Director of Public Prosecutions v Buchanan
[2019] VCC 290
•14 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01723
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDWARD ALEXANDER BUCHANAN |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 29, 30 and 31 May 2018 | |
DATE OF SENTENCE: | 14 March 2019 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Buchanan | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 290 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of cultivation of a narcotic plant in a commercial quantity (based on weight) – plea of not guilty – jury verdict of guilty – summary matter uplifted from Magistrates’ Court – one charge of dealing with property suspected of being proceeds of crime – plea of not guilty – found guilty by the Court
Legislation Cited: Sentencing Act 1991 (Vic); s3(1), s5(2A); Drugs, Poisons and Controlled Substances Act 1981 s72A; Crimes Act 1958, s195; Criminal Procedure Act 2009, s242
Cases Cited:Hendricks v R [2014] VSCA 185; Director of Public Prosecutions v Marell (2005) 12 VR 581; Director of Public Prosecutions v Pastras (2005) 11 VR 449; Willis v Burns (1921) 29 CLR 511; Chan v R (1992) 63 A Crim R 242; McGee; Ex parte McGee v Mckeever (1994) 71 A Crim R 586; Jeffrey v Director of Public Prosecutions (Cth) (1995) 79 A Crim R 514; Brauer v Director of Public Prosecutions (Cth) (1989) 45 A Crim R 109; R v Verdins & Ors (2007) 16 VR 269; Director of Public Prosecutions v Cole [2018] VCC 1788
Sentence: Total effective sentence – eight months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Initially Mr D Plummer and later, Ms C Pezzimenti | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J Saunders | Melasecca, Kelly & Zayler |
HIS HONOUR:
1 Edward Alexander Buchanan, you pleaded not guilty to one charge of cultivating a commercial quantity of cannabis on 30 March 2017.
2 You stood your trial, which commenced on 28 May 2018, and on 1 June 2018, a jury found you guilty of such offence.
3 Such offence is contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 25 years’ imprisonment.
4 Section 3(1) of the Sentencing Act 1991, defines the offence of cultivation of narcotic plants in a commercial quantity to be a “Category 2 offence” when committed by a person who is eighteen years or more. Such provision came into operation on 20 March 2017 – some ten days prior to the subject offending.
5 Because the charge on indictment constitutes a Category 2 offence, s5(2A) of the Sentencing Act 1991 applies. That section provides that when sentencing an offender for a Category 2 offence, the Court must make an order under Division 2 of Part 3 (that is, a custodial order) other than a sentence of imprisonment imposed in addition to making a Community Correction Order in accordance with s44 of the Sentencing Act 1991 unless statutory exceptions apply. Your counsel accepted, appropriately in my view, that none of the statutory exceptions had application.
6 During the trial, there was no issue that you intentionally cultivated a narcotic plant – in this case, cannabis – at your then rented premises situated at 9 Anama Street, Greensborough (“the premises”). The prosecution case was that you intentionally cultivated not less than a commercial quantity of that plant (which is prescribed to be an amount exceeding 25 kilograms). The evidence led by the prosecution was that the weight of the cannabis at the time of the execution of a warrant on 30 March 2017 was 43.19 kilograms of cannabis.
7 The sole issue giving rise to your plea of not guilty was that you denied that you intentionally cultivated a commercial quantity of cannabis. You made plain at the commencement of your trial that you would plead guilty to the lesser offence of cultivation of cannabis simpliciter.
8 During the execution of the warrant on 30 March 2017, you were asked by police as to whether or not you had a safe in the premises and you directed police to a safe in the laundry and provided a key. Inside the safe, police found $23,500 cash, made up of $50 notes.
9 Prior to the empanelment of the jury, your counsel applied to have such evidence excluded on the basis that it was unduly prejudicial to you – particularly so given that you were not facing any charges relating to the trafficking of cannabis, or indeed any other drug. The Court acceded to such application.
Interpretation of the jury verdict
10 The evidence before the jury was that the police attended your premises on 30 March 2017 at 8.13am to execute the search warrant pursuant to the Drugs, Poisons and Controlled Substances Act 1981. You opened the door to police and advised them that you had a cannabis crop growing in the rear shed. Consistent with the Prosecution Opening, police then conducted a search of the property and found a sophisticated hydroponic set up with a large number of cannabis plants growing in the garage.
11 The garage was set up as a cannabis grow house and was divided into three makeshift rooms lined with foam walls, with various cannabis plants at various stages of maturity in each room. Just inside the side door to the garage there was an alcove which had been set up as the cannabis control centre and contained an elaborate, highly sophisticated work station that appeared to be programming and watering a fertilisation system for a number of plants behind the makeshift wall.
12 There was a large computer screen and several other electronic devices on the main desk and attached to the walls. Computers and devices were connected to the watering system which led into the grow rooms.
13 Inside what was referred to as “Grow Rooms 1 and 2” were sophisticated hydroponic systems with equipment, including lights, shrouds, transformers, ventilation tubing and fans. It was described by the police as a “very professional setup”.
14 Inside Grow Room 3 was a nursery contained in a small cupboard with cannabis seedlings growing under lights, as well as some dried cannabis.
15 In the control room there was a whiteboard with notes relating to the care of the plants, along with a chart entitled “the Professor’s Original Nutrient Feed Program”.
16 The cannabis seized consisted of the following:
(a) In Grow Room 1 there was situated ten large cannabis plants;
(b) In Grow Room 2 there were eight large cannabis plants;
(c) In Grow Room 3 there were fourteen small plants, together with 197.0 grams of dried cannabis;
(d) In the lounge room of the premises there was 34.9 grams of cannabis mixed and 10.3 grams of dried cannabis; and
(e) In the bedroom of the premises there were 12 cannabis seeds weighing 0.2 grams.
17 In all, there were 32 plants weighing 43.19 kilograms, and 242.4 grams of dried cannabis.
18 The prosecution case was that you intended to cultivate a commercial quantity of cannabis as demonstrated by the sophistication of the setup and the quantity of cannabis produced.
19 Given that the only effective live issue was your intention, I considered that the jury accepted the prosecution case that you intended to cultivate a commercial quantity of cannabis as demonstrated by that sophistication and the quantity of cannabis produced.
The uplifted summary matter
20 After the jury verdict on 1 June 2018, the matter was adjourned to 28 June 2018 for a plea. On that date, there was discussion as to the appropriate disposition of the summary matter – that is, the offence of dealing with property suspected of being proceeds of crime contrary to s195 of the Crimes Act 1958. In particular, that section provides:
“A person who deals with property if there are reasonable grounds to suspect that the property is proceeds of crime is guilty of a summary offence and liable to level 7 imprisonment (2 years maximum).”
21 That charge related to the finding of $23,500 in the safe in the laundry at the premises when the warrant was executed on 30 March 2017.
22 It was decided, pursuant to s242 of the Criminal Procedure Act, that this Court would hear that charge given the relevance of a finding of guilt would have in respect of the sentence to be imposed following the jury’s verdict.
23 Section 242(1) provides:
“If an accused before the … County Court—
(a) pleads guilty to an indictable offence; or
(b) is found guilty or not guilty of an indictable offence—
the court may hear and determine a charge for a related summary offence before sentencing or otherwise dealing with the accused.”
24 Section 242(2) provides that the Court must hear and determine such a charge without a jury and in accordance with Part 3.3 of the Criminal Procedure Act 2009, insofar as practicable. Furthermore, ss(3) of that Act provides that on the hearing of such an uplifted summary charge, the Court may admit as evidence in relation to the charge:
(i) evidence given during the trial of the accused in respect of the indictable offence; and
(ii) give leave of the Court to any party to adduce further evidence.
25 Section 242(6) provides that the Court may impose any sentence in respect of a related summary offence that could be imposed by the Magistrates’ Court.
26 To prove the offence set out in s195 of the Crimes Act 1958, the prosecution must prove beyond reasonable doubt that:
(a) you have dealt with “property”; and
(b) there are reasonable grounds to suspect that the property is “proceeds of crime”.
27 The definition of “proceeds of crime” in s193(1) of the Crimes Act 1958 includes property that is derived or realised directly or indirectly by any person from the commission of an indictable offence against the law of Victoria. (See Schedule 1 to the Confiscation Act 1997).
28 Section 193(2) of the Crimes Act 1958 provides that it is necessary to prove facts that constitute one or more relevant offences, but the particulars of the offence need not be proven. The prosecution do not have to establish the particulars of the offence such as the date of the commission of the offence or the identity of the offender. (See Director of Public Prosecutions v Tasman Marell (2012) 12 VR 581 at [34]).
29 Section 195 of the Crimes Act 1958 does not require the prosecution to establish beyond reasonable doubt that the relevant property is the proceeds of crime as defined in s193(1). (See Marell (op cit) at [38]). The prosecution are required to prove only that there were reasonable grounds to suspect that the property was proceeds of crime. (See Marell (op cit) at [24], [26] and [36]).
30 If a prima facie case is established, then you have a case to answer. To establish a prima facie case it does not depend on you being indicted or convicted of trafficking cannabis L. The level of proof the prosecution must attain to establish a prima facie case is a different and lesser standard than that required to prove the elements of trafficking. (See Director of Public Prosecutions v Sava Pastras [2005] VSC 59 at [32]).
31 Once it is accepted that the prosecution has proved beyond reasonable doubt that –
(a) you have dealt with the property – that is, the $23,500 found in your safe; and
(b) there are reasonable grounds to suspect that the property is the proceeds of crime
the tribunal of fact is entitled to find that that suspicion was reasonable and you are obliged to provide an explanation which satisfies the tribunal on the balance of probabilities that you acquired such property lawfully.
32 Your counsel noted that it is accepted that s195 of the Crimes Act 1958 is an example of an offence where a person found in possession of a thing or things, “reasonably suspected” of having been acquired unlawfully is required to give an account. To that extent it is an instance of Parliament reversing the burden of proof. (Reference was made to, generally, Willis v Burns (1921) 29 CLR 511; Wing Kee Chan v R (1992) 63 A Crim R 242 (Court of Criminal Appeal of New South Wales); McGee; Ex parte McGee v Mckeever (1994) 71 A Crim R 586 (Court of Appeal of Queensland); Director of Public Prosecutions v Patras (2005) 11 VR 449 and Director of Public Prosecutions v Marell (op cit)).
33 It is common ground that you are obliged to provide an explanation which satisfies the tribunal on the balance of probabilities that you acquired the property – that is, the monies – lawfully.
34 Your counsel submits that although it is accepted that although you carry the burden of proof, it is a burden required to prove a negative, that is, that the money found in the safe was not the proceeds of crime in this particular case. Reference was made to Jeffrey v Director of Public Prosecutions (Cth) (1995) 79 A Crim R 514 at page 518, citing with approval Brauer v Director of Public Prosecutions (Cth) (1989) 45 A Crim R 109. The New South Wales Court of Criminal Appeal, in the context of confiscation proceedings, noted:
“As it is the appellant whose property has been made the subject of a restraining order pursuant to s43 who must bring application and persuade the Court that the property the subject of the restraining order ‘was not used in, or in connection with any unlawful activity and was not derived, directly or indirectly, by any person from any unlawful activity; and the defendant’s interest in the property was lawfully acquired’, the onus of so satisfying the court lies upon the applicant for such a declaration. Satisfying that onus in relation to the matters addressed in s48(4)(e)(i) but not (ii), involves establishing a negative. Depending upon the circumstances of each particular case, ‘slender evidence may suffice to satisfy an evidential burden in relation to a negative state of affairs’.”
35 Your counsel also submitted that given that you carry only a civil burden, a court may accept your explanation while still having some doubt about that explanation.
36 Through your counsel, you pleaded not guilty to such uplifted summary matter and the matter proceeded on 13 and 14 September 2018. A police officer gave evidence of subpoenaing various bank and credit card records pertaining to you, all of which set out various transactions for a period leading up to the execution of the warrant on 30 March 2017. Such evidence established there were reasonable grounds to suspect that the property – that is to say the monies – is the proceeds of crime. You then gave evidence to provide an explanation and in particular, that the subject monies were acquired lawfully.
37 At the completion of the evidence, various orders were made for the parties to file and serve written submissions. Partly as a result of one counsel undergoing surgery and various Court scheduling issues, the matter was not again mentioned until 11 December 2018 when the parties were notified that they would be advised of a decision in the summary matter on 18 December 2018.
38 On 18 December 2018, both parties, including your counsel, were advised that the Court found you guilty of the uplifted summary offence.
39 In general terms, I did not find you an impressive witness, seemingly basing much of your evidence on guesses, various assumptions and seemingly reconstruction of events. There was only a limited amount of documentary evidence to support many of the allegations made by you.
40 In particular I was not persuaded on the balance of probability in relation to your explanation as to the basis of how you came to collect the $50 notes making up the sum found at the premises, the circumstances in which they were collected, and the uses to which you say they were put.
41 Of course, during this period, there was a significant number of large deposits of money late at night in circumstances which could not be adequately explained, and to the extent that they were explained, appeared to be generally implausible. I was not persuaded that you have provided an explanation which satisfies the Court on the balance of probabilities that you acquired the property in question lawfully.
The plea hearing
Your personal circumstances and background
42 Your counsel tendered the following material:
· Exhibit 1 – a report from the clinical and forensic psychologist, Mr Patrick Newton, dated 6 June 2018 in respect of assessments on 17 October 2017 and 28 May 2018.
· Exhibit 2 – a report of Ms Denise Abadee, director of The Wellbeing Planet, dated 20 June 2018.
· Exhibit 3 – Defence Outline of Submissions on the Plea dated 26 June 2018. To this I will also add the document “Defence Outline of Submissions on Proceeds of Crime Charge”.
· Exhibit 4 – bundle of character references from:
(i) Ms Claire Munro, your sister-in-law, dated 27 June 2018;
(ii) Mr Shaun Lynch, one of your friends, dated 27 August 2018;
(iii) Mr Scott Rowsell, the operations manager of Eagle Hire Pty Ltd, dated 25 June 2018;
(iv) Ms Rita Li, your current girlfriend, dated 27 June 2018.
· Exhibit 5 – Sentencing Snapshot dated 28 June 2018 and Sentencing Snapshot Number 22:
(i) Sentencing Trends for Cultivating a Commercial Quantity of Narcotic Plants in the Higher Courts of Victoria, 2010-2011 to 2014-2015 published on 26 June 2016;
(ii) Sentencing Trends for Cultivating a Commercial Quantity of Narcotic Plants in the Higher Courts of Victoria, 2012-2013 to 2016-2017 published on 30 August 2018.
43 Based on such material, and the various submissions made by your counsel, I note the following:
(a) You are presently thirty-two years of age, having been born in Melbourne on 14 May 1986. You were thirty-one years old on the date of the offending;
(b) You are the youngest of a sibling group of three, with an older brother aged thirty-four and an older step-brother aged forty-five. You were raised in the northern suburbs and your father, Jonathan, is aged sixty-two and works as a delivery driver, and your mother is aged sixty-seven and is currently employed as a receptionist, and during her youth was engaged in home duties. Your parents supplemented their income by renovating and selling houses in which they lived, and as a result, during your upbringing, you and your family moved houses on numerous occasions;
(c) You have described your upbringing in generally positive terms and stated that your mother, when engaged in home duties, was always there for you but you did not see much of your father as he worked nights as a delivery driver. Furthermore, you note that your parents were not very strict with you;
(d) You attended Parkview Primary School from prep until Year 6, after which you completed Year 7 at Salina High School. As a result of the family moving home, you then attended Eltham High School for Years 8 to 10, with you failing Year 10. The following year, you repeated a modified version of Year 10 at VCAL in Preston, which completed your schooling;
(e) The material would suggest that from the start of your schooling, you struggled with literacy (and numeracy) and as a result, your education was impeded. Apparently you had tutors in both primary and secondary school but state they were of little assistance to you. You assert that you did not become fully literate until you were in your early twenties;
(f) Since leaving school, you have been in full-time employment apart from short periods. Such work has involved working as a landscaper from about the ages of nineteen to twenty-one, a signwriter, between the ages of twenty-one to twenty-five, and from about the age of twenty-five until thirty, you were engaged in asbestos removal. Thereafter, you purchased a mobile coffee van and was self-employed as a barista and was working in this capacity at the time of your arrest. Such mobile coffee van has been sold to fund your legal proceedings;
(g) You are currently employed on a full-time basis as a fencer for Eagle Hire;
(h) You have never married and have no children. Since about 2004, you have been involved in a number of relationships, some of which have lasted for “a year or two”. You are currently in a relationship with a young woman named Rita (who authored one of the references) and that relationship has been going on for some months, and you believe the relationship to be serious.
The evidence of Mr Patrick Newton
44 As already noted, Mr Newton assessed you on 17 October 2017 and 28 May 2018. At those times, he performed various psychological testing, obtained a background history – in particular, a history pertaining to your cannabis use, and ultimately expressed various opinions.
45 Mr Newton notes that you engaged co-operatively, willingly answered his questions and impressed as being an open and candid participant in the assessment process. Your emotional demeanour was euthymic.
46 In particular, you informed Mr Newton that you commenced smoking cannabis at age fourteen when you had been introduced to its use by other students. Your use of the drug was also encouraged by your brother, who was also a heavy smoker.
47 You described to Mr Newton a pattern of steadily escalating use – initially you only smoked on weekends at social gatherings and from there your use escalated to include several days of the week and from about the age of twenty-two, you were using cannabis on a daily basis.
48 At age twenty-five, you commenced vaping cannabis, which facilitated even heavier use of the drug. You informed Mr Newton that at your peak – just prior to your arrest in relation to the subject proceeding – you were using up to an ounce – that is, 28 grams of the drug each day.
49 Furthermore, you also informed Mr Newton that you had used a variety of other drugs, including ecstasy (MDMA) and other various prescription medication – although the use of these drugs had been sporadic and had typically induced a state of anxiety. By your early twenties, you had ceased using any other type of drug and became a regular cannabis user.
50 You made clear to Mr Newton that you had always been willing to plead to cultivating cannabis in a non-commercial quantity and that such cultivation of the drug had proceeded for two main motivations – firstly, you said that you had wanted to ensure that you had a steady supply of the drug because “vaping” required a larger quantity of the drug than other uses and, secondly, you informed Mr Newton that you had an intrinsic interest of cultivating the plant built on your previous training in horticulture. In that sense, you informed Mr Newton that the cultivation in itself had become a key avocation for you, which you found diverting and enjoyable. You also informed Mr Newton that you had given a quantity of drugs to your friends but maintained that this had been a relatively small amount of cannabis.
51 Mr Newton noted that your psychological test results indicated that you suffered no signs of emotional disturbance and you reported that your mood had been normal, with no symptoms of depression. In particular, Mr Newton was of the opinion that you manifested no symptoms of psychological disorder during the time of consultations and, moreover, there was no indication that you had previously suffered any such disturbance.
52 In particular, you advised Mr Newton that you ceased using cannabis shortly after being arrested and bailed, and sought treatment from an expert, Ms Abadee, for drug counselling, which also involved undertaking supervised urine drug screens. Mr Newton understood, and confirmed by you, that such screenings were negative for illicit drugs.
53 Mr Newton notes that he conducted a detailed review of your substance use which indicated that you were in an early stage of remission from a significant cannabis addiction. Mr Newton noted that at the peak of your drug use, your ability to participate in valued life activities was compromised, your work was affected, your relationships were compromised and you became increasingly distanced from mainstream society as you immersed yourself in the drug using subculture which you circulated in.
54 Diagnostically, Mr Newton was of the opinion that your drug use had been sufficiently severe to warrant the diagnosis of a Moderate Cannabis-Use Disorder, and on the basis that your abstinence can be objectively verified, this condition is specified as being “in remission”.
55 Mr Newton also noted your continuing participation in treatment with Ms Abadee and you have developed a growing insight into the factors that precipitated your drug use, together with forming plans to ensure that there is no relapse to drug use. Mr Newton noted that this “augurs well” for your ultimate recovery.
The evidence of Ms Denise Abadee, director of The Wellbeing Planet
56 Ms Abadee has qualifications, including a diploma in alcohol and other drugs, and a diploma in mental health. Furthermore, she has worked in a variety of roles in the alcohol and other drugs field since 1990, with a variety of positions across most AOD settings.
57 Ms Abadee reports that you were referred to her by your solicitor on 30 March 2017 when you actively sought strategies to assist you with education, reduction and monitoring your cannabis use. A treatment plan was developed, which in part involved engaging in weekly one-hour counselling sessions with Ms Abadee, during which she has described you as being highly committed to turn your life around. Ms Abadee notes that at the time of the report (20 June 2018), you had provided weekly, bi-weekly and random supervised urine analyses throughout the sixteen months, and all results have returned negative to illicit drugs and alcohol.
58 Ms Abadee also obtained a history from you that at the time of your arrest you were smoking one ounce of cannabis per day. Ms Abadee spoke to you, questioning that the amount was accurate, as 28 grams per day (one ounce) seemed excessive. She notes that consistently since you commenced counselling with her, you have maintained such to be the case. Furthermore, Ms Abadee, an experienced drug counsellor, noted:
“From the beginning of his treatment, Mr Buchanan consistently stated that his reasons for cultivating cannabis was his ‘over the top interest in cannabis’ was due to his introduction into horticulture for 2 years, and his total fascination of the plant, including all aspects including planting, type, growth and yield, wanting to sustain a high quality and the large amounts required to ‘vape’. He often stated that he had no idea how much quantity he was growing but rather wanted to enough to use himself. On one occasion he demonstrated the complex processes of growing, watering, clipping etc.”
59 Ms Abadee notes that over the period of treatment, she has seen a great improvement in your mood and attitude since engaging in counselling. She states that you have informed her that you are “committed to pursuing a healthier lifestyle and wishes to continue counselling for as long as it takes to continue to get well and live a life that is crime and drug free”. She also notes that you have informed her that the Court offences are a further wake-up call, stating “I can’t and don’t want to do this anymore”.
60 On the date of the plea, Ms Abadee was in Court, available to give evidence. I was informed by your counsel that you continue to attend her and also continue to give urine samples which have all proved to be negative.
The various references
61 I have read all of the references. You are generally referred to as a friendly and loving young man and in particular, one of your employers, Mr Scott Rowsell, at Eagle Hire Pty Ltd, describes you as punctual, polite and having a great work ethic since you started work at Eagle Hire on 23 February 2018.
62 Your girlfriend and members of your family attended the plea hearing on 13 February 2019.
The position of the Prosecution
63 The prosecution set out various submissions in a document headed “Outline of Prosecution Submissions” dated 12 July 2018 (prepared by the then counsel for the prosecution, Mr D Plummer, who appeared for the prosecution in the jury matter) and a subsequent document headed “Outline of Prosecution Submissions – Addendum” dated 8 November 2018 (prepared by counsel for the prosecution, Ms C Pezzimenti, who appeared on the uplifted summary matter) and various oral submissions made by Ms Pezzimenti on 13 February 2019.
64 In relation to the offence of cultivating a commercial quantity of cannabis on 30 March 2017, those acting for the prosecution submit:
(a) Such offence is a “serious” offence, as is made manifest by the penalty of up to twenty-five years’ imprisonment. Any sentence should reflect the severity of the offence and in particular, “denunciation” should apply;
(b) Although it was accepted by the prosecution that some of the cannabis cultivated by you was for personal use, it is submitted that based on various factual circumstances, reasonable inferences can be drawn suggesting that the operation undertaken at your premises was a “commercial operation”.
65 In relation to paragraph (b) above, the prosecution referred to the following circumstances:
(a) The quantity of cannabis. In this respect, the prosecution note:
· The weight of the thirty-two plants being grown in the shed was 43.14 kilograms – such weight being more than 18 kilograms above, or 1.73 times a commercial quantity of 25 kilograms.
· The air-dried weight of the leaves and flowering heads of the eight plants close to maturity was estimated to be 8.2 kilograms.
· The air-dried weight of the leaves and flowering heads of the twenty-four immature plants if they reached maturity was estimated to be 24.5 kilograms.
· Dried female flowering heads weighed 197 grams, made up of 96.5 grams in a plastic bag on the heat sealing machine, and 100.5 grams in a plastic tub in the shed.
· The estimated yield of cannabis L was well in excess of what can be sensibly claimed to be for personal use.
· Dried female fragrance and seeds weighing 34.9 grams in a bowl and dried female flowering heads weighing 10.3 grams in a snap-lock plastic bag (respectively, Photographs 42 and 43 in the Depositions);
(b) $23,500 cash in $50 notes in the safe;
(c) The ongoing nature of the enterprise, evidenced by plants at three stages of maturity being cultivated;
(d) The use of all of the available space in the shed to grow the cannabis plants;
(e) The sophistication of the hydroponic set up which utilised extensive equipment;
(f) The anticipated cost associated with setting up and maintaining the hydroponic system;
(g) The heat-sealing machine with the dried female flowering heads in a plastic bag. A plastic bag containing female flowering heads was found with the heat-sealing machine in the shed. There was a relatively small amount of cannabis inside the premises and there was no need for a heat-sealing machine if the cultivation of cannabis was solely for personal use, because the differing maturity of the plants would ensure an ongoing regular supply of cannabis.
66 In response, your counsel submitted that although the number of plants and weight are relevant, the nature and sophistication of the operation do not lend themselves to commerciality and in particular, it was submitted that consistent with your history to Mr Newton and Ms Abadee, the genesis for the cultivation of the drug had been motivated by your need to have a constant and steady supply of the drug to feed your addiction to cannabis and in particular, to provide for you to vape cannabis, which required a larger quantity of the drug. Furthermore, given your background and training in horticulture, you became fascinated by the plant itself and the mechanics of cultivating it, and that the cultivation in itself became a key avocation, which you found diverting and enjoyable.
67 Furthermore, your counsel noted that both in the jury action and the uplifted summary matter, evidence was given by a police officer that, other than one vacuum-sealed bag which was found at the premises, there were no scales, no baggies, no tick sheets, being the sort of things you would expect with someone who is trafficking in drugs. Furthermore, it was common ground that there was no attempt to divert electricity for the purposes of cultivating cannabis.
Mitigating circumstances relied on by your Counsel
68 It was submitted by your counsel that the following matters are relevant in mitigation of any sentence:
(a) You are presently thirty-two years of age and have no prior convictions or involvement with the police prior to the subject offending. Although a person seemingly with limited formal education, you have maintained virtually full-time employment since leaving school, and indeed, continue to work full time as a fencer;
(b) The quantity of cannabis cultivated by you was less than one-fifth of the large commercial quantity threshold – 250 kilograms – and in particular, there is no direct evidence of any commerciality (reference being made to the earlier arguments advanced by your counsel);
(c) You have had constant family support throughout your trial and indeed, at your plea – in particular, you have formed a relationship with a young lady named Rita and that has been ongoing for many months and you believe that relationship to be serious;
(d) The various references supplied to you are very positive about you, at both a personal and professional level;
(e) In particular, your counsel submitted that your prospects for rehabilitation should be viewed as “good” for the following reasons:
· As indicated, you have attained the age of thirty-two years without a prior conviction.
· As already indicated, you have an excellent work history.
· You have seen fit to continue on with the drug counselling which has now been ongoing for approximately two years. Such counselling involves regular urine screen testing and all results have returned negative to illicit drugs and alcohol. Consistent with the opinion of Ms Abadee, the director of The Wellbeing Planet, you have gained insight into the detrimental effects that drug use has had on your life, and have demonstrated a long period of abstinence with a commitment to avoid drugs and in particular, cannabis in the future.
· Consistent with the various references, you have the support of family and friends who would be able to assist you in your rehabilitation.
69 Your counsel, noting the prescribed maximum penalty of twenty-five years in relation to the cultivation offence, conceded that your offending must be viewed as “serious”. Furthermore, you have been found guilty of drug-related offending and authority dictates that the sentencing principles of general deterrence, just punishment and denunciation are all relevant factors in framing an appropriate sentence to be imposed on you.
70 Taking account of the matters to which your counsel has made reference, it was submitted that your offending and the moral culpability which attaches to such offending, must fall within the bottom range of commercial cultivation offences. However, your counsel does accept that bearing in mind the finding of guilt in relation to the uplifted summary charge, there is an elevation in your moral culpability.
71 Furthermore, your counsel accepts that s6AAA of the Sentencing Act 1991 has no relevance as you pleaded not guilty to both offences, and furthermore, there can be no basis for remorse in relation to the uplifted summary matter.
72 Again, consistent with the evidence of Mr Newton, your counsel, appropriately in my view, submitted that the so-called principles established in R v Verdins & Ors (2007) 16 VR 269 have no application to the circumstances of your offending or your sentencing.
73 Ultimately, your counsel submitted that although it was clear that the cultivation offence must result in an immediate period of imprisonment, any sentence should be “very short” in the range of three to six months, which reflects your moral culpability and will also enhance your ongoing rehabilitation and drug therapy.
74 Counsel for the prosecution did not seek to rely on any particular cases but did refer in general terms to Director of Public Prosecutions v Cole [2018] VCC 1788, a decision of Her Honour Judge Morrish handed down on 13 November 2018. That case involved one charge of cultivating a narcotic plant in a commercial quantity – in circumstances where the offender grew twelve plants weighing an aggregate total of 54.81 kilograms (approximately 11 kilograms greater than the amount in quantum here) for personal use. The offender was also sentenced on a related summary charge of using a drug of dependence, and sentencing was on the basis that the offender had pleaded guilty to both charges and was sentenced to nine months’ imprisonment.
Conclusion
75 The offence of cultivating a commercial quantity of a narcotic plant – in this case, cannabis – is a serious offence as is made clear by the maximum penalty of twenty-five years’ imprisonment. Of course, such an offence can cover a variety of situations involving large criminal enterprises, or indeed small criminal enterprises with those seeking to ultimately traffick in the cultivated product. Such offending can also include people which are generally referred to as “crop sitters” – that is to say, people engaged by those running criminal enterprises who look after and maintain a particular crop for a fee rather than a share of the profits.
76 I accept authority does dictate that sentencing principles of general deterrence, just punishment and denunciation are all relevant factors in framing an appropriate sentence to be imposed for this offence.
77 However, it is also relevant to make an assessment of your moral culpability in relation to the offending when determining an appropriate sentence.
78 After a consideration of all of the evidence, I consider that your moral culpability in relation to this offending is at the lower end of such offending. I have come to such view on the basis that I do accept that over many years you grew addicted to cannabis, resulting in increased amounts being required, particularly so when you commenced “vaping” cannabis. In this respect, I accept the history that leading up to and around the time of your arrest, you were using for the purposes of vaping cannabis, approximately one ounce of cannabis per day. Both Mr Newton and Ms Abadee consider that to be an enormous amount.
79 I also accept that consistent with your histories to Mr Newton and Ms Abadee, that the genesis for the cultivation of a drug have been motivated by your need to have a constant steady supply of the drug to feed your addiction to cannabis (and to provide enough cannabis for you to vape cannabis) and also given your background and training in horticulture, you did become fascinated by the plant itself and the mechanics of cultivating it which, as Mr Newton noted, became a key avocation which you found diverting and enjoyable.
80 Although I accept that the jury verdict should be interpreted that you intended to cultivate a commercial quantity of cannabis (by weight) as demonstrated by the sophistication of the setup at your premises and the quantity of cannabis produced, I am not persuaded to draw “reasonable inferences” beyond reasonable doubt that the operation undertaken at your premises was a “commercial operation”. There is no direct evidence of that assertion and indeed, I am of the view that that is not the only reasonable inference that could be drawn given what I have found in relation to your motivation to undertake the operation at your premises. Of course, the sentencing principles of general deterrence, just punishment and denunciation are all relevant factors notwithstanding that your moral culpability is low.
81 I also take into account that hitherto this offending you had no prior convictions and seemingly had not come to the notice of the police for any type of offence. Furthermore, I accept that you have generally been in work since leaving school and indeed, continue to work as a full-time fencer. Furthermore, I also accept that you have the support of family and friends around you, which is a factor relevant to your ongoing rehabilitation.
82 In particular, I also accept that you have made a real and genuine effort to overcome your cannabis habit given your involvement with drug counselling over the last two years and indeed, and perhaps more particularly, your abstinence from drugs over this period as evidenced by regular urine testing. Furthermore, Ms Abadee, a very experienced drug counsellor, considers that you have gained insight to the detrimental effects of drug use on your life and have demonstrated a commitment to avoid drugs and particular cannabis in the future.
83 In all of the circumstances, I would consider your chances of rehabilitation, although an ongoing process, are reasonably good.
84 You have been found guilty of the uplifted summary offence of dealing with property suspected of being proceeds of crime contrary to s195 of the Crimes Act 1958. Such offence is a summary offence and carries a penalty of up to two years’ imprisonment.
85 I accept the submission of your counsel that a finding of guilt in relation to that offence does increase your moral culpability given that there are reasonable grounds to suspect – and I stress suspect – that the property in question is proceeds of a crime. Of course, such a finding of guilt does not amount to a trafficking offence but does impact in a general way on the overall seriousness of the offending.
86 I intend to convict you of each of the offences and order immediate prison sentences.
87 I should point out that although sentencing statistics were available, in relation to the offence of cultivating a commercial quantity of a narcotic plant, such are of little assistance in the circumstances of this matter – in part because of the relevantly recent change to the Sentencing Act which made the offence of cultivating a commercial quantity of a narcotic plant a Category 2 offence which must attract a custodial order and indeed, a vast range of circumstances where people can be found guilty of such offence and of course, it is unclear whether such statistics followed pleas of guilty or findings of guilt by a jury.
88 Please be upstanding.
89 In relation to the charge on the Indictment, you are convicted and sentenced to a period of seven (7) months’ imprisonment. This is the base sentence.
90 In relation to the uplifted summary charge, you are convicted and sentenced to a period of two (2) months’ imprisonment.
91 I order that one (1) month in relation to the uplifted summary charge be served cumulatively upon the sentence imposed on the indictable offence. The total effect sentence is eight (8) months’ imprisonment.
92 I also grant the order sought by the prosecution for forfeiture and disposal, which are not opposed.
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