R v S [2006] VSCA 134

1 The appellant ("S") is 55 years of age. On 30 August 2005 he pleaded guilty in the County Court to one count of having cultivated not less than a large commercial quantity of a narcotic plant, namely cannabis L, contrary to s 72 of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for this offence is life imprisonment.

2 Following a plea in mitigation on 5 September 2005, S was sentenced to six years' imprisonment with a minimum of three years nine months to be served before being eligible for parole. He now appeals against that sentence pursuant to leave granted by Charles JA on 24 February 2006.

3 S had had a love of horses virtually all his life. He began as an apprentice jockey at the age of 15 and eventually became a trainer, working both in Victoria and South Australia. In 2002 his marriage broke up. His wife moved to South Australia, leaving him with a number of horses, including retired race horses and brood mares, to all of which he was apparently quite attached. He kept these horses on a property on which he lived, surviving on a disability pension which he had obtained because of an arm injury.

4 Eventually S was evicted from this property. He subsequently accepted an offer from an acquaintance to provide him with an alternative property upon which he could live and keep his horses. In return he would assist in the raising of a crop of cannabis. A property was found which was suitable for this purpose. Indeed, it was peculiarly suitable having been a flower farm equipped with hot houses and a convenient drip irrigation system. Thus, without any outlay on his part, S obtained a place to live and a place to keep his horses in return for being the caretaker of a large cannabis crop. As the sentencing judge put it, he accepted this proposal "... in desperation but not in ignorance".

5 After taking possession of the property S, his acquaintance and another man planted and tended a large number of cannabis plants. No doubt assisted by the favourable conditions on the property and S's caretaking, the plants thrived. When the crop was discovered in March 2005 there were about 140 plants, some up to 1.5 metres high.

6 In that month police who were attending a neighbouring property for an unrelated purpose smelt the aroma of cannabis. Shortly afterwards they arrested one of S's co-offenders at the property.

7 S himself was arrested subsequently and, when interviewed, made a full confession as to his involvement in the cannabis growing enterprise. Importantly, he co-operated fully with police in identifying and describing the activities of his co-offenders, going as far as covertly recording a conversation with one of them to assist the police in their investigation. The evidence provided by S is accepted by the Crown as being crucial to the successful prosecution of these other men, whose trials are still pending. Understandably, S considered himself to be at risk after extending this assistance to investigating authorities. His co-accused both have extensive criminal histories, including prior convictions for violence as well as drug offences.

8 The cannabis plants which S tended weighed approximately 1.5 tonnes in their green or "wet" state. This is more than six times the amount which the statute designates as a large commercial quantity. When air dried the lowest realisable yield from this crop was 168.7 kilograms, worth about $800,000 wholesale or between $3.3M and $5M retail.

9 In her comprehensive reasons for imposing the sentence she did, the sentencing judge considered S's indifferent health and the fact that he was assisting in the prosecution of his co-offenders as factors which would render his incarceration more onerous than it might otherwise have been. She accepted that he was vulnerable and depressed when approached to engage in this enterprise and was motivated largely by a desire to have a place to care for his horses. She considered his culpability as being lower than that of those he was assisting. In particular, she accepted that S's assistance to the authorities involved his doing all that he was asked to do, in that he made full statements implicating his co-accused and went as far as attempting to obtain admissions from them whilst he was equipped with covert recording equipment. Her Honour also found that, although S expected to benefit in the future from the sale of the cannabis crop, it was doubtful whether this would involve "much more than some recompense for [his] work as a caretaker."

10 S had a number of prior convictions, mainly for dishonesty, but including convictions for cultivation, possession and trafficking of cannabis in 1991. For these offences he received a jail sentence, albeit one which was wholly suspended.

Grounds of appeal

11 The appellant argued seven grounds. The first five were directed at establishing, in different ways, that the sentence imposed upon him was manifestly excessive.

Ground 1

12 This ground asserted a failure by the sentencing judge to give any or any sufficient weight to assistance by S (both past and promised) to the authorities, and the consequences of that assistance.

13 In her sentence the judge mentioned a number of times the fact and nature of S's co-operation with police, both in the context of its being a mitigating factor itself and in the context of its effect on his conditions of incarceration. She said:

"I accept that in your assistance to the authorities you have done all that you have been asked to do and you have undertaken to continue. It is valuable assistance, and the police consider the information is credible and reliable. I accept that providing that assistance places you at considerable risk."

14 These matters were obviously at the forefront of the judge's mind in determining an appropriate sentence. Her Honour referred to decisions dealing specifically with discounts for assistance. In accordance with s.5(2AB) of the Sentencing Act 1991, her Honour said that she was imposing a sentence which was "substantially less" than it would otherwise have been, because of the undertaking given by S to assist law enforcement authorities.

15 When a sentencing judge states that a particular matter has been taken into account, such a statement must - subject to one exception - foreclose argument on appeal that the particular matter was not taken into account. There is no reason to doubt that the judge did take that matter into account in arriving at the sentencing decision.

16 The only circumstance in which this Court could entertain the argument that a matter was not taken into account, notwithstanding the judge's statement that it was, would be where the sentence arrived at was explicable only on the basis that the matter in question was given so little weight as to have been, effectively, ignored. That is not this case.

17 In relation to weight, an appellate court must, as Callaway JA made clear in R v Bernath,[1] be:

"... especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error."

The question is whether the sentencing judge's discretion was soundly exercised, not how this Court would have exercised it.

18 Mr Holdenson for S argued that, for appropriate weight to have been given to S's co-operation with authorities, a discount of something in the order of 50% would have been required, as compared to a sentence for the same offence to which a plea of guilty had been entered but unaccompanied by such co-operation. It was argued that, in order to arrive at a head sentence of six years, the sentencing judge must therefore have "started with" a head sentence of 12 years, which would itself have been manifestly excessive. Accordingly, so the argument continued, the head sentence of six years was excessive and indicative of sentencing error.

19 We reject this submission. Such a submission presupposes a fundamental error on the judge's part. It is not to the point that the sentence imposed equates arithmetically with a discount of 50% on a notional sentence of 12 years. It equally equates with a discount of 33% on a notional sentence of nine years and with a discount of 40% on a notional sentence of 10 years.

20 In R v Young,[2] the Supreme Court of Victoria Court of Criminal Appeal (Young CJ, Crockett and Nathan JJ) emphatically rejected the proposition that -

"...a sentencing judge must first fit a sentence which is proportionate to the crime, taking into account some only of the relevant factors. We see no justification for such a course whatever and we think that its adoption would be likely to lead either to the imposition of inadequate sentences or to injustice. It would certainly lead to an increase in appeals against sentence. What is a sentence proportionate to an offence is a matter of discretion and there must in most cases be a range of sentences open to a sentencing judge which are proportionate to the offence. There cannot be said to be a sentence which is the proportionate sentence, as the learned judge in his report in these cases said that he had purported to fix. Thus to attempt to fix a proportionate sentence before fixing the sentence to be imposed will only multiply the possibilities of error."[3]

21 In the present case her Honour was astute to avoid any such impermissible reasoning:

"I cannot say that but for your plea of guilty you would have received this particular sentence of 'X' years. Nor can I say that but for your co-operation you would have received that particular sentence of 'Y' years."

22 The sentence arrived at does not, of itself, bespeak error. It is clear that the sentencing judge did take into account the mitigating factor of S's past, and promised future, co-operation with authorities. Her Honour's reasons were full and careful, and entirely consistent with her having taken this factor into account. There is no merit in this ground of appeal.

Ground 2

23 This ground makes a similar complaint with respect to S's plea of guilty. Section 5(2)(e) of the Sentencing Act 1991 requires a sentencing court to take into account in mitigation of sentence an offender's plea of guilty, and the time at which that plea is entered or offered.

24 For similar reasons to those we have given in relation to ground 1, this ground is without substance. That the sentencing judge took this factor into account is clear from the sentence she imposed and her sentencing remarks.

25 Her Honour stated specifically that the sentence imposed was "far less" than it would have been had it been imposed after a trial. There is nothing in her Honour's sentence which suggests a failure to take S's plea of guilty into account.

Ground 3

26 This ground asserts that the sentencing judge failed to give any, or sufficient, weight to S's "accepted motive" for having committed the offence for which he was sentenced.

27 In his plea before the sentencing judge, counsel for S had submitted that S was motivated purely by his need for a place to care for his horses, and not by the prospect of any profit arising out of the sale of the crop. In her sentencing remarks the sentencing judge said that she was satisfied that S received an immediate benefit by way of a place for him and his horses to live, but that he also expected some future benefit by way of recompense for his work as a caretaker.

28 The judge was cognisant of S's motive and took it into account. There is nothing in the result of this case which could justify any other conclusion. Ground 3 is not made out.

Ground 4

29 As with grounds 1 - 3, ground 4 contends that the judge failed to give "any or sufficient weight" to the limited role of S in the commission of the offence. We would reject it for the same reasons as apply to those other grounds. That is, it is clear from the sentencing remarks that her Honour correctly understood what part S had played. She described him on several occasions - correctly - as "the caretaker of the crop".

30 There was, in short, no failure to take account of S's role. On the contrary, it was expressly adverted to. Moreover, there is nothing in the result arrived at which could justify a different conclusion. This ground also fails.

Ground 5

31 This ground complains that the sentence imposed was manifestly excessive. In Wong v The Queen,[4] Gaudron, Gummow and Hayne JJ described this ground as a "residuary category of error". They observed that appellate intervention on this ground is not justified just because a sentence is "markedly different" from other sentences that have been imposed in other cases. The sentence imposed must be explicable only on the ground of a misapplication of principle, even if the statement of reasons of the sentencing judge does not make such misapplication apparent. Put another way, the sentence must be "unreasonable or plainly unjust".[5]

32 The offence to which S pleaded guilty was introduced into the Drugs Poisons and Controlled Substances Act 1981 in 2001. The seriousness with which it was viewed by Parliament can be gauged from the fact that it carries a maximum sentence of life imprisonment, the same sentence as the most heinous crimes in the criminal hierarchy.

33 Her Honour's sentence in this case was apparently the first sentence to be imposed for the cultivation of a large commercial quantity of cannabis. Taking into account the seriousness with which the law regards the offence, and taking into account all the circumstances of this case, it could not be said that a sentence of six years imprisonment with a non-parole period of three years and nine months was manifestly excessive, either as to the head sentence or as to the non-parole period.

Ground 6

34 This ground complained that the sentencing judge failed to impose a sentence in accordance with the intention she expressed, namely that she would fix a "lower non-parole period than might otherwise have been the case". Mr Holdenson submitted that it was erroneous to describe a non-parole period of three years nine months on a head sentence of six years as being "lower than might otherwise have been the case." He sought to interpret that phrase as stating an intention to impose a "lower than normal" non-parole period. (The submission assumed - incorrectly - that there is such a thing as a "normal" non-parole period. There is no such thing.)

35 In fact, what the learned judge clearly meant was that she would otherwise have had in mind a non-parole period somewhat closer to the head sentence but had fixed a lower non-parole period to take account of the circumstances. There is, again, no reason to doubt that this is what her Honour did. There is no merit in this ground.

Ground 7

36 This ground is that the trial judge erred in giving weight to the submission of the prosecutor, based upon instructions said to have been received by him from the Chief Crown Prosecutor, that to impose a head sentence of less than five years imprisonment would constitute appellable error.

37 Counsel for S had sought a wholly suspended sentence - that is, a sentence of three years' imprisonment or less, wholly suspended. In answer the prosecutor said:

"It's a very difficult position for your Honour since this is the first case in relation to a large commercial quantity. Accordingly, I've taken the unusual course, your Honour, of seeking instructions from the Chief Crown Prosecutor as to a figure. And it is submitted for the Crown that a sentence of - a head sentence of less than 5 years would be inadequate."

38 In her sentencing remarks the judge acknowledged the submission of the prosecutor, saying that she had been assisted by it. Mr Holdenson argued that the judge had taken into account an irrelevant matter, namely the opinion of the Chief Crown Prosecutor. But he went further and submitted that it was "wrong in principle" for a submission to have been made on behalf of the Crown to the effect that five years' imprisonment was the lower limit of the range within which the sentencing discretion could be lawfully exercised.

39 We reject these submissions. One of the functions and duties of a prosecutor is to assist the court to avoid error in the conduct of criminal proceedings, whether at trial or on sentencing. In a sentencing hearing a prosecutor should be ready to assist the court by drawing attention to any statutory maximum penalty applicable and to any particular sentencing options available or unavailable in the particular case. In addition, the prosecutor should be ready to make submissions about the sentencing range applicable to the offence(s) for which the person is to be sentenced.

40 In carrying out this function the prosecutor represents the Crown. He or she does not represent any particular Crown officer. In performing these functions a prosecutor should, as far as possible, avoid any appearance of giving a personal opinion, whether his or her own or that of any other Crown officer. Any submission should be made in the name of the Crown. It should be phrased in such a way as to obviate any possibility of its being seen as the opinion of a particular Crown officer. In the present case, the reference to the opinion of the Chief Crown Prosecutor, though undesirable, was not a material error.

41 Subject to that qualification, properly-formulated and neutrally-expressed submissions by the Crown as to matters of sentencing are to be encouraged. They should include, where appropriate, submissions as to the applicable range outside which a sentence would constitute sentencing error. For counsel to indicate the limits of the sentencing range is conducive to consistency of sentencing, which is a matter of fundamental importance to the criminal justice system.[6]

42 Submissions of that kind can be of great assistance to a sentencing court. They can be contradicted appropriately in submissions by defence counsel and thus contribute to the attainment of a just result in the proceeding. Such submissions should not urge the imposition of any particular sentence, and above all should not convey any implication that rejection of the submissions might trigger a Crown appeal against sentence. The submission in the present case, we should add, conveyed no such implication.

Conclusion

43 None of the grounds of appeal having been established, this appeal will be dismissed.

[1] [1997] 1 VR 271 at 277.

[2] [1990] VicRp 84; [1990] VR 951; see also R v Williscroft [1975] VicRp 27; [1975] VR 292.

[3] At 960.

[4] [2001] HCA 64; (2001) 207 CLR 584 at 605.

[5] R v KHB [2004] VSCA 219 at [9] per Batt JA, citing House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 (Batt JA's emphasis).

[6] Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610-611 per Mason, J.; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 591 per Gleeson, C.J.