Director of Public Prosecutions v Black
[2022] VCC 226
•2 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-01550
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN BLACK |
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JUDGE: | HER HONOUR JUDGE BLAIR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 February 2022 |
DATE OF SENTENCE: | 2 March 2022 |
CASE MAY BE CITED AS: | DPP v Black |
MEDIUM NEUTRAL CITATION: | [2022] VCC 226 |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence; Cultivation of a Narcotic Plant in not less than a Commercial Quantity; Possess Prohibited Weapon; Substantial and Compelling Reasons; Exceptional and Rare; Lack of Commerciality; Plea of Guilty in the currency of the COVID-19 pandemic; Community Corrections Order.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), Control of Weapons Act 1990 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:DPP v Jeffrey Papalia [2021] VCC 13, DPP v Bradley Gill [2021] VCC 1883, Nguyen v the Queen [2016] VSCA 198, Worboyes v the Queen [2021] VSCA 169.
Sentence:2-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Goetz | Office of Public Prosecutions |
For the Accused | Mr C. Terry | James Dowsley & Associates Pty Ltd |
HER HONOUR:
Introduction
1John Black, you have pleaded guilty to one charge of cultivation of a narcotic plant in not less than a commercial quantity.[1] In addition, you have consented to a related summary offence of possess prohibited weapon being dealt with by this court and have pleaded guilty to that offence.[2]
[1]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s72A.
[2]Control of Weapons Act 1990 (Vic) s5AA.
Circumstances of the offending
2On 13 March 2019 at 10.18 am the police conducted a search warrant at your home address at 1 Oakes Place in Carrum Downs. The following items were located and seized by police. Later analysis of the cannabis revealed the weight of these items as now indicated.
3In the backyard there were 21 cannabis plants in total, 11 of which varied in height from 135 centimetres to 258 centimetres, weighing 79.70 kilograms, excluding the roots. There were 10 plants which varied in height from 142 centimetres to 221 centimetres and those weighed in at 15.80 kilos, again excluding the roots. The total weight of those plants was 95.5 kilos.
4In the spare room off the kitchen there was some dried cannabis branches, in an ensuite bathroom a dried cannabis branch, and in the outdoor garden shed dried cannabis branches, and the total weight of those was 8.3 kilos.
5The Crown case, therefore, is that you cultivated a total of 26 Cannabis L plants with an approximate total weight of 103.8 kilograms and that is the factual basis of Charge 1, cultivate narcotic plant in a commercial quantity.
6In the bedroom of your son Jack, there were several ornamental style swords, a double‑edged weapon resembling an axe, a pair of knuckle dusters and a snap lock bag containing a mix of cannabis and tobacco. You admitted these items were yours. That is the factual basis of the related summary offence 4, possession of a prohibited weapon.
7When the police first attended your property you were not home. You were contacted and returned home within half an hour. You told the police straight away the plants were yours and that you had been growing them.
8You were then arrested and taken back to Frankston Police Station. You made full admissions to growing the plants, or cultivating the cannabis, and also to owning the weapons that were found in your son's bedroom.
9Your partner and son were also arrested and interviewed. They both made admissions to possession and use of cannabis and were cautioned and released without charge.
10The police did not find a sophisticated hydroponic system, a bypass of electricity or any elaborate growing method that would suggest a 'commerciality' to the cultivation. Similarly, there was no sign that you had been selling cannabis. The police took your phone, searched it and returned it to you after the interview. Again, nothing was located that would suggest any trafficking activities on your part.
Category 2 offending
11Cultivation of a narcotic plant in a commercial quantity is defined as a category 2 offence pursuant to the Sentencing Act.[3] This means that a term of imprisonment must be imposed, and such term of imprisonment cannot be imposed in combination with a CCO. There are several exceptions provided in 5(2H)(a) - (e).[4] In this case your counsel relies on sub section (e) and has submitted that there are substantial and compelling reasons that are exceptional and rare that justify the Court not making an order of imprisonment.
[3]Sentencing Act 1991 (Vic).
[4]Ibid.
Defence submissions
12Mr Terry submitted that your offending stood in stark contrast to almost all cases of commercial cultivation dealt with in 2021 in the County Court in Victoria. Those other cases, he submitted, involved offending for financial gain, usually associated with other criminality such as trafficking, and involved sophisticated hydroponic set-ups, often involving the theft of electricity by way of an illegal bypass. In contrast, your crop had relatively few plants, just 26 in total, and of those there were 11 plants that made up the vast majority of the total crop weight.
13He highlighted the fact that there was a complete absence of other aggravating factors such as cash, drug paraphernalia, sophisticated equipment or unjust enrichment. These factors, together with your lack of relevant prior convictions, Mr Terry submitted, were substantial and compelling and, therefore, justified a departure from the ordinary sentencing practice for a category 2 offence.
14In support of this argument, Mr Terry tendered a chart of all publicly available commercial cultivation cases and briefly detailed the facts of each. Of the
28 cases heard in the County Court in 2021 there were only two cases that did not involve a commercial or distribution component. In both of these cases the Court accepted that cultivation, albeit of a commercial quantity, was for the offender's own use. In each of these cases - that is DPP v Jeffrey Papalia [2021] VCC 13,[5] and DPP v Bradley Gill [2021] VCC 1883,[6] - substantial and compelling reasons that are exceptional and rare were found, essentially on the basis of a lack of commerciality.[5]DPPv Jeffrey Papalia [2021] VCC 13.
[6]DPP v Bradley Gill [2021] VCC 1883.
Prosecution submissions
15The Prosecutor, Mr Goetz, submitted that, notwithstanding these two decisions, just because your case did not fit within the typical commercial cultivation that did not mean substantial and compelling reasons that are exceptional and rare had been made out. He submitted that the provision in sub section (e)[7] was not enlivened to allow for a non-custodial disposition. The prosecution maintained that an immediate term of imprisonment must be imposed notwithstanding that your case did not involve the theft of electricity, a sophisticated hydroponic set-up or any evidence of trafficking. He reminded the court of the interpretation provisions contained in s5(2HC) and (2I)[8] of the Sentencing Act which provide the following:
[7]Sentencing Act 1991 (Vic) s5(2H)(e).
[8]Ibid, ss 5(2HC), 5(2I).
16(2HC):
'In determining whether there are substantial and compelling circumstances under (2H)(e) the Court:
(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in s5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to: (i) the offender's previous good character (other than an absence of previous convictions or finding of guilt); or (ii) an early plea of guilty; or (iii) prospects of rehabilitation; or (iv) parity with other sentences.'
17(2I):
'In determining whether there are substantial and compelling circumstances under sub-s2H(e), the court must have regard to:
(a) the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is, not a sentence of imprisonment imposed in addition to making a CCO in accordance with s44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.'
18Mr Goetz did not distinguish the comparable cases relied upon by defence, however, he maintained that when regard is had to the above provisions it was clear that there was nothing about the facts or circumstances of your case that would justify a departure from a term of imprisonment.
Nature and gravity of offending
19It is apparent from the above provisions that the nature and gravity of the offending are to be given more weight than your personal circumstances. Obviously, cultivation of a narcotic plant in a commercial quantity is a serious offence, as is evidenced by the fact that it is a level 2 offence punishable by a maximum of 25 years' imprisonment. The more serious examples of the offence involve sophisticated, expensive and elaborate hydroponic set-ups. Usually, offenders have bypassed electricity and often employ others to tend the crop on a day-to-day basis.
20In such cases it is very clear that the offending is motivated solely by financial gain. This type of offending could be described as 'run of the mill' cultivation of a commercial quantity of cannabis. Those who are considered to be principal offenders who have made significant profit or stand to make significant profit face lengthy terms of imprisonment.
21By comparison, in your case there were no sophisticated hydroponic set-ups, no electrical bypass and no employees. Instead, what was located were 26 plants in total, of which 11 were very large and 10 were large. They were growing openly and naturally in your backyard.
22You gave evidence that you had used cannabis for many years and that this was not your first attempt at cultivating. In the past you had limited success as you had mostly only been able to grow male plants which were of no use to you as they did not bud and flower. On this occasion you went back to some old seeds that you had had for several years. You planted several of the seeds and some extra to increase the chance of getting female plants. You did not expect to be as successful as you were. You cared for the plants by fertilising them with Seasol purchased from Bunnings, by staking them and by playing music to them. It was your plan to harvest the plants, dry them and cryo-vac them for your own use over the next year or so. Some of the cannabis you had planned to make into cannabis butter to put on your sandwiches.
23You also gave evidence that although you had always worked, financially you lived week to week, essentially from pay to pay. It was clear from the photographs of your home that there were no signs of enrichment that might be expected if you were in the business of selling cannabis. On balance, I accept your explanation as to how you came to grow these plants and I also accept that you grew them for your own use.
24In these circumstances your case stands in stark contrast to the cases I have described earlier, where the offending is sophisticated, elaborate and driven by financial gain. There was simply no commercial element to your offending. My view in this regard is strengthened by the fact that investigators did not find any evidence consistent with trafficking.
25For these reasons I do not consider that the nature and gravity of the circumstances in your case warrant a term of imprisonment. I agree with
Mr Terry that it is this lack of commerciality that leads to a lack of seriousness that satisfies the test of substantial and compelling reasons. This, together with the fact that only 7 per cent, that is, two of 28, of the cases from 2021 did not involve a commercial component, supports his contention that it is exceptional and rare. The two comparable cases relied upon by Mr Terry are consistent with, and reflect, such reasoning.26I should also mention that the weapons that were found in your son's bedroom were clearly ornamental in nature. I do not consider there was any sinister purpose in your possession of these items.
Comparable cases
27In the case of Nguyen v The Queen [2016] VSCA 198,[9] Justice Redlich said that current sentencing practices and comparable cases play an important function in advancing an underlying value of equality under the law and the search for unifying principles in the task of sentencing. Essentially, that means like cases should be treated in like manner.
[9]Nguyen v The Queen [2016] VSCA 198.
28When regard is had to the facts of the cases of Gill,[10] and Papalia,[11] I consider your case to be relevantly identical. I therefore consider that the notion of equal justice requires that your case should be dealt with in a comparable way and I propose to do so.
[10]DPP v Bradley Gill [2021] VCC 1883.
[11]DPP v Jeffrey Papalia [2021] VCC 13.
29I turn now to other factors in mitigation.
Plea of guilty
30I accept that your plea of guilty was entered in circumstances where you made fulsome admissions in your record of interview. In these circumstances I accept that your plea is indicative of some remorse. I note that there was some delay in your case as a result of differing legal advice and a change of plea application was pursued but was ultimately unsuccessful.
31Notwithstanding these circumstances, there is still a significant utilitarian benefit in your plea of guilty. You did not cross-examine any witnesses at committal, and you have also spared the Court from what would have been a time-consuming trial.
32In addition, I note what the Court of Appeal recently said in the case of Worboyesv The Queen [2021] VSCA 169,[12] at [39] and that is:
'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any discount, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.'
[12]Worbeyes v The Queen [2021] VSCA 169, 39.
33I propose to allow an appropriate discount for your plea of guilty.
Prior convictions
34Apart from two very dated and unrelated interstate prior convictions you have otherwise not come to the attention of authorities. This is a factor that can be relied upon in consideration of the test under s5(2H)(e),[13] in particular, see 5(2I)(c)(i),[14] and I do take it into account.
[13]Sentencing Act 1991 (Vic) s5(2H)(e).
[14]Sentencing Act 1991 (Vic) s5(2I)(c)(i).
35Your offending occurred almost exactly two years ago. You have not offended in this period and I accept this bodes well for your rehabilitation.
Personal circumstances
36I turn to your personal circumstances. You are now 55 years of age. You were aged 52 at the time of the offending. You were born in the southern suburbs of Sydney and grew up in Sutherland Shire around Cronulla. Your father was a bank manager and your mother a bank teller. Sadly, both of your parents are now deceased. You have one sibling, a younger brother, with whom you maintain a close relationship.
37You completed Year 9 and had no difficulties at school, however, nor did you excel academically. You left school to commence full-time work and have been employed for the vast majority of your adult life. You have worked labouring for a butcher, working as a council rubbish collector, a paver, a bricklayer's labourer and a bricklayer.
38You have lived in Melbourne for approximately 20 years. You have four children as a result of two significant relationships. Two of your children continue to live in Sydney with their mother, with whom you have maintained a friendly relationship. Your younger two children, Jack and Hayley, until recently lived with you and their mother Josephine. Unfortunately, your 24‑year relationship with Josephine recently ended.
39Currently, you live with your son Jack and you are working as a bricklayer, although, like many, you have had a period of unemployment as a result of COVID-19 lockdowns. I received a letter from Craig Hunter of Edithvale Bricklaying dated 10 February 2022.[15] Mr Hunter confirmed that you are employed in his business and have been on and off for the last five years. He was aware of the cultivation charge you face and, in his assessment, you are upset and remorseful for what you have done. It was his lay view that you are suffering personal and financial stress. This is as a result of legal expenses and the separation from your partner. Despite these issues you have continued to work, and he considers you to not only be a reliable worker, but also a decent hardworking and trustworthy person.
[15]Character reference of Craig Hunter dated 10 February 2022.
40I was told that you have smoked cannabis daily since the age of 30 as a means of relaxation, as a way of coping with anxiety, to deal with pain, to help with sleep and to assist in the reduction of your alcohol consumption. Your work is physically demanding and you have in the past suffered a shoulder injury which has caused you considerable pain throughout the years.
Disposition
41After hearing your plea, I ordered an assessment for a Community Corrections Order. I have now received a positive report from Corrections. I should note that they have recommended a mental health condition as a result of the opinion of Mr Ian Stapleton. His Report dated 15 September 2020 was tendered on the plea and provided to Corrections to assist in their assessment[16].
[16]Psychological Report from Bayside Psychological dated 15 September 2020.
42Mr Stapleton had diagnosed you with extremely severe levels of depression, severe levels of stress and moderate levels of anxiety. In an interview with Corrections you confirmed that your mental health is still very much an issue.
43In all the circumstances of your case, and for the reasons I have discussed above, I consider the appropriate penalty to be the imposition of a Community Corrections Order. I consider that such an order can balance and appropriately reflect the general sentencing purposes and give the appropriate emphasis to general and specific deterrence and denunciation, whilst also meeting the purposes of punishment, rehabilitation and protection of the community.
44Mr Black, on each of the charges, that is the cultivation of a narcotic plant in a commercial quantity and the summary related offence of possess weapons, you will be convicted and placed on a Community Corrections Order for a period of two years.
45The conditions of this Community Corrections Order include:
(i)150 hours of unpaid community work over that two-year period;
(ii)assessment and treatment for drug use;
(iii)assessment and treatment for mental health issues; and
(iv)supervision by the Office of Corrections.
46I will offset 75 hours of community work against the treatment. So, what this means is that if you undertake the drug treatment that I have asked that you do, and you undertake the mental health treatment as well, then any hours that you do of that up to 75 hours can be taken off the community work. So if you did 75 hours of it the most community work you would do is 75 hours, but Corrections will explain that further to you when you report in.
47In addition to the conditions I have imposed, there are standard conditions to a Community Corrections Order that I have got to tell you about. The first and foremost of these is that you must not commit any offences during the two-year period which could be punished by imprisonment. You must also report within two working days to the Frankston Justice Centre and that can be done by or should be done by telephone. You are required to advise your supervising Corrections officer of any change of address of where you are living and working and this must be done within two clear working days.
48It is a term of all Community Corrections Order that you must submit to visits as directed and you must obey all of the instructions and directions of the Corrections officer. You cannot leave the State of Victoria without prior permission.
49Mr Black, I must tell you if you breach the order by reoffending, or you do not comply with the conditions I have imposed, you will be charged with a contravention of the order and you will be brought back before me and it may be that I am required to resentence you for the original charges.
50So I indicate - actually before I indicate that, do you consent to the making of the community correction order?
51ACCUSED: Yes. Yes. I do, yes.
52HER HONOUR: Great. I indicate, pursuant to s6AAA of the Sentencing Act, that if not for your plea of guilty I would have imposed a sentence of six months' imprisonment.[17]
[17]Sentencing Act 1991 (Vic) s6AAA.
53I propose to make both the ancillary orders sought by the Crown, that is, the forfeiture order in relation to the weapons seized and the disposal order in relation to the Cannabis L.
54So, gentlemen, is there anything further?
55MR GOETZ: No, Your Honour.
56MR TERRY: No, Your Honour, nothing from me.
57MR GOETZ: May it please the court.
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