R v McKittrick [2008] VSCA 69

2 The applicant, Mr Dean Patrick McKittrick, was found guilty by a County Court jury of one count of cultivating not less than a commercial quantity of a narcotic plant (count 1). He had previously pleaded guilty to three other counts on the same presentment, namely, cultivating a narcotic plant (count 2), possession of a drug of dependence (count 3) and dishonestly handling stolen goods (count 4).

3 The applicant was sentenced to two years' imprisonment on count 1 and three months' imprisonment on each of counts 3 and 4. He was not convicted or punished for count 2, because the jury verdict related to the same facts that provided the basis for count 1.[1] The learned sentencing judge made no orders for cumulation, so that the total effective sentence was two years' imprisonment. His Honour ordered that one year of the total effective sentence be suspended for a period of three years.

4 This is an application for leave to appeal against the conviction on count 1 and an application for leave to appeal against the total effective sentence which was imposed.

5 In 2002, the applicant and his family moved from Hastings to a property in Nicholson, just east of Bairnsdale. They did so because the applicant's wife developed a serious liver and kidney condition which ultimately resulted in the loss of a kidney and required her to have a liver transplant. When the family was told that it was important for her to live in a pollution-free environment, they moved to the Bairnsdale property and the applicant left his job and became his wife's full-time carer.

6 At that time the applicant was a long-term cannabis user and had a serious alcohol problem. In his evidence at trial, the applicant said he was concerned about who would care for his children if his wife died, and he sought medical advice about his drinking problem. He was advised that he had liver damage and that he should give up drinking. He was able to stop drinking by substituting cannabis for alcohol. He said that he was smoking about half an ounce per week in 2002, which later increased to about an ounce per week.

7 After he moved to the Bairnsdale property, the applicant altered the garage on the property and installed hydroponic equipment in order to grow cannabis. He said he grew two crops and was cultivating another crop when the police searched the property on 4 November 2004. His Honour summarised the evidence discovered in the search as follows:**

[Detective Senior Constable Brererton] said there was a steel garage on the property. He entered the garage and noticed it was divided into four separate rooms. In one of these rooms, amongst other things there was wooden box which opened up by a front side swinging upwards. He said he observed 52 seedlings. It was later established that they were in fact cuttings and not all established plants.

In a side room there were seven small plants and four larger plants growing in pots, in the room there were 16 larger plants also growing in pots. In a shed on the side of the property he discovered 24 plants growing in the ground. There were cleared areas on the property; in one he discovered five plants, another 15 and another nine and the final one two.

8 Ms Susan Fidian, a botanist who examined the seized material, concluded there were 109 cannabis plants on the property.[2] This amount formed the basis of the cultivation counts (count 1 or, alternatively, count 2). An additional dried amount weighing some 1818 grams was found in several plastic bags in the freezer and provided the basis for count 3. Count 4 related to a motorcycle which was found on the property. The applicant said he had purchased it at a local hotel but conceded that he was aware that the motorcycle had been stolen when he did so.

9 The applicant relied on four grounds of appeal against conviction. The Crown has conceded that ground 1 must be allowed. It is therefore necessary only to refer to that ground of appeal, which was that:

The learned trial judge erred in his directions on the mens rea required for cultivation of a narcotic plant (cannabis) in not less than a commercial quantity.

**10 During his interview by the police, the applicant was asked 'How many plants ... was all up on the property?' He answered, 'Oh, close to a hu - do youse count all those little cuttings?' When it was put to him by the interviewer that there were 134 plants, 'counting the ... little ones', he said, 'Well, if you counted them, it must be true.' The applicant's evidence at the trial was that he 'had no intention of the numbers and didn't know the number of plants that were [on his property].' He also said that he did not count the plants and that he wasn't sure how many of the cuttings would strike and survive to maturity, but that he guessed about half would.

11 In his jury charge, his Honour explained the mens rea required for the offence of cultivating not less than a commercial quantity of a narcotic plant, as follows:**

I tell you as a matter of law that the law does not require him to know what a commercial quantity is, or to know with precision how many plants he did in fact cultivate. It would be open to you to draw an inference against the accused man that he intended to cultivate a commercial quantity if you were satisfied, and I mean satisfied beyond reasonable doubt, that he intended to cultivate the plants which he did cultivate.

It is not a difficult concept but the law says you have to give separate consideration to this question of intention. Are you satisfied beyond reasonable doubt that he intended to cultivate the plants that he did cultivate? My comment to you is that it is not a difficult concept to accept in this context. Is it the only inference reasonably open? That is, that he intended to cultivate at least the plants that were discovered when his property was raided on 4 November and that that number was in excess of 100 plants, 100 plants or more.

If you are satisfied beyond reasonable doubt he did intend to cultivate that which was discovered and you are satisfied beyond reasonable doubt that which was discovered was 100 plants or more, then my comment to you is that you are hardly likely to have any doubt that he intended to cultivate that number of plants, even if he did not know how many plants it was and he had no idea of the concept of what is or is not a commercial quantity. He intended to cultivate the number of plants that was there and therefore he had the requisite intention in law.

It is the law that you must be satisfied beyond reasonable doubt that he had the relevant intention that my comment to you is that in the context of this case it is a reasonably easy intention to infer that he intended to grow what he in fact did grow and that he intended to grow more than 100 plants because that is what he in fact did grow. But it is a matter for you to be satisfied beyond reasonable doubt that that was his intention.

It is a complicated way of putting what is really, I suppose, a fairly fundamental proposition and that is that you are asked to draw a conclusion about what the accused man intended by working it out from what he actually did. If he actually grew 100 plants plus and there is really no other conclusion open to you other than that he intended to do that. No other conclusion is open in the circumstances of this case.

**12 Although counsel for the applicant expressed the concern that his Honour's direction had suggested 'there was really only one conclusion that [could be] drawn ... from the objective fact that [the applicant] had actually grown 100 plants' his Honour did not give any further direction on the requisite mens rea.

13 During its deliberations, the jury asked the following question through the foreman:**

We're suffering some confusion as regards intent. In this case (indistinct) does intent apply to the growing of plants the defendant grew or does it apply to growing more than a commercial quantity?

14 The judge answered that question as follows:

Thank you. The short answer is that it applies to growing more than a commercial quantity - 100 plants or more. As you have correctly stated, you have to give consideration to whether or not the Crown has established that the accused man had the necessary intent, intent to commit the crime.

What it means is that the Crown has to prove that he, in fact, grew 100 plants or more. And the Crown has to prove that he intended to cultivate that which he grew. It does not have to prove that he ever turned his mind to the question of how many plants were there or that he ever counted them or even thought to himself I wish to grow 100 plants, or I wish to grow a commercial quantity because obviously they are terms that come from the legislation and are not terms in ordinary use. A person growing cannabis in these circumstances would not.

This is a comment from me that does not bind you, but I would imagine would never turn their mind with a question of the numbers that were required for the different offences that relate to the growing of cannabis. But the Crown has to prove an intention to grow a commercial quantity, but as I say that does not mean that it has to prove that he turned his mind to actual numbers or that he specifically intended to grow more than 100 plants.

If you are satisfied that he, in fact, did grow more than 100 plants and he intended to grow that crop which consisted of more than 100 plants, then my direction to you is you are satisfied that he intended to grow a commercial quantity because that which he intended to grow was more than 100 plants. But he has to have intended to do that, to grow that which he actually grew, or more. It does not matter, there is no magic in the figure 109. It would be possible to, when a person may never turn their mind to numbers of plants, but nevertheless the intention has to be, and in this context the Crown's argument is, and in accordance with Ms Fiddian's evidence, that the seedlings that constituted the item of 52 so called seedlings - or not seedlings, but immature plants found in the seed box are said to have constituted - to be made up of 33 plants, because it is said that roots were observed by the botanist on 33 of the 52 that were discovered in that box and the contention is, therefore, that those 33, coupled with the more mature plants found in other locations together, come to 109 plants.

The argument is that you should be satisfied that he intended to grow a commercial quantity because he intended to grow that which he planted and you are satisfied - and satisfied beyond reasonable doubt - that that which he cultivated was, in fact, more than 100 plants.

It is a complication that just comes from the nature of the legislation, I am afraid, and I do not really have any option but to out it to you in those terms. I hope that assists. If it does not, please do not hesitate to come back and ask me to go over it again.

**15 The applicant could not be convicted of count 1 unless the jury were satisfied beyond reasonable doubt that he intended to cultivate at least 100 cannabis plants. If the jury were satisfied beyond reasonable doubt that the applicant knew there was a real and significant chance that he was cultivating at least 100 plants, it was open to the jury to infer that he had the requisite intention.[3]

16 His Honour's jury charge on that issue was ambiguous. Although some parts of it could be interpreted as meaning that it was necessary for the jury to be satisfied beyond reasonable doubt that the applicant had an intention to cultivate at least 100 plants, other parts of his charge indicated that it would be sufficient for the jury to be satisfied that the applicant intended to cultivate cannabis plants, even if he did not intend to cultivate a commercial quantity. In particular, his Honour's comment that it was sufficient if the applicant 'intended to cultivate at least the plants that were discovered when his property was raided on 4 November, and that that number was in excess of 100 plants, 100 plants or more,' was likely to mislead the jury as to the nature of the intention which was required to be proven. Presumably, it was that ambiguity which resulted in the jury question as to the requisite mens rea for count 1.

17 Unfortunately, the lack of clarity in the jury charge was exacerbated by his Honour's answer to the jury question. His Honour said that the Crown did not have to prove that the applicant turned his mind to actual numbers or intended it to be more than 100 plants.

18 In these circumstances, the Crown appropriately conceded that the first ground of appeal was made out. I consider that in these circumstances the Court should exercise its power under s 569(2) of the Crimes Act 1958 to quash the conviction on count 1 and substitute a conviction on count 2. This makes it necessary for the Court to re-sentence the applicant on count 2.**

**19 The maximum penalty for the offence of cultivating a narcotic plant is 15 years' imprisonment and/or a fine of up to 1800 penalty units, unless the trial judge or magistrate is satisfied on the balance of probabilities that the offence was not committed by the person for the purpose of trafficking in the plant.[4] The learned sentencing judge did not accept Mr McKittrick's evidence that he was growing the cannabis solely for his own use, though he did not find that the applicant was growing the crop as a commercial activity.

20 The maximum penalty indicates that the legislature regards cultivation of cannabis as a serious offence. The applicant's cultivation of the cannabis crop required sustained offending over a two-month period. It included a hydroponic set-up and the growing of a considerable number of plants. Even if the 33 cuttings which had taken root are disregarded, the police found 76 marijuana plants at various stages of maturity growing on the property. Counsel for the Crown conceded that, although many of the plants were small, the number cultivated by the applicant made this a relatively serious example of the offence.

21 Mr McKittrick was aged between 32 and 35 at the time of offending and 38 at the time of sentencing. He is married with two children aged 15 and 17. He left school at year 9 after he and his sister were left to care for themselves when their parents separated. Although he is almost illiterate, Mr McKittrick was fully employed until his wife became acutely ill and had to spend seven months in hospital. At that time he had worked for BHP as a steel worker and scaffolder for about six years. He is now his wife's full-time carer. The applicant received a favourable character reference from a Mr Graham Clifford, who had known him for over 20 years. He said that the applicant was a good worker and a devoted father.

22 The applicant does not have a significant history of prior offending. In February 1987, when he was 17 or 18, he was convicted of unlawful assault and causing wilful damage, for which he was fined $600. Because these convictions are 20 years old and were not for drug offences, I would give them minimal weight in sentencing the applicant on count 2.

23 It is to the applicant's credit that he has attempted to stop using cannabis, after having been a chronic daily user of the drug for many years. Mr Joseph Lamberti, a drug rehabilitation counsellor who gave evidence at the plea hearing, said that he had seen the applicant on fifteen separate occasions between 3 February 2006 and August 2007. During this period the applicant had only one urine screen registering positive to cannabis. Mr Lamberti did not consider that the applicant was cured of his cannabis addiction but said he was making progress in dealing with it.

24 Counsel for the applicant submitted that in exercising its re-sentencing discretion the Court should give considerable weight to the fact that the applicant had no relevant prior convictions, that he was prepared to plead guilty to the cultivation offence, and to the delay of more than three years between the applicant's apprehension for the offence and the imposition of sentence. During that time the applicant had taken steps to deal with his cannabis addiction. Counsel also submitted that in re-sentencing the applicant the Court should take account of the risk that the Bairnsdale property would be forfeited under the Confiscation Act 1997.

25 Count 1 was an automatic forfeiture offence. Hence, his Honour took account of the risk that the applicant's share in the Bairnsdale property was liable to forfeiture as tainted property. Because the conviction on count 1 has been quashed, the applicant falls to be re-sentenced on count 2, which is not an automatic forfeiture offence. However, under the Confiscation Act 1997, s 32 (1):**

If a defendant is convicted of a Schedule 1 offence, the DPP or an appropriate officer may apply to the Supreme Court or the court before which the defendant was convicted of the offence for a forfeiture order in respect of tainted property.

**26 Count 2 is a Schedule 1 offence. The definition of tainted property in s 3 of the Confiscation Act 1997 includes property that was used by the defendant in connection with the commission of the offence. The Bairnsdale property is therefore tainted property. At the time of the plea hearing, a restraining order had been made in relation to the property.[5]

27 In considering whether a forfeiture order should be made, the court may have regard to:**

(a) the use that is ordinarily made, or had been intended to be made, of the property; and

(b) any hardship that may reasonably be likely to be caused to any person by the order; and

(c) the claim of any person to an interest in the property having regard to the matters specified in section 50(1).

1"> 28 Under s 50, the applicant's wife may apply for exclusion of her interest in the property, and the Court may make an order excluding that interest if it is satisfied that:

(i) the applicant was not, in any way, involved in the commission of the Schedule 1 offence; and

(ii) where the applicant acquired the interest before the commission of the Schedule 1 offence, the applicant did not know that the defendant would use, or intended to use, the property in, or in connection with, the commission of the Schedule 1 offence; and

(iii) where the applicant acquired the interest at the time of or after the commission of the Schedule 1 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property; and

(iv) the applicant's interest in the property was not subject to the effective control of the defendant on the earlier of the date that the defendant was charged with the Schedule 1 offence or the date that the restraining order was made in relation to the property ...

29 Section 5(2A)(a)(i) of the Sentencing Act 1991 provides that in sentencing an offender a court:

may have regard to a forfeiture order made under the Confiscation Act 1997 in respect of property -

(i) that was used in, or in connection with, the commission of the offence...

Where forfeiture "constitutes a punishment and not simply the deprivation of profits of crime, a sentencing judge can take that punishment into account in the determination of an appropriate sentence in the circumstances."[6] A failure to do so may constitute sentencing error.[7]

An offender who relies on forfeiture (whether it has occurred or is anticipated) as a mitigating circumstance will ordinarily bear the onus of establishing that it should be so regarded. Where lawfully acquired property has been used in the commission of the crime and is "tainted" property, the punitive element in its forfeiture must be sufficiently identified for the sentencing judge. How much of it was lawfully acquired, the offender's interest in the property and the extent to which it was used to facilitate the commission of the crime may all require proof.[8]

**32 The evidence at the plea hearing was that the Bairnsdale property was purchased in 2002 for $232,000. The proceeds of the sale of the property which Mr McKittrick and his wife had previously owned at Hastings, amounting to $149,950, went towards the purchase price of the Bairnsdale property, and the applicant's father lent him the balance of $80,000. The applicant's counsel at trial said his client had told him that the property was now worth between $400,000 and $500,000. The applicant's evidence indicates that it was lawfully acquired, so that any forfeiture order made would operate to punish the applicant rather than to deprive him of the fruits of his crime. In order to satisfy the requirements for exclusion of her interest, the applicant's wife will have to satisfy the requirements of s 50 of the Confiscation Act 1997.

33 Counsel for the Crown was unable to tell the Court whether the Crown would seek forfeiture of the whole of the Bairnsdale property or of the applicant's interest in it. Nor was he able to advise the Court as to whether the Crown would seek forfeiture of the interest of the applicant's wife in the property. I therefore consider that in sentencing the applicant considerable weight should be given to the risk that the whole of the Bairnsdale property, or at least his interest in it, may be forfeited. As the applicant's counsel submitted, if the Crown seeks discretionary forfeiture, the applicant will, of course, incur costs related to the application and any application to exclude the interest of his wife.**

**34 Having regard to the nature and severity of the offence, the applicant's circumstances and the effects of delay and the risk of forfeiture upon him, I would re-sentence the applicant to one year's imprisonment on count 2 and impose the same terms of imprisonment as his Honour imposed in relation to counts 3 and 4, to be served concurrently with the sentence imposed on count 2. This amounts to a total effective sentence of one year. The applicant has already served 180 days' imprisonment. I would suspend all of the total effective sentence, except for the period already served, for a period of two years.

**1. The application for leave to appeal against conviction is granted. The appeal is treated as instituted instanter and is allowed. The verdict on count 1 in the court below is quashed and a verdict of guilty on count 2 is substituted.

2. The appellant is sentenced to be imprisoned for a term of 12 months on count 2. The sentences passed below on counts 3 and 4 are confirmed.

3. The sentences are to be served concurrently by operation of law, making a total effective sentence of 12 months' imprisonment.

4. It is ordered that all but 180 days of the sentence be suspended for an operational period of two years.

5. The sentences are deemed to have been imposed, and the operational period to have begun, on 9 November 2007.

6. It is declared that the period of 180 days is to be reckoned as already served under the sentence, and it is ordered that there be noted in the records of the Court the fact that that declaration has been made and its details.

Mr McKittrick, just as was done in the court below, the remainder of the sentence from this point on has been suspended for a period of two years. That means that the remainder of the term will be suspended for a period of two years from the date on which you were sentenced in the County Court. If in that time you commit another offence which is punishable by a term of imprisonment, you become liable to serve the remainder of the suspended term. Do you understand that?**

39 Under 'Other Matters' it is to be recorded that a certificate be granted to the appellant under s 14 of the Appeal Costs Act.**

[1] See Interpretation of Legislation Act 1984, s 51(1).

[2] Only 33 of the 55 cuttings had developed roots and were classified as plants by Ms Fiddian. Of the 82 other plants, only 76 could be identified as cannabis because their leaves had been removed.

[3] R v Page [2008] VSCA 54, [2] (Maxwell P); R v Filipovic; Gelevski [2008] VSCA 14, [22] (Neave JA); R v Van Xuan Bui [2005] VSCA 300, [26], [33] and [63].

[4] Drugs, Poisons and Controlled Substances Act 1981, s72B.

[5] See Confiscation Act 1997, s 14.

[6] R v El Cheikh [2004] VSCA 146, [12] (Vincent JA).

[7] [2007]VSCA 183, [25]. See also DPP (Vic) v Phillips [2005] VSCA 112; R v Do [2004] VSCA 203, [13].

[8] [2007] VSCA 183, [29]-[30].