Director of Public Prosecutions v Beniamini (No 2)

[2023] ACTSC 195

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Beniamini (No 2)

Citation: 

[2023] ACTSC 195

Hearing Date: 

26 July 2023

Decision Date: 

26 July 2023

Before:

Mossop J

Decision: 

1.    On the count of conspiracy to cultivate a trafficable quantity of cannabis for sale (CC 2022/2344) the offender is convicted and sentenced to imprisonment for 14 months and 15 days starting on 14 April 2023 and ending on 28 June 2024.

2.    The non-parole period commences on 14 April 2023 and ends on 16 January 2024.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender pleaded guilty to charge of conspiracy to cultivate a trafficable quantity of cannabis plants for selling – offence in the low to mid-range of objective seriousness – offender has substantial criminal history – sentence of full-time imprisonment imposed

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT), s 7(1)

Criminal Code 2002 (ACT), ss 48, 616(5)

Parties: 

Director of Public Prosecutions

Adam Beniamini ( Offender)

Representation: 

Counsel

M Dyason ( DPP)

P Bevan ( Offender)

Solicitors

Director of Public Prosecutions

Bevan & Co Lawyers & Conveyancers ( Offender)

File Number:

SCC 255 of 2022

MOSSOP J:  

Introduction

1․On 10 March 2023 the offender, Adam Beniamini pleaded guilty to the charge of conspiracy to cultivate a trafficable quantity of cannabis plants for selling, contrary to ss 48 and 616(5) of the Criminal Code 2002 (ACT) (CC 2022/2344). The maximum penalty is 1000 penalty units or 10 years’ imprisonment or both. One of his co-offenders (Dwaine Madden) was sentenced by the court on 21 February 2023. His other co‑offender (John Wright) had his sentencing hearing today.

Facts

2․The facts are agreed and may be summarised as follows.

3․In January 2021, police obtained warrants for interception of the telecommunications of Mr Wright and for the use of surveillance devices in relation to him.

4․From these warrants, police intercepted various conversations between the offender and Mr Wright. From the conversations it was apparent that they were planning to build a “grow room”. The two co-offenders agreed that they would build an artificially enhanced growing system with lighting, ducting pots and irrigation at a garage at an address in Calwell which belonged to Mr Dwaine Madden. The offender had identified Madden’s house as the location for the grow house by 15 April 2021.

5․On 15 June 2021, Mr Wright and the offender did some preliminary work constructing the grow room.

6․On 23 June 2021, Mr Wright had a conversation with the offender in which he told him about 12 cannabis seedlings which were stored in Wright’s other grow house in Queanbeyan and were ultimately placed into the grow room in Calwell to mature.

7․On 1 and 4 July 2021, Mr Beniamini and Mr Wright had further conversations relating to setting up the grow room at Mr Madden’s residence. In this conversation they discussed insulation.

8․On 9 July 2021, Mr Wright attended Goat Hydroponics in Mitchell to purchase growing equipment for the grow room.

9․On 10 July 2021, the offender and Mr Wright discussed the issue of the grow room becoming too cold. Mr Beniamini said “I’ll go and get some bigger things to make sure it’s warmer and yeah, we’ll go from there.” A few days later, after having had power issues, Mr Wright contacted an electrician to undertake electrical work for the grow room.

10․On 13 July 2021, Mr Wright told the offender that “once we get this issue out, that’s – that it then every – nearly everything’s set – bang bang.” Mr Wright purchased further growing equipment from Goat Hydroponics and delivered it to Mr Madden’s residence the following day.

11․On 18 July 2021, the electrician that Mr Wright had spoken to attended the Calwell address to undertake electrical work but was unable to access the grow room because Mr Madden did not have the key.

12․On or about 21 July 2021, approximately 12 to 15 immature cannabis plants were placed under growing lamps in pots in the grow room at the residence in furtherance of the conspiracy. Speaking about their project, Mr Wright said to the offender, “Oh bro, it was perfect”.

13․On 3 and 4 August 2021, Mr Wright attended the Calwell address. He arranged for an electrician to attend and monitor the temperature of the grow room.

14․On 14 September 2021 police executed a search warrant at the Calwell address. They located the grow room in a locked garage. There were 15 planter pots set up with 15 corresponding lampshades. The cannabis plants had already been cut at the roots and were not located. 12 root balls were located in the garage and another two in the backyard. Bags of loose cannabis were also found, comprising:

(a)74.3 g of cannabis in a bag found in a bedroom;

(b)813.3 g of cannabis in orange bag found in the kitchen;

(c)110.6 g of cannabis in a green container found in the kitchen;

(d)1.5 g of loose cannabis and 12 root balls in the garage; and

(e)220.3 g of cannabis stem and two root balls in the backyard.

15․Mr Madden was questioned under caution by police. He stated that “a friend” had bought the growing equipment for him as a favour. He did not provide further details about his “friend” but indicated that they had given him instructions most of the time.

16․Mr Madden’s mobile phone was examined by police and was found to contain a photograph of Mr Wright crouching behind a mature cannabis plant by the garage at the Calwell address.

17․At 9.31pm on 25 November 2021, police executed a search warrant at Mr Wright’s residence in Mort Street, Braddon. Police found the following items:

(a)instructions for growing plants hydroponically; and

(b)a silver Renault van bearing New South Wales registration, parked in the building’s car space and containing growing equipment.

Objective seriousness

18․The offending in the present case involved a conspiracy that was carried into effect. It involved between 12 and 15 cannabis plants. The minimum amount for a trafficable quantity is 10 plants or more. Thus, in terms of the number of plants, it is at the bottom end of the range for this offence. The operation had some sophistication, involving the fitting out of a grow room. The offending pursuant to the conspiracy occurred over some months. The role of the offender was subordinate to that of Mr Wright. It was different to that of Mr Madden who simply provided the location for the grow room.

19․The presumption that the cannabis was grown for the purposes of sale has not been rebutted. I accept the submission made on behalf of the offender that, although he accepts that someone else intended to sell the cannabis, it has not been proved beyond reasonable doubt that it was him. I conclude, consistent with his oral evidence, that he was likely to obtain some benefit in the form of cannabis from his participation. I also accept that he is to be sentenced upon his admission that he assisted in the venture knowing that others would obtain a financial benefit. The offending involved a degree of sophistication but was of a small quantity. I would characterise it as being in the low to mid-range of objective seriousness for this offence. The offender’s culpability is less than that of Mr Wright, although not greatly so. Although the contribution of Mr Madden was different, being the location of the grow house, I consider that the offender’s contribution was equivalent to his.

Subjective circumstances

20․The subjective circumstances of the offender are outlined in a pre-sentence report dated 17 July 2023. He also gave oral evidence, although I formed the impression that his evidence tended towards being self-serving.

21․The offender is 39 years old. At the time of the offending he was 37. He was born and raised in Canberra and has three siblings. He had a close, positive, and prosocial upbringing. He attended school up until Year 10. He has a supportive relationship with his siblings and parents. He has four children from two past relationships. These children live with their respective mothers, however, he has regular contact with them.

22․He reports that his long-term relationship has recently ended and that he currently has no contact with his ex-partner. He reported that the relationship was “on and off” for years and that there was minimal violence in the relationship. However, the offender was convicted and sentenced to imprisonment for two offences against his ex-partner in 2022, namely, forcible confinement and assault occasioning actual bodily harm. There is also an active family violence order dated 21 February 2023 for 24 months referrable to that relationship.

23․He currently lives by himself in a private rental.

24․Since completing Year 10, he has been employed primarily in the construction industry, with some periods in which he was unemployed referrable to times when he was in custody. His longest period of employment was for seven years, over which time he worked at his father’s tiling company. He reported having been fired from previous employment due to offending. Currently, he is employed as a truck driver and operator for an asphalt laying company and reports to be working 6 to 7 days a week earning $1900 a week.

25․He states that he derives his income from his paid employment. He denied having a gambling issue or other issues meeting financial commitments. He reported that he recently bought a car and now owes $48,000 for the loan, which he pays off in instalments. He reported no other debts in the community.

26․He acknowledged previous association with antisocial associates, however, claimed to have withdrawn from those people. He says he now has good friends who he believes have minimal criminal histories. However, ACT Policing confirmed that the offender is a previous member of the Canberra chapter of the Rebels Outlaw Motorcycle Gang and that he still has recent associations with those members.

27․The offender reported to have first tried alcohol as a teenager. He stated that his consumption became problematic and generally contributed to his offending. He reported that his current drinking habits are minimal and that he no longer has an issue with alcohol consumption.

28․He reported a history of polysubstance abuse. He has used cocaine, amphetamines (MDMA) and cannabis recreationally since being a teenager. His initial use of amphetamines and cocaine was sporadic, increasing over time until his use was regular. In regard to cannabis, he stated that he did not consume the substance on a regular basis and did not consider it as problematic. He was unable to give to the author of the pre-sentence report a timeline of his usage over the last few years. Presently, the offender claims to be clean of all illicit substances although he declined an opportunity to undertake a drug test on 4 July 2023. However, in oral evidence he said that he continues to use cannabis on a daily basis.

29․The offender stated that he had attended numerous alcohol and drug courses in the past but has a poor record of completing them. During his most recent parole period in 2021, he failed to engage with services. In 2017, he was released on parole with the condition that he attended Karralika Residential Rehabilitation Program. He completed the program and was transitioned to the Nexus Program, however he was unable to complete the program as he was sent back to custody for breaching an family violence order in late 2017. He attempted the Solaris Program in 2018 but was exited due to poor behaviour. He did, however, successfully complete the program in February 2019. He was released on parole with a condition that he enter the Karralika Residential Rehabilitation Program but discharged himself after a few days and subsequently reoffended.

30․He reported no current physical or mental health issues.

31․The author of the pre-sentence report described his attitude to the offences as one seeking to minimise and justify the behaviour. He stated that the cannabis was for personal use only and claimed that there was further information in the Agreed Statement of Facts that he did not agree with.

32․He was assessed as a medium to high-risk of reoffending. His history of compliance with community-based orders was described by the author of the pre-sentence report as being unsatisfactory. He was assessed as not suitable for a community service work condition and not suitable for an intensive correction order.

Criminal history

33․The offender has a substantial criminal history. Initially, it largely consisted of driving‑related offences but in 2008 he was convicted of burglary and given a short period of imprisonment. In 2010 he was sentenced for drink driving and given a sentence of periodic detention. Also in that year he was sentenced to imprisonment and periodic detention for assault occasioning actual bodily harm. In 2013 he was convicted of damaging property and given a short sentence of imprisonment. He was also fined for dishonestly obtaining property by deception. In 2013 he was also sentenced for common assault and, following an appeal, the sentence of imprisonment was suspended. In 2015 and 2016 he had a number of convictions and sentences of imprisonment for damaging property and common assault. In 2016 he was also convicted of escaping from arrest or custody and given a sentence of imprisonment. In 2017 he was sentenced to imprisonment for recklessly inflicting grievous bodily harm. In 2018 he was convicted on two charges of contravening a family violence order and given sentences of imprisonment. In 2020 he was given a suspended sentence for a drink or drug driving charge but as a result of a breach had to serve a period of full-time detention. The criminal history shows that sentences of imprisonment have not deterred him from further offending and that he has been resentenced on a number of occasions following breaches of good behaviour orders associated with suspended sentences.

Plea of guilty

34․The offender pleaded guilty in the Supreme Court after a criminal case conference and prior to a trial being listed. In those circumstances the utilitarian value of the plea warrants a reduction in sentence of 15 percent.

Time in custody

35․The offender has spent from 11 September 2022 until 22 December 2022, a total of 103 days, in custody solely attributable to this offence. This period should be taken into account by the backdating of the sentence imposed. The backdate date is 14 April 2023.

Consideration

36․Each of the considerations in s 7(1) of the Crimes (Sentencing) Act 2005 (ACT) are relevant. So far as s 7(1)(g) is concerned, it is harm done to the community that is relevant given that there is no identifiable victim. Considerations of specific and general deterrence are of considerable significance in the present case having regard to the prevalence of this kind of activity and the criminal history of the offender.

37․The criminal history is one which, although it does not involve previous similar offending, denies the capacity for significant leniency.

38․The co-offender, Mr Madden, was sentenced in the Supreme Court Drug and Alcohol Sentencing List on one count of conspiring to cultivate a trafficable quantity of cannabis, the same charge present here. He was sentenced to a term of imprisonment of two years and three months suspended upon entry into a drug and alcohol treatment order. The Statement of Facts upon which he was sentenced was different to that involved in this case. Given that it was not before the court it is not possible to identify the difference in the facts there set out from those in the present case. From the summary in the sentencing reasons, it appears that Mr Madden’s criminal history was worse than that of the offender.

39․Counsel for the Director of Public Prosecutions provided a table of sentences imposed for cultivation of trafficable quantities of cannabis. They disclosed sentences more lenient than that imposed upon Mr Madden.

40․The submission made on behalf of the offender was that he should be permitted to serve a sentence in the community in order to further his rehabilitation. Although the offender answered a leading question asked of him by his counsel in a manner that suggested he would like to address his drug use through rehabilitation in the community, I do not accept that evidence. I considered his evidence to be unimpressive and unreliable on this point. More generally, his history of unsatisfactory compliance with community-based orders tends against such a disposition.

41․I am satisfied that no sentence other than a sentence of imprisonment is appropriate.

42․The starting point is a sentence of imprisonment of 17 months reduced to 14 months and 15 days on account of the plea of guilty. This is less than the sentence given to Mr Madden about which I have limited information. I did not consider it appropriate to increase the sentence given to the offender beyond that which I considered appropriate simply to make it more comparable to the length of the sentence given to Mr Madden (which, although longer, was ordered to be suspended and served by a drug and alcohol treatment order).

43․As to how that should be served, having regard to the offender’s criminal history and his unsatisfactory compliance with community-based orders I am satisfied that it should be served by way of full-time imprisonment with a non-parole period. The non-parole period will be nine months which is 62 percent of the head sentence.

44․The sentence will be backdated to take into account the time the offender spent in custody on remand.

Orders

45․The orders of the court are:

1.On the count of conspiracy to cultivate a trafficable quantity of cannabis for sale (CC 2022/2344) the offender is convicted and sentenced to imprisonment for 14 months and 15 days starting on 14 April 2023 and ending on 28 June 2024.

2.The non-parole period commences on 14 April 2023 and ends on 16 January 2024.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: