R v Spirakos [1998] VSC 270; [1998] VICSC 44

CHARLES, J.A.: On 7 November 1997 the applicant pleaded not guilty in the County Court at Melbourne to a presentment alleging one count of cultivation of a narcotic plant contrary to s.72(1) of the Drugs Poisons and Controlled Substances Act 1981 and one count of theft contrary to s.74 of the Crimes Act 1958. After a trial lasting five days the jury on 13 November returned a verdict of guilty in respect of each count. A plea was heard on 14 November during which the prosecution called two witnesses on an application pursuant to s.86 of the Sentencing Act 1991, and the learned judge made orders for compensation to Maria and Susan Papazoglou, as property owners, for the sum of $28,231 and CitiPower Pty Ltd, as electricity provider, for $3,575. The applicant admitted two prior convictions from a single court appearance on 18 March 1981. The relevant applicable maximum penalty for cultivation of a narcotic plant was then 15 years' imprisonment and a fine of 1,000 penalty units, the maximum penalty for theft being ten years' imprisonment.

On 20 November 1997 the learned judge sentenced the applicant to be imprisoned on count 1 for three-and-a-half years and on count 2 for six months, making a total effective sentence of three-and-a-half years. His Honour fixed a non-parole period of two-and-a-half years.

The applicant now seeks leave to appeal against sentence on the grounds that -

1. The sentence was manifestly excessive in the circumstances.

2. The learned judge erred in the exercise of his sentencing discretion in holding that the applicant was unable to satisfy the court to the requisite standard pursuant to s.72(a) of the Drugs Poisons and Controlled Substances Act 1981 and should therefore be sentenced on the basis that the crop was grown for sale.

3. The learned judge erred in sentencing the applicant on the basis that the potential value of the crop was "of or perhaps in excess of hundreds of thousands of dollars, depending among other things on the stage at which they were valued".

4. The learned judge erred in that he failed to take into account sufficiently or at all the prospects of rehabilitation of the applicant.

5. The learned judge erred in equating a finding on his part that the applicant had shown no remorse with a finding that his prospects of rehabilitation were minimal.

The Crown case was as follows. In May 1994 the owners of 36 The Boulevard, North Balwyn, members of the Papazoglou family, arranged for that property to be leased. On 7 June 1994 the applicant inspected the property and shortly thereafter signed a rental agreement, using the false name "Con Soupos". Thereafter the monthly rental of $1,300 was paid regularly.

During the morning of 27 March 1996, police officers maintained surveillance on the property. At approximately 11 a.m. the applicant and his girlfriend Lillian Ioannou were observed leaving the house, driving away in a yellow Mazda. At 1.57 p.m. the police officers entered the house. In various rooms around the two-storey house the police found 83 mature cannabis plants and 300 cannabis seedlings. The plants were growing in large plastic tubs and many plants reached to the ceiling. The seedlings were growing hydroponically in an array of low trays. All plant growth rooms were equipped with makeshift high-wattage lighting systems slung from the ceilings and powered through irregular cabling. They were also equipped with heavy curtaining material over the external windows to prevent light from the cultivation showing outside the house. In addition to the actual cannabis under cultivation, the house stored a quantity of unused cannabis paraphernalia, including more plastic tubs and solutions and materials used in hydroponic cultivation. The police also found a quantity of dried cannabis.

The unauthorised electrical cabling system was connected to a home-made power board, which in turn was connected to mains power through a hole punched in the brickwork of the external wall. The connection to the mains power was positioned so that the CitiPower meter would not record the electricity drawn off by that means. Almost all of the illicit appliances, including lights, coolers and pumps, were connected to this source, while the other household applications were powered through the original, metered connection.

When weighed and analysed the total weight of plant material seized was calculated as 107.08 kilograms. The total weight of dried cannabis was calculated at 3.192 kilograms. In relation to the value of the crop seized, the evidence before the court was the deposition of Detective Senior Constable Peter Kos of the Victoria Police Drug Squad. Kos estimated the wholesale value of the cannabis available for sale on 27 March 1996 at $270,066. He estimated the potential value of the crop at $1,170.066. The value of electricity stolen was estimated in evidence given upon the application for a compensation order at $3,255.

Under ground 2, the submission of Miss King, Q.C., who appeared in this Court for the applicant, was that the learned judge was not entitled to conclude that the cannabis crop was grown for sale. Her submission was that this fact had not been conceded by the applicant's counsel during the plea and that, although a concession was made that the crop was cultivated for a purpose related to trafficking, this did not entitle the judge to determine either that the whole crop was being cultivated for sale, or that it would be sold realising very substantial profits for the applicant.

Before the applicant's counsel commenced her plea, the prosecutor informed the learned sentencing judge that he relied on the statement of Detective Senior Constable Kos to the effect that the wholesale value of the cannabis crop was then $270,000, and that the potential cannabis crop based on what had been located was $1,170,000. The applicant's counsel made no objection to the reliance by the prosecution on this deposition. Instead, counsel said that the applicant accepted that he would be sentenced on the basis that he had cultivated 83 mature plants and 300 seedlings and that he had not satisfied the court that it was for anything unrelated to trafficking. Counsel's submission was that "This is not a large-scale commercial operation", and reference was made to "State Forest crops of 20,000 plants, things of that nature". The learned judge then asked counsel -

"Are you saying to me that there's no conclusion that I could draw other than that this was being grown for sale?"

After referring to the wording of s.72 of the Drugs Poisons and Controlled Substances Act, counsel replied -

"It's not a situation where you've got acts of trafficking, things of that nature" -

"I guess what I'm conceding is that section 72(b) applies rather than (a)."

"Whilst I'm not sentencing him for trafficking and cannot sentence him for trafficking is it improper for me to take into account that this crop must have been grown for sale?"

His Honour: "It's not improper for me to take that into account?"

Counsel: "No. It's my understanding that that's the basis upon which he'll be sentenced and I guess what I'm seeking, obviously, rather infrequently at this stage to do is to say to the Court that, in my submission, I'm seeking to distinguish it first from large commercial operations, secondly, from circumstances where you've got people who are both cultivating and there at least during the course of the trial circumstances and evidence led that would suggest acts of trafficking over a period of time by them or others, even in circumstances where sometimes those persons are also just presented on cultivation. I say that my client is simply in a position where he is found with these plants and he's sentenced on the basis that they were, for some purpose, related to trafficking."

In my view the learned judge was, in the light of this exchange and the quantity of cannabis involved, entitled to conclude that the point the applicant's counsel was seeking to make was that the applicant had not been established as having been involved in a large commercial operation, and that no actual acts of trafficking had been proved against him. On the other hand it had been proved that the applicant had cultivated a substantial crop and he was to be dealt with on the basis that he was doing so for a purpose relating to trafficking. In my view, however, the learned judge was entitled to conclude that counsel had expressly conceded that his Honour was entitled to take into account that the crop was being grown for sale. I should add that, had this concession not been made, the size of the crop and the effort and cost that had been put into cultivating the crop all would have tended to show not only the intention to sell the cannabis but also to sell on a commercial basis; see R. v. Marchesano (1992) 61 A.Crim.R. 372, especially at pp.373 and 376, where like reasoning appears to have been approved by the Court of Criminal Appeal of Western Australia. Ground 2 fails.

The argument on ground 3 was that the learned judge was in error in holding that the cannabis crop "had an indeterminate value of or perhaps in excess of hundreds of thousands of dollars, depending among other things on the stage at which they were valued". Miss King's argument assumed that Kos's deposition was properly in evidence. But although it was accepted that Kos could establish the wholesale value of a pound of cannabis, the argument was that he could not give evidence of the amount each plant would produce, or reliable evidence of the future growth of cannabis plants.

At the plea, the applicant's counsel did not (as I have said) object to the judge relying on Kos's deposition. She said she took "some issue" with the material in his statement relating to value, to the commerciality of the venture, and to what profits might have been realised. She submitted that the judge could not sentence the applicant on the basis that the crop in his possession at the time was worth $1.7 m., because "that is a potentiality that had not been realised and may never have been realised and ... that figure is not relevant in terms of the sentencing process here today". The learned judge then asked counsel if she would cavil with a finding that the crop had an actual and potential value of hundreds of thousands of dollars or even many hundreds of thousands of dollars. Counsel replied that she thought many hundreds of thousands of dollars was somewhat high and somewhat vague. His Honour then asked if she would cavil with hundreds of thousands of dollars, leaving out the word "many". His Honour put it to counsel that he had a preliminary and tentative view subject to what counsel might put to him that "The crop including the seedlings has an actual and potential value, let's say, of hundreds of thousands of dollars". His Honour continued -

"You can dissuade me from it if you like but that's the sort of finding that I imagine that I would make."

Counsel replied, "Yes. No, I don't propose to take that any further."

In my view the learned judge was required for sentencing purposes to make some general estimate of the size of the crop being cultivated by the applicant. The approach taken by his Honour led, in my view, to a proper assessment of the size and nature of the criminal enterprise on which the applicant was engaged, and which I think was in substance conceded by the applicant's counsel.

Miss King submitted in this Court that the learned judge had, in effect, sentenced the applicant as though he had been charged with both cultivation and trafficking of the cannabis. In my view his Honour was careful to do no such thing and repeated in argument during the plea that he could not sentence the applicant for trafficking. I do not think his Honour has been shown to have erred in this respect. Ground 3 fails.

Grounds 4 and 5 may be dealt with together. During the plea, the applicant's counsel accepted that there was no material upon which the learned judge could find that the applicant had admitted his guilt or shown any remorse. She submitted, however, that the applicant should be regarded as unlikely to offend again and, in substance, as having good prospects of rehabilitation. The learned judge asked on what basis he could make such a finding in the absence of evidence. Counsel's submission was, in effect, that the applicant's conduct before and after the offences for which he then stood to be sentenced, and the fact that he had had no convictions since 1981, demonstrated sufficiently that he was not committed to a criminal life and was capable of rehabilitation. The learned judge did not accept this submission, saying in sentencing reasons -

"Whilst you cannot be punished for failing to plead guilty, you receive no discount for having done so. You have consistently denied involvement in these offences and shown no remorse. I am not able to make a finding, even on the balance of probabilities, that you are unlikely to offend again, notwithstanding your good record, apart from the 1981 matters, before this offence and since."

In this Court Miss King's submission was that the judge was in effect constrained to make a finding that the applicant was unlikely to offend again, by virtue of his record. The question of the applicant's potential for rehabilitation was plainly to be used in the applicant's favour, and accordingly the learned judge was required to be satisfied in relation to it on the balance of probabilities; R. v. Storey (1996) 89 A.Crim.R. 519 at 531-532. The absence of remorse was emphasised by the prosecutor during his submissions. The issue having been raised by the judge, it was, I think, for the applicant's counsel to decide whether to call some evidence to show that the applicant had good prospects of rehabilitation. Notwithstanding that the issue of rehabilitation was plainly a live one, no evidence was called on the applicant's behalf. The learned judge, who had had the opportunity of observing the way in which the trial had been conducted on the applicant's behalf (over a period of some five days), was left to assess his prospects of rehabilitation against the background that the applicant had been found guilty of offences involving a sophisticated and elaborate scheme for the cultivation of cannabis, which would have been expensive to set up, and which had the potential to earn significant profits, with no evidence of any remorse for these actions. In these circumstances it was, I think, clearly open to his Honour to refuse to make a finding that the applicant was unlikely to offend again. I do not think his Honour arrived at this view solely because there was no evidence of remorse, although this would, no doubt, have been a significant consideration. Grounds 4 and 5 also fail.

The ground of manifest excess was not argued at length. It was put that the applicant was aged 45, that

he had only one minor prior conviction in 1981, that no profits had been realised and no trafficking had occurred.

It was submitted that the operation was a small commercial one and that the applicant's history showed significant hardship and hard work. In my opinion this ground must fail because the sentence imposed was, in all the circumstances, plainly within range. Indeed it may be said that the applicant was fortunate that no cumulation was ordered in respect of the sentence on count 2. I should myself have thought that this was a separate offence from count 1, and that it would have been appropriate to order some cumulation.

WINNEKE, P.: I agree, for the reasons given by Charles, J.A., that this application ought to be dismissed.

I simply desire to add this. I agree with Miss King, who appeared for the applicant, that it would be inappropriate for a sentencing judge to convert a failure by an accused person to plead guilty into a positive finding that that accused had no prospects of rehabilitation, or into a lack of satisfaction that the accused would not re-offend. Although the State has, through legislation and in a variety of ways, sought to encourage persons to plead guilty, that does not mean that accused persons in this State should be penalised inappropriately simply because they wish to challenge allegations made by the State against them.

His Honour took the view that he could not be satisfied on the material before him that the applicant was unlikely to re-offend. Although the applicant did not put any affirmative material before the court to suggest that he had prospects of rehabilitation, he was none the less a man of 45 years of age who had no prior convictions since 1981. Miss King submitted that his Honour had formed the view which he expressed as to the applicant's future prospects solely on the basis of a lack of remorse demonstrated by the applicant putting the Crown to proof of the offences. If I were satisfied that such was the case, I would be inclined to the view that there had been a sentencing error. However, it seems to me that there were other circumstances which, in combination, led his Honour to the lack of satisfaction which he expressed. Whilst his Honour's remarks in this regard were cryptic, it would seem to me that his Honour was merely expressing the view that the degree of criminality involved in these offences and the total absence of affirmative evidence of good prospects left him in a position where he could not properly achieve a degree of satisfaction that the applicant would not re-offend. His Honour was entitled to so conclude, as Charles, J.A. has pointed out.

Another matter referred to by Charles, J.A., perhaps, should be emphasised. In this case the applicant was found guilty by the jury of a sophisticated offence of cultivating cannabis. That offence involved the theft of electricity from the CitiPower corporation. His Honour, upon the finding of the jury that the applicant was guilty of both offences, sentenced the applicant not only to the term of three-and-a-half years in respect of the principal count but also to a term of six months in respect of the count of theft. In doing so, his Honour made the sentences totally concurrent. In my view, in coming to that conclusion his Honour may be thought to have been

generous to the applicant. It seems to me that, if people want to engage in sophisticated ventures of cultivating cannabis for the purpose of sale, and in the course of doing so commit an offence of theft against a totally innocent third party, it would not be inappropriate for the courts to express their view of the seriousness of the offence of theft by making some portion of the sentence for that offence cumulative upon the sentence imposed for the principal offence.

BROOKING, J.A.: I agree with both judgments that have been delivered.

WINNEKE, P.: The formal order of the Court will be that the application is dismissed.

I certify that this and the 11 preceding pages are a

true copy of the reasons for judgment of the Court of

Appeal of the Supreme Court of Victoria (Winneke, P., Brooking and Charles, JJ.A.) delivered on 15 April 1998.

___________________________