Director of Public Prosecutions v Bannister

[2022] VCC 1705

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-02173

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEREMY BANNISTER

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2022
DATE OF SENTENCE:	21 September 2022
CASE MAY BE CITED AS:	DPP v Bannister
MEDIUM NEUTRAL CITATION:	[2022] VCC 1705

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Cultivate a narcotic plant – Cannabis L – sophisticated   enterprise – cultivating cannabis simpliciter

Legislation Cited:  Criminal Procedure Act 2009; s 145, s242, Crimes Act   1958; s465

Cases Cited:  Worboyes v The Queen [2021] VSCA 169; Kennedy v The   Crown [2019] VSCA 127

Sentence:  Convicted and sentenced to nine months' imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Dickens
For the Accused	Mr W. Barker

HIS HONOUR:

1Jeremy Bannister, on 21 September 2022, that is today, you pleaded guilty to the charge of cultivating a narcotic plant, cannabis L.  This was a single charge on Indictment No.L12669419.  The maximum penalty for this offence is
15 years' imprisonment.

2You consented to two related summary offences being heard at the same time as your plea. These charges were transferred to this court by virtue of ss145 and 242 of the Criminal Procedure Act.  You pleaded guilty to the following related summary charges: 

·Charge 8, fraudulent us of a registration label.  This charge has a maximum penalty of 10 penalty units or two months' imprisonment; and

·Charge 9, fraudulent use of an identification plate on a vehicle.  This charge has a maximum penalty of 60 penalty units or six months' imprisonment.

3You admitted your prior criminal history.  Your prior convictions for dishonesty date back to 2010.  You have had two suspended gaol terms after actually serving a period of 18 months' imprisonment in respect of one of them.  In 2017 your last court appearance disposition was for dishonesty offences.  You were placed on a two year CCO.  That CCO was completed 10 months before this offending.  You have served, as I understand it, two days' pre-sentence detention before being granted bail in respect of these charges.

The Circumstances of Your Offending

4The prosecutor tendered and read from a Summary of Prosecution Opening dated 20 April 2022.  It was Exhibit “A” on the plea.  At the time of the offending you were 35 years old.  You are now 37.  At the time of your offending you were living in Point Cook with your wife and two young children, then aged 18 and six months respectively. 

5I will refer heavily to Exhibit A when describing the actual offending. On Tuesday, 13 October 2020 police attended a unit 12, which was a factory in Springvale, in relation to a report of a suspicious vehicle.  On arrival the police observed that a black BMW SUV was parked at the front of Unit 12, bearing New South Wales registration number DLU 04Q.  These plates were affixed to both the front and rear of the vehicle.   The police examined the registration plates and formed the view that the plates were cloned and fraudulent due to the font that was used on them.  Database checks reveal that the New South Wales registration DLU U4Q was registered to a black BMW SUV.  The black BMW SUV was towed to Allcar Towing secure depot located in Dandenong.  The plates were subsequently found to be false and in fact belonging to a vehicle in Queensland.

6A 2009 Mitsubishi van bearing Victorian registration plate 1QP 2WQ, was also parked in front of the roller door to the factory.  VicRoads database revealed that that vehicle was registered to Thrifty Vehicle Rentals.  Police then observed the roller door located at the front of the factory had been jacked up approximately 60 centimetres from the ground and a strong odour of cannabis was coming from within that factory.

7Members of the Greater Dandenong Crime Investigation Unit then attended at that address.  They discovered a sophisticated hydroponic cannabis set-up located inside.  A crime scene guard was established.

8The next day police returned and again went into the factory at Springvale, pursuant to a warrant.  Upon entering the premises the police located a sophisticated hydroponic set-up which was being utilised to cultivate cannabis.  Inside the factory there was a shipping container in a small room that had been modified and set up for the purposes of growing cannabis.  Exhibit “B” was tendered and there were photographs of the crop in situ.

9In the shipping container there were leads plugged into fans and power, and there were also two orange drums set up containing water with black leads going into the shipping container.  In the smaller room there were two more orange drums and bags with growth hormones.  There were windows by the front door of the premises that were blacked out and there was no other entry or exit points or windows.

10Relevantly, during the search under warrant the following items were located: 

·20 cannabis plants at various stages of growth in what was referred to as Room 1, and there were only nine cannabis plants at various stages of growth inside the shipping container located within the factory. 

·Other items found was a Daniel Doughnut cup; and

·a Blue Bolt Gatorade bottle. 

11The police then obtained a swab from the mouth area of the Daniel Doughnut cup and the Blue Bolt Gatorade bottle for forensic analysis.  During the search of the premises other police seized a cigarette butt for forensic analysis to be conducted.

12Two search warrants pursuant to the Crimes Act were executed on the
BMW SUV bearing New South Wales registration number DLU 04Q, and the Mitsubishi vehicle, 1QP 2WQ.  Police then conducted a search of the Mitsubishi truck, located and seizing the following items: 

·a work permit in your name dated 19 September 2020; and

·a black baseball cap.

13The same day police contacted Thrifty Rental to make enquiries about the Mitsubishi truck.  This revealed that you had rented the truck on
3 September 2020.  The rental agreement included a copy of your licence, which you had provided to Thrifty at the time you hired the truck.

14An analysis of a total of 109 cannabis plants  was seized from the premises and they weighed 26.49 kilograms.  As I said during the course of your plea, that was right on the qualifying mark for a commercial quantity of cannabis.

15Forensic analysis was conducted on the sample taken from your
Daniel Doughnut cup and the Gatorade bottle and the DNA was yours on all three items.

16On 9 November 2020 police viewed CCTV at the Puma Service Station, which is located down the road at 151 Springvale Road, Springvale, which captured you driving the black BMW SUV with the fraudulent registration number plates on it and filling up that vehicle with fuel.

17On Thursday, 12 November 2020 you attended at the Springvale police station for an interview by appointment.  You were interviewed by the police and you exercised your right to make a no comment record of interview.  You were then remanded in custody to appear at the Melbourne Magistrates' Court on the following day, 13 November 2020.  You then were released from police custody on bail to attend at Melbourne Magistrates' Court on 12 February 2021.

18The crop was a sophisticated enterprise which at the date of the offence was just over the commercial quantity threshold by a number of plants, 109, and weight, 26.49 kilograms.  Your plea of guilty is to the charge of cultivating cannabis simpliciter, which includes the trafficable purpose.

Your Personal Circumstances

19You are now 37 years old.  You live with your wife of 10 years and your three very young children, aged three, two and eight months of age.  Your wife works in IT but is currently on maternity leave.  She attended here in court to support you.  She has also written a reference in respect of you for this plea hearing.  It was Exhibit 4.  Your wife is the breadwinner in the family.  You are a Centrelink client. 

20Both of your parents are alive and retired in Strathdale.  You are the eldest child of your sibship.  You have a younger brother and a sister, both of whom live and work in the Bendigo area.  You grew up on a poultry farm in Lockwood.  You attended Lockwood South Primary School.  You worked on the poultry farm whilst you were at school.  When you were about 12 to 13 years of age your father was injured in a motorbike accident.  As a result of his injuries your father was wheelchair bound from then on and is today.

21You started high school at Girton Grammar School in Bendigo.  In Year 8 you were suspended due to smoking cannabis out of the school.  You ultimately left school at Year 11 and commenced working on the poultry farm full time.  Your work history then, is that you have done some modelling, you worked in a supermarket and you did retail sales for Telstra. You have been a professional poker player for many years.  You have not been in paid employment for the past five years.  You have expressed an interest to start your own tilt tray or tow truck business.  To date this project has not progressed to full fruition but you have purchased two vehicles and working to start this tow truck business.

22You have admitted your prior criminal history.  In 2010 you were sentenced for numerous obtain property by deception charges and sentenced to a total effective sentence of three years' imprisonment.  Eighteen months of that sentence was suspended for a period of two years.  In effect you served a total of 18 months' imprisonment for your first County Court appearance. In 2014 you were again sentenced for dishonesty offences at Sunshine Magistrates' Court.  The sentence on that occasion was an aggregate of five months' imprisonment wholly suspended for a period of 18 months.

23Your most recent brush with the criminal justice system prior to the offending before this court was in December 2017.  At the Melbourne Magistrates' Court you were convicted for dishonesty offences and placed on a two year CCO with work, drug and alcohol and mental health conditions.  You successfully completed the CCO in December 2019.  It is 10 months later that you committed the offence which is now before the court.

24You have been assessed by Amy Dluzniak, a neuropsychologist, and Ian Mackinnon, who is a consultant psychologist, for the purpose of this plea.
Mr Mackinnon's report, dated 25 April 2022 was Exhibit 2.  Mr Mackinnon has diagnosed you as having ADHD.  He also has the opinion that you also fit the criteria for polysubstance abuse disorder.  Mr Mackinnon's opinion was that you would benefit from counselling and a psychiatric review, as in a psychiatrist's review of your pharmacological regime.  Mr Mackinnon expressed the opinion that imprisonment would be a difficult environment for you with the prospect of a deterioration in your mental health.

25Ms Dluzniak assessed you to determine if you had an acquired brain injury as a result of a motorcycle accident that you had when you were a 14 years old.  She accepts that you have ADHD and this was prior to your brain injury at the age of 14.  Ms Dluzniak did not find any cognitive impairment which would explain the offending in this case.  In her opinion imprisonment would not weigh more heavily on you nor render you more vulnerable in prison.  You have been assessed as being of average intelligence on the full IQ score.  Ms Dluzniak is not satisfied there is any strong evidence of an acquired brain injury that has resulted in any significant functional impairment.

26I take your personal circumstances into account when imposing a just sentence upon you.

Sentencing Considerations

27The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation of you, the prisoner, and the denunciation of your actions and the protection of the community. 

28I must have regard to the seriousness of your offence, your culpability for it and your personal circumstances.  I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that offenders such as yourself are rehabilitated and reintegrated into society.

29I take into account your plea of guilty.  Your plea of guilty is at an early stage.  Your plea of guilty to this charge has utilitarian value to the community.  Your plea of guilty has saved the community the expense of court proceedings, including a trial.  Your plea of guilty has given a certain outcome for this case and your plea of guilty is evidence of your remorse.  I accept that you are remorseful for your offending.  Your plea also demonstrates that you are willing to facilitate the course of justice in the community and it indicates that you accept your responsibility for your criminal conduct in this case.

30Relevantly, a pronouncement of the Court of Appeal in the case of
Worboyes v The Queen reported at [2021] VSCA 169, has application in your sentencing process, and I will read it out in full, the relevant part. The court stated as follows:

'There are, it must be recognised, a real disincentive in the current climate for an accused person or persons who are on bail to plead guilty, particularly if the sentence of imprisonment is on the cards.  As the judge observed in the present case a newly sentenced prisoner in times of the pandemic will spend the first two weeks of his or her sentence in isolation.  Thereafter he or she will have very restricted opportunity for contact with family and friends.  Further, rehabilitative and other programs within the prison are severely curtailed.  That this is so is notorious.  These circumstances must render the prospect of imprisonment even more unpalatable than in the usual case and operates as a further deterrent to entry of a plea of guilty.  These disincentives to pleaded guilty must be balanced by a proper inducement through mitigation of sentence to accept guilt. 

Self-evidently, the other side of the coin is that there are real incentives for the cynical and unprincipled to exploit the delays resulting from the pandemic.  The longer the delay the more the memory (and enthusiasm) of witnesses dims and the preparedness of victims to actively and willingly participate is tested, with associated forensic disadvantages to the prosecution.  In ordinary times with ordinary delays the lot of victims and witnesses already is not a happy one, the longer the delays, the more pronounced their plight. 

Further and significantly, criminal jury trials in times of the pandemic are far more resourced to pleading than in times where the threat of serious infection is not present.  One of the aspirations of encouraging utilitarian pleas of guilty must be that the scant resources upon which there is great demand will be to some extent freed up. 

For these reasons we consider, all other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight and mitigation than a similar plea entered at a time when the community and the courts are not so afflicted by the pandemic's effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time, although the sentencing judge need not quantify the extent of any discount, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.’

31As part of the governing principles to be considered in sentencing, I must take into account the current sentencing practices.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases.  I have considered the statistics in relation to the sentences and current sentencing practices.  I am mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.

32Your counsel, Mr Barker, has submitted that the appropriate sentence in your case is the imposition of a community corrections order (“CCO”).  He submitted your plea of guilty, your rehabilitation progress to this time, the hardship that imprisonment would visit upon you and your family and the personal circumstances, support the imposition of a CCO as an appropriate penalty.

33The provisions of the Sentencing Act and in particular s5(4C), which directs a court or a sentencing court to consider whether a community corrections order can achieve the purpose for which a sentence is to be imposed.  I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case.  For the reasons set out in this decision I find that a community corrections order would not satisfy all the sentencing considerations that come to bear on your offending. 

34The Court of Appeal has made a number of pronouncements on sentencing in cases of cultivating narcotic plants in not less than a commercial quantity.  Your charge is not for a commercial quantity of cannabis but cultivate cannabis simpliciter.  The amount of cannabis in your case, both by the number of plants and the weight of the cannabis, are the commercial quantities set out in the legislation.

35Recently the Court of Appeal in the case of Kennedy v The Crown [2019] VSCA 127 at 47 stated as follows:

'In paragraph [140] of Nguyen the court referred to the observations made by Nettle JA in Doan v The Queen, that in cases involving the cultivation of narcotic plant in not less than a commercial quantity general deterrence is at the forefront of sentencing considerations.  Again with appropriate adaptation the same principle applies to cases involving cultivation of narcotic plant simpliciter.  It is well established that in cases involving the cultivation of narcotic plants or trafficking of a narcotic substance for financial gain, the principle of general deterrence is accorded significant weight and is quite commonly the predominant sentencing consideration The courts have recognised that in order to protect members of the community from the harm caused by the cultivation and distribution of illicit drugs the courts must impose sentences which are sufficient to deter likeminded persons from being lured into such activities by the prospect of large profits that can be gained from them.  In the present case the reference to that aspect of Nguyen was appropriate.  The applicant had engaged in the cultivation of a significant quantity of cannabis in the factory premises for a period of two years.  The set-up of the premises was highly organised and quite sophisticated.  The applicant was plainly motivated by the prospect of financial gain.  In such cases it is clear that the principle of general deterrence must be accorded appropriate weight for the reasons just discussed'.

36Clearly, general deterrence has a significant part to play in this sentencing process.  Parliament has set a maximum penalty of 15 years' imprisonment for the offence.  The offending involved a sophisticated system of growing of cannabis.  The factory was leased in Springvale.  It was originally leased for the purposes of candle making but clearly the cannabis crop became the main focus.  You were not working at the time, before and around the offence date.  You had vehicles at the factory which were not in your name but ultimately were traceable to you.  It was through the vehicles and the lease of the factory that you were ultimately detected as the grower.  In this case you were the owner, grower and crop sitter all rolled into one.  The crop itself was substantial.

37I do not accept that you started off this crop on an experimentation basis or growing it for your own use.  I find that the only conclusion to draw is that you were engaged in this activity and offending for financial gain.

38It was submitted on your behalf that with a term of imprisonment, a hardship would then result to your wife and your three young children, would make your time in custody more onerous for you. 

39The principles relevant to family hardship are: 

(1) reliance on family hardship, that is hardship which imprisonment creates for persons other than the offender, is itself an appeal for mercy;

(2) properly understood, therefore, the purpose and effect of the exceptional circumstances test is to limit the availability of the court's discretion to exercise mercy on that ground;

(3) accordingly, there can be no residual discretion to exercise mercy on the grounds of family hardship where the relevant circumstances are not shown to be exceptional; and

(4) the effect on the offender of hardship caused to family members by his or her imprisonment raises different considerations to which the exceptional circumstances test has no application.

40Your council concedes that exceptional circumstances do not apply in your case.  I have no doubt that your imprisonment will have serious adverse effects upon your wife and your three very young children.  The court's primary function is to impose a sentence commensurate with the gravity of the crime.  In this case the exceptional circumstances have not been made out.

41Your counsel appropriately conceded that principles of Verdins case has no application to your sentencing process here. 

42There has been a delay of two years between your arrest and the day of your sentence.  It was submitted that you have embarked on a path of rehabilitation including pursuing the commencement of a tow truck business, having a third child and not offending whilst you were on bail over that period.  I have taken into account the effect of the delay in your case will have on your rehabilitation when finalising your sentence in this case.

43I assess your prospects of rehabilitation as mixed.  On the one hand you have the support of your parents, your wife and the responsibility of three very young children.  You have embarked on the process of starting a tow truck business.  The counter-balancing factor is your prior criminal history of dishonesty offending and the potential for easy financial gain from this offending only
10 months after you completed a community corrections order.  These factors add weight to the assessment of specific deterrence in your case.

44The sentencing considerations of general and specific deterrence, denunciation of your actions and protection of the community are the most important sentencing considerations in your case.  A term of imprisonment is the only appropriate sentence.  I sentence you as follows. 

45Would you stand, please?

46You are convicted and sentenced to nine months' imprisonment on Charge 1.  On Summary Charge 8 you are convicted and fined $200.  On Summary Charge 9 you are convicted and sentenced to one month's imprisonment.  That is a total effective sentence of nine months' imprisonment.

47Pursuant to s6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to two years with a non-parole period of 18 months.

48I declare that you have served two days' pre-sentence detention and I have signed the disposal order.

49Is there anything else?

50MS DICKENS:  As Your Honour pleases.

51MR BARKER:  As Your Honour pleases.  No, Your Honour.

52HIS HONOUR:  Thank you.  Thanks.  If you would remove the prisoner.  Can he just - - -

53MR BARKER:  He is just pointing out his possessions, Your Honour.

54HIS HONOUR:  Yes.  Now I know.  My tipstaff will give you the bag.  Thanks.  Thanks, counsel, for your assistance in this matter.  Mrs Bannister, good luck with those children.

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