R v Kingston [2002] VSCA 41

R v Kingston [2002] VSCA 41 - VSCA 2002 case summary — Zoe

[8]

The appellant was interviewed by police on 27 October 2000. Although he began by saying that his involvement in the hydroponic system was "just helping out", his answers to subsequent questions revealed both close knowledge of how the system worked and substantial participation by him in setting it up and in the daily tasks necessary to keep it operating, though he disclaimed knowledge of how the plants would be sold. He said that he had invested $10,000 of his own money in the venture as follows - $2,000 given to Malone to purchase hydroponic equipment, $7,000 used to purchase one of the generators (police inquiries in fact showed it to have been purchased by the appellant in July 2000 for $7,500 cash), $100 paid for a water tank and the balance spent on miscellaneous items. He said that cuttings had been taken from the eight larger plants and admitted that he had assisted in planting cuttings into pots, from which they were or were to be transferred to the larger shed. He said that Malone operated one of the generators for 12 hours each night. (The cost of diesel fuel for the generators was apparently about $70 per day.) Steps had been taken to quieten the generator and to prevent the emission of light from the shed. He expected that the plants would mature in the following January, when they would be about three feet in height. He confirmed that he and Malone had agreed on a plan to grow cannabis for sale and said that he wanted to get out of it his outlay of $10,000 plus a "bit of interest", which he put at ten per cent. He expected to obtain that by selling the plants, which Malone would organise. He said that he was not in financial difficulty, but that Malone needed money to get a house for herself. He estimated that the value of the plants at maturity was about $40,000 if sold to distributors. He had never used marijuana. He went into the operation knowing the consequences if he should be caught. In short, then, the appellant was co-operative with the police and made frank admissions, though one might query his estimate of the likely proceeds of sale of the crop and also, as the sentencing judge did in no uncertain terms during the plea, his statement that he only expected a ten per cent return on his investment.

[15]

The conclusion at which I have arrived on ground 1, being, as I understand it, agreed in by the other members of the Court, means that the sentencing discretion falls to be re-exercised by this Court and it is unnecessary to consider the other grounds of appeal. However, the submissions of Mr. Morrissey for the appellant in support of the ground that the sentence imposed in the County Court was manifestly excessive served, contingently, as a plea on re-sentencing as well. I therefore summarise them with appropriate adaptations. He made essentially two contentions. The first was that the cultivation here was a "lower end" commercial cultivation. That contention was supported by five submissions. First, the amount of cannabis was a "lower end" commercial amount. In developing this counsel submitted that the amount reached a commercial quantity only because of the number of plants and not the weight. There was no evidence of the total weight. The amount cultivated was a very important sentencing matter, reference being made to R. v. Clohesy[3], and so was the weight of the product. Secondly, there was no evidence of a large projected yield. The only admissible material suggested that $40,000 was the total yield expected, of which a small percentage was to go to the appellant, and most of the profit to accrue to his children. Thirdly, the set up was comparatively unsophisticated. Almost all the plants were propagated on the property. There was no theft of electricity and no elaborate concealment, and relatively rudimentary equipment was used. Fourthly, there was no evidence that the appellant belonged to a distribution network. The appellant merely expressed the view that the co-accused would arrange it. Finally, the motive for offending was not to make a "significant profit". The appellant's case was that he cultivated to benefit the children of his first marriage. There was no evidence to rebut this and it rested on a coherent factual background of assistance rendered by the appellant to his first family. In any event it was not open to find that any greater profit was to accrue to the appellant, even if the appellant's account were not accepted as a mitigating factor.

[19]

In coming to my conclusion as to the appropriate sentence, I have had particular regard to the following considerations. The maximum penalty fixed by Parliament for the offence shows that it is regarded very seriously. The legislation is predicated upon the proposition that cannabis is harmful and general deterrence is of special importance[4]. Since the appellant was not a user of cannabis or in financial difficulties the object of the cultivation was profit-making even if it be the case that most of the profit was intended for the benefit of Malone and the children. To have regard to the profit-making purpose does not, in my view, transgress the principle enunciated in The Queen v. De Simoni[5]. It merely facilitates characterisation of the offending conduct, the cultivation. It does of course aggravate that conduct, but it does not involve that the appellant is being sentenced for trafficking. It would be strange if the fact that cultivation was for personal use could be relied on in mitigation, but a profit-making purpose could not be relied on in aggravation. Even on the appellant's answers during his interview by police, the expected profit, from one cycle, on the investment of $10,000 in the hydroponic system, namely $30,000, is significant. On the material, there is no doubt but that the appellant was party with Malone to the whole venture. Moreover, he went into it with his eyes open as to the consequences in the event of being caught. The cultivation resulted from planning, was sustained by regular activity on the part of the appellant and was effective. Steps were taken to reduce audibility and visibility. Despite the caveat entered by Gaudron, Gummow and Hayne, JJ. in Wong v. The Queen[6] in relation to the offence of importation of heroin, it is true that, where the offence is cultivation, the quantity of the narcotic plant cultivated will ordinarily be very important in determining the seriousness of the offending[7]. Here, the number of plants cultivated comfortably exceeded the minimum for a commercial quantity, 100, though, as Mr. McArdle put it, the enterprise may be described as being at the lower level of the scale for commercial cultivation. As the cases show, the significance for sentencing purposes of a given crop is not always easy to evaluate. Here, I consider that the fact that many, if not most, of the plants were immature has little bearing on the assessment of the appellant's criminality. It may be that in an offence such as the present the weight of the ultimately useable parts of the plants has significance[8], but, contrary to the submission for the appellant, it appears from pp.22-23 of the transcript of the plea hearing that there was some evidence of this. As regards rehabilitation, the appellant's employment record and stable relationship offer some hope, though he has previously shown disregard for the law.

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Judgment (28 paragraphs)

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