Director of Public Prosecutions v Bayona
[2014] VCC 487
•25 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00158
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER ADRIAN BAYONA |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2014 | |
DATE OF SENTENCE: | 25 March 2014 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Bayona | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 487 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – cultivation of commercial quantity of cannabis – theft of electricity – possession of cannabis
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Director of Public Prosecutions v Rzek [2003] VSCA 97
Sentence: Charges 1, 2 and 3 convicted and sentenced to 60 days’ imprisonment and a Community-Corrections Order for a period of two years.
Summary Charge 6 and Charge 7 – fine of $250 on each charge.
S6AAA declaration – 3 months’ imprisonment with a Community-Corrections Order for 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G Coghlan | Solicitor for Office Public Prosecutions |
| For the Accused | Mr B Penno | John Anile Pty |
HIS HONOUR:
1 Christopher Bayona, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis, the maximum penalty for which is 25 years' imprisonment; one charge of theft of electricity, the maximum penalty for which is 10 years' imprisonment; one charge of possession of cannabis, the maximum penalty for which is one year’s imprisonment; one summary charge of possession of prohibited weapon, namely a doubled-edged knife, the maximum penalty for which is two years' imprisonment, and one summary charge of possession of ammunition and bullets, the maximum penalty for which is 40 penalty units.
Circumstances of offending
2 The facts are set forth in exhibit A, the Prosecution plea opening, which I adopt.
3 On 8 November 2013, a search warrant was executed at premises at 17 Braelands Close, Caroline Springs, where you were living. In the course of the search, a substantial and sophisticated cannabis crop and growing system was found, occupying four rooms of the house. An electrical by-pass system and lighting equipment was found to have been installed. Further, 61 cannabis plants weighing 96 kilograms, with leaves and flowering heads weighing approximately 78.2 kilograms, were also located, together with four separate bags containing dried cannabis with a combined weight of 228 grams. Twenty-two shotgun cartridges, sixteen bullets and a double-edged knife were also found.
4 When interviewed by police, you said that plants and the growing system had been established by you, that you watered them twice a day, that the crop was for your own use and that you had been living in the house for a period of about eight weeks. You did not give an explanation for the possession of the ammunition, but said that the knife was a gift for your brother.
5 Subsequently, it was established the electrical bypass system in the premises was used to steal electricity to a total value of $8,452.03.
6 In the course of your plea, your counsel said in fact the crop was not established by you, but that in some time in August 2013, when you were homeless, you were approached by a number of men of Asian origin who said you could live in the house without having to pay rent on condition that you looked after the crop. It was said that if you told anyone about the crop, or disclosed the identity of those who established it, retribution would be sought against you and your family. These persons came to the house about once a week to check on the crop. Your counsel said that you were not truthful when you spoke to the police for fear of retribution against your family.
7 You pleaded guilty at the committal mention stage in January 2014. The Prosecution accepts your plea of guilty was made at an early time in the proceeding.
Factors personal to you
8 You are now 30 years of age, and were 29 at the time of offending. You have no criminal history.
9 Details of your personal history and the circumstances surrounding the offending were set forth in a comprehensive plea made by your counsel, and various reports, in particular from forensic psychologist, Mr Ian Mackinnon.
10 Your parents have both retired. Your father was present in Court to support you, together with one of your three siblings.
11 You were born with club feet which have been the subject of surgery on a number of occasions. This has left you with a significant deformity and resulted in ongoing degenerative changes and pain both to the heels and feet. You have also suffered resultant pain in the back because of difficulty with walking. From an early age, you were unable to participate in sporting and recreational activities. According to your general practitioner, you are unable to perform any duties or tasks which require standing on your feet for any length of time.
12 You went to secondary school to Year 11 and left in 2001. You were diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) at an early age and found education difficult. After leaving school, you worked for a short period in various manual jobs, but have not worked since 2005. You have been in receipt of the Disability Support Pension since that time.
13 According to the report of Mr Mackinnon, your childhood was unhappy and you were bullied because of your physical disability. As a result, you became angry and aggressive. Your relationship with your family, in particular with your father, was fractured and difficult. You commenced using cannabis at an early age, building up to between 5 and 7 grams per day. When your father became aware of this in 2011, he told you to leave the family home. You ended up sleeping on the streets and then, for a period in 2012, living with a friend. In August 2013, you were approached to live in the Caroline Springs premises. According to the report of Mr Mackinnon, your relationship with your father has improved to some extent, and you are now living at home with your parents in Kealba.
14 Mr Mackinnon assessed you as suffering a Cannabis Abuse Disorder, and a Depressive Mood Disorder. He said you had a long history of significant emotional and psychological issues, although had not lapsed into criminal behaviour and had no inherent antisocial nor criminal disposition. He described your relationship with your father as “conflict ridden”. He said you had underdeveloped social skills, and little social network with persons of your own age. He said the use of cannabis was an attempt to self medicate because of depression and problems with frustration and anger. He noted that you had not been treated for psychological symptoms, and any time spent in prison would exacerbate that condition. He said, over the last three months, while living with your parents at home, you had not used cannabis, and the conflict with your father had significantly eased.
15 He noted that your foot condition resulted in genuine chronic pain which made it impossible for you to walk or stand for any significant length of time. He said that was a major factor underpinning your cannabis dependency.
16 Mr Mackinnon said:
“In my opinion these disorders were likely to have significantly degraded his ability to reason and make sound judgment, engendered a self-centred tendency in him, and lowered his ability to appropriately consider the likely adverse consequences of his actions on other individuals and the wider community, and upon himself.”
17 On the basis of this opinion, your counsel said the principles established by Verdins[1] were enlivened and sufficient to reduce your moral culpability for the offending because of the psychological disorders from which you were suffering.
[1]R vVerdins& Ors (2007) 16 VLR 269
18 According to a report of Mr Darron Burt, an alcohol and drug counsellor, you were referred to the Voyage Alcohol and Drug Service as part of the Court Integrated Services Program (“CISP”) in November 2013. You were involved in that program until January 2014. Throughout, there was no report of use of illicit substances, specifically cannabis, and counselling was focussed upon changing your past patterns of behaviour.
Sentencing considerations
19 The purposes for which a court may impose a sentence are:
·punishment – to an extent and in a manner which is just in all the circumstances;
·deterrence, both specific and general;
·rehabilitation;
·denunciation and/or protection of the community.
20 In sentencing you, I must have regard to a range of matters such as the seriousness of the offences, your culpability for them and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
21 In offending of this sort, the principal sentencing considerations are general deterrence, to a lesser extent specific deterrence, and given your age, rehabilitation.
22 You have pleaded guilty, and are entitled to have that fact taken into account in your favour. I accept that your plea of guilty evidences remorse. You have avoided the cost of a trial, and spared the witnesses the ordeal of giving evidence.
23 You have no prior criminal history, and were assessed by Mr Mackinnon as having no inherent antisocial nor criminal disposition. I accept that a number of factors in your background are relevant in assessing and understanding the nature and seriousness of your offending. You have a significant physical disability which I accept has tormented you over your life, both in the restriction of the activities that you would otherwise enjoy, and ongoing chronic pain and disability. Further, your relationship with your family, in particular your father, has been ridden with conflict and you have not enjoyed a close and supportive upbringing. All of this has led to a Cannabis Abuse Disorder, at its height involving the consumption of a large amount of cannabis each day. I further accept that you have a significant Depressive Disorder which requires ongoing treatment.
24 However, I reject the contention of your counsel, and the opinion of Mr Mackinnon, that your moral culpability for the offending should be reduced in accordance with the Verdins’ principles. I am not satisfied that such was your psychological condition that you were unable to understand the nature and extent of the seriousness of your offending. While I accept that you were a “house sitter” for others further up the criminal chain, nonetheless you made a free choice to engage in criminal activity, knowing what you were doing was illegal and involving a large and sophisticated drug crop. I accept, however, that this needs to be tempered by the fact that with your fractured family life and a considerable period living on the street, you were vulnerable when approached to take up the accommodation.
25 The crop was substantial, significantly more than the weight necessary to meet the definition of a commercial quantity of cannabis. As has been said by courts on many occasions, persons who act as house sitters in substantial cannabis crops play an essential role in the illegal drug trade and face significant punishment upon apprehension and conviction.
26 Given the size of the crop, it is only in exceptional circumstances that a court will not impose a custodial sentence.
27 Although in this case, the crop was of such a size that eventually it would be sold to the public for profit, I am not satisfied that it was any part of your role to profit by its cultivation. You were a house sitter and the only commercial benefit to you was to live without payment of rent.
28 I accept the submission of your counsel that with your physical and psychological disabilities, your age and the fact that you have no prior criminal offending, that any time spent in prison would be significantly more burdensome and difficult than for someone in otherwise good health.
29 Your rehabilitation is an important sentencing consideration. I assess your prospects of rehabilitation as reasonable. This will, however, depend upon a number of factors, including that you remain supported by your family, living in secure accommodation and are able to become a contributing member of the community by obtaining employment in some area. Treatment of your psychological issues is also important.
Sentence to be imposed
30 Taking into account all the matters to which I have referred, I intend, subject to the approval of Community Corrections, to impose a term of imprisonment of sixty (60) days following which you will be the subject of a Community-Corrections Order over a period of two years.
31 To that end, I will arrange for a Community Corrections Officer to undertake an assessment. The precise terms of the Community Corrections Order will be determined after that assessment. In the event that approval is not granted, I shall give further consideration to the imposition of an appropriate sentence. I shall make the compensation and disposal orders as sought by the prosecution. The orders are not opposed. I shall further make the retention orders pursuant to s.464ZFB(1) Crimes Act for the retention of a forensic sample.
32 I am satisfied that such an order is appropriate given the seriousness of the circumstances of the offending, that it is in the public interest and that it is not opposed. Formal orders on all charges will be made following the assessment.
33 MS COGHLAN: Will Your Honour impose a 6AAA this time?
34 HIS HONOUR: I will. I will need to make formal orders about all of the charges.
35 MS COGHLAN: Yes.
36 HIS HONOUR: I will need to make 6AAA. I may have to make a declaration as a serious offender under the relevant drugs provisions, I am not sure about that yet.
37 MS COGHLAN: Yes.
38 HIS HONOUR: I think I might have to do that.
39 MS COGHLAN: Yes I will check that Your Honour.
40 HIS HONOUR: But I thought - my Associate has made arrangements for - you can sit down Mr Bayona - for Mr Bayona to be assessed at, I think about 10.15 in the cells by Community Corrections. A report is expected before twelve o'clock.
41 MS COGHLAN: Yes.
42 HIS HONOUR: And I am sufficiently certain that that - to save you both, I will re-convene the court at twelve, unless you have other arrangements today.
43 MS COGHLAN: No Your Honour, not at all.
44 HIS HONOUR: In which case you are both excused, and I would need to then make all those formal orders. That is my proposal, unless counsel wants to tell me otherwise.
45 MS COGHLAN: No Your Honour.
46 HIS HONOUR: I will need to look at all those matters.
47 MS COGHLAN: Yes Your Honour.
48 MR PENNO: Thank you Your Honour.
49 HIS HONOUR: Yes. There is nothing further. Mr Bayona you are remanded into custody and subject to the approval of the Community Corrections Officer's report, you have to serve a period of 60 days. I think there is also a pre-sentence detention of - - -
50 MS COGHLAN: 14.
51 HIS HONOUR: 14 days, which I will need to declare publicly.
52 MS COGHLAN: Yes sir.
53 HIS HONOUR: So I will adjourn the further hearing of this matter until 12 o'clock.
54 MS COGHLAN: As Your Honour pleases.
55 HIS HONOUR: Temporarily adjourned.
(Short adjournment.)
56 HIS HONOUR: Yes, the parties have the community corrections report?
57 MS COGHLAN: We have Your Honour.
58 MR PENNO: Yes, yes Your Honour.
59 HIS HONOUR: Anything you want to say about that?
60 MR PENNO: He's been found suitable, suitable for a corrections order Your Honour.
61 HIS HONOUR: Yes, Ms Coghlan I think I do have to make a declaration under s.6F, I sentence him as a serious drug offender. Is that - - -
62 MS COGHLAN: Your Honour I had a look at those provisions, I don't think Your Honour has to.
63 HIS HONOUR: Don't I?
64 MS COGHLAN: My reading of it was that if Your Honour - obviously in sentencing him for the cultivation, that is defined as a drug offence within the relevant provision, but there's no offence that follows that which is defined as a drug offence.
65 HIS HONOUR: So it's only in respect of past offences.
66 MS COGHLAN: Past offence, not for a current offence unless he was being sentenced for two because the possession, is not a drug offence as defined in the relevant section.
67 HIS HONOUR: No, no.
68 MS COGHLAN: So that would be the only ability.
69 HIS HONOUR: I see.
70 MS COGHLAN: Or the only - I should say it's called a - I'm sorry Your Honour the word has escaped me, but there's a particular word given to the provision which then gives rise to the serious offender provisions. That doesn't exist because you've only got the one cultivate.
71 HIS HONOUR: Thank you very much.
72 MS COGHLAN: That's my reading on it Your Honour.
73 HIS HONOUR: I'm happy not to do that. Yes, just stand again Mr Bayona.
Further Sentence
74 I have now received a report of Community Corrections determining you as suitable for a Community-Corrections Order.
75 I shall thus make the following orders:
76 On Charge 1, cultivation of a commercial quantity of cannabis. Charge 2, theft of electricity and Charge 3, possession of cannabis, you are convicted and ordered to serve a term of imprisonment of 60 days and further, to undertake a Community-Corrections Order for a period of two years.
77 Pursuant to the provisions of s.40 of the Sentencing Act I declare that I am satisfied that those three offences form part of a series of offences of similar character.
78 On Summary Charge 6, possession of a prohibited weapon, you are convicted and ordered to pay a fine of $250.
79 On Charge 7, possess cartridge ammunition and bullets, you are convicted and ordered to pay a fine of $250.
80 The Community Corrections Order will be subject to the General Conditions prescribed by s.45 of the Act, over the period of the order, including:
(1) That you must not commit any offence punishable by imprisonment.
(2) That you must comply with any obligations prescribed by the Regulations.
(3) That you must report to a delegate of Corrections Victoria during the period of the Order.
(4) That you must report to the Sunshine Community Correctional Services as set out in the Order, within two (2) working days.
(5) That you must not leave Victoria without the permission of the appropriate officer.
(6) That you must comply with any direction of an appropriate officer.
81 In addition, the Orders will be subject to the following additional conditions:
(1) That you undertake an assessment and treatment for drug dependency pursuant to s.48D.
(2) That you be subject to supervision s.48E.
(3) That you undertake assessment and treatment for your medical condition, and mental health s.48D.
Pre-Sentence Declaration
82 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of fourteen 14 days is to be reckoned as a period of imprisonment already served under this sentence, and I direct that this declaration and its details be noted in the records of the Court.
Section 6AAA of the Sentencing Act 1991
83 Pursuant to s.6AAA of the Sentencing Act 1991, I state that but for your plea of guilty, I would have imposed a total effective sentence of three months’ imprisonment, together with a Community-Corrections Order for three years. Yes thank you, you can come forward to the Bar table please Mr Bayona where the Community Corrections order will be provided for you to sign. Anything further - Ms Coghlan?
84 MS COGHLAN: No Your Honour.
85 HIS HONOUR: Mr Penno?
86 MR PENNO: Nothing further Your Honour, thank you.
87 HIS HONOUR: Return to the dock please Mr Bayona. Yes, thank you, nothing further, 9.30.
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