R v Garcia [2007] VSCA 194

2 The appellant was charged on two presentments. On the first presentment he pleaded guilty to one count of cultivating a narcotic plant, Cannabis L, in a commercial quantity between 1 October 2004 and 2 June 2005, and to one count of theft of electricity between the same dates. On the second presentment the appellant pleaded guilty to one count of burglary and to one count of theft committed by him on 9 June 2006.

3 After a plea was presented on his behalf, he was sentenced, on the first presentment, to a total effective sentence of two years and three months' imprisonment, and, on the second presentment, to a further term of imprisonment of 12 months. The judge directed that the sentence of imprisonment on the second presentment be served cumulatively on the sentence imposed on the first presentment, making a total effective sentence of three years and three months' imprisonment. Her Honour fixed a minimum non-parole period of two years and three months. A declaration was made as to 438 days pre sentence detention.

4 In this appeal, which is brought by leave, the appellant relies on one ground, namely, that the sentencing judge erred by cumulating the whole of the 12 month of the total effective sentence imposed on the second presentment upon the effective sentence imposed on the first presentment.

5 The offence of cultivating a narcotic plant was committed by the appellant at premises at Clayton. On about 1 October 2004, the appellant took possession of those premises and fitted them out for the purposes of growing and cultivating cannabis. When the police searched the premises on 2 June 2005, they found that five rooms of the house had been used to establish a sophisticated and expensive electrically powered hydroponic installation, using powerful lights, exhaust systems and fans to promote the growth of cannabis plants. They found that the doors of each room had been numbered, and inside each room was a calendar recording a 12 week growth cycle of the plants. The police seized cannabis which comprised 27 cannabis plants, 12 cannabis plant stumps and two plastic bags containing cannabis. The wet weight of the cannabis seeds amounted to 42.8 kilograms. Pursuant to the Drugs Poisons and Controlled Substances Act 1981, a commercial quantity of cannabis is 25 kilograms.

6 Upon examination of the premises at Clayton, it was found that the metering installation had been by-passed, so that unmetered power had been connected to the electrical components of the hydroponic system. On that basis, the appellant was charged with the theft of electricity which had been used for the purpose of cultivating the cannabis. The total wattage estimated as having been stolen was approximately 56,000 kilowatts and the value of that electricity amounted to $8,611.53.

7 When the police searched the premises at Clayton on 2 June, the appellant spoke to them, but, on a pretext, decamped. Four days later he presented himself to the Moorabbin police station and was arrested. He made a "no comment" record of interview. On his plea it was put that the appellant had undertaken the cultivation of the plants in order to pay off a large debt which he owed for drugs.

8 The appellant was remanded in custody. Subsequently, in December 2005 he was released on bail. While on bail, on 9 June 2006, he committed the offences which are the subject of the charges on the second presentment. Those offences were committed by the appellant in the company of Renardo Tinti. Tinti was also on bail and had been the subject of surveillance operations undertaken by the police.

9 On 9 June 2006, Tinti and the appellant were observed to be travelling in a vehicle in Chadstone. They drove to Glen Waverley. There they alighted from the vehicle, climbed a side fence into the backyard of a house, smashed a glass sliding door and entered the premises. They then ransacked the premises, and stole a large amount of property including money, jewellery, watches and international currency. It was estimated that the jewellery which was stolen was valued at $25,000. The appellant and Tinti then left the premises and drove to Tinti's premises in Armadale. They were arrested at those premises. A taped record of interview was conducted on the appellant, and he made no comment to the questions put to him.

10 The appellant is 39 years of age. He has a number of prior convictions. Relevantly, in May 1991, he was convicted of a number of offences including cultivating a narcotic plant, using Cannabis L and possession of a drug of dependence. In March 1994, he was further convicted of trafficking in a drug of dependence, heroin, being in possession of a drug of dependence, and being in possession of goods suspected of being stolen or unlawfully obtained. He was sentenced to nine months' imprisonment, that sentence being suspended for 12 months.

11 In March 1999, the appellant was convicted of being in possession of a drug of dependence (three charges), and using a drug of dependence, Ecstasy. He was sentenced to an aggregate term of imprisonment of three months each, to be served concurrently, all sentences being suspended for 24 months. Subsequently, he was brought up for breach of the suspended sentence and was sentenced to be released on an intensive corrections order. In February 2000, the appellant was convicted of being in possession of a drug of dependence, Ecstasy, and trafficking in a drug of dependence, Cannabis L. He was sentenced to a total term of imprisonment of ten months, and was also ordered to pay a fine of $2,500.

12 The salient features relating to the appellant's background, and which were presented on the plea, may be briefly summarised. The appellant left school at the age of 18 years, and commenced in the work force. Shortly afterwards his father was killed in a motor vehicle accident. That event had a shattering effect on his family. The appellant continued in employment but, in the next year, suffered a most severe crushing injury to his left hand while at work. He underwent six operations, but was left with a serious long-term impairment. At that time he had commenced using drugs as a physical and psychological palliative. Despite his disabilities, the appellant continued in gainful employment. From time to time he had a number of businesses in which he demonstrated considerable enterprise and initiative. The appellant has had three long term relationships with different women but, to his regret, has not fathered any children. He is currently in a relationship.

13 It was put to the judge, and accepted by her Honour, that much of the appellant's previous offending was related to his drug use which, in turn, was linked to events in which he suffered disappointments either in his businesses or in his personal relationships. Recently, the appellant had suffered a lower back injury while in custody.

14 On the plea, counsel for the appellant tendered a report of Dr Paul Grech, a clinical psychological who had interviewed the appellant twice at the Melbourne Assessment Prison. Dr Grech considered that the appellant is not inherently anti-social in his psychological functioning, but is prone to depression and to using substances to cope with difficult periods in his life. Dr Grech also considered that the appellant had come to accept that he needed professional help to enable him to overcome his reliance on illicit substances.

15 In her reasons for sentence, the judge noted the appellant's previous criminal history. Her Honour stated that that history inevitably called for a significant measure of specific deterrence. She noted that there were some signs of optimism in that the appellant now recognises, apparently for the first time, that he was unable to solve his drug problem on his own. Her Honour noted the sophistication and large scale of the operation involving the cultivation of cannabis by the appellant. She also noted that the burglary and thefts were serious examples of the offences which required strong measures of denunciation, punishment and general deterrence. The sentencing judge then sentenced the appellant, on the first presentment, on the count of cultivating cannabis, to a term of imprisonment of two years. On Count 2 of the first presentment, the count of theft of electricity, he was sentenced for a term of imprisonment of six months. Her Honour directed that three months of that sentence be cumulative upon the sentence on Count 1, making a total effective sentence of two years and three months on the first presentment. The judge sentenced the appellant, on the second presentment, to a term of 12 months' imprisonment on the count of burglary, and a term of 12 months' imprisonment on the count of theft, the latter term to be served concurrently with the sentence on the count of burglary. Her Honour directed that the twelve months' imprisonment imposed on the second presentment be served cumulatively upon the two years and three months imposed on the first presentment, thus making a total effective sentence of three years and three months' imprisonment.

16 As I have stated, this appeal is concerned with the order made by her Honour that the term of imprisonment imposed in respect of the second presentment be served wholly cumulatively upon the term of imprisonment imposed on the charges on the first presentment. Section 16(1) of the Sentencing Act 1991 provides that every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any other sentence imposed upon the offender, whether before or at the same time as that term. Section 16(1A)(e) provides that sub-section (1) does not apply to a term of imprisonment which is imposed on any person for an offence committed while released on bail in relation to another offence. Section 16(3C) provides that:**

"Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender whether before or at the same time as that term."

**17 It was submitted, on behalf of the appellant, that sub-s.(1A) did no more than deprive the appellant, in respect of the second presentment, of the presumption of concurrency to which he would otherwise have been entitled. Counsel submitted that, by structuring the sentence in a way which cumulated the whole of the term of imprisonment imposed on Count 2, the sentencing judge had manifestly fallen into error of a kind which vitiates her Honour's discretion and that, accordingly, the sentence below should be set aside, and, in lieu, a more lenient sentence be imposed on the appellant.

18 Contrary to that submission, s 16(1A)(e) and s 16(3C) do more than negate the presumption of concurrency in a case such as this. Those provisions create a prima facie rule that, unless the court otherwise directs, a term of imprisonment imposed for an offence committed while an offender is released on bail must be served cumulatively on any uncompleted sentence imposed on the offender. Nevertheless, it is accepted that those provisions do not displace other relevant sentencing principles and, in particular, the principle of totality.[1]

19 As acknowledged by counsel for the appellant in this case, the sentencing judge, in her reasons for sentence, expressly addressed the issue of cumulation as required by s 16(3C). The reasons for sentence do not, of themselves, disclose any misunderstanding of the applicable principles. Her Honour, in particular, referred to the principles of totality, and noted that she must ensure that the total sentence imposed is "just and appropriate for the whole of the offending" for which the appellant was before the court. Having considered that issue her Honour stated that she was of the view that it was appropriate to order the cumulation of the sentences imposed on the second presentment on the sentences imposed on the first presentment. Her Honour stated that she did so taking into account a number of factors, including the seriousness of the offences for which the appellant was on bail at the time, the gravity of the further offending, the appellant's criminal history, and the separate and significant harm caused by the further unrelated offending while the appellant was on bail. It has not been put that any of those factors were irrelevant, or were not deserving of appropriate weight by the sentencing judge, in the determination as to whether the sentences imposed on the second presentment would be wholly cumulated with those imposed on the first presentment. Indeed, in my view, each of the factors adverted to by the sentencing judge were plainly appropriate and were matters of some substance.

20 Ultimately, the decision whether to cumulate a sentence, either wholly or in part, is a decision which is made in the exercise of the sentencing discretion. In order that this court intervene, the appellant must demonstrate a relevant sentencing error made in the exercise of that discretion. The starting point for the exercise of the discretion is the prima facie rule that the sentences on the second presentment should be cumulative on the sentence on the first presentment. Here, the sentencing judge specifically turned her mind to the issue whether to cumulate, in whole or in part, the sentences imposed in respect of the second presentment, on the sentences imposed in respect of the first presentment. Her Honour assigned express reasons for her decision to cumulate in whole the sentences imposed by her on the second presentment.

21 As I have stated, each of the matters considered by her Honour were relevant and cogent. The offending, which was charged in the first presentment, was particularly serious. The cultivation of the cannabis involved a sophisticated operation. A large amount of cannabis was cultivated. The offending occurred over a period of eight months. The maximum sentence prescribed for the offence is 25 years' imprisonment. The theft of the electricity also occurred over the same period of eight months. The further offending in June 2006 was also serious. It was premeditated and planned, demonstrating a flagrant disregard by the appellant for the conditions of his bail. The offences involved the taking of property of substantial value. Each of those circumstances, which were referred to by the sentencing judge, were valid and appropriate. They provided a cogent basis for the decision by her Honour to cumulate wholly the sentences imposed in respect of the second presentment on the sentences imposed in respect of the first presentment. Collectively, the factors enumerated by the sentencing judge were of such weight that it could not be said that her Honour must have fallen into error in her decision to cumulate wholly the effective sentence imposed in respect of the second presentment. On the contrary, in my view, the concatenation of circumstances referred to by her Honour well justified the decision that the effective sentence imposed on the second presentment be wholly cumulated on the sentences imposed on the first presentment.

22 In this respect, I note that her Honour did direct that the individual sentences on the second presentment be served concurrently with each other. It is understandable, and indeed correct, that her Honour directed that those sentences be served concurrently with each other, given that they both necessarily arose from the same set of circumstances and in view of the principles of totality. However, what is relevant for the purposes of this appeal is that her Honour did direct herself to the issue, by according to the sentences on the second presentment that measure of concurrency. That consideration reinforces the conclusion which I have already reached, namely, that her Honour, in the exercise of her discretion, gave considered and appropriate thought to the questions of cumulation and concurrency when imposing sentence on the appellant.**

23 Further, I do not consider that the total cumulation of the sentence on the second presentment offended the principles of totality. In light of the gravity of offending in both the first and second presentments, and in light of the appellant's substantial criminal history, a total effective sentence of three years and three months' imprisonment, with a minimum non-parole period of two years and three months, does not, in my view, infringe against the principles of totality. The sentences, both individually, and as a whole, are well within the range of what might be considered appropriate to reflect adequately the totality of the appellant's offending, and to cater sufficiently for the requirements of general and specific deterrence and denunciation. The minimum non-parole period also falls well within the boundaries of what could be considered appropriate to facilitate the rehabilitation of the appellant into society. Accordingly, the principle of totality did not require, in this case, some cumulation of the sentences as contended on behalf of the appellant.

**24 For those reasons I consider that the appeal should be dismissed.

25 I agree and I wish only to add that the fact that the appellant succeeded in his application for leave to appeal in this case is, in my view, yet another demonstration of the need for this Court to reconsider its decision in Raad[2] at the first available opportunity.

27 The order of the Court is that the appeal against sentence is dismissed.

[1] R v. Mantini [1998] 3 VR 340, 346-8 (Callaway JA); R v. Aleksov [2003] VSCA 44, [11] - [16] (Callaway JA).

[2] R v Raad (2006) 15 VR 388; cf R v Idrizi, Unreported s 582 application, 16 May 2003 [13] (Buchanan JA).