R v Sibic [2006] VSCA 296

2 The appellants Miodrag Sibic, now aged 37, and Slobodan Sibic, now aged 34, who are brothers, were sentenced in the County Court on one count of trafficking in a drug of dependence, namely cannabis L, in a quantity that was not less than a large commercial quantity between 1 January 2002 and 11 May 2004. On their arraignment on 12 December 2005 both appellants pleaded guilty. On 16 December 2005 the appellant Miodrag was sentenced to nine years' imprisonment and a non-parole period of five years and eight months was fixed. The appellant Slobodan was also sentenced to nine years' imprisonment and a non-parole period of six years was fixed. A co-accused, Carlos Rios, who had also pleaded guilty to the same count on the same day, was sentenced to four-and-a-half years' imprisonment with a non-parole period of two-and-a-half years.

3 The offence of trafficking in a large commercial quantity of drugs, punishable by a maximum penalty of life imprisonment, was introduced by Act No. 61 of 2001 into s. 71 of the Drugs Poisons and Controlled Substances Act 1981 (Vic) ('the Act'), and came into operation on 1 January 2002 ('the 2002 amendment'). The section is in the following form:

"71. Trafficking in a drug or drugs of dependence - large commercial quantity

A person who, without being authorized by or licensed under this Act or the regulations to do so, trafficks or attempts to traffick in a quantity of a drug of dependence or of 2 or more drugs of dependence that is not less than the large commercial quantity applicable to that drug of dependence or those drugs of dependence is guilty of an indictable offence and liable-

(b) in addition to imprisonment, to a penalty of not more than 5000 penalty units.

4 A "large commercial quantity" of a drug of dependence is relevantly defined in s.70(1) of the Act to mean the quantity or number of plants that is specified in Schedule Eleven of the Act in relation to that drug. In the case of cannabis L, 250kg or 1000 plants is a large commercial quantity.[1]

5 Both appellants appeal on the grounds, inter alia, that the sentences imposed are manifestly excessive and that the offences should have been treated as though they were "middle of the range" offences of trafficking in a commercial quantity.

Circumstances of offending

6 On 11 May 2004 police executed search warrants at premises in St Albans where the appellants resided, at a rural property in Mickleham, and at factory premises in Tullamarine. The appellants and Rios were arrested and interviewed by investigators. The circumstances of the offending are largely summarised in a written statement made by Miodrag on that day. The statement was accepted by the parties on the plea in mitigation of sentence as being an accurate summary of the offending.

7 In mid-2001 the appellants placed a shipping container at the rear of the Mickleham property. In the second half of 2001 power was connected to the container to grow marijuana plants hydroponically. By the end of 2001 the appellants had grown about 900 marijuana plants. At the beginning of 2002 they resolved to move the operation to a factory in Tullamarine where Miodrag had been conducting a ceramics business. The learned sentencing judge referred to the facts concerning the appellants' offending in these terms:

"You bought new hydroponic equipment and extended the factory premises and built hidden rooms therein and moved the plants to these premises. You then took cuttings from those plants and grew other plants. By mid 2002 the plants were flowering, the results were better than you had achieved at Mickleham. You engaged Mr Rios to look after the plants on a daily basis.

Prior to September 2003 'Generally there were about 500 plants on the go.' From September 2003 there were 'About 2100 plants growing at any given time.' This continued to the date of arrest. There were some 2100 plants growing at the time of arrest. By that time, during the period the subject of this charge it is agreed that you had grown three previous successful crops which together with the crop discovered by the police made a total of four crops. During the relevant period the number of plants in each successive crop had progressively grown from a smaller number to 2100 plants which is said to be the capacity of the premises.

Without any pretence of precision, it is clear that during the relevant period you had grown and had in your possession for sale something of the order of 3000 to 3500 cannabis plants and that may well be a conservative figure. The number of plants required to constitute a large commercial quantity is 1000 and you had some three to three and a half times this number.

The trafficking continued, as I say, over a period of some two years and four months. It ceased only upon arrest and it was trafficking by way of an ongoing business. As one would expect in a business of this nature, plants were at any given time in different stages of development and maturity and size. The system was such that new plants replaced old as and when necessary, emphasising the ongoing nature of the business.

The hydroponic set-up at Tullamarine was elaborate and sophisticated, in part at least automated and highly organised, and no doubt expensive. The operation itself was extensive and could accommodate large numbers of plants. The premises included growing room, drying room, preparation room and so on.

There is no evidence led, of the street value of, for example, the crop of 2100 plants, but one's experience in these courts justifies the belief that it would be very valuable indeed.

Whilst I do not think that the size and quality of the plants grown or the yield from such plants defines whether the quantity of cannabis is a large commercial quantity, these matters are not irrelevant to sentence. They effect, for example, the potential for harm which a particular number of plants has within the community.

In this case, although the plants in question were not intended to be grown to a height of more than two to three feet, and even though there would be a certain failure rate with these, as with any crop, the evidence and the photographs exhibited show that at least the plants found by the police were healthy and flowering. The results achieved with new chemicals were 'outstanding'."

8 In the course of executing their search warrants the police found boxes and bags of cannabis L weighing 762.9 grams at a property in St Albans where both of the appellants resided. They also located electronic scales, an ozone generator and approximately $75,000 in cash at the premises. At the Mickleham property police found a bath in the shipping container containing nutrients commonly used in the growing of cannabis plants, fluorescent lighting tubes and irrigation tubes. There were bags, boxes and various mixing bowls containing cannabis L with a total weight of 204.97 kilograms. They located a box of power cords, timers, scales and an electronic mulcher. The stumps from approximately 1100 cannabis L plants were also found in the same rock wool used in the hydroponic set up subsequently discovered at the Tullamarine factory on the same day. The investigators then executed a warrant at the Tullamarine ceramics factory. On the ground floor of the factory police seized green vegetable matter and seeds weighing 122.5 grams. Large containers of nutrients in boxes were located. The ground floor was used for drying the cannabis plants. On the first level of the factory police located a false wall with four rooms behind it. Access was gained via a sliding door. The first room was set up as a drying and preparation room with white boards detailing quality and quantity of plants, hydroponic equipment, growing instructions, pH levels, instructions about placement of plants to avoid stressing them, pruning instructions and CO2 release instructions. Police located and seized 28.26 kgs of cannabis. In the second and third rooms a very elaborate hydroponic setup was found. Above the plants were a series of large light globes hanging from a suspended railing system. All plants were contained in a plant nutrient system which was pumped from a main reservoir-type tub at the top of the table. Fan belts were set up to rotate the plants under lights using a timer system. All plants were injected with a chemical to produce extremely high levels of tetra-hydracanabinol (THC). A fourth room contained all the transformers and large plastic nutrient containers and a lighting system for the two rooms.

9 During the appeal some dispute emerged between the parties as to whether the cash found at the St Albans residence was a matter which could be taken into account. It was referred to in opening by the prosecutor on the plea. The sentencing judge was informed that there was to be an application made in relation to the money at a later time. His Honour indicated to defence counsel on the plea that even if it be assumed that the cash all related to the growing of cannabis during the charged period, it did not strike his Honour as unusual for such an amount of money to be found in the house. His Honour stated that the presence of such cash did not increase the gravity of the offence. On this appeal it was submitted on the appellants' behalf that the cash found at St Albans should be disregarded as it would be contrary to the agreed facts to view more than $22,400 as coming from the sale of cannabis L. Counsel for the respondent, whilst acknowledging that the cash found at St Albans could not be reconciled with Miodrag's statement, which asserted that there had been a poor return from the previous crops, submitted that the cash found at the St Albans premises could be taken into account. As the prosecutor invited the sentencing judge to deal with the appellants on the basis that the facts contained in Miodrag's statement were the agreed facts and that appears to have been accepted by the sentencing judge, we should not depart from that course.

10 It is convenient if ground 1 of both appellants' appeals are considered together.

Ground 1: Miodrag Sibic - Failure to give any or sufficient weight to low yield of plants

"1. A miscarriage of justice flowed from the learned sentencing judge:

(a) failing to give any or sufficient weight to the actual and potential low yield of saleable cannabis seized;

(b) erroneously characterising and dealing with the amount of cannabis seized for sentencing purposes as a mid-range large commercial quantity when the actual yield was, according to its rate, in fact more appropriately to be viewed as a commercial quantity; and

(c) failing to give any or sufficient weight to the comparatively low financial returns the appellant received as a result of the yield."[2]

Ground 1: Slobodan Sibic -

"The learned judge erred in failing to give any or sufficient weight to the very low actual and potential yield and the very low value of the cannabis plants in question."

11 At the time of the introduction of the 2002 amendment the Attorney-General stated in the Second Reading Speech:

"It has become apparent that the current regime for drug trafficking and cultivation offences is inadequate. Because of the change in nature of the drug trade, new offences are required to provide high penalties for larger quantities of drugs and to close loopholes that exist for those who trade in a range of drugs. ... The new offence of trafficking in a large commercial quantity will attract the Mr Bigs of the drug trade, who operate at the top of the manufacturing and distribution hierarchy and who make large profits from trafficking in drugs. It is not directed at drug addicts who peddle drugs in order to obtain money to feed their own drug addiction. ... Large scale commercial trafficking is defined in this Bill as any amount more than 750 grams of pure heroin, cocaine or amphetamines. Quantities have also been set for a range of other drugs, including cannabis, according to the commercial value for drug. ... The new maximum penalty of life imprisonment reflects the community's abhorrence of large scale drug trafficking and cultivation and will warn potential offenders of the price they could pay for engaging in this illicit trade."

12 The grounds of appeal of both appellants reflect the argument advanced on their behalf before the learned sentencing judge. In substance it had been contended that though the number of plants which had been cultivated was by statutory definition a "large commercial quantity" the yield produced and the return derived from the sale of the crops should be equated with a middle of the range offence of trafficking in a commercial quantity of cannabis. The learned sentencing judge did not accept those submissions. In the course of his Honour's reasons he said "I do not think that there is much, if any, mitigatory comfort for you in this submission or this point in this exercise, however I (have) borne it in mind." Later, in his Honour's reasons, he observed:

"The sentences in respect of only a commercial quantity are of limited guidance, especially in circumstances such as here where the number of plants is much more than the number required to just scrape into, so to speak, the large commercial quantity category. ... The number of cannabis plants necessary to constitute a large commercial quantity, and the maximum penalty prescribed amount to a clear legislative indication of the extreme seriousness of the offence relating to a large commercial quantity of the drug and mark it off clearly from an offence involving only a commercial quantity, which may be committed by trafficking in a number only one-tenth from the minimum number required for the present offence. The ultimate judgment of the seriousness of the particular offence, even taking into account what I have just said, must remain dependent on the facts of the particular case.

In all the circumstances the offending in this case is in my view a significant instance of the offence charged. Whilst it is not at the bottom or very bottom of he scale of seriousness, nor at the very top, I cannot otherwise respond to counsel's invitation to characterise it or position it in relation to that notional scale, nor is such precision or even approximation over and above what I have said necessary."

13 Prior to the 2002 amendment, the statutory regime included an offence of trafficking in a commercial quantity of a drug of dependence which attracted a maximum sentence of 25 years.[3] Where the quantity of the drug was less than a commercial quantity the maximum penalty was 15 years.[4] The maximum terms of imprisonment for trafficking in a commercial quantity of a drug of dependence[5] and trafficking in an amount less than a commercial quantity[6] remained unchanged when the top tier of trafficking in a "large commercial quantity" of a drug of dependence was added in 2002, carrying with it the maximum sentence of life imprisonment.[7]

Relevance of maximum penalty of life imprisonment

14 A court sentencing an offender is required to have regard to the maximum penalty.[8] The maximum penalty prescribed by Parliament for an offence provides authoritative guidance as to the relative seriousness of the offence and is prescribed for the worst class of the offence in question.[9] In Markarian v R,[10] Gleeson CJ, Gummow, Hayne and Callinan JJ said:

"[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. "[11]

15 The joint judgment in Markarian cites with approval a passage from Stockdale and Devlin's book Sentencing, to the effect that a change in the maximum penalty by Parliament may be helpful where it is clear that Parliament regarded the previous penalty regime as inadequate.[12] Their Honours also cautioned that it will generally be inappropriate to first look to the maximum penalty and then make a proportional reduction from it.[13]

16 The provision of a maximum penalty of life imprisonment demonstrates that the legislature regarded the worst class of case of trafficking in a large commercial quantity of a drug of dependence as an extremely serious offence. But such a high maximum is only of general assistance in determining the actual sentence to be imposed for an offence that is nowhere near the upper end of the scale.[14]

17 Prior to the introduction of the 2002 amendment it was well recognised that sentences differing in length should be imposed depending upon where the particular case fell within the range of cases of trafficking in a commercial quantity of a drug of dependence. Where the offence is trafficking in a large commercial quantity of a drug of dependence, more severe penalties will ordinarily be imposed than in cases of trafficking in a commercial quantity. Again sentences differing in severity will be called for depending upon where the particular case is to be placed within the range. There may be some overlap between the upper range of sentences imposed for trafficking in a commercial quantity and the lowest range of sentences imposed for trafficking in a large commercial quantity of a drug of dependence.

18 As has already been mentioned the judge sentenced the appellants on the basis that there were 2100 plants seized on the date of the arrest and a total of 3,500 plants grown throughout the period charged. It was submitted on the plea and repeated before this Court that the yield of the plants found and of those grown in the past was much lower than is usually the case. Mr Croucher, who appeared for the appellant Slobodan, drew attention to the testimony of the prosecution botanist at the committal to the effect that the mature plants seized had a projected yield of eight grams per plant which was consistent with the appellant Miodrag's account in his statement as to the yields of the previous crops. Mr Croucher submitted that if one applied the projected yield to the total number of plants estimated to have been grown over the relevant period, a very low yield was produced. This, he submitted, equated to the yields often seen in lower to middle range "commercial quantity" cases. It was further submitted that one must allow for other contingencies that may have further reduced the actual yield. Some of the crop seized may have died. The dry weight of the crop may have been lower than the figure estimated by the prosecution botanist. The usable portion of the cannabis seized may have been substantially less than that estimated. In turn, it was submitted that the return from the sale of such crops must have been commensurately small. On the basis of Miodrag's statement that he had obtained $800 per pound for the previous crops, it was submitted that one could infer that a similar sum might have been obtained for the existing plants so that the sums involved were modest in absolute terms and exceptionally modest when compared with the number of plants. Based upon this inferential reasoning the finding of the sentencing judge that the street value of the existing crop would have been very valuable was attacked as was his Honour's conclusion about the health of the plants seized.

19 On the appellants' behalf it was contended that these factors were of substantial importance to an assessment of the seriousness of the offence. It was submitted that it was necessary for the sentencing judge to recognise the reduced potential for harm to the community as a consequence of the yields being substantially less per plant than is commonly encountered. The appellants relied upon the observations made by this Court in the recent decision of R v Pidoto and O'Dea,[15] that one of the purposes of the introduction of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001 (Vic) was to define the quantity of a drug which would justify the characterisation of the trafficking as being in a large commercial quantity of a drug of dependence.[16] Analysis of the statutory regime led the Court to conclude that there was no scope for a sentencing court to consider the relative harmfulness of the drug in question with other drugs of dependence. The Court went on to observe:

"This does not, of course, prevent the sentencing court from taking into account evidence as to harm caused by the particular conduct of which the offender has been convicted. The harm attributable to the conduct in question is as relevant as any other factor peculiar to the offending of the offender. What the legislation precludes, in our view, is a sentencing court willing to bear any view, about the general tendency of the drug in question to cause harm, whether to users of it or to the community at large."[17] (Emphasis added)

20 The weight or quantity of the drug of dependence is given statutory significance for sentencing purposes by the legislation distinguishing between the maximum sentence that may be imposed for offences involving traffickable, commercial and large commercial quantities of the drug. Within each of these categories the amount of the drug of dependence that has been trafficked will be of some relevance in fixing the sentence that is to be imposed on the offender because the social consequences that follow from the commission of a crime are relevant sentencing considerations. Where there are significant social consequences stern punishment will almost always be warranted.[18]

21 Because of the harm which it was said flowed from such a poor yield, it was submitted before this Court that the sentencing judge should have imposed a sentence which equated with a mid-range sentence of trafficking in a commercial quantity of cannabis. Counsel for the respondent initially contended that the yield of the crop was irrelevant where the prosecution relied upon the number of plants to establish that it was a "large commercial quantity". It was submitted that there was no warrant in the legislation for the calculation of a potential yield from the crop, that any attempt to do so would be largely speculative, and that an enquiry of such a nature would be productive of extensive dispute at plea hearings. Ultimately, counsel for the respondent conceded that the yield produced by the crop could be taken into account by the sentencing judge though it was said it would be a "marginal consideration". The Crown submitted that there was no legislative warrant for treating the case as notionally one of a commercial quantity rather than a large commercial quantity because the ultimate yield was commensurate with the quantity that one might find trafficked in a commercial quantity.

22 The submissions of the appellants must in large part be rejected. The purpose of a statutory regime which defines relevant quantities of a drug by reference to weight or numbers of plants was considered by this Court in R. v. Weitering.[19] Dealing with the statutory regime under the Act for a "commercial quantity" Buchanan JA, with whom I respectfully agree, observed:

"[The] mischief is the production of a large quantity of the drug cannabis. The legislature sought to apply the maximum penalty of 25 years' imprisonment to a large quantity produced either by efficient agronomy or by large scale planting. ... In my view the introduction of the criterion of a number of plants was intended to mitigate the effect of the date of apprehension of an offender by providing an alternative standard."[20] (Emphasis added)

23 The appellants trafficked in a "large commercial quantity" of cannabis because of the number of plants which they grew. They conducted a large scale and extremely sophisticated operation that was, in relevant terms, capital intensive and carried on over an extensive period of time. The photographs with which the Court has been provided show the nature and extent of the appellants' operation and their endeavours to maximise their crop production. If it be assumed that the yield from the existing crop would have been poor so as to reduce the quantity of cannabis that may have found its way into the community and if it further be assumed that the return to the appellants from the sale of the crop would have been correspondingly reduced, the offence remained one of a very serious order calling for a sentence which could not be equated with a mid-range sentence for trafficking in a commercial quantity of cannabis. Even if the harm which had been and was likely to be caused by the appellants' offending conduct and the actual return should be viewed as less than that which one would normally expect from the number of plants grown, this fact was not to be afforded significant weight in the sentencing process. The objective gravity of the offence and the appellants' moral culpability fell to be determined primarily by reference to the scope of the appellants' operation and their intention to maximise their production and return from the sale of the drug.

24 Where the prosecution relies upon the number of previously grown and existing plants, a low yield from such plants will not ordinarily call for any appreciable reduction in the sentence which would otherwise be imposed. His Honour stated that he took into account the potential harm to the community of the yields produced and likely to be produced. The rejection by the sentencing judge of counsel's characterisation of the appellants' conduct was correct. His Honour was also right to decline counsel's invitation to state precisely where within the range of sentences for trafficking in a large commercial quantity of cannabis, the appellants' conduct should be placed. This ground cannot be sustained.

25 Ground 4 of Miodrag's appeal and ground 2 of Slobodan's appeal may for convenience be considered together:

"Ground 4: Miodrag Sibic - New statutory regime and absence of sentencing guidance

4. A miscarriage of justice flowed from the sentencing judge sentencing the appellant according to a new statutory regime with little or no authority to guide him.'

2. The learned judge erred in failing to give any or sufficient weight to the fact that the appellant became exposed to a greater penalty regime after the cultivation had already commenced, by reason of the introduction (on 1st January 2002) of the offence of trafficking in a large commercial quantity."

26 The appellants relied upon the statement of Miodrag that the growing of cannabis had commenced in 2001. It was submitted that the learned sentencing judge had failed to have any or any sufficient regard to the fact that the appellants were caught in the transition from the "commercial quantity" regime of penalties to the new "large commercial quantity" regime which came into operation on 1 January 2002, with the attendant maximum penalty of a life sentence. The count faced by the appellant was pleaded as commencing on 1 January 2002. It was submitted that some allowance ought to have been made for the fact that the appellants became exposed to a greater penalty after their venture had commenced.

27 No submission to this effect was made before the learned sentencing judge. Importantly, the argument has no merit. According to Miodrag's statement, the appellants determined to commence growing marijuana plants in the last quarter of 2001. If they had ceased production early in 2002 after the introduction of a new statutory regime there may have been some force in the contention that their criminality was to be assessed essentially by reference to the earlier penalty regime. According to Miodrag, at the commencement of 2002 the appellants had some 900 marijuana plants and they resolved to move those plants to the ceramics factory at Tullamarine. That decision appears to coincide in time with the introduction of the new statutory regime. It is not without significance that counsel for the appellant Slobodan had submitted on the plea that his client believed that the time frame during which they trafficked in cannabis was not as long as Miodrag had suggested in his police statement and that the process started in 2002.

28 The appellants were not charged with any offence relating to the cultivation of cannabis at the Mickleham property in 2001. There is no substance in the submission that a lesser sentence should have been imposed because they commenced their venture prior to the introduction of the new penalty regime.

29 Under these grounds it was further argued that the learned sentencing judge was unable to have proper regard to "current sentencing practices", as required by s.5(2)(b) of the Sentencing Act 1991, because of the new statutory regime and the absence of any authority to guide him.

30 Since these sentences were imposed, this Court in R v S[21] considered a case of cultivation of a large commercial quantity of cannabis. S had been sentenced to a term of imprisonment of six years with a non-parole period of three years and nine months for cultivation of 138 plants with a projected yield of 168 kilograms. His appeal against the severity of the sentence was dismissed. The appellants submit that the decision in that case demonstrates that the present sentences are excessive and that the sentencing judge would not have imposed the sentence that he did had he had the benefit of that decision. In that case the offender had agreed to reside on the property on which the cannabis was grown in exchange for which he was to assist in raising the crop. S was sentenced on the basis that he had offered to provide invaluable assistance to the prosecuting authorities to prosecute the offenders who were the owners of the crop. That offered assistance placed him at considerable risk. It was recognised that there had been a substantial reduction in the sentence which would otherwise have been imposed upon him because of his willingness to provide critical assistance to the prosecuting authorities. Were it not for that assistance the head sentence would have been much higher.[22] The appellants emphasised the difference in the yield of the crop in R v S and their own crops. Counsel for the respondent submitted that no comparison could be made with the decision in R v S because it was a case that was concerned with the weight of the crop and not the number of plants. To the extent that that is a relevant consideration it should be borne in mind that S was not the owner of the crop nor would he have benefited from the return generated from its sale. His appeal on the ground that his sentence was manifestly excessive was dismissed. The sentence imposed in that case does not suggest sentencing error in the present case.

31 Since this appeal was argued, this Court has considered two further cases involving trafficking in a large commercial quantity of a drug of dependence. The cases of R v Duncan[23] and R v D'Aolia[24] concerned applicants (whose applications for leave to appeal against sentence were heard together) who, as well as committing other drug offences, had trafficked in a large commercial quantity of 3, 4-Methylendioxy-N-methylamphetamine ('MDMA'). In Duncan, the applicant (who had also trafficked in cannabis) was given a sentence of eight years' imprisonment for trafficking in a large commercial quantity of MDMA. After orders were made for cumulation, eight years and ten months' imprisonment was the total effective sentence, with a non-parole period of four years and five months. In the course of rejecting an argument that the sentence imposed was manifestly excessive, Nettle JA (with whom Vincent JA and King AJA agreed) said that the sentence could "... only be regarded as merciful ... [a]nything substantially less would have been beyond the range."[25] The applicant in D'Aolia, who operated at a higher level in the distribution chain than his co-offender Duncan, was sentenced to nine years' imprisonment on the count of trafficking in a large commercial quantity of MDMA. Nettle JA, with whom Vincent JA and King AJA agreed, described this sentence as being 'well within the range.'[26]

32 Again, the sentences imposed in these cases do not suggest sentencing error in this case. The appellants have failed to make out these grounds.

Ground 4: Slobodan Sibic - Parity

"The extent of the difference between the sentences imposed upon the appellant and his co-offender Carlos Rios offends parity, is manifestly excessive and gives rise to a justifiable sense of grievance in the appellant."

33 The appellant Miodrag does not rely upon a similar ground of appeal but the submissions advanced upon his other grounds of appeal include the contention that the sentencing judge allowed too much disparity between his sentence and that imposed on Carlos Rios. Counsel for Miodrag adopted the submissions advanced on behalf of Slobodan and advanced no written or oral argument in support of this ground.

34 Counsel for Slobodan acknowledged that on the findings made by the learned judge it was necessary to pass different sentences on the appellant and the co-offender Rios, he having been found to have a different and lesser role in the offending. He was an employee who had been recruited by the appellants to care for the crop. It was submitted that the difference between Rios's head sentence and non-parole period and the appellant's head sentence and non-parole period was "massive" and could not be justified by the difference in roles and the other factors raised on the plea. It was said that the extent of the difference in the sentences gave rise to a justifiable sense of grievance on the appellant's part. I am unable to agree. Rios was a paid employee of the venture who was engaged as a caretaker of the crop under the supervision of the appellants. His Honour found that he played no part in the genesis of the scheme or the setting up of the premises or the equipment. His Honour found that he had no proprietorial interest in the business or the crops and was to receive no benefit from the sale of the cannabis. Having regard to those circumstances and the personal circumstances of Rios the sentences imposed upon the appellants and Rios do not offend the principle of parity.

Ground 3: Slobodan Sibic - Manifest excess

"The sentence is manifestly excessive, particularly in view of:

(a) the very low actual and potential yield and the very low value of the cannabis plants in question;

(b) the appellant's plea of guilty and its motivation, despite advice that he had a good defence;

(c) his remorse;

(d) his personal circumstances;

(e) the judge's finding that specific deterrence was not a major consideration in the appellant's case;

(f) the reason for his involvement in the offending;

(g) the bail restrictions imposed upon the appellant during the 11 months between his discharge at committal and the plea;

(h) his prospects of rehabilitation;

(i) the fact that the appellant became exposed to a greater penalty regime after the cultivation had already commenced, by reason of the introduction (on 1st January 2002) of the offence of trafficking in a large commercial quantity."

35 Particulars (a) and (i) have already been considered under grounds 1 and 2 and do not advance the appellant's contention that the sentence imposed is manifestly excessive.

36 The learned sentencing judge accepted that the appellant had pleaded guilty at an early stage. The plea was made following his discharge at committal and following the receipt of advice that he had a viable defence. This was a significant consideration.[27] The appellant entered his plea so that his brother would not be left to bear the responsibility alone. His Honour accepted that the appellant was remorseful and that special deterrence, whilst relevant, was not a major consideration. His Honour accepted that the appellant had a good work history and had a supportive family.

37 The appellant admitted a prior conviction for cultivation of cannabis L in November 1989 for which he was placed on a bond to be of good behaviour, and a second prior conviction in October 1995 for causing injury intentionally or recklessly for which he was sentenced to be released on a community based order for 12 months. Although accepting that the appellant was otherwise of good character his Honour specifically observed that he had difficulty accepting that the appellant's present offending was out of character. His Honour accepted that the appellant's involvement appeared to have been precipitated by his gambling habit. The sentencing judge referred to each of the foregoing matters but it was submitted that his Honour could not have given them sufficient weight given the sentence imposed or placed too much weight on matters in aggravation or otherwise erred in his assessment of the seriousness of the offence.

38 It was submitted that, in addition to the matters to which his Honour referred, the sentencing judge should have taken into account that the appellant had been on onerous bail conditions for 11 months prior to the plea, being required to live with his parents and report to police seven days a week. It was also submitted that his Honour failed to make reference to the fact that the appellant had good prospects for rehabilitation. In dealing with Miodrag Sibic and Carlos Rios his Honour made specific reference to this consideration. The tenor of his Honour's remarks concerning the appellant strongly indicates that it was his Honour's view that, like his brother Miodrag, the appellant had good prospects for rehabilitation.

39 It is convenient at this point to interrupt the consideration of these matters in relation to Slobodan and deal with the grounds of appeal of Miodrag with which I have not already dealt. Those grounds may be considered together.

Ground 2: Brain damage and bipolar disorder

"A miscarriage of justice flowed from the sentencing judge failing to give sufficient weight to the appellant's brain damage, bipolar disorder and related poor mental abilities and thereby:

(a) allowed for too little disparity between the sentences imposed on the appellant as compared with his brother, Slobodan Sibic;

(b) allowed too much disparity between the sentences imposed on Carlos Rios and the appellant;

I sentenced the appellant applying the principle of general deterrence with full rigour when this principle should not apply in his case; and

(d) failed to moderate the sentence imposed on the appellant due to his poor mental state. In particular how time in custody would weigh more heavily on the appellant than it would on a person in normal health.

"The head sentence of nine years with a non-parole term of five years and eight months imposed on the appellant is manifestly excessive because the learned sentencing judge erred in that he failed to give sufficient weight to the appellants:

(a) full and frank admissions on arrest;

(b) plea of guilty at the earliest opportunity;

(c) the statement of the appellant prepared which the sentencing judge referred to as "very helpful to the Crown";

(d) personal circumstances; and

(e) prospects of rehabilitation."

40 As his Honour observed, it had been conceded by each of the appellants that they were jointly and equally responsible for the growing and distribution of the cannabis and that there was no basis to distinguish between them in respect of their moral culpability. His Honour found that Miodrag had pleaded guilty at the earliest opportunity and had made full and frank admissions upon his arrest which were helpful to the prosecution. His Honour accepted that the appellant was remorseful and, as in the case of his brother, found that specific deterrence, whilst relevant, was not of significance. He also found that, apart from a prior conviction for trafficking in marijuana in 1989, the appellant was of good character, had strong family support and had good prospects for rehabilitation. These factors, in conjunction with the grounds that I have already dealt with, were relied upon in support of the contention that the sentence was manifestly excessive. These matters are very similar to those relied upon by the appellant Slobodan.

41 The principal submission advanced by Mr Tehan QC, who appeared with Mr Duckett for the appellant Miodrag, was that the learned sentencing judge had not acted in accordance with the principles set out in R v Tsiaras[28] by failing to give sufficient mitigatory weight to the appellant's psychiatric illness.

42 In his reasons for sentencing the appellant his Honour said:

"You suffer it seems from both physical and psychiatric and/or psychological problems which are outlined in the material exhibited. I have seen a number of medical and psychological reports and extracts from your medical file whilst in custody.

The evidence relating to your physical and psychiatric/psychological conditions is unsatisfactory in many respects, especially as to expert diagnosis and prognosis. However I note that your respective conditions are being monitored in prison.

I am prepared to act on the basis that you suffer physical disability and pain in your back limiting your movement and currently require a wheelchair and that operative intervention may be required. And that you have psychological and/or psychiatric problems requiring continuing medication and monitoring and that the combination of these means that the time you have spent in custody already and any further time will be onerous for you and more onerous than for others and for a period which must remain indefinite."

43 It was submitted for the appellant that his Honour erred in concluding that the evidence relating to his physical and psychiatric condition was unsatisfactory. Counsel for the appellant, relying upon the principles enunciated in R v Tsiaras, submitted that the appellant was not an appropriate vehicle for general deterrence because of his serious psychiatric illness, that specific deterrence would be more difficult to achieve and that his psychiatric illness meant that his prison sentence would weigh more heavily upon him than it would on a person in normal health. That his Honour had not given any or any sufficient weight to these factors was said to be apparent from the fact that his Honour imposed on Miodrag the same head sentence as he imposed upon Slobodan, and had fixed a non-parole period that was only four months shorter.

44 There was a body of evidence to the effect that, at the time of sentence in December 2005, the appellant had been wheelchair bound for more than six months as a consequence of nine lesions of the spine which had resulted in compression of the spinal cord and pain that was being treated by prescription pain killers. The appellant also suffered from lumbar spondylosis. He was unable to walk on his left leg and was awaiting surgery which may have been delayed whilst he was in custody.

45 On the plea, evidence was placed before his Honour that the appellant had been assaulted and knocked unconscious by a group of men in 1986 when he was nearing completion of year 11. Although no finding was made by his Honour, our attention was drawn to evidence tendered on the plea that the appellant had suffered two further closed head injuries in 1992 and 2003. It was said that he had never fully recovered from these incidents.

46 A report from a forensic psychologist and a clinical psychologist were tendered on the plea. In addition, his Honour heard evidence from the clinical psychologist. The appellant had experienced severe bouts of anxiety and depression during his incarceration and had been prescribed with psychotropic medication whilst in custody to treat his unstable mood. The clinical psychologist had been told that the appellant had been diagnosed at the prison as having a bipolar disorder. The medications which he had been prescribed were consistent with such a diagnosis. In addition to the appellant's acute mood fluctuations he was suffering from severe depression and anxiety. No medical opinion was tendered to establish that the appellant in fact suffered from a bipolar disorder.

47 In my view, his Honour was entitled to reach the conclusion that the evidence placed before him was less than satisfactory in relation to the appellant's psychiatric or psychological diagnosis and prognosis. That said, his Honour did conclude that the appellant suffered from a painful and limiting physical disability and that he had psychological or psychiatric problems which required ongoing medication. His Honour stated that he had borne in mind the appellant's physical and psychological problems in fixing the non-parole period.

48 The learned sentencing judge recognised that as a consequence of the appellant's mental and physical condition, custody would weigh more heavily on him than it would on a person in normal health. Furthermore, some moderation of general deterrence was called for because of his mental condition. As his Honour imposed the same head sentence on both appellants, it must be concluded that his Honour failed to give any or sufficient weight to Miodrag's subjective circumstances. His Honour fixed a non-parole period which was only four months less than that fixed for the appellant's brother Slobodan. I am therefore also of the view that these personal factors were given insufficient weight in determining the minimum period which the appellant would be required to serve in custody.

Conclusion: Miodrag Sibic

49 For these reasons ground 2 of Miodrag's grounds of appeal must succeed and the sentencing discretion in respect of him is therefore re-opened. It is unnecessary to address the manifest excess ground, which amongst its particulars relied upon the evidence of the appellant's mental and physical health. Making due allowance for those factors I consider that the appropriate sentence to be imposed is one of imprisonment for a term of eight years. I would fix a relatively short non-parole period of four years.

50 I return then to the resolution of the appeal of Slobodan. Mr Croucher submitted that, in the event that this Court held that Miodrag's sentence should be reduced, it would be necessary to re-open the sentencing discretion in relation to his client and to address the question of parity between the appellants. In my view, this submission should be accepted.[29] Given the circumstances of this case, the sentencing considerations applicable to one offender necessarily involve having regard to the sentence imposed on the other, at least for reasons of parity. Consequently, I consider that, in the circumstances, the sentencing discretion in relation to Slobodan is re-opened.

51 Bearing in mind the seriousness of the offence and the offending conduct, as well as the mitigating factors pertinent to Slobodan, I would impose the same head sentence that was imposed by his Honour. I would fix a non-parole period of five years.

52 I agree that this appeal should be allowed and the appellants re- sentenced in the manner proposed and for the reasons advanced by Redlich, J.A. in his judgment.

[1] This is specified in Column 1A of Part 2 of the Act.

[2] The full statement of the grounds of appeal included the citation of R v Hartog [2000] VSCA 133 at [3]; R v Burgess [2004] VSCA 187 at [7].

[3] Section 71(1)(a)(i) introduced by Act No. 48 of 1997.

[4] Section 71(1)(b).

[5] Section 71AA.

[6] Section 71AC.

[7] Section 71.

[8] Section 5(2)(a) of the Sentencing Act 1991.

[9] Ibbs v R [1987] HCA 46; (1987) 163 CLR 447; R v Dumas [1988] VicRp 8; [1988] VR 65 at 71-2.

[10] [2005] HCA 25; (2005) 215 ALR 213.

[11] At 222 [31].

[12] At 222 [30].

[13] At 222 [31].

[14] DPP v Aydin and Kirsch [2005] VSCA 86 per Callaway JA [11].

[15] [2006] VSCA 185.

[16] Paras [14]-[16] per Maxwell P, Buchanan, Vincent and Eames, JJA.

[17] Para [43].

[18] See Wong v The Queen; Leung v The Queen [2001] HCA 64 [64]-[67] per Gaudron, Gummow and Hayne JJ as to such an approach in relation to importation of a narcotic substance.

[19] [2006] VSCA 54.

[20] At [8]-[9].

[21] [2006] VSCA 134.

[22] At [18]-[19].

[23] [2006] VSCA 239.

[24] [2006] VSCA 237.

[25] At [20].

[26] At [29].

[27] The appellant relied upon R v de Macedo Unreported, Victorian Court of Criminal Appeal, 4 February 1992.

[28] [1996] VicRp 26; [1996] 1 VR 398.

[29] R v Guthrie and Nuttal [2006] VSCA 192 at [87].