Director of Public Prosecutions v Britton (a pseudonym)
[2022] VCC 847
•6 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES BRITTON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE HIGHAM | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2022 | |
DATE OF SENTENCE: | 6 June 2022 | |
CASE MAY BE CITED AS: | DPP v Britton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 847 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – cultivating a narcotic plant not less than commercial quantity – theft – plea of guilty – rehabilitation
Legislation cited: Sentencing Act 1991 (Vic), s 6AAA
Sentence:Drug and Alcohol Treatment Order, with a custodial part of 39 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. White | Office of Public Prosecutions |
| For the Accused | Mr J. Slucki | Kaczmarek Grigor Lawyers |
HIS HONOUR:
1James Britton[1] you have pleaded guilty to one charge of cultivating a narcotic plant not less than a commercial quantity (Charge 1), for which the maximum penalty is 25 years’ imprisonment, and one charge of theft (Charge 2), for which the maximum penalty is a term of imprisonment of 10 years. Tendered as Exhibit 1 on the Determination Hearing was a Summary of Prosecution Opening, in which the agreed circumstances of your offending and the procedural history of this matter were set out. In brief, the circumstances of your offending were as follows.
[1] A pseudonym.
2In 2021 you rented a residential property at King George Parade, Dandenong, for the sum $1,000 a month. On 16 December 2021 at approximately 10:20 am, police officers executed a search warrant at this property. After no response to knocks on the door, officers broke down the front door and inside the property located an established hydroponic set‑up, which was being used to cultivate cannabis. A total of 140 cannabis plants were located, as well as one clear Ziploc bag of dried cannabis. Subsequent analysis revealed a total weight of 94 kilograms of cannabis (Charge 1).
3Police officers also observed an electrical bypass system located in a wall cavity above the meter box of the property. This bypass allowed the electrical current to bypass the meter-box, in effect accessing power from the grid without charge (Charge 2).
4At approximately 11:14 am, you arrived at the property and when questioned by police you confirmed you were the current tenant and that the cannabis was yours. You were taken to Dandenong Police Station where you participated in a Record of Interview and further admitted to installing the electrical bypass. You made full and frank admissions to your offending. You were subsequently remanded in custody.
5You were granted bail on 2 February 2022 under the Court Integrated Services Program (CISP). The matter resolved at the first committal mention on 10 March 2022 and was committed to the County Court by means of a straight hand-up brief. Yours is a plea of guilty entered at the earliest opportunity. On 21 April 2022, the matter was adjourned into the Drug and Alcohol Treatment Court and a Determination Hearing was heard on 31 May 2022.
6I turn now to your personal circumstances.
7You were born in June 1982, the second of three children. You are now aged 40 and you were aged 39 at the time of this offending. Yours was a childhood and adolescence in a “household of intense violence and torment,” to use your own words. You, your siblings and your mother were all the innocent victims of the family violence perpetrated by your father (Exhibit 5DP).
8Your father would regularly bash you, on one occasion breaking your nose. You cast yourself as the family protector, albeit, you were far too young to have to take on such responsibilities. Your mother was too scared to leave and you did not want to abandon her and thus the nightmare continued. Your father was also a convicted criminal and you speak of countless “raids” on the family home by police officers and (the consequent and welcome) absences of your father, whilst he was either avoiding police attention, or in custody, as thereby providing some respite to your poor, suffering family. However, his criminal lifestyle only increased the instability of your childhood.
9You, nonetheless, were a good student. Halfway through your Year 12, your brother, Dillon[2], tragically overdosed. You left school, your parents separated, and you have worked in successive manual jobs over the intervening years. You have never achieved your potential, it might be said.
[2] A pseudonym.
10You have not dealt with the lasting grief of your brother’s death, nor with the trauma of your upbringing. You have had two long-term intimate relationships. You have been in a relationship with your current partner, Sarah[3], who is a nurse, since 2016. Your first child, Olive[4], is but three weeks old, born in May 2022.
[3] A pseudonym.
[4] A pseudonym.
11Since being admitted to CISP bail, you have regularly provided clear urine screens. The progress reports (Exhibit 8DP) speak of your consistent engagement and your willingness to participate in treatment. Your mother remains a constant support, and you are a constant support to her. You are currently rebuilding your relationship with your sister, Jessica[5], who herself has struggled with her own issues of substance dependency, but who I am told happily is about to have her children returned to her.
[5] A pseudonym.
12Exhibit 3 on the Determination Hearing was a Clinical Advisor Report by Harry Howe, dated 16 May 2022. Exhibit 4 was a Case Management Report by Megan Kew and Santi Griffin-Achmad, dated 17 May 2022. Both reports detailed your personal narrative, assessed your motivation, recommended you as a suitable candidate for a Drug and Alcohol Treatment Order (DATO), and identified treatment pathways for your engagement and conditions for managing you in the community whilst on such an Order. Neither party filed a notice of intention to dispute the Court ordered assessment reports and I proceed on the basis that no challenge is made to either the contents or the conclusions of the Reports.
13Exhibit 8DP was a collection of progress reports from CISP and Exhibit 5DP was a psychological report from 2015 of Ms Carla Lechner, which, although for an earlier court hearing, succinctly set out your personal narrative. Ms Lechner ventured a diagnosis of Post-Traumatic Stress Disorder, generalised anxiety disorder, major depressive disorder and obsessive-compulsive traits, all stemming from the traumatic childhood which you endured and which had not been treated prior to your arrest on this index offending. Exhibit 9DP was a report from Dr Drogona Kasich, dated 3 June 2022, detailing your current engagement and supporting the tentative diagnoses of Ms Lechner.
14You began problematic substance use later in life. From the age of 36, you were drinking one to one and a half bottles of vodka a day. You first used cocaine and methamphetamine at the age of 36 and your use quickly escalated to using up to 2 to 3 grams of cocaine daily and also methamphetamine if in the company of friends at the peak of your usage.
15You have a criminal record going back to 2000, for driving and dishonesty offences. Most relevantly, in 2012 you received a 12-month term of imprisonment, wholly suspended, for cultivating cannabis. In April 2019, you were dealt with for possession of cocaine. Whilst you do not fall to be sentenced for matters already dealt with by the Courts, your prior criminal history impacts my assessment of the need for specific deterrence, your prospects of rehabilitation, community protection and, more broadly, upon the appropriateness of a DATO in your case.
16Mr Howe (Exhibit 3) states that you would have satisfied the diagnostic criteria for diagnosis of stimulant use disorder at the time of the alleged offending, which would have been severe in nature and is currently in sustained remission in a controlled environment. He was also of the opinion that the treatment and supervision part of a DATO would be an appropriate intervention to address your substance use disorder and had no concerns as to your capacity to participate.
17You told Ms Kew and Ms Griffin-Achmad (Exhibit 4) of an escalating substance consumption which you were unable to afford. Prior to this offending, you sold all your belongings to support your drug habit. You then determined upon cannabis cultivation to both sell and to trade for other substances of dependence. To use your words, your “care factor was zero”. You presented as motivated and throughout expressed significant regret and remorse for your behaviour whilst in periods of heavy substance misuse, and you frequently acknowledged the impact your behaviour has had on your ability to be present for your family, and to act in line with your values.
18The particular purposes of a Drug and Alcohol Treatment Order are[6]:
· to facilitate the rehabilitation of the offender participant by providing a judicially‑supervised, therapeutically-oriented, integrated drug and alcohol treatment and supervision regime;
· to take account of the offender’s drug or alcohol dependency;
· to reduce the level of criminal activity associated with drug or alcohol dependency; and
· to reduce the offender participant’s health risks associated with drug or alcohol dependency.
[6] Sentencing Act 1991 (Vic), s 18X(1)
19Mr Slucki, Counsel on your behalf, urged me to follow the recommendations of the clinicians and the case managers and place you on a DATO, submitting that this was an appropriate disposition having regard to your circumstances and the circumstances of your offending.
20Mr White, Counsel on behalf of the Director, conceded that such a course was open to the Court, but with appropriate conditions. He submitted that the sentencing purposes of specific deterrence and community protection were of particular relevance in your case, having regard to your earlier conviction in 2012, and that caution should be exercised in assessing your prospects of rehabilitation. Such matters should be reflected, he submitted, in the setting of the custodial term.
21Mr Britton, your offending is by its very nature serious, as is clear from the maximum penalty of 25 years’ imprisonment imposed by Parliament for Charge 1. The trade in cannabis is by no means benign trade. The cannabis crop that is grown by the cultivators of the drug has serious adverse effects upon many users, and thus, serious adverse effects for the community at large. It is the community which bears the great personal and emotional cost, while cultivators often reap significant profit.
22The use of suburban houses as grow houses for the commercial cultivation of cannabis for onward sale and profit is all too prevalent. Oftentimes, it is marginalised individuals who are found on the premises, who have been paid some paltry recompense for minding the crop, but who have no personal investment or interest in the profits of the enterprise. That description does not fit you. It is rare, indeed, for the owners of the operation to be found at the premises at the time of police entry: they usually keep their distance.
23A key indicator of gravity of the offending will be the quantity of cannabis that is grown, the period over which the operation has run, whether the enterprise is commercial in nature and, if so, the scale of the operation and the anticipated profits, and, of particular importance, the role played by the individual in front of the Court.
24All of the features found in the King George Parade property are common to suburban houses that have been converted into cannabis production houses for profit. However, the photos reveal a hydroponic set up that was well-constructed and with several fine tunings so as to gain maximum yield and to avoid detection, including: plasterboard over the windows, a reticulated watering system, large carbon filters and the like. There was also the electrical by-pass that had been connected to enable electricity to be taken from the grid without payment (Charge 2) and without the usage being detected by the service provider. This is a between dates charge, between 9 September 2021 and 16 December 2021, based on your own admissions in the Record of Interview.
25The total weight of cannabis located (94 kilograms) equalled 3.76 times the threshold for the commercial quantity. The property had been rented by you, which must have represented a significant outlay from your hard‑pressed pocket. The sophisticated nature of the hydroponic set-up and the amount cultivated clearly demonstrates, in my view, that you were engaged from the outset in the cultivation for profit and personal gain, in addition to providing for your own material needs, including your drug dependence. Beyond that, I cannot form any view as to the nature and extent of the commercial enterprise in which you were engaged and I give you the benefit of the doubt, as I must. However, the objective gravity of your offending is clear. This was your crop. It was your enterprise, and your moral culpability for the offending is informed by that simple fact.
26Mr Britton, in sentencing you I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is I must deter other people from behaving as you did, and to specific deterrence, that is deterring you from any repeat of such offending. I must consider the need to protect the community. I must express the community’s denunciation of your conduct. I must take into account the effect of your crimes upon the community. I must have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty. I must ensure, as far as possible, that you are rehabilitated and reintegrated into society. In short, I must try to balance your personal circumstances with the circumstances of your offending. I must also pass no greater sentence than is necessary, in all the circumstances of the case, as I find them to be.
27These sentencing purposes as, identified in s 5(1) of the Sentencing Act 1991, are all still to be considered in your case, in particular specific deterrence and protection of the community. However, if the Court is considering placing an offender upon a DATO then their rehabilitation, and the protection of the community (to be achieved through their rehabilitation), have greater importance than those other sentencing purposes.[7]
[7] Sentencing Act 1991 (Vic), s 18X(2)
28On all the material in front of me, I am satisfied on the balance of probabilities that:
· you have a poly-substance dependency, including alcohol and identify cocaine as your primary drug of concern;
· your dependency contributed to the commission of the offending in front of me;
· otherwise, it would be appropriate to impose an immediate sentence of imprisonment of no more than four years; and
· you are not charged with offending nor are you subject to any order that would make you ineligible for a DATO.
29It is clear to me that the lasting scars of your traumatic childhood have remained unaddressed, untreated and thus have not yet healed.
30I also accept that later in life your untreated mental health issues led you to self-medicate and to quickly develop an unsustainable and costly level of substance dependency. I further accept that your drug use led you to embark upon the offending for which you fall to be sentenced today. That, however, can only ever be the context to your offending, it can never excuse it. Mr Slucki did not seek to suggest otherwise.
31You pleaded guilty to this matter at the earliest opportunity. Such a plea has both a significant utilitarian benefit in saving the community the time and expense of a trial, but also a plea has a particular value to the courts and to the administration of justice in the time of the COVID-19 pandemic.
32I accept you are remorseful and are ashamed of your conduct, as indicated both by your plea, by your frank admissions in your Record of Interview, and by your subsequent conduct. In your words, you “did the wrong thing and made the wrong decisions and need to face the consequences of [your] actions”. Your sense of shame and guilt for your actions is, for you, a significant motivating factor for your recovery.
33I also have regard to:
· the continuing impact of your childhood deprivation and untreated grief;
· your response to supervision and continuing programs under CISP bail;
· your expressed desire to be a good partner, to be a good father and to not go down that road of drug use and offending again; and
· the support that you have of your partner, to the emotional pull of new fatherhood and the positive familial relationships that you have, particularly with your mother.
34I am prepared to give you the opportunity to take back your life. It is up to you, Mr Britton, as to what you do with that opportunity.
35Having regard to all the above matters, I am satisfied that in all the circumstances of your case it is appropriate to place you upon a DATO.
36On Charges 1 and 2 you are convicted and placed on a DATO.
37A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.
38The core conditions, which are that:
(a) you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;
(b) you must attend Drug Court when required by the Court to do so;
(c) you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed;
(d) you must report to and accept visits from members of the Drug Court;
(e) you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;
(f) you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;
(g) you are not to leave Victoria without the permission of the Drug Court; and
(h) you are to obey all lawful instructions from the Drug Court Team.
39The core conditions will operate for 39 months, or until further order.
40The program conditions, which are that:
(a) you must submit for drug and alcohol testing, as directed;
(b) you must submit to detoxification or other treatments specified in the Order, as directed;
(c) you must attend vocational, educational and employment programs, as directed;
(d) you must submit to medical, psychiatric and psychological treatment, as directed;
(e) you must reside at [address omitted] Bentleigh East, for the duration of the Order or until further Order;
(f) you are subject to a curfew that you must remain at [address omitted] Bentleigh East between the hours of 9:00 pm and 6:00 am, which is required until further order;
(g) you are not to use a drug of dependence without lawful authorisation;
(h) you are to abstain from alcohol; and
(i) you are to do or not do anything else that the Drug Courts consider necessary or appropriate concerning:
(i)your drug and alcohol dependency; and
(ii)the personal factors that the Drug Court considers contributed to your criminal behaviour.
41These program conditions will operate for two years, or until further order.
42The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a DATO, and it is a term of imprisonment of 39 months. That is made up as follows:
· Charge 1, a sentence of three years and one month; and
· Charge 2, the theft of electricity, there is a sentence of six months.
43I order that two months of the sentence on Charge 2 run cumulative to the sentence on Charge 1. That makes a Total Effective Sentence of three years and three months, or 39 months.
44I declare that you have served 48 days of Pre-Sentence Detention. The custodial part does not come into effect until further order, so there is nothing on which the pre-sentence detention attaches. The declaration would only have effect if the Order were to be cancelled and there was a calculation as to what of the custodial part should be activated.
45Now, I need to ask you whether you consent to being placed on an order?
46OFFENDER: I do, Your Honour.
47HIS HONOUR: You do. I thought you might say that.
48Pursuant to s 6AAA of the Sentencing Act 1991, had you not pleaded guilty, you would have been sentenced to a Total Effective Sentence of four years and four months, with a non-parole period of three years and two months.
49That having been signed you can come out of the dock now. Today is the first day of the rest of your life, Mr Britton, put quite simply. Good luck with it.
50Mr Roper, I have got an ancillary order, a disposal order, which I am going to sign. Thank you, Mr Roper, nice to see you in this Court. Thank you, Mr Slucki. I will stand down.
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