Director of Public Prosecutions v Cassells

[2021] VCC 959

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT SHEPPARTON

CRIMINAL JURISDICTION

CR 20-01251

DIRECTOR OF PUBLIC PROSECUTIONS

v

WAYNE CASSELLS

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	15 July 2021
CASE MAY BE CITED AS:	DPP v Cassells
MEDIUM NEUTRAL CITATION:	[2021] VCC 959

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo	Office of Public Prosecutions
For the Accused	Mr M. Reardon	Victoria Legal Aid

HIS HONOUR:

1Wayne Cassells, you have pleaded guilty to one charge of cultivation of cannabis.  That crime carries a maximum penalty of 15 years' imprisonment. 

2You are now 69 years of age.  You pleaded guilty to a settled indictment and must get the benefit of that.  I accept that you have indicated appropriate remorse since these matters were brought to light, and you must get the utilitarian benefit of that plea of guilty.

3With particular reference to the case of Worboyes in terms of these matters being resolved in times of COVID, and you have no prior conviction which is important. 

4The summary which I am about to give will be a very brief one.  The Crown opening is on file as Exhibit A and is available to anybody with a genuine interest.  The offending has to be regarded as serious.  It does involve cultivation, and in the normal course of events, the application of general and specific deterrence, denunciation and appropriate punishment. 

5A summary of the offending is on 15 May 2019 at approximately eight o'clock in the morning, police executed a search warrant at an address in Northumberland Drive, Epping. 

6When they entered the premises, there was nobody else present, but what was in place was a very significant cultivation.  There were a number of lamps, there were five rooms being used, there was a bypass on the electricity and this was extensive operation.

7When police did seize all the plants and all the equipment, it ended up that there were 213 plants and there was a total weight of 43.67 kilograms and I do not need to go into all the details of what that would have weighed out to and the like.  It is obvious that it was being cultivated by somebody for the purposes of trafficking. 

8You arrived at the house at about 10 o'clock and for some reason, best known to yourself, decided to walk in.  The police then arrested you and you said that you did not really know what was going on in the house and all sorts of half-truths and fibs, but the fact of the matter is that you were living at the back of the house.  I accept in this situation that you did have a rough idea of what was going on. 

9You clearly knew that there was a crop of some description being grown.  You had been placed in the house by your son who owned the house. 

10There is some material in the background which would suggest that a Mr Nguyen was in fact the main cultivator.  He had signed the lease with your son.  Mr Nguyen said he has never been there.  Your son seems to not know anything about Mr Nguyen.  Your son claims he has never been in the house. 

11It is all pretty clear to me in this situation, a 69 year old man who had nowhere else to live and basically, nothing else to gain, you were treated as something of a fall-guy in all this. 

12As I understand on your instructions, you were paying rent in any event, and there is really no evidence other than some mixed DNA on a glove to indicate that you actually did anything. 

13Accordingly, I cannot sentence you for what I might be suspicious of, but the fact of the matter is that you are to be sentenced at the lower end of involvement.  You probably did very little about all this, other than keep the house occupied I suspect.  Certainly the nature of it all in terms of moral culpability is below the middle range. 

14The crime itself is significant.  I do not sentence you on a commercial quantity obviously because you would not have been aware but it does remain significant.  It is a situation where on a sentencing indication, I indicated that I would not imprison you and I do not intend to. 

15You are now in receipt of a pension.  You have limited income.  You, as I understand it, upon your retirement some years ago, loaned the money to your son to buy this house which has now been sold and you have received none of that back. 

16You are in a fairly parlous situation, but I think that it is a circumstances where the seriousness of it demands that there be a community corrections order - at least I am going to give one, with an associated fine. 

17In brief, your history is that you, as indicated a couple of times, are now 69 years of age.  You are a retired welder.  You live with your daughter who supports you with daily assistance in relation to keeping appointments and seeking medical care. 

18You are trying to find a place in permanent supported accommodation and at the moment you are simply sleeping on the couch at your daughter's place.  I am aware from the medical material that you do suffer from ill health.  You have nothing that is of massive significance.  I think it is just the years of physical activity seem to be catching up with you.  You do have a grandson who lives there as well and that is where you can go upon finalisation of this matter.

19You were born and raised in Ballarat.  Your mother was a nurse and your father was a delivery driver.  He passed away 25 years ago and your mother, 20 years ago.

20After your mother's death, you have had limited contact with your siblings.  You have been married once and have four children and you were married for about three years.  You are, for all intents and purposes, the father of a step-child and that is the one I just mentioned before. 

21You went to TAFE in Ballarat, left school at 15 and have basically had a solid work history ever since.  You were employed at M.B. John for eight years in Ballarat.  You then moved to Tynan's in Keon Park where you indeed worked for 37 years.  After your retirement, you have been in rental arrangements, caravan parks and basically just doing the best you can. 

22The circumstances regarding your son are contained within those submissions.  I do not think I really have to go into all that.  You have got no issues with alcohol, you have got no issues with drugs and in fact, never even used them. 

23In terms of your physical health, you do have a background of emphysema and have been admitted to hospital with pneumonia a couple of times in recent times.  That is really the fact of the matter. 

24As I said I think that you are pretty much a 'patsy' or a fall-guy in all this, and had very little to do with it, but at the end of the day, you do have to be sentenced for it and the sentence must reflect the seriousness of the cultivation itself, even though your participation in it is at the bottom range. 

25Your prospects of rehabilitation should be good.  I think the risk of you reoffending in this way would be absolute zero in my opinion. 

26In any event, taking all those matters into account, and bearing in mind you have got no priors, I agree with the Crown's submission there should be a community corrections order so there will be with conviction, if you agree, a community corrections order.  It will go for three years.  It will be 100 work hours as the only condition, other than the compulsory ones and you will also be fined $2000. 

27What will happen is that if it is not paid, Fines collections may at some point in the future contact you in regard to even paying by instalments or you can, when you report to the community Corrections people, you can organise to perhaps work that off by work hours.

28I understand from your counsel, that you are able to perform light duties, and I make it really clear to you, do not, if things get hard, do not just put your head in the sand. 

29Talk to your counsellor and the matter can always be brought back before me to revise or to look at again if you are having difficulties with those work hours.  The fine is with conviction. 

30All right, no other orders I need to make gentlemen? 

31MR TEO:  No, Your Honour.

32MR REARDON:  No, Your Honour.

33HIS HONOUR:  All right.  Do you agree to that CCO Mr Cassells?

34OFFENDER:  Yes.  Yes, Your Honour. 

35HIS HONOUR:  I will mark it as accepted orally.  If you get brought back for this sort of offending, I am sure it will not happen Mr Cassells, is that you realise you will be in very serious bother.  All right?

36OFFENDER:  Okay, yes.

37HIS HONOUR:  You are not too old to go in, my friend.  It is just that this is an unusual situation, okay, so do not mess it up. 

38All right.  Yes, it is over three years isn't it?  I think I have got to give a 6AAA.  Three hundred hours and no fine.  How is that?

39Yes, okay, thanks gents.  There is nothing else Mr Teo, no orders you need or anything?  No, all right. 

40Can I thank counsel for the way in which it has been conducted too.  It has been extremely sensible and in these times, it is a pleasure to be able to get these things worked out without resorting to juries. 

41MR REARDON:  Thanks Your Honour.

- - -