Director of Public Prosecutions v Daniel

[2015] VCC 319

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR-15-00302

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT DANIEL

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Warrnambool
DATE OF HEARING:	20 March 2015
DATE OF SENTENCE:	20 March 2015
CASE MAY BE CITED AS:	DPP v Daniel
MEDIUM NEUTRAL CITATION:	[2015] VCC 319

REASONS FOR SENTENCE
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Subject: Criminal law - sentence

Catchwords: Pleaded guilty to one charge of cultivating a narcotic plant of commercial quantity; 59 year old crop sitter; good prospects for rehabilitation.

Sentence: 12 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Piekusis	OPP
For the Accused	Mr M. Langlois	VLA

HER HONOUR:

1Robert William Daniel, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity.  The maximum penalty for this offence is 25 years' imprisonment. 

2Police located a cannabis crop in the forest at Digby in May 2014 comprised of plants that were 1.2 metres high and there was evidence of harvesting having occurred.  The police took from the site a trail camera set up on a tree, seizing it in the event that it might display images, but this was not the case and the police had no evidence of any persons' involvement. 

3The police returned to the site in October and found it in a similar state as previously and found you in a tent.  There were four homemade greenhouses containing 780 cannabis seedlings approximately 3 cm high.  A sophisticated equipment setup was in operation for the cultivation of the plants including a generator and related equipment, a camouflaged swimming pool with commercial agricultural piping connected to a dam hundreds of metres away, potting mix and gardening tools.  The tent in which you were found was equipped with full living quarters including a fridge and cooking facilities with food for an extended stay.  Other tents had been set up with drying equipment for harvested cannabis. 

4Police carried the plants out of the forest but dropped some of them along the way.  505 seedlings were analysed and only 117 were identified as cannabis as the remaining 388 were either too immature or had died.  Accordingly, you are to be sentenced on the basis of the 117 seedlings which is just over the commercial quantity of 100 plants.

5You were arrested and interviewed and remanded in custody.  You made some admissions and pleaded guilty at the committal hearing which was conducted by way of straight hand‑up‑brief.  You are entitled to a discount on your sentence for having avoided the expense and inconvenience of a trial and I also accept the plea as an indication of remorse.

6It was submitted by your counsel that your involvement was at the lower level of cultivation as you had only been at the site for four days and at that time had not received any payment for it.  You had come from your home in Western Australia to take on the job of crop-sitter and police found at an address where you had been living a number of instruction manuals and warranties matching items found at the crop site.  You had been instructed in your task before commencing the four day roster that you had embarked upon, so clearly you had participated in a certain degree of planning and preparation. 

7Unfortunately, the role of crop-sitter is a significant one because it shields the organiser and primary offender from detection. The crop sitter is particularly vulnerable, being more exposed to possible detection.  However, there is no evidence that you had been involved in the May crop which must have been harvested in the meantime.  Your culpability would seem to be at the lower end of the range of seriousness but your participation was more than is often the case with casual crop-sitters who might visit a crop to look after it.

8Your personal background is that you are aged 59 and you have been a mill worker for many years in your home state of Western Australia.  For the last 14 or 15 years you have suffered from a bad back which has resulted in you being unable to work and you have been on the disability pension for that period of time.  Your long-term de facto relationship ended in 2000 and this, together with financial difficulties, led to a depressive condition cumulating in a suicide attempt. 

9You have seven children who live in Western Australia and Sydney and whilst in custody you have only been permitted telephone contact with two of them because of restrictions on mobile phone use.  Because of the geographical isolation from your children you have had no visits from any family members for the duration of your time in custody. 

10Upon release you plan to return to Western Australia to live with your son.  It was submitted by your counsel that a straight sentence would be the most appropriate disposition in the circumstances. 

11For several reasons, general deterrence is a very important consideration in relation to this crime.  It is a serious crime, a fact made clear by the very long maximum sentence of 25 years.  It facilitates the growing and distribution of an illicit narcotic drug that feeds a network of criminality and causes serious harm in the community.  A prison sentence to be served immediately is warranted. 

12You have a prior conviction for conspiracy to sell or supply cannabis in Western Australia in 1986 but you have not offended in any way since then, having been working and raising a family during most of that time.  I place no weight on that early conviction as it would seem to be of little relevance to your likely good prospects for rehabilitation.  Whilst in custody you have been working in the prison kitchen and have completed related courses.  You are not a drug user and you drink alcohol socially.  You have family to return to on your release and there is nothing to indicate that the chances of re-offending are concerning.

13Accordingly, I sentence you to 12 months' imprisonment.  You have been in custody for 154 days not including today.  That time is to be declared as already served and I shall cause that to be noted on the court record. 

14The prosecution seeks an order for a forensic sample to be obtained and through your counsel you have consented to that.  I make the order and must advise you that the police have the power to use reasonable force to obtain the sample but I trust that will not be necessary.  The prosecution also seeks orders for the forfeiture and disposal of various items listed in the Schedule.  That is not opposed and I make those orders. 

15If you had pleaded not guilty I would have sentenced you to 18 months' imprisonment.

16I do not think there are any other orders.  Have I neglected anything, Ms Piekusis?

17MS PIEKUSIS:  No, Your Honour.

18HER HONOUR:  Mr Langlois?

19MR LANGLOIS:  No, Your Honour, thank you.

20HER HONOUR:  Officer, you can take Mr Daniel now and his counsel will see him shortly.

21MR LANGLOIS:  Thank you, Your Honour. 

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