Director of Public Prosecutions v Bird

[2016] VCC 762

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 15-02107

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN WILLIAM BIRD

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	1 June 2016
CASE MAY BE CITED AS:	DPP v Bird
MEDIUM NEUTRAL CITATION:	[2016] VCC 762

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Offender	Mr G. Casement

HIS HONOUR: 

1John William Bird, you have pleaded guilty to one charge of cultivating a narcotic plant in not less than a commercial quantity.  That plant, of course, was cannabis.  You have also pleaded guilty to two charges of possessing a drug of dependence, namely cannabis.  Those crimes carry maximum penalties of 25 years and one year respectively.

2You are now 65 years of age.  You pleaded guilty to a settled indictment and, I accept, offered to plead guilty to the charge to which you have pleaded from virtually the outset.  You were about to be put on trial for large commercial quantity, which, of course, as I understand it, carries life.  You must get the utilitarian benefit of this plea of guilty. You have now at least shown appropriate remorse. 

3You only have the one prior conviction, but it is indeed a significant one.  In 2003 you were given a $12,000 fine for cultivate and possess cannabis in the Magistrates' Court.  I am told that there was something in the order of 19 plants involved, but that file has been destroyed.  All I can simply say, Mr Bird, is that that is a very, very big fine to receive in the Magistrates' Court.  Unfortunately, it is for cultivation and it means that what you have pleaded guilty to here, you have done before.

4The circumstances of the offending are that in 2015 the Police Air Wing flew over a property that you were living in at Briagolong.  They observed a ute, which was yours, in an area near a cannabis crop, and there were 12 20 litre containers of fertilizer in it.  On that basis, police applied for and issued a search warrant.  You were home at the time the police flew over your house, apparently, and you then travelled to Sale while the warrant was being obtained.  The warrant was executed that afternoon and you arrived home during course of it.  The crop was located at the back of a shed, which police had to pass through to get to it.  It was certainly a serious crop surrounded by a wire fence.  It was camouflaged with hessian.  It is clear that you - or you and others, because I am never going to be told, I suspect - had been tending to this crop over a significant period of time. 

5I have seen the photos, and the plants are obviously well-developed.  There were 564 individual cannabis plants in pots.  All the pots were numbered.  They were connected to a sophisticated watering system and that was connected obviously to a tank.  There was a pump, a generator and other equipment.  Each of the plants were staked and enclosed in wire and appropriate steps had been taken to keep at least the rabbits away from it.

6The crop was dismantled by police and weighed.  It weighed wet a total of 1400.96 kilograms.  That is a very big crop indeed.  A large commercial quantity is 1000 plants or 250 kilograms.

7In this situation the Crown have accepted a plea on the basis that you intended to cultivate at least a commercial quantity of the drug, which is a minimum of 100 plants or 25 kilograms.  I accept that the air-dried weight of the leaf and heads would have been in the order of 250 to 300 kilograms.  If sold by the ounce, which I accept you would not have been doing, the crop was worth something like $2m.  Even wholesale it would have been worth a lot of money.

8There was equipment found and discovered by police, various fingerprints, scales, a safe and the like.  I do not propose to go into all of the detail of that.  When interviewed by police you effectively exercised your rights, as you are perfectly entitled to do, and gave a "no comment" record of interview. 

9The situation is that gaol is clearly inevitable and a significant term of gaol as well.  Your counsel has basically provided, and I have now seen them, the various sentencing snaps in relation to it, and it seems clear that between 2008 and 2013 the highest sentence for a charge such as this would appear to have been a total effective sentence of somewhere between six and seven years.  It is a little hard to work out.

10Clearly, what would be a common occurrence with a crop of this size would be that the person would be found guilty of a large commercial quantity.  That is not the case here, and I have to be very careful to sentence you for a crime that has a maximum penalty of 25 years, not a crime that has a maximum penalty of life.  It can sometimes be a difficult task. 

11As I indicated during the course of the plea, even though you do have a prior conviction for this sort of offending, it is a bit hard to believe that this was all your sole responsibility.  However, what is, and you have to be sentenced on that basis, as that is the way the whole matter has been put to me.

12The crime is clearly serious.  It calls for the application of general and, in your case, specific deterrence, there must be denunciation and there must be appropriate punishment. 

13Matters personal to you were put and they are matters which I take into account.

14There is medical material, which I accept shows that you will find a significant period of imprisonment more burdensome than may other prisoners.  You are now 65 years of age and I take that into account.  This history shows that over the last five or six years you had two total knee replacements and you have had a total left hip replacement.  You had various other forms of surgery.  You clearly have blood pressure problems and are on a number of medications.  You have osteoarthritis and you have, in recent times, had a melanoma removed, and I take all those matters into account.

15You also have a partner who you are sponsoring and who is endeavouring to get Australian citizenship, as I understand it.  What the consequences of all this will be in regard to that, I do not know, but I also sentence on the basis that you will undergo this sentence certainly at least with the fear that your partner will not be able to stay in the country and may not be here when you are ultimately released.  I can take it no further than that.

16You have clearly good family support, and that should assist in your ultimate rehabilitation.  There is a reference from your sister, and your barrister, Mr Casement, confirmed these matters from the Bar table, that over the years you had a very good work record.  You were first married in around about 1967 or so and have operated since then as a bricklayer.  That marriage, for whatever reason, collapsed in the early 2000s and your life would appear to have gone off the rails since then.  During the course of your life you have worked as a youth leader, you have raised your own children with good social values, and you were an honorary probationary officer for a number of years with the Children's Court.  All those matters you can now call into aid in the situation in which you find yourself.  I accept that over the years you have been of assistance to your siblings and basically, other than this type of offending, have led a blame-free life.  All those matters I take into account.

17I am assuming that you will not have to do the sentence in protection, and accordingly, I do not need to deal with that.

18I do not see there is any point here, at 65, with a crop this size, of going through your past history.  You know what you have done.  You must have had a good understanding of what the consequences would be if you were detected. 

19At your age and your situation, the prospects of your rehabilitation are up to you and the risk of you reoffending is again a matter up simply to yourself.  I take into account, as I said, those references, and as best I can, the sentencing statistics in relation to this offence.  However, certainly in my experience I have rarely, if ever, seen a commercial quantity in that sense of this size and it becomes difficult.  However, taking all those matters into account, there has to be a sentence which denounces this sort of offending and makes it clear to other people who may have a like-minded interest, that the consequences of trying to produce drugs of dependence on this scale have to be dramatic.

20Accordingly, on the charge of cultivate a commercial quantity, you are sentenced to be imprisoned for a period of five years.  On each of the charges of possess a drug of dependence, in circumstances where I would not have even gaoled you for it, I simply give you seven days on each to be totally concurrent.  That leaves an effective head sentence of five years. 

21In your situation, and because of the way that you have pleaded guilty and have taken responsibility for this entire operation, I am prepared to give you an opportunity for parole that will come sooner than might otherwise have been the case.  Accordingly, you will serve a minimum period of two years and nine months before becoming eligible for parole.

22I direct that 76 days be reckoned as having been served under this sentence. 

23Insofar as s.6AAA is concerned, it is in this circumstance a misleading concept, quite clearly.  As I understand the situation here, you would have pleaded guilty to this crime in front of a jury and would have fought the large commercial quantity.  In that situation, I would not have, in any way, seen that running of a trial as an absence of mitigation.  You would have got exactly the same sentence. 

24I have indicated earlier, just so you clearly and your family clearly understand how much this common sense decision has saved you, had you gone before a jury and been convicted by a jury of large commercial quantity of such an amount, the head sentence would have been in double figures.  Just so that is clearly understood by all.  In other words, Mr Bird, there is just too much of it.

25I have made the disposal order.  Are there any other orders I need to make? 

26MR CASEMENT:  No, Your Honour.

27HIS HONOUR:  All right, thanks.  Yes.

28MR CASEMENT:  Could I just have a moment ‑ ‑ ‑

29HIS HONOUR:  Yes, of course.

30MR CASEMENT:  ‑ ‑ ‑ before he goes down?

31HIS HONOUR:  Yes, before he goes out.  I'll just stay here.  I'll just stay for a moment.

32MR CASEMENT:  Thank you, Your Honour.

33HIS HONOUR:  All right, thanks, Mr Casement.  Yes, thanks, gentlemen. 

34You will have to go, Mr Bird, I am afraid.  That is why I stay here.  I am sorry, that is the way it is, otherwise you will have to get strip searched and everything.  All right.  Yes, thanks, Mr Casement.

‑ ‑ ‑