R v Tabone [2006] VSCA 238

2 On 30 March 2005 the applicant was arraigned before a judge of the County Court at Melbourne on one count of trafficking in a drug of dependence (Cannabis L) ( Count 1), one count of cultivation of a narcotic plant in a commercial quantity (Cannabis L) (Count 2), and one count of theft of electricity (Count 3), to all of which he pleaded guilty. Following a plea in mitigation of penalty, on 13 October 2005 the judge sentenced the applicant on Count 1 to a term of imprisonment of four months, on Count 2 to a term of imprisonment of three years, and on Count 3 to a term of imprisonment of three months. The judge directed that two months of the sentence imposed on Count 3 be served cumulatively upon the sentence imposed on Count 2, making thereby for a total effective sentence of three years and two months, and her Honour ordered that the applicant serve not less than 19 months' imprisonment before being eligible for parole.

3 The applicant now applies for leave to appeal against sentence on three grounds of appeal. It is convenient to deal with them in the order in which they were presented by counsel.

Ground 3 - ss.5(2A) and (2B) of the Sentencing Act 1991

4 Sections 5(2A) and (2B) of the Sentencing Act 1991 provide that:

(2A) In sentencing an offender a court -

(a) may have regard to a forfeiture order made under the Confiscation Act 1997 in respect of property -

(i) that was used in, or in connection with, the commission of the offence;

(ii) that was intended to be used in, or in connection with, the commission of the offence;

(iii) that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in sub-paragraph (i) or (ii);

(ab) if it is satisfied that property was acquired lawfully, may have regard to automatic forfeiture under the Confiscation Act 1997 in respect of property -

(i) that was used in, or in connection with, the commission of the offence;

(ii) that was intended to be used in, or in connection with, the commission of the offence;

(iii) that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in sub-paragraph (i) or (ii);

(b) must not have regard to a forfeiture order made under that Act in respect of property that was derived or realised, or substantially derived or realised, directly or indirectly, by any person as a result of the commission of the offence;

(c) may have regard to a pecuniary penalty order made under that Act to the extent to which it relates to benefits in excess of profits derived from the commission of the offence;

(d) must not have regard to a pecuniary penalty order made under that Act to the extent to which relates to profits (as opposed to benefits) derived from the commission of the offence;

(e) subject to paragraph (ab), must not have regard to any property forfeited under automatic forfeiture or a pecuniary penalty order made in relation to a Schedule 2 offence under that Act.

(2B) Nothing in sub-section (2A) prevents a court from having regard to a forfeiture order or civil forfeiture order made under, or automatic forfeiture occurring by operation of, the Confiscation Act 1997 as an indication of remorse or co-operation with the authorities on the part of the offender.

5 The applicant contends that the judge failed to take into account as part of the sentencing process the possibility that the applicant's home could be the subject of automatic forfeiture under the Act. Counsel referred to an observation in the judge's sentencing remarks - to the effect that the possibility of forfeiture "would be pertinent if consideration were being given to a fine" - and he submitted that it implies the judge treated the possibility of forfeiture as not being pertinent to a sentence of imprisonment. In counsel's submission, however, it plainly was pertinent and the judges' error in that regard was so fundamental as to vitiate the sentencing process and thereby re-open the sentencing discretion.

6 Arguably, there is some force in that submission. The judge's observation does imply that she did not regard the possiblity of forfeiture as being relevant to the imposition of a term of imprisonment. In fact it may have been. As Charles, J.A. observed in R. v. Le and R. v. Nguyen,[1] forfeiture of lawfully acquired property used in or in connection with the commission of an offence can consitute a substantial additional punishment and thus be something which a sentencing judge may properly take into account in determing the length of a term of imprisonment.[2]

7 That said, however, Le and Nguyen must be understood in its context and, importantly, on the basis that there was evidence in that case which enabled the court to work out that the applicant's house was worth approximately $100,000, subject to a mortgage in the sum of $20,000 and an exclusion order in favour of the offender's wife to the extent of $40,000. Consequently, in that case it was apparent that automatic forfeiture of the house would result in a loss to the offender of approximately $40,000 and, since he was a pensioner with a very limited capacity for work as a result of his injuries, the automatic forfeiture would inevitably result in substantial additional punishment.

8 Similarly in DPP v. Phillips,[3] on which on this point the reasoning in Le and Nguyen was based, the facts were such that the court could say with relative certainty that the offender would be unable to resist automatic forfeiture of his home, which was valued at $180,000, and that the amount of penalty which the offender would thereby suffer would far exceed the benefit which he obtained as a result of his criminal activity.

9 Perhaps that may not have been so in R. v. Do,[4] in which it fell to the court to re-sentence an offender after error was detected in the individual sentence imposed on a count of theft subsidiary to the main offence of cultivating a crop of cannabis. In that case, exclusion order applications remained to be determined and, as far as can be told from the report of the case, there was no way of saying how great would be the financial effect of any forfeiture on the offender. But Buchanan, J.A. said that in re-sentencing the applicant he had "regard to the likely forfeiture of [the offender's] interest in his house pursuant to the provisions of s.35 of the Confiscation Act 1997". It may be, therefore, that there was more information before the court than the report discloses.

10 In any event, there is no reason in principle to conclude that a sentencing judge commits a material error by failing to take into account in mitigation of penalty a possibility which the judge is unable on the evidence to quantify or estimate. The point is exemplified by two decisions of the Court of Criminal Appeal as to the extent to which a sentencing judge was to take into account the possibility of forfeiture and pecuniary penalty orders under the Crimes (Confiscation of Profits) Act 1986.

11 In R. v. Allen[5] the Court of Criminal Appeal held that a sentencing judge could not have regard to an application for a confiscation order or pecuniary penalty order unless the application had been determined at the time of sentencing.[6] To the same effect as Allen, in R. v. Pastras[7] the court held that where profits had been confiscated by the time of sentencing, it was appropriate to take that into account but, implicitly, not otherwise. The thrust of the reasoning in each case was that it was not appropriate to take forfeiture order applications into account before the applications were dealt with because it could not be known what the outcomes of the applications would be.

12 Admittedly, the structure of the Confiscation Act 1997 is in some major respects different to the structure of the Crimes (Confiscation of Profits) Act 1986. Under the 1986 Act the court had a discretion in all cases as to whether to order confiscation or the imposition of a pecuniary penalty.[8] Consequently, it could not be said with any degree of certainty before the hearing and determination of an application for forfeiture or a pecuniary penalty order what the outcome of the application would be. Hence, the determinations in Allen and in Pastras that a sentencing judge should not take such an application into account unless it had been determined and the result were known. The 1997 Act introduced automatic forfeiture and automatic pecuniary penalty orders in the case of Schedule 2 offences. Therefore, under the 1997 Act, there are likely to be a lot of cases, such as Phillips and Le and Nguyen, where the effects of automatic forfeiture and pecuniary penalty are able to be assessed by a sentencing judge with relative certainty before final orders have been made.

13 In this case, however, the state of the evidence was such that it was still not possible to make an assessment of the likely effects of automatic forfeiture, and therefore the position was in principle no different to the position under the 1986 Act. Absent some basis in fact on which to assess the likely results for the offender, any attempt to assess the effects was bound to be speculative and consequently of minimal utility.

14 It may be added, generally speaking, that if a sentencing judge is to make anything of the effects of automatic forfeiture, it is incumbent on the offender to adduce evidence of the likely effects of the forfeiture, and, obviously, mere assertions from the bar table or otherwise are not evidence. In the absence of that sort of evidence, there will be no error in a judge declining to take the effects of forfeiture into account.

15 The position may be a little different when it comes to the effects of pecuniary penalty orders. A sentencing judge faced with the task of sentencing an offender for a Schedule 2 offence knows that if application for a penalty order is made the court is bound under s.59 of the Act to make an order requiring the offender to pay the value of the benefits derived by the offender in relation to the offence less any restitution or compensation paid. So, in this case, the judge knew that an application had been made for a pecuniary penalty order and it was alleged that the amount of benefit derived by the applicant was in the order of $460,000.

16 But, in the circumstances of this case, I do not think that it was something which the judge needed to or indeed could have taken into account as a sentencing consideration. Section 5(2A)(c) of the Sentencing Act 1991 may have permitted her Honour to have regard to the fact that a pecuniary penalty order might be made. But only to the extent that such an order was likely to relate to benefits in excess of profits derived from the commission of the offence. Her Honour was prohibited by 5(2A)(d) from having regard to such a pecuniary penalty order to the extent to which it may relate to profits (as opposed to benefits) derived from the commission of the offence.[9]

17 In point of fact, there was no evidence before the judge as to whether any of the benefits derived from the offence were in excess of profits, simply assertions. In the result, there was no way in which the judge could have determined how much regard should be paid to the likelihood that such an order would be made. So, in effect, the only course open to her Honour under the Act was to give the likelihood of the order being made no weight as a sentencing consideration. Since that was the effect of what she did, there was no material error.

18 I add for the sake of completeness that on 16 May 2006 another judge of the County Court set aside the restraining order which had been made in respect of the property, and it is not now liable to be forfeited.[10]

Ground 2 - Instinctive synthesis

19 At paragraphs 37 to 39 of her sentencing remarks, the judge said this:

"The higher courts have made it plain that save in exceptional circumstances, cultivation of a narcotic plant in a commercial quantity requires the imposition of a custodial sentence and usually an immediate custodial sentence.

I find that exceptional circumstance do not exist in your case, however, I do accept that your role overall is considerably less than that of Bruno D'Aloia and that this should be reflected in the length of the sentence imposed.

In all the circumstances, the only appropriate sentence is one of imprisonment..."

20 The applicant contends that the effect of those observations is that the judge conceived of herself as being bound to impose a term of imprisonment and that so to approach the matter was contrary to authority and to the intuitive synthesis approach to sentencing which is the law in this State.

21 I do not accept that contention. There is no error in the judge's observation that, save in exceptional circumstances, the offence of cultivation of a narcotic plant in a commercial quantity requires the imposition of a custodial sentence. The course of authority is plain. In cases of commercial cultivating and trafficking in prohibited substances, an immediate custodial sentence will be imposed unless exceptional circumstances can be shown.[11]

22 So to say is not antithetical to the intuitive synthesis principles of sentencing.[12] It is a recognition of the realities of their application in practice. The detrimental effects of drug trafficking upon society are so grave that, absent exceptional circumstances, it is necessary to impose an immediate term of imprisonment.

Ground 1 - Parity

23 The applicant contends that the sentence of three years' imprisonment imposed on him in respect of Count 2 is far too large by comparison with the sentence of four years' imprisonment which was imposed on his co-offender D'Aloia in respect of the same offence of cultivating a commercial quantity of cannabis. Counsel for the applicant submitted that the applicant's role in the offence was far less serious than that of D'Aloia; that in effect the applicant was simply D'Aloia's lackey who stood to gain little and who in fact gained little from the criminal enterprise. That and his personal circumstances, his age and poor health, are said to place him in a category of culpability far removed from D'Aloia and perhaps also the other co-offenders. And thus, as counsel for the applicant would have it, the small degree of difference between the sentence imposed on D'Aloia and the sentence imposed on the applicant is such as to engender in the applicant a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice has not been done.

24 I do not find those submissions persuasive. No doubt, D'Aloia was the "principal of the enterprise", as the judge found to be the case. But as the judge also found, the applicant knew that he was involved in a "commercial enterprise" and the applicant was involved in it for personal gain, even if not for profit. As the judge put it:

"As far as your offending on Count 2 is concerned, I am satisfied beyond reasonable doubt that your participation in the cultivation was for personal gain. It was conceded by [your counsel] that you were to be supplied with cannabis to satisfy your long term habit. The material before me does not enable me to determine whether you were also to make a financial gain. I cannot be satisfied beyond reasonable doubt that you personally stood to make a profit from the cultivation, even though the number of plants, the fact of two locations, the sophisticated hydroponic set ups, and the bypass of electricity, make it clear that you would have known that it was a commercial enterprise."

25 The judge found too that the applicant was seriously involved in attempting to bring the enterprise to fruition. As her Honour put it:

"The evidence of the informant, Mr Chamberlain, at committal was that as far as the Thomas Street was concerned, Robert Jordano, Bruno D'Aloia and yourself seemed to share equally the responsibility of tending and nurturing the plants. As far as the Beavers Road property was concerned, you and Bruno D'Aloia tended the crop, but in the period that police had you under surveillance you appeared to do more work at the property, possibly because Bruno D'Aloia was away on holidays.

...

...you clearly agreed to, and did in fact, tend plants at both properties. Your role was thus crucial to the commercial cultivation enterprise being able to be brought to fruition."

26 It is true that the applicant did not benefit from his involvement in the criminal enterprise. Happily, the enterprise was detected by police before the 135 plants were ready to be harvested. But that was so also for D'Aloia. None of those who were involved made any money out of the enterprise.

27 I do not accept that the applicant's age or medical condition had anything to do with the level of his culpability. He was 47 years of age at the time of offending, and as the judge observed in her sentencing remarks, he suffered from a range of ailments including a fractured left knee which was productive of some pain and restriction, depression for which he was prescribed medication, esophagitis with nausea and upper abdominal pain aggravated by stress and the consumption of alcohol. But, as the judge found, such dependence as he may have had upon cannabis had not prevented him from holding down a regular job for more than 30 years. Plainly, there was nothing in the applicant's condition which lessened the

degree of his culpability in the fashion considered in Nagy.[13]

28 In the result I do not consider that the difference of one year between the sentences imposed on the applicant and D'Aloia in respect of Count 2 is such as to engender a justifiable sense of grievance.[14]

Conclusion

29 I would accordingly refuse the application for leave to appeal.

30 I agree that this application should be refused for the reasons advanced by Nettle, J.A. in his judgment.

[1] [2005] VSCA 284 at [12].

[2] See also R. v. Do [2004] VSCA 203 at [13]; and DPP v. Phillips [2005] VSCA 112 at [7], [10], [13] and [14], to which Charles, J.A. referred in Le and Nguyen.

[3] [2005] VSCA 112.

[4] [2004] VSCA 203 at [13].

[5] (1989) 41 A. Crim. R. 51.

[6] The headnote to the report asserts that the fact that the property was likely to be confiscated was relevant despite the fact that the offender might be sentenced before the order was made. But to that extent the headnote is wrong.

[7] Unreported, 23 February 1993, BC 9300793.

[8] The essential difference are outlined in DPP v. Tien Duc Vu [2006] VSCA 188 at [13] et seq.

[9] R. v. El Cheikh [2004] VSCA 146 at [9]- [12].

[10] cf. R. v. Thomas [1991] VicRp 60; (1991) 2 V.R. 207 at 209.

[11] R. v. Piercey [1971] VicRp 79; [1971] V.R. 647 at 653; R. v. Bellisimo (1996) 84 A. Crim. R. 465 at 471; R. v. Darwell (1997) 94 A. Crim. R. 35 at 39; R. v. Yerkovic [2000] NSWCCA 281 at [13]; R. v. Lyon and Smith [2001] WASCA 120; (2001) 121 A. Crim. R. 440 at [38]; R. v. Ha [2004] NSWCA 386 at [20]; State of Western Australia v. Andela [2006] WASCA 77 at [17]; Simpson v. R. [2006] NSWCCA 117 at [16]; R. v. Carmody [2006] VSCA 139 at [19].

[12] Markarian v. The Queen [2005] HCA 25; (2005) 215 A.L.R. 213; (2005) 79 A.L.J.R. 1048.

[13] R. v. Nagy [1992] VicRp 45; [1992] 1 V.R. 637 at 640.

[14] cf. Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606 at 613, per Mason, J.; R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402 at 404, per Callaway, J.A.