Director of Public Prosecutions v Corbell

[2015] VCC 7

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01235

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAX CORBELL

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2014, 16 December 2014
DATE OF SENTENCE:	21 January 2015
CASE MAY BE CITED AS:	DPP v Corbell
MEDIUM NEUTRAL CITATION:	[2015] VCC 7

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr P. Guggenheimer	Patrick Dwyer Lawyers
For the Director of Public Prosecutions	Mr Y. Hardjadibrata	OPP

1You, Max Corbell, have pleaded guilty to cultivating narcotic plants in a commercial quantity and Charge 2, theft of electricity and Charge 3, cultivation of narcotic plants on 17 December 2013.  The circumstances giving rise to these matters are fully outlined in Exhibit 1, being the prosecution opening for plea hearing dated 29 August 2014. 

2In broad compass, in June 2013 police commenced an investigation into the cultivation of commercial quantities of cannabis plants at a number of properties in the western suburbs of Melbourne.  Two of the properties were 10A and 10B Mansfield Avenue Sunshine North.  Police surveillance revealed the units were unoccupied but you and your co-accused, Romano Falzon and his wife, Suzanne Falzon, or motor vehicles registered to them, frequently attended those premises.  When police executed a search warrant at each of those properties on 17 December 2013 they located an elaborate and sophisticated hydroponic cultivation system set up in each of the properties in which a commercial quantity of cannabis plants were growing.  You, Romano Falzon and Suzanne Falzon, were part of a joint criminal enterprise to cultivate a commercial quantity of cannabis at 10A and 10B Mansfield Avenue, Sunshine North between 24 July 2013 and 17 December 2013.  You were the sole registered proprietor of Unit 10A on 17 August 2011 and your wife, Marylou Mascalino Corbell was also the sole registered proprietor of Unit 10B on that date. 

3On 24 July 2013 the police received information from Powercor that the two properties were consuming excessive electricity which was not reflected on the electrical meters for the properties.  From 24 July 2013 the police conducted extensive surveillance of those properties and various matters were noticed and these are set out in paragraph 3 of Exhibit 1.

4You were observed at the premises on at least two occasions and vehicles registered in your name were also observed at the properties.  From 17 December 2013 police executed a search warrant at each of the properties and at Unit 10A police located and seized cannabis plants of varying maturity in four rooms weighing a total of 17.7 kilograms approximately, an electrical bypass in the roof space and the various other matters typically found at hydroponic plantations such as this.  Further documents in your name and a wall chart timetable and five copies of a program in relation to the cultivation of cannabis were also located.  At Unit 10B police located and seized a total of 55 cannabis plants of various maturity with a total weight of 17.039 kilograms, an electrical bypass and again the usual other matters such as globes, shrouds, transformers, times and so on associated with hydroponic plantations and also a silver tray with two bags containing small amounts of cannabis.  The total number of plants located in the units was 92 and they weighed a total of 34.8077 kilograms. 

5Powercor calculated the unmetered electrical usage for the 146 days between 24 July 2013 and 17 December 2013 as specified in paragraph 8 of the opening and those matters give rise to Charge 2, theft of electricity. 

6At the same time that that search warrant was executed, the police executed another search warrant at your residential address at 29 Cedar Drive, Maribyrnong.  The sole registered proprietor of that property since 12 December 2012 was your wife, Marylou Corbell.  You were present and answered the door.  Amongst other things police located four cannabis plants growing in the garage.  They were weighed and that was a total of 18.7 grams excluding the roots.  They were immature plants and that matter gives rise to Charge 3, cultivating a narcotic plant.  

7You were arrested and taken to a police station and mostly gave no comment answers to questions asked of you but you did make a number of comments which are set out in paragraph 13.  Those matters mostly relate to the premises and the financing of them.  You entered a plea of guilty at the committal hearing on 10 July and the committal proceeded by way of straight hand‑up‑brief.  You have no prior convictions and you have spent 38 days in custody by way of pre-sentence detention.  A forensic sample order was sought and not opposed by counsel on your behalf.  There are no victim impact statements in this matter. 

8As was pointed out by your counsel there are a number of mitigating factors.  You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  The community has by your plea been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial.  I can tell you the sentence I intend to impose is far less than would have imposed had you been found guilty after a trial.  Further, I take into account in your favour that you intimated your pleas of guilty in the circumstances I have just described and whilst you made no ready admissions to your part in the crime you have subsequently made a statement inculpating both yourself and your co-offenders.  I received submissions from the prosecution as to the utility of that statement which I accept.  I accept in your case that your pleas indicate true remorse for your actions. 

9I have been told a significant amount about your personal history and your circumstances.  I have before me the report of Mr Cummins dated 25 August 2014, Exhibit A, and also a character reference from a Mr James Collins who is a resident of Cebu City in the Philippines.  Mr Guggenheimer, who appeared on your behalf, made a submission as to your personal circumstances and these matters are also helpfully set out in a very detailed way in Mr Cummins' report.  I think it appropriate to refer to them as Mr Guggenheimer did.  You are 70 years of age, having been born in Nhill on 7 February 1944.  You reside with your wife, Marylou, and your four year old son, Gabriel, who was born in the Philippines.

10With your first wife, Sonia, whom you married at age 21, you have two children, Carol, now aged 48, and your son, Michael, aged 41, who lives in Cairns.  You no longer maintain a relationship with either of your adult children and you have no contact with your former wife.  You explained your first marriage broke down in 1989 after you were made redundant from Telstra in 1988.  You then developed a drinking problem and became depressed.  In due course you formed a relationship with Marylou who lived in the Philippines and you were married to her in Cairns in 1994.  You say at that time you were still an alcoholic and as a consequence in receipt of a Disability Support Pension. 

11Your wife, Marylou, is a student teacher in the Philippines and because her qualification was not accepted in Australia you and she moved from Cairns to Melbourne so she could find employment.  She began work in McDonalds and was promoted, obtained degrees in business management and the like and achieved success in McDonalds business.  After giving birth to your son she returned to work as a field consultant with the Victorian Employer's Chamber of Commerce.  Then in 2012 she decided to become self-employed and established a business known as Michael's Patisserie.  She now employs up to 12 part-time and full-time staff.  She works seven days a week and is clearly very motivated.  She is 42 years of age and was present on the occasion of your plea.

12Your father held a variety of forms of employment, retired at 65 and died of bronchial pneumonia in 1980.  Your mother died of age-related symptoms at age 84 in 2007.  You have a 78 year old brother who was in the RAAF but you have no contact with him.  Your other brother committed suicide at age 30 in 1984 and your sister has permanent brain damage and lives in a State care facility.

13You were educated at Nhill Primary School and the Geelong Road State School before you attended Footscray Technical School until Year 10.  You then began a telephone technician's apprenticeship with PMG and remained with PMG Telecom and Telstra and were eventually made redundant as a senior technical officer in 1988 and, as noted, separated from your first wife in 1989.  You were then in receipt of a disability support pension for approximately five years until 1997 when, with the assistance of your current wife, you were weaned off alcohol and commenced occasional work at the Allied Flour Mills in Kensington.  After a short time you were made permanent and then went off the Disability Support Pension.  You were then permanently employed at the Allied Mills for 15 years and worked two years past the usual retirement age to age 67.

14You explained to Mr Cummins you again became depressed with feelings of inadequacy because you were not working and you did not want to jeopardise your Centrelink payment of $400 a week by earning in excess of $75 a week.  Your wife was focused on her business at the patisserie and it was in those circumstances in 2013 when you say that you were introduced to Romano Falzon, who suggested that you engaged in renting properties owned by others and cultivating cannabis at them.  In March or April 2013 the tenants had moved out of 10B Mansfield Avenue and Falzon indicated he wanted to rent the place and that you and he should grow cannabis.  You told Mr Cummins that Falzon helped you buy the hydroponic equipment for 10A and you were looking after the crop at 10A but you were not looking after the crop at 10B because in your mind Falzon was paying the rent for 10B but you knew what he was doing and you had keys. 

15You now spend your time assisting your wife with the bookwork for her business.  Your health is problematic.  Approximately 10 years ago you had a series of four heart attacks; you underwent a four-way bypass surgery and then rehabilitation at Western General Hospital.  You were off work for a total of 16 weeks.  More recently in September 2013 you suffered a stroke.  These matters are set out in paragraph 19 of Mr Cummins' report.  You also suffer from asthma and take medication for other age-related problems such as high blood pressure and elevated cholesterol. 

16In Mr Cummins' opinion you are suffering from a chronic adjustment disorder with mixed anxiety and depressed mood at the time of offending and this adjustment disorder developed in response to your retirement, to your feeling depressed and financially worthless.  In his opinion, as a result of suffering adjustment disorder your perception, judgement and problem-solving ability were compromised and in this context you made a gross error of judgement in terms of becoming involved in this offending.  In his opinion you are still suffering from an adjustment disorder which would now be described as a reactive adjustment disorder which is reactive to your current legal predicament.  It is also his view it would be more difficult for you to serve a term of jail than someone who does not have your background history.  In his opinion the prospect of you re-offending is minimal and you expressed your remorse to him.  I accept his opinions and apply the relevant sentencing principles as set out in case of Verdins as a consequence and therefore sensibly moderate the applicability of the principles of general and specific deterrence in your case.   

17In addition to those matters I have the character reference from Mr James L. Collins, the resident of Cebu City in the Philippines.  He has known you for 54 years and also knows your family.  In his view you are a good, honest, hard-working man and he has never known you to be otherwise.  He is able to corroborate the other matters with respect to your family history that Mr Cummins has reported upon.  There are no subsequent matters and I am satisfied your chances of rehabilitation are reasonably good.  With respect to your role I sentence you on the basis outlined in the prosecution opening which is before me and to which no exception was taken by counsel on your behalf. 

18As well as those matters personal to you, of course I must take into account matters of deterrence and especially general deterrence, sensibly moderated in the way I have described and for the reasons I have described.  The principle is always of some importance in cases such as these involving a sophisticated hydroponic plantation producing a significant amount of cannabis.  Specific deterrence is of modest applicability in the circumstances given your age and circumstances. 

19I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending which I find to be modest in view of the materials to which I have referred.  I have already sentenced Mr Spalding with respect to his role in this matter and his circumstances in my view are entirely different to yours and therefore parity of sentencing has little, if any, relevance.

20Application has been made for an intimate forensic sample to be taken from you and you have not objected to this.  I am satisfied that it is in the interests of justice, having regard to the seriousness of your offending that I order an intimate forensic sample namely saliva be taken from you.  That sample may be taken by a doctor or nurse or other authorised person.  It is taken by wiping a swab inside your mouth and although you have consented, if you change your mind I must inform you the police may use reasonable force to enable that procedure to take place. 

21Mr Hardjadibrata, do you have that order?

22MR HARDJADIBRATA:  Yes I do, Your Honour, if I could hand that order up.

23HIS HONOUR:  Thank you.

24MR HARDJADIBRATA:  There are two versions of course, the non-custodial one and the custodial.

25HIS HONOUR:  The custodial one, thank you.

26MR HARDJADIBRATA:  Yes.

27HIS HONOUR:  Yes, if you would stand please, Mr Corbell.  These are without doubt serious offences, at least the first two are, and in all the circumstances I have with respect to them no alternative to the imposition of custodial sentences.  You are convicted and sentenced as follows:

28On Count 1, 12 months' imprisonment.

29On Count 2, 4 months' imprisonment.

30On Count 3, a fine of $200. I order that two months of Count 2 be served cumulatively on Count 1 and that makes a total effective sentence of 14 months. I order that you serve a minimum term of 8 months before becoming eligible for parole. As prescribed by s.18(4) of the Sentencing Act I declare that the time you have spent in custody in respect of this matter is 38 days.  But for your plea of guilty I would have ordered a total effective sentence of three years with a non-parole period of two years.  Yes thank you, Mr Corbell you can be seated.  Anything further, gentlemen?

31COUNSEL:  No, Your Honour.

32HIS HONOUR:  Thank you. 

33MR HARDJADIBRATA:  Thank you, Your Honour.

34HIS HONOUR:  Yes, thank you, officer, I think that completes that matter.

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