Director of Public Prosecutions v Akindoyeni

[2015] VCC 1277

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01102

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER AKINDOYENI

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2015
DATE OF SENTENCE:	14 September 2015
CASE MAY BE CITED AS:	DPP v Akindoyeni
MEDIUM NEUTRAL CITATION:	[2015] VCC 1277

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Smith	Office of Public Prosecutions
For the Accused	Ms A. Stephanides	Doogue O'Brien George

HIS HONOUR: 

1Peter Akindoyeni, on 18 March 2015 the police found 32 cannabis plants growing at the property you were living in at the time.  Unlike most cannabis cultivation cases that come before the courts these days, yours was not a hydroponic setup.  Rather, you had put seeds into the soil in the backyard of the farm house that you were renting and the plants grew. 

2There were both male and female plants, meaning not all plants were going to produce usable cannabis.  Indeed, the 32 plants do not appear to me from the photographs to be particularly robust.  Again, this is in contrast to what we normally see in the courts when there are indoor horticultural setups secretly set up in houses and sheds where there is hydroponic irrigation and artificial lights or artificial lighting. 

3These plants were weighed at 32 kilograms, just over the commercial quantity.  You cooperated fully with the police, showing them some loose cannabis in your house.  You made full admissions to growing the cannabis and in doing so indicated your purpose was to self-medicate for chronic back and sciatic pain.  The prosecution do not take issue with this.  I have material from your treating general practitioner and your treating psychologist about your chronic pain.

4You are now 49 and have never been in trouble before.  That is a matter of significant weight.  You were born in Australia to Nigerian parents.  You still have connections to Nigeria where your father returned to live some years ago.  You remain close to him and your new family or his new family.

5You were educated in boarding schools in Sydney as your father's work at the time took him to Papua New Guinea.  You did some tertiary studies in building and construction.  You are an active sportsman, playing rugby to a very high level.  You have a good work history and this is very much to your credit.  You have family connections who were dairy farmers in the northeast or Goulburn district of Victoria.  Ultimately you became involved in the dairy industry.  Since 2006 you have managed dairy farms and impressed your employers.  You are currently managing a dairy farm, building up the herd and business after the farm was not operating for five or so years.

6Your work is physically demanding.  You did not want to use opiate based medications because of the effects of dulling you with the work that you do and the risks of addiction.  You took up using cannabis to deal with your pain.  Since your arrest, you have gone back to medications prescribed by your general practitioner.  You are on the waiting list at a pain management clinic. 

7I give significant weight in mitigation to your very early plea of guilty.  Your sentence will be shorter and of a different kind because of your facilitation of the course of justice by your immediate and unfaltering indication of a plea of guilty.  You are remorseful and that is important as well.  You have desisted from using cannabis but kept up with your physical hard work as a dairy farmer.

8Your good character and fine qualities have been comprehensively raised in the very impressive testimonials tendered on your plea.  You have impressed people throughout your life and they know you well.  They speak of your integrity, your principles and your practical contributions to your community.  In the local region, you are well respected.  All that leads me to conclude that this offending is out of character and unlikely to be repeated.  I consider you yourself are deterred and will in all likelihood resume your lawful ways.

9Yours is an example of cultivating cannabis in a commercial quantity at the lowest of the scales of gravity.  I consider all sentencing purposes of general deterrence, denunciation and your rehabilitation can be met by the imposition of a community corrections order.  No one argues for anything else.  You do not need court ordered programs.  You are appropriately using the health system for treatment for physical and psychological programs and that will no doubt continue.

10Punishment is the conviction that will occur and unpaid work. That aspect, the unpaid work, will not be easy given the long hours and seven a day week that is involved in your job. Because of the particular season at the moment, calving, I will not order your community corrections order to commence now but to commence in three months' time, pursuant to s.38(2) of the Sentencing Act.  We also have to deal with you for unregistered firearm.  It seems you found it on the property when you moved in and did not deal with it appropriately but just left it there.  I intend to impose one aggregate community corrections order for both offences.

11Can you please stand, Mr Akindoyeni.  Committing the crimes of cultivation of a narcotic plant in not less than a commercial quantity and being in possession of an unregistered firearm, you are convicted and placed on an 18 month community corrections order which will commence on 14 December 2015.  Within the 18 months you are to do 180 hours of unpaid work. 

12Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of six months' imprisonment together with a three year community corrections order.  The prosecution have sought that you provide a forensic sample, that is, a scraping from your mouth so that your DNA can be kept on a database. 

13Given the circumstances of this offending, given your lack of prior convictions, I do not consider it is in the interests of justice and I decline the application to order that you undergo a forensic sample or provide a forensic sample.  The other orders sought by the prosecution relate to the disposal and forfeiture of certain items and I intend to make those orders.  They will be done now.  You can be seated.  A document will be produced.  If you sign it, that will bring the matter to an end.

14OFFENDER:  Thank you, Your Honour.

15MS SMITH:  Thank you, Your Honour.

16MS STEPHANIDES:  As Your Honour pleases.

17HIS HONOUR:  While that is being done, Ms Smith, I am very impressed that you were able to take notes on your computer as you go.  I do not know that every judge will be as easy going about the noise of the ‑ ‑ ‑

18MS SMITH:  Yes, Your Honour.

19HIS HONOUR:  Are you able to get a- - -

20MS SMITH:  Quieter.

21HIS HONOUR:  ‑ ‑ ‑ keypad, I think they come with almost rubberised things.  We are doing the same for judges.  They type away and create a hell of a racket and we are giving them apparently new keypads so they are ‑ ‑ ‑

22MS SMITH:  I'll endeavour to find one.

23HIS HONOUR:  Did not trouble me but I just hope you do not walk into something and all of a sudden the great technological advance that you have made is not cut off at the knees.

24MS SMITH:  Certainly with sentencing remarks, Your Honour, it's faster for me to type than it is to hand write and easier to read.

25HIS HONOUR:  Absolutely.  More in a trial, I am thinking.

26MS SMITH:  Yes, Your Honour.

27MS STEPHANIDES:  Might I be permitted to leave the Bar table to assist my client in signing that, Your Honour.

28

HIS HONOUR:  Yes, when we get this document done, yes. 

Mr Akindoyeni, the order that I have made lasts for 18 months, will commence on 14 December 2015 and end on 13 June 2017.  So I am about to run through the conditions that apply to everyone on one of these orders and then one that applies to you specifically. 

29So the mandatory terms that apply to everyone are firstly, and this is important, you must not commit any other offence for which you could be imprisoned during the time that the order is in force.  So do not grow cannabis or commit any offence that would be punishable by imprisonment in the 18 months from 14 December until 13 June.  But the way forward of course is to commit no further offences like you have for all of your life.

30You must comply with any obligations or requirements under the sentencing regulations.  I am told that will be they will take a photograph of you or something so they can work out who you are when you go on work trips or whatever.

31You must report to and receive visits from the Office of Corrections.

32You must report to the community corrections centre within two clear working days of this order starting.  So within two days of 14 December, you have got to get down to the Shepparton community correctional service in Wyndham Street there at report in.

33You must let the community corrections officers know within two clear working days if you change your address or job so just keep them informed of what you are doing. 

34This might apply to you.  You must not leave Victoria without first getting permission to do so.  All right, going back to Sydney for a trip.  Certainly going over to Africa.

35You must obey all lawful instructions and directions from the Office of Corrections.

36Now, what applies to you is this 180 hours of unpaid community work over the 18 months.  So it is 18 months.  Someone like you will get 180 hours done pretty quickly if you are working but you have got the 18 months to ensure that it - these orders are not meant to put you out of work or prevent you from doing your tasks but if you are allocated a time to be at a workplace, you have got to be there on time and you have got to do the work until you are finished. 

37Now, I have not had you assessed to see whether there is a need for any special work arrangements because of your back but you work it out with them.  You are obviously doing hard physical work and I would imagine it would not be nearly as hard, the unpaid community work.  That is what you are doing but if your back is playing up, well get a medical certificate and they will give you something later.  Just make appropriate arrangements. 

38Sign that if you consent and as I say, it will bring the matter to an end. 

39OFFENDER:  Thank you, Your Honour.

40MS STEPHANIDES:  At this juncture, might I be given permission to leave the Bar table?

41HIS HONOUR:  Yes.

42MS STEPHANIDES:  Thank you, Your Honour.

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HIS HONOUR:  Head down the back.  Thank you.  Take a seat,

Mr Akindoyeni.  All right, if you breach that order, the mercy that is being shown today will not be repeated.  This is your chance.  I do not expect to see you again.  There is disposal orders for the things connected with the cultivation and a forfeiture order relating to the firearm.

44MS SMITH:  Yes, Your Honour.

45MS STEPHANIDES:  As Your Honour pleases.

46HIS HONOUR:  There is nothing further?

47MS SMITH:  No, Your Honour.

48MS STEPHANIDES:  No, Your Honour.

49HIS HONOUR:  Thank counsel for their significant assistance enabling this matter to be done much quicker than used to be the case.  Thank you.

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