Director of Public Prosecutions v Canavan

[2016] VCC 1112

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00360

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL CANAVAN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2016
DATE OF SENTENCE:	10 June 2016
CASE MAY BE CITED AS:	DPP v Canavan
MEDIUM NEUTRAL CITATION:	[2016] VCC 1112

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms R. Harper	Office of Public Prosecutions
For the Accused	Ms O. Trumble	Tony Hargreaves & Partners

182706

 

 

TMS 182707

HIS HONOUR: 

1Daniel Canavan, on 13 March 2015 the police found cannabis had been cultivated in three separate locations on your parents' farm at Delatite.   You can take a seat, you do not need to stand.

2Also found was some drying parts of the cannabis plant and other drug paraphernalia.  The cannabis you cultivated was in one instance by a hydroponic indoor system hidden in a shipping container near the bungalow where you were living.  There were six plants in three buckets measuring between 20 to 80 centimetres.  These plants weighed 297 grams.

3I will just pause there.  That might need to be checked, Ms Harper.

4There were three plants growing in the garden near the bungalow, they were between one to two metres high.  They weighed almost five kilograms, with the largest plant being by far the heaviest and most mature.  A branch from that plant had been harvested.

5The police then kayaked out to a small densely vegetated island in a large dam, and there they found 41 plants that weighed 32.66 kilograms. 

6In total you cultivated 50 plants weighing 37.95 kilograms.

7Notwithstanding the weight of the cannabis, the prosecution accepted, ultimately, that you did not have an intention to cultivate a commercial quantity.  I will sentence you for the crime that you have pleaded guilty to and no more.

8That said, the quantity grown is always relevant and it makes this example of the crime of cultivation simpliciter, as it is sometimes referred to, a serious example of that offence.

9You concede that the cannabis cultivated was for sale as well as for personal use.

10Although you had a hydroponic set up that had written instructions on how to grow cannabis under lights and hydroponically, the plants were not particularly robust.  The system was not a sophisticated one, or as sophisticated as some that are seen in this court all too regularly.

11You face also a charge of possession of 831.6 grams of cannabis, being what was found in your bungalow.  That cannabis appears to be the branch from the biggest plant growing in the garden by the bungalow, and some flower heads probably from the same source.

12Thus I must be careful not to double punish you for the cultivation of a plant which includes harvesting, it and then punishing you for the possession of what came from the harvest of plants.

13In any event, it is agreed that cannabis for possession was for your personal use and not for trafficking and thus the maximum term is one year.

14Also found was some downloaded information about extracting morphine from codeine, and a burnt frying pan that you had, it seems, used, in a failed endeavour to get some morphine by some method or other.

15You are, and have been long addicted to morphine.  Any effort to get morphine was plainly for your own use, but it came to nothing.  It tells as much, if not more, of your level of desperation and addiction, than it does about being a cunning criminal.

16Also found was what appeared to be a discarded container of a precursor chemical.  The amount was small and whatever had been done to the container to somehow deal with the precursor was rudimentary in the extreme.  Also found was a crossbow, a prohibited weapon.

17It has not been made clear, apart from the cultivation, the offending that you faced was not particularly serious.  The cultivation was, is noted, a serious example of that offence.  The crop on the island was well hidden and had an irrigation system of sorts.

18You are now 41.  Your upbringing was in a supportive family.  Despite all that has happened with your drug abuse and prior offending over many years, your parents still support you.  Ultimately, this is important in the sense that after the inevitable sentence of imprisonment, you will have something to fall back on as you embark on what I hope is permanent reform.   No doubt you and they, hope your reform becomes permanent.

19In short, Mr Canavan, the time has arrived where you should not let them down again.

20You grew up and went to school in the Mansfield area before stints at boarding schools.  You commenced, but did not finish Year 11.  You have no formal trade qualifications, but have gained over the years a significant number of skills in welding, carpentry and machine operation. 

21Your work history is strong and very much to your credit, especially in light of your lifelong problem with serious drugs.

22One of your main areas of employment was a significant business that you ran in Western Australia for, it seems, just under ten years.  The business employed, at times, 30 staff.  I will return to the demise of that business and your troubles with the law in Western Australia, and your decline thereafter shortly.

23You were married from the age of 24 until 35 or thereabouts.  You have two children, but do not see them as much now.  The relationship was a positive one, despite your drug use.  Your wife was involved in the success of the business from around 2005 when you and your family moved to Western Australia.

24You were convicted in 2011 in Western Australia for a significant theft of, I think, boating equipment; you served six months' in prison.  This brought an end to your marriage.  Your wife took up with someone else in the business, you tried to keep working in the business after your release, but, ultimately, you walked away from it in 2014.

25It seems you decided to head back to Victoria.  You met up with old drug users and your drug use increased to troubling levels.  This drug use continued when you went back to your parents' property.  You were also drinking to excess to deal with addiction anxiety and problems with depression.

26The most significant problem for you, however, is your addiction to drugs.  You gave a full history of your drug problem to Mr Newton, the well-known psychologist, whose report I found helpful. 

27You commenced using cannabis while still a teenager.  You were quickly a daily user and continued to use cannabis more or less to this day.  There was a period of two years or so when you were able to abstain.  This followed on from a real scare when you fell into a drug induced psychosis.  Unfortunately, after that two year period you took up heavy use of cannabis again.

28You also took up using amphetamines in your late teens, resulting in mounting confusion, paranoia, and, ultimately, the psychosis that I have spoken of.  You also gave up on using amphetamines after this episode.  Unfortunately, you took up heroin in your own foolish and futile endeavour to deal with the psychosis. 

29Mr Newton wrote of this, in this way.  "Mr Canavan told me that he had commenced using heroin at age 20.  Injected the drug and found that it relieved the psychosis that he was experiencing.  Mr Canavan told me that he was using heroin on a regular basis and had experienced severe addiction to that drug.  Told me that this pattern had been to alternate periods of opiate use with periods of stimulant use.  Mr Canavan said that he typically also used cannabis on a daily basis and he had drunk heavily until relatively recently.

30"He told that he experimented with a wide range of other illicit substances, depending on their availability.  These have included LSD, hallucinogenic mushrooms, GHB and Ketamine.

31"Mr Canavan told me that his present practice is to use opiates, typically Oxy Codeine or other prescription opiates, such as morphine, one week, and to use stimulants, typically methamphetamines on the alternative week.  He also was smoking cannabis and using other drugs on an opportunistic basis."

32Mr Newton then offered the following under the heading of "Opinion".

33He said, "Mr Canavan has engaged in sustained problematic use of cannabis, opioids and illicit stimulants.  He has also abused a range of other drugs.  His drug use has precipitated severe consequences across almost every area of his life and he has manifested prominent signs of physical addiction to drugs that he has abused.

34"He has alternated between the various drugs he has used but reported no extended period when he has been abstinent from all illicit drugs.

35"Mr Canavan has participated in only very limited professional drug rehabilitation.  He has very limited awareness of the risk of drugs and lacks insight into issues such as relapse prevention and harm minimisation.

36"Mr Canavan continues to use opiates, stimulants and cannabis to problematic levels, despite the incentive of his impending plea hearing.  There is a strong need for him to receive structured drug education which should take place in a context of supervision and unequivocal contingencies for non-compliance on his part."

37Mr Newton then concluded with the following.

38"Mr Canavan presents as a man who has continued to struggle with severe drug addiction.  Not only has this derailed the development of his personality, but also has undermined his functioning in almost every area of his life.  He has little insight into his drug problem and continues to abuse drugs despite the incentive of his forthcoming plea.

39"It is clear that without consistent and extended engagement in treatment, Mr Canavan's problems will only grow worse so that they will continue to prevent his participation as a productive member of the community.

40"Speaking in terms of his rehabilitation, the most important component of any rehabilitation would appear to be participation in structured long-term drug counselling and education."

41Your counsel, in her comprehensive and realistic written and oral plea, emphasised the need for long and sustained drug treatment.  She conceded that a sentence of imprisonment was warranted and should operate hopefully as a period of abstinence and detoxification.  That what was needed, thereafter, she contended, was a targeted set of programs to aid you to stay permanently off drugs.   The prosecution did not argue against this approach.

42The assessment of you by the Office of Corrections found that you were suitable for a community corrections order.

43The Court of Appeal in the well-known decision of Boulton v The Queen authorised sentencing judges to utilise community corrections orders for the sentencing purposes of punishment, deterrence, and rehabilitation.  These purposes could be served simultaneously with a community corrections order, unlike a straight term of imprisonment, which would operate merely to incarcerate you.

44I consider that all sentencing purposes most important, deterrence, that is, deterrence to you, and to others who might be minded to engage in this cultivation type conduct and other drug crimes, and denunciation of your crime, together with rehabilitation of you.  All those sentencing purposes can only be properly satisfied by a term of imprisonment with a lengthy community corrections order as well.

45The sentence of imprisonment will be as short as justice allows.  Indeed, I consider it to be particularly merciful, Mr Canavan.  You should appreciate that should you fail on the onerous community corrections order, in particular in relation to the drug treatment that I will order that you undergo, then the mercy that I have shown now will not be repeated.

46In my view, the charges 1, 3 and 4, can be adequately punished by the imposition of a community corrections order alone.

47I should make clear to you that your plea of guilty is a matter of real weight.  Your offer to plead guilty to what you now face was made at the earliest opportunity.  As such I will make clear shortly that had you pleaded not guilty to these crimes, then your punishment would have been considerably more severe.

48I turn to impose the sentence on Charge 2, the cultivation first.  For that crime you are sentenced to be imprisoned for six months' and I also order that you do a community corrections order, the duration of which is three years'.

49Under that community corrections order, you will be required to do 200 hours of unpaid community work.  More importantly, in my eyes, is that you will be required to undergo drug assessment and treatment, as directed by the Office of Corrections. 

50You will also undergo assessment and treatment for alcohol abuse.  Also have to undergo programs that may address any risk that you have of re-offending.  You will also be under the supervision of a community corrections officer for the full three years'.

51For charges 1, 3 and 4, the penalty that I impose is a 12 months' community corrections order.  The one condition that is added to that is that you will be under supervision.  That order that I have imposed will run concurrently with the community corrections order imposed on Charge 2.

52For the summary offence of possession of a crossbow, you are with conviction fined $150. 

53You have been in custody since your plea was made.  The seven days that you have been in prison, that has been reckoned and now I declare that that seven days is part of the sentence of imprisonment that I have just imposed.

54I will ensure that the declaration that I have just made is entered into the records of the court so the prison authorities are left in no doubt that you have already done seven days of the sentence of six months that I have just imposed.

55Had you pleaded not guilty to these crimes and been found guilty of them, which was inevitable, then I would have imposed a sentence of 18 months' imprisonment and a four year community corrections order.

56Now there are other orders that are sought in respect of forfeiture and 464.  I intend to make those orders.  The forfeiture order is for the property that was seized - disposal order, I am sorry. 

57In respect of the order for a forensic sample, the prosecution have sought that and I intend to grant it.  I do so because of the seriousness of the circumstances of your offending warrant the order, because of your prior convictions and the granting of the order is in the public interest and I note that you do not stand in the way of the making of the order.

58You need to understand that when the authorities come to take the sample from you, that they are authorised to use reasonable force to get the sample should you resist.  Do you understand that?  All right.

59There will be a document produced shortly that will set out at length the terms and conditions of your community corrections order and I will explain them to you.  Remain where you are for the moment.

60MS HARPER:  Your Honour, we checked that number that you queried and it is correct.            

61HIS HONOUR:  Thank you.

62While the document is being put together,
Mr Canavan, I think you should appreciate that I anticipated almost what your father said, but it certainly resonated this morning when he said it.

63Can I just add one other thing that has never come into it, so to speak, but you grew this cannabis on their property.  People who have cannabis on their property, it is a very difficult thing for them, the owners of the property, to contend that it has got nothing to do with them; that is in relation to the laws about possession and deemed possession.

64Also people who have in their premises one way or the other, houses, or property, cannabis, run risks that the property would be forfeited and sold, hopefully to provide money to the State to develop facilities of the kind that your father spoke about ironically.

65So therein are some of the risks that you were running here, so when I say to you as part of the sentence, "Don't let them down", you can understand the stakes that were involved, hopefully.

66Mr Canavan, just remain seated.  For the community corrections order that was ordered, that will last three years', that three years' commences, not today, but commences upon the completion of your period of imprisonment.  Do you understand?

67OFFENDER:  (No audible response.)

68HIS HONOUR:  There are conditions that apply to everyone who is on a community corrections order, they are mandatory and they apply to you, but listen to the first one.

69You must not commit another offence for which you could be imprisoned during the time the offence is in force.

70Mr Canavan, almost every offence you can think of is punishable by imprisonment.  Certainly, in your case, possession of drugs such as methamphetamines, larger quantities of cannabis of the kind that you have, would put you at risk of imprisonment.  That would breach the order, that is all I am interested in.  If you breach the order you come back before me and you may breach it in other ways and I will get to those, but if you breach the order by further offending, such as anything to do with drugs, then the mercy that I have spoken about, as I say, will not be repeated.

71These are other conditions.  You must comply with any requirements under the sentencing regulations so when you go and see them they will need to take a photograph of you to know who you are and so on.  You have got to comply with all that.

72You must report to, and receive visits from, the Office of Corrections.  You must report to the community corrections centre in two clear working days of the order starting.  As we have it at the moment, that will be the Shepparton Community Correctional Services there in Wyndham Street.

73You must let the community corrections officer know within two clear working days of any change of address or job.  You must not leave Victoria without first getting permission to do so from the Secretary, that is anywhere, for any reason, if you go and see your children or something or other if that gets sorted out.  You must obey all lawful instructions from, and directions, from the Secretary.

74The conditions that apply to you in respect of this order are, you must perform 200 hours of unpaid community work over the three years.  Now that is minimal really for this offending, because I am concentrating on you getting further drug programs.  Do you understand?

75You must be under the supervision of the community corrections officer for the three years.  Just before I leave the unpaid community work, just because I emphasised other aspects, you must do every hour of that 200 hours.  You must turn up on time, every time.  You have got to have the discipline to do it, if you do not, that will be a breach and you will be back here.

76You must undergo assessment and treatment including testing for drug abuse and dependency as directed by the regional manager.  You must do that.

77If they suggest for you to embark upon a particular program, do it, and do it to the end.  If they suggest to you that it is necessary to have some sort of residential treatment program or to consider that, then do it.

78You must undergo assessment and treatment for alcohol abuse and dependency.  You must participate in programs and courses that might address your offending behaviour.  Do you understand?  If you consent to that, sign it.

79The other community corrections order is concurrent.  It lasts for 12 months upon the completion of your imprisonment.  The same mandatory conditions as I have outlined.  The one condition that is added under the program conditions are that you have got to be under the supervision of the corrections officer for that 12 months.  Sign those two.

80I will get copies of those, in due course.

81Mr Canavan, as I explained to you last time, you must go with the prison guard now and Ms Trumble either see you or sort things out; thank you, and I thank counsel for their considerable assistance.

82(Offender removed.)

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