Director of Public Prosecutions v Braybrook

[2015] VCC 1059

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00798

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN BRAYBROOK

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 August 2015
CASE MAY BE CITED AS:	DPP v Braybrook
MEDIUM NEUTRAL CITATION:	[2015] VCC 1059

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert

For the Accused Mr R. Revill

HIS HONOUR:

1John Thomas Braybrook, you have pleaded guilty to an indictment charging you with cultivating a narcotic plant in a quantity not less than a commercial quantity and theft of electricity associated with that cultivation process.  The offences occurred between 18 August last year and 28 October last year, that period having been calculated as a result of the opinion of the botanist as to the age of the plants and the period during which the cultivation process took place. 

2You have also admitted two prior court appearances.  They were a considerable period of time ago and I do not regard them as being of any significance so far as this  sentencing exercise is concerned.  The prosecution has provided a summary of prosecution opening which is Exhibit A. I incorporate that in its entirety into these reasons.  It is a pretty typical story of a not unsophisticated setup.  The opening has been supplemented by the provision of photographs which show a messy setup but nevertheless demonstrate that a good deal of effort, planning and financial investment in the equipment went into setting the place up for the purposes of cultivating the cannabis.  The quantity that is relevant to this charge is quite a bit over the minimum commercial quantity. But in this court we see many cases where much higher amounts are involved.  The process was aided by the electrical bypass setup which is again typical. It avoids drawing attention to the crop and enables the cultivation process to be done at the expense of the electricity company rather than the perpetrator.

3The maximum term of imprisonment for cultivating a narcotic plant in not less than a commercial quantity is 25 years' imprisonment and for theft, 10 years.  That shows how seriously Parliament regards this kind of offending. 

4Your counsel has provided me with the helpful outline of submissions on the plea along with a chronology of relevant events and a report from a psychologist, Kim Dowes, which shows that there are no Verdins issues at play and to the extent that you experience low mood and anxiety they seem to be largely reactive upon your arrest for this offence rather than demonstrating any underlying mental impairment or psychological impairment.  It seems that all of that is being and has been managed, accepting of course that the fact that this matter has been hanging over your head for a little while now will have been a significant contributor to your discomfort.

5More significantly I was also provided with a medical report from the Ballarat Road Family Medical Centre under the signature of Dr Benjamin Joes which shows that you suffer from a number of physical health problems.  Perhaps the most significant of them is diabetes which is still to be better controlled.  The other conditions, numerous though they are, seem to be being treated appropriately and managed appropriately.  However, one recognises that such problems are capable of and likely to cause somebody who has to serve a term of imprisonment to find serving that sentence considerably more difficult than if they did not have those physical problems. I take that into account. 

6To all intents and purposes, you come to this court as a man essentially not just of good character, excepting of course the two prior convictions that you have admitted to, two prior court appearances, but one who has in many respects an exemplary character and has made a significant contribution in many community-based areas and has clearly been a devoted family man, albeit that your marriage ended in 1987.  So it is not everybody that can bring that kind of support to bear at this time when you have to face sentencing for serious criminal offences.  The two gentlemen who gave evidence on your behalf eloquently illuminated many good qualities which you have had and no doubt still possess.  The proposition is that this is essentially out of character, albeit that you have obviously enjoyed cannabis over the years illegally and no doubt smoked it socially.  This was a very considerably different venture that you embarked on.  I accept that you may well have fallen on hard times in terms of your capacity to earn a living and your work as a comedian and in other areas.  But that provides little or no excuse for embarking on a criminal venture of this kind which clearly as I pointed out required a fair bit of capital investment. 

7You have pleaded guilty and you indicated your plea of guilty at the first available opportunity.  It is unfortunately the case that many similar offences of this kind come before the courts and I have said on a number of occasions that they should and in most cases do attract terms of imprisonment and significant terms of imprisonment, particularly where the profiteer is the one that is before the court rather than persons who hold themselves out to be mere crop sitters.

8When I looked at the quantity of cannabis involved and the fact that you were the profiteer or potential profiteer, my first reaction was to say that nothing other than an immediate custodial sentence was appropriate.  I may have adhered to that view, had it not been for the character references that have been placed before me, I did not have those before I came into court, and the evidence that has been given on your behalf.  I am very conscious of the Court of Appeal decision in the case of Boulton and the fact that has changed the landscape.  Had it not been for that I do not think that I would have been given any choice other than to impose a substantial custodial sentence upon you.  But the case requires judges to look to alternatives, to look at the effects of prison on an individual and the detrimental effects and to consider whether there might be a sufficient basis of punishment available through a Community Corrections Order to meet the justice of the case.  Your counsel urges me to say that such an order does achieve those objectives.  The prosecution has not suggested a Community Corrections Order is outside the range, save that it would have to be one to which was also attached a period of immediate incarceration.  I have a good deal of sympathy for that submission.  However, your health, age, good character and prospects of staying out of trouble in the future, your attempts to rehabilitate yourself through engaging in counselling and obtaining a better understanding of the harmful effects of cannabis and the evil that can be caused by persons like yourself engaging in this kind of conduct are now, it seems, much better appreciated by you.  I would have expected a man of your age to have appreciated those facts previously.  There is no doubt that for one reason or another in a misguided way you saw this as a way out of your financial difficulties and I think that had it not been for the fact that you are able to pray in aid a fairly long life now of good works and exemplary conduct in so many respects, I still would have been forced to impose an immediate custodial sentence. 

9I canvassed the possibility of having you assessed for a Community Corrections Order so that the question of other rehabilitative measures could be included but it seems to me that what we are looking at here is some measure of just punishment for your offending.  I am told by your counsel you have a capacity to work, to complete a Community Corrections Order and I think that is the way to go.  I cannot impose an order that requires you to serve more than 300 hours without having you assessed.  So I am going to have to have you assessed because I think it has got to be a lot more than 300 hours.  There is not much point me doing that unless you are prepared to consent to an order.  I would have in mind that you would be required to perform 450 hours of unpaid community work.  If you are up for that then I would be prepared to consider it and have you assessed.  If you are not then there is not much point in me having you assessed.  The Community Corrections Order obviously would require you to comply with its terms and one of those terms would be you did not commit any further offences punishable by imprisonment.  But also you would be required to report as required for the purposes of completing your period of unpaid community work.  I do not know, Mr Revill, if you need to talk to your client before I ask him whether he would be ready to consent to an order of that kind or whether you have got instructions that would enable you to do that from the Bar table.

10MR REVILL:  I have instructions, Your Honour, but - I did say that if there was a work component it would be in the vicinity of 400 hours and he acknowledged that so I think I am within ‑ ‑ ‑

11HIS HONOUR:  All right, so have I added another 50 on top of that, have I?

12MR REVILL:  Yes.

13HIS HONOUR:  All right, that probably won't make much difference but ‑ ‑ ‑

14MR REVILL:  No, I don't think it will make any ‑ ‑ ‑

15HIS HONOUR:  Yes, very well.  I think I have to have him assessed because I certainly am not going to give him an order that is less than 450.

16MR REVILL:  I just mention that in terms of how I'd spoken to him already so ‑ ‑ ‑

17HIS HONOUR:  Yes.  No, I realise that, I appreciate that.

18MR REVILL:  ‑ ‑ ‑ it's within the ambit, yes.

19HIS HONOUR:  Yes.  All right, hopefully that can be done in the short term.  Yes, we'll find a time, get an appointment for him, hopefully later on this morning or early afternoon.

20Mr Albert, do you have drafts of the ancillary orders that you seek?

21MR ALBERT:  No, Your Honour, but ‑ ‑ ‑

22HIS HONOUR:  Perhaps they can be prepared over lunch ‑ ‑ ‑

23MR ALBERT:  Yes, Your Honour, if we come back today.

24HIS HONOUR:  Yes, we'll come back today.

25VOICE (from the body of the court):  Excuse me, Your Honour, the accused requires a quick toilet break.

26HIS HONOUR:  All right, we'll take a toilet break then.

(Short adjournment.)

27HIS HONOUR:  I understand there's an appointment available at 12.30, so you'll have to liaise, Mr Revill, with my associate to be sure that - your client knows where to go.

28MR REVILL:  I'll take him down there, Your Honour.

29HIS HONOUR:  Good and the report should be available by 2.30 I think.  So if we say 2.45 I'll adjourn the matter to 2.45 and extend your client's bail until that time.

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