R v Pulham [2000] VSCA 17

51. The circumstances in which these offences were committed can be summarised briefly. The applicant owned two properties, one at Healesville and one at Seville. On the 21st of March 1997 the police attended at the Seville property. Growing on the 30 acre, orchard property there were in all 219 cannabis plants, the useable part of which, when dry, was up to about 7 kilograms. There was an irrigation system from a dam as well as bags of soil and nutrients. White was found in a tent on the plantation and was arrested. The applicant arrived at the property some hours later and was also arrested.

54. On the same day the applicant was present when the police examined his property at Healesville on which there was a house undergoing extensive renovations. On that property 151 plants in all were found with the applicant's assistance, 65 inside a locked shed set up for cultivation and the balance on other parts of the property. These were more mature plants and the useable material from them when dried would have been up to 26 kilograms. The applicant gave the police full assistance at the scene and later made full admissions in a record of interview, accepting full responsibility for the Healesville plantation and accepting a role of an assistant in respect of the Seville plantation. Count 3, the common count of possession related to cannabis found at a house occupied by White with his family at which the applicant also lived at the time. It is to be noted that at the relevant time the legislation was concerned with the weight of the crop cultivated rather than with the number of plants grown.

57. The learned Judge accepted that the applicant and the co-accused were each heavy users of cannabis. Although each offender had to be sentenced on the basis that the cultivation was for the purposes of trafficking, His Honour accepted for the purpose of sentencing the applicant that despite the large volume of cannabis taken from Healesville much of that cannabis was for the applicant's own use. His Honour proceeded on the basis that the Healesville plantation did not involve White and that in respect of the Seville plantation, although the applicant owned the land, White had the primary role in the cultivation.

60. As to matters personal to the applicant, the Judge accepted that the applicant who was 43 years of age, was the product of a dislocated background after the loss of his mother at the age of 10, had disrupted schooling and early in life turned to alcohol and marijuana. His Honour accepted counsel's description of the applicant as leading a hand to mouth existence, a loner with cannabis as a focal part in his life-style. His relationships and his employment were spasmodic with little stability in his life. In 1985 the applicant was diagnosed with a medical condition known as PXE, a dermatological condition which is found in tissues affecting the skin, retina of the eyes and the cardiovascular system.

63. His Honour found that the applicant's use of marijuana was partly in the form of self-medication. He accepted the evidence of Mr Lamberti, a rehabilitation consultant, that the applicant after his arrest was drug free for 6 months while attending Mr Lamberti but returned to regular use for self-medication. His Honour accepted Mr Lamberti's description of the applicant as an isolated, depressed individual who behaved like a recluse who rejected society rather than one who displayed anti-social behaviour. His use of marijuana after the 6 months abstinence was less than previously and to alleviate pain. His Honour also concluded that both crops lacked the sophistication of professionalism and as to the Seville crop that the applicant allowed the use of his land and gave some assistance. Having referred to those matters, His Honour regarded the three counts as part of the one criminal enterprise and took into account the realistic pleas of guilty and the delay between the arrest in March 1997 and the hearing date in September 1999.

66. Nevertheless, His Honour considered that punishment, denunciation by the Court, as well as specific and particularly general deterrence were relevant sentencing considerations.

69. Five grounds of appeal were advanced in support of this application. Grounds 1 and 2 raised and particularised what is said to be disparity between the disposition between the two co-offenders. In support of these two grounds it was argued that despite the differences personal to each offender and despite the fact that White was not involved in the Healesville crop, the disparity in the sentences on count 2 and overall is so significant as to give rise to a justifiable sense of grievance by the applicant and would be so seen objectively. The focus of this argument was first on the sentence of 12 months on count 2 to be served by the applicant compared to the 18 months fully suspended sentence for White. Secondly the focus was on the comparison between the sentence of 2 years to be served by the applicant on count 1 with the 18 month sentence fully suspended for White on count 2. It was submitted that such a disparity is not justified despite the different mitigatory factors personal to White essentially because of:

i) the lesser role of the applicant in respect of the Seville plantation;

ii) his Honour's finding that the Healesville crop was of poor quality and much of it was for the applicant's own use;

iii) the greater co-operation by the applicant with the police and the admissions made both as to his own role and that of the co-accused;

iv) the degree of rehabilitation despite the continued use of some marijuana primarily for self-medication; and

77. Ground 3 complained that the sentence on count 1 was in all the circumstances manifestly excessive given that the cultivation was primarily for personal use and given the lack of organised and professional attention to the crop.

80. Ground 4 alleged that the overall sentence passed on the applicant was manifestly excessive.

83. Under ground 5 it was contended that insufficient weight was given to the applicant's medical condition which had worsened, to the delay since the commission of the offences and to the applicant's significant rehabilitation.

86. It was, I think, rightly conceded before us, on behalf of the Crown that despite the provisions of the Sentencing Act which require the determination to impose a sentence of imprisonment before it can be suspended and despite the provisions which treat a suspended sentence as a sentence of imprisonment, regard is properly had to the fact that a sentence is suspended as distinct from a sentence to be served when the question of parity is considered. As the Chief Justice said in Q v Dye (unreported) as long ago as 6 December 1993 (at p. 6): "The difference between a sentence of imprisonment and a sentence of imprisonment which is permitted to be served at an attendance centre is a very substantial distinction indeed". In the case of a suspended sentence, the offender is at liberty to live in the community whereas an offender who is not given that opportunity is completely and immediately deprived of his liberty. This view is consistent with what was said by Kirby J. in Q v Postiglione[6], when His Honour in effect equated unjustifiable disparity with the "badge of unfairness", an expression used in Lowe v R[7].

89. It was, however, submitted on behalf of the Crown that in this case the difference in the sentences was justified because the applicant pleaded guilty to two counts of cultivation and because the sentencing Judge was moved by mitigatory features personal to White, particularly the established rehabilitation. There was therefore no disparity of the kind which would justify interference.

92. It is of course well established that as between co-offenders real differences in sentences including differences in the time to be spent in custody may be justified. The primary responsibility in considering those differences and giving them effect is with the sentencing Judge. It follows that mere disparity in sentences between co-offenders, including the difference in the way the sentences are to be served, does not warrant interference by the appellate court. In order for a ground based on disparity to succeed there must be unjustifiable disparity, that is, disparity which raises a justifiable sense of grievance on the part of the prisoner, and also objectively so as to give the impression that justice has not been done. In considering whether there is unjustifiable disparity allowance has to be made for all the circumstances including the mitigating factors personal to the accused. It should also be noted that the appellate court must be careful when considering the question of disparity, that it does not erode confidence in the administration of justice by interfering with sentences imposed by Judges at first instance unless there is clearly unjustified disparity resulting in unfairness and in that way the erosion of confidence in the administration of justice.

95. Having considered the arguments in the present case as to grounds 1 and 2, I have concluded that the sentences imposed have produced an unjustifiable disparity and that the applicant should be re-sentenced. It is therefore not necessary to consider the other grounds although the matters complained of under ground 5 are relevant to the question of disparity. The learned Judge made strong, positive findings in favour of the applicant. In relation to the Healesville plantation, he found, as he was entitled to do, that the cultivation lacked organisation and professionalism and much of the crop was for the applicant's personal use. The strong considerations which require more severe punishment and denunciation in cases of commercial plantations were substantially absent. It was fortuitous that the crop at Healesville when dry had a greater weight than the Seville crop which had more plants because the Healesville crop was more mature. In addition to the applicant's significant co-operation, his admissions and his pleas of guilty there were significant mitigatory factors personal to him. They were his background, his partially successful attempts at rehabilitation and his bad health to which his ongoing although lesser use of marijuana was attributed by the Judge.

98. There were strong personal mitigatory factors in White's case, particularly his rehabilitation and the fact that he was involved in two counts and not three. A difference between the sentences was clearly justified, however, in my opinion, none of the factors justified such a disparity between these co-offenders as would result in one having to serve 2 years' imprisonment albeit with a 9 months non-parole period and the other being immediately free to live in the community albeit with a sentence over his head.

101. The disparity which resulted was in my opinion of such a degree as to justify the intervention by this court in order to relieve a justifiable sense of grievance and an appearance of injustice.

104. However as the other members of the court do not agree with my conclusion I think it would be unnecessary and inappropriate for me to say how I would have proposed to re-sentence the applicant.

[1] R. v. Jonceski (1991) 60 A.Crim.R. 189 at 193-194; and R. v. Groom [1999] 2 V.R. 159

[2] D.P.P. v. Carter [1998] 1 V.R. 601 at 607-608

[3] R. v. Davey [1980] FCA 134; (1980) 2 A.Crim.R. 254 at 262

[4] cf. R. v. Haines (unreported, Court of Criminal Appeal, 7 June 1979) at pp.4-5; R. v. Dye (unreported, Court of Criminal Appeal, 6 December 1983) at pp.5-6; and R. v. Jonceski

[5] Postiglione v. The Queen [1997] HCA 26; (1997) 189 C.L.R. 295 at 302

[6] [1997] HCA 26; 189 CLR 295 at 338.

[7] [1984] HCA 46; (1984) 154 CLR 606 at 611.