Director of Public Prosecutions v Barton

[2013] VCC 1237

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

AT MELBOURNE

CRIMINAL DIVISION

CR-13-00792

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT BARTON

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2013
DATE OF SENTENCE:	29 August 2013
CASE MAY BE CITED AS:	DPP v Barton
MEDIUM NEUTRAL CITATION:	[2013] VCC 1237

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP (Plea)                  (Sentence)	Mr M. Roper Mr J. Ong	OPP
For the Accused (Plea)   (Sentence)	Mr M. White Ms K. Rolfe	Matthew White & Associates

HIS HONOUR:

1       Brett Barton you have pleaded guilty to one count of cultivation of narcotic plant in not less than a commercial quantity. The maximum penalty for this  offence is 25 years imprisonment.

2       I have heard a summary of your offending from Mr Roper.  That summary is attached to these remarks as Exhibit “A”.

3       Briefly, between 4 September 2012 and 29 January 2013, you were involved in the cultivation of a narcotic plant in a commercial quantity, namely cannabis L.  On the 15^th February 2012 you began to lease a factory building in Cheltenham for business and storage purposes.  You defaulted in the payment of rent and the responsible real estate agents acted to repossess the property.  On 29 January 2013 police attended the property and a search was conducted. On the ground floor they found three rooms being used as hydroponic cannabis growing rooms.  An elaborate system of lighting, exhausts, electrical transformers, carbon filters and water channels were discovered. There were a total of 160 cannabis plants with a combined weight (minus roots) of 132kg.  When stripped the plants produced a combined yield of air dried flowers and leaves of between 19.8 - 22.5kg.

4       You were contacted by police and on 30 January 2013 you attended the Caulfield Police Station where you were arrested and interviewed.  You were co-operative and made admissions.  You told the police that you had grown the cannabis for your own use and to share with your brother and a close friend who was suffering from cancer.  You pleaded guilty at the earliest opportunity and although you have no prior convictions for drug offences you do have prior convictions for drive whilst suspended.  You received two fully suspended jail terms in 2006 and a 4 month Intensive Corrections Order in 2009.  These orders did not dissuade you from further breaching the law.

5       When invited to provide a sentencing range, Mr Roper submitted that the appropriate order would be a sentence of between 2 to 3 years imprisonment with a minimum of 12 to 18 months.  He submitted that the quantity of drug was significant and the level of planning, organisation and investment was at odds with any submission based on the applicability of the Verdins principles.  Notwithstanding your lack of prior drug convictions and the guilty plea at the earliest opportunity, Mr Roper submitted that an immediate term of imprisonment was the only appropriate order given the central role of deterrence and punishment in sentencing in cases of this type. 

6       Mr White, your counsel, submitted that this was an unusual case and, because of that, a non-custodial sentence could be considered or alternatively a short term of imprisonment coupled with a Community Corrections Order.   

7       He submitted that your purpose in growing the cannabis was to support your habit.  In addition, you intended to share some of the cannabis with your brother and a close friend.  You gave evidence to that effect.  However, the quantity of cannabis located and the investment required to build such an  elaborate and sophisticated hydroponic system speaks strongly against you. Put simply, I do not accept your evidence on this issue.

8       Mr White also submitted that the Verdins principles are applicable in this case. This involves an analysis of matters that are personal to you.   

9       You are the eldest of 4 children born to Susan Barton and Paul Barton.  One of those children, Chandima is adopted.  Your parents separated when you were about 7 years old.  Both parents formed new relationships and you have four  step siblings.  One of those, LaToya is also adopted.

10      In a report provided to the court, Ms Lechner, psychologist, quotes you as saying that your family life was “basically happy” although you felt bullied by one of your brothers.

11      You were a good student, completing year 12 at Melbourne High School.  In a reference provided to the court, your mother describes how after completing your VCE you were accepted into Aviation Technology at Swinburne University.  During your second year you discovered that you were colour blind and would not be eligible to qualify as a commercial pilot.  You then transferred to a course in aeronautical engineering.  You did not complete that course. According to Ms Lechner, you then spent 4 to 5 years “wandering around” before returning to study bio medicine at Monash University.  Upon completing that course you followed your sister Renee into Chiropractic studies. You completed that course approximately 3 – 4 years ago.  In between these periods of study you worked in various different jobs without settling into any long term employment.    

12      There are two particular events within the history of your family that have profoundly affected all family members.  The first was the disclosure in 1983 (or thereabouts) of the sexual abuse of your sister Chandima.[1]  The second was the rape of your sister LaToya in 2003.  According to Ms Lechner you were particularly affected by this latter incident because your parents were overseas at the time and you felt that you had failed to protect your sister.  It is this event that led to a significant escalation in your cannabis use.  You gave evidence that at the time of your offending you were using an ounce of cannabis a day.

[1]See report of Carla Lechner at page 3 and the reference to the court from by Dr Renee Bowden.    

13      Ms Lechner stated in her report that you were married about ten years ago but the relationship was short lived.  It seems that you returned to live with your mother after the breakdown of your marriage.  You stopped living with her  about 18 months ago.  

14      You were recently diagnosed by Ms Lechner as presenting with “a cannabis dependency problem with an underlying depressive illness underlying the genesis and maintenance of his addiction.”  This diagnosis was made after your apprehension.  No doubt, your apprehension for these offences has aggravated your mental condition. Ms Lechner says that you have now reduced your cannabis intake significantly and as a result, your thinking has become less clouded.  She says you now recognise how cannabis adversely affected your judgment and decision making.

15      Mr Barton I am satisfied that it is more likely than not that you were suffering from some level of depression at the time you committed this offence.  Such a finding is consistent with the evidence given by your mother of her observations when you last lived with her.  Such a finding also accords with the report provided by Ms Lechner.  However, whilst I can be satisfied that you suffered from a form of mental illness at the time of the offending and that there was an interconnection between that illness and your cannabis usage, the evidence does not satisfy me, on balance, that your mental illness is relevant to the offending in such a way as to render you less blameworthy than you would otherwise have been.

16      You made a conscious choice to grow cannabis in a significant quantity.  You determined to do this in a factory that you had initially rented for another purpose and you built an elaborate, state of the art system that produced a large commercial crop.  The photographs of the system reveal the considerable skill and expertise you brought to its construction.  You were apparently able to build this system while living on your savings and borrowing money from members of your family.  All of your decisions were informed, considered and calculated.  There is no persuasive evidence indicating a causal connection between your mental condition and the offending; nor is there any persuasive evidence that your mental condition at the time of the offending compromised your ability to exercise appropriate judgment or your ability to make calm or rational choices or to think clearly.  There is no persuasive evidence that  your mental condition had the effect of making you  disinhibited or obscured your intention to commit the offence.  You knew what you were doing was wrong.   

17      Given the state of the evidence, I agree with the prosecutor’s submission that your mental condition at the time of the offending could not permit any  amelioration of sentence based on an application of the Verdins principles.

18      Immediately after your apprehension you consulted Dr Bettenay concerning your cannabis use and you have participated in counselling.  According to his report you have greatly lessened your cannabis intake and you have responded well to counselling.  You are also engaged in the First Step Program where you have been diagnosed as having drug use disorders, anxiety and depression.  You are currently on anti depressant medication. Given your determination to continue with treatment and the renewed support from your family, I find that your prospects for rehabilitation are generally good. Obviously, you will need to continue to work on reducing your cannabis intake.   

19      Mr Barton, I am satisfied that you are currently suffering from depression and this is a factor that should be taken into account in mitigation of sentence. Your mental illness would make any gaol term a more onerous experience than it would be for someone without such a condition.   

20      Mr Barton, the seriousness of this offence is reflected by the maximum sentence of 25 years imprisonment imposed by the legislation.  This is a matter that I must have significant regard to.  The Court of Appeal in Victoria has emphasised time and again the importance of general deterrence and punishment in sentencing for this type of offence.[2]  The offence is “quantity based” and this means that the quantity involved is a significant matter in sentencing.  Here, the hydroponic system is sophisticated and the quantity of cannabis large.  Notwithstanding the matters in mitigation, the only appropriate order is an immediate term of imprisonment.    

[2] For example see Buchanan JA in Duong [2006] VSCA 78 – “Generally this offence requires substantial punishment. The increasing number of hydroponic crops of cannabis detected in the last few years is material.” Also see The Queen v Mason [2006] VSCA 55 – “General deterrence is an important consideration in sentencing for the offence of cultivation of a commercial quantity of cannabis.”

21      There are matters in mitigation that speak towards a sentence that is at the lower end of the range.  Those matters are your lack of prior drug history, your early plea of guilty, your diagnosed mental illness and your reasonably good prospects for rehabilitation.

22      Mr Barton, will you stand please.

23      Mr Barton you will be convicted and sentenced to 24 months imprisonment. I fix a minimum of 9 months before you will be eligible for release on parole.

24      I make a declaration that you have already served one day by way of pre sentence detention.

25      If you had pleaded not guilty at trial and been found guilty, I would have sentenced you to a term of 36 months with a minimum of 21 months.

26      Just take a seat there for a moment, Mr Barton, there are some ancillary orders.  One of this is an order in relation to the undergoing of a forensic procedure.  What are your instructions on that, Ms Rolfe?

27      MS ROLFE:  My understanding is that it had been dealt with on the last occasion.

28      HIS HONOUR:  The application was made and my understanding was that it was consented to.

29      MS ROLFE:  Yes.

30      HIS HONOUR:  But I just want - - -

31      MS ROLFE:  If I may just briefly approach, Your Honour.

32      HIS HONOUR:  Yes, certainly.  Is that your understanding too, Mr Ong, it was consented to?

33      MR ONG:  Yes, it is, Your Honour.

34      MS ROLFE:  There's no opposition to that, Your Honour.

35      HIS HONOUR:  Yes, thank you.   Mr Barton, if I could just ask you to stand again please.

36 Mr Barton, pursuant to s 464ZF(2) of the Crimes Act 1958 I order that you undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with subdivision 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. This order is made for the following reasons – the seriousness of the offending, the order is not opposed and it is in the public interest for the order to be made. I must inform you, Mr Barton, that if you resist the taking of the sample reasonable force can be used to obtain a sample.

37      You can be seated.

38 Pursuant to s 78(1) of the Confiscation Act 1997 I order the forfeiture to the state of the property referred to in the schedule of the attached Disposal Order. And I direct that the property be placed in the custody of the Chief commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.

39      Are there any other orders that are sought?

40      MR ONG:  Your Honour, with respect to the pre-sentence detention, I understand that the accused was arrested on 30 January 2013.

41      HIS HONOUR:  Yes.

42      MR ONG:  And he was remanded by the bail justice and released only the next day.  On my calculation that should be two days pre-sentence detention.

43      HIS HONOUR:  Two days.

44      MR ONG:  Yes, Your Honour.

45      HIS HONOUR:  Thank you.  All right, well in those circumstances then I will amend my order to make a declaration that Mr Barton has served two days by way of pre-sentence detention.

46      COUNSEL:  As Your Honour pleases.

47      HIS HONOUR:  Yes, thank you.  I'm just going to sign off on the orders here but the prisoner can be removed, thank you.

(Orders signed and acknowledged.)

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