R v Scarfo [2002] VSCA 56

Court of Appeal (Vic)|2002-05-02|Before: PHILLIPS, C.J., PHILLIPS, J.A. and O'BRYAN, A.J.A.

CRIMINAL LAW - Application out of time to appeal conviction and sentence - Trafficking in a commercial quantity of cannabis L - Plea of guilty - No exceptional circumstances for change of plea - Evidence supported plea of guilty.

Ms Kay Robertson, Solicitor for Public Prosecutions

Between 7 July and 28 December 2000 the applicant and four other persons were conducting a business trafficking a commercial quantity of cannabis at 13 Salisbury Street, Coburg. The applicant was also engaged in cultivating cannabis at his home at 83 Middle Street, Glenroy between 1 September and 28 December 2000. At the premises in Coburg and Glenroy cannabis plants were hydroponically grown using electricity stolen from the supplier.

The prosecutions of the applicant and his four partners followed a police investigation into the trafficking of cannabis which culminated in a raid of the premises in Coburg and Glenroy on 28 December 2000 and seizure of cannabis plants and hydroponic materials from each house. Following the arrest of the applicant he made and signed a statement on 30 December in which he made detailed admissions to growing 45-50 plants of cannabis from seeds at Coburg in August and cutting the first crop about September. He further admitted to growing a second crop before the first crop was harvested and to cutting the second crop comprising 45-50 plants about five weeks after the first crop was cut. He further admitted to growing a third crop before the second crop was harvested.

When the police raided the Coburg premises they seized 36 plants in the garage and four plastic bags containing cannabis in the house. The applicant said in

his statement: "While one crop was growing another lot of seedlings would be started so that we always had two crops growing at one time" and "All up we grew probably about 150 plants at Salisbury St." He made the confessional statement at his own instigation because he wanted to tell the truth.

The applicant was initially charged with six offences and committed for trial on 5 June 2001 in the Magistrates' Court at Melbourne. The first offence was cultivating cannabis at Glenroy, the second was cultivating cannabis at Coburg, the third was trafficking cannabis at Coburg between 7 July 2000 and 28 September 2000, the fourth was possession of cannabis at Glenroy, the fifth possession of cannabis at Coburg and the sixth theft of electricity at Glenroy.

The applicant was represented by a solicitor and the committal proceeded by way of hand-up brief procedure. The applicant indicated that he would plead guilty to all the charges.

After the committal, negotiations between the applicant's solicitor and the Office of Public Prosecutions as to the counts in the presentment resulted in the applicant being presented in the County Court on 27 July 2001 on a presentment containing four counts -

Count 1 Trafficking in a commercial quantity of cannabis L at Coburg between 7 July and 28 December 2000.

Count 2 Cultivating cannabis L at Glenroy between 1 September and 28 December 2000.

The applicant was represented by counsel and pleaded guilty to the four counts. On 4 September 2001 he was sentenced to imprisonment as follows:

All sentences were to be served concurrently. Of the total effective sentence of two years and six months, eighteen months was suspended for eighteen months.

The applications before the Court are concerned with the conviction recorded and the sentence imposed on count 1. The applicant engaged lawyers to act on his behalf on 4 October 2001 and they caused an application to be filed with the Registrar of Appeals on or about 16 December 2001 for an extension of time within which to lodge notice of appeal. On the same date notices of application for leave to appeal against conviction and sentence were filed. The applicant made an affidavit recently in which he deposed that at the conclusion of the hearing on 4 September he instructed his lawyers to institute an appeal as soon as possible. By implication delay in instituting an appeal was not his fault.

The notice for an extension of time stated in handwriting that the applicant pleaded guilty to count 1 on the basis of legal advice he had received and he has now discovered that both in fact and in law he did not traffick a commercial quantity of cannabis - "I do not dispute that I have trafficked cannabis but it does not amount to a commercial quantity."

Before the Registrar counsel for the Director of Public Prosecutions contended that the applicant had no arguable ground of appeal. The Registrar refused to extend the time for seeking leave to appeal to this Court and the applicant has elected to have the application considered and determined afresh. Should the Court be of the opinion that the ground of appeal is not arguable an extension of time within which to lodge notice of application for leave to appeal against conviction and sentence will be refused.

If the applicant is pursuing an application to appeal against the conviction recorded on count 1 he must first satisfy this Court he should be permitted to withdraw his plea of guilty. As I understood the argument of Mr Tehan who appeared for the applicant he contended that it was not open for the applicant to be convicted of trafficking in circumstances where three crops of cannabis were grown none of which in weight or quantity of plants amounted to a commercial quantity of a drug of dependence. The substantive argument was that the applicant could not be convicted of trafficking because the facts disclosed a case of cultivation of three separate crops none of which involved a commercial quantity.

The applicant faces a formidable task in this Court in appealing against the conviction recorded having pleaded guilty in the sentencing court. In R. v. Stewart[1] in the Full Court in the joint judgment of Herring, C.J. and O'Bryan, J. the Court followed R. v. Forde[2] and held that a plea of guilty having been recorded, the Full Court can only entertain an appeal against conviction if it appears (1) that the applicant for leave to appeal did not appreciate the nature of the charge or did not intend to admit that he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.[3] The Court said: "That the court can entertain an appeal against a conviction upon a plea of guilty, is undoubted, but it is only in very exceptional circumstances that it can do so."[4]

Most recently, in R. v. GJB[5], Winneke, P. said:

"I should note, for the sake of completeness, that an accused person who has pleaded guilty to an offence in the court below is, in rare circumstances, entitled to appeal against the conviction recorded if he can demonstrate to the appellate court that the offence or offences to which he pleaded guilty were offences for which he could not lawfully be convicted.[6] Satisfaction of such circumstances will, probably, lead the Court to the conclusion that a miscarriage of justice has occurred."

The applicant fails the first test in Stewart for he was legally represented at all material times and bargained through his legal advisers for count 1 to be included in the presentment. He also fails the second test for upon the admitted facts he could in law have been convicted of trafficking in cannabis, a drug of dependence as defined in the Drugs, Poisons and Controlled Substances Act 1981. The admitted facts are found in the statement made and signed by the applicant to which reference has already been made. Section 71 creates the offence of trafficking in a drug of dependence. By s.s.(1): "a person who without being authorised by or licensed under this Act or the regulations to do so trafficks or attempts to traffick in a drug of dependence is guilty of an indictable offence" and liable to level 2 imprisonment if a commercial quantity is involved, or a lesser level of imprisonment depending upon circumstances to which reference will be made in relation to the application for leave to appeal the sentence.

For the purposes of Part V of the Act - Drugs of Dependence - traffick is defined in s.70:

"'traffick' in relation to a drug of dependence includes - (a) prepare a drug of dependence for trafficking; (b) manufacture a drug of dependence; or (c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence."

No issue was raised that cannabis L is a drug of dependence nor that the applicant was not authorised by or licensed under the Act for the regulations to traffick in a drug of dependence.

That he trafficked in cannabis between the dates specified in count 1 was clearly admitted in his statement and in the evidence summarised in the Police Brief Summary of Evidence, exhibit AMC1 to an affidavit made by Mr Castle, a solicitor employed in the Office of Public Prosecutions.

The chronology of events reveals that in mid-June 2000 the applicant and four other persons met and agreed to rent a house which could be used to hydroponically grow cannabis which would then be sold to make some money. Premises were located in Salisbury Street, Coburg in which to grow crops of marijuana and the applicant made a financial contribution to the venture. A lease was taken by one of the persons on 7 July 2000 and the necessary materials were purchased and installed in the house for the cultivation of cannabis from seeds and small seedlings. The electricity supply to the house was cut and bypassed by one of the persons.

In or about the first week in August the applicant delivered approximately 45-50 seedling plants to Salisbury Street which were installed in the garage where they were cultivated by the applicant and others. In the last week of September 2000 the first crop was harvested and two pounds of dried cannabis "head" was sold by one of the persons for $6,000. The applicant received $1,300 as his share from the sale.

On or about 25 November one of the persons harvested a second crop of cannabis comprising 45-50 plants from Salisbury Street. The applicant received $1,200 from the sale. On 29 November the applicant went to Salisbury Street and picked up 24 seedlings and took them back to his house in Glenroy.

On 28 December police executed a search warrant at the Salisbury Street premises where four plastic bags containing cannabis was located. In a garage 36 cannabis plants were located. There were four plastic bags containing cannabis in the house but the quantity of plants was not estimated.

On 30 December the applicant attended at the Tactical Response Squad offices and made a confessional statement which he signed which related cannabis crops at Salisbury Street, Coburg and Middle Street, Glenroy. He stated that the crop of cannabis located at Salisbury Street on 28 December was the third crop grown at the premises. He admitted receiving $1,300 and $1,200 for the first and second crops respectively.

Insofar as Mr Tehan contended that trafficking is a separate and distinct act and count 1 did not allege a specific act of trafficking to which the applicant pleaded guilty, I am satisfied that the applicant was properly charged with continuing trafficking between the dates alleged and that on the admitted facts it was open to charge him upon that basis. Approval for charging trafficking in a drug of dependence between dates because a business of trafficking was being carried on of a continuing nature between those dates was given in R. v. Giretti and Giretti[7].

Not only was the Crown entitled to rely upon admitted facts to support count 1 it was also entitled to rely on the plea itself whereby all the elements of count 1 were admitted by the applicant. As will be seen when I deal with sentence, when a prisoner pleads guilty he must be taken to admit all the essential facts and the law involved in the presentment[8], including in a case like the present the aggravating feature that a commercial quantity was involved. Here there was very strong evidence proving the applicant's guilt and in law he could have been found guilty.

In my view it is just not arguable that the applicant could succeed in an appeal against conviction on count 1. Accordingly time should not be extended to enable him to do so.

The application to extend time to appeal against sentence raises a separate issue. As I understood Mr Tehan's argument he contended that the applicant should not have been sentenced upon the basis that the court could be satisfied beyond reasonable doubt that the offence (of trafficking in a drug of dependence) was committed in relation to a quantity of a drug of dependence that was not less than the commercial quantity applicable to that drug of dependence.

Count 1 charged the applicant with trafficking in a drug of dependence and further alleged in relation to the quantity of the drug that it was not less than the commercial quantity applicable to that drug of dependence namely cannabis L. By pleading that the offence of trafficking was committed in relation to a quantity of not less than a commercial quantity of the drug the Crown alleged an aggravating circumstance which, if proved beyond reasonable doubt attracted level 2 imprisonment (25 years maximum).

In R. v. Satalich[9] the Crown charged an accused with two counts of trafficking contrary to s.71(1). Count 2 alleged in a separate paragraph that the trafficking was in relation to a quantity of the drug that was not less than the commercial quantity. The substantive issue at the trial was whether the quantity of the drug under count 2 was not less than the commercial quantity. The jury was unable to agree on the question about the quantity of the drug and the judge took the verdict of guilty and decided himself on the basis of the evidence before the jury that the quantity of the drug was not less than the commercial quantity and sentenced the accused accordingly.

The Court of Appeal allowed an appeal against conviction. In doing so the Court held that s.71(1) created three distinct offences of which those created by s.71(1)(a) and (ab) were aggravated forms of the offence of trafficking simpliciter provided for in s.71(1)(b). The Court held that the circumstances provided for in s.71(1)(a) and (ab) were circumstances of aggravation which fell to be determined by the jury and, as such, became elements of an aggravated offence which must be specifically alleged in the presentment.

In R. v. Kardogeros[10] the offence was described in the terms of s.71(1)(a) and the prisoner pleaded guilty. The applicant later sought to challenge his conviction because, although he had pleaded guilty, there was no basis to be found in the material that he had trafficked in a commercial quantity of the drug. The majority of the Full Court rejected the contention, saying that it was "not only unsupported by the evidence, but controverted by the applicant's plea which ... must be taken to constitute an admission by him of the essential facts and law involved in the presentment. This admission, for present purposes, involves trafficking in not less than the `commercial quantity' of cannabis."[11]

Winneke, P. in Satalich considered that the comments by the majority "necessarily involve an acceptance of the proposition that the circumstance that the quantity of drug trafficked was a `commercial quantity' was an essential element of the offence to which the applicant had pleaded guilty and that, save in the exceptional circumstances suggesting a miscarriage of justice to which the majority referred[12], the sentencing judge's only task was to impose sentence in accordance with the offence conceded by the plea."[13]

In the present case the applicant's plea of guilty admitted to trafficking in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug of dependence. In Schedule 11, Part 2, Column 2 of the Act the commercial quantity of cannabis L is 25.0 kilograms or 100 plants.

The Crown alleged in the court below, and counsel for the applicant did not dispute, that the evidence entitled the sentencing judge to be satisfied beyond reasonable doubt that the offence of trafficking was committed in relation to 100 or more cannabis plants which was not less than the commercial quantity applicable to cannabis. The Crown did not rely upon weight to prove trafficking in a commercial quantity; it relied upon the quantity of plants being 100 or more.

The applicant's statement contained admissions to growing 45-50 plants of cannabis from seeds in August 2000 and cutting the first crop about September and the sale from which he received a share of the proceeds; to growing, harvesting and selling a second crop of 45-50 plants in or about October from which he received a share of the proceeds; and to growing about 45-50 plants in a third crop, 36 of which were seized by the police on 28 December. About 150 plants were grown at Salisbury Street and about 100 plants were sold, according to the evidence.

The admissions entitled the sentencing judge to be satisfied that, between the dates specified, the quantity trafficked was not less than a commercial quantity. The opportunity was there for the applicant or his counsel to challenge the quantity. They did not do so. The applicant was aware that the Crown intended to present him on a count of trafficking in a commercial quantity before he pleaded guilty.

I am of the view that no arguable ground has been raised to justify this Court granting the applicant an extension of time to commence an appeal against the conviction recorded or the sentence imposed in the County Court. Accordingly, the application should be dismissed.

[2] [1923] 2 K.B. 400 at 403 per Avory, J.

[5] [2002] VSCA 54 para.[12].

[6] R. v. Murphy [1965] VicRp 26; [1965] V.R. 187; R. v. Kardogeros [1991] VicRp 19; [1991] 1 V.R. 269 at 273; R. v. Tait [1996] VicRp 48; [1996] 1 V.R. 662; R. v. Parsons [1998] 2 V.R. 478 at 482-3.

[8] R. v. Inglis [1917] VicLawRp 99; [1917] V.L.R. 672 per Madden, C.J. at 675.

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