Director of Public Prosecutions v Clissold

[2016] VCC 737

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-15-02245

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL JOHN CLISSOLD

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	26 May 2016
DATE OF SENTENCE:	27 May 2016
CASE MAY BE CITED AS:	DPP v Clissold
MEDIUM NEUTRAL CITATION:	[2016] VCC 737

REASONS FOR SENTENCE
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Subject:Theft – Cultivating a narcotic plant in a quantity not less than a commercial quantity – Possession of a drug of dependence (Amphetamine)

Sentence:Total Effective Sentence – 3 years and 6 months’ imprisonment – Non Parole Period – 2 years and 3 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A.J. Moore	O.P.P
The Offender was not represented	Mr T. Guthridge (Plea)	Emma Turnbull Lawyers

HIS HONOUR: 

1Michael John Clissold, you have pleaded guilty to one count of theft and one count of cultivating a narcotic plant in a quantity not less than a commercial quantity, and one count of being in possession of a drug of dependence, namely amphetamine.  The maximum penalty for theft is ten years' imprisonment; for cultivation of a narcotic plant in a commercial quantity, 25 years' imprisonment; and for possession of a drug of dependence, 30 penalty units or one year imprisonment or both.

2The circumstances of the offending were set out in the Crown opening,
Exhibit A, which was read in open Court yesterday and which I incorporate by reference.  In brief summary, the police executed a search warrant at an address that you were living at, 1 Island View Road, The Gurdies, and when they arrived there they found a sophisticated hydroponic cannabis set up in the second bedroom, in the lounge room, in the kitchen and in a bungalow with the usual transformers, grow lights, charcoal filters and a power bypass.

3You were interviewed and basically admitted to being involved in this cultivation operation.  The power authorities indicated that the bypass had been in place for over 17 months and that is the period that you have pleaded guilty to the theft, and cultivating of a commercial quantity. 

4The total weight of the plants was 57.224 kilograms.  There were 46 small plants in one room, weighing 124.2 grams and 24 mature plants under the house, weighing 57.1 kilograms and then some dried cannabis found in a baking tray in the kitchen, 54.7 grams.  There was also a couple of electronic scales found and a number of other items associated with the cultivation of a crop.  The minimum quantity for a commercial quantity of cannabis is 25 kilograms, so it was well over two times a commercial quantity.

Seriousness of the offence

5The basis upon which you are to be sentenced: by your plea you have admitted that you cultivated a commercial quantity of cannabis over the period of over
17 months of the charge, as well as having stolen electricity to the value of $47,453.

6In the course of your plea you gave evidence that you were a minor player in the cannabis cultivation and you were cultivating or minding the crop for an unnamed principal.  Your motivation for undertaking this action was, you said, because you owed this person $50,000 for a drug debt and he threatened to kill you unless you looked after the house for him and the crop to pay the drug debt back.  You said you had met this person in the city a few times and you owed him $50,000 and you believe you currently owed him $15,000 or $20,000.

7Your counsel's submission and your evidence was that you were a sitter or a patsy or a minder for this unnamed person who was the principal of the drug cultivation enterprise.  It was your case that you had undertaken that role because you were threatened over the $50,000 debt for purchases of cannabis. 

8I am unable to accept this explanation.  Having considered your evidence as to the alleged debt and your demeanour under cross-examination, and the record of interview, which I viewed, I regard your explanation that you were involved in this cultivation under duress arising out of an alleged debt of $50,000 to an unnamed person, as being, to use a colloquialism a "cock and bull" story.

9In your record of interview you made no mention of a principal.  In that interview you were somewhat evasive but you did admit that you were involved in undertaking the power bypass and in the tending of the crop including from the seeds.  You also admitted that there had been an earlier somewhat unsuccessful crop.

10In your evidence under cross-examination you retreated from your explanation in the record of interview as to the power bypass, but under cross-examination did admit that you were involved in obtaining the seeds, growing seedlings, cloning the plants, undertaking alterations to the bungalow area, procuring and assembling the equipment of the hydroponic operation from a second hand shop in Dandenong and then operating the hydroponic equipment by watering the plants.  I am satisfied that you did all this by your own admission.

11Having regard to the equivocal manner in which you gave evidence regarding the alleged threat and the alleged principal, I am unable to affirmatively find that there was a principal involved in this enterprise and that you were his patsy.

12In closing address, the learned Crown Prosecutor submitted that if you were not the sole promoter of this particular cultivation enterprise or operation, you were a leading protagonist.  I agree.  The duration of the offending and the scale raises the possibility that others were involved, but on your own admission you were intensively involved.  That involvement included, as I indicated, placing the bypass, modification of the premises, purchasing the equipment, assembly of the equipment and actually managing the operation in terms of watering the plants and the propagation of the plants and your admission that there was more than one crop involved.

13In assessing the seriousness of the offending here, I must also take into account the quantum of the drugs involved as being more than twice a commercial quantity and in all different phases of growth to ultimately dried product.  Overall this was a serious example of a serious offence which carries 25 years' maximum imprisonment.

14I turn now to your prior convictions.  You are now aged 43.  You admitted a number of prior convictions for violence.  Those convictions end when you were in your 20s and I do not regard them as of any significance.  You have also admitted more recently to driving whilst suspended and contravention of a family violence order.  I do not regard the prior convictions as having relevance to sentencing.

Matters in mitigation

15In a comprehensive, although at times repetitive plea, your counsel,
Mr Guthridge, put a number of matters that I do take into account in your favour. 

16First, you gave evidence as to your difficult family upbringing, with domestic violence being perpetrated on you and your sister by your father.  This was supported by the evidence of your sister who is in Court and was in Court yesterday to support you. 

17You left school at 16 and worked in a factory in Seymour and then at age about 24 you commenced working with a concrete company based in Oakleigh.  The principal of that business, Mr De Stanti, gave evidence in support of you.  He indicated that you had a good work ethic, are reliable, and although he is short of work at the moment he is prepared to employ you.  He was surprised when he heard about your offending.

18As your counsel submitted, you have contributed to the community by paying taxes and being fully employed in your adult life.  You were also married at one stage and have a 12 year old daughter, who you do not have custody of but see her every three weeks or so.  You own a mortgaged house which is rented out.  You are currently living with your sister.

19I give you credit for your plea of guilty.  You did undertake a contested committal and the thrust of the committal, according to the transcript, was that you were a mere crop sitter.  The matter was listed for a trial in this circuit but after negotiations the matter was resolved.  You have facilitated the course of justice by your plea.  The plea itself is some evidence of remorse but there was little other evidence of remorse.

20In the course of your plea, your counsel submitted that you were prepared to consent to repay the electricity bypassed.  I noted that consent and take it into account.

Should you be sentenced to a community corrections order? 

21A central thrust of the plea was that the offending here could be dealt with by way of community corrections order.  In particular your counsel relied on the guideline judgment of Boulton.  It was submitted that principles of parsimony, punishment, deterrence and rehabilitation could be addressed by an appropriately framed community corrections order with conditions such as a curfew and a significant amount of community work.

22I have considered the case of Boulton and subsequent cases of the Court of Appeal which have addressed this issue, including McGrath [2015] VSCA 176 and Antankovic [2015] VSCA 136 at 159. In that case I incorporate paragraphs 158-160 of that judgment into my reasons. At [159] the Court of Appeal says:

"Our conclusion at 158 above would have been the same even if Boulton had been applicable in the present case.  There is nothing in that case which alters longstanding principles for assessing the seriousness of individual offences and the weight to be given to particular sentencing considerations in relation to them.  Drug offences are intrinsically serious and even though specific deterrence may not be prominent for some offenders general deterrence will ordinarily be a primary consideration.  Offending of the nature and scale undertaken by the appellant in the present case has traditionally been dealt with by a lengthy period of imprisonment and there is nothing in Boulton that requires a different sentencing disposition in the present case."

23Similar sentiments were set out in the case of McGrath at [54] in particular that a sentence of imprisonment in these types of cases is the usual sentence except in effectively exceptional circumstances.  I do not accept that Boulton alters that regime or that a non-custodial disposition is appropriate.

24In sentencing you, the first matter to be considered is the seriousness of the offending.  In this case it was a serious example of the offence of cultivating a commercial quantity of cannabis. 

25First, by your own admission, this occurred over a 17 month period.  There is a high degree of culpability in that for that period you are admitting you had been involved in cultivating a commercial quantity of cannabis.

26Next, on your own admission, you were involved in the full range of cultivation from procuring seeds through to harvesting the relevant heads.  In the record of interview you showed considerable knowledge of the cultivation process and the operation of the hydroponic system.  This is consistent with my earlier finding that you were not a crop sitter.

27Next, the quantum of the cannabis involved here is more than double a commercial quantity at 55 kilograms.  The cannabis was in all stages from seedlings to mature plants to dried leaves.

28Your counsel emphasised that although you have some prior convictions for traffic offences, you are effectively of good character and have paid your taxes, purchased a home and have a daughter.  Those matters are to be taken into account and I do take them into account.  You have a job available so clearly a sentence of imprisonment on that view would be unproductive from the community's point of view.

29I have considered all those matters put by your counsel but regard the seriousness of the offending here as making a community corrections order as out of range.

Purposes of sentencing

30The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

31As I indicated in the course of the plea with your counsel, the Court of Appeal has said on a number of occasions, including in McGrath that general deterrence is a very salient sentencing consideration.  In this case I have rejected your counsel's submission that you be treated as a mere crop sitter or patsy.  You must be dealt with at least as being a leading protagonist in this operation.

32On this basis, given the seriousness of your role, the duration of the offending, the amount of cannabis involved, considerations of general deterrence play a very important role.  Those persons in the community minded to turn their mind and their hands to an illegal economic activity must realise that when apprehended they will face significant sentences designed to deter them and to deter others.  The sentence of the Court must denounce your conduct.

33Over a considerable period you were involved in an elaborate cultivation operation through all stages of the growth process.  Part of that involved modification to this rental property and an elaborate power bypass.  Your conduct must be strongly denounced and I do so.

34Given your lack of prior convictions, I do not regard specific deterrence as having major salience in this case.

35Rehabilitation is an important consideration.  Given your prior good employment record, the fact that you have the support of your sister and have a house and child, I regard your prospects of rehabilitation as good.

36Your counsel has indicated you have undertaken some drug counselling and I commend you for that and take it into account. 

37I have taken into account all the matters put on your behalf and I have applied considerations of parsimony and totality.  I regard it as appropriate to order some measure of cumulation between the two counts on the presentment given the separate criminality involved.  In sentencing you, I have taken into account current sentencing practices as well as the seriousness of your offences and your personal circumstances.

38Little was made of the charge of being in possession of a drug of dependence, namely amphetamine.  You admitted to the police that it was yours and you submitted that you were smoking it and you had got it around Grand Final time.  I propose to impose a monetary penalty.

39The prosecution have also sought disposal orders for the equipment and an order that you repay the money for the electricity.  It is appropriate that I make those orders and I will.

40The prosecution have also sought a forensic sample order.  That means a mouth swab.  Given the seriousness of the offending, I regard it as appropriate to make such an order and I do so.  I have got to advise you that the authorities are entitled to use reasonable force to obtain that sample.

41On the count of theft, you are sentenced to 12 months' imprisonment.

42On the count of cultivating a commercial quantity of a narcotic plant, you are sentenced to three years' imprisonment.  That is the base sentence.

43I direct that six months of the sentence on Charge 1 be served cumulatively on Charge 2, making a total effective sentence of three and a half years' imprisonment.

44I direct that you serve two years and three months' imprisonment before being eligible for parole.

45On the count of being in possession of a drug of dependence, namely amphetamine, you are fined $250.  I give you one month to pay that fine.

46I declare one day's pre-sentence detention.

47I declare had you not pleaded guilty, I would have imposed a total effective sentence of five years with a minimum term of three years' imprisonment.

48I have assessed an appropriate non-parole period which, as I said, is two years and three months and I have assessed that having regard to the minimum period that sentencing considerations requires you to be imprisoned before being eligible to serve the balance of your sentence in the community.

49Any other matters, Mr Prosecutor?

50MR MOORE:  No, Your Honour.

51HIS HONOUR:  I want to thank Mr Guthridge, he is not here, for his assistance in this plea.  I will hand down the relevant disposal orders and the forensic sample order and the restitution order.

52I want to take this opportunity to thank you, Mr Moore, and your instructing solicitor for your assistance in the course of the circuit, also the local practitioners and adjourn all other matters unreached to the next circuit.  Anything else?

53MR MOORE:  No.  Only to say it has been our pleasure to appear before Your Honour.  On behalf of my instructor, I thank Your Honour's staff for their invaluable assistance.

54HIS HONOUR:  Yes, thank you, Mr Moore.  All right, we will adjourn sine die.

55(Disposal order signed and acknowledged.)

56(Section 464ZF order signed and acknowledged.)

57(Restitution order signed and acknowledged.)

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