Director of Public Prosecutions v Berry
[2019] VCC 2017
•6 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 19-01566
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRISTAN BERRY |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2019 | |
DATE OF SENTENCE: | 6 December 2019 | |
CASE MAY BE CITED AS: | DPP v Berry | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2017 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty – one charge of cultivation of a narcotic plant, namely cannabis – one charge of trafficking in a drug of dependence being cannabis – one charge of possess a drug of dependence being cannabis – one charge of theft – 37 cannabis plants with combined weight of 30.59 kilograms – sophisticated hydroponic system – simple cultivation not a commercial quantity charge – prior criminal history – offender made full admissions – general deterrence – steps to address offending substantially reduced risk of recidivism – offender received a discount for admissions and co-operation following arrest.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, Crimes Act 1958, Control of Weapons Act 1990, Sentencing Act 1991
Cases Cited:The Queen v Doran [2005] VSCA 27
Sentence: Total effective sentence of 12 months imprisonment, in combination with a community correction order for a period of 2 years.
APPEARANCES: | Counsel | Solicitors |
| For DPP | Mr J McCarthy | Office of Public Prosecutions |
| For the Accused | Ms S Parsons | Doogue & George |
HIS HONOUR:
Introduction
Tristan Berry, you have pleaded guilty to the following charges:
·cultivation of a narcotic plant, namely cannabis, contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 15 years imprisonment, Charge 1;
·trafficking in a drug of dependence, being cannabis, contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 15 years imprisonment, Charge 2 ;
·possess a drug of dependence, being cannabis, contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty in this instance of five years imprisonment, Charge 3; and
·theft, contrary to s 74 of the Crimes Act 1958, which carries a maximum penalty of ten years imprisonment, Charge 4.
You have also pleaded guilty to the following related summary charges:
·possess imitation firearm without exemption or approval, contrary to s 5AB(1) of the Control of Weapons Act 1990, which carries a maximum penalty of two years imprisonment, Charge 5; and
·possess prohibited weapon without exemption or approval, contrary to s 5AA of the Control of Weapons Act 1990, which carries a maximum penalty of two years imprisonment, Charge 7.
You have also admitted your prior Criminal Record.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
On 15 May 2019, investigators from the Mill Park Divisional Response Unit executed a search warrant at your residential address at South Morang, Victoria.
Police searched the house and a total of 37 cannabis plants in different stages of maturity were located across three rooms at the rear of the house. Specifically, 20 cannabis plants were located in one room, 12 cannabis plants were located in a second room and five cannabis plants were located in a third room.
Each of the three rooms contained a sophisticated hydroponic system involving lights, carbon filters, timers, exhaust fans and water pumps.
Police also located three zip lock bags of dried cannabis in the garage of the house.
The plants and zip lock bags of cannabis were subsequently examined by a botanist on 15 May 2019, finding that the 37 cannabis plants had a combined weight of 30.59 kilograms, and the three zip lock bags of dried cannabis had a combined weight of 22.8 grams.
An illegal electricity by-pass was also located. The value of the stolen electricity over the relevant period, being the cultivation period relevant to Charge 1, is unknown.
The following items were also found at the house: a short sword in a sheath, two slingshots, a black plastic BB gun; and a black plastic Gel Gun. A total of $1,875 in cash was also located.
You were arrested at 12.30pm on 15 May 2019 and you were granted bail at the filing hearing on 17 May 2019.
You were interviewed on 15 May 2019 and made the following admissions:
·you had lived at the premises for six years;
·you paid $1,500 rent to a friend;
·you were the only person at the premises on 15 May 2019;
·that there were approximately 30 plants at the premises;
·that the plants were just about to flower;
·that you grow marijuana from seeds, under lights with an automatic sprinkler system;
·that you learned to grow marijuana and to install the bypass from Google and YouTube;
·that the bypass reduced your electricity bills;
·that you had been growing cannabis for about a year and grow 30 cannabis plants every 10 weeks;
·that you thought you smoked 2 grams of cannabis per day;
·that someone comes to the premises, picks up the cannabis and brings back cash;
·that you were making an income from the marijuana, and that the cash found at the premises was from selling marijuana;
·that you are paid about $2,000 for each pound of cannabis sold and you give about 10 pounds of cannabis to your associate for sale every 10 weeks;
·you agreed that $20,000 every 10 weeks was a fair estimate of your income from the sale of cannabis;
·that you had the machete for 'intimidation'; and
·that you had the slingshots, black plastic BB gun and black plastic Gel Gun 'for fun'.
Nature and gravity of the offending
I turn to the nature and gravity of the offending.
The offences of cultivating cannabis and trafficking cannabis are serious offences which is reflected by the maximum penalty of 15 years imprisonment in each case. In this instance the total number of plants found at your property was 37 plants with a total weight of 30.59 kilograms. While 25 kilograms amounts to a commercial quantity, the prosecution accepts that you did not intend to cultivate a commercial quantity, and thus the charge is one of simple cultivation.
While the cultivation charge is not a commercial quantity charge, you made full admissions to the fact that you were trafficking the cannabis you produced and did so for profit. Further you made full admissions to installing an electrical bypass over the relevant period, resulting in a theft of electricity.
In all the circumstances, the evidence demonstrates that you were operating a sophisticated commercial cannabis business which, on your own admission, translated to about $20,000 being paid to you every 10 weeks.
Further while the cultivation charge represents about a six week period, the trafficking charge represents a 10 month period, although you admitted that you had been growing cannabis for 'about a year'. Thus, in all the circumstances, in my view, your offending is a relatively serious example of cultivation and trafficking of cannabis.
Personal circumstances
You are 32 years of age. You are the second oldest of four children. You grew up in the Hurstbridge and Diamond Creek areas.
You attend local schools and you state that you did not enjoy school. You left school at about 16 years of age after completing Year 10. One of the issues that contributed to your difficulties at school was that fact that you were diagnosed with Attention Deficit Hyperactivity Disorder when you were in primary school. This not only affected your schooling, but also created tensions in your relationship with your parents throughout your teenage years.
After leaving school you completed about two years of an apprenticeship as a fitter and turner, and while you did not complete that apprenticeship, you have generally maintained employment in some form of manual work most of your adult life.
In 2016, you were involved in a multi-vehicle car accident and you were not insured. That accident resulted in you becoming approximately $20,000 in debt. At the time, you were working in casual employment with Powermove Distributions doing manual work in a warehouse. You were not earning enough money to meet your expenses, and this resulted in increased financial pressure. You left your employment in 2017, it was shortly after this period that you became involved in your offending. It was submitted that you initially began to cultivate cannabis during the time you were employed as a means of increasing your income, paying your debts and supporting your drug addiction.
You began to use cannabis recreationally at about 15 years of age. Your abuse of cannabis increased heavily following the tragic death of your brother, Jessie, in a car accident in 2014. You and your brother had a particularly close relationship and his death had a significant impact on you. Your mother Melissa Berry gave evidence on the plea confirming the great emotional impact you suffered.
Following your arrest in relation to these matters you have reconnected with your family and are now living with your parents in Doreen. You are working again in a full-time position with Powermove Distributions. You have ceased cannabis use and a number of clean urine screens were provided to the court. Your mother gave evidence that being caught for this offence was the wakeup call you required and that you have completely turned your life around.
A number of references were tendered on the plea that largely support the proposition that being charged with this offending has been the motivator to turn your life around. You clearly have a very close and supportive family, many of whom were in court supporting you.
One reference was from a friend of yours who rented you the house where you cultivated the cannabis. He was unaware of your conduct, however since arrest, he states that you have apologised and spent a number of weeks retuning the house to its former condition in order for your friend to be able to rent it. He also is of the view that your conduct was a major lapse in judgement following some very difficult years in your life.
Your employer speaks of your excellent work ethic and attitude, and that you enjoy the respect of your colleagues, and clearly will continue to employ you upon your release from custody.
Following your arrest, you have engaged in rehabilitative programs, including the Court Integrated Services Program (CISP), and more recently, drug and alcohol counselling through the Banyule Community Health Service. Both of those organisations provided written reports that were tendered on the plea. In each case, the writers report that you have actively engaged with the treatment and counselling provided. Skye Shannon of the Banyule Community Health Service reports that through counselling you have shown awareness in relation to how your increased cannabis use following your brother's death impaired your judgement and decision making.
A report was prepared by Dr Matthew Barth, psychologist and tendered on the plea. Dr Barth provides a detailed history and conducted psychometric testing of you. While he does not assess you as having any form of thought disorder or psychosis, he does acknowledge the intense emotional reaction to your brother's death, and that your cannabis use increased in attempt to block out your distress. This however, on your own admission exacerbated your sadness.
Not surprisingly, Dr Barth assessed you as suffering a Cannabis Use Disorder at the severe level. Ultimately, Dr Barth recommends further treatment in order for you to continue to improve your insight into your substance abuse and to develop strategies to enhance your ability to cope more effectively with your emotional reactions to external stressors.
Sentencing considerations
First and foremost, I take into account your plea of guilty in this matter. This matter resolved prior to the first committal mention, and clearly it is a plea entered at the earliest available opportunity. I further take into account your cooperation following your arrest. Your cooperation and subsequent early plea demonstrate your acceptance of responsibility and your willingness to facilitate the course of justice. Your plea has also saved the expense and time of a trial.
Your admissions as summarised above, effectively provided the basis of the trafficking charge which significantly elevates the seriousness of your offending.
The prosecution accepted in discussion during the plea, that without the extensive admissions as to the time you had been trafficking and the money you had received, there may not have been a charge of trafficking on the indictment. As Buchanan JA noted in The Queen v Doran[1]:
Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.
[1] [2005] VSCA 271 at [14], Buchanan JA (Eames and Nettle JJA agreeing).
In my view, in the circumstances you are entitled to a discount as a result of your forthright admissions and co-operation, particularly in relation to the charge of trafficking.
As to genuine remorse, as discussed during the plea hearing, in my view the materials do not demonstrate any response by you as to the impact your conduct may have on the wider community. Remorse is often an elusive concept and I accept that it is difficult to disentangle from the subjective effects of a person's criminal conduct. In that regard, I note that the writer of the assessment report for a community correction order raised the same question with you. You acknowledged that you knew that drugs destroy lives. While I accept that you have gained great insight into the effect your crimes have had on you and your immediate family and community, in my view, you are only beginning to acknowledge and appreciate the potential damage that may be caused from trafficking drugs in the amounts represented.
General deterrence is of course a prominent sentencing consideration and a message needs to be sent to others in your position who may be tempted to engage in the cultivation of cannabis for sale. Specific deterrence on the other hand, in my view, need not be given much weight in this instance. The one matter on your criminal record is very minor and not relevant to this offending. Further, having read the materials in relation to the significant steps you have taken since arrest in order to address your offending, in my view the risk of recidivism is substantially reduced.
As to your prospects of rehabilitation, in my view they are able to be assessed a very strong. For the reasons noted above in relation to specific deterrence, in addition to the fact that you have a very supportive family and community also supports the view I have taken.
Nonetheless, the offending is still serious, and as was conceded by your counsel, warrants a period of imprisonment. However, it was submitted that in all the circumstances, a combination sentence pursuant to s.44 of the Sentencing Act 1991 is appropriate. As such, I had you assessed for a community correction order.
While the offending is serious, in my view, in all the circumstances a combination sentence pursuant to s.44 of the Sentencing Act 1991 is able to meet the relevant sentencing considerations.
Sentence
Mr Berry, please stand.
Tristan Berry, on Charge 1, cultivate a narcotic plant, you will be convicted and sentenced to 10 months imprisonment. On Charge 2, trafficking in a drug of dependence, you will be convicted and sentenced to 10 months imprisonment. On Charge 3, possession of a drug of dependence, you will be convicted and sentenced to two months imprisonment. On Charge 4, theft, you will convicted and sentenced to three months imprisonment.
I direct that two months of the sentence on Charge 2 be cumulative on the sentence on Charge 1. That makes for a total effective sentence of 12 months imprisonment as the prison component of the sentence pursuant to s 44 of the Sentencing Act 1991.
In addition to the prison component of the sentence, upon your release you will be placed on a community correction order with conviction for a period of two years. The community correction order will have punitive and therapeutic components. You will be required to complete 250 hours of community work over the period of the order. Further, you will be required to complete programs to further address your drug use and you will be subject to supervision.
Pursuant to s 48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation conditions may be credited as hours of unpaid community work.
On Summary Charge 5, possess imitation firearm without exemption or approval, and Charge 7, possess prohibited weapon without exemption or approval, you will be convicted and fined $500 on each charge.
Pursuant to s 18 of the Sentencing Act 1991, I declare that three days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of three years imprisonment with a non-parole period of two years.
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