Thomas v The Queen [2019] VSCA 223

1 On 7 October 2019, this Court heard and determined an application by Bayden Thomas for leave to appeal against sentence. At the conclusion of oral argument, we made orders granting leave to appeal and allowing the appeal instanter. We set aside the sentence originally imposed below and substituted a sentence of, effectively, 'time served.' We said that we would publish our reasons in due course. These are those reasons.

2 On 27 September 2017, the applicant pleaded guilty at a committal mention to a single charge of cultivating not less than a commercial quantity of a narcotic plant (cannabis L.). This was an offence under s 72A of the Drugs, Poisons and Controlled Substances Act 1981 and carried a maximum penalty of 25 years' imprisonment. The offence was said to have been committed over a period between 1 January 2017 and 15 April 2017.

3 The matter first came before the County Court on 14 March 2018. However, it did not proceed on that day, being adjourned by consent. It returned to the County Court on 20 July 2018, and was again adjourned, this time to 29 November 2018. It was further adjourned to 25 February 2019, and on that same day, the applicant finally came to be sentenced. He was ordered to be imprisoned for a term of 3 years and a non-parole period of 18 months was fixed.

4 The applicant then sought leave to appeal against sentence. He relied upon the following grounds:

Ground 1: The sentencing Judge erred in law in taking into account an irrelevant consideration, namely that 'in effect the delay has allowed you the benefit of the prosecution's submission that a disposition other than a custodial sentence is open to the court' - Reasons for Sentence, [55].

Ground 2: The sentence and non-parole period imposed are manifestly excessive having regard to:

(a) the Applicant's early plea of guilty and remorse;

(b) the Applicant's prior good character and lack of any previous convictions;

(c) the Applicant's good prospects for rehabilitation;

(d) the Applicant's age at the time of offending;

(e) the Applicant's poor physical health, psychological condition and age at the time of sentence, which would increase the burden of imprisonment on him;

(f) the delay between arrest and sentencing;

(g) current sentencing practices; [and]

(h) the circumstances of the offences.

5 The applicant was born on 2 October 1948, and is therefore now aged 71. During the period of the commission of this offence, he was aged 68. He was then living with his daughter, and subsisting on a fortnightly old-age pension of $400 per week.

6 On 23 December 2015, the applicant leased a factory in Archer Road, Truganina, which is near Hoppers Crossing.

7 On 15 April 2017, a neighbour observed several individuals who were apparently trying to break into the factory. He called 000. At about 8.00 am, police attended. The neighbour directed them to a black Jeep located just outside the factory. Police spotted and arrested the two men inside the Jeep, who were later charged with dishonesty and weapons offences.

8 Police noted that the remaining offenders were still inside the factory. While waiting for more police to attend and execute a search warrant, they detected a strong smell of cannabis.

9 When additional police arrived, they entered the factory. There, they arrested three other men. They were each charged with burglary related offences.

10 Police searched the factory and discovered a hydroponic cannabis crop, spread out across three rooms. A fourth room contained a number of young cannabis plants. A large amount of cannabis was found within a number of boxes and within a doona cover. It appears that the burglars had cut that cannabis off the plants.

11 Shortly afterwards, and unaware of what was happening, the applicant arrived at the factory. He, at once, admitted to having leased it. He told police that there was cannabis being grown inside. Police arrested him and ultimately seized the following items:

• 39 cannabis plants;
• three boxes and a doona cover containing cannabis;
• 31 globes;
• 16 transformers;
• 31 shrouds; and
• four lights.

12 The applicant cooperated fully with the investigation. He made frank admissions with regard to his offending. He told police that there were 38 mature cannabis plants, and a further 20 young plants located throughout the factory. He admitted to having set up the factory on his own. He said that it had taken him about four months to establish the entire set up.

13 The applicant then gave police a detailed account of how he had harvested the cannabis. He stated that he was not, himself, a user of that substance. He said that he had grown it in order to make money, because he was unable to live on his pension. He admitted to having harvested and sold the cannabis from one room in the factory, and said that the proceeds of the sale had amounted to $10,000. He said that part of that sum had been used to pay rent on the factory.

14 On the plea, counsel for the applicant noted that his client had no criminal history of any kind. He had been a hard worker, and was generally of exemplary character. By reason of his health issues, he had been unable to continue working. The offending had occurred against the background of the applicant not wanting to be reliant on his daughter, who was bringing up her son on her own.

15 It was further noted that the applicant had cooperated fully with police. He had entered an early plea. It was submitted that the plea itself should be taken as an expression of genuine remorse on his part. It was further submitted that the applicant had, albeit belatedly, demonstrated insight into his wrongdoing. In addition, it was noted that his health had deteriorated significantly since the offending.

16 It was noted that the applicant could only walk with the aid of a walking frame. He found it hard to stand for more than five minutes at a time. He also found it difficult to accept that he could no longer engage in any form of employment. He had moved from a hardworking lifestyle to a man who was, essentially, an invalid.

17 Counsel for the applicant submitted that, in these somewhat unusual circumstances, a measure of leniency might be warranted. It was submitted that a wholly non-custodial Community Correction Order ('CCO') would be sufficient to meet all relevant sentencing requirements.

18 The prosecutor who appeared on the plea largely agreed with that submission. He said:

The statement of the Crown position in relation to sentence is as my learned friend has said, which is effectively that it is open to your Honour in the particular and somewhat unusual circumstances of this case to impose a non-custodial sentence.

19 In response to counsel for the applicant's submission, the sentencing judge expressed concern as to whether a wholly non-custodial CCO would be appropriate. He commented upon the applicant's obvious inability to perform community work, and the fact that he plainly would not need to undergo any rehabilitative programs or treatment.

20 The sentencing judge began by summarising the circumstances surrounding the commission of this offence. The sentencing judge observed that the total amount of cannabis seized by police weighed a total of 41.75 kilograms. The commercial quantity for cannabis was 25 kilograms.

21 The sentencing judge noted that the applicant had been fully cooperative with police. His Honour summarised the applicant's admissions, noting that he had told police that the plants would normally take about three months to mature. In addition, the applicant acknowledged that one of the rooms in the factory was ready to harvest. Indeed, he said that he was going to do so the following day.

22 The sentencing judge noted that the matter had resolved to a plea of guilty at a committal mention, which he properly described as 'the earliest time.'[1] There had, however, been considerable delay between June 2017, when he was first charged, and February 2019. His Honour observed that none of that delay had been the fault of the prosecution.

23 The sentencing judge then turned to the applicant's personal circumstances. His Honour noted that the applicant's parents and older brother had passed away. He had no contact with his two surviving sisters. He had been married twice, and from his first marriage, he had had three children. A son had died of a heroin overdose in 1994. A second son, aged 48, and a daughter, aged 46, were present in court, supporting their father.

24 The applicant had grown up in Sunshine. He had been subjected to considerable domestic violence from his father. He had received a decent education, having completed Year 12 at Sunshine West High School. There, he had been the School Captain, and a Tennis, Cricket, and Football Captain. It was said that he had been regarded as 'King of the Kids.'

25 The applicant had conducted a 'milk round' business for some 32 years. He had operated five trucks and employed a number of workers. He had, however, developed an alcohol dependency, which led to the breakdown of his first marriage. After his son died, he moved to Wangaratta in 1996. There, he acquired and ran the Railway Hotel. Subsequently, a second marriage came to an end, and the applicant had paid out a settlement of about $700,000.

26 The applicant's health had subsequently deteriorated. In either 2004 or 2005, he suffered a stroke. As at the date of sentencing, he had heart problems, high blood pressure, high cholesterol, a benign tumour on his kidney, and Type 2 diabetes (and had several toes amputated by reason of that illness). He also suffered from sleep apnoea. Counsel who appeared on the plea tendered some 13 separate medical reports.

27 Ms Carla Lechner, in a psychological report tendered on the plea, diagnosed the applicant as suffering from moderate major depression and anxiety. She said that he had withdrawn from social contact with others, and was no longer emotionally close to anyone.

28 The sentencing judge found on the basis of all of the evidence that the applicant was not in good health. He was required, on a daily basis, to take a large assortment of medications for his various medical conditions. An endocrinologist spoke of his diabetes, and commented adversely upon his dietary habits.

29 A urologist referred to the tumour in the applicant's right kidney as requiring monitoring. He was viewed as having a high risk profile for cardiovascular disease. It was noted that the diabetes had led to ulceration of the feet, requiring specialised footwear.

30 His Honour then set out the various sentencing considerations which he regarded as relevant. He spoke of the need to ensure just punishment, deterrence (both specific and general), rehabilitation, as well as denunciation of the applicant's conduct, and the need to protect the community.

31 The sentencing judge characterised the applicant's plea of guilty as having been made 'at the earliest stage.' He spoke of it as having 'utilitarian value.'[2] He said that he regarded the plea as evidence of the applicant's remorse, and willingness to facilitate the course of justice. He found that the applicant had accepted responsibility for his criminal conduct.

32 His Honour said that he needed to have regard to current sentencing practices. He took into account, in that regard, the statistics to which he had been referred, though he recognised the limited use to which such material could ordinarily be put.

33 The sentencing judge then further noted both the applicant's counsel's submission that a non-custodial disposition would be warranted, and the prosecutor's acknowledgment that, in the unusual circumstances of this case, such a disposition would be 'open.'

34 His Honour had regard to Boulton v The Queen,[3] and to s 5(4C) of the Sentencing Act 1991. He had earlier arranged for the applicant to be assessed for a CCO and, not surprisingly, noted that he had been characterised as suitable.

35 Nonetheless, the sentencing judge said that he felt constrained to act upon a number of pronouncements by this Court with regard to the seriousness of the charge of cultivating not less than a commercial quantity of cannabis. He referred, in particular, to the observations of Maxwell P in Nguyen v The Queen,[4] where his Honour drew attention to the maximum penalty of 25 years' imprisonment for this offence as reflecting the legislature's view of its gravity. General deterrence, therefore, had to be of paramount importance in sentencing for this offence.

36 The sentencing judge observed that in cases involving cultivation of this quantity of cannabis, an immediate term of imprisonment was almost unavoidable. The applicant was no mere 'crop sitter.' His offending involved continuous activity over a three month period. It had resulted in a crop that was more than 1.6 times the commercial quantity. In a quantity based offending regime, that amount of cannabis had to be regarded as significant.

37 Moreover, his Honour ascribed to the applicant's offending a level of sophistication, involving an operation conducted purely for personal gain. All of this suggested that a substantial term of imprisonment would have to be imposed.

38 The difficulty, from his Honour's point of view, lay in the weight that had to be given to the applicant's extraordinarily difficult personal circumstances. As his Honour summed up the matter:

You are now 70 years old. You have poor physical health. You suffered a stroke in the early 2000s. You have a heart condition, high blood pressure, high cholesterol levels and an unstable diabetic condition. You have had two toes amputated. It was stated that you had a benign tumour on one of your kidneys and because of your other comorbidities you are not a candidate for surgery. You take a multitude of medications to maintain your health.

You have been assessed by Carla Lechner, clinical psychologist, as suffering from a moderate range major depressive disorder and a moderate level of anxiety.

The combination of your age, your poor physical health and psychological condition will make your time in custody more burdensome than a prisoner in normal health. I take this factor into account when sentencing you and fixing the final sentence.

You have no prior convictions. You have lived a productive life conducting businesses and supporting dependents to the age of your retirement. In your history to Ms Lechner you stated as follows:

I got the factory in December 2016 but didn't grow anything until September 2017. I don't want to go bankrupt because I don't want to go to gaol. I owe the money. I don't want to die knowing I was bankrupt. It was a sign of failure.

There are two ironies in your case. The first is that your offending was detected because others were breaking into your factory to steal your cannabis crop. The second irony is that you will go to gaol for this offending but you would not have been sent to gaol for simply going bankrupt over credit card debts.

I assess your prospects of rehabilitation as good taking into account your age, your previous good character, your cooperation with the police and your remorse for this offending. I accept that you are the proprietor and operator of this cannabis crop and find that you are at the low end of the mid-range offending in that you have no prior criminal history and that this offending is your only involvement in the growing of a cannabis crop.[5]

39 Shortly thereafter, his Honour turned to the question of delay. He observed:

There has been a delay between September 2017, when you indicated your intention of an early plea and today the finalisation of these matters. A year of that period has been due to difficulties you had in obtaining the relevant medical evidence and materials to respond to the matters raised that apply in s 5(2H) of the Sentencing Act. In effect the delay has allowed you the benefit of the prosecution's submission that a disposition other than a custodial sentence is open to the court.[6]

Your criminal activity was driven by your pursuit of money from the cultivation of narcotic plants. The mitigating factors of ill health and age, good character in the past and remorse for this offending do not overcome the need for a custodial sentence to reflect general deterrence and denunciation of your offending and protection of the community generally.[7]

41 As previously indicated, the sentencing judge then sentenced the applicant to 3 years' imprisonment with a non-parole period of 18 months. He stated that but for the applicant's plea of guilty, he would have imposed a sentence of 4 years and 3 months with a minimum term of 3 years.

42 In support of Ground 1, it was submitted that the delay of 22 months from the date of the applicant's arrest, on 15 April 2017, to the hearing of the plea on 25 February 2019, should have been given greater weight as a mitigating factor than his Honour appeared to have afforded it. This was because, as indicated, throughout that entire period, he had been in a state of anxiety, suspense, and uncertainty. It was also noted that he had been in no further trouble during that time and had, therefore, indicated a strong capacity to rehabilitate himself.

43 Counsel for the applicant submitted that much of the delay had been occasioned by the prosecution's having initially foreshadowed a submission that s 5(2H) of the Sentencing Act should apply to the applicant's offending. That section relevantly provides as follows:

(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless -

...

(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44)

44 The effect of s 5(2H) is to mandate the imposition of a term of imprisonment (rather than a non-custodial disposition), for anyone convicted of a 'category 2 offence.' Cultivation of not less than a commercial quantity of a narcotic plant, contrary to s 72A of the Drugs, Poisons and Controlled Substances Act, is an example of such an offence.

45 Accordingly, if the matter were to be dealt with under s 5(2H), a wholly non-custodial CCO (as counsel for the applicant sought on the plea), would effectively be ruled out unless his situation could be brought within one of the statutory exceptions to that provision. The applicant had endeavoured, throughout almost the whole of 2018, to obtain medical evidence of a kind which would have brought him within the 'substantial and compelling circumstances' exception, as set out in s 5(2H)(e).

46 However, by the time the plea came to be heard on 25 February 2019, the prosecution no longer sought to rely upon, or invoke, s 5(2H). That may have been because it was thought that there were 'substantial and compelling circumstances' within the meaning of s 5(2H)(e). Alternatively, it may be that by that stage, the prosecution had discovered that s 5(2H) could have no application whatsoever to this particular case. That was because that section only came into force on 20 March 2017. That was during the period between 1 January 2017 and 15 April 2017, when the cultivation took place.

47 Section 5(2H) was introduced into the Sentencing Act by s 4(1) of the Sentencing (Community Correction Order) and Other Acts Amendment Act 2016. That Act further amended the Sentencing Act by introducing the following transitional provisions:

162 Transitional provision - Sentencing (Community Correction Order) and Other Acts Amendment Act 2016

...

(2) The amendments made to this Act by sections 3 and 4 of the Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 apply only to offences alleged to have been committed after the commencement of those sections.

(3) For the purposes of subsection (2), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of sections 3 and 4 of the Sentencing (Community Correction Order) and Other Acts Amendment Act 2016, it is alleged to have been committed before that commencement.

48 Accordingly, the applicant's offending did not, as a matter of law, bring into play s 5(2H). When the prosecutor sought to invoke that section, he was unaware of that fact. Indeed, as late as 29 November 2018, the prosecutor continued to maintain that s 5(2H) was applicable to the applicant's case. The applicant's solicitor, who represented him on the various days of the plea hearing, was no better informed than the prosecutor. Nor, it must be said, was this error detected by the various judges who dealt with the matter throughout 2018, all of whom were under the impression that the section did apply.

49 As indicated, by the time this matter came back before the Court on 25 February 2019, the prosecution no longer relied upon s 5(2H). In a document originally dated 8 November 2018, and described as the 'Amended Summary of Prosecution Opening', paragraph 14 (which had invoked that provision and been included in earlier versions of that opening) had been deleted by hand, having been struck out by pen.

50 It seems, therefore, that the applicant had spent a good part of 2018 obtaining and attending appointments for numerous medical reports, in an effort to avoid the operation of a provision that had no application at all to his situation. No doubt, some of that material would have been obtained in any event, but it is scarcely likely that anything like the 13 detailed medical reports that were tendered would have been required for the purpose of an ordinary plea.

51 It is against that background that counsel for the applicant submitted before this Court that the sentencing judge's comment to the effect that the delay had worked, in some way, to the applicant's 'benefit', must be appraised.

52 It was submitted that the applicant had had little choice but to seek a number of adjournments of the plea throughout 2018 in order to avoid what, from his point of view, were the draconian consequences of the section. Ultimately, the prosecution accepted that there had never been any basis for reliance upon that section, and the exercise had been largely futile.

53 It was therefore submitted in support of Ground 1 that the sentencing judge had been quite wrong to describe the avoidance of s 5(2H) as being, in some relevant way, a 'benefit.' It could not be a 'benefit', disentitling the applicant from the mitigatory effect of delay, that the prosecution had eventually worked out that its initial submission had been wholly misconceived.

54 Additionally, counsel for the applicant submitted that the prosecution's eventual concession on the plea that a wholly non-custodial sentence was 'open' did not confer any 'benefit' on the applicant. That was because the views of the prosecuting authorities regarding sentence could not, ultimately, influence the Court in any decisive manner.[8]

55 Counsel who appeared for the respondent readily, and very fairly, accepted that the prosecution case below had proceeded on a misconception as to the law throughout the whole of 2018. She further conceded that this error, on the part of the prosecution, had contributed substantially to the lengthy delay that had been occasioned in having this matter dealt with to finality.

56 Once again, very fairly, counsel for the respondent did not challenge the applicant's submission that the sentencing judge had discounted the weight that he would otherwise have accorded to the delay in question. The judge's comment regarding delay could only have been made if he had been seeking to explain why he considered that less weight should be accorded to delay as a mitigating factor than might otherwise have been appropriate.

57 Indeed, counsel for the respondent went further. She reiterated the submission made on the plea that, in the unusual circumstances of this case, a wholly non-custodial sentence would be 'appropriate.' When asked whether she had any submission to make regarding 'time served' being an appropriate disposition, in the event that Ground 1 were successful, she conceded that given her previous submission regarding the appropriateness of the non-custodial sentence, that the Crown would be content with that order.

58 We should say that counsel for both sides conducted themselves in this application with conspicuous ability.

59 In the written case in support of Ground 2, manifest excess, it was submitted that the length of the 3 year sentence imposed and the 18 month non-parole period were both 'outside the range' reasonably available. It should be noted, however, that it was not submitted that a term of actual imprisonment fell outside that range.

60 The written case noted that there had been an early plea, indicative of remorse. The applicant had no prior convictions, a matter of particular significance having regard to his advanced age. His prospects for rehabilitation were, at the least, very good.

61 The written case referred to the Sentencing Advisory Council's 'Sentencing Snapshot' for cultivation under s 72A between the 2012-13 and 2016-17 financial years. This showed that of the 71% of offenders sentenced to terms of imprisonment during that time, the average sentence ranged from 1 year and 7 months' imprisonment (in 2015-16) to 2 years and 4 months' imprisonment (in 2012-13). The median sentence was 2 years. It was submitted that these figures alone suggested that the 3 year sentence imposed upon this particular applicant was out of kilter with, at least, a number of the sentences imposed in roughly comparable cases.[9]

62 The written case further submitted that the applicant's ill health made it appropriate to moderate general deterrence, notwithstanding the seriousness of the offending.

63 The respondent's written case submitted that this sentence could not properly be regarded as wholly outside the range. The respondent identified a number of features that might be thought to justify the sentence imposed. These included:

• the role played by the applicant, as the principal in the cultivation, as distinct from a secondary party such as a 'crop sitter';
• the fact that the offending took place over a period of several months;
• the fact that the applicant was not a drug user, but engaged in the cultivation solely for gain;
• the quantity involved in the cultivation (more than 1.6 times the commercial quantity); and
• the need for any sentence for offending of this gravity to reflect the importance of general deterrence.

64 It is convenient to deal first with Ground 1. As best we can glean from his Honour's sentencing remarks, he seems plainly to have accorded less weight to the lengthy delay that had ensued between the applicant's arrest and the plea because of the 'benefit' which had accrued to the applicant from that passage of time.

65 For so long as the prosecution sought to rely upon s 5(2H), the applicant was fully justified in seeking to assemble proper material to bring himself within the relevant exception to that provision. We would not describe what occurred as, in any relevant sense, a 'benefit' to the applicant of a kind that could possibly justify giving less weight to delay as a mitigating factor.

66 Of course, delay can be important in the overall sentencing synthesis. In some cases, it can allow for a significant reduction in sentence.[10] That is particularly so where, as in this case, the applicant was suffering severe anxiety and depression throughout the entire period that elapsed from arrest to sentencing.[11] That stress and anxiety was, no doubt, compounded in his case by uncertainty as to whether he would be imprisoned.

67 To the extent that the sentencing judge reduced the weight to be afforded to delay as a mitigating factor in this case, we would respectfully take issue with his reasoning.

68 In our view, specific error has been demonstrated. It cannot be said that this error was immaterial. It vitiated the exercise of the sentencing discretion. It requires the sentence imposed below to be set aside, and the applicant to be resentenced by this Court.

69 In our view, the submission advanced on the plea that the applicant should receive a wholly non-custodial sentence (tied to a CCO) was properly rejected. Even having regard to the mitigating circumstances that were present, there was simply no alternative but to impose an actual term of imprisonment. We note the fact that the prosecution conceded below that a non-custodial sentence was open. We note also that counsel for the respondent reiterated that submission before this Court. In our opinion, however, that submission, if accepted, would be one step too far.

70 The applicant was, accordingly, resentenced by this Court to a term of 225 days' imprisonment (time served). We affirmed all other orders made below.

71 The applicant had been in custody since 25 February 2019. We therefore declared a total of 225 days (including the day of orders) as pre-sentence detention, effectively enabling his immediate release.

72 Had the applicant not pleaded guilty to this offence, we indicated pursuant to s 6AAA of the Sentencing Act that we would have imposed a sentence of 18 months' imprisonment with a non-parole period of 9 months.

73 It is clear from our reasons that we decided this case solely on the basis of specific error. It was unnecessary, therefore, in those circumstances, to say anything further with regard to Ground 2. We expressly refrain from doing so.

[1] DPP v Thomas (Unreported, County Court of Victoria, Judge Carmody, 25 February 2019) ('Sentencing remarks'), [12].

[3] [2014] VSCA 342; (2014) 46 VR 308.

[4] (2010) 208 A Crim R 464.

[8] R v Malvaso [1989] SASC 1363; (1989) 50 SASR 503, 510 (King CJ), Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 ('Barbaro'). More accurately, since Barbaro, there are serious limits upon the role of the prosecutor in putting forward particular sentencing options.

[9] The written case acknowledged that this Court in Nguyen v The Queen [2016] VSCA 198; (2016) 311 FLR 289, 333 (Redlich JA, Tate JA agreeing at 333 [185], 365-6 [272]) had suggested that current sentencing practices for this offence had been inadequate, and should be uplifted in the future. However, it was submitted that this applicant, given his personal circumstances, was not a suitable vehicle for any such uplift.

[10] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 64-6; R v Miceli [1997] VSC 22; [1998] 4 VR 588, 591-2 (Tadgell JA, Winneke P agreeing at 593, Charles JA agreeing at 593).

[11] R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 400-1 [36]-[39] (Maxwell P, Chernov JA agreeing at 403, Habersberger JA agreeing at 404); Bourne v The Queen [2011] VSCA 159, [30]-[32].