R v Reed [2008] VSCA 20

2 At the consequent plea hearing, the appellant admitted the commission of a number of theft and other offences between October 1973 and November 1980 and after consideration of the matters advanced on his behalf, his Honour imposed on count 1, a term of imprisonment of three years and, on count 2, imprisonment for one month to be served cumulatively. This created a total effective sentence of three years and one month in respect of which his Honour fixed a non-parole period of 18 months.[1]

3 This Court, on 4 February 2008, allowed the appeals against both conviction and sentence and indicated that it would hand down its reasons at a later date. The following are the circumstances which led to the making of those orders.

4 The circumstances surrounding the commission of the alleged offences upon which the convictions were based were described by the sentencing judge as follows:**

On 18 August 2004 the police executed a search warrant at a home in Werribee. Your former co-accused Peter Stevens was there supervising the growth of five large healthy cannabis plants. They were grown hydroponically in a locked bedroom with covered windows and a large exhaust system. The usual hydroponic water system was in use with large electric lighting. The weight of the five plants was more than 25 kilograms and they were almost ready to harvest. There was also evidence that there were on the premises two bags of dried cannabis weighing 1.2 kilograms. There was no charge in relation to that material.

Between 25 July 2004 and 18 August 2004 the telephone at those premises was monitored by police. Nineteen calls are transcribed over 1996 pages of depositions. In those telephone calls you gave detailed instructions to Stevens as to how to manage the cannabis crop. You directed the amount of nutrients to apply, the working of the lights. You were insistent that the room was kept locked and discussed the drying of the crop. Stevens on two occasions refers to you as "the Boss".

The electricity supply to the home where you were growing cannabis was diverted so as to bypass the electric metre, the value of the diverted electricity is estimated to be $811.00. ...

5 It should be mentioned that, as his counsel submitted with respect to the inference that the appellant was intentionally complicit in the cultivation of a commercial quantity -

...there were only five plants weighing just over a commercial quantity (26.5 kilograms). There was no evidence that the [appellant] knew of the 25-kilogram threshold. There was no evidence that the [appellant] was present at the premises where the plants were grown when they weighed in excess of 25 kilograms. There were no admissions as to knowledge of the weight of the crop. There was no evidence of the co-accused Mr Stevens' intention with respect to quantity or of what the [appellant] believed Mr Stevens' state of mind to be.

**6 Although some mention must be made of them, there is no need to address the complaints of the appellant at length. The Crown has conceded that the judge fell into error in more than one respect when instructing the jury.

7 First, it is apparent that the judge misdirected them as to the intent required to found a conviction for cultivating cannabis in not less than a commercial quantity applicable to that plant in the passage:**

... the issue for you to determine, is has the prosecution established beyond reasonable doubt that the accused believed or was aware that there was a significant or real chance that the amount of cannabis was not less than a commercial quantity, that is not less than 25 kilograms in weight.

**8 Whilst a finding that an accused believed or was aware that there was a significant chance that the crop that he was cultivating would or might exceed the relevant commercial quantity would assume importance in determining whether the individual possessed the requisite intention, it is the ultimate inference of intention to cultivate at least the threshold quantity that must be drawn before a jury can return a verdict of guilty.[2]

9 Secondly, he erred when responding to the following questions asked by the jury:**

If we assume hypothetically that the accused is guilty of cultivating a crop for profit, is it relevant that he turn his mind to the net [wet] weight being over 25 kilograms or not? If it is not relevant, it would seem he could get well above the limit as long as he doesn't cast his mind to it. So is ignorance of the law a defence to this 25 kilogram limit?

10 After discussion with counsel, his Honour answered -

HIS HONOUR: Members of the jury I have your question which falls into two parts. The first part of the question is if we assume hypothetically that the accused is guilty of cultivating a crop for profit, is it relevant that he turn his mind to the net weight being over 25 kilograms or not?

HIS HONOUR: Wet weight, yes, turn his mind to the wet weight being over 25 kilograms or not. The prosecution have submitted to you that you should take into account the value of the crop and its relevant to the accused's understanding and intention as to the quantity of the crop that will be grown. The defence on the other hand say that you are not to assume that the crop is to make a profit, that it is a reasonable possibility that this crop was for the use of the accused and his co-worker and in those circumstances you should not be influenced by that consideration. That is a matter for you to determine as the judges of the facts and the judges who are to draw inferences from the evidence on the basis of the instruction that I have already given to you.

The second part of the question is, if it is not relevant it would seem he could get well above the limit as long as he doesn't cast his mind to it. So is ignorance of the law a defence to this 25 kilogram limit? Members of the jury it's not necessary for the prosecution to establish to your satisfaction that the accused knew of the significance of the 25 kilogram weight, that is an amount over 25 kilograms is a commercial quantity. That is an element of a more serious offence. What the accused has to establish beyond reasonable doubt ---

HIS HONOUR: Sorry what the prosecution has to establish beyond reasonable doubt is that the accused believed or was aware that there was a significant or real chance that the amount of cannabis was not less than a commercial quantity, that is not less than 25 kilograms in weight. That is the onus that is placed on the prosecution and you must be satisfied of that central element of the charge beyond reasonable doubt before you can find the accused guilty of Count 1.

That is my direction it's in part or (indistinct) the direction that I gave you yesterday and I now ask you to retire and further consider your verdict.

11 In relation to this instruction, in his application for leave to appeal the appellant asserted -

Ground 2: The learned judge erred in failing adequately to answer the jury's questions; and in particular he erred:

(a) in failing to make clear to the jury that whether the [appellant] was cultivating cannabis for profit was not an element of the offence and that a finding that he was cultivating for that purpose did not answer the question whether he intended to cultivate a commercial quantity;

(b) in failing to direct that, if the jury could not exclude the possibility that, to use their words, "he got well above the limit without turning his mind to it", he could not be guilty of count 1;

(c) in directing that to know the significance of the 25 kilogram threshold "is an element of a more serious offence" and in failing to direct that there was no evidence that the [appellant] knew of that threshold;

(d) in conflating, and in failing to distinguish properly between, the three sentences comprising the jury's questions.

**12 There is no need to deal with these contentions seriatim and sufficient to state that there is substance to each of them.

13 The importance of the errors arose from the fact that, as the jury would have undoubtedly appreciated, the only live issue in the trial was whether the evidence adduced by the prosecution had established that the appellant had intended to cultivate a commercial quantity of cannabis. The defence was conducted from the outset on the basis that he had been involved in the cultivation but that the evidence did not support the finding beyond reasonable doubt that he possessed the intention that his labours would result in the production of a commercial quantity.

14 It was apparent to the Court that the concession by the Crown that the conviction on count 1 could not stand was properly made. Counsel for the appellant then submitted that, in the particular situation, rather than order a re-trial,[3] a verdict of guilty of cultivating simpliciter should be entered. As the adoption of this course was not opposed by the Crown, and reasonable when regard is had to the evidence in the trial and all of the surrounding circumstances, the Court allowed the appeal and substituted a verdict of cultivating a narcotic plant on count 1.

15 It followed, of course, from these orders that the application for leave to appeal against sentence on both counts had to succeed and the appellant re-sentenced. His counsel submitted that, in the circumstances, no period of immediate incarceration was required. In support of this contention, reliance was placed upon the following matters:**

(a) He is now aged 53 years, in a stable relationship and, with his partner, has custody of his partner's 10 year old grandson. It appears that the child's parents are drug addicts and unable to care for him. The child has, perhaps unsurprisingly, developed some learning and behavioural difficulties but it appears that he has improved significantly in their care and, at the time of sentencing, had returned to normal schooling.

(b) The appellant's own background was one of difficulty. His father, who left when he was quite young, was a violent alcoholic and his mother suffered severely from schizophrenia and spent long periods in hospital.

(c) The appellant has limited education and, from his early 20s, has suffered from depression and anxiety, resulting in his dependence on sickness and disability benefits for many years.

(d) The sentencing judge accepted that the appellant used alcohol and cannabis to overcome his anxiety and social withdrawal and noted the opinion of the forensic psychologist, Mr Bernard Healey, that he was in need of continuing medical supervision and treatment to address these issues.

(e) There was evidence from his general practitioner, Dr Ken Bowes, who had treated the appellant since 1991 for severe anxiety, depression, agoraphobia, panic attacks and suicidal ideation. Dr Bowes also reported that, for many years, the appellant was a carer for both his mother and grandmother and took responsibility for his younger brother.

(g) The appellant had no prior convictions for drug offences and at the time of sentencing was aged 53 years. He had last appeared before a Criminal Court in 1980 when he was in his mid-20s. His criminal history, it was submitted, reflected his unfortunate background and early instability and, although he continued to experience serious difficulties the appellant had not offended over the following quarter of a century.

16 Again the disposition of the matter was not the subject of any contention. The case was considered by the Court to be exceptional in a number of respects and, we came to the view that, whilst the proper exercise of sentencing discretion required the imposition of a term of imprisonment, the term need be no longer than the 266 days of incarceration that the appellant had already undergone and that it was appropriate to suspend the service of the whole of that term.

[1] The co-accused, Peter Stevens, was sentenced by a different judge to be imprisoned for 12 months for cultivation of a commercial quantity of cannabis, nine months for trafficking in cannabis and one month for theft, which, after an order for cumulation, made a total effective sentence of imprisonment for 13 months. In his case, a non-parole period of six months was fixed.

[2] DPP Reference No 1 of 2004; R v Nguyen [2005] VSCA 172; (2005) 12 VR 299, [23], [37]; R v Bui [2005] VSCA 300, [22], [26], [64], [65]; R v Garlick (No 2) [2007] VSCA 23; (2007) 15 VR 388, [21], [22], [24], [53]; R v Callaghan [2007] VSCA 135, [5]-[10], [20]-[22], [35]-[42], [45]-[46].

[3] See s 569(2) of the Crimes Act 1958.