Director of Public Prosecutions v Bennett

[2016] VCC 1081

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00801

DIRECTOR OF PUBLIC PROSECUTIONS

v

GORDON BENNETT

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2016
DATE OF SENTENCE:	27 July 2016
CASE MAY BE CITED AS:	DPP v Bennett
MEDIUM NEUTRAL CITATION:	[2016] VCC 1081

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords:   Pleas of guilty to one charge of cultivating a narcotic plant in a commercial quantity and one charge of handling stolen goods – general deterrence – little need for specific deterrence – remorse and shame – no prior convictions – no anti-social tendencies – very good prospects for rehabilitation.    

Legislation Cited: Sentencing Act 1991

Cases Cited:Boulton v R [2014] VSCA 342

Sentence:3 year Community Corrections Order with 200 hours of unpaid work over 12 months, and mental health assessment and treatment.

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APPEARANCES: Counsel Solicitors

For the Director of Public Prosecutions	Ms Hogan	OPP
For the Accused	Ms Woodward	VLA

HER HONOUR:

1Gordon Scott Bennett, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity and one charge of handling stolen goods.  For these crimes you are to undergo a Community Correction Order without the need to spend any time in custody.  I shall explain my reasons for this decision.

2On 17 November 2015 at 5.20 pm police and the fire brigade were alerted to a fire at Factory 2, 49 Brunel Road, Seaford.  This factory was at the rear of two others and the tenant of Factory 1 had noticed smoke coming from Factory 2 and had called 000.

3As the Country Fire Authority units arrived you emerged from Factory 2 through a roller door.  A fireman asked you to unlock the gates but you insisted everything was all right and they were not needed.  You were persuaded to open the gates and the fireman found the fire was inside one of three shipping containers stored inside Factory 2.

4After the fire was extinguished the fireman advised police that the fire was caused by a hydroponic set-up inside the container.  Police found two containers with harvested plants and then found the branches of 12 cannabis plants piled in front of the container where the fire had been.

5Hydroponic set-ups were then found in three shipping containers in the factory.  The first two containers had six pot plants placed down the middle of each container which were fitted with grow lights and shrouds.  The roofs were covered in electrical transformers which were connected to the bypassed electricity.  The plants had been harvested with only the large stems remaining in the pots.  The floor was scattered with loose leaves and flowers from cannabis plants.  Nine pots of small seedlings were found outside the containers and two garbage bags of cannabis off-cuts were found in a fridge.  The total weight of cannabis found was 71.605 kilograms.

6Police also found a Suzuki GSXR motorcycle inside the factory which had been partially stripped with the fairings removed, and painted.  The identification stamp had been ground off the fork of the motorcycle, making it untraceable.  Fingerprints later found to match yours were found on the shrouds from the hydroponic set-up.  You were taken by ambulance to hospital for treatment for smoke inhalation, having tried to put out the fire yourself.  You were discharged the next day.

7While still at the factory you had told police that the factory was yours and, indeed, you had a commercial lease from 5 February 2015.  When interviewed you confirmed that with the police and gave further details about the tenancy.  You said you had used the premises to store bricklaying equipment and went there daily.  As for the motorcycle, you explained that you had bought it from a wrecker for $500 or $600 and only later knew that it was stolen because you could see that the identifying marks have been ground off.

8You indicated at the committal hearing on 10 May 2016, once agreement had been reached as to the weight of the cannabis, that you would pleaded guilty and no witness was required to give evidence.  The prosecution has conceded that this was a plea at the earliest possible opportunity and you are entitled to the full credit of a discount on your sentence for the assistance that a plea provides to the expedition of the case and the avoidance of a trial.

9That the offending is serious is clear from the maximum penalties that apply.  Twenty-five years' imprisonment for cultivation of a commercial quantity of cannabis and 15 years for handling stolen goods.  The weight of the cannabis was almost three times the threshold weight for a commercial quantity, even though there were only 12 plants and a small number of seedlings.

10The need to deter others from committing these crimes is very important and it is the principle issue I must address in sentencing you.  The need for specific deterrence, that is to deter you from further offending in this way, is of no great importance because of your personal circumstances to which I shall turn now.

11You are a 40 year old married man with two teenage children and you are the breadwinner for the family.  You have been operating your own successful bricklaying business for some ten years but, unfortunately, two significant debts were not honoured and this placed you in dire financial circumstances.  It was in this context of not being able to pay your bills that you hatched the plan to grow cannabis at the factory you had been renting for the requirements of the bricklaying business.  I note that there was no evidence of enrichment and it was a one-off venture.

12In your family of origin you were the third of six children.  Your parents had come here from Canada and you were in Grade 3 when they returned there, planning to resettle.  However, your father developed lymphoma and, sadly, he died when you were ten years old.  The family returned to Melbourne and your mother came to rely on you to help with the younger children and later to help provide some income from your part time job after school in a pizza shop.

13Your mother retrained and returned to full time work, which required you to take the younger children to and from school and mind them on a daily basis.  Your mother, in a letter to the court, has explained her reliance on you in those years and how you became a mature young man, early on, out of necessity.  You completed Year 12 and worked in hospitality for some time until you completed a bricklaying apprenticeship and then established your own business.

14Many of your relatives and friends have provided references which describe you as a dedicated family man, an excellent father and a hard working tradesman.  They speak of your remorse and shame at your actions, which they say is entirely out of character, describing it as a most regrettable mistake and error of judgment.  One of the writers, Matthew Willis, is the human resources manager at Autism Plus, and knowing you were looking for a career change he offered you the opportunity to retrain and to enter the disability support workforce.  You completed some initial aspects of the training and were enrolled in a course before this court case brought about its termination.  Mr Willis is prepared to offer you employment in his organisation if you are able to take it up.

15You have no prior convictions.  Indeed, your only brush with the law has been a court appearance for drink driving in 2012, which resulted in an adjourned undertaking indicating a very low blood alcohol reading.  There was no indication that you have ever been involved in any antisocial activity apart from these offences, or that there is any reason why you would be tempted to offend again.  You have the strong support of a large and loyal family and friends and your prospects for rehabilitation are very good, a matter that is conceded by the prosecution.  I note that you have embarked upon psychological counselling following referral by your general practitioner.

16It is also conceded by the prosecution that specific deterrence need play little or no part in your sentencing, but because of the importance of general deterrence where drug cultivation in a commercial quantity is concerned, the prosecution position as to sentence is that immediate custody is necessary.  However, it was submitted that this could be short enough to be able to include a community correction order as well.  Ms Hogan provided the Sentencing Snapshot indicating that most offenders sentenced for this crime were sentenced to prison, although a lower number were recently, perhaps because of the availability of a CCO.

17Ms Woodward, appearing for you, urged me to impose     a CCO without a term of imprisonment.  The Corrections officer who assessed your suitability for such an order confirmed your suitability but assessed you as being at medium risk of re-offending.  After enquiries were made at my behest as to the means of reaching this conclusion, but without making any criticism of the statistical process involved, I consider that the mitigating factors to which I have referred in these reasons do suggest a lower risk than medium.

18In particular, I remain persuaded as to your very good prospects for rehabilitation. I have given careful consideration to the need for imprisonment to accompany the CCO. I have had regard to the governing principles set out in s.5 of the Sentencing Act, in particular, sub-ss.(3), (4) and (4C).
Sub-section (3) states:

"A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose   for which the sentence is imposed".

19Sub-section (4) states:

"A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose . . .  for which the sentence is imposed cannot be achieved by a sentence that does not involve confinement . . .”

20Sub-section (4C) states:

"A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose . . . for which the sentence is imposed cannot be achieved by a community correction order”

subject to the attachment of certain conditions.

21In this case the paramount purposes of the sentence I impose can only be general deterrence and just punishment.  Specific deterrence is all but ruled out as a sentencing purpose in this case.  The decision in the case of Boulton decided that a Community Correction Order could be imposed even in cases of serious offending, partly because its punitive element can be considerable, depending upon its length and conditions, and also because the order could act sufficiently as a deterrent.  The Court of Appeal in delivering that guideline judgment said that:

"A lengthy order with appropriate conditions could satisfy the requirements or proportionality, parsimony and just punishment while affording the best prospects for rehabilitation".

22I am satisfied that from what I have heard and read about you and bearing in mind on the other hand the seriousness of the cultivation offence in particular, that you should not be required to serve a prison sentence.  The acknowledged need for general deterrence should not swamp the requirement set out in the Act in the sub-sections to which I have referred and as they apply in this case.

23Will you stand now, please, Mr Bennett?  Accordingly, I shall impose a community correction order to apply to both charges.  It will begin today and will last for three years.  You will be subject to supervision and you must perform 200 hours of unpaid community work over 12 months.  The only other condition will be that of assessment and any necessary mental health treatment, bearing in mind the condition of depression referred to by your doctor.  It is said by your psychologist in her report, dated 20 July 2016, that you appear to have good insight into the offences you have committed and therefore I do not consider that any other conditions are necessary.  You must attend at the Frankston Corrections office on the ground floor at 4.31 Nepean Highway, Frankston, tomorrow, Thursday, 28 July.

24The prosecution seeks an order for the disposal of the equipment that was seized and also an order for a forensic sample of saliva to be obtained.  Those applications are not opposed and I make them.  I must advise that the police have the power to use reasonable force to obtain the forensic sample but I trust that will not be necessary.

25The Community Correction Order can now be signed but perhaps you might like to look at it first, Ms Woodward.

26MS WOODWARD:  Thank you.  If I might be permitted to leave the Bar table.

27HER HONOUR:  Certainly.

28MS WOODWARD:  Thank you.

29HER HONOUR:  Are there any other matters, Ms Hogan, Ms Woodward?

30COUNSEL:  No, Your Honour.

31MS WOODWARD:  As Your Honour pleases.

32(Community Correction Order signed)

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