R v Pajic [2009] VSCA 53

[2009] VSCA 53

CRIMINAL LAW - Sentence - Cultivation of commercial quantity of cannabis - Procedural fairness - Whether sentencing judge obliged to inform counsel that particular submission as to facts unlikely to be accepted - Whether finding of fact made that appellant knew identity of principal offenders - Admissions as to matters not otherwise discoverable - Discount for voluntary disclosure.

Whether discount for plea of guilty to be reduced because of strength of Crown case - Utilitarian benefit of plea unaffected - Other indicia of remorse to be considered in conjunction with plea - Full admissions and early plea - Forfeiture of interest in property - Penalty - No intention to derive large commercial profits.

1 I will ask my brother Redlich to deliver the first judgment in the matter of Pajic.

2 The appellant Petar Pajic was sentenced to three years' imprisonment on one count of cultivation of a commercial quantity of cannabis L[1] and nine months' imprisonment on one count of theft of electricity,[2] following a plea of guilty in the County Court. It was directed that three months of the sentence on count 2 be cumulated on the sentence on count 1, resulting in a total effective sentence of three years and three months' imprisonment. A minimum of two years' imprisonment was to be served before the appellant would become eligible for parole. Orders were also made requiring the disposal of drugs and drug paraphernalia,[3] the forfeiture of a quantity of cash totalling $2,350,[4] and that the appellant pay compensation in the sum of $10,253.05 to Red Energy Pty Ltd.[5]

3 On 26 September 2008 the appellant was granted leave to appeal against these sentences pursuant to s 582 of the Crimes Act 1958.

4 The appellant has appealed against these sentences on five grounds. Under cover of ground 1, it is said that the sentencing judge denied the appellant procedural fairness by not informing counsel that a particular submission may not be accepted and that thereby the appellant was denied the opportunity to make further submissions or call further evidence. Findings related to the ability of the appellant to identify the principals of the offence are also the subject of complaint. Under ground 2 complaint is made that the sentencing judge gave inadequate weight to admissions made by the appellant as to the crops that had been under cultivation. The appellant further alleges that the discount for the plea of guilty was wrongly reduced because of the strength of the Crown case and because of the fact that he had made admissions. Under cover of ground 5, a ground added by leave during the appeal, complaint is made that the sentencing judge failed to give sufficient weight to the penal aspect of the forfeiture of the appellant's interest in certain property. Under cover of the remaining grounds it was contended that the sentencing judge over-stated the objective gravity of the appellant's offending and failed to give particular mitigatory factors sufficient weight, thereby producing a manifestly excessive sentence.

5 The circumstances of the offence are set out in the summary of agreed facts accepted by the sentencing judge and it is unnecessary to repeat them in any detail. In essence, the appellant met some Asian men at a Springvale market and accepted their offer to make easy money. A hydroponic system of plants was then set up by these men in five different rooms of the appellant's Auburnvale house. The men also set up an electricity bypass. The appellant was instructed how to tend to the plants and how to re-start the electricity if it stopped. The appellant was to receive $1,000 per plant and he was given $2,500 to cover expenses. At the time of his arrest, 15 near mature plants and 15 smaller plants were located over five rooms of his home. It was estimated that the larger plants that were found by investigators had been growing for 16 to 20 weeks post-nursery and that 15 smaller plants were approximately two to three weeks post-nursery. On the plea, the Crown tendered a report as to the value of the crop which indicated that, depending on the method of distribution, the dry material would have yielded an amount of 33 kilograms of cannabis, which could be sold for a total sum of somewhere between $167,000 if sold in one-kilogram lots and $1 million if sold in one-gram lots.

6 The appellant, who was a 61-year-old pensioner at the time of sentencing, was of Croatian extraction and had been in Australia since 1971. He had no previous convictions. It was accepted by the sentencing judge that the appellant was of good character and had a good work record prior to being injured in an industrial accident in 1986 when he was placed on a disability pension. He and his wife and two children returned to Serbia shortly thereafter, but following the Balkan wars they all returned to Australia in 2001. Some time before he committed this offence he had separated from his wife and moved out of the family home in Cranbourne. The Auburnvale property in which he was living was in his former wife's name. At the time of the plea both properties were the subject of restraining orders obtained by the Director of Public Prosecutions under the Confiscation Act. The sentencing judge accepted that the appellant would forfeit his interest in both properties as a consequence of this offence.

7 Under ground 1 the appellant submitted that the sentencing judge denied the appellant procedural fairness as a consequence of his Honour's finding that:

While the fact that you are not in a position to identify the principals of this operation was put as illustrative of naivety on your part, I do not accept this submission, given the size, duration and sophistication of the enterprise.

The appellant submitted on the plea that he had been naïve to set up a commercial cultivation on his own premises, knowing the forfeiture provisions, and that the level of his cooperation with investigators bespoke a lack of sophistication. The appellant submits that the impugned sentencing remark represents a finding that the appellant, while able to do so, was unwilling to identify the other persons involved in the offence. In so finding, the sentencing judge was said to have erred in two respects: first, because this finding was said to be contrary to the evidence contained in the appellant's record of interview and the evidence given by the informant on the plea, in which he had accepted the explanation given by the appellant for his involvement in the offence. The informant had also given unchallenged evidence that it was not unusual for an elderly person with no income to attract the attention of gangs involved in cultivation. It was submitted that this evidence should have been accepted on the balance of probabilities. Second, it was said that his Honour should have forewarned counsel that he may not accept that the appellant did not know the identity of the principals: counsel may then have sought to make further submissions or call further evidence.

8 There were exchanges in the course of the plea that suggested his Honour was dubious as to the appellant's claim that he did not know the identity of the principals. His Honour at one point went so far as to say, following the evidence of the informant and counsel's submissions, that it did not appear that the appellant fully cooperated with and assisted the authorities. Counsel for the appellant responded that he had emphasised to the appellant in the course of obtaining instructions that if the appellant could identify the principals it would be helpful to his plea, but that these persons remained 'unidentifiable'. Counsel did not take the matter further, despite the fact that the sentencing judge had said nothing to suggest that he necessarily accepted the fact being asserted on the appellant's behalf.

9 It is unnecessary to cite authority for the trite proposition that a view of the fact expressed by a judge during argument, whether expressed tentatively or more firmly, does not mean that the judge has found that to be the fact at the time of giving reasons for the decision.

10 The respondent contends that the sentencing judge accepted the appellant's assertion that he did not know the identity of the principals. It was submitted that the impugned remark should be interpreted as a rejection of the proposition that there was a degree of naivety by the appellant which informed a low level of culpability, but it was not a rejection of the claim that he was unable to identify the principals of the offence. The respondent further contended that his Honour should be understood as saying that he did not regard the fact that the appellant did not know the identity of the principal offenders as advancing a claim that he had been naïve, hence his Honour's remark that because of the 'size, duration and sophistication of the enterprise', the appellant's claim that he was naïve as to the nature and extent of his exposure should be rejected. The respondent points to other parts of the sentencing remarks where his Honour concluded that the appellant's culpability for the offence was high and made further reference to the 'duration, size and sophistication' of the enterprise, so further demonstrating that he was satisfied that the appellant was not a naïve participant. The respondent also points out that, in addressing the appellant's cooperation with the authorities, no suggestion was made by his Honour that the weight to be given to his admissions and guilty plea should be diminished by reason of the failure to identify other parties to the operation.

11 The sentencing remarks in my view reflect an acceptance of the appellant's claim that he could not identify the principals. Although the impugned passage is not free from doubt, I am not persuaded that the sentencing judge made the positive finding asserted by the appellant. In anticipation of such a view, counsel for the appellant submitted in the alternative that the informant's evidence bespoke naivety and that his Honour erred in finding that the appellant was not naïve. If the ground of appeal was wide enough to cover this alternative argument, which I doubt, I am satisfied that it was open to the sentencing judge to form that conclusion, as the appellant had effectively turned his house over to the enterprise and had been tending the plants on a daily basis.

12 Had his Honour made the finding that the appellant wilfully refused to reveal the identity of the principals, I do not think that such a finding would have involved any procedural unfairness. Not only was the risk of an adverse finding one which was inherent in the issues to be decided, but the risk of such an adverse inference being drawn had been made known.[6] The sentencing judge could not have reasonably assumed that the appellant's representatives would not appreciate that there was a real risk of such a finding being made against the appellant.[7]

13 Under ground 2, the appellant submitted that the sentencing judge failed to give sufficient weight to the admissions made by the appellant to the police, as it was only by reason of that admission that the existence of the earlier crop planted at the commencement date had become known. Thus it was said that there should have been a discount additional to that for pleading guilty.

14 Count 1 on the presentment described a period of offending between 1 June 2007 and 26 September 2007. The appellant in his interview with investigators said that a first crop had failed some six to eight weeks after planting and that the men had taken that crop away. He had been paid $2,500. The men then returned with a further 15 plants. This admission, it was said, was the only evidence of the earlier failed attempt to cultivate a further 15 plants and was said to provide the basis for the commencement date of count 1 on the presentment. As the sentencing judge regarded the offending as occurring over a 'substantial period', the voluntary disclosure of this information was said to be deserving of an additional discount to that allowed for the guilty plea.

15 In R v BF,[8] this Court referred to the following observations of Street CJ in R v Ellis:[9]

This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.

When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilty of that offence.

The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities as well as guilt being established against the person concerned.

16 The respondent correctly submitted that the commencement date of the cultivation was discoverable without the appellant's admission. This, it was said, was because the 15 mature plants seized were established by expert evidence to be aged between 16 to 20 weeks, the very period of time encompassed by the count. The appellant has shown that the admission provided facts which would not otherwise have been discovered and which were adverse to his interests, namely, that at the commencement date of the count there had been a further 15 plants under cultivation. The 15 juvenile plants present at the time of the raid were thus explained by the appellant in a manner adverse to his interests. On a strict analysis, some further discount of the kind described in R v Ellis, albeit a minimal one having regard to the circumstances, was appropriate. The respondent was unable to point to anything said in the sentencing remarks that suggested that the appellant had received this benefit from his voluntary disclosure.

17 The second aspect of this ground concerns the manner in which the sentencing judge dealt with the discount to be allowed for pleading guilty. After his Honour referred to the fact that the plea was early, that it evidenced remorse and that the appellant was to be given credit for having facilitated the course of justice, he said: 'Your plea, however, was made in the face of a strong case and your admissions.'

18 The appellant contends that these remarks reveal that the sentencing judge viewed the mitigatory value of the plea as having been reduced by virtue of the strength of the Crown case and his admission. Such an interpretation, which was not in the end challenged by the respondent, is fortified by a similar observation made by the sentencing judge during the plea, that: 'In this case, the discount for the plea must be regarded as possibly of lesser weight, given that the police had a strong case, even if he had said nothing.'

19 Section 5(2E) of the Sentencing Act 1991 requires the sentencing judge to have regard to the plea of guilty. One of the matters which may affect the appropriate discount to be allowed for a plea of guilty is the strength of the Crown case.[10] Thus, a plea of guilty in the context of a weak Crown case will generally warrant an additional level of discount. It will be proper for a sentencing judge in some particular cases to find that the circumstance of a plea of guilty which might otherwise attract leniency is absent.[11] Where the Crown case is a strong one, the conclusion may sometimes be justified that the plea has resulted from the recognition of the inevitable and so qualifies the extent of genuine contrition.[12]

20 It must not be overlooked that whatever arguments there be about the degree of remorse shown by the plea, the strength of the Crown case will have no bearing upon that part of the discount which is to be allowed by virtue of utilitarian considerations.[13] And a reduction in the discount because the strength of the Crown case shows that the plea reflects only limited remorse should only occur where conditions exist which justify such a conclusion. They are not to be found in the present case. The timing of the plea[14] and the attitude of the appellant prior to his plea as to his offending conduct are two critical contextual factors. The plea here was neither a late one, nor did it follow a denial of guilt during the investigative stage. It could not be said that the plea was in response to a strong case, which therefore cast doubt on the level of his remorse or his acceptance of responsibility or his willingness to facilitate the course of justice.[15] The discount for his plea of guilty was not to be reduced because of the strength of the Crown case. That is so because the utilitarian benefit of the plea could not be affected and, on the proper contextual analysis, neither could the level of contrition to be attributed to the appellant by virtue of the plea.

21 The impugned remark also shows that his Honour further undervalued the plea by treating his admissions of guilt as a distinct and additional reason for affording his plea less mitigatory weight. The respondent was unable to suggest any sound reason for his Honour's reference to the appellant's admissions in this context.

22 The policy of the criminal law is to encourage the offender to acknowledge guilt, both at the investigative and curial stage of the course of justice. It is a pathway to error to separate the plea of guilty from other indicia of remorse or to treat them as other than complementary. Even if the plea had been a late one and the Crown case strong, the fact that an offender has made admissions could not of itself provide a foundation for reducing the discount to be allowed for a plea of guilty. On the contrary, the making of admissions involving a disclosure of guilty usually provides further mitigatory evidence of the way in which the offender has viewed his offending conduct. It will normally indicate an acceptance of responsibility and may reveal remorse. Spigelman CJ made similar observations in R v Thompson; R v Houlton, where he said:

The bare fact of a plea is of itself a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time which confirm a position of genuine and deeply felt contrition. When such contrition is taken into account by a sentencing judge, then the diminution of sentence is given for contrition, not for the plea of guilty. The plea in such a case is at most evidence of remorse or contrition and often not the best such evidence. It is not desirable to separate out the factor of a plea as an indication of remorse from other manifestations of remorse.[16]

23 Here, the appellant made admissions at the first opportunity, which were then followed by an early plea of guilty.[17] He was entitled to the full measure of the discount for the course he had adopted.[18] The discount he would otherwise have received was not to be reduced because of the strength of the Crown case or his admissions of guilt.

24 Under cover of the remaining grounds it is contended that the sentencing judge overstated the objective gravity of the appellant's offending and failed to give particular mitigatory factors sufficient weight, thereby producing a manifestly excessive sentence. While I am not persuaded that the sentences imposed were manifestly excessive,[19] the appellant has made out his claim that the sentencing judge specifically erred in a number of respects in addition to those to which I have already referred.

25 I accept the appellant's submission that the language employed by the sentencing judge suggests that his Honour attached too little weight to a number of other mitigatory factors upon which the appellant relied. Those factors included his admissions, his remorse, his early plea, his age, his exemplary character, his prospects for rehabilitation, the burden of imprisonment for a person who spoke little English, the forfeiture of his interests in both properties, and the fact that he was not a principal offender who intended to make substantial profit from a commercial sale of the crop. The sentencing judge said that he would only give the appellant's exemplary character 'some weight', and that he only found the appellant's prospects of rehabilitation as 'reasonable'. The appellant submits with some force that, as it was highly unlikely that the appellant would offend again, these findings were unduly cautious.

26 The appellant also drew attention to the conclusions reached by the sentencing judge concerning the forfeiture of his interests in his property. His Honour, having been satisfied that the appellant would forfeit those interests, said:

I give the fact that you will suffer such forfeiture some, but not substantial, weight. You can hardly complain that as a consequence of committing criminal acts any property by which such acts are committed is forfeited.

Leave was granted to add a ground of appeal that the sentencing judge erred in his approach to the forfeiture of the appellant's interests in the restrained property. The appellant submitted that these remarks were indicative of the fact that his Honour did not view the forfeiture as a form of punishment for his crime. Forfeiture of the appellant's lawfully acquired property is a mitigatory factor in sentencing since it placed the appellant in a worse position than he was before the commission of the offence. It therefore had a punitive and a deterrent effect. The sentencing principle of proportionality required that the effect of the forfeiture on the appellant and whether it may have had a substantial deterrent effect should be taken into account.[20] It was not put in issue that the appellant would be affected by the forfeiture of his only place of residence, and that this was of mitigatory significance. The appellant referred to the unusual example of commercial trafficking in the case of R v Phillips,[21] in which a 58-year-old man allowed his house to be used for storage and trafficking of cannabis and amphetamines by the principal offenders, and from which he received a modest payment akin to the appellant. He had been sentenced to 13 months' imprisonment of which six months were suspended for three years. Needless to say, there were material differences to the present case, but his house was also forfeit under the Confiscation Act. Winneke P, with whom other members of the Court agreed, drew attention to the fact that he had received benefits of a type and size inconsistent with a person who consciously and deliberately involved himself in trafficking for his own benefit, and that he would be heavily punished by the loss of his house.[22]

27 I accept the appellant's submission, which was but faintly challenged by the respondent, that the sentencing judge had, by focusing on the fact that the appellant could hardly complain about confiscation laws, failed to recognise that the forfeiture constituted the imposition of a penalty which should have been accorded substantial weight.

28 The appellant points to the fact that his circumstances also should have been distinguished from those who are intended to derive large commercial profits from the cultivation. Here, his Honour, after referring to the alternate ways in which the profit from the crop might be valued, referred to the severe punishment that those who grow it for a profit in a commercial quantity must expect. Whether the absence of a proven motive to make substantial financial profits is a mitigating circumstance or is to be viewed as the absence of an aggravating circumstances matters not in the present case. In either event, it should have been the subject of some recognition so as to indicate that it had been taken into account.[23]

29 In the present case it was not in issue that the appellant was not cultivating with the intent that he would obtain substantial profits from the enterprise. He was to receive $1,000 for each mature plant.

30 Finally, it was submitted that the sentencing judge misstated the objective gravity of the offending. Attention was drawn to his Honour's description of the offence as a serious example of what is a serious offence, which he characterised as 'above the mid range of offending for this offence'. The appellant submitted that the conduct should not have been viewed as a serious example of this offence. The appellant also complained that the sentencing remark that his culpability was high having regard to the duration, size and sophistication of the operation was to the fact that cultivations of much greater size and sophistication and of longer duration are

not infrequently before the courts. It is unnecessary to give further consideration to these arguments.

31 As the appellant has established a number of specific errors, the sentencing discretion must be re-opened. I would impose a sentence of two years and three months on count 1. I would impose a sentence of six months on count 2 and order that three months of that sentence be served cumulatively on the sentence on count 1, resulting in a total effective sentence of two years and six months. I would fix a minimum sentence before the appellant is eligible for parole of one year and three months.

32 I agree with my brother Redlich, for the reasons which he has given, that this appeal should be allowed and that the appellant should be re-sentenced as he proposes.

[1] Section 72A Drugs Poisons & Controlled Substances Act 1981 - maximum 25 years.

[2] Section 72 Crimes Act 1958 - maximum 10 years.

[3] Section 78(1) of the Confiscation Act 1997.

[4] Section 33(1) of the Confiscation Act 1997.

[5] Section 86 of the Sentencing Act 1997.

[6] See Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, [43].

[8] [2007] VSCA 217; (2007) 177 A Crim R 331, [53].

[9] [1986] 6 NSWLR 603, 604.

[10] See R v Donnelly [1998] 1 VR 645, 648.

[11] Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656, [22]-[23] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[12] R v Shannon (1979) 21 SASR 442, 452; Ellis, supra, 604; R v Winchester (1992) 58 A Crim R 345, 350 (Hunt CJ at CL).

[13] See R v Thompson; R v Houlton (2000) 49 NSWLR 383, [137]-[138] (Spigelman CJ); R v Cameron (2005) NSWCCA 357, [22]-[24].

[14] R v Thompson; R v Houlton (2000) 49 NSWLR 383.

[15] Cameron v The Queen (2002) 209 CLR 339, 346 [22].

[17] The Queen v Slater (1984) 36 SASR 524 (King CJ); R v Robertson [2005] VSCA 190 [12] (Chernov JA).

[18] The Queen v Tasker [2003] VSCA 190, [24].

[19] See R v Filipovic; R v Gelevski [2008] VSCA 14; (2008) 181 A Crim R 83; DPP v Willis & Hossack [2009] VSCA 14; R v Clohesy [2000] VSCA 206; R v Catanzariti [2006] VSC 162.

[20] See R v McLeod [2007] VSCA 183, [17]-[21].

[21] [2005] VSCA 112.

[22] R v Phillips [2005] VSCA 112, [14].

[23] R v Costa [1998] VSCA 78, [10]; R v Pavlovski (Supreme Court of Victoria, Court of Appeal, 7 May 1998) (Winneke P, Brooking and Charles JJA); R v Draper [2002] VSCA 63, [7]; R v Kingston [2002] VSCA 41 (Batt JA); DPP v Reid [2004] VSCA 105, [12]; DPP v Rzek [2003] VSCA 97, [28]-[29]; R v Burgess [2004] VSCA 187; R v Mason [2006] VSCA 55; R v Tabone [2006] VSCA 238; [2006] 167 A Crim R 18.