Director of Public Prosecutions v Alexiadis
[2019] VCC 1807
•30 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-00575
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TERRY ALEXIADIS |
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| JUDGE: | HIS HONOUR JUDGE GEORGIOU |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 June 2019 |
| DATE OF SENTENCE: | 30 October 2019 |
| CASE MAY BE CITED AS: | DPP v Alexiadis |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1807 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Cultivate Cannabis L in a quantity not less than a commercial quantity – Justice Plan
Legislation Cited: s.72A Drugs Poisons Controlled Substances Act
Cases Cited: R v Verdins (2007) 16 VR 269, R v Anderson [1981] VR 155
Sentence:Imprisonment 21 days and Community Corrections Order for 2 years with Justice Plan Condition
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms P. Thorp | Office of Public Prosecution |
| For the Accused | Mr P. Dunn QC with Mr L Howson | Milides Lawyers |
HIS HONOUR:
1Terry Alexiadis, you have pleaded guilty to one charge that at Frankston on
6 September 2017, you cultivated a narcotic plant, namely Cannabis-L in a quantity that was not less than a commercial quantity applicable to that narcotic plant. The maximum penalty for this offence is 25 years' imprisonment.2The circumstances of your offending are set out in the summary of prosecution opening on the plea, which was tendered and marked Exhibit A.
3In summary, on 30 January 2017, as a result of a complaint to the Frankton City Council concerning a barking dog, council officer Nicholas Maranon attended at your premises at 30 Drysdale Avenue, Frankston. This visit set in train a number of attendances at those premises on 31 January 2017, 13 February 2017 and 5 September 2017.
4On 13 February 2017, Mr Maranon again attended the property and spoke to a man who gave his name as Adrian Price. Price gave his mobile number as 0474 040 763. It later transpired that you were in fact the person who gave his name as Adrian Price. The number given to Mr Maranon is your phone number.
5On 5 September 2017, Mr Maranon again attended at 30 Drysdale Avenue, Frankston. This time he noticed the strong smell of cannabis coming from a shed on your premises. Police were notified. When police attended they smelled cannabis and saw wiring that they believed was an electrical bypass system.
6On 6 September 2017, police again attended the property to execute a search warrant under the Drugs, Poisons and Controlled Substances Act 1981. As no one was present access was gained through an unlocked bathroom window.
7Police searched the premises and discovered the following items:
(1)large crop consisting of 35 fully grown plants and 34 infant plants in the shed;
(2)electrical bypass system in the roof cavity of the house with wiring, lighting systems and transformers attached to the system located throughout the house;
(3)a ‘Sweet Leaf’ extractor machine used to manufacture cannabis oil from plant material;
(4)numerous bags and jars containing green vegetable matter;
(5)handwritten notes addressed to ‘Tez’ on the use of cannabis oil in cancer treatment;
(6)two digital safes;
(7)three Apple iPhones, an Asus desktop computer with a Seagate hard drive attached, an Apple iPad;
(8)$8,550 in $50 denominations;
(9)a Victorian drivers licence in the name of Terry Alexiadis;
(10)a book called Cannabis Grow Bible;
(11)a black container containing seeds.
8The electrical bypass was removed from within the room cavity.
9On 7 September 2017, police again attended the property and seized the following items:
(1)one Fieldpiece electronic scale and carry bag;
(2)three vacuum pumps;
(3)13 assorted machine parts;
(4)five metal shelves;
(5)one Powertech transformer;
(6)one ‘Across International’ vacuum oven;
(7)two glass tubes.
10The energy account belonging to the property was under the name RMB Sales Pty Ltd. Police called the number on the account and spoke with
Suzanne Murphy. Ms Murphy is your aunt and the owner of the property at
3 Drysdale Avenue, Frankston.11She told police that you and your wife, Zeina Rajab, lived at the property.
Ms Murphy later told police that Zeina and you had separated and that you were the only person living at the property in the preceding few months. Police spoke to Zeina Rajab who told them that she had moved out of the property around April 2017.12One of the mobile phones seized had emails sent from an email address, [email protected], by Adrian from Australia to a wholesaler of hydroponic equipment overseas. The owner of Hydro 101, a local hydroponic shop told police that this email was not associated with him.
13The number of the mobile phone from which the emails were sent was 0424 724 330 and was registered to Mia Sharp of 32 Drysdale Avenue, Frankston. There was no such person at 32 Drysdale Avenue. It is alleged by the prosecution that the emails were sent by you. This is a matter which you dispute.
14Police enquiries show that you left for Morocco on 1 September 2017 and returned to Australia on 28 October 2017 with your new wife, Marwan Lagrana. You were arrested at the Melbourne Airport and taken to Melbourne West police station where you made a ‘no comment’ interview. No other person has been charged in relation to this offending.
15The quantity of cannabis being cultivated was 35 full grown plants weighing 127.5 kilograms and 34 infant plants weighing 34.2 grams. Dried cannabis was also found at the premises during the search which weighed 7.1 kilograms.
16Botanist Kylie Slattery prepared an age statement in relation to the plants and noted that the plants were aged between six and 15 weeks post propagation as at the date of her examination on 11 September 2018.
17A commercial quantity of cannabis is 25 kilograms or 100 plants. Thus, whilst the total number of plants being cultivated was less than the commercial quantity, the weight of plant you cultivated was 5.38 times the commercial quantity. A large commercial quantity is 250 kilograms by weight.
18Mr Dunn, who appeared with Mr Howson on your behalf, submitted in relation to your offending that you became engaged in growing cannabis in the shed at your home because you owed money to your drug suppliers. It was submitted that the persons to whom you owed money organised the electrical bypass and hydroponic set up. It was further submitted that due to your limited intellectual ability, you were taken advantage of by those drug suppliers. Mr Dunn relied on the fact that for some of the time the hydroponic crop was being cultivated you were absent overseas.
19He submitted that you were not the organiser, nor were you to derive any profit from the cannabis that was growing. This was, it was submitted, a means of repaying your debt to the persons who supplied you with cannabis. Your role, it was further submitted, was the provision of the premises from which the cannabis was cultivated.
20The learned prosecutor, Ms Thorp, accepted that there was at least another person involved in the offending. She also accepted that you were indebted to your drug dealer. Ms Thorp submitted, however, that you were involved in the setting up of the system and the growing of the plants. She further submitted that you were the author of the emails that sought to procure cannabis seeds, equipment for a Sweet Leaf extractor and other items used to cultivate cannabis. Further, it was pointed out that the Cannabis Grow Bible was found in the house and not in the shed.
21As to your level of involvement, the prosecution was not able to say. Whilst the matters raised by the learned prosecutor may give rise to a level of suspicion as to the extent of your involvement with the crop, I cannot be satisfied of those matters beyond reasonable doubt. There was no evidence to establish those matters and I agree with Mr Dunn that it would be speculation to do so. Similarly, without evidence, I cannot be satisfied of the extent of your role.
22I propose to sentence you on the basis of the objective facts and the matters about which no issue was taken. These are as follows: First, the weight of the cannabis cultivated totalled approximately 134.94 kilograms. Secondly, the cannabis was growing in a shed on your property. Thirdly, you were aware of this. Fourthly, a bypass electrical system and hydroponic system was set up in the shed. Fifthly, there is no evidence that you set up the hydroponic system or the electrical bypass or that you were to derive any reward upon the sale of the cannabis. Sixthly, that another or others were involved in the cultivation. Seventhly, that you were in debt to the person who supplied you with cannabis that you used. Eighthly, that you have a lengthy history of cannabis use.
23Your criminal record produced by your counsel records that on 15 November 2005, you appeared at the Melbourne Children's Court charged with the possession of cannabis, you were then placed on an undertaking for three months.
24I also note that the day on which you were charged with the cultivation, namely
6 September 2017, is a day on which you were not in Australia. Accordingly, insofar as the charge itself is concerned, the cultivation can only be on the basis that on that day, you were growing cannabis at your premises.25When regard is hard to the reports of psychologist, Alison Mynard, the suggestion of the involvement of others is made all the more probable. Similarly, when regard is had to the fact that you left Australia with no return date booked and did not return until 28 October 2017, the involvement of others is again made all the more probable. It is likely that another or others had to tend the crop during the period you were away. In any event, the involvement of others or another is accepted by the prosecution.
26I turn now to your background and personal circumstances. I will set out in some detail what can only be describe as an extremely dysfunctional and traumatic background. You are now aged 30. You are married to Marwan Lagrana and you have two children.
Your oldest child was born in August 2018 and you have a son who was born recently in October 2019.27Your wife is from Morocco which is where you married in April 2017.
You returned to Australia after marrying and it would seem that arrangements were then made to have your wife join you. You again travelled to Morocco on 1 September 2017 and together with your wife, came to Australia on 28 October 2017.28You were born in Melbourne. Your mother, Catherine Alexiadis was then 19 years of age. Your father, George Alexiadis was aged 24. Theirs was an unhappy relationship and was marked by your father's physical and emotional abuse directed towards your mother. Your mother sets out your unhappy history in what was referred to as ‘reference’ dated 5 June 2019. That document is part of Exhibit 3. It is more in the nature of a letter to the court. Your mother was present at court during your plea hearing.
29Your parents separated when you were six months of age, your mother taking you with her. Your mother stated that after she separated from your father, you and she spent some time with her parents in the country town of Merton, before she finally got a place of her own in Heidelberg. She commenced a relationship with John Geourgelitis. She described that relationship as a loving relationship and that you and John formed a strong bond.
30However, in 1990, John was diagnosed with HIV following a blood transfusion where he received infected blood. This diagnosis impacted upon and caused great difficulties in the relationship between your mother and Mr Geourgelitis. Whilst still with him, your mother formed a relationship with another man by the name of Housam Zayat and when this was discovered, Mr Geourgelitis shot and killed himself. You were then aged four.
31Your mother suffered a nervous breakdown following his suicide and she also attempted suicide. She was hospitalised. You were then looked after by your uncle, your grandmother and others until your mother was well enough to look after you again.
32Your mother continued her relationship with Mr Zayat and, as a child, you developed a close relationship with him. In 1993, you commenced at Fairfield Primary School. It was noticed that you were very slow to speak, you were stuttering and engaging in self-patting behaviour.
33In 1994, Mr Zayat was gaoled. Your mother states in her letter that this 'tipped you over the edge.' Your mother was struggling with her own mental illness and was having difficulty coping with you with your learning difficulties. She has in fact had numerous stays in psychiatric wards as an inpatient.
34Following Mr Zayat's gaoling, your mother took you to live with your grandparents at Merton. You attended Merton Primary School. Your mother, when not in hospital, would attend Merton Primary School to help you with your lessons.
35In 1995, Merton Primary School closed down. You were transferred to Alexandra Primary School. Because of your stuttering and head patting behaviours, you would often get bullied on the school bus. Teachers at the school suggested that you be assessed for learning difficulties. You were assessed by a psychologist and diagnosed with Attention Deficit Hyperactivity Disorder and Post-Traumatic Stress Disorder. The school arranged for a psychologist to see you each Friday.
36In addition to the bullying you were suffering, your grandmother, who did not understand your problems, was constantly yelling at you and administering corporal punishment. Once a month, for a weekend, you were sent away to stay with carers so that your family could have some respite. You were often placed with strangers.
37In 1997, your grandfather to whom you were close developed dementia and died. Following his death, your mother again became unwell and you went to live with your mother's brothers and sisters for approximately three months until she was well enough to help look after you.
38In 2001, at the age of 13, you commenced at Alexandra Secondary College. You still had learning difficulties and were still the target of school bullies.
Your grandmother and mother arranged for you to transfer to Mansfield Secondary College in the hope that things would be better for you there. However, things did not improve.39In 2002, at the age of 14, you were expelled from Mansfield Secondary College and were deemed unmanageable. You had by this time commenced to use cannabis. Following your expulsion, your mother was again admitted to a psychiatric unit. Your grandmother sent you to live with your father in Queensland. According to your mother, your father would often belt you and call you names such as 'retard.' You were with him in Queensland for some 11 months before your mother arranged for your return to Melbourne to live with her and Mr Zayat, who by now had been released from gaol.
40It would appear that you completed Year 8 at Fawkner Secondary College although the school advised that it would be inappropriate for you to commence Year 9.
41At around this time, Mr Zayat was murdered. Your mother again suffered a breakdown and was hospitalised. You were placed in the care of the Department of Health and Human Services before they placed you with your aunty, Suzanne Murphy, in Alphington. Ms Murphy is your mother's half-sister and was called to give evidence on your behalf at the plea hearing. Ms Murphy confirmed the details of your background. She added that when you were four months old, your father took you to her asking her to care for you as your mother could not cope. On another occasion, she discovered that your father had put you up for adoption, again because your parents were not coping.
42Ms Murphy noticed your difficulties with reading and writing and an inability to stay focused for more than five to 10 seconds. Ms Murphy stated that when you were 15 or 16, she arranged for you to enrol at a course at Preston TAFE. You did so but because you were unable to read or write, that course did not work out.
43Ms Murphy owned and managed a business manufacturing and retailing children's bedroom furniture. She tried to employ you on the manufacturing side of the business but because you were on medication, you could not work with the machinery. She then put you on as a truck jockey delivering furniture but you had no patience for that work and you were not able to deal appropriately with the customers whose purchased items you were delivering.
44With respect to your 2011 imprisonment for drug trafficking and other related offences, Ms Murphy stated that you did not cope in gaol and suffered a breakdown. When you were released, you could not bear to be touched and would lash out at people. You would often go into a foetal position when upset.
45Following the successful appeal of your sentence in relation to those matters, you went to live with Ms Murphy. She had built a unit at the back of her house for you in Alphington.
46In April 2013, at the age of 24, you married Zeina Rajab. You converted to Islam in order to marry her. The two of you lived at your Aunty Suzanne's unit in Alphington. Unfortunately, Zeina was also a drug user.
47In September 2016, you and Zeina moved to the house at 30 Drysdale Street in Frankston which had been purchased by Ms Murphy. Ms Murphy stated that she had furnished the house and tried to teach you and Zeina how to look after yourselves. Your relationship with Zeina fell apart, according to Ms Murphy, when Zeina miscarried.
48However, during your time together in Frankston, you were both using cannabis. According to your instructions to your counsel, you and she were amassing significant debts to your drug dealer. When she left, her debts became yours.
49Your aunty continued to try and assist you in many aspects of your daily life including the paying of bills and the fundamentals of running a house and keeping it clean. She also gave evidence that you were prescribed the antidepressant drug Mirtazapine to assist with your anxiety and depression and, to assist you to sleep.
50Ms Murphy's brother, your uncle, would often stay with you in the house in Frankston. He taught you to use Skype and it was through the internet and Skype that you met your now wife.
51Your aunty assisted you with all of your travel plans to Morocco. She arranged for your passport and tickets. In Morocco, you were assisted by your future wife and her family. Ms Murphy assisted with the arrangements to get your wife to Australia. You have been living with your aunty since being bailed for these matters. It is a condition of your bail that you live with her. Your wife and children also live with you and Ms Murphy.
52Your aunty commented generally on your anxiety and other mental health issues. She is well aware, having known you your entire life, that your level of intellect and comprehension is not good. She also stated that you do not like confined spaces and do not like doors being shut. She gave evidence that you have always patted yourself on the head when anxious and have always stuttered. She will continue to support you and your young family.
53I have also had regard to the reference from your wife, who is also supportive of you and I note that she has attended court at each of your appearances before me.
54You have admitted a number of prior convictions including convictions for drug related offending. The last of those occurred at the Maroochydore Magistrates' Court on 29 August 2017 in relation to charges of failing to appear, possession of dangerous drugs and utensils or pipes for use. The drug offences occurred in December 2015 and the fail to appear on 8 January 2016. On all charges, you were fined without conviction.
55The most serious of your prior convictions relates to three counts of trafficking of methylamphetamine, amphetamine and steroids, a number of drug possession charges and cultivating cannabis. On appeal to this court in relation to those matters, you were sentenced to an aggregate penalty of 180 days, which was time served as well as receiving a small fine.
56These are matters of concern, particularly as to the question of your prospects for rehabilitation and the question of your character.
57I turn to the reports of Alison Mynard, clinical psychologist. Three reports were provided to the court. Exhibit 5 is a report dated 27 May 2016. The reports dated 10 November 2017 and 5 June 2019 are Exhibit 4. It is necessary for me to set out Ms Mynard's reports in some detail.
58Her first report, dated 27 May 2016, predates your offending and was obtained by your solicitor to assist you in preparing for a disability support pension application. Ms Mynard stated that in the year before the report was written, she carried out comprehensive assessments and found you to suffer from a range of complex mental health issues and an intellectual disability with extremely severe functional impacts. You had counselling and assessment sessions with her in 2015 and 2016. She also spoke with your mother on one occasion.
59A number of psychological tests were administered. Ms Mynard took a childhood and educational history and noted many of the matters concerning your background which I have already set out in these reasons. She noted that your mother suffered from severe psychiatric disorders and was hospitalised regularly.
She reported that you are illiterate and that you have never been able to recite the days of the week, months of the year and you do not understand basic facts of history or world facts.60In May 2016, you met the DSM criteria for Generalised Anxiety Disorder and Major Depressive disorder. You also met the diagnostic criteria for
Post-Traumatic Stress Disorder with strong indications of a Complex Trauma disorder. The trauma stemmed, it would seem, from the numerous times in your childhood you were exposed to frightening experiences where you felt fearful and horrified, and helpless at the abuse you suffered and witnessed.
You also experienced trauma in your adult years.61You were diagnosed with Attention Deficit Hyperactivity Disorder when you were approximately seven years of age and in adulthood, you met six out of six main indicators of ADHD. In Ms Mynard's opinion, you continued to reach diagnostic criteria for ADHD combined type. Ms Mynard noted you displayed a stutter when speaking to her. You also displayed pressured speech.
You reported that your stuttering becomes worse with anxiety.62In 2016, you told Ms Mynard that you smoked cannabis on a daily basis in an attempt to manage your symptoms of anxiety, depression, Post-Traumatic Stress Disorder and stuttering. You reported using an ounce of cannabis every week to a fortnight. You stated that you do not suffer nightmares when you smoke cannabis and at times, when you reduce your cannabis use, the nightmares and insomnia increased.
63Ms Mynard administered the Wechsler Adult Intelligence Scale, (WAIS-IV), and assessed your overall IQ at 63, which is found to be in the intellectual disability range. She considered that the results of that testing were reliable and represented a valid measure of your functioning.
64Ms Mynard also noted that you suffer memory problems. You could not recall appointments and you frequently missed appointments with others. Ms Mynard assisted you to attend her appointments by calling you the day prior and also on the morning of your appointment, approximately one hour prior to the appointment. You were unable to recite in order the days of the week or the months of the year. You have little or no concept about days of the month.
Ms Mynard is of the opinion that this is a consequence of a combination of your intellectual disability, low educational achievements and memory problems.65Ms Mynard noted that you were not able to concentrate on what she was saying for more than a few minutes and that information needed to be explained to you in simple and succinct terms. You need concrete instructions one at a time to be able to implement any actions and you often need to be reminded many times of those instructions.
66She stated that you have problems following more than one instruction at a time and you have trouble figuring out any solutions yourself. Ms Mynard reported that you become anxious and upset, hiding your head and covering your face as you become easily frustrated trying to take any information in.
67Of significance, Ms Mynard noted you have little capacity for complex problem solving. You demonstrated little ability to think ahead about consequences. You got easily confused about situations around you and that you were unable to think through alternative courses of action.
68It was also reported by her that you have difficulty in comprehending conversations and that you need to have things explained many times in order to understand. Your processing of information is very slow and given your illiteracy, writing things does not help because you are not able to read the information.
69Your verbal skills are low and you struggle to get basic sentences out due to your stuttering and high anxiety. Ms Mynard stated that you had severe difficulty in communicating with others and have difficulty regulating yourself, often getting into arguments, misunderstandings and then cutting off contact with the others as you frequently do not understand what others' intentions are.
70You have been in altercations in years gone by with work people and you have not spoken to family members for years due to arguments and your inability to negotiate these to resolution.
71Your adaptive functioning was formally assessed using the Adaptive Behaviour Assessment System. The findings in May 2016 reveal that your overall level of adaptive functioning is within the extremely low range. In comparison with other adults your age, you present with severe difficulties with general everyday living skills. Significant deficits in adaptive functioning across each domain assessed were evident including conceptual, social and practical daily living skills.
72In May 2016, Ms Mynard made the following diagnoses: Major Depressive Disorder, Generalised Anxiety Disorder, Post-Traumatic Stress Disorder, Attention Deficit Hyperactivity Disorder, Stuttering Disorder, substance dependence (cannabis), and intellectual disability. It was Ms Mynard's view that you were not capable of working and she believed that your functioning was not likely to change. Your condition has not changed from when she first saw you in 2013.
73I turn to her report of 10 November 2017. On 10 November 2017, Ms Mynard again saw you for the purpose of a report. You were in custody and she spoke to you by way of a video link interview. Ms Mynard was asked to provide a report in relation to a bail application. I will not repeat all that is contained in the report as much of it is similar to the findings set out in her first report. You told her that whilst in custody, your nightmares increased considerably. You were having several nightmares each night with very disturbing content. You had not been able to sleep much since being on remand and you were both fearful of sleeping and your nightmares keep waking you in a highly distressed state.
74It was Ms Mynard's opinion that your presentation was very concerning.
You presented in a distressed state with difficulty making eye contact, your head in your hands, constant ringing of hands, grabbing at your hair and stuttering constantly. You presented as confused, disorganised and unable to think clearly. You reported finding it very difficult to be around other inmates and you would quickly obtain your food at meal times and return to your cell. You presented as highly anxious, very distressed and depressed. Ms Mynard was of the view that your mental health would have deteriorated significantly had you remained in custody on remand.75I turn to Ms Mynard's report of 5 June 2019. In that report, Ms Mynard stated that she had seen you for 15 counselling sessions between May 2015 and April 2019. She noted that after separating from your first wife in early 2017, you went to Morocco and married under Muslim law. You and your wife had a daughter in mid-2018. You could not remember the baby's date of birth.
You reported difficulties with the baby.76You told Ms Mynard that given your difficulties with asthma and health issues from smoking cannabis over many years, you researched how to extract oil from cannabis and that you would use oil instead of smoking it. She did not elaborate on what you meant by ‘research’, however I bear in mind that you are illiterate and suffer from an intellectual disability. You also told Ms Mynard that since being arrested for the current offence, you stopped using cannabis for fear of doing the wrong thing by the law. You explained that your anxiety had increased significantly and that your general practitioner had put you on
anti-anxiety tablets.77In relation to your current offence, you told Ms Mynard that you hadn't been growing the cannabis. You told her that you were scared that if you told the authorities who was growing the cannabis, you might be threatened by the person from whom you had been buying cannabis. You explained that you had been buying cannabis from that person and you owed him quite a bit of money. You said that the dealer asked if he could use the room and you told him he could. You said you stayed away as much as possible from the house.
78Ms Mynard noted that you were highly anxious and worried about your court case and that you appeared exhausted from a lack of sleep.
79In her opinion, you are an extremely vulnerable individual and would find prison significantly more onerous than other people who do not suffer your mental health issues and disabilities. In her opinion, at the time of your offending, you continued to suffer from all of the psychological disorders she had previously found as well as your intellectual disability. She considers that your disorders would have all been consistently present for the whole of your life and are unlikely to change or improve in the short term.
80Ms Mynard said you have a very severe case of anxiety and stuttering and this also causes severe depressive symptoms. Your intellectual disability, she said, is in the mild range, however you still suffer from an intellectual disability and this significantly impairs your reasoning skills, your ability for clear judgment and your ability to make rational choices. It is also her opinion that you have a very limited ability to make calm and rational choices in your life. You have only been focused on 'getting through' and survival rather than thinking through your decisions. On the basis of what you told her concerning your offending, it appeared to her that you were quite desperate with a drug debt and felt threatened and unsure about how to manage that situation with the dealer.
81With this highly stressful situation, Ms Mynard stated that you appear to have been even more impaired in your judgment than you already were, allowing the dealer to use your room or shed to grow the cannabis. She believes that you were disinhibited in your actions, not able to think of any other way to pay back the dealer the money owed.
82As to your prospects of rehabilitation, Ms Mynard considered that they are moderate to low. You have demonstrated an ability to abstain from cannabis, however, this has increased your mental health issues. It is clear that you have extremely high needs. Ms Mynard stated that with your new baby and wife as motivation for change, if given the opportunity, you will try your best to engage with services and improve the quality of your life thus reducing your risk of reoffending. Of course, since she wrote the report, you now have a second child.
83Section 5(2H) of the Sentencing Act relevantly provides '[I]n sentencing an offender for a category 2 offence,' which the offence to which you have pleaded guilty is, '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… (c) the offender proves on the balance of probabilities that (i) subject to subsection (2HA), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender's culpability; or (ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.'
84Your counsel submitted that you fall within the two exceptions created by
sub-s.2H(c)(i) and (ii). The prosecution disputed that submission. I am not able to find on the balance of probabilities that at the time of the commission of the offence, you had impaired mental functioning that is causally linked to the commission of the offence and which substantially reduced your culpability.
On your instructions to your counsel and what you told Ms Mynard, you became involved in the cultivation in order to repay your debt to your supplier. In my opinion, this was a conscious and rational albeit a very poor choice that you made. You understood that by allowing the cultivation of cannabis on your property, your debt would be reduced or wiped out. You stood to gain from the reduction of your debt. I note that you have a previous conviction for cultivating cannabis and you would have known that it was against the law to cultivate cannabis.85Whilst your impaired mental functioning may have reduced your culpability, I do not find that it substantially reduced your culpability in the commission of the offence. However, having regard to the reports of Ms Mynard and the evidence given by your aunty, I am of the view that you have proved on the balance of probabilities that you satisfy the exception referred to at sub-s.2H(c)(ii). I find that for the following reasons:
86First, you have suffered from and continue to suffer Post-Traumatic Stress Disorder, Attention Deficit Hyperactivity Disorder of the combined type, Major Depressive Disorder, recurrent episode severe, Generalised Anxiety Disorder, severe with Panic Disorder, Child Onset Fluency Disorder, that being a reference to your stuttering, Cannabis abuse disorder, currently in remission, and mild intellectual disability.
87Secondly, Ms Mynard is of the opinion that you are an extremely vulnerable individual and that you would find prison significantly more onerous than would others without your mental health issues and disabilities.
88Thirdly, in the past when you have been remanded in custody, you have suffered panic attacks which led to asthma attacks and difficulty in breathing.
89Fourthly, your stuttering becomes much worse in custody and you struggle to communicate at all with anyone being unable to get your words out.
90Fifthly, your low intellectual functioning means that you will have great difficulty navigating the system to get support and communicate your needs to the people around you.
91Sixthly, in Ms Mynard's opinion, there is no question that your mental health will deteriorate significantly to the point that you will not be able to cope very well at all.
92Seventhly, in Ms Mynard's view, in a high stress environment such as a prison, you will deteriorate and feel very unsafe to a point where it is beyond your personal resources to cope.
93I also consider that given your intellectual disability, your difficulties in understanding others, your behaviours such as stuttering and self-patting, which I have observed myself in your appearances before me, you as an already vulnerable person will be an even more vulnerable person in the prison environment. I note also, as set out in Ms Mynard's first report, that you have problems regulating yourself, often getting into arguments with others.
94Thus, in my view, you have established on the balance of probabilities that you have impaired mental functioning that would result in your being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. Accordingly, s.5(2H) has no application to the sentence
I impose.95For completeness, I add that according to the Justice Plan prepared on
3 October 2019 and filed with the Court, you were issued with a statement on 14 August 2019, confirming that you have an intellectual disability in accordance with the Disability Act2006.96I turn to other sentencing considerations. Section 5 of the Sentencing Act sets out the purposes of sentencing and a number of considerations to which I must have regard. You pleaded guilty to the offence. It could not be said that you entered your plea at the earliest opportunity but I was told by your counsel that your legal advisors had concerns with respect to your fitness to plead. I accept that. The plea resolved at a directions hearing on 8 February 2019 and you pleaded guilty before me on 12 June this year. There are utilitarian benefits that attach to your plea of guilty and I have regard to those in the sentence to be imposed.
97I also have regard to the fact that since this offence was committed a little over two years ago now, you have not been in any further trouble with the law. You have been on bail and have not been charged with any breach of your bail conditions. You continue to live with your wife and you now have two very young children.
98Mr Dunn relied on the principles set out in R v Verdins (2007) 16 VR 269.
In my opinion, the considerations set out in Verdins are relevant in your case. In particular, I consider that Verdins propositions 1, 3, 4, 5 and 6 apply. Whilst I was not prepared to find that your impaired mental functioning substantially reduced your culpability, I am prepared to find that it does reduce your moral culpability to some degree. I do so on the basis of the matters set out in Ms Mynard's reports. In particular, I consider that because of your intellectual disability and the multitude of other disorders you suffer, your ability to exercise appropriate judgment was impaired.99I am also prepared to moderate the need for general and specific deterrence and denunciation of your conduct by reason of your intellectual disability and the other disorders. It is well established that general deterrence should often be given little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. See R v Anderson [1981] VR 155 at 160 per Young CJ.
100I also accept that propositions 5 and 6 of Verdins have particular application in your case. I have already commented on the hardships you will suffer in prison by reason of your mental impairment. These are significant in my opinion. It is also the view of Ms Mynard, a view I accept, that there is a serious risk of imprisonment having a significant adverse effect on your mental health. I take into account what is said in Ms Mynard's second report, prepared when she interviewed you whilst you were in custody, and also what she stated in her final report at p.4: '[t]he writer believes that there is no question that Mr Alexiadis' mental health will deteriorate significantly to the point that he will not be able to cope very well at all.'
101I also have regard to your prospects for rehabilitation. As already stated in her final report, Ms Mynard considers that they are moderate to low. In my opinion, they are, at best, guarded. In reaching that conclusion, I have regard to your mental health issues and your longstanding use of cannabis to self-medicate. You are clearly in need of treatment, according to Ms Mynard, including drug counselling, psychological counselling and targeted trauma therapy.
102Despite your appearances before courts over the years, treatment has never been mandated and you have never before been placed on a Community Corrections Order. You are still a relatively young man and now have young children. If you are able to be rehabilitated, that would not only serve your interest and that of your family, but also serve to protect the community's interest.
103Following the conclusion of the plea hearing, I requested a Justice Plan assessment pursuant to s.80 of the Sentencing Act and also had you assessed for a Community Corrections Order.
104The Justice Plan was prepared by Ms Amber Reid and I will refer briefly to it. She stated that Disability Justice offers individualised support to people with disabilities who are involved in the criminal justice system to attain their goals and aspirations with a particular emphasis on those that will assist to reduce their likelihood of reoffending. This is achieved through assessment, planning, advocacy and referrals to appropriate services.
105Ms Reid met with you as well as your lawyer, Mr Hamka. She observed during the initial interview that you were thankful for her involvement and assistance and that you presented as slightly anxious and, after sometime, you began to grab your hair, pull on your beard and avoid eye contact, closing your eyes whilst talking. You appeared to be unable to answer most questions and asked your solicitor to assist in that process.
106The recommendations under the Justice Plan are that you participate in the referral process to relevant services and attend and participate in recommended programs. Those programs include psychological intervention. It is recommended that you continue regular engagement with your clinical psychologist, Ms Mynard. It is also recommended that if you are sentenced to a Community Corrections Order, you be referred for and undergo an assessment with ACSO COATS or ACSO RAPIDS and follow treatment recommendations made. It is also noted that if you are placed on such an order, which includes a Justice Plan, the Department of Health and Human Services will monitor your participation in the services recommended and will advise appropriate authorities if the Justice Plan requires review.
107You were also interviewed by a Corrections officer and in a report dated
21 October 2019, the author of the report noted that you presented with a stutter and that you were nervous and quite restless in that you would close your eyes and would grab your beard whilst rocking back and forth during the suitability assessment. Despite your presentation, you were able to participate to the best of your ability and provided the assessor with adequate information to complete the assessment. It is the view of the assessment officer that you present a medium risk of general reoffending. You have been assessed as suitable for a Community Corrections Order.108The author also noted that pursuant to the Justice Plan, you have been registered as having an intellectual disability. It was recommended by the author that a Justice Plan be mandated in an order for a Community Corrections Order and that Community Corrections would work collaboratively with the Department of Health and Human Services and any other support organisations.
109Mr Alexiadis, the crime to which you have pleaded guilty is a serious one. As I have already mentioned, it carries a maximum penalty of 25 years' imprisonment. That alone reflects the seriousness of the offence.
110Current sentencing practice for this offence generally requires the imposition of an immediate term of imprisonment. However, in your case, having regard to all of the circumstances, particularly your intellectual disability and the other serious mental health problems you suffer, I am prepared on this occasion to not impose a penalty that would require you to return to prison. I am instead prepared to sentence you to a term of imprisonment of 21 days, that being the time you have already served and also to place you on a Community Corrections Order should you consent to such an order.
111The order I have in mind will be for a period of two years from today and it will have the following mandatory conditions. That you attend at the Frankston Community Correctional Services within two clear working days after the commencement of this order. That you not commit another offence for which you could be imprisoned during the time that this order is in force. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. That means, in effect, you must not attend Community Corrections under the influence of any drug. You must report to and receive visits from the Secretary or his or her delegate. You must report to the Community Corrections Centre within two clear working days of the order starting. You must let a Community Corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate. You must obey all lawful instructions from and directions of the Secretary or his or her delegate.
112I also intend to impose the following conditions. You must be under the supervision of a Community Corrections officer for a period of two years. You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager. You are to be referred to and undergo assessment with ACSO COATS and ACSO RAPIDS and follow any treatment recommendations. You must undergo any mental health assessment and treatment. That may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager. You must participate in the services specified in a Justice Plan for a period of two years.
113I also need to warn you that should you breach the Community Corrections Order, you will be returned to this court and may be resentenced on the charge to which you have pleaded guilty. This could mean you being sentenced to a term of imprisonment. If you wish to avoid the risk of being returned to gaol, then you should comply with the conditions of the Corrections order.
114I am going to stand down, Mr Dunn and Ms Thorp, for 10 or so minutes so that you can explain the conditions of the order.
115MR DUNN: I'll be grateful to do that, Your Honour. Your Honour, there is one other matter which I thought the court had been advised of which I should tell Your Honour about.
116HIS HONOUR: Yes.
117MR DUNN: I do not think it impacts on Your Honour's judgment or sentence. In September of this year, the man before the court had an argument with his wife - in August, I am sorry. As a result of that, he shut the door and said he did not want to talk to her any further. She received advice from the local mosque from a woman called Belle Gibson, who Your Honour may or may not have heard of.
118HIS HONOUR: I think I have.
119MR DUNN: Belle Gibson said she should be going to the court and apparently Ms Gibson would advise her and help her and perhaps could move in with her to the house. An application was made for an AVO at the Frankston court. The wife ultimately got in touch after a couple of days with the man before the court and said 'Why are you shutting me out of the house?' And he said he was not. She has disassociated herself from Ms Gibson. She has got very few contacts here in Australia. The court who had taken out the AVO order then amended the AVO order so that they could live together which is what they are doing and have been and Ms Gibson is no longer in their lives.
120I have just been rereading those reports in case I thought that may have been drawn to the court's attention. It is a hiccup but I do not think it affects anything.
121HIS HONOUR: Thank you, Mr Dunn. I was not in fact aware of it but you are right, it is not going to make a difference to ‑ ‑ ‑
122MR DUNN: My instructing solicitor Your Honour has then got some reports on who Ms Gibson is. I am aware only from reading the press who she is.
123HIS HONOUR: She is charged with frauds, I think, or similar.
124MR DUNN: Yes. She apparently was fined $410,000 by the Federal Court for claiming to cure cancer.
125HIS HONOUR: Yes.
126MR DUNN: Falsely and having a diet book and to help particularly women who had cancer. She has apparently been back before the court why she has not paid her $410,000 fine while she has been travelling overseas business class and so on. Your Honour, we may hear of her again.
127HIS HONOUR: Sounds like we may indeed. I am aware of the name, Mr Dunn, and have read about her in the papers and what she's been up to.
128MR DUNN: Your Honour, I would be very grateful ‑ ‑ ‑
129HIS HONOUR: Can I say though before we do stand down.
130MR DUNN: Yes, sorry.
131HIS HONOUR: Your client's wife is here in court.
132MR DUNN: Yes, she is.
133HIS HONOUR: With the children.
134MR DUNN: Yes.
135HIS HONOUR: And it is clear that she remains supportive.
136MR DUNN: Yes.
137HIS HONOUR: Ms Thorp, did you wish to say anything about that?
138MS THORP: No, but only wish to remind Your Honour in relation to the disposal order and the 464ZF which I am sure Your Honour is aware of.
139HIS HONOUR: Well I was not. I was going to ask you about any further orders. I think at the plea hearing, you said that requests for orders will be sent to the court. They may well have been. I will get copies of those and I take it there is no issue with the orders.
140MR DUNN: No, no issues, with either the disposal order or the 464ZF.
141MS THORP: Yes, well hopefully they have been sent. Your associate is nodding, thank you.
142HIS HONOUR: All right. Mr Dunn, to assist you, I will hand you a copy of the order.
143MR DUNN: Could Your Honour please? Thank you, Your Honour. With the help of the DHS officer and others I think if we could just ‑ ‑ ‑
144HIS HONOUR: How long do you think you will need?
145MR DUNN: Your Honour, at least 10 minutes.
146HIS HONOUR: Yes that is fine. I will come back at quarter past 11.
147MR DUNN: Thank you very much, Your Honour.
(Short adjournment.)
148Thank you, Your Honour, for that time. Your Honour I can indicate that between my instructing solicitor, his mother, his wife and Amber from DHS, in very simple terms, he understands exactly what is going on and he will be attended Community Corrections tomorrow.
149HIS HONOUR: Thank you, Mr Dunn. I suspect he is going to require a lot of support, particularly attending appointments.
150MR DUNN: Yes, and his wife is tuned into that and she is nodding.
151HIS HONOUR: I will formally ask Mr Alexiadis whether he consents. Just bear with me for one moment. Mr Alexiadis, you have had the conditions of the community corrections order explained to you, I am told.
152OFFENDER: Yes, sir, thank you.
153HIS HONOUR: Do you consent to entering into a community corrections order?
154OFFENDER: Yes.
155HIS HONOUR: In the terms that have been explained to you by your lawyers and others.
156OFFENDER: Yes.
157HIS HONOUR: Thank you. You understand, do you, that if you should breach the order, you may be brought back before this court and resentenced on the cultivation charge?
158OFFENDER: Yes, I do. I won't be in no more trouble.
159HIS HONOUR: Excellent.
160OFFENDER: Thank you.
161HIS HONOUR: Excellent.
162MR DUNN: Thank you, Your Honour.
163HIS HONOUR: Well just stay standing. Mr Alexiadis, you are convicted and sentenced to a term of imprisonment of 21 days. Pursuant to s.18 of the Sentencing Act, I reckon that the period of imprisonment already served as 21 days. In addition to that sentence, pursuant to s.44 of the Sentencing Act,
I make a Community Corrections Order for a period of two years commencing this day on the same conditions as earlier indicated. I do not need to repeat those, do I?164MR DUNN: No, Your Honour.
165HIS HONOUR: All right. Pursuant to s.6AAA of the Sentencing Act, I am required to state the sentence and non-parole period, if any, I would have imposed but for your plea of guilty. But for your plea of guilty, the sentence
I would have imposed is a term of imprisonment of 21 days and a community corrections order for a period of three years.166MR DUNN: Thank you, Your Honour.
167HIS HONOUR: I make the forfeiture order of the items that are set out in the schedule to that order. They being items 1 through to 11. I also make the order pursuant to s.464ZF(2) that Mr Alexiadis undergo a forensic procedure for the taking of a scraping from the mouth and or a blood sample in accordance with Subdivision 30A of Part 3 of the Crimes Act 1958.
168Is Somerville police station the closest to your client's address?
169MR DUNN: Frankston, Your Honour.
170HIS HONOUR: Frankston. We may have to amend the order, Ms Thorp, it reads Somerville for some reason.
171MS THORP: Right. Your Honour, we will attend to that and have it electronically amended.
172HIS HONOUR: Yes, all right. We will amend it here if that is easier.
173MS THORP: Excellent, thank you very much.
174MR DUNN: Thank you, Your Honour.
175HIS HONOUR: I make the order because it is not opposed and because of the seriousness of the offence. I should tell you, Mr Alexiadis, that I have made an order for a forensic sample to be taken from you. That will involve a mouth scraping at the police station at Frankston, all right? If you refuse to give it, then the police can use force to take a blood sample from you. So it would be a very good idea if you let them take a mouth scraping, all right? Do you understand that?
176OFFENDER: Yes, sir.
177MR DUNN: I will explain that.
178HIS HONOUR: Thank you, Mr Dunn.
179MR DUNN: Well I will make sure he understands it when we are outside.
180HIS HONOUR: Yes, Mr Dunn. All right, well I think the order now needs to be signed, does it not?
181MR DUNN: It is signed, Your Honour.
182HIS HONOUR: It is signed, is it? Well then I need to sign it.
183All right, well I am grateful to both counsel for your assistance in this difficult matter.
184MR DUNN: Thank you very much, Your Honour.
185HIS HONOUR: Are there any other matters to which I need to attend?
186MR DUNN: No, Your Honour.
187MS THORP: No, Your Honour.
188HIS HONOUR: Thank you.
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