R v Kingston [2002] VSCA 41

10. On 26 April 2001 in Melbourne his Honour sentenced the appellant to be imprisoned for a term of three years and directed that he serve a minimum of two years before becoming eligible for parole. On 21 May 2001 he sentenced Malone to be imprisoned for three years on the count of cultivation and six months on the count of theft. He directed that the latter sentence be concurrent with the former, so that her total effective sentence also was three years, but, solely because of his concern for the care of the youngest child of the appellant and Malone, who suffered from attention deficit hyperactive disorder, he directed that Malone should serve a period of 12 months before becoming eligible for parole.

13. The appellant appeals, by leave of a single Judge of Appeal, on the ground that the sentence was manifestly excessive and on the further grounds (added by

leave of the Registrar) that the judge erred in sentencing the appellant for the offence of trafficking; that the judge erred in failing to give any or any appropriate weight to matters relevant to rehabilitation; and that the judge erred in failing to impose a sentence that was at least partially suspended. The latter two grounds were substantially argued as particulars of the first.

17. Before considering those grounds I summarise briefly the facts of the offence and some facts relating to the appellant. In May 2000 the appellant and Malone, representing themselves to be a married couple, arranged to rent a ten acre property at Bullengarook. In June 2000 Malone went into possession with the three children of her former marriage. On 27 October 2000 police executed a search warrant at the property. Police found 167 cannabis plants at various stages of growth. Most were growing by means of a hydroponic system. In a shed 20 metres wide by 20 metres long there was a section ten metres by ten metres that contained eight cannabis plants approximately two metres in height. In the rest of the shed there were 94 plants of between 12 and 20 centimetres in height. In a small shed at the rear of the larger shed numerous pots, agreed before us as 65, each containing a cannabis seedling, were found. Water was being pumped from a nearby dam to the shed, where an isolation tank was kept. That tank was being used for putting chemicals into the water system to enhance growth. Two large generators were found, which were used, one only at any one time, as a source of power for the hydroponic equipment.

20. 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.

23. At the time of his interview the appellant was conducting a small business of his own as a motor mechanic. He was a licensed VicRoads inspector. He had previously been employed virtually continuously since leaving school in a number of jobs. He had for some eight years been living with another woman, by whom he had had one child in 1995 and whom he married shortly before the plea hearing. They owned their own house at the time of the plea hearing, though it was mortgaged. He had assisted in maintaining the children of his former marriage.

26. During the plea counsel for the appellant submitted that it was open to his Honour to send a message of general deterrence to the community by way of a wholly suspended sentence, given the appellant's lack of relevant prior convictions. Counsel questioned whether the hydroponic system was, as his Honour had suggested during argument, particularly sophisticated and contended that the quantity of narcotic plants was relatively small.

29. In the course of his sentencing remarks his Honour stated that the police had found in the larger shed "an elaborate and relatively sophisticated system for the hydroponic cultivation of marijuana". He noted that the appellant had admitted that the crop had been planted for the purpose of sale at a profit. There was some suggestion by the appellant that the profit was to be for the benefit of his children and that he was to get nothing save ten per cent upon his investment. "That", his Honour said, "I do not accept." His Honour was satisfied that the appellant's role was that of a "full participant in the scheme hatched" by him and his ex-wife "to grow and sell[1] marijuana" and that he embarked upon the venture fully aware of the consequences if he were caught. The only matters that his Honour could find to be taken into account in the appellant's favour were his early plea of guilty, the fact that he was forthcoming to the investigating police and that he had a good employment record. General deterrence must in the light of the maximum sentence prescribed loom large and in addition there was the need to deal appropriately with the appellant.

32. I come now to the grounds of appeal and take first the second ground, that the judge erred by sentencing the appellant for trafficking in a commercial quantity. His Honour commenced his sentencing remarks by stating that the appellant had pleaded guilty to "one count of trafficking in a commercial quantity of cannabis", and he introduced his reference to general deterrence towards the end of his remarks with his statement that "Parliament's view of the gravity of trafficking in a commercial quantity of cannabis is reflected by the maximum sentence prescribed." Undoubtedly his Honour's opening remark was erroneous. Undoubtedly also his statement about the maximum penalty for trafficking in a commercial quantity, whilst true, was irrelevant to his sentencing task. However, the return of prisoners signed by his Honour names the offence correctly. Moreover his Honour's description of the physical facts of the offence for which he was sentencing was a description of cultivation. In addition, though there was an argument about the effect of s.71(2), the same maximum penalty was, under s.71(1)(a) of the Drugs Act, applicable to trafficking in a commercial quantity as it was, under s.72(1)(ab), to cultivating a commercial quantity.

35. If no more appeared, it would be necessary to determine whether the last three facts mentioned showed that his Honour's statements were merely slips immaterial to the sentence he imposed. But more appears, for in his helpful report in response to the added grounds, his Honour, with reference to the ground that he erred in sentencing the appellant for trafficking, states, "[i]t seems that I may well have done so", and, after referring to the return of prisoners, says, "I entered in my notebook at the outset of the hearing that the appellant had pleaded guilty to `Traffick M'a (Commercial)'". The word contracted in that entry is "marijuana", that is, cannabis. The making of that entry at the outset of the hearing satisfies me that his Honour did in fact sentence the appellant for trafficking in a commercial quantity of cannabis, not cultivating such a quantity. One can be confident that, starting with that entry, throughout the hearing and when considering the sentence to be imposed his Honour would have had in mind trafficking as the offence to which that sentence was to be apt. His Honour's two references to trafficking in his sentencing remarks then fall into place as bearing that out.

38. Mr. McArdle, for the respondent, acknowledged in substance that there was error, though he did suggest that it was immaterial. I cannot accept that, for two reasons. First, even if in the particular circumstances the same facts constitute the offence of trafficking in the form of having in possession for sale[2] and the offence of cultivation and although the maximum penalties for the two offences are the same, nevertheless, as Callaway, J.A. pointed out during argument, the emphasis in the case of the former offence is on the purpose of the possession, whilst in the case of the latter offence it is on the cultivation. Thus, despite his description of the physical facts as mentioned above, his Honour would not have been concentrating on the aspect which was in truth material, cultivation, or the current sentencing practices relevant to it as required by s.5(2)(b) of the Sentencing Act 1991. Secondly, justice according to the law requires that an offender be sentenced for the offence of which he or she has been found guilty or has admitted guilt, not any other.

41. 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.

44. The second contention was that the appellant had good rehabilitation prospects. In support of that contention reliance was placed upon the fact that he has no relevant prior convictions and no outstanding criminal charges; his previous character apart from the dishonesty-related matters; the fact that he still had employment; the fact that he has a stable life, with a second wife and family to support; and the fact that he provided support to Malone and all three children of his marriage to her. These matters, it was submitted, combined with those which his Honour did notice, augured well for his rehabilitation and diminished to a significant degree the weight to be accorded to specific deterrence. Support was also sought to be drawn from the fact that the Crown had made no submission to the sentencing judge that an immediate custodial sentence was called for. More completely, however, the Crown expressly abstained from making any submission in relation to sentence.

47. As part of his plea Mr. Morrissey referred to two matters not before the County Court judge. First, the appellant's wife was having great difficulties in meeting re-payments on the mortgage over their jointly owned home. Secondly, their young child, now aged six, was suffering from behavioural and learning difficulties. She had them before the appellant was sentenced but, as I understand it, they had increased since. Mr. McArdle informed the court that he did not object to a psychological report and other material concerning the child being used if the court re-sentenced. After some discussion Mr. Morrissey, I think, accepted that the two matters mentioned were not "exceptional" so as to qualify for consideration in the sentencing synthesis. He did submit, however, that the first was relevant so far as it affected the appellant upon his release. That is true, though it is a minor consideration.

50. Mr. Morrissey in the circumstances conceded that a sentence of imprisonment was appropriate but submitted that all or almost all of what remained to be served should be suspended and he sought a lower head sentence, suggesting two years. Alternatively, if this Court was minded to provide for parole, he suggested a two year sentence with a non-parole period of 15 months.

53. 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.

56. In the light of all the foregoing, I have concluded that the appropriate sentence is one of imprisonment for three years. Further, I consider that some of this should be served immediately. I am not satisfied that it is desirable to suspend any part of that term of imprisonment. Rather, the appropriate disposition is to provide for parole. To facilitate the appellant's rehabilitation I would fix a non-parole period that is slightly shorter than usual, namely, 21 months.

59. For the foregoing reasons, I would allow the appeal and sentence the appellant as indicated, making an appropriate declaration as to pre-sentence

65. I agree for the reasons advanced by Batt, J.A. in his judgment.

[1] The words "and sell" were particularly complained of on behalf of the appellant, being said to make it clear that he was indeed being sentenced for trafficking. For the reason given in para.[17], I do not think that they do so, though they are apt to that offence as to cultivation.

[2] This is one of the variants in para.(c) of the definition of "traffick" in s.70(1) of the Drugs Act_._ Compare s.73(2) and R. v. Clarke and Johnstone [1986] VicRp 64; [1986] V.R. 643 at 659 and 660.

[3] [2000] VSCA 206 at para.15.

[5] [1981] HCA 31; (1981) 147 C.L.R. 383.

[6] [2001] HCA 64; (2001) 76 A.L.J.R. 79 at paras.67-69, 70 and 73.

[7] Clohesy at para.15; cf. R. v. Belbruno [2000] VSCA 201; (2000) 117 A.Crim.R. 150 (a trafficking case) at para.8.