R v Mason [2006] VSCA 55

2 On 2 June 2001 members of the police force found 302 cannabis plants growing in a house at Donvale. The crop was growing hydroponically, using electricity diverted from the mains by a meter bypass. Three of the bedrooms and the garage were lined with plastic and fitted with large lights. The house was owned by the applicant's son. In addition to the plants the police also found 12 kilograms of cannabis and more than 420 grams of cannabis seed. The value of the cannabis sold in pound lots was between $518,000 and $666,9000; if sold in ounce lots its value was between $830,000 to $948,000; if sold in gram lots its value was $1.3 million. On 13 March 2002 members of the police force searched a dwelling house at Warrandyte owned by the applicant and discovered 83 cannabis plants, again being grown hydroponically with electricity taken from the mains by a meter bypass.

3 In 1991 the applicant was sentenced in the Northern Territory to a term of four years' imprisonment upon being convicted of producing cannabis. While in prison the applicant met Brett Schneider, who was also serving a sentence for a like offence. After they were released from prison the applicant persuaded Schneider to come to Melbourne and help to grow the cannabis crop at Donvale. Schneider stated that he was to live in the premises and cultivate the crop. The applicant provided Schneider with the cannabis plants and assisted him in their cultivation. The applicant paid all the expenses. The property at Warrandyte was occupied by a woman whom the applicant engaged to watch over the crop.

4 The sentencing judge described the applicant's role in the cultivation as that of the entrepreneur who organised the premises, recruited labour, paid for the growing and development costs and supervised the overall operation.

5 The applicant was arraigned in the County Court and pleaded not guilty to a presentment containing one count of trafficking in a commercial quantity of cannabis between 1 November 2000 and 17 May 2002, one count of cultivating a commercial quantity of cannabis between the same dates and two counts of theft of electricity. The trial did not proceed, for the applicant changed his plea to guilty. After a plea the applicant was sentenced to be imprisoned for a term of five years on the count of trafficking, to a term of three years on the count of cultivation and to a term of six months' imprisonment on each of the counts of theft. The sentencing judge directed that one year of the sentence in respect of the count of cultivation was to be served cumulatively on the sentence in respect of trafficking. He also directed that the sentences imposed in respect of the counts of theft were to be served concurrently with each other, but that those sentences were to be served cumulatively upon the sentences imposed in respect of counts 1 and 2, producing a total effective sentence of six years and six months' imprisonment. The sentencing judge directed that the applicant serve four years' imprisonment before he was to be eligible for parole.

6 The applicant seeks leave to appeal against his conviction and sentence.

7 The count of trafficking and the count of cultivation each related to the crop at both the Donvale and Warrandyte properties. The prosecutor said as much in opening the case in the course of the plea. Further, the number of plants constituting the Warrandyte crop was less than a commercial quantity and accordingly that crop alone could not sustain a charge founded upon a commercial quantity. The counts appear to have been alternatives.

8 To convict and sentence an offender for two offences constituted by the same conduct is not permissible where the elements of the offences are identical or where all of the elements of one offence are wholly included in the other. See Pearce v. R.[1] The applicant's counsel relied upon this principle and submitted that the applicant could not be convicted on both counts. In the present case the evidence went no further than that the applicant cultivated a large number of cannabis plants. There was no evidence of any commercial dealings by the applicant concerning the crop. Section 70 of the Drugs, Poisons and Controlled Substances Act 1981 provides that "traffic" in relation to a drug of dependence includes "have in possession for sale a drug of dependence" and I presume that the Crown relied upon this provision to found the trafficking charge. As the elements of the offences were not identical and the elements of one offence were not wholly included in the other, I do not think that the plea of autrefois acquit was available to bar the conviction on count 2. Each of the offences required proof of an element which the other did not.[2]

9 The Crown conceded that the nub of its case was that the applicant cultivated cannabis plants and that there was no evidence other than the circumstances attending the cultivation which disclosed the applicant's purpose. Accordingly counsel for the respondent allowed that the conviction on the count of trafficking was inappropriate. Having regard to this concession, I would set aside the conviction on count 1 and direct a verdict of acquittal on that count. I do not think we are constrained by the order in which the counts appeared on the presentment to preserve the conviction on count 1.

10 The success of the application for leave to appeal against conviction must lead to setting aside the sentence imposed in respect of the remaining counts. In any event the sentence in respect of count 2 was also affected by the error that the sentencing judge mistakenly thought that counts 1 and 2 were each counts of trafficking. Accordingly, this Court must resentence the applicant.

11 The applicant is now 69 years' old. He will attain the age of 70 years this month. The applicant has been separated from his wife for many years. He has four children and six grandchildren. When he was sentenced to be imprisoned in 1991 the applicant's marriage broke up and the applicant survived on an invalid pension.

12 The applicant left school after obtaining his intermediate certificate and thereafter worked in the wholesale fruit and vegetable industry for some 40 years. He also worked as a real estate agent.

13 The applicant's health is poor. He has had strokes and suffers from high blood pressure. Arteriosclerosis has been diagnosed. A doctor who examined the applicant on 25 February 2006 has said that a number of turns suffered by the applicant may have been due to a diminution of the flow of blood to the applicant's brain due to arteriosclerosis of the carotid artery. If the diagnosis of arteriosclerosis was confirmed, surgery would be considered. The applicant's memory and reasoning might suffer, which would make it more difficult for the applicant to cope with prison. A psychologist reported to the Court that the applicant suffered significant depression, anxiety and low self-esteem.

14 As a result of his conviction the applicant has lost the Warrandyte property. The applicant could also rely upon his plea of guilty as a mitigating factor, albeit it was made at a late stage in the proceedings.

15 Schneider pleaded guilty to a charge of cultivating cannabis at Donvale and theft of electricity and was sentenced to three and a half years' imprisonment with a non-parole period of two years. In my view his sentence is of marginal relevance to the task of resentencing the applicant, for Schneider undertook to give evidence against the applicant and played a subordinate role. I note, however, that his prior convictions were more substantial than the prior conviction of the applicant.

16 The scale of the enterprise, which was conducted, it would appear, solely for profit, rendered the offence serious indeed. General deterrence is an important consideration in sentencing for the offence of cultivating a commercial quantity of cannabis. The applicant's prior conviction is of some relevance. It is now some time in the past, but it was a conviction for the very offence for which the applicant is to be re-sentenced. I also have regard to the applicant's plea, his age, health and the other factors which he could pray in aid.

17 I consider that the applicant should be re-sentenced to be imprisoned for a term of five years on the count of cultivation of cannabis and to a term of six months' imprisonment on each of the counts of theft. I would cumulate two months of each of the sentences imposed in respect of the counts of theft on each other and on the count of cultivation, producing a total effective sentence of five years and four months' imprisonment. I would fix a minimum term of three years before the applicant is to be eligible for parole.

18 For the reasons given by Buchanan, J.A. I would allow the appeal and make the orders he proposes.

[1] (1998) 194 C.L.R. 610 at 618 per McHugh, Hayne and Callinan, JJ. See also R. v. Sessions [1998] 2 V.R. 304.

[2] Cf. R. v. Langdon [2004] VSCA 205.