Director of Public Prosecutions v Canfield
[2021] VCC 892
•2 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01301
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Cassius CANFIELD |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 June 2021 | |
DATE OF SENTENCE: | 2 July 2021 | |
CASE MAY BE CITED AS: | DPP v Canfield | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 892 | |
REASONS FOR SENTENCE
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Subject:Cultivating cannabis and trafficking cannabis.
Catchwords: Guilty plea – principal in a small operation at 2 premises – 23 cannabis plants weighing 52 kg – 1st offender – traumatic upbringing – related substance abuse – impressive steps to reform while on bail – excellent rehabilitation prospects.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:Quaresima v The Queen [2017] VSCA 306; Van Pham v The Queen [2020] VSCA 114; Tyler Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] 249 CLR 571; Williams v The Queen [2018] VSCA 171.
Sentence: 3 year community correction order – 250 hours of unpaid community work – drug treatment and rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Holly Baxter | Office of Public Prosecutions |
| For the Accused | Mark Gumbleton | Sarah Tricarico Lawyers Pty Ltd |
HIS HONOUR:
1Cassius Canfield, you have pleaded guilty to:
(a) one charge of cultivating a narcotic plant, cannabis L;
(b) one charge of trafficking in a drug of dependence, cannabis L;
(c) one charge of possessing a drug of dependence, namely heroin, cocaine and amphetamine; and
(d) one charge of theft.
2You have also pleaded guilty to two related summary offences:
(a) dealing with property suspected of being proceeds of crime; and
(b) failing to provide passcode to your phone.
3Your offending occurred on 27 February 2020. The circumstances are set out in the summary of prosecution opening upon plea, dated 7 June 2021. They are agreed facts.
4At the time of the offending, you were living with your partner at Keilor East. On 27 February 2020, police executed a search warrant at your address. You were home. In the garage, police found:
(a) eight cannabis plants, weighing 32.75 kilograms, which were being grown hydroponically in pots;
(b) five bags of harvested cannabis weighing 2.28 kilograms; and
(c) loose cannabis in a hessian bag weighing 187.7 grams.
5There was an electricity bypass in the roof.
6You were arrested.
7Police then searched your home and found:
(a) $12,650 in cash, in various places throughout your home;
(b) a small amount of cannabis weighing 4.8 grams, in a Ziploc bag in a motorcar parked in the driveway of the premises;
(c) a small quantity of heroin, in a Ziploc bag in a back room;
(d) a small quantity of cocaine, in a small Ziploc bag located in the hallway table drawer;
(e) amphetamine in a Ziploc back in the hallway table drawer, and two Ziploc bags in the kitchen freezer, weighing 62 grams in total; and
(f) a vacuum sealed bag containing cannabis, weighing 448.3 grams, in a bedroom.
8Police also seized a number of mobile phones and several computers. You were asked to provide your password to phones and computers. You refused to comply.
9Police executed a second search warrant at a factory at Keilor East. They had found keys to the factory at your home.
10You had work related equipment, as well as your motorcar and a jet ski at the factory. Inside the factory, police found 15 cannabis plants, weighing 9.02 kilograms, which were growing in two rooms fitted with lighting and charcoal filters. An electricity bypass had also been fitted.
11When police interviewed you, you exercised your right to remain silent.
12After you were charged, you were released on bail.
13By your guilty plea, you admit
(a) you were growing the 27 cannabis plants found at your home and factory (Charge 1 - cultivate a narcotic plant);
(b) you were in possession of nearly 3 kilograms of cannabis at your home for sale (Charge 2 - trafficking cannabis);
(c) the small quantities of heroin and cocaine and amphetamine were yours (Charge 3 - possess drug of dependence);
(d) you stole electricity at your home and the factory in connection with the cannabis cultivation (Charge 4 - theft); and
(e) the cash, $12,650, which was suspected proceeds of crime, was yours (related summary charge); and
(f) you refused to comply with a police direction to give the password to your phones and computers (related summary charge).
14You have no criminal record.
15You were born on 26 February 1991 at Melbourne.
16You are an only child. Your parents separated when you were one year old. A year later, your mother took you to Echuca and, when you were four years old, she re-partnered. She had another son with her partner, who was a violent alcoholic. As both witness and victim, you were extremely traumatised by family violence and you developed a stutter.
17When you were 15 years old, worried about your safety, your mother sent you to live with your father. He was a chronic cannabis user and often broke. He frequently left you at home unsupervised for long periods. When you started truanting from school, your mother sent you to boarding school for two years.
18At the end of Year 11, you left school and went to live with an aunt and uncle. They gave you your first stable home and you completed an apprenticeship. Your uncle's death in 2014 hit you hard. To compound your sadness, your aunt died in 2015. Your best friend committed suicide in 2018, and another uncle and your grandmother died in 2019. You turned to drug use to cope with your grief.
19In 2019, with a friend, you started an air conditioning and hydroponic heating installation business. The business got into debt and, in the context of substance abuse, mental health problems and debt, you committed these crimes.
20You have been in a relationship with your partner for 10 years. You have lived together for eight. She is a pilates instructor. Your first child, Zadie, was born on 16 December 2020.
21After you were arrested, you obtained a mental health care plan from your GP [Exhibit 5] to get counselling to help you deal with your mental health problems. You have had five sessions with Stan Alexiou since April 2020. His letter, dated 13 October 2020, is Exhibit 4.
22You have also seen a specialist drug counsellor, Karly Doyle. Her report, dated 13 May 2021, is Exhibit 3. You told her when you offended, you had significant business debts and were abusing alcohol, benzodiazepines and amphetamine. To her, you described your arrest as a “blessing” and a “massive wake up call”. You have engaged positively with treatment and have been drug abstinent, evidenced by regular voluntary clean urine screens from 7 July 2020 to 3 May 2021 [Exhibit 6].
23Your uncle wrote he has had some serious conversations with you since your offending. His letter is Exhibit 7. He feels you have left behind an immature and impressionable character, and with a restored work ethic, and now fatherhood, you have matured and progressed significantly.
24Your grandfather is a retired policeman. With his long experience in policing, he believes your offending is isolated, and with the strong family support around you, you will not reoffend. His letter is Exhibit 12.
25You were very good at sport. A couple of your friends are elite sportsman.
26One a former Olympic boxer is your personal trainer; he has known you for four years. Your offending is out of character for the person he knows, that is one who is fitness and well-being focussed and supports both participation and donation a number of charitable causes. He knows you as a caring father and partner and believes you have known from your wrongdoing. His letter is Exhibit 11.
27The other, an AFL footballer, has known you since you were young. He saw your difficult and chaotic upbringing. He also saw your struggle with the loss of family members and your best friend. As a result of the birth of your daughter, he has seen you work to be the best father and partner you can. He also believes you have learned from your wrongdoing and will not reoffend. His letter is Exhibit 10.
28Your business partner has known you for 11 years. In a letter, which is Exhibit 8, he confirmed the two of you set up your business in January 2019, and towards the end of that year it was under financial pressure. He wrote, last year, through your joint efforts, it regained momentum and is now expanding.
29A builder who contracts work to you described you as a reliable, honest and hard worker. He wrote your absence would be a huge loss to his business. His letter is Exhibit 11.
30You have expressed remorse to your family and friends. You also wrote a letter of apology to the court. This is Exhibit 13.
31Lisa Jackson, psychologist, assessed you on 11 May 2021. Her report is Exhibit 2. She diagnosed you with a generalised anxiety disorder related to your unstable childhood. In her opinion, “this disorder has dominated much of (your) adult life and, in the absence of clinical assistance, has impacted on (your) functioning and predisposed (you) to substance abuse problems as a means of self-medication. )
32You told her, at 15, your father introduced you to cannabis and, at 16, friends introduced you to methamphetamine. And after the death of your uncle, you resorted to methylamphetamine to manage your anxiety. You said you became addicted to it, and, from the age of 25, you were using the drug most days.
33According to Ms Jackson, based on your reports, you appear to meet the criteria for a severe stimulant disorder.
34Ms Jackson recommended treatment for your past abuse problems, your unresolved issues in regard to your family and management of your mental health.
35Using the LSI-R screen, you tested in the low risk category for recidivism.
36In her opinion, your anxiety disorder and separation from your infant daughter will make prison harder for you.
37I accept Ms Jackson's opinions, which were unchallenged.
38Dr Gumbleton, who appeared on your behalf, relied on the following factors in mitigation of penalty:
(a) firstly, your prior good character;
(b) secondly, your early guilty plea; and
(c) thirdly, your remorse.
39He also submitted your voluntary and sustained drug abstinence, your voluntary engagement with counsellors to address your mental health and drug issues, your motivation to care for your partner and child and to contribute to and grow your business and your psychologically assessed low risk of reoffending demonstrate you have excellent prospects of rehabilitation.
40He submitted the community interest is best served by a disposition that does not disrupt your reformation.
41Overall, he submitted I should impose sentence of a lengthy community correction order with punitive and rehabilitative conditions.
42Ms Baxter, who appeared for the Director of Public Prosecutions, submitted, considering you cultivated 23 cannabis plants, weighing 51.77 kilograms, across two premises, using apparatus which included two electrical bypasses, your offending is a serious example of the crime of cultivation of cannabis.
43The prosecution accepted the small quantities of heroin, amphetamines and cocaine were for your personal use.
44The prosecution also accepted;
(a) you made your guilty plea early;
(b) you are a person of prior good character; and
(c) you have excellent prospects of rehabilitation.
45The prosecution submitted, because your rehabilitation cannot outweigh the need for general deterrence and denunciation, a term of imprisonment with a community correction order would properly reflect the relevant sentencing features in your case.
46Your partner has been charged in the summary jurisdiction with cultivation and possession of the cannabis found at your home. The proceeding is listed for a contest mention on 17 August 2021.
47As the maximum penalty of 15 years' imprisonment demonstrates, cannabis cultivation is a serious offence.
48Your cannabis cultivation set up was sophisticated, involving two premises, and the number of plants you grew, 23, which is 0.23 times a commercial quantity, and which weighed 52 kilograms, which is two times the commercial quantity of cannabis plants, was substantial.
49Your possession of more than 2 kilograms of harvested cannabis and other cannabis which totalled nearly 3 kilograms for sale, and your possession of cash in the sum of $12,650, which is additional criminality on your part, show your motive was plainly financial.
50Considering the number of plants cultivated, I think it was likely a one- or two-person operation. You were the principal of the cultivation scheme, and while your offending is limited to a single day, yours is a serious example of the offence of cannabis cultivation.
51In addition to the nature and gravity of your offending and the degree of your responsibility for it, I have had regard to the other matters set out in sub-s5(2) of the Sentencing Act, including current sentencing practices. In that behalf, I have had regard to Court of Appeal guidance in a number of cannabis cultivation cases, including Quaresima v The Queen [2017] VSCA 306 and Van Pham v The Queen [2020] VSCA 114.
52There are a number of mitigating factors in your favour.
53You are a first offender; it is a significant matter in mitigation. As well, it is to your credit that you have actively contributed to a number of charities in the community. You are entitled to a sentencing discount for your early guilty plea while the courts continue to deal with adverse effects of the COVID-19 pandemic on the administration of justice. Your guilty plea has greater utilitarian benefit and attracts an additional sentencing discount - see Tyler Worboyes v The Queen [2021] VSCA 169 at [35] and [39].
54I accept the experience of growing up in an environment of domestic violence and substance abuse reduces your moral culpability in the general sense, identified in Bugmy v The Queen [2013] 249 CLR 571, to a moderate degree.
55I accept you are genuinely remorseful for your crimes and your arrest was a massive wake-up call. You have since taken impressive steps to reform, and I accept your prospects of rehabilitation are excellent.
56To enable me to consider the sentencing options, I have had you assessed for a community correction order and you have been found suitable. When you were assessed, you showed considerable remorse and insight into your offending and admitted abuse of methylamphetamine, cannabis, cocaine and prescription medication when you offended.
57You said with the assistance of therapeutic intervention, you stopped using illicit drugs and you expressed a willingness to continue to remain abstinent.
58In the assessing officer's opinion, because you were assessed as a low risk of reoffending, you do not require supervision during a community correction order.
59You also underwent a mental health assessment. You were anxious but did not show any acute mental health risk. Because you are voluntarily engaged with a psychologist, the assessing nurse's view is mental health treatment is not mandated on a community correction order.
60In Williams v The Queen [2018] VSCA 171, the Victorian Court of Appeal, per Beach and Hargrave JJA said at paragraph 47:
'As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender's rehabilitation.[23] And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.'
61Overall, despite the seriousness of your offending, I am satisfied a lengthy community corrections order, with punitive and rehabilitative conditions, can achieve all sentencing purposes in your case.
62As I consider, there should be some punitive component to your sentence. I will include a community work condition in your order.
63Because of Ms Jackson's diagnosis of a stimulant use disorder, I will also include a special condition you attend for drug treatment and rehabilitation.
64Because the offences for which you are to be sentenced are founded on the same facts and form a series of offences of a similar character, I will impose an aggregate sentence on you.
65By the sentence I impose, I must announce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation. Considering the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:
66On the charges of:
(a) cultivate a narcotic plant,
(b) traffic a drug of dependence,
(c) possess a drug of dependence,
(d) theft, and
(e) the summary charges of dealing with property suspected of proceeds of crime and failing to comply with a direction to provide a passcode,
you are convicted and sentenced to a community correction order which is to commence today.
67The duration of the order is three years. In addition to the core conditions, I impose the following special conditions:
(a) you are to perform 250 hours of unpaid community work and,
(b) you are to attend for drug treatment and rehabilitation.
68I direct up to 75 hours of drug treatment and rehabilitation programs can be credited towards your community work hours.
69With your consent, I make a disposal and forfeiture orders in the terms of the orders filed with the court.
70While there is some artificiality of the process, I declare, but for your guilty plea, I would have imposed a sentence of two years' and six months' imprisonment and fixed a non-parole period of one year and nine months' imprisonment.
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