Director of Public Prosecutions v Backx
[2020] VCC 1567
•30 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-20-00099
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| LEIGHTON BACKX |
---
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 September 2020 | |
DATE OF SENTENCE: | 30 September 2020 | |
CASE MAY BE CITED AS: | DPP v Backx | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1567 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – SENTENCE.
Catchwords: One charge of cultivation of narcotic plant in a commercial quantity – Plea of guilty – 149 cannabis plants seized – Total weight of cannabis plants was 5.5329 kilograms – Genuine remorse – Relevant prior criminal history – Prospects of rehabilitation assessed positively but with caution – Category 2 offence – s 5(2H) exceptions not satisfied – Verdins principle 5 – Circumstances surrounding COVID-19 taken into account.
Legislation Cited: Drugs, Poisons and Controlled Substances Act1981 ss 72A, 81; Sentencing Act 1991 ss 5(2H), 5(2HC), 6AAA,10A,18; Mental Health Act 2014 s 4.
Sentence: Imprisonment for a period of 2 years, with a non-parole period of 12 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Edwards | Office of Public Prosecutions |
| For the Accused | Mr D Swan | Victoria Legal Aid |
HIS HONOUR:
Introduction
Leighton Backx, you have pleaded guilty to one charge of cultivation of a narcotic plant, namely cannabis, in a quantity not less than the commercial quantity contrary to s 72A of the Drugs, Poisons and Controlled Substances Act1981, which carries a maximum penalty of 25 years imprisonment.
You have also admitted your prior criminal history.
Circumstances of the Offending
A prosecution opening was tendered on the plea and may be summarised as follows:
You have lived at the house located at 134 Bentons Road, Mount Martha, for approximately 10 years. You live there with your son, Lachlan Backx, and ex-partner, Joanne Green.
The backyard houses a large orange shed, a greenhouse and a small green shed.
Initial Search
On 31 October 2019 at approximately 5.35am police attended your house to execute a search warrant, pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act1981.
The front door was answered by Ms Green. Police located you asleep in your bedroom. You were woken up and informed that the police had a search warrant for the address. Police escorted you to the loungeroom area of the house and provided you with a copy of the search warrant. At this point you produced a set of keys and told police, ‘I’ll show you what I’ve got'.
You took police to the backyard and unlocked the door of the large orange shed. Inside were two tents with lights, one larger than the other, in which police observed cannabis plants to be growing.
You then pointed to the greenhouse across the backyard and told police, ‘I’ve got more in there'. You were placed under arrest.
A systematic search of the property was conducted by police and the following items were seized:
· in the large orange shed:
o in the larger tent were 18 cannabis L. plants weighing a total of 2.86 kilograms; and
o in the smaller tent were 57 cannabis L. plants, weighing a total of 300.9 grams;
·
in a garden bed in front of the large orange shed were three
cannabis L. plants in a black tray, weighing a total of 10.8 grams;
·
in the greenhouse were 63 cannabis L. plants, weighing a total of
2.04 kilograms;
·
in a garden bed to the side of the small, green shed were four
cannabis L. plants in pots, weighing a total of 249.7 grams;
· in a garden bed in front of the small green shed were four cannabis L. plants in pots, weighing a total of 71.5 grams;
· in your bedroom were:
o seven partially dried cannabis L. plants;
o a cardboard box containing dried cannabis L. matter;
o an orange clipboard containing cannabis L. seeds labelled ‘Anonymous Aussie Seeds’; and
o a black iPhone.
· Inside a fridge in the kitchen were:
o eight containers containing cannabis L. seeds labelled ‘Anonymous Aussie Seeds’;
o five green blocks of butter;
o one container containing four baked cookies;
o two containers containing loose cannabis L. matter; and
o two jars containing a thick oil;
· in the kitchen were:
o drug packaging and paraphernalia inside a drawer;
o a set of digital scales; and
o 11 plastic containers containing cannabis L. seeds in a cupboard;
· in the loungeroom were:
o seven containers containing dried cannabis L. matter; and
o two cardboard boxes containing dried cannabis L. matter;
· in another bedroom:
o a cardboard box containing dried cannabis L. matter; and
o a small plastic container containing dried cannabis L. matter.
The total amount of items seized were:
· 149 cannabis L. plants weighing a total of 5.5329 kilograms;
· 105.7 grams of cannabis L. seeds;
· 924.2 grams of pure dried cannabis L. matter; and
· 257.8 grams of dried cannabis L. matter mixed with other unidentifiable matter.
At the conclusion of the search you were transferred to Mornington Police Station.
Further Investigation
A subsequent drug analysis was conducted on the five blocks of butter, four cookies and two jars of oil. The analysis concluded that all the items contained tetrahydrocannabinol.
There was a total quantity of 509.5 grams of butter and cookies and
2741.5 grams of the oil. The analysis did not identify the specific amount of tetrahydrocannabinol in each item.
Police analysed your black iPhone seized from your bedroom. Several text messages and photographs were downloaded by police which indicate you had, in the past, offered to sell various types of cannabis L.
Interview
At 1.04pm on 31 October 2019 you were interviewed by police and made frank admissions to the cultivation. You stated that you had been growing cannabis for ’35 years’ and that you did so to keep yourself supplied and self-sufficient so that you do not have to pay money to a dealer.
With respect to the cannabis seized from the orange shed, you stated that you set up a basic hydroponic setup and grew it for personal use.
With respect to the cannabis seized from the greenhouse and garden beds, you stated that some of the plants you would not use again and throw out.
With respect to the cannabis seized from the loungeroom, you stated that it was your cannabis stick containing dried cannabis that you would smoke and that you personally used 8 to 10 grams of cannabis a day for pain, anxiety, stress and depression.
With respect to the cannabis seized in the second bedroom you stated that you put it there to ‘put it out of sight’ and you had forgotten it was there.
With respect to the items seized from the fridge, you stated that you used the cannabis infused butter to make biscuits and cakes. In relation to the oil you stated that you ingested it.
With respect to your mobile phone, you stated that you did not sell cannabis ‘for profit and gain’ but that you had given it to a few of your friends.
Nature and Gravity of the Offending
As cultivating a commercial quantity of cannabis carries a maximum penalty of 25 years imprisonment, it is by its nature a serious offence. It is also classified as a Category 2 offence. In this instance, the total number of plants seized was 149 plants with a weight of 5.5329 kilograms, together with cannabis seeds and dried cannabis amounting to a total weight of approximately 6.5 kilograms. Therefore, it is the number of plants rather than the total weight of the cannabis that elevates the charge into the commercial category.
Mr Swan, who appeared on your behalf, submitted that the low total weight is attributable to the fact that the plants were seedlings and it was also noted that the botanists reports recorded that 57 of the plants were found to have a total weight of 300.6 grams.
Mr Swan highlighted a number of matters that, in combination, support the submission that the offending falls towards the lower end. It was pointed out that the cultivation did not have the usual commercial hallmarks such as an electrical bypass or use of a separate property from your home. Further, in your record of interview you state that you grew for personal use for yourself and other occupants of your home, occasionally providing cannabis to your friends. You are a long time user of cannabis and you stated that you provide for yourself and family so that they do not have to source cannabis from drug dealers. You also stated that while the number of plants is significant, you are only able to use about 10 in every 100.
Ms Edwards, who appeared on behalf of the Director of Public Prosecutions, submitted that the offending is serious and does not accept the submission by your counsel that the offending was 'not overly sophisticated’. She points to the relatively elaborate setup, including the organisation of seeds and other products and submits that the text messages on your phone exclude the conclusion that the entire cultivation was for personal use.
In my view, when considering all of the circumstances, including your cooperation and frankness in your record of interview, I accept that the cannabis you grew was distributed in the way you outline in your record of interview. That said, the cultivation of cannabis in large amounts remains a serious offence and even if distributed only to family and associates, it is a drug that can have serious detrimental effects in the community.
In all the circumstances, while I accept that in this instance your offending does not represent the most serious example of this offence when compared to other, more sophisticated, hydroponic setups, it is still serious offending.
Personal Circumstances
I turn to your personal circumstances. You are 49 years of age and are the third eldest of four children. Your parents separated when you were five years of age and you remained with your mother after the separation, maintaining regular contact with your father in your childhood.
You report that your older brother was physically, sexually and emotionally abusive of you following your parents’ divorce and that you suffered that abuse over the next 10 years until you were about 16 and able to defend yourself. You only came to understand the effect of that abuse when you were about
aged 19. You confronted your brother and disclosed the abuse to your family. As a result, this led to a long term fracture within the family unit, including your parents, who did not acknowledge what had occurred. You also report that you believe your younger brother was also subjected to abuse by your elder brother. Currently you have limited contact with your immediate family, however, you maintain a relationship with your younger adopted sister from your father’s second marriage.
You completed your education to Year 9, commencing Year 10, but being asked to leave by the school as a result of behavioural issues. Following school, you commenced employment. You started a window cleaning business with your partner and operated that business from 1994 to 2013. The business was wound up in 2013 following the end of your marriage and a domestic violence incident which occurred between you and your partner.
You then relocated to Queensland and had difficulty finding employment. On your return to Victoria you were employed as a carpet cleaner for five years. Ultimately that employment ended after you were requested by your employer to provide drug testing, which you refused. At the time you were smoking cannabis regularly and were well aware that you would have returned a positive result. You are currently living on government benefits.
You were in a long term relationship with your former partner, that relationship ending in 2013. Notwithstanding that the relationship broke down, you have remained close and continue to live together in the home where the offending occurred. You have an adult son who lives with you.
As to your drug use, you report that you were introduced to cannabis when you were seven years of age. By the age of 11 you became a daily user. For the following 37 years you have been a daily cannabis user. At the time of the offending you report that you were consuming approximately two ounces per week and that your son and former partner were also consuming cannabis at similar levels. You stated to your psychologist that you used cannabis primarily in response to depressive symptoms, anxiety and post traumatic stress disorder (PTSD). You also report that you used cannabis to manage pain in relation to a shoulder injury suffered as a result of an assault.
The assault you refer to occurred two years ago when a man appeared at your front door and struck you with a metal bar and punched you. You suffered a shoulder tendon injury which continues to give you pain.
After being charged with these offences you have ceased cannabis entirely and have remained abstinent. You have sought assistance from your general practitioner and have now been provided with medication to deal with your anxiety and depression and you have provided to the court a recent urine screen which demonstrates that you are currently drug free.
A report was prepared by clinical psychologist, Kerrin Danswan, and tendered on the plea, dated 30 March 2020. Ms Danswan provides a detailed personal and psychological history and conducted some psychometric testing. In summary Ms Danswan is of the opinion that you present with symptoms of PTSD and a chronic history of depressive symptoms stemming from childhood sexual abuse and the assault in your home two years ago, which re-triggered your existing PTSD symptoms.
As a result of testing, Ms Danswan reports that you are in the, ‘extremely severe’ range for depression, the ‘severe’ range for anxiety and ‘moderate’ range for stress. She concludes that your symptoms can be accounted under the banner of PTSD. Taking into account the results for testing, together with her clinical opinion, Ms Danswan is of the opinion that you were suffering PTSD and cannabis use disorder in the months prior to, and at the time of, your offending.
Ms Danswan acknowledges the fact that you have ceased cannabis use and have developed insight into the impact cannabis use has had in your life. She is of the view that you now have supports in place to assist you in maintaining your drug free status, however, notes that you need ongoing psychological treatment to assist you. Ms Danswan also provided an opinion in relation to your general risk of reoffending and considers you to be a low risk. She bases that opinion on your relatively limited criminal history and current abstinence from cannabis use for approximately six months, together with your willingness to engage in ongoing drug and alcohol counselling.
In the report of Ms Danswan she also formed the view that if you were subjected to the prison environment your mental health is likely to be ‘triggered’ as you would not have the supports that you would have in the community.
Ms Danswan gave evidence on the plea and largely adopted the findings in her written report. She confirmed that your PTSD would be ongoing but acknowledged the progress you have made in obtaining assistance with medication to deal with the depressive symptoms associated with the condition. While speculating to a degree, Ms Danswan stated that there is a risk that if you were to go into custody, symptoms such as your hypervigilance may be triggered by the stressful environment. She also stated that in the prison environment you may be at risk of panic attacks.
When you were bailed on this matter after a day in custody, you engaged in the Court Integrated Services Program. A report was tendered in relation to your progress on that program, dated 12 December 2019. While the report reflects only a month of involvement in the program, the writer comments that you have demonstrated consistent and positive engagement. Further, that you recognise that your drug use is problematic and has contributed to your involvement in the criminal justice system.
A letter was tendered from Stepping Up Consortium which is a not for profit organisation providing support for people affected by drugs and alcohol. The letter, prepared by alcohol and drug clinician Pam Williams, acknowledges that you have engaged with the service and attended all scheduled alcohol and drug counselling sessions. Ms Williams notes that you understand the negative impact of your drug use and also that you were using cannabis to regulate your emotions. Ms Williams also states that you have been attending your general practitioner and are on antidepressant medication. Ms Williams notes, ‘the medication has assisted Mr Backx in feeling emotionally and physically well. He has described feeling happy and at peace with his life'.
References were tendered from your son, Lachlan Backx, your ex partner Joanne Green, your father, Antonius Backx, and your stepmother, Gaynor Backx. Each of the writers confirm that you are now drug free and they each speak of your otherwise good character. It is clear from your son’s letter that you enjoy a positive relationship with him, and he continues to support you.
Relevant Sentencing Considerations
Mr Swan provided detailed and helpful written submissions outlining matters in mitigation upon which you rely.
Turning first to your plea of guilty. You pleaded guilty at the committal mention stage, which has of course saved the community the cost and time of a committal and a trial and as such, it has facilitated the course of justice. I accept that your plea of guilty is an early plea.
I also note that when the police attended your home you were fully cooperative and provided your mobile phone and passcodes for examination. You also made full and frank admissions in your record of interview. Those facts, together with your immediate engagement of assistance, in my view, demonstrates a degree of genuine remorse.
As to your prospects of rehabilitation, it was submitted that steps you have taken following your arrest demonstrate that you have accepted that you were a heavy cannabis user and that you are beginning to address the core issues that have contributed to your ongoing use. The evidence supports that conclusion. As noted, you have a criminal history with some relevant prior matters, although I note that your last cannabis related matter was in 1990. That said, you acknowledge a very serious and long term cannabis addiction and, despite your positive response and abstinence, you will have many hurdles to overcome as you continue your rehabilitation. As such, I assess your prospects positively but with a degree of caution.
Ms Edwards submitted that general deterrence must be the primary sentencing consideration. That is, a message must be conveyed that persons who choose to be involved in commercial cultivation of cannabis will inevitably face terms of imprisonment. Denunciation of your conduct is also a relevant sentencing consideration in this instance.
As to specific deterrence, for similar reasons linked to your rehabilitation, you do have relevant prior history and you will face temptation to use again. As such, in my view, specific deterrence remains a relevant sentencing consideration. Ms Edwards also submitted that given your admission that you have been cultivating cannabis for some 35 years, this fact adds to the weight that must be attributed to specific deterrence.
As cultivation of a commercial quantity of cannabis is a Category 2 offence, the Court must make a custodial order unless satisfied that one of the exceptions pursuant to s 5(2H) of the Sentencing Act 1991 applies.
Mr Swan submitted that your circumstances enliven two of the exceptions. The first is that s 5(2H)(c)(ii) applies. That is, that prison will have a substantially and materially greater burden on you because of the impaired mental functioning you suffer. Mr Swan relied primarily on the evidence of Ms Danswan, ultimately submitting that the possible risks you face in relation to your PTSD would subject you to substantially and materially greater than the ordinary burden or risks of imprisonment.
Ms Edwards submitted that the evidence in relation to your PTSD does not satisfy the meaning of ‘impaired mental functioning’, which, by s 10A of the Sentencing Act 1991, has the same meaning as ‘mental illness’ as described in s 4 of the Mental Health Act 2014, that is, ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’. Ms Danswan did not give specific evidence to address this definition. However, in my view, the evidence in relation to your current PTSD and its symptoms is that it is under control. As noted, Ms Williams, whose report was prepared some three months after Ms Danswan’s report, states that you are feeling emotionally and physically well. By that time, you had also been abstinent from cannabis for some eight months. Ms Danswan’s concerns are more related to the possible risks you face if you are exposed to the prison environment. In my view, your PTSD does not satisfy the definition of ‘mental illness’ in the Mental Health Act 2014, however even if I am wrong about that assessment, in my opinion, your impaired mental functioning will not result in you facing substantially and materially greater than the ordinary burden or risks of imprisonment.
The second exception relied on by Mr Swan is s 5(2H)(e), that there are substantial and compelling circumstances that are exceptional and rare.
Mr Swan points to a combination of matters that in his submission amount to substantial and compelling reasons, being the presence of the COVID-19 pandemic, including reported cases in the prison system, your personal circumstances and the low level of offending.
Mr Swan conceded that this test sets a very high hurdle, given the restrictive provisions of s 5(2HC) that must be applied. In my view, without repeating the matters relied on in the written and oral submissions, they are, in combination, unable to satisfy the very high hurdle required.
While you have not been able to satisfy the exceptions pursuant to s 5(2H), I do accept that your PTSD will be more difficult to manage in prison and therefore Verdins principle 5 is able to be taken into account to a limited extent. However, the evidence does not allow for consideration of Verdins principle 6, that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
I take into account the current circumstances surrounding the COVID‑19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prisons have been suspended, there has been a reduction of services and programs, and some prisoners are experiencing increased lockdown periods. These restrictions cause prisoners and their families additional stress. In your specific circumstances, as you are unable to satisfy any of the exceptions pursuant to s 5(2H) and will be required to serve a term of imprisonment, you will be required to undergo a 14 day quarantine period and possible further eight day quarantine if moved to another prison, which I also take into account.
Sentence
Leighton Backx, on Charge 1, cultivating a narcotic plant in not less than a commercial quantity, you are convicted and sentenced to 2 years imprisonment. I direct that you serve 12 months imprisonment before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 1 day be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 3 years with a non-parole period of 2 years.
- - -
0
0
0