commence two months prior to the expiration of the State sentences (which total 44 months). The total effective sentence is thus 45 months. I would fix a non-parole period of 30 months. In relation to counts 1 and 6, in accordance with s.17A(2) of the Crimes Act (Cth), I would declare that this Court has decided that no sentence other than imprisonment is appropriate having regard to the nature of the offences, the applicant's role in their commission, his antecedents and the need to deter him and others from committing offences of the same or a similar character.

100. I agree with Charles, J.A. that the proper process of reasoning in this case would have been for the learned sentencing judge to have imposed a head sentence in accordance with the principle of totality, bearing in mind the New South Wales sentence the balance of which was yet to be served by the applicant, and then to fix a non-parole period, leaving the questions whether and when the prisoner was to be transferred to New South Wales to be dealt with by events as they unfolded.

103. In my opinion that conclusion follows as a matter of principle. In practice the applicant is likely to be transferred to New South Wales under the Prisoners (Interstate Transfer) Act 1983 , in which case there is no reason to deny him eligibility for parole, but assume that that does not happen. Either the Parole Board will decide to release him, in which case he may be taken into custody and required to serve the balance of the New South Wales sentence, or the Board will decline to do so. In the latter case there will be no injustice, because it is the head sentence and not the non-parole period that is "the period which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender". If it is properly imposed, it is an "appropriate term of imprisonment". That is why it is not our practice to have regard to a non-parole period, as opposed to the unsuspended portion of a partly suspended sentence, in granting or refusing bail pending appeal. See Re Jackson [1997] 2 V.R. 1, especially at p.3, and Re Pennant [1997] 2 V.R. 85. I do not found my

conclusion on R. v. Shrestha [1991] HCA 26; (1991) 173 C.L.R. 48, because an authority on liability to deportation can be at best persuasive in relation to liability to serve an interstate sentence, but I am encouraged to believe that the conclusion is correct because it accords with the approach of the majority in that case, especially at pp.72 and 76.

107. I concur in the orders that Charles, J.A. proposes.