Director of Public Prosecutions v Amrstrong
[2021] VCC 2136
•14 December 2021 (Melbourne)
Correctly
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG AND MELBOURNE
CRIMINAL DIVISION
CR-21-01566
Indictment No. L11761335
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Ryan AMSTRONG |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Geelong and Melbourne | |
DATE OF HEARING: | 14 October (Geelong) and 9 December 2021 (Melbourne) | |
DATE OF SENTENCE: | 14 December 2021 (Melbourne) | |
CASE MAY BE CITED AS: | DPP v AMRSTRONG | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2136 | |
REASONS FOR SENTENCE
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Subject:Cultivation of commercial quantity of cannabis; Trafficking in cannabis (simpliciter) 26 year old ‘principal’ offender. 28 as at sentence. 130 plants weighing 10.25KG. Prior history including 2 prior convictions for trafficking. Early guilty plea.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Patterson | Office of Public Prosecutions |
| For the Accused | Ms O Thompson | James Dowsley & Associates |
HIS HONOUR:
1
Ryan Gerard Armstrong, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis and one charge of trafficking in that drug in a
non-commercial quantity. The trafficking relates to a quite separate amount of cannabis possessed for sale.
2 The prosecution summary correctly sets out the various maximum penalties.
3 You were born in July 1993 and you are now 28 years of age and you have a relevant history before the courts, including two prior convictions for trafficking.
4
This matter was opened to me by the prosecutor, Mr McHenry, on 14 October when I was sitting on circuit down at Geelong. Your counsel on that day,
Ms Thomson, informed the Court that it was an agreed summary.
5 There were some photographs contained within the depositional materials which showed the nature of the cultivation.
6 I see no utility in setting out all of the facts in these, my reasons. The agreed summary does that and it will remain on the court file. I will sentence on the basis of that agreed summary.
7 For that reason, I will say something only very briefly as to the facts.
8 That agreed summary, Exhibit A, describes the nature of the crop that you were cultivating in the shed at your leased residential premises at 976 Bannockburn-Shelford Rd, Teesdale. A warrant was executed upon your home on the morning of 8 July 2020. You were immediately co-operative and admitted possessing and growing cannabis. You explained the hydroponic setup.
9 As the photographs and the summary disclose, there was a hydroponic cannabis setup out in the shed. It certainly was not the most elaborate style of setup that I have seen but it was still sophisticated enough. There were five grow tents, with three of those containing the plants at various stages of the growth cycle and the ‘usual’ assortment of equipment, including lighting shrouds, globes, transformers and chemicals. There were some scales and about 735 grams of loose, dried or drying cannabis, which you possessed for sale. There were 130 plants weighing 10.25 kilograms. Also, your phone contained what was described as a, ‘tick list’, relating to sales of the drug.
10 This is a quantitative based regime. You had over the commercial quantity by plant number but not by weight.
11 You were interviewed. You made full admissions to the police. The claim that the cultivation was for personal use was really not pursued by your counsel. I do not doubt that you used cannabis but the scale of this setup plainly was not purely for personal use. That was conceded by your Counsel. Whilst I am dealing with you only for cultivation on the day, you made it clear in the interview that you had been doing this for some months and that this was your second crop. I am not dealing with you for any earlier crop but it cannot be claimed that this was spontaneous activity. It was not. Though there is reference to that tick list and past sales, on the trafficking charge I am dealing with you for the loose cannabis which you possessed for sale on the day of the execution of the warrant, you possessed it for sale. I am not dealing with you for any past trafficking.
12 You have been on bail since being charged and you have pleaded guilty at the earliest opportunity. The plea was adjourned from October of this year to allow for you to obtain materials touching upon your mother’s mental health predicament. That has now been attended to and a range of written materials relating to your mother were filed last week, together with an additional outline of argument as to that issue of third party hardship. The further plea was conducted last Thursday, though you joined the hearing remotely as there had been an issue raised as to your exposure to a COVID positive contact. That required the court to arrange for expedited testing to ensure that you were safe to enter the building but your solicitor failed to provide to you the information as to that requirement in sufficient time to enable the test to be undertaken. That was not your fault at all but as a result I was left with no option but to proceed remotely last Thursday with the part-heard plea. Your partner was called to give evidence on your behalf. You have each since tested negative and have attended in person today to meet your fate, one that you know involves being sent to prison today. Your partner is here to support you.
In Mitigation
13 Ms Thompson conducted the plea on your behalf on both dates. She had prepared a brief written outline of submissions dated 13 October, which was marked as Exhibit 1. There was the second outline I mentioned a moment ago; which is dated 6 November but in fact was prepared on 6 December 2021. The date on it is in error.
14 She told me about your personal and family background as well as your work and relationship history. Also your drug history and some medical issues which had plagued you. She made submissions as to your reasons for committing these offences and the difficulties that you and others would face when you were imprisoned. She filed a report from a psychologist, Ms Fleming, and a document speaking of that medical issue that you experienced with documentary evidence of a past appointment for elective surgery. There were also the new materials relating to your mother that I spoke of a moment ago. That material and your mother’s predicament assumed real significance on the plea. Ms Thompson also made submissions as to the relative gravity of the offending and your prospects of rehabilitation. She conducted an excellent plea and really could not have said anything more on your behalf.
15 She raised a number of matters in mitigation. They were:
· Your level of co-operation and the early guilty plea in the midst of the global pandemic (Worboyes[1]);
[1]Worboyes [2021] VSCA 169
· the presence of some remorse;
· the existence of third party hardship upon your mother and/or failing that, an increase in your burden of imprisonment arising from your knowledge of your mother’s predicament;
· though not really the subject of any specific submission that I recall being made, I treat as made, a submission as to some increased custodial burden arising from the COVID-19 virus and the current response to the virus by the prison authorities.
16
The application of a number of the principles from the Court of Appeal case of Verdins[2] (the 1st, 5th and 6th limbs) had initially been raised by your counsel on the 14th October. The Prosecutor on that occasion, Mr McKenry, made it clear that the Prosecution challenged that submission and that if any Verdins submissions were being relied upon on the return date of the plea, that the Prosecution required that Ms Fleming be called and made available for cross-examination.
Ms Thompson, on the resumed plea date last Thursday, (9 December) made it clear that the report was not being relied upon in any Verdins fashion. She recognised the deficiencies of the report and told me that Ms Fleming was not being called. She informed the Court that the Verdins arguments were abandoned. The greater focus last Thursday, as you will recall, was as to your mother’s predicament and whether it met what you heard described as the ‘Markovic[3] test’. I will say more about that later.
[2]R v Verdins [2007] VSCA 102; 16 VR 240
[3]Markovic v The Queen [2010] VSCA 105; 30 VR 589
17 The commercial cultivation offence is what is referred to in the Sentencing Act1991 as a ‘Category 2 Offence’, and in the absence of a Court finding that certain provisions apply, there is no ability to combine a prison term with a Community Corrections Order. There is no onus on you to bring yourself within these provisions, that much is clear (see the case of Fariah[4]).
[4]Fariah v The Queen [2021] VSCA 213
18 Ms Thomson abandoned the earlier written submission as to s5(2H)(c)(i) or (ii) having any application here. Instead, she argued that s5(2H)(e) had application, namely that there were substantial and compelling reasons which were exceptional and rare.
19 She was arguing therefore that a combination type sentence was at least in theory open.
20 She conceded, however, that even if satisfied that the Markovic test was made out, and even if section 5(2H)(e) was operative here, that it was inevitable that you must still be sent to prison. If the Markovic submission was made out, she argued it would bear upon the length of any prison term, and if section 5(2H)(e) was operative, a combination type order would at least in theory be open. These were very optimistic submissions given the nature of this offending, the current sentencing practice in relation to commercial quantity cultivation and your relevant criminal history. There was no pre-sentence detention to draw upon at all here, and even if a combination sentence was in theory open, you would need to be in a position to commence such a community correction order within 12 months. That would be a massive ask for this style of offending. I should add that Ms Thomson submitted that if the court was not satisfied of exceptional third party hardship here (the Markovic test), that there would then be no question of the s5(2H)(e) being operational here, and that the only alternative open to the Court in such a setting as that would be a head sentence with a non-parole period.
Prosecution
21 The Prosecutor argued that there was no third party exceptional hardship established here, that the Markovic test was not satisfied and nor was s5(2H)(e) operative or engaged here.
22 The Director of Public Prosecutions was calling for a head sentence with a non-parole period.
Background
23 I will turn only briefly to your background. I have no reason to doubt what I have been told about your family background. It is set out in the expert report and in the written submissions.
24 You are 28 years of age, born on 13 July 1993. You were 26, almost 27, at the time of the offending. You grew up in Geelong and it was a none too happy upbringing. You had a younger sister but have no ongoing contact with her. Your father was your primary care giver and that was not a particularly positive relationship. Your mother had a serious mental illness and so she was out of the picture. School was difficult. You were expelled at Year 9 and entered the workforce and worked in a number of areas. You had been doing work in house maintenance as a handyman but work had dropped off owing to the pandemic. You had a medical issue which required surgery. There is reference to that in the separately filed appointment document as well as in the expert report. It was certainly an unpleasant saga for you until you had the testicular issue repaired.
25 You have a quite complicated relationship history. You have two young children with your current partner, Tiffany, and she is pregnant again. You have three other daughters from two relationships but have no contact with any of them. Your mother has been living with you. I must say it is hard to get a grip on the chronology of when that arose. On occasions it has been described by your own counsel as being a recent development. One of the reports from her treating psychiatrist describes her as being a patient of that Melbourne based service until September of this year. There are other references to her plan to move to live with you just prior to that point in time. On the evidence given by your partner, it is a less recent development with comings and goings. The timing is not critical. What is far more important is that you are engaged with her care and support and that she is very obviously psychiatrically unwell with schizoaffective disorder. That much is made very clear from the recently filed material. It is also clear that you have played a sizeable role in dealing with her issues, wherever she has been living, and that her condition was in existence at the time that you chose to commit these offences.
26 You have had long term issues with drugs and have a lengthy enough criminal history. It is conceded to be relevant to my task. There are two separate convictions for trafficking in drugs. You have been placed on community correction orders in the past and you have breached a number of them. You have been sent to prison on a number of occasions. None of this has seemingly deterred you from this serious offending.
27 I want you to understand that you do not fall to be sentenced a second time by me for any of that past offending. You have served those sentences which were imposed, but I do have to make judgements as to your prospects of rehabilitation and the need to deter you and protect the community from you. You have been given chances by the Courts and you just have not taken them. Yet again, you have chosen to traffick in drugs. You are a slow learner in that regard. The need for you to be deterred is pretty obvious on the materials before me.
Guilty Plea
28 I turn then to the other matters raised on your behalf, the first of those being your guilty plea. You pleaded guilty to these charges at the earliest stage. You made full admissions earlier still and were very cooperative with police. You told them more than they knew, for instance, about the number of crops. That information has not been used to frame the charges but the fact that you gave it spells out the level of your cooperation.
29 Your early guilty plea is of real significance. The community has been saved the time, cost and effort associated with the conduct of a committal hearing or a trial.
30 You have facilitated the course of justice. You have taken this early responsibility for your offending by pleading guilty, and you have done that in the midst of the disrupted operations of this court arising from the response to the COVID-19 virus. We have a very large backlog of trials. The trial in your case would have formed part of that large, ever-growing backlog, a backlog which will take years to work through. Your early guilty plea is worthy of significant extra weight in such a setting for the many reasons set out in the decision of Worboyes.
31 Your cooperative stance with police is also deserving of separate recognition.
32 So I take these various matters into account in mitigation.
Remorse
33 You made full admissions to the police and pleaded guilty at the earliest opportunity and I am prepared then to accept your counsel’s submission that there is remorse on display here. I am sure you have been reflecting on the ramifications of your offending for your mother and for your partner. No doubt this would add to your sense of regret for committing these offences. I take the existence of remorse into account in your favour.
COVID-19
34 Though little was said in relation to COVID-19 and the way that might impact upon your sentence, that is probably, because it is a given, that the Court would have regard to the impact of COVID-19 upon prison life. The COVID-19 virus and the response to it by those who run the prisons has undoubtedly increased the burden of imprisonment for prisoners over the last 18 months or so. Of course you have not been in prison, and that is just as well, as it was especially burdensome over the period since you were arrested in July of last year. Prison has been a more stressful environment. Social distancing is not easy in that sort of place. No doubt there is a worry about catching the virus in such a setting where there is no level of autonomy. There have been many unpleasant aspects, including the 14-day quarantine periods and isolation, the lack of any in-person visits and the absence of the full range of courses. That has been the position in the past and, as I say, you have not in any way been exposed to that. You will no doubt shortly enter quarantine later today. That is a pretty bad start to prison life.
35 As to what lies ahead, it is very hard for me to know. We have opened up very significantly in the community owing to the increased vaccination rates. It seems likely that restrictions in prison will be lifted in the not too distant future. I cannot know how long restrictions will continue to apply in prison. That uncertainty is probably not that easy for a prisoner going into custody for the first time, and you are likely not to have any personal visits for some time and I do take that into account.
Rehabilitation
36 Your counsel was arguing that you had some prospects of rehabilitation. I do not recall her using a particular adjective.
37 You have family commitments and you have support from your partner and you have a decent enough employment record.
38 The Court can though, only be relatively guarded in this case.
39 I have the nature of this offending and I have your past criminal history. You have not taken the chances offered to you by the Courts. This was serious criminal conduct. It was committed by a mature adult, not by some silly teenager. It must have involved significant enough planning and effort. You have made a very poor decision but that is what it was. It was a choice, and a choice that you made. A choice that I am sure that as you sit there today, you regret for a variety of reasons.
40 You have been arrested, charged and then brought reasonably swiftly before the courts. You were cooperative with the police, have pleaded guilty at the earliest opportunity and there is remorse present here.
41 You will have to serve the sentence which I will shortly pronounce. It will not be at all easy for you but I am sure that what has occurred to this point and what lies ahead will have some role in deterring you into the future.
42 You are far more than just the person who has committed these serious crimes. It is plain to me, for instance, that you have done what you can to assist your mother. You have provided her valuable support. That is not just window dressing for the plea. The report of her psychiatrist speaks of your efforts for a sizeable period. I also have the evidence of your partner on that topic.
43 I am prepared ultimately to find that you have reasonable prospects of rehabilitation into the future.
Third Party Hardship
44 I turn then to the issue of family hardship, which was the most prominent aspect of the plea. That submission related to the impact upon your mother, who undoubtedly labours under a serious mental illness.
45 I am not going to set out all the materials in my sentencing reasons. There is a very useful report from Dr Kongasseri. Your mother was a client of his service and the report speaks of her illness and the treatment available in the period during which she was a client of the North West Area Mental Health Service. That was up until September of this year. Even with treatment, your mother has a pretty fragile mental health predicament with exacerbations two or three times per year. You have been her carer and you have been providing emotional support and visits when she lived in Melbourne, not to mention assistance with chores and support in relation to treatment decisions. The Doctor says that when your mother was a client of that service for the two years leading into September of this year, that she had the capacity to live independently and to look after herself. I have no doubt that you contributed to that capacity. There are materials detailing the path to a Mental Health Tribunal Order that was made on 21 August of this year. A letter dated 12 August explains the rationale for that application and also mentions her decision to move permanently to Geelong to stay with you, her son, and the need therefore to transfer her case to Barwon Health Corio Team. The order imposed was a Community Treatment Order ('CTO') and it is of a duration to permit the treating team to attempt to engage her better, provide psycho-education and discuss access to the NDIS. Should she fail to attend or to take her medication, no doubt there could be steps that could be taken under the Mental Health Act.
46 It is clear then that your mother has a serious enough mental health issue. She is now on that Community Treatment Order. She has only relatively recently moved to live with you, at least as far as the mental health providers are concerned. She has been able to reside independently prior to that, though not without issues. The evidence before me, including from your partner, makes it clear that even when she is treated, there are real issues in her presentation. A Community Treatment Order is of assistance but there are relapses. Even when not in relapse, she is hardly in optimum condition. When relapsing, she has had issues of disinhibition and vulnerability. She makes calls, for instance, when she goes home to Melbourne, as she did in October of this year, calls which indicate that she is not functioning at all well. She was locked in her bathroom or sleeping at a bus stop, that sort of thing. There have been no hospitalisations since the Community Treatment Order was made.
47 I do not doubt that you have provided much support to her. Nor do I have any reason to doubt that her life would be harder without you being on the scene. I am not unsympathetic to the plight of your mother. Of course, I wish you had not placed her in this position but you did, and you can hardly say that her condition has snuck up on you or you were ignorant of it at the time that you offended. However, your knowledge of her condition is not a disabling factor in considering and applying the Markovic test. I am considering the impact upon her, not whether you should have placed her in the position that you have.
48 Your partner also has two young children and another on the way. She described in her evidence the position at home with your mother and your having a superior role in ‘steadying the ship’ as it were. Reminding your mother to change clothes and shower and take her medication and to attend appointments and taking her to those appointments and to obtain her depot injections. Your partner says that you have greater authority than she can exercise over your mother.
49 In her evidence she made it clear that having your mother at home without you would be a real battle for her. The tenor of her evidence was that she does not believe that that is realistic. She says that your mother follows the children and does not pay attention to her. Your partner is doing, and no doubt would do her best to cope, but she did not think that she was in a position to guarantee that your mother would be medicated or would attend her appointments in your absence. She could not guarantee those things. She said that she had to give priority to the children, and that is understandable. She said in her evidence that there would have to be a change of home, though there was no specific plan in place for your mother. There was a sense, really, of taking each day as it comes and waiting for this case to conclude.
50 It is obvious that you would prefer to stay out of custody and to remain in employment as best you can, and to continue to provide a level of care for your mother. I am sure the gravity of your offending and the gravity of the ramifications for people other than you are dawning upon you. Your own counsel, though, concedes that you must be imprisoned.
51 What then are the impacts upon your mother if you are imprisoned and cannot do those things that you have been doing? I note from the perspective of the North Western Mental Health team that she has only relatively recently moved full time to live with you. On any view of the materials, she was previously living in Melbourne at least from time to time, though you visited and checked up on her. Though she may not view it in this way, she has the benefit of compulsory treatment under the Community Treatment Order, which was made in August of this year and a mental health team able to swing into action if they are required to. That case has been handed off to that local team and your partner is aware of that fact. Your mother has your partner as well, should your mother choose to remain at that address, and should that arrangement be permitted. I am not saying it is as satisfactory for you mother or for your partner as you being on the scene. In fact I am sure it is not, but I am not making a judgement as to which state of affairs is qualitatively better.
52 I am determining the appropriate punishment for your crimes and the extent of impact upon your mother if you are punished in a certain way. That third party impact is something I am entitled to take into account only in the rarest of cases.
53 I do not doubt there will be some hardship for your mother but is it at a level which I am permitted to take into account?
54 What you need to understand is that it is only in exceptional circumstances that third party or family hardship can be taken into account. The circumstances must be such that they rise above the general, and sometimes even tragic, hardship very commonly suffered by families upon the imprisonment of a family member. Even if established, the finding of exceptional hardship does not necessarily avoid a prison term. It may be relevant to the duration of a sentence. Indeed that is the way your counsel was putting her argument, accepting as she did the inevitability of your being sent to prison. She was relying upon the impacts to your mother and the consequences to your mother of having a relapse. Arguing that it is better for her to remain in the community than run the risk of what might be inpatient involuntary admissions. It seems to me that your mother has that risk anyway and if her state reaches that level, inpatient treatment would be preferable, whether you are on the scene or not. As to whether your absence might make that more likely, that is a possibility but it is difficult to know for sure. Again, I say it is conceded that you must be sent to prison. You will be absent.
55 It is clear from the case law in this area that the cases where family hardship gives rise to exceptional circumstances will be rare indeed. It is a very high threshold and deliberately so. Proof of actual hardship is not enough, and that is because there is almost always hardship, often very significant hardship encountered when a person with a dependent family is sent to prison.
56 This high test has developed in response to a number of considerations. It is almost inevitable that imprisoning a person will have an adverse effect on others remaining in the community. That is just the reality.
57 The primary function of the court is to impose a sentence commensurate with the gravity of the crime. To treat family hardship as the basis for the exercise of leniency produces the result that a guilty person benefits in order that innocents suffer less and it also differentiates between offenders with needy dependents and those with none.
58 There are many examples of what has in the past been treated as exceptional circumstances and what has not. Obviously the decision has to be made on a case by case basis. I do pay regard to those past instances as spelt out in the Judicial College of Victoria sentencing manual, as well as referred to in the leading case of Markovic, to which I have referred. They give some guidance, but that is all it is, and again one must come back to the case at hand, which I do now.
59 I have carefully considered the circumstances here.
60 Often enough the court is required to remove a primary or a key caregiver. We do that often enough in relation to totally dependent children. Your mother is not totally dependent at all. She may prefer that you are on the scene and it might well provide an additional safety net. Maybe it would reduce the likelihood of a relapse. I note, though, that there was a relapse it would seem as recently as October when you were at large and on the scene. She had gone to Melbourne.
61 There will likely be some negative impacts upon her, I do not doubt that, but when are there not likely to be sizeable impacts whenever a court sends even a primary carer to prison as we do frequently enough? It is hard to know what those impacts will be in this case and one hopes that if she remains living with your partner, she and the local mental health team can work together to provide some stability and consistency. If remaining with your partner is not an option, well, the local mental health service will still be involved wherever she is living. She would have a roof over her head in Melbourne as that unit, I am told, is still available. No doubt a greater burden will fall on your partner if your mother remains living with her. That is regrettable but that is not relied upon as involving exceptional hardship to your partner. There may be a chance of your mother’s condition deteriorating to a point where she needs inpatient treatment. It seems to me that could happen if you are on deck or not, as it has in the past. Of course, I hope that does not eventuate.
62 Having read the materials and considered the matter afresh in the days since the plea, I am not satisfied on the balance of probabilities of the existence of exceptional circumstances such as to permit me to take into account the hardship upon your mother.
Increased burden
63 That is though, not the end of the matter. I turn then to the increased burden upon you of a custodial sentence in this case in light of your knowledge of the predicament of your mother and to a lesser extent your partner, who no doubt will be subjected to additional stresses. The fact is your partner will have additional stresses if your mother stays with her or not. She will be left on deck in a house with either two children or two children and your mother to care for. She is pregnant. Obviously if sent to prison, as you will be, you will worry as to your mother’s predicament. You will worry as to the predicament of your partner as well.
64 You will be imprisoned and you will know that you will not be able to assist your mother or your partner in any way, be it emotionally, or financially. You will not be at your partner’s side for the birth of your child. I am sure these are things that you will worry about. They will cause you a degree of anguish. These various matters would undoubtedly increase any burden of custody upon you. It is permissible for me to take them into account in that way as it does not involve me having regard to third party hardship, it is impact upon you. Prison will be harder for you as a result of those factors and I do take that into account.
65 This brings me to the report of the psychologist. I need say little about it as your counsel had correctly disavowed any reliance upon the case of Verdins. The DASS test described in the report is designed to measure symptoms of anxiety, stress and depression in the previous seven days to the assessment which took place in September in the lead-in to your court case. It does not correlate to diagnostic severity necessarily, or even relate to the current position. The author of that report concluded on the strength of that test and self-report, as well as observations made of you, that you had then an adjustment disorder. That arose, she thought, as a result of your issue relating to your testicular problems, something that has by now resolved. There is no realistic connection between any condition and this offending. She stated generally the sorts of things that can be produced by an adjustment disorder but it is a general statement . The report also speaks in the next breath of substance use and its impact upon impulsivity, risk taking behaviour, poor decision making, lack of self-restraint and self-control and impaired judgement (see paragraph 94). The use of drugs and their impact upon decision making is not mitigatory. That does not attract the principles from Verdins.
66 This offending was obviously calculated and involved a deal of planning and effort. There was nothing impulsive about it at all. The author's general statements about what an adjustment disorder may herald are of no use to me at all. There is no basis at all to reduce your culpability or the weight to be given to specific and general deterrence, nor any sensible basis for me to conclude that the condition, such as it is, would increase your prison burden in any significant way. As I said earlier in these reasons, your counsel specifically abandoned any reliance on this report in support of any of the principles from the case of Verdins, so I have probably said far more than I need to about the report. It is still of use to me. It details your background and level of functioning and attitude to the offending. There is also a risk assessment within it. So I do not ignore the report. I take it into account.
General Remarks
67 I will make some general remarks and commence by saying this was serious offending. The cultivation of a commercial quantity of cannabis is an inherently serious offence. It is punishable by a 25 year maximum term of imprisonment, and I must pay regard to the maximum penalty. The trafficking is no minor offence and of course, as you know, you have relevant criminal history.
68 It is conceded that you were not a crop sitter or some minor player with little stake in the success of this venture. We, as judges, see many of those players. In fact that sort of offender makes up a large enough proportion of the people who are brought before this court on a commercial cultivation charge.
69 But this was your venture and was not a crime committed to provide for your personal use. You must have had the expectation of making some money out of this enterprise to take the risk that you took. I am satisfied of that beyond reasonable doubt.
70 I am prepared to accept that you would have used some of the cannabis. Your use of cannabis, though, is not of any significant mitigation here. It is really only part of the context and it cannot and does not explain your decision to cultivate at this level.
71 It is hardly spontaneous offending. You had to track down all of the gear and then set up the crop and the lights and watering system. You had many opportunities to pause for thought and to consider the seriousness of your acts. As I said earlier in my reasons, it is not the most sophisticated crop I have seen but it was well removed from some non-hydroponic set-ups that still come before the Courts. You must have spent a decent enough amount of time, effort and some money to establish this crop. You are not able to point to some minimal or fleeting connection to the crop or to being some poorly paid underling taking the risks and doing so for little reward, as so often is the case in this area. This was your crop and profit was obviously a sizeable enough part of your motivation.
72 You were taking a calculated risk and you must have weighed up the pros and the cons. You must have considered those risks. No doubt, you hoped you would not be caught, but you must have known it was a serious enough crime to do what you did. I am satisfied of that beyond reasonable doubt.
73 Monetary reward of some description is at the heart of virtually every commercial quantity cultivation, even those by lowly crop sitters, which you are not. It is impossible for me to quantify what you hoped to achieve financially but as I have said, financial gain was plainly part of your motivation. I am satisfied of that beyond reasonable doubt.
74 You had a job. You were working at the time though had experienced some downturn owing to the pandemic. There is no evidence before me of any dire financial situation that might in some way lessen your culpability or at least explain in some way your decision. Ms Thompson pointed to the motivation being a mixed one: namely to provide for you own drug use as well as to profit from the exercise. As I have said, your use of drugs is not greatly mitigatory. There is no real reduction in your culpability in this case on that basis. In fact, your culpability is actually quite high given that this was your crop. This was your set-up.
75 As I have said in countless other cases over the years, I say now in yours: this crop and its ultimate success has been interrupted by the execution of the warrant by the police on this day in question. This was obviously a planned and organised criminal activity. There is nothing spontaneous in your major crime, being the commercial quantity cultivation, nor in the trafficking by the way. The trafficking is not as serious a crime as the cultivation. It carries a lower maximum penalty but it related to a not insignificant amount of loose cannabis and, as I have said, you have those relevant prior convictions.
76 Sentencing always involves the balancing of a number of purposes or principles. One of those relates to your rehabilitation. I cannot ignore that purpose. I view those prospects in a quite guarded fashion here but they certainly exist.
77 I have to denounce your criminal conduct and I do.
78 I am required to punish you justly and proportionately. Punishment is an important purpose in this sort of case.
79 I must seek to deter you, as well as others, from committing this sort of offence.
80 You are judged to be a moderate risk of re-offence. You have trafficked drugs twice in the past. This cultivation involves something of an escalation in offending. I believe I must strive to deter you as well as protect the community from you. Those purposes must be given adequate weight.
81 There is also a need to give real weight to the principle of general deterrence. General deterrence relates to the need for the Court to deter other future offenders. It is a significant purpose of sentencing in this sort of case.
82 Those who choose to engage in this activity at whatever level are almost always taking a calculated risk. That applies with equal force to the trafficking or to the commercial cultivation. These crimes are almost always taken on because of the hope of some financial gain. Well, people must understand that they are serious crimes and that though there is the potential for some financial reward, it comes with a real risk. The risk is of detection, prosecution and then the likelihood of the imposition of a significant term of imprisonment. The sentences imposed by the courts must neutralise the lure of what might look to be easy financial gain
83 This court must send that message loud and clear to others in the community who might be minded to commit this sort of serious and prevalent offence. Hopefully others may rethink before they act. You should have, of course, as you know.
Current Sentencing Practice
84 I must take into account current sentencing practices. That is not a single controlling factor. It is but one of the many matters that the court must have regard to. I have looked at the Sentencing Snapshot No. 247 of 2020. The statistics disclose that in the period covered by the data, that is from 2014/15 to 2018/19, where prison was selected, sentences for commercial quantity cultivation ranged from a period of a little over a month to six and a half years, with the most common sentence falling in the band of two to less than three years. That is confirmed in the more up to date Sentencing Advisory Council online data. I have looked also at the online statistical data for the crime of trafficking.
85 I have also looked at the material held at the Judicial College of Victoria sentencing manual which includes an overview of commercial cultivation sentences dealt with in the Court of Appeal (see 7.6.1).
86 There have been a large number of cases over the years querying the adequacy of sentencing practices for this crime. The case of Nguyen[5] sets out a number of those cases at paragraphs [139] to [142] and spoke of the inadequacy of sentencing practices for this crime when committed at certain levels. Now, that case (Nguyen[6]) was not focussing on low-level players. It was more directed at what were described as ‘medium-level’ cultivators.
[5]Nguyen v The Queen [2016] VSCA 198
[6] Ibid
87 Here this was your crop. You set it up. By way of quantity, it is not a massive crop by any stretch of the imagination. But your role is significant. I cannot ignore that. You also have a relevant criminal history.
88 The Court of Appeal has spoken often enough as to the danger of applying adjectives or labels to describe a person's role. Focussing on the actions and the conduct is what is important, not the label that might be applied to describe it. As the Court of Appeal said in a different case of Nguyen, a decision from 2019:
'A sentencing judge is required to sentence an offender … by reference to all of the facts of the case (including all of those able to be gleaned about the offender's role and involvement) and not by reference to whether the offender can be given some particular appellation'.[7]
[7]Nguyen v The Queen [2019] VSCA 134 at paragraph [59]
89 This is not one of those cases where there is any need to speculate about what you were doing or to try to draw inferences as to your role or your place within a broader hierarchy. What was it that you were doing in this cultivation of a commercial quantity of cannabis? The answer is: everything. It was your enterprise.
90 Your culpability therefore is quite high and can be contrasted with low-level players, even those low-level crop-sitters that I have spoken of who may be connected up with a much larger criminal hierarchy. People such as that take no key decisions and they have no financial stake. They do what they do, often enough for a very small payment or wage. That is not what you were doing.
91
This was your venture. You comfortably fall above the very low level players so often brought before this court. I am sure that is so but equally plainly, when I look at the actual crop that I am dealing with, your case is not anywhere near the most serious instances of commercial cultivation. You are a mile removed from the next relevant threshold being large commercial quantity. That crime has a threshold of
250 kilograms of cannabis or 1000 plants. It follows then that examples of commercial quantity cultivation can range that high before crossing the large commercial quantity threshold and attracting the higher maximum penalty reserved for such a crime.
92 I have mentioned the sentencing statistics and also that I have looked at other cases. Statistics have inherent limitations, they will never tell me much of the real story.
93 When a sentence is imposed a court is required to take into account a whole range of matters, both of aggravation and mitigation, the sorts of things that I have been going through in these lengthy sentencing remarks. Those sorts of things are not disclosed in the statistics. I am not going to sentence you according to what has been the most common previous sentencing outcome as disclosed in the statistics. That is just a statistical measure and that is not what sentencing involves. Every crime is different and so too is every offender. Nor is the sentence arrived at dependent upon whether a person is labelled as a crop sitter or an owner or a principal. I have to sentence you for your crime.
94 Other cases, even though they disclose the sentences imposed upon other offenders, are not precedents for me to follow.
95 Nor is there any such thing as one correct sentence to impose.
96 I note in yet another decision of Nguyen[8], that the Bench of the Court of Appeal (Priest and Beach JJA) said that sentences in the region affirmed in that case of three years and eight months are entirely unexceptional even for crop sitters (see paragraph 65). Well, you are no crop sitter.
[8]Nguyen v The Queen [2019] VSCA 134
97 It is clear from the many cases in this area that cultivation in a commercial quantity of this drug is a serious and prevalent crime.
98 It is equally clear from the many decisions that general deterrence must be at the forefront of any sentence imposed by this court.
99 I have said already, yours was not some low-level venture. You were not some low-level or minor bit player here. Nor though, is it anywhere near the worst category of offending.
100 I am not here to be making judgments as to the relative harmfulness of the given drug. That is not my role as a judge. This is a quantitative based regime. Commercial quantity for cannabis is 25 kilograms or above, or 100 plants. As I have said, you had just over 10 kilograms but made up of 130 plants of a number of sizes. So it is by no means a massive crop. We see far larger crops by plant number and by weight, but then, of course, there is your role here.
101 This was still serious criminal offending. So was the trafficking obviously.
Section 5(2H)(e)
102 Prison is always a disposition of last resort. Your counsel concedes you must be imprisoned. As I have said earlier, the cultivation of the commercial quantity charge is a Category 2 offence under the Sentencing Act and a combination type order is prohibited other than in a handful of exceptions set out in the Act.
103 Your counsel pointed to s5(2H)(e) and submitted that there was substantial and compelling circumstances that are exceptional and rare such that the court could consider a combination type sentence. As I said earlier, there is no onus on you to bring yourself within this provision (see Fariah).
104 I must apply the words used in the sub-section as well as other provisions of the Act, which give guidance as to the interpretation of those words. It is obviously a strict provision with a very high threshold. It is, and is designed to be, a stringent test. See the case of Farmer[9], see also Fariah. In determining whether there are substantial and compelling circumstances which are exceptional and rare, s5(2HC) tells judicial officers to pay greater regard to general deterrence and denunciation than to other sentencing purposes and to give less weight to the personal circumstances of the offender. The court is told not to take into account previous good character other than the absence of prior convictions and not to take into account an early plea of guilty or prospects of rehabilitation. These are very significant and quite deliberate alterations to the way in which a judge would ordinarily perform his or her sentencing task. That, together with s5(2L)(a) signals Parliament's intention that ordinarily for a Category 2 offence, a term of imprisonment is to be imposed and not in combination with a Community Corrections Order.
[9]Farmer v The Queen [2020] VSCA 140
105 Your counsel relied upon the position of your mother. I have already indicated in a different setting that her position is not truly exceptional such as to satisfy the Markovic test for third party hardship.
106 As sad as your mother’s position is, and as much as she might want you to be by her side and you by hers, the evidence of her mental health predicament and the ramifications of imprisonment for you, and the spin off for her, does not in my judgement amount to substantial and compelling circumstances that are exceptional and rare. I do not believe that on the materials before me that you fall into the exception relied upon. I have mentioned already there is no onus on you, but as the sentencing judge, having examined all the materials before me, I do not believe that there are substantial and compelling circumstances which are exceptional and rare. Ms Thompson made it very clear that absent the Markovic submission finding favour, and it has not, there could be no operation of s5(2H)(e) in this case.
Totality
107 I pay regard to totality of sentence. I have given consideration to the overall effect of the sentences to be imposed here. I have engaged in a last look at the overall effect of the sentences in endeavouring to avoid a sentence that might be crushing upon you and to ensure that the overall effect is consistent with your overall actual criminality. Regrettably though, your criminality was high enough in this case. I must send you to prison. I cannot do so in combination with a Community Corrections Order, given that this is a Category 2 offence and my findings in relation to s5(2H)(e), which I have recently published. Frankly, even without that provision, such an outcome would have been virtually impossible to achieve given the absence of any pre-sentence detention, the need to impose an appropriate sentence and the legal requirement that an offender be in a position to commence a Community Corrections Order within 12 months.
108 It is not appropriate to order complete concurrency between the two sentences imposed here. The trafficking charge relates to a quite separate quantity of loose cannabis. It is disconnected from the plants, the subject of the commercial cultivation charge. You possessed this loose cannabis for sale. It was, however, on the same day and it related to the same drug so there is, I believe, a basis for a very decent measure of concurrency here.
Disposal
109 There is an application for a disposal order made under the provisions of s78 of the Confiscations Act. There is no issue taken with the making of this order. I have signed the order and I order, pursuant to those provisions, the forfeiture to the State of the property referred to in the schedule. I direct that it be had with the manner contemplated by the signed order.
110 I am sorry to have taken so long to get to this point. I will have you stand up if you would, please.
Sentence
111 On Charge 1, which is the charge of cultivation of a commercial quantity of cannabis, you are convicted and sentenced to two years and four months imprisonment. That will be the base sentence. You will see it is a good deal lower than many of those sentences I have mentioned, even some imposed for bare crop sitters. I cannot remove from my consideration your mother’s predicament or, more correctly, your knowledge of it and the increase in your prison burden, and rightly or wrongly, of course I say rightly, it drives me to make some tangible reductions in the sentences imposed in this case.
112 On Charge 2, the trafficking in cannabis I convict and sentence you to nine months' imprisonment.
Cumulation
113 The base sentence then is the two years, four months imposed on the commercial cultivation charge. I direct that three months of the sentence imposed on the trafficking charge is to be served cumulatively, that is, on top of that base sentence.
Total Effective Sentence
114 This produces a total effective sentence of 31 months or two years and seven months' imprisonment.
Non-Parole Period
115 Given the dimensions of that head sentence, I am required as a matter of law to fix a non-parole period. I am not able to speculate as to whether you will be released on parole. I am prohibited from considering that matter. That will be entirely in the hands of the Adult Parole Board and it has nothing to do with me.
116 I fix a period of 16 months during which you will not be eligible for release on parole.
Section 18 Pre-Sentence Detention
117 There is no pre-sentence detention to declare in this case.
Section 6AAA
118 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for four years. I would have fixed a non-parole period of two years nine months, and that is to be entered into the records of the court.
119 Just grab a seat for a moment, Mr Armstrong. I will just see if there are any other matters I need to attend to. Anything from your perspective, Ms Patterson?
120 MS PATTERSON: No, Your Honour.
121 HIS HONOUR: Ms Thompson, any other matters?
122 MS THOMPSON: No, Your Honour.
123 HIS HONOUR: All right, so that completes the sentencing task then. So your client will go into custody. I mean if he has been there before - are there any sort of custody management directions you want me to make at all or not?
124 MS THOMPSON: Your Honour, just in relation, perhaps, that he be seen by a doctor in relation to his mental health and his issues with drug use, Your Honour, in due course.
125 HIS HONOUR: I mean he will be so - I am merely talking about any sort of pressing sort of things then. Are there any - it is not his first time in custody.
126 MS THOMPSON: It is not his first time in custody.
127 HIS HONOUR: I would normally mention a person's first time in custody or if they were particularly young. There is no need for me to mention that. So what do you suggest I advise them?
128 MS THOMPSON: Just perhaps he is seen - have some medical attention given the potential for deterioration in his mental state upon admission to custody.
129 HIS HONOUR: Look, I will say he has some - I will say has some mental health issues and will need to be assessed and treated.
130 MS THOMPSON: Thank you, Your Honour.
131 HIS HONOUR: So are you going to confer with him downstairs or not?
132 MS THOMPSON: Yes, I would hope to confer with him downstairs, Your Honour.
133 HIS HONOUR: Look, I think that is appropriate. So that completes the matter then, Mr Armstrong. So, Mr Armstrong, you will be seen downstairs by Ms Thompson. She will come down and have a chat to you about what has occurred today and your rights in relation to the sentence that I have imposed. So she will be down there to see you shortly. So if Mr Armstrong can be removed, please. Thank you.
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