Director of Public Prosecutions v Deak

[2015] VCC 995

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

IVAN DEAK

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	21 April 2015
DATE OF SENTENCE:	24 April 2015
CASE MAY BE CITED AS:	DPP v Deak
MEDIUM NEUTRAL CITATION:	[2015] VCC 995

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. De Vrome	Office of Public Prosecutions
For the Offender	Mr I.G. McKechnie	Roubos & Associates

HIS HONOUR:

1Ivan Deak, on 8 September 2014, police went to your shop in Shannon Avenue, Geelong West.  At the time you operated a shop selling hydroponic cultivation equipment.  You have been in that business for a number of years.

2When the police entered your shop with a warrant you were behind the counter.  Police found cannabis in a number of individual packages in your fridge.  Also the police found in the fridge, a block of hashish.  The total weight of the cannabis was 22 grams.

3Later that day, the police went to your home at 23 (Indistinct) Avenue, Bell Park.  In a specially modified room in your garage, you had 27 cannabis plants under hydroponic cultivation.  It was a sophisticated set-up allowing plants to grow under lights indoors.  All the comment accoutrements of indoor cannabis cultivation were present, that is, lights, fans, timers; and a large amount of growing chemicals.

4The plants were at different stages of developing, bespeaking of crop rotation and thus the continual supply of cannabis.  Of the 27 plants, five of them were mature and weighed over 34 kilograms.  The total weight of all cannabis plants was 32.21 kilograms.

5Also found were psilocybin mushrooms drying on racks, commonly known as magic mushrooms.

6In the house were scales, small bags of cannabis, as well as seeds.  It is of note that these items were found in your bedroom and not in the kitchen.

7You declined to speak during your police interview.  Early in the day that the police searched your shop and premises, you were observed driving a car which was unregistered.  You were not permitted to drive, being unlicensed. 

8You have pleaded guilty to a charge of cultivating a narcotic plant in not less than a commercial quantity.  The Parliament has fixed a maximum penalty of 25 years' imprisonment for this crime.

9The maximum penalty for possession of a drug of dependence of which you pleaded guilty to two charges, is five years and/or 400 penalty units where the possession is related to a trafficking purposes; or one year and 30 penalty units, when on balance that purpose is excluded.

10It is important to remember the maximum term for an offence is a factor that I am bound to take into account in arriving at the appropriate sentence.  The maximum term articulates just how seriously the community through our Parliament considers these crimes, especially the crime of cultivation of a narcotic plant in not less than a commercial quantity which has the longest maximum term possible, short of life imprisonment.

11It is important to note that for the offences of possession of a drug of dependence, there are two maximum terms, and it depends on whether I find your purpose is related to trafficking, or whether on balance that purpose is excluded.

12As your counsel took pains to point out, the same statutory regime applies to the crime of cultivation, as set out in s.72 of Drugs Poisons and Controlled Substances Act.  His point was that the provisions of s.72 somehow applied to the offence that you have pleaded guilty to, being the cultivation of not less than a commercial quantity in breach of s.72A of the Drugs Poisons and Controlled Substances Act.

13As I was at pains to point out to your counsel, s.72A has one maximum term and no statutory regime allowing for different maximum penalties, depending on any finding I may make as to the purposes of the trafficking.

14The absence of these provisions such as set out in 72(a) and (b), in s.72A, is important, and I cannot read into s.72A something that is not there, and deliberately so.

15The purpose of your cultivation, if it can be discerned, goes to your moral culpability.  Examples such as the decisions of the Court of Appeal in Hendricks and Burgess, make this clear.

16However, the Court of Appeal has also cautioned sentencing judges not to treat cultivation of commercial quantities of cannabis as if it were the offence of trafficking.  The crime is the cultivation of the cannabis plants in not less than a commercial quantity;  pure and simple.

17I cannot be seen to punish you for a crime you have not been charged with, such as trafficking.  That said, I repeat, if I am satisfied on balance that your cultivation was to facilitate personal medicinal use of cannabis, then that would reduce your moral culpability.

18Your counsel asserted that your cultivation was so you could juice the cannabis plants, or parts of the plants, and drink the juice with other fruit or vegetable juice for some medicinal purpose.

19The evidence, such as it was, about all this, was very poorly marshalled.  As best as I could discern on this topic, counsel put that parts of the cannabis plant that are usually used for the psycho-active impact, that is, leaves, flowering heads and the like, if they were not heated but kept cold after harvest, and then juiced, then the active ingredient of THC would not be present.  The argument then being that using cannabis without active THC makes it clear that the use of the cannabis is for some purported medicinal purpose.

20Counsel put that the chemistry involved when heat is applied, results in the potent THC being potentiated from another chemical structure, TOOC.  He asserts that this was information that he had recently obtained in his instructions from you and from internet searches.

21You, Mr Deak, gave evidence in similar, but I must say, vague, terms, on this matter, as to what you had read on the internet.

22No material from any internet search was submitted whether from any reputable peer review journal in organic chemistry and the like, or botany, or any other article, academic or otherwise, or chemistry website, or even what counsel referred to, an article in the Sydney Morning Herald.

23Rather, during the plea, counsel sought time to examine books that were seized from your shop, to see if there was any reference in those books to this topic.

24After having time to search the books, your counsel relied on one part of the book entitled, "Ed Rosenthall's Marijuana Grower's Handbook", which is the official course book from the Oaksterdam University.  That is its cover.

25No information was provided as to the legitimacy or otherwise of the book, its author, or the extract that he referred to, or the course or university, so to speak, Oaksterdam University.

26The prosecution put that its quick research is done at the Bar table revealed that the Oaksterdam University boasted that it was the world's first cannabis university.

27The matter referred to by counsel, if I quote it, as far as it can be understood reads, "Some THS in resin is present in the form of THCA, also called THC acid.  This form of THC has a carbonate molecule, CWOH, attached to it, which is also called carboxyide group or acid. THC is only marginally psycho-active when a carboxyide group is attached to de-carboxylate is to remove the carbonate molecule.  This simply means breaking the bond between the CWOH molecule and the THC molecule.  This is usually accomplished - " usually accomplished, " - through mild heat.  When carbonate molecule is removed from the THC acid, the CWOH evaporates away in the form of water and the THC is left behind.  Converting THCA through the carboxylation improves availability of THC content, sometimes called potentiating THC."  Emphasise, "It improves the availability of THC content."

28I cannot accept on the evidence I was provided any of the propositions put as to what may or may not occur if cannabis is used without the heat being applied.

29Mr Deak, in your evidence, you did not suggest that you are an expert in chemistry.  Your evidence as to what you had read on the internet does not advance the matter at all. 

30As I will outline shortly, I do not accept your evidence on most of the matters that you gave evidence about.  In short, I found your evidence to be evasive and vague.  There was prevarication.  You were ill-informed and willing to say extreme and unjustifiable things to support your point of view.

31You said in your evidence that you grew cannabis to juice and use it for medicinal purposes.  You said your medicinal problem was a leg rash.  You said that you have seen a naturopath for the rash but it persisted.  You said you grew the cannabis to make juice, but despite this purpose and the ongoing problem of a rash on your shin, you had not juiced anything.

32You grew five plants to the point that they weighed 34 kilograms and had 22 more growing under sophisticated set-ups, but you had not tried a drop of the juice to see if it worked to ameliorate your rash.

33You are, of course, convinced of the medicinal efficacy of cannabis, but you expressed it in such extreme terms as to diminish your credit.  You said of the power of cannabis that you had seen many cases of terminal cancer reversed in humans and you added, also in dogs.  There is no basis to accept this evidence at all.

34Plainly the science, as opposed to irrational hocus pocus, has developed significantly with respect to the medicinal uses of cannabis. 

35Our Parliaments and, as I understand it, that in New South Wales, will deal with proposals to allow strictly administered medical use of cannabis from properly bred and cultivated plants.  This is not to be seen as legitimising cultivation of cannabis, much less providing an excuse for the cultivation of a commercial quantity of cannabis under secret hydroponic set-ups in a back shed in Bell Park, by you, Mr Deak, simply because you believe cannabis has the sort of capacities that you spoke of at the commencement of your evidence.

36Unlike the circumstances such as in the case of Hendricks you had the accoutrements at your house and shop which tend against your assertion the cultivation was for your medical purposes of juicing.

37In your shop you had small bags of packaged cannabis and hashish, in your bedroom, and not in your kitchen where it might be thought that juicing may occur, you had scales, bags of cannabis and seeds.  Also hashish is a form of cannabis, not said, as I understand it, to be in any part involved in the cold juicing, but rather is a way of using cannabis at a higher level of potency.

38Your evidence as to the packages of cannabis being found in your fridge at work was that the cannabis was given to you as a gift.  The way that you prevaricated and avoided questions, the content of these answers that you were prepared to give, and your demeanour in giving them, leave me in no doubt that your answers on this topic were contrived and made up as you went along.

39Taking that with all the other evidence, including the other aspects of your evidence that I will deal with shortly, I am not persuaded the possession of the cannabis in Charge 2, was for a purpose that was not related to trafficking; thus I will deal with you for the offence of possession of the cannabis, Charge 2, according to the higher maximum term of imprisonment of five years.

40When pressed on the possession of the mushrooms, the answers that you gave and the way that you gave those answers, led me, in my view, to the only possible conclusion that you again were making things up as you went along.  You said that you were a Sharman and used the mushrooms for journeys into another dimension.  Your counsel's written submission included the point that, "Mr Deak is seen as a healer in his community."

41You said that you found the mushrooms in a forest, when pressed as to which forest, you said "In Victoria"; when pressed again after some time, you said, "Blackwood".  You said this was where you found the mushrooms in the earlier prior conviction which I will deal with in 2010.

42Taking all the evidence relating to the possession of the psilocybin, I am not persuaded that your purposes were other than related to trafficking and I intend to sentence you on the basis of the longer maximum term.  That said, both offences are at the lower end of the offending of possession of drugs of dependence.

43In my assessment of the gravity of the crime of the cultivation in a commercial quantity, and your moral culpability, I conclude that given, (1), the amount of the cannabis cultivated to the sophisticated methods adopted, including having plants coming on to provide a regular supply of useable cannabis.

44(3)  The prior convictions that you have for the self-same offences, but at a lower level in recent times in 2010 and again well prior in 1995, together with all the other matters that I referred to relating to purposes, I consider that this was a serious example of cultivation of cannabis in a commercial quantity, but far from the worst.

45The prosecution assessment that it was mid-range on the spectrum seems perhaps a bit higher than I would see it, but not by much.

46As to your moral culpability, I am prepared to see that your cultivation as having a lower moral culpability because I am of the view it was not blatantly established for an entrepreneurial purposes, as is so often the case in suburban cannabis grow houses.

47I am not, at the same time, persuaded, that you, Mr Deak, grew the cannabis for medical purposes.  You were growing a significant number of plants and the yield of cannabis was high at the time of discovery.  That is, it weighed 35 kilograms.

48You have firm views on the benefits of cannabis and I understand that, but I will deal with you as having a lower moral culpability than is usually attributable to cultivation of cannabis in a commercial quantity.

49What I know of you, Mr Deak, is that you are a 52 year old man.  You live in Bell Park in rental accommodation and have done so for many years.  You have operated a hydroponic shop which also sells motorcycle parts, for a number of years, but your income is modest.

50You have a partner of four years, and she is a nurse.  Apart from your prior convictions for drug offences, you also have a bad driving record.  You, again, fall to be dealt with for driving while unlicensed and driving while your ute was unregistered.

51As to your other prior convictions, I must spend some time on that.

52In 1995, you were convicted and fined for cultivation of cannabis, theft and use of cannabis.  This was, as I understood it, a hydroponic set up in the Bell Park house, though the matter was dealt with in the Broadmeadows Magistrates' Court.

53In any event, wherever it was, it is to be noted it is a very relevant prior conviction.

54In October of 2010, you were again convicted and fined for cultivation of cannabis, possession of cannabis, possession of psilocybin, possession of hashish, using cannabis as well as driving and weapons charges.  I was provided with a summary of the charges, as was presented at the Magistrates' Court at Geelong.

55The summary reveals a set-up at the house for cultivating cannabis identical to the one found in 2014, in all intents and purposes.  There were four plants on that occasion which had reached the height of one and a half metres.  There were 20 other plants that were between 20 and 40 centimetres.

56You had capsules in your shop containing cannabis which were themselves inside a yellow envelope with printing on it, indicative of pricing, being $20-30, and $3 each.  You told police you made cannabis capsules for pain relief.

57In your evidence you said a person who you would not name was looking after your house and shop in 2010 when you were interstate and it was he that set up the cannabis cultivation operation.  You found it on your return and kept it going.  You said the mushrooms that were found on that occasion were found in a forest in Victoria, that is, you said that in evidence here, which when pressed you said was at Blackwood.

58As I say, you said you found the mushrooms in 2014 in like place to where you found them in 2010.

59You said the pricing on the envelope which had the capsules did not relate to the capsules inside, but was mere writing on the envelope that you just happened to use. 

60As I have said, I found much of your evidence, including what I have just outlined as to your prior convictions, utterly unbelievable.

61My rejection of your evidence on this topic also has the effect of diminishing your credit generally.

62Those prior convictions are matters that I must take into account.  You are not to be re-punished for those offences, but they have the impact that I must consider how much weight and, in your case, significant weight must be attended to specific deterrence, protection of the community, and it diminishes your prospects of rehabilitation.

63But as to your future, it was put at the last, and in vague terms, that you and your partner hope to set up in Avoca district with a permaculture business or operation, thus leaving Geelong.

64Mr Deak, your plea of guilty means my sentence will be less than it otherwise would have been.  You, by your plea of guilty, have saved unnecessary costs of a trial. 

65Your counsel submitted that I impose a community-corrections order with unpaid community work as the condition.  He later said that drug rehabilitation may be appropriate for you in respect of the magic mushrooms.  I had you assessed as to whether you were suitable for a community-corrections order, and you were assessed as suitable.

66The prosecution contended that a term of imprisonment, immediate imprisonment, was required.  There have been in relatively recent times, statutory changes to allow for penalties involving lengthier community-corrections orders, and also a combination of gaol and community-corrections orders.

67The guideline judgment of the Court of Appeal in the matter of Bolton & Ors, is an important decision and has made it clear that gaol was to be seen as the punishment of last resort.

68The judgment requires me to consider whether a community-corrections order could meet all sentencing purposes.

69I have anxiously considered this matter, taking into account all the matters for and against you that I have referred to already.

70I have considered current sentencing practices in other cases such as Hendricks, relating to medicinal purposes from cultivating marijuana, or cannabis.

71Your prior offending, which has, it must be noted, been met with moderate fines in the past, means, nonetheless, that significant weight must be given to deterrence to you.

72General deterrence, another purpose for sentence, remains important, so that all understand that cultivating cannabis is forbidden by law, whatever the views a person may have about whether that should be the case.

73Your crimes do require denunciation, especially because I am not persuaded your cultivation or possession were for the purpose you contended.

74Cannabis is a significant problem in our community.  Hydroponic crops grown secretly and indoors are hard to detect and is a crime of growing prevalence, but I remain always mindful that it is a grave step to send someone to prison and it is to be done, if, and only if, it is required for a sentence to be just and appropriate.

75In the ordinary course, Mr Deak, a third time cultivator is found with 35 kilograms of cannabis under cultivation, will be sentenced to prison for a significant term and beyond the term which would allow for a combination of the community-corrections order and gaol.

76In your case, because of all the circumstances, I am prepared to ameliorate the term of imprisonment which I will shortly announce to allow for a community-corrections order to be undertaken upon your release.

77The community-corrections order will contain, or continue your punishment by reason of unpaid community work and, at the same time, endeavour to rehabilitate you by mandatory drug treatment programs.

78Can you please stand, Mr Deak.

79For cultivating cannabis in not less than a commercial quantity, you are sentenced to imprisonment for 12 months.

80In addition for that crime you are to do a community-corrections order for two years and the conditions I will outline.

81Possession of a drug of dependence, cannabis, you are sentenced to one month imprisonment.

82Possession of a drug of dependence, psilocybin, you are sentenced to one month imprisonment.

83Those two sentences that I have just announced on consideration of totality and all the other matters, will be concurrent with the 12 month sentence that I have imposed.

84In respect to the summary matters that you have pleaded guilty to in respect of the unlicensed driving and driving an unregistered car, as an aggregate term, you are convicted and fined $1,500.  Your licence is affected.  You are disqualified from driving for a six month period.

85The total sentence that you face is 12 months' imprisonment, together with a two year community-corrections order. 

86There will be the usual conditions that apply to everyone a community-corrections order.  But, in addition, specific to you, you have to do 200 hours of unpaid community work within the two years.

87You must be the subject of supervision from the Office of Corrections and you must submit to and undertake drug treatment and rehabilitation programs.

88Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of four years with a minimum of three.

89Is there any other orders save for the disposal orders?

90MS DE VROME:  Disposal and the forensic sample order.

91HIS HONOUR:  Thank you.

92The prosecution has made an application that you provide a forensic sample, that is, a scraping from your mouth, so that sufficient standard could be obtained and, ultimately, your DNA placed on a database.

93I have considered that application.  I intend to grant it.  The reasons for that are the seriousness of the circumstances of the offending warrant such an order because of your prior convictions and the granting of the order is in the public interest.

94You have to understand at the time that you are requested to provide the sample by the mouth scraping, that the police or those that are doing it, are authorised to use reasonable force to enable the forensic procedure to be conducted if you do not co-operate with it.  The way through it, of course, is to co-operate.

95Sign that order and you will get a copy of it.

96In addition there is a disposal application made setting out in its schedule, a variety of items connected with the cultivation of cannabis and other assorted aspects.  I intend to make that order as well.

97You can be seated, Mr Deak.

98MR McKECHNIE:  Your Honour, there are two custody issues that I need to bring to Your Honour's attention.

99HIS HONOUR:  Bear with me a moment, we'll get some documentation.

100In respect of the community-corrections order that I have imposed, just read through all the conditions that apply so you understand.

101The order will last for two years and commence upon the completion of your imprisonment.

102You must attend at the Geelong Community Corrections Service at the State Government Offices, Level 5, 30A Lt Malop Street, Geelong, within two clear working days after the commencement of this order.  Two days after you get out of prison.

103The mandatory terms that apply to all who are on community-corrections orders are that you must not commit another offence for which you could be imprisoned during the time that the order is in force.  That is any offence.

104Whether the magistrate would impose such a penalty is not to the point.  If you commit an offence you breach this order and having imposed an order and, as I explained to you, commonly commercial quantity of cultivation of cannabis, especially for people with two prior convictions, would have resulted in a significantly longer period of imprisonment that I would impose.

105So if you commit another offence for which you could be imprisoned, then you will come back and I will simply re-sentence you for the crimes that you committed that have you here before me today.

106You know that possession of cannabis is an offence punishable by imprisonment.  If you do not, I will make it clear to you, so that if you possess cannabis then you will breach this order and you will return back to me.

107You must comply with obligations and requirements prescribed by regulations of the Sentencing Act, that will be principally you have to submit to having your photograph taken and details about you recorded, so that they know who you are.

108You must report to and receive visits from the Office of Corrections.  As I have indicated, you must report to the Community Corrections Centre here in Geelong within two clear working days.  After the order starts you must let the Community Corrections Officer know in two clear working days of any change of address or job.  So if you go to other places in the State, you must tell them.

109You must not leave Victoria without first getting permission to do so from the Office of Corrections and you must obey all lawful instructions and directions from them.

110The conditions that apply to you are these.  You must perform 200 hours of unpaid community work over the two years as directed by the regional manager.

111That is each and every day, each time that you are asked to be there on time, unless there is a reason for not doing so, that is supported by documentation from the doctor, or the like.

112You must be under supervision of a Community Corrections Officer for that two years and you must undergo assessment and treatment, including testing for drug abuse and dependency as directed by the regional manager.

113If you consent to that order then sign it.  Your instructor can approach, Mr Deak, to get that signed.  Thank you.

114Mr Deak, the transcript will note that you signed the order under the sentence which reads, "I understand the effect and conditions of this order and consent to it being made."

115Thank you.  Mr McKechnie, you were about to raise some matters?

116MR McKECHNIE:  Yes, Your Honour.

117HIS HONOUR:  You can be seated, Mr Deak.

118MR McKECHNIE:  There are two issues that should be kept an eye on and ‑ ‑ ‑

119HIS HONOUR:  You're really telling this to the Office of Corrections people.

120MR McKECHNIE:  Sorry, Your Honour?

121HIS HONOUR:  The audience for this is the Office of Corrections so that they look after him?

122MR McKECHNIE:  Yes, Your Honour.

123HIS HONOUR:  What are they?

124MR McKECHNIE:  The rash, Your Honour, which is a severe rash; but also eight weeks ago Mr Deak had diagnosed by Dr Robert Galelou.  Dr Robert Galelou found a clot in his legs and he's been treating that over the last eight weeks.  Apparently it's reduced in size ‑ ‑ ‑

125HIS HONOUR:  With blood thinners or something.

126MR McKECHNIE:  A blood clot in his legs, yes, Your Honour.

127HIS HONOUR:  So treating it with blood thinners?

128MR McKECHNIE:  I am unsure as to ‑ ‑ ‑

129HIS HONOUR:  Well, none of this was told to me until now ‑ ‑ ‑

130MR McKECHNIE:  ‑ ‑ ‑ (indistinct) massage.

131HIS HONOUR:  ‑ ‑ ‑ although it was clearly within your information so all I can say is, as I say, unless there's anything else you wish to say?  Because all I can respond is, I don't control what happens in the prison.

132Rather it's the Office of Corrections who have the responsibility to care for those who are placed in their care by the orders that I've just made.  They undergo, as you are no doubt aware, everyone who is imprisoned, will get a full medical and psychological assessment as soon as they are received into the prison and appropriate treatment regimens established, and the Office of Corrections people are hearing this as they sit there, as we hope that Mr Deak, no doubt, will raise with them that he has a blood clotting problem, however it is treated, and he has got a rash that needs some treatment.

133MR McKECHNIE:  Yes, Your Honour, it was my understanding that the court would and usually put a note on the trial
that ‑ ‑ ‑

134HIS HONOUR:  It happens in the magistrates' court, I'm not sure exactly why.  What power do I have to tell the Office of Corrections what to do?

135MR McKECHNIE:  I don't (indistinct) your argument, Your Honour.

136HIS HONOUR:  Thank you.

137MR McKECHNIE:  It's just usually the practice, as I understood it, thank you, Your Honour.

138HIS HONOUR:  Some judges do do it, you're quite right.  I don't see that I should be - I make orders - I've made them.  Others carry them out.

139MR McKECHNIE:  As Your Honour pleases.

140HIS HONOUR:  That is where it begins and ends, thank you.  Is there anything further required?

141MS DE VROME:  No, Your Honour.

142HIS HONOUR:  Thank you.

143Mr Deak, the court is not set up in any way that you can spend any time now with those that have taken time to support you here.  You have to go with the Office of Corrections gentlemen.

144Your lawyers will tell those who support you of all the ways that they can get in contact with you and how the bureaucracy of the prisons works, so that you can be in touch with them and, in due course, if they visit you, they visit you. 

145But this court room is not set up for that purpose now.  So if you would not mind going with the Office of Corrections man now.

146(Offender removed.)

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