Director of Public Prosecutions v Crawford

[2023] VCC 1932

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-01188

CR-22-01557

DIRECTOR OF PUBLIC PROSECUTIONS

v

RYAN CRAWFORD

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2023
DATE OF SENTENCE:	24 October 2023
CASE MAY BE CITED AS:	DPP v Crawford
MEDIUM NEUTRAL CITATION:	[2023] VCC 1932

REASONS FOR SENTENCE

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Subject: Criminal Law – Sentence

Catchwords: trafficking drug of dependence – theft – cultivation of a narcotic plant – trafficking simpliciter – verdict – plea of guilty - remorse

Legislation Cited:

Cases Cited: R v Newman and Turnbull (1997) 1 VR 146; Kennedy v The Queen [2019] VSCA 127; R v Doran [2005] VSCA 271; Chang v The Queen [2018] VSCA 15; DPP v Corie Heffernan [2023] VCC 538

Sentence: Community Correction Order for a period of 20 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Dickie	Office of Public Prosecutions
For the Offender	Mr D. Sheales  trial & plea Ms T. Milides  sentence	Milides Lawyers

HER HONOUR:

1Ryan Crawford, on 22 September 2023 you were arraigned in front of a jury of 12 on Indictment M11088027A.1. You pleaded not guilty to one charge of trafficking in a drug of dependence in a large commercial quantity, not guilty to one charge of trafficking in a drug of dependence, commercial quantity, and guilty to one charge of trafficking in a drug of dependence.

2On 28 September 2023 following a five day jury trial, you were found not guilty of the more serious alternative charges of trafficking in a large commercial quantity of a drug of dependence and trafficking in a commercial quantity of a drug of dependence. You were found guilty of one charge of trafficking in a drug of dependence namely cocaine.  The maximum penalty for this offence is 15 years' imprisonment.

3On a separate indictment, M1188027B, you pleaded guilty to one charge of cultivation of a narcotic plant and one charge of theft.  The maximum sentence for cultivation of a narcotic plant is one year imprisonment and/or a find of 20 penalty units, if I am satisfied on the balance of probabilities that there was no intention to traffick and 15 years in any other case.  The maximum penalty for theft is 10 years' imprisonment.

Circumstances of offending in relation to the trafficking.

4Evidence in relation to the trafficking matter was led at trial from Detective Senior Constable Wardle and additional evidence was given by you and also your wife Cassandra Crawford.

5Shortly after 4 pm on 26 May 2021, Ross Finnigan, whom you had known since your teenage years, visited at your home in Kurunjang.  CCTV footage that you provided to police and that was tendered at your trial shows Mr Finnigan arriving and retrieving a coffee machine box from his car before accompanying you through your home to the rear of your property. 

6You and Mr Finnigan entered the shed before leaving together about five minutes later, with Mr Finnigan still carrying the coffee machine box. Mr Finnigan is seen to put the box back in his car and drive away from the property. 

7Unbeknown to you Mr Finnigan had been under surveillance by police and approximately 15 minutes after he left police attended and executed a search warrant on your property.

8Upon police entering your home you advised them that someone had just come to drop off cocaine at your property and you identified this person as your friend Ross.  You told them the cocaine was in an Esky in the garage.  You were asked how much cocaine was in the Esky to which you replied 'I have no idea.'  You provided police with the key to the shed so that they were able to search it. 

9You were then arrested and taken to the police station for an interview.

10Upon searching the shed police located a blue Esky which contained six blocks wrapped in green plastic.  On the plastic cover of each block there was a picture of a person with two differently coloured eyes and the number four.  Upon analysis the blocks were found to contain a substance containing cocaine with a total weight of 5.9672 kilograms.  The quantity of cocaine in the mixture was approximately 80 to 81 per cent pure. This is Charge 3 on the indictment, M1188027A.1, trafficking in a drug of dependence.

11During your record of interview, you made a number of admissions to police.  You explained that Mr Finnigan had contacted you about a week prior to your arrest and asked you to do him a favour by storing some cocaine at your property, and you had reluctantly agreed. 

12You said that you were in the shed with Mr Finnigan when Mr Finnigan was removing the packages from the coffee box and transferring them to the Esky but you only saw part of one brick going into the box.  You said you first learned that there was six kilograms stored in there when you were told by police.  You were expecting Mr Finnigan to return sometime later to collect the packages.

13During the trial you gave evidence that Mr Finnigan had been a childhood friend and was in fact a groomsman at your wedding.  In more recent times it was your evidence that you saw Mr Finnigan three to four times a year and that you would turn to each other for help with personal matters when needed.  You said Mr Finnigan sent you a text asking to catch up and that he had something he needed to talk to you about.  Mr Finnigan eventually asked you to store some cocaine at your property which you agreed to.  You said you had no idea that the cocaine had a value of about $2m and you would not have agreed to store it had you known this.

14You gave evidence that once you and Mr Finnigan had entered your shed you had brought the Esky down off the shelf and then moved away to re-fit an air filter you had cleaned on your motorbike.  At one point you glanced back at Mr Finnigan and noticed part of the green plastic covering of one of the packages in his hand but nothing further. The Prosecution cross-examined you about the arrangements of the cocaine storage and you said you did not know how much was to be stored and you never turned your mind to the amount, all you knew was that a bit of cocaine was to be stored at your property and Mr Finnigan would collect it at some point.

Circumstances of offending:  cultivate cannabis and theft:

15These charges did not form part of your trial and the agreed factual basis was set out in the prosecution opening for plea for Indictment M11088027B dated 4 October 2023.

16During the search warrant executed at your home on 26 May 2021 police also uncovered a hydroponic setup, electrical by-pass, and a number of cannabis plants in a padlocked section of your shed.  Located within two rooms were lamps, a water system, eight mature cannabis plants and a tray of small seedlings in a small zip-up greenhouse.  The electrical by-pass was concealed behind the shed's plaster wall.  You told police at this time that you had orchestrated the system and the plants were yours for personal use.  This is Charge 1 on Indictment M1188027B, cultivation of a narcotic plant.

17The plants were removed, seized and examined.  There were eight mature plants which were estimated to be nine to 11 weeks old and they weighed 4.56 kilograms.  There were also 10 immature plants which were no more than four weeks old and they weighed about 25.1 grams.

18When asked about your cannabis set-up in the record of interview you told police you had set up the hydroponic and electrical systems and you were aware of how many plants and seedlings were there.  You explained that the plants were for personal use and to give to friends and you never sold any.  You set up aspects of the electrical by-pass yourself and incorporated your pool pump but paid someone else about $1,000 to $1,500 to jump the power.  You also admitted to having grown previous cannabis for around 18 months.

19The total value of the electricity stolen between 1 December 2019 and 26 May 2021 was estimated to be about $12,193, and this is Charge 2 on Indictment M1188027B, theft.

Nature and gravity of your offending.

20I turn now to the nature and gravity of your offending.

21In assessing the objective gravity of your offending of the trafficking charge, the prosecution submitted that I must sentence you on the basis of the jury finding that you did not appreciate there was more than 500 grams of cocaine being stored in your shed.  Mr Dickie submitted that the objective fact that almost six kilograms of cocaine was in fact stored made this a serious example of trafficking. 

22It was further submitted that I should take into account evidence I had excluded from the trial.  This was the evidence of the previous instance of cocaine storage by Mr Finnigan including that he had previously paid you a sum of $8,000 in cash for your assistance.  Mr Dickie submitted that this contextual evidence was important to sentencing to illustrate that you had more than a fleeting involvement in trafficking and the fact that its prejudicial effect outweighed its probative value had less force for a sentencing judge.

23Mr Sheales on your behalf submitted that the invitation to conclude that your offending is to be categorised as a serious example of trafficking, notwithstanding that you did not appreciate there was 500 grams or more being stored in your shed, is wholly contrary to the requirement that you are to be sentenced consistently with the jury verdict.

24In relation to the second aspect of the earlier contact and the payment of $8,000, Mr Sheales submitted that the prosecution's invitation for the court to take this into consideration is an invitation to fall into error.  Mr Sheales pointed out this evidence was excluded from the trial.  The previous episode of storage and the payment of $8,000 could have been the subject of separate charges on the indictment but they were not.  In these circumstances Mr Sheales relied upon the fundamental principles that a person should not be punished for an offence for which he has not been convicted.[1]  Further, he submitted that having been excluded from evidence they cannot be considered in relation to your culpability for the offence to which you pleaded guilty.

[1]R v Newman and Turnbull (1997) 1 VR 146.

25In relation to the first issue raised, I do consider the objective quantity of the drugs to be a relevant sentencing factor that elevates the seriousness of the trafficking charge.  However, I also accept that I must sentence you consistently with the jury's verdict.  Although I find the circumstances of the trafficking to be serious, I find your moral culpability to be low, consistent with the finding of the jury.

26This is not a case where the prosecution has accepted a cultivate or a trafficking simpliciter charge, accepting that the offender did not intend to traffick or cultivate a commercial quantity in circumstances where the offender has full awareness of the amount of the drug present.[2] The jury has found you not guilty of the two more serious trafficking charges which required an intention to traffic in significantly larger quantities of drugs.  I find that in doing so the jury accepted that you did not turn your mind to the quantity of the drug present and I intend to sentence you accordingly.

[2]Kennedy v The Queen [2019] VSCA 127.

27In relation to whether I can use the contextual evidence regarding your prior dealings with Mr Finnigan, I accept the prosecution's submission that it does not automatically follow that evidence excluded at trial cannot be admitted on the plea.  However, I also accept the submissions of your counsel that this prior episode of storage and the payment of $8,000 could both have been the subject of charges and I cannot punish you for an offence for which you have not been convicted. Further, I consider that to take these factors into account when they were not before the jury would create the very real risk that I would sentence you contrary to the findings of the jury.  It was not suggested by your counsel that your offending occurred in isolation, either before the jury during trial or on the plea.

28I therefore accept that this trafficking was short in duration, Finnigan was the principal offender, you had no interest in what would happen to the cocaine, you did not turn your mind to the quantity of the cocaine stored by Finnigan, you expected some unspecified financial reward, your role was passive and relatively minor in the circumstances.

29In relation to the cultivation of the cannabis plants, due to the relatively small number of plants and the lack of evidence of distribution for sale, I accept on the balance of probabilities your claim that these plants were not cultivated for sale. This reduces the objective gravity of the cultivation offending and the maximum penalty.

30Though not overly sophisticated, the hydroponic set-up and electricity by-pass make the cultivation more serious than instances where, for example, a person may have only one or two plants growing in pots on their property.  Had the search warrant not been executed on 26 May 2021 the value of the electricity theft may have increased significantly without other opportunities for detection.

Personal circumstances

31Regarding your personal circumstances, you are now 37 years of age. You were 35 at the time of these offences. 

32You were born and raised in the Melton area and you were the youngest of three children. By all accounts your home environment was supportive and nurturing and you remain close to your family, both immediate and extended.

33You completed school until Year 12 at Catholic Regional College in Melton.  From your teens to mid-20s you were involved in your community through football and cricket. 

34You have been employed as a plumber for 18 years, 14 of those have been with your current employer, PB Plumbing.  Recently you were elevated to the position of site manager.

35You married your wife Cassandra in 2013 and you live together with your three children and golden retriever, Luna, in Kurunjang.

36Your counsel tendered several character references on your behalf at your plea.  These references were provided by your father, Alphonsus Crawford, your wife Cassandra, or 'Cassie' Crawford, Chris Barrille, your employer and friends, Rachel Hocking and Tim Drewer. 

37Each of your references describes you as a hardworking and diligent father and a person who is liked and respected by all people who know you.  Despite sometimes working more than five days a week you make time for your parents and friends, your personal fitness, helping around the house and being active in your children's numerous extra-curricular activities.

38The reference of Mr Barrille indicates you are a valued employee who holds a position of considerable trust and responsibility within his company. 

39I note your wife, father and members of your family have attended throughout the court process in your support.

40On the materials provided you do not have any psychological concerns or significant issues with illicit drugs and alcohol, though according to your comments to police and Corrections you have used cannabis.

41You have no prior criminal history and these charges have come as a surprise to those closest to you.

Remorse and plea of guilty

42I note that you indicated your intention to plead guilty to cultivation of a narcotic plant, theft and trafficking simpliciter at the earliest possible opportunity. 

43You elected to run a trial in relation to the large commercial quantity, commercial quantity, trafficking charges and you were acquitted of those charges.  Your trial was confined to the narrow issue of your intention to traffic in the large quantities alleged.  The trial was therefore relatively brief and only one prosecution witness was called to give evidence.

44In relation to the cultivate cannabis and theft charges, I accept the utilitarian value of your pleas of guilty.  Though a trial was held in relation to the trafficking charges, as I have stated earlier, I accept the presence of the triable issue which was narrow in scope and resulted in a brief trial. I take into account the benefits of these pleas in the context of the court backlog, which though now easing, was still a relevant issue when these charges entered the court process.

45In assessing remorse, I have had regard to your plea of guilty in addition to your comments to the police, Corrections and the character references submitted on your behalf.  Further, I accept your evidence that you have thought about your offending daily since your arrest and that you are genuinely remorseful. 

46It is to your credit that you were forthright with police during the execution of the search warrant and your property, though no doubt their presence would have come as a considerable shock to you. Detective Senior Constable Wardle gave evidence that you immediately told police that cocaine was recently dropped off at your property, the identity of who dropped it off and you led them to where it was stored.  Upon its discovery by police, you were also forthright about your ownership of the cannabis plants in your shed. 

47You continued to make full and frank disclosures during your record of interview when you could have exercised your right to remain silent. This included explaining the circumstances of how the cocaine came to be stored in your shed and contact with Mr Finnigan who you readily identified. You also admitted responsibility for setting up the hydroponic system for the cannabis plants and organising the electrical by-pass which resulted in theft of electricity. Further, I take into account that you have since repaid the amount of $12,193 the subject of the theft.

48At the time you made these submissions you could not have known the extent of the information police had about Mr Finnigan or your involvement.  The evidence of your intention to store the cocaine at your property was in large part supported by your admissions to police.  The CCTV footage of your home does not show the cocaine being unloaded in your shed and messages detailing the arrangements of it being placed there were not recoverable.  The evidence in support of the trafficking charge, in particular, would have therefore been significantly weakened without your admissions.

49The law considers it to be a significant mitigating factor when an accused person volunteers information which is important to the investigation of an offence, particularly if without that information there would have been insufficient evidence to impose more serious charges, or charges at all.[3] In relation to the cultivation charge, but for your admissions the police would have only been able to charge you with a single day cultivation and not the 18 month between dates charges to which you have pleaded guilty.  I take this into account in sentencing you.

[3]R v Doran [2005] VSCA 271.

50Further, each character reference provided in your support emphasises that you have been candid with those closest to you about your offending and each acknowledges that you have expressed regret, not only about the impact of the offending upon yourself, but those around you. When asked by Corrections during their assessment how you felt about the offending you stated that you felt remorse and shattered and that you would like to do a Correction order to repay the community.

51I accept that you have demonstrated genuine remorse for your offending and that this should be considered in your favour as part of the sentencing exercise.

Sentencing principles

52General deterrence and denunciation are prominent sentencing considerations in drug-related offences of this type. 

53The law aims to address the damage caused by illicit drugs in various ways, particularly by targeting those responsible for their creation and distribution who usually benefit financially at the expense of the health and wellbeing of individual drug users and communities.

54In relation to the trafficking charge, whilst I cannot elevate your role in the offending by reference to the actual quantity of the drugs, I do consider it relevant to issues of general deterrence.  The risk you took by providing the favour you did was significantly greater than you contemplated and others should not be tempted to engage in conduct which places themselves and the rest of the community at risk of harm from the distribution of illicit drugs.

55In my view, specific deterrence is of little importance in this sentencing exercise.  It is apparent from your numerous expressions of regret and the character references provided that the consequences of engaging in this conduct have been powerfully brought home to you.  Evidently, you have had to grapple with the shock and disappointment of those closest to you and you initially spent two days in custody in circumstances where you have led a law-abiding life having never been charged with a criminal offence.

56Your lack of prior history, genuine remorse and the presence of numerous protective factors such as family and work, combine in your case to satisfy me that your prospects of rehabilitation are excellent. 

57I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case.  I have had regard to the current sentencing practices for trafficking in a drug of dependence and cultivation of cannabis.  I have also had regard to the principles of parsimony and proportionality.

58I have considered the sentencing statistics for trafficking and cultivating in non-commercial quantities of drugs and narcotic plants.  I note the limitations with statistics in general, however, I have considered them to have some utility in arriving at my ultimate disposition. Further, I have considered the comparable cases helpfully supplied by the prosecution.  Each case obviously turns on its own facts.  Cases where terms of imprisonment were imposed usually involved the offender having some greater participation in the offending and usually involved them having relevant prior history. I consider the cases of Chang & Heffernan to be closer to the circumstances of your case given the role of each of those offenders,[4] and in the case of Chang, the lack of prior history.  However, as I have said, each case must be dealt with according to the factors unique to it.

[4]Chang v The Queen [2018] VSCA 15; DPP v Corie Heffernan [2023] VCC 538.

Disposition

59After consideration of what is the right penalty for you and balancing as best I can the nature and gravity of the circumstances of your offending, your moral culpability, with your previous good character and all the factors that you have in your favour, I have come to the conclusion that a community correction order is the appropriate penalty in your case.

60At your plea hearing I requested a pre-sentence assessment to be conducted by Corrections to assess your suitability for a community correction order and Corrections found you to be a low risk of general re-offending and found you suitable to complete an order.

61Mr Crawford if you could please stand. In relation to the charges of trafficking in a drug of dependence  you are convicted and you are placed on a community correction order for a period of 20 months.  The sole condition of this community correction order is that you perform 250 hours of unpaid community work over that 20 month period. In relation to the charge of cultivation of a narcotic plant and theft you are convicted and you are placed on a community correction order for a period of 20 months in identical terms, that is the only condition is 250 hours of unpaid community work. It is my intention that these orders run concurrently. Now because community work is the only condition on the order, upon satisfactory completion of the unpaid work the order will expire.  So if you complete those hours quicker then the order will be over.  But I have set it at 20 months to give you a period of time in which to be able to do them.  I have noted that you have a lot of other commitments.

62In addition to the community work condition there are some standard conditions that I need to tell you about.  So no doubt they were explained to you when you undertook the assessment but I need to repeat them to make sure that you understand what you are getting into. First and foremost, you must not commit any offence that is punishable by imprisonment during the next 20 month period or the period of the Correction order. You are required to advise your supervising Corrections officer of any change of address where you are living or working within two clear working days, and it is a term of all community correction orders that you must submit to visits as directed and obey instructions and directions of the Corrections officer. You cannot leave the State of Victoria without their prior permission. If you breach any of those conditions or you do not comply with the condition that I have imposed, that would be a contravention of the order, and it would mean that you would be brought back before me and you would be dealt with for breach.  And potentially you could receive a term of imprisonment because – I have certain options but one of them would be to re-sentence you.  I do not believe that you are going to breach the order, I am quite confident that you will do the community work that has been set.

63You must report of Derrimut Community Corrections before 2 pm within two working days of the order coming into effect, which is today. 

64I can only place you on a Corrections order if you agree, so do you understand what is involved?

65OFFENDER:  I do.

66HER HONOUR:  And do you agree?

67OFFENDER:  I agree.

68HER HONOUR:  Great, alright.  We will have an order drafted up and we will get you to sign that.  I will make the disposal order in the terms sought by the prosecution.  Is there anything else?

69HER HONOUR:  And I wish you all the best, Mr Crawford, no doubt you will get through this and I'm sure this has been a huge experience that you are really longing to put behind you.  No doubt it's been very expensive and very illuminating to be in the Dock.  Thanks everyone, and I'll adjourn the court.

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